Plea Bargaining is relatively a new and upcoming concept in India inserted in the Code of Criminal Procedure, 1972 (hereinafter, ‘Code’) by the Criminal Law Amendment Act, 2005 (hereinafter, ‘Act’). The Act has inserted Chapter XXIA in the Code ranging from Section 265A to 265L. Even before its addition in the Code, it has been a subject of intense debate and criticism surrounding its constitutionality due to its apparent conflict with some of the fundamental rights, international conventions on human rights and directive principles of state policy under the Indian Constitution.
GENSIS OF PLEA BARGAINING
It is basically a pre-trial negotiation wherein the accused pleads guilty to the commission of the crime in exchange of certain concession by the prosecution, it is based on the principle on nolo contendere (‘I do not wish to contend’) and its origin traces back to 18th Century and ever since then it has been integral part of the American criminal jurisprudence wherein it was introduced for achieving the avowed objective of amicable settlement criminal disputes between the state, accused and victim in least the possible timeframe. It seeks to create a win- win situation for all the stakeholders of the criminal system, for example, for the Court it would result in speedy disposal of the case and lessening of court’s docket, for the victim and accused it would mean early resolution of the dispute, saving of expenses on litigation cost and fair and just compensation to the victim as per the settlement agreement. The concept of Plea Bargaining is even today continues to be a very popular concept in America with more than 90% of the criminal cases being settled through it. In America, unlike India, there are three types of plea bargaining i.e. Fact Bargaining i.e. admission of a particular fact, Charge bargaining i.e. certain charges are dropped against the accused and Guilt Bargaining i.e. admission on the commission of the crime.
WHY THE CONSTITUTIONALITY OF PLEA BARGAINING IS DOUBTFUL
The constitutionality of the Plea bargaining was challenged in the US in ‘Robert Malvais Brady v. United States,(1970),397 U.S. 742, in the afore-said the case Robert Brady was indicted for kidnapping and had pleaded guilty to commission of the crime in order to save himself from a harsher penalty, however, post-conviction he filed an appeal therefrom before the American Supreme Court and argued that his plea for commission of the crime was involuntary and cohered. However, the Hon’ble Supreme Court did not agree with his contention and were of the opinion that such argument was clearly an afterthought and he had pleaded voluntarily and knowingly of the commission of the crime and there was no reason to doubt the admissibility of his guilt, opining therein that ‘…The issue we deal with is inherent in the criminal law and its administration because guilty pleas are not constitutionally forbidden, because the criminal law characteristically extends to judge or jury 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..’.
Close on the heels of this case, the hon’ble American Supreme Court in another landmark case by the name ‘Santobello v. New York (1971), 404 U.S. 257 (1971), had another opportunity to revisit the concept of plea bargaining and the ancillary question as to the effect of breach of the settlement agreement arrived between the parties, in the afore-said case due to change in the original prosecutor before whom the plea was recorded, the subsequent prosecutor refused to adhere to the settlement agreement as he was view that the sentence imposed on Santobello was very lenient, thus the question arose before the US Supreme Court as if the settlement agreement could be withdrawn and what could be the consequence thereof. After extensively hearing the arguments, the Chief Justice Warren E. Burger, writing for the bench, with a 4-3 majority, answered that the agreement executed between the parties must be respected and observed that ‘..This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled….’, however based upon the peculiar facts of the case, the Hon’ble Court remanded back the matter to the lower court for considering the appropriate relief for Santobello.
Likewise, in India also even before the concept of plea bargaining was introduced in the Code, there was a unanimous opinion among the Indian judiciary that the concept of plea bargaining has no place in the Indian legal system, right from the Madan Lal Ram Chandra Daga V. State Of Maharashtra, 1968 SCR (3) 34, to State Of Uttar Pradesh V. Chandrika, 1999 Supp (4) SCR 239. The Hon’ble Supreme Court and different High Courts have time and again deprecated the practice of plea bargaining.
In Madan Lal Ram Chandra Daga’s (supra) case, the hon’ble Apex Court observed that ‘In our opinion, it is very wrong for a court to enter into a bargain of this character Offences should be tried and punished according to the guilt of the accused. If the Court thinks that leniency can be shown on the facts of the case it may impose a lighter sentence. But the court should never be a party to a bargain by which money is recovered for the complainant through their agency…’, in another case by the name Murlidhar Meghraj Loya V. State Of Maharashtra, [1976] 3 SCC 684 , the hon’ble Apex Court, while referring to concept of plea bargaining as it existed in American then, observed that ‘The possibility of long argument in a case where the accused has pleaded guilty arises because the provision lends itself to adroit exercises. The court has to look at the interpretative problem in the social setting of the statute, visualising the rough and tumble of the market place, the finesse with which clever victuallers fob off adulterated edibles and gullible buyers goofily fall victim. Viewed this way, chasing recondite semantics or niceties of classification or chopping of logic has no scope for play.’
Likewise, in Thippaswamy V. State Of Karnataka, [1983] I SCC 194, the hon’ble Supreme Court observed that ‘It is obvious that by reason of plea-bargaining the appellant pleaded guilty and did not avail of the opportunity to defend himself against the charge, which is a course he would certainly not have followed if he had known that he would not be let off with a mere sentence of fine but would be sentenced to imprisonment. It would be clearly violative of Article 21 of the Constitution to induce or lead an accused to plead guilty under a promise or assurance that he would be let off lightly…’. The hon’ble Apex Court in State Of Uttar Pradesh V. Chandrika, 1999 Supp (4) SCR 239 , after referring to the decisions in Madanlal Ramchandra Daga V. State of Maharashtra,[1968] 3 SCR 34, Murlidhar Meghraj Loya v. State of Maharashtra (supra), Ganeshmal Jashraj v. Govt. of Gujarat,[1980] 1 SCC 363, and Thippaswamy (supra), ruled thus: ‘It is settled law that on the basis of plea bargaining the court cannot dispose of the criminal cases. The Court has to decide it on merits. If the accused confesses his guilt, an appropriate sentence is required to be imposed. Further, the approach of the court in appeal or revisions should be to find out whether the accused is guilty or not on the basis of the evidence on record. If he is guilty, an appropriate sentence is required to be imposed or maintained. If the appellant or his counsel submits that he is not challenging the order of conviction, as there is sufficient evidence to connect the accused with the crime, then also the court’s conscience must be satisfied before passing the final order that the said concession is based on the evidence on record. In such cases, sentence commensurating with the crime committed by the accused is required to be imposed. Mere acceptance or admission of the guilt should not be a ground for reduction of sentence. Nor can the accused bargain with the court that as he is pleading guilty the sentence be reduced.’
CRIMINAL LAW AMENDMENT ACT, 2005
Notwithstanding the consistent judicial stand taken the Indian judiciary, the concept of Plea bargaining was introduced in the Code by the Criminal Law Amendment Act, 2005 w.e.f 5th July, 2006, consisting of 12 sections. Succinctly stated, the aforesaid sections provides that a criminal court in a case instituted in police report or private complaint at the stage after the chargesheet has been forwarded to it under section 173 or upon the cognizance being taken, can on application of the accused permit plea bargaining for offences which have maximum imprisonment is less than 7 years and are not offences against women, child or affects the socio-economic condition of the country. All the stakeholders of the criminal justice system i.e. the state, victim and accused mutually settle written satisfactory disposition to be submitted before the Court wherein the accused admits for the commission of the crime for a lesser punishment and the victim gets the compensation as per the terms of the settlement, this procedure of settlement/compromise between the parties is somehow similar to process of mediation in civil cases (See Order 23 of CPC). Based upon the afore-said settlement, the court convicts the accused and pronounces the judgement.
The concept of plea bargaining owes to origin to recommendations made by the Law Commission of India in its 47th report (on the trial and punishment of social and economic offences), 142nd report (on concessional treatment for offenders who on their own initiative choice to plead guilty without any bargaining), 154th Report (Code of Criminal Procedure, 1973) and the 221th report (need for speedy trial) and the Draft National Policy on Criminal Justice Report (report by a committee appointed by Ministry of Home Affair, GOI).
Although the afore-stated reports have considered the judicial precedents laid down by our courts but have nevertheless in the teeth of these judicial precedents recommended for statutory recognition for plea bargaining apparently on the ground that it would help unclog the court’s overflowing docket, facilitate the fundamental right to speedy trial (Read Hussainara Khatoon V. Home Secretary, 1980 1 SCC 81; Champa Lal V. State of Maharahstra, AIR 1981 SC 632) and would result in saving expenditure on unnecessary litigation cost and to avoid lengthy and complicated long drawn criminal trial and related appeal/revisions etc.
However, the concept of plea bargaining although seems lucrative at the first blush but its constitutionality remains to be doubtful for the reasons as stated hereinabove also due to its apparent invasion/conflict with some of the most fundamental principles of criminal jurisprudence such as right to fair trial (Read Article 6 of the European Convention on Human Rights), presumption of accused being innocent unless proven beyond reasonable doubt (Read Article 11 of Universal Declaration of Human Rights), right to effective legal representation throughout the case (See Madhav Hayawadanrao Hoskot V. State Of Maharashtra, 1979 SCR (1) 192), right against self-incrimination (See M. P. Sharma V. Satish Chandra, District Magistrate, Delhi, 1954 SCR 1077, also read Article 20(2) of the Constitution of India, 1950), burden of proof always being on the prosecution to establish the guilt of the accused (See Moti Lal Saraf V. Union of India, 2007 (1) SCC Cri,180 where the Hon’ble Apex Court held that right to fair trial flows from Article 21 of the Indian Constitution.) etc. Further, in cases where one of the parties to the lis is in dominant or economically well-off position i.e. in an unfair bargaining power, then the dominant party might intimidate and coercive the weaker party to get matter settled and get way by paying less compensation to the victim then what ought to be given. Moreover, most of the afore-stated legal rights have been recognized as a fundamental right under Article 14, 20, 21 of the Indian Constitution. Further, even if for the sake of it, it is accepted that the pros of plea bargaining outweigh its cons, it cannot be lost sight of the fact that fundamental rights are human rights and they are by itself intrinsic to every human being and are considered to be sacrosanct, inalienable and non-waiverable as opined by a hon’ble Apex Court in Basheshar Nath V. Commissioner of Income-Tax, Delhi,1959 SCR Supl.(1) 528, thus any law which contravenes fundamental rights are liable to be struck down by our constitutional court under article 32/226 of the Indian Constitution. Another grey area is the lack of standard guidelines/format for settlement agreements, what would be consequences for breach thereof, lack of proper awareness and publicity of plea bargaining, no standard policy on conviction and/or sentence etc. Further, unlike America comparatively a large proportion of India’s population are socially, economically and/or educationally backward thus for protection of their rights judicial interference would be necessary and settlement may not be fruitful.
OTHER RELATED CONCEPTS IN THE CODE
Section 320 of code provides for compounding of certain offences, as mentioned therein, on account of compromise between the parties and is somehow similar to the concept of plea bargaining except for the fact if a criminal case is quashed on account of settlement between the parties it results in acquittal of the accused unlike in plea bargaining where admission of guilt necessarily means conviction, thus lawyers generally refrain from resorting to plea bargaining and invoke the former for getting criminal cases quashed by the High Court under its inherent jurisdiction. Moreover, in recent times, the scope of section 320 has been widened and now even non-compoundable offences (See State of Madhya Pradesh V. Lakshmi Narayan, 2019 (5) SCC 688.) could be quashed by resorting to afore-said section. This has further led to the concept of plea bargaining being rendered otiose and redundant.
Likewise, in so far sentencing of the accused post-conviction is concerned, if the accused resorts to plea bargaining then in such a case his sentencing shall be governed under section 265E of the Code, whereunder the Court has been empowered to punish the accused for half of the such minimum punishment under the law accused is charged or 1/4th of the punishment in case no minimum punishment is provided by law, whereas in a normal full-fledged criminal trial there are several judgements which discuss the mitigating factors which have to be considered while imposing punishment on the accused (See Jagmohan V. State of Uttar Pradesh, (1973) 1 SCC 20; Modi Ram v. State of M.P, (1972) 2 SCC 630), post his conviction, so even from this angle plea bargaining doesn’t offer any new perspective in criminal jurisprudence.
Apart from the afore-stated provisions, under Section 229 (Session Trial), Section 241 (trial of warrant case by magistrate), Section 252 (trial of summons case by magistrate) and also under Section 164 R/w Section 281 (Judicial Confession) of the Code, the Court has been empowered to record the plea of guilt by an accused, however, before plea is record, the Court has to be convinced as to the veracity and voluntariness of the such a plea by an accused, see for example State Of Maharashtra V. Sukhdeo Singh, 1992 SCR (3) 480, wherein the Hon’ble Supreme Court opined that ‘…It is, therefore, essential that before accepting and acting on the plea the Judge must feel satisfied that the accused admits facts or ingredients constituting the offence. The plea of the accused must, therefore, be clean, unambiguous and unqualified and the Court must be satisfied that he has understood the nature of the allegations made against him and admits them. The Court must act with caution and circumspection before accepting and acting on the plea of guilt…’.
Differentiating between these two concepts that i.e. plea of guilt and plea bargaining, the hon’ble Gujarat High Court in State Of Gujarat V. Natwar Harchandji Thakor, (2005) 1 GLR 709, opined that ‘…Let it be reiterated that at present, there cannot be any question that “plea bargaining” is not recognised, so far and is not permissible. Whether “plea of guilty” is “plea bargaining” or not, will be a matter of fact to be examined in each case, from the factual matrix of the case and totality of the context and entire profile. It cannot be contended that every “plea of guilty” is always plea bargaining in case of each case and each accused. It cannot be also assumed without supporting facts and attending circumstances. It is a matter of proof and if on objective and independent evaluation of facts, it is found to the satisfaction of the Court, then it cannot be allowed and sustained, being not legal and permissible; in those cases based on facts and proof thereof. Thus, it is a matter of proof and evaluation of evidence in each case…’, the hon’ble Court further went to opine that ‘…However, keeping in mind the huge arrears and long time spent in trials and resultant hardships to parties, and particularly, the accused and the victims of the crimes, the benefit of “plea bargaining” as an alternative method to deal with the dispute or question of offence requires serious consideration, which would not be admissible and available to the habitual offenders….
Thus in view of the afore-said, it is highly doubtful if the constitutionality of plea bargaining would withstand judicial scrunity particularly in light of unannimous view of the Indian judiciary against its applicability in indian sub-context.
Apart from the afore-stated provisions, under Section 229 (Session Trial), Section 241 (trial of warrant case by magistrate), Section 252 (trial of summons case by magistrate) and also under Section 164 R/w Section 281 (Judicial Confession) of the Code, the Court has been empowered to record the plea of guilt by an accused, however, before plea is record, the Court has to be convinced as to the veracity and voluntariness of the such a plea by an accused.
