Evolution of plea bargaining in India

142^nd Law Commission Report

Plea bargaining is a process that has changed the face of the Indian Criminal Justice system. It was introduced in India through the Criminal Law (Amendment) Act, 2005. It is not an indigenous system of our criminal jurisprudence. The 142^nd and 154^th Law Commission Report recommended plea bargaining as a scheme. Plea bargaining is a process where by an accused pleads guilty to a specific charge which is agreed between the prosecution and the defense. According to S.H. Kadish[i], plea bargaining is the exchange of an actual or apparent concession for a plea of guilt. According to the 142^nd Law Commission Report “Plea bargaining” in criminal cases in its general or traditional sense refers to pre-trial negotiation between the defendant usually conducted by the counsel and the prosecution during which the defendant agrees to plead guilty in exchange for certain concessions by the prosecutor.

The plea may be express or implied. It is applicable in respect of those offences for which punishment is up to a period of 7 years excluding socio-economic offences and offences against women and children. Also, once the Court passes an order in the case of Plea bargaining no appeal shall lie to any court against that order.

The Law Commission of India on its Suo moto motion undertook the herculean task of tidying up the criminal justice administration by getting rid of unconscionable delays and mounting arrear of cases. The 142^nd Law Commission Report was the result of such an initiative. In 1991, the Law Commission of India submitted before the Government their ambitious recommendation for the process via 142^nd Report on concessional treatment for offenders who on their own initiative choose to plead guilty without any bargaining. The Commission made an endeavor to evolve a new system which addresses the problems of the present system and also tries to rectify the shortcoming of the traditional plea-bargaining systems. The Report of the Commission was based on an intensive study of the plea-bargaining process that had been already a success in USA. The commission recommended that a scheme for granting prayer for concessional treatment made by accused pleading guilty voluntarily requires to be introduced in the criminal justice system in India by way of enacting a legislation according statutory recognition and authority to the scheme.[ii]

BACKGROUND OF THE REPORT

The Law Commission of India has been continuously researching to find a means to reduce the backlog of cases pending before the various courts in India. The 142^nd Law Commission Report was an attempt on the part of the Commission to reduce the huge arrears and backlog of cases pending before the various courts.

The Commission describes that the magnitude of cases in the criminal courts awaiting trial is incalculable. The Commission took into cognizance the fact that it took about three to four years for the trial to commence in a case after remitting the accused to judicial custody. This also leads to a situation where many undertrial prisoners spend more time in prisons than the period that they would in ordinary course of sentencing would be asked to undergo if convicted.

The Commission made references to the observations made by the Supreme Court in the famous case of Hussainara Khatoon v State of Bihar[iii] and quoted,

“The offences with which some of them are charged are trivial, which, even, if proved, would not warrant punishment for more than a few months, perhaps for a year or two, and yet these unfortunate specimens of humanity are in jail, deprived of their freedom for periods ranging from three to ten years without even as much as their trial having commenced.”

PLEA BARGAINING IN AMERICA

The Commission hugely relied upon the United States of America model of Plea Bargaining while examining the possibilities of inculcating the system within Indian criminal jurisprudence. The practice of plea-bargaining was in existence in USA as early as 1880s. But the procedure has met with criticism over the years with many people believing that it makes a mockery of the criminal process.

The Commission also referred to two leading Supreme Court decisions of the United States of America, which upheld the constitutionality of the process and also highlighted the important role played by plea bargaining in the disposition of criminal cases. In the case of Brady v United States,[iv] Justice White while delivering the judgment made the following observation about plea-bargaining:

“The issue we deal with is inherent in criminal law and its administration because guilty pleas are not constitutionally forbidden, because the criminal law characteristically extends to judge or jury range a range of choice in setting the sentence in individual cases, and because both the state and the defendant often find it advantageous to preclude the possibility of the maximum penalty authorized by law. For a defendant who sees possibility of acquittal, the advantages of pleading guilty and limiting the probable penalty are obvious- his exposure is reduced, the correctional process can begin immediately and the practical burdens of a trial are eliminated. For the State also there are advantages- the more promptly imposed punishment after an admission of guilt may more effectively attain the objectives of punishment: and with the avoidance of trial, scarce resources are conserved for those cases in which there is substantial issue of the defendant’s guilt or in which there is substantial doubt that the State can sustain its burden of proof. It is this mutuality of advantage that perhaps explains the fact that at present well over three-fourths of the criminal convictions in this country rest on the pleas of guilty, a great many of them no doubt motivated a least in part by the hope or assurance of a lesser penalty than might be imposed if there were a guilty verdict after a trial to judge or jury.”[v]

The Supreme Court held that guilty pleas are valid if they are voluntary and intelligent and the of lesser punishment pursuant to plea bargaining is not invalid.

The validity of Plea bargaining was again upheld by another US Supreme Court decision Santebello v New York[vi]. In this case Mr. Justice Douglas observed that plea bargaining is important in the administration of justice and they served an important role in the disposition of today’s heavy calendars.[vii]

The Supreme Court of United States of America has reiterated the view that plea bargaining is a proper method for administering justice.[viii] The Commission also made a reference study to the Canadian Law Commission Report 1989. “plea agreement” constitutes “an agreement by the accused to plead guilty in return for the prosecutor’s agreeing to take or refrain from taking a particular course of action”.[ix]The Canadian Law Commission Report opined that it would be a mistake to dismiss pea negotiation as a distasteful practice made necessary only by the unhappy reality of an overburdened criminal justice system. Plea negotiation is not an inherently shameful practice; it ought not on a theoretical level, be characterized as a failure of principle. If practiced properly it should, to the contrary be recognized as the expression and merging of the two complementary principles ; that of efficiency and restraint. It was observed that:

“People are more likely to expect that a sentence imposed following a negotiated guilty plea and joint submission will be appropriate. If they are assured that the presiding judge has been apprised in open court, of the process by which the agreement was reached. They also appear more likely in such circumstances to express confidence in the fairness and propriety of the judges handling of the case.”[x]

RECOMMENDATION

The Commission devised a scheme where the offender voluntarily invokes the scheme and pleads guilty as a result of which he will be given concessional treatment. The Commission was reluctant to give this scheme the traditional nomenclature ‘plea bargaining’ and instead specifically mentioned that the scheme does not involve any kind of bargaining. The following are the suggestions made by the Law Commission Report:

Only the offender himself may invoke the scheme.
There will be no negotiations for plea- bargaining with the prosecuting agency or its advocate none of whom will have any role to play in the matter of moving the competent authority for invocation of the scheme.
The competent authority will be a ‘plea – judge’ designated ‘designated by the Chief Justice of the concerned High Court from amongst the sitting judges competent to try cases punishable with imprisonment of up to 7 years. And a bench of two retired High Court judges nominated in this behalf by the Chief Justice of the State concerned in respect of offences punishable with imprisonment for 7 years or more.
The application will be entertained only after the competent authority is upon ascertaining in the manner specified in the scheme, satisfied that it is made voluntarily and knowingly.
The competent authority will hear the application in the presence of the aggrieved party and the public prosecutor and after affording a short hearing to them
The competent authority shall have the power to impose a jail term or fine or direct the accused applicant to pay compensation to the aggrieved party for compounding the offence in regard to the offences, which are compoundable with or without the leave of the court.
The competent authority shall award a minimum jail term of say six months or one year in respect of specified offences if the scheme is extended in this behalf in the light of the provisions in the scheme.
The competent authority may award a jail term not exceeding one half of the maximum provided by the relevant provision where the competent authority is not called upon to exercise the powers to release on probation under the Probation of Offenders Act, 1958 or under Section 360 of the Criminal Procedure Code, 1973 in accordance with guidelines.
In the first instance as an exceptional measure, the scheme may be made applicable only to offences which are liable for punishment with imprisonment of less than seven years or fine if both the Central and the State government so resolves by the notification issued by such government and published in Government Gazette.
The scheme may be applicable to offences liable to be punished with the imprisonment for seven years and more after properly evaluating and assessing the results of the application of the scheme to offences liable to be punished with imprisonment for less than seven years.[xi]

The Commission also addressed the many criticisms that would possibly emerge if the scheme is introduced in the criminal justice administration system. According to the Commission the system of plea bargaining as in existence in the America need not be adopted in India. Therefore, appropriate changes were suggested which addressed the fallouts of the plea-bargaining system while formulating the new scheme. The Commission rejects the argument that the system of bargaining would fail in India due to our social situations. The Commission points out that the present scheme encompasses a system of checks and balances to keep the system from exploiting the illiterate and poor. The Commission also rejects arguments like the pressures from the prosecuting agencies may result in conviction of the innocent, the poor will be the ultimate victims of the concept, plea bargaining may increase the incidence of crime, criminals may slip through the net with impunity etc. According to the Commission plea bargaining has social benefits as well. It saves a lot of time and cost not only to the accused but also to the community. It reinforces the faith in honesty. Rehabilitation and reformation of the offender commences early so that the offender can rebuild his/her life sooner.

The commission also conducted a sample survey in the bar and bench in four states and one union territory to study the public opinion with respect to introduction of plea bargaining. The survey reinforced the view that an improved version of the practice suitable to law and legal ethos of India needs to be considered with seriousness and with a state of urgency.

The Commission characterized the distinctive features of the new scheme as follows:

There will be no contact between the public prosecutor and the accused for the purpose of invoking the scheme. The initiative will be solely with the accused who alone can make application. the public prosecutor will have no role to play.
The decision to accord concessional treatment will rest solely with a judicial officer functioning as a plea- judge in respect of offences punishable with imprisonment for less than 7 years or Tribunal comprised of two retired High Court Judges in respect of offences punishable with imprisonment for 7 years or more and will not be the result of an outcome of higgling haggling between public prosecutor on one hand and accused on the other.
There will be no bargaining with the judicial officers and an application once made will not be allowed to be withdrawn and the accused will not know what the judicial officers will do. He will only make a representation and plead for such concessional treatment as according to him, would be appropriate.
The sole arbiter will be the judicial officer and therefore, there will be no risk of underhand dealings or for coercion or improper inducement by the prosecution.
The aggrieved party and the public prosecutor will have a right to be heard and place their points of view.[xii]

The Commission also discussed the application of the concept to other offences. The Commission recommends that the Scheme may be made inapplicable to offences against women and children including offences of rape, bride burning, dowry deaths, demand and acceptance of dowry etc. which are viewed by community with social worth in the context of the age-long history of injustice and suffering on the part of these sections of the society. The Commission also recommends that the scheme may be made inapplicable to the socio-economic offences of a non- technical nature in the first phase provided, however, that it may, later on, be made applicable with a rider that an offender will have to undergo a minimum jail term of not less than 6 months or 1 year or such other period as may be specified, if considered appropriate in the light of public debate.

The Commission concludes that weighing the pros and cons of introducing the scheme for concessional treatment in respect of those offenders who on their own volition invoke the scheme which takes care of appropriate safeguards may prove beneficial.

The Commission has also addressed the possible criticisms that would be levelled against the proposed scheme in its operation in India and also considered the fallouts of plea bargaining that is currently in operation in the western countries. The Law Commission was careful in dropping out the use of the term Plea bargaining to avoid the term’s reference to the system of plea bargaining that existed in the western nations. The model recommended by the Commission even though draws its allegiance from the criminal jurisprudence of the west, it is different in its approach towards dealing with the offender. In this new scheme the process is voluntary in nature and a lot of guidelines have been formulated to avoid any discrepancy in the operational level. The Commission also suggests certain guidelines and procedures to be incorporated in the statute so as to ensure the functional execution of the scheme. The major object of the Commission was to bring upon a system which possesses the merits of the already existing systems but flexible enough to amend and add such provisions that are suitable for our social system.

CONCLUSION

The scheme outlined in the 142^nd Law Commission Report was however not adopted. The matter of criminal justice administration reforms still remained in the papers. It was followed by the 154^th and 177^th Law Commission Reports that further recommended ‘plea bargaining’ as an alternative method to deal with huge arrears of criminal cases. Both these law Commissions strongly favored the introduction of plea-bargaining system and were impelled by the recommendations of 142^nd law Commission. It was followed by the Malimath Committee Reforms of Criminal Justice System (2001-03) which again called for the implementation of the system in the criminal justice administration at the earliest. Today plea bargaining is a part of our criminal jurisprudence through the 2005 Criminal law (Amendment) Act under Chapter XXI A of Criminal Procedure Code, 1973. Unfortunately, plea bargaining has not been used in India as much as the policy makers have intended it to be used. There need to be a more detailed public awareness about the system so that the benefits of the system can be made use of by the criminal justice administration.

[i] S.H. KADISH, ENCYCLOPAEDIA OF CRIME AND JUSTICE, 829.

[ii] 142^nd Law Commission Report, 37, 1991.

[iii] 1979 AIR 1369.

[iv] 397 U.S. 742

[v] 25 L. Ed. 2d. P.758.

[vi] 404 U.S. 257

[vii] Id. at 257.

[viii] Hutto v Ross (49 U.S. 28 (1976)); Chaffin v Stynchombe (412 U.S. 17); Blackledge v Allison (431 U.S. 63 (1977)); Weatherford v Bursey (429 U.S. 545 (1977)); Newton v Rumery (480 U.S. 386 (1987))

[ix] Canada Law Commission Report 1989, 3.

[x] Id. at 98.

[xi] LCI Report, supra note 2 at 38.

[xii] LCI Report, supra note 2 at 35.

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