Plea Bargaining

Plea Bargaining

Indian context

An ever-increasing amount of litigation in India has led to Courts becoming overburdened at all levels. There is realization at all levels of government that these increasing number of cases are putting an extra burden on the judicial system as a result of which cases are not able to move quickly through the Courts and the proverbial case of justice delayed is justice denied is being seen as more true today than ever before. The court trials take years, decades or even quarter of a century to conclude at times. The fallout of such delays is not difficult to guess – an increasing bent of people towards litigation, over burdening of courts with cases, witnesses forgetting the sequence of events, complainants becoming disinterested, important witnesses being won over and the truth in the cases getting lost along this long and tedious process.

Over burdening of Courts

There were approximately 2.03 crore cases pending in district and subordinate courts all over the country as on 31 October 2001. Of this large number, approximately 1.9 crore cases were pending in 7 states – UP, Gujarat, Maharashtra, Madhya Pradesh, West Bengal, Bihar and Karnataka. The condition is about the same in the High Courts and there were 35,57,637 cases pending in the different High Courts of the country as on 31 October 2001. Approximately 5 lakh of these cases are more than 10 years old. The number of cases in the Supreme Court is however manageable and only 21,995 cases are pending therein.

The tardy disposal of cases is also linked to the extremely low judges per capita ratio in the country. The Law Commission of India’s 120th report (1987)1 observed that the strength of judicial officers in India is far less than in a number of other countries. India has roughly 10.5 judges per million people whereas this figure for Australia, Canada, England and US stands at 41.6, 75.2, 50.9 and 107 respectively. This Law Commission Report also observed that the total judge strength of 7675 is grossly inadequate for a country of the size and magnitude as India.

Apart from the overburdening of the Courts, there is gross neglect and apathy towards the status of under trials, who are lodged in different jails all over the country. Because of the increasing amount of time taken in the dispensation of justice, the jails in the country today are over-crowded with convicts and under trials. Against a sanctioned capacity of 2.56 lac prisoners, the jails in the country today have more than 5 lac people behind bars.
The State governments today spend approximately an amount of Rs.361 crores per annum on the people imprisoned and undergoing trial @ Rs.55/- per head per day for approximately 1.8 lac prisoners under trial. This situation would be a lot different if matters moved speedily in the courts. The State governments would then be able to reduce the number of under trials in the jails and bring about substantial savings in this huge expenditure also.

Concept of Plea Bargaining

A plea bargain is a deal offered by the prosecutor to the defendant as an incentive for his pleading guilty on lesser charges. This alternative method of dispute resolution allows the prosecutor to obtain conviction in cases, which may otherwise go for lengthy trials.

Plea bargaining has often been talked of as a method for reducing the burden on the courts by accepting the guilty plea of the accused person. A plea bargain provides both the prosecution and the defense with some control over the final result. In plea bargaining the accused pleads guilty to a lesser charge rather than go through the long, arduous and expensive process of trial and be confronted with a maximum sentence for punishment. The defendant in the bargain is able to receive a lighter sentence, for may be a less severe charge, than might have resulted by taking the case to trial. He is also able to bring about savings in his legal fees and also avoids the harassment of going through the entire process of trial. Being convicted on reduced charges for a less serious offence also goes to the advantage of the defendant. Pleading guilty also helps him avoid publicity, which is otherwise attracted in cases highlighted by media.

The judges have opined that if the period of waiting during trial can be reduced there may be a greater possibility of effective evidence forthcoming. The fairness of plea bargaining, however, also depends on how likely it is that the accused would be convicted if no plea is offered. The process also avoids the great degree of unforced idleness experienced by the under trial prisoners during their detention period.

The judicial process benefits by disposing off the case early by accepting the guilty plea. The entire process of trial, examination of witnesses, their cross examination etc. need not be gone through. An increasing amount of litigation today is forcing the judiciary to give less and less time to each case as a result of which the time required to come to a conclusion has increased substantially. A plea bargain, therefore, offers the possibility of lightening the burden of the Courts, thereby giving the judiciary an opportunity to devote more time to cases of importance and those which have a bearing on society or have serious legal implications. The Law Commission’s 154th Report (1996)2 stated that though plea bargaining is an important technique to avoid overcrowding of criminal cases in the courts, but it should be adopted with adequate safeguards to prevent abuse.

The prosecutor too benefits as a result of plea-bargaining. He gets an assured conviction in a case and is spared the agony of waging a long drawn out legal battle against the accused, especially when he is willing to confess for the crime committed. The prosecutor can then devote more time to cases that involve complex reasoning of legal matters or are high profile cases that attract media attention.

Types of Plea Bargain

There are two different approaches to the concept of plea bargaining –

(a) Charge Bargain - This is when the prosecutor allows the defendant to plead guilty to a lesser charge or to only some of the charges that have been filed against him.

(b) Sentence Bargain - This occurs when a defendant is told in advance what his sentence will be in case he pleaded guilty. This procedure often takes place in high profile cases wherein media publicity does not permit a charge bargain and therefore a sentence bargain is adopted to the more serious charges against the defendant.

Cause for concern

Approximately 54,94,814 criminal cases were registered in India in the year 2003. The conviction rate in India is abysmally low when compared to that of other countries. Cyprus has the highest conviction rate in the world with a figure of 95.21 per 1000 people whereas India occupies the 41st position in the list of all countries with a rate of only 0.56 per 1000 people. The number of people acquitted in the criminal courts in India is very high and in absolute terms India occupies the first place amongst all nations showing that maximum number of people acquitted here.

Initiatives by Government

The Law Commission’s 142nd report (1991)3 considered the concept of plea bargaining as a means to overcome the problems of mounting arrears of cases in the Criminal Justice system. The report also stated that a large number of people in India are in favour of this concept because most people arrested are guilty anyway, public money is wasted on trials, both sides gain in the process and time and money is saved by the accused and the government. The Law Commission’s 154th report (1996) again strongly advocated that Plea bargaining be made an essential component of the Criminal Justice system. The Justice VS Malimath Committee on Criminal Justice Reforms (2003)4 submitted its report to the Government recommending that plea bargaining should be introduced into the Criminal Justice system to facilitate early resolution of criminal cases and reduce the burden of the courts.

The government thereafter introduced a Bill in the Parliament called the Criminal Law (Amendment) Bill, 2003 which sought to introduce Plea Bargaining in the Criminal Procedure Code, 1973 apart from making other changes in the IPC, CrPC and the Indian Evidence Act. The Parliamentary Standing Committee on Home Affairs in its 85th report (2001) on ‘Law’s Delays and Arrears in Courts’ recommended the introduction of Plea Bargaining in India. The same Committee, in its 111th report on the Criminal Law (Amendment) Bill, 2003 presented to the Rajya Sabha on 02 March 2005, endorsed the introduction of Plea bargaining in the Criminal Procedure Code.

Plea Bargaining has since been introduced through Criminal Law (Amendment) Act, 2005(6) which was passed by the Parliament in the winter session of 2005. This has come into force from 5th July, 2006 with the introduction of a new Chapter- XXI-A incorporating sections 265-A to L in the Criminal Procedure Code, 1973. The Act seeks to introduce Plea bargaining or mutually satisfactory disposition in all criminal cases other than offences punishable with death or imprisonment for a term exceeding seven years. This benefit is not extended to offences affecting the socio-economic condition of the country or which have been committed against women or children below the age of 14 years. It is also pertinent to note that the Act envisages an active role for the Courts in trying to ensure that such a plea is made voluntarily by the accused and he is aware that by pleading guilty he will waive his right to go through the process of trial. The judgements delivered in cases of Plea Bargaining are final and no appeal shall lie in any Court against them.

Flip Side

The detractors of plea bargaining have argued that the plea bargain essentially works as a threat. The prosecutor herein bullies the defendant into plea bargaining, thereby making him surrender his right to trial and at the same time threatening him that in case he went for trial he would be punished twice over- once for the offence committed and secondly for showing the audacity to commit the case to trial.

It is further argued that most of the people caught in criminal cases are poor and therefore the system by showing the option of plea bargaining tries to portray that this is the best economic alternative available to them. A lengthy period of pre-trial incarceration also, at times, renders the defendant weak and demoralized and pushes him into the prosecutor’s suggestion of plea bargaining. It is obvious that a person who faces a 90% chance of conviction during trial would opt to plea bargain for charges which would give him only 50 % of maximum conviction. It is also argued that white collar criminals with good lawyers will probably get off with lighter sentences than what they really deserve. Since, this technique involves pleading for a lesser charge, hence, the variation between the offences for which a person is charged and finally the offences which are accepted as a result of plea bargaining exhibit the dramatic evidence of the extent to which the interests of the State are compromised.

Conclusion

However, the advantages gained in terms of expeditious disposal of cases, quality of judgements delivered and the important legal issues being given due attention far outweigh the stated evils of plea bargaining. This procedure gives the accused an opportunity to obtain a speedy trial, is an end to uncertainty, savings towards litigation costs and a probability of settling for a lesser sentence.

Considering the overburdened status of our Courts and the increasing bent of people towards greater litigation, plea bargaining appears to be a pragmatic and an unavoidable approach towards reducing the back-breaking burden of the courts. Such a procedure will also reduce congestion in jails and bring about considerable savings at the state level in the administration of the Criminal Justice system.

Besides, an accused who feels remorse or wants to make amends by pleading guilty in the hope that the community will enable him to pay the penalty for the crime committed with a degree of compassion and consideration needs to be treated differently from another who decides to go through the entire process of trial at considerable cost of time and money to the public exchequer. The time is indeed opportune today to give Plea Bargaining a chance.

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Pankaj Kumar Singh
IPS (Raj : 1988)
DIG SCR-III / CBI
New Delhi

( Words – 2068 ).

- ( published in CBI Bulletin: Jun- Dec 2006 )

- ( published in Academy Journal - NPA - Jan- Dec 2006 )

Bibliography

1. Law Commission of India, 120th Report on Manpower Planning in Judiciary: A Blueprint, July 1987, pp 2-3. 2. Law Commission of India, 154th Report on The Code of Criminal Procedure, 1973 (Act No- 2 of 1974), Vol-I, 1996, pp 51-54.
3. Law Commission of India, 142nd Report on Concessional Treatment for Offenders who on their own initiative choose to plead guilty without any Bargaining, 1991, pp 5-8.
4. Committee on Reforms of Criminal Justice System, Government of India, Ministry Of Home Affairs, Report, March 2003, pp 178-180.
5. Criminal Law (Amendment) Bill, 2003, Bill No. LX of 2003, A Bill further to amend the Indian Penal Code, the Criminal Procedure Code, 1973 and the India Evidence Act, 1872, pp 2-8.
6. Criminal Law (Amendment) Act, 2005, No 2 of 2006, An Act further to amend the Indian Penal Code, the Criminal Procedure Code, 1973 and the India Evidence Act, 1872, Ministry of Law and Justice, 11 January, 2006, pp 2-4.


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