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WANNA MAKE A DEAL? THE INTRODUCTION OF PLEA-BARGAINING IN INDIA By Sulabh Rewari* and Tanya Aggarwal* Cite as : (2006) 2 SCC (Cri) J-12 When one’s own legal system flounders, one naturally looks towards practices in other countries which seem to provide the solution. Statistics as regards the criminal justice system in India are startling?in 2001, the number of inmates housed in Indian jails was almost 1,00,000 more than their capacity. It was estimated that 70.5% of all inmates were undertrials and of these 0.6% had been detained in jail for more than 5 years at the end of 2001.1 Plea-bargaining, pursued with the aim of reducing caseload, is something that has been immensely successful in the United States of America, so much so that it has now become the norm rather than the exception. Enthused by the success of plea-bargaining in the United States, India has made several attempts to introduce a similar formula. Nevertheless, recommendations for the introduction of plea-bargaining in India have been made time and again by the Law Commission of India and earlier this year, plea-bargaining was incorporated into the Code of Criminal Procedure, 1973 through an amendment. The article goes on to explore the attitude of the Indian judiciary towards plea-bargaining and evaluates the recent amendment. Finally, the article examines the feasibility of the scheme suggested in the 142nd Report of the Law Commission of India, 1991. Plea-bargaining in the United States The origin and rise of plea-bargaining In a criminal trial in the United States, the accused has three options as far as pleas are concerned?guilty, not guilty or a plea of nolo contendere2 Simply put, a plea-bargain is a contractual agreement between the prosecution and the defendant concerning the disposition of a criminal charge. However, unlike most contractual agreements, it is not enforceable until a judge approves it.3 Plea-bargaining thus refers to pre-trial negotiations between the defence and the prosecution, in which the defendant agrees to plead guilty in exchange for certain concessions guaranteed by the prosecutor. Plea-bargaining has, over the years, emerged as a prominent feature of the American criminal justice system. While courts were initially sceptical towards the practice4, the 1920s witnessed the rise of plea-bargaining making its correlation with the increasing complexity in the American criminal trial process apparent. In the United States, the criminal trial is an elaborate exercise with extended voir dire and peremptory challenges during jury selection, numerous evidentiary objections, complex jury instructions, motions for exclusion, etc. and though it provides the defendant with every means to dispute the charges against him, it has become ?the most expensive and time-consuming in the world?. Mechanisms to evade this complex process gained popularity and the most prominent was of course, plea.bargaining.5 Thus, plea-bargaining gradually became a widespread practice and it was estimated that 90% of all criminal convictions in the United States were through guilty pleas.6 In 1970, the constitutional validity of plea-bargaining was upheld in Brady v. United States7, where it was stated that it was not unconstitutional to extend a benefit to a defendant who in turn extends a benefit to the State. One year later, in Santobello v. New York8 the United States Supreme Court formally accepted that plea-bargaining was essential for the administration of justice and when properly managed, was to be encouraged. The fact that court?s resources would have to be significantly increased to provide a trial for every charge has been cited as both justification and reason for the inevitability of plea-bargaining. Proponents of plea-bargaining argued that it would remove the risks and uncertainties involved in a trial, thus introducing flexibility into a rigid, often erratic system of justice. It would also enable the court to avoid dealing with cases that involve no real dispute and try only those where there is a real basis for dispute.9 Victims would be spared the ordeal of giving evidence in court, which could be a distressing experience depending on the nature of the case. The Criminal Law (Amendment) Act, 2005 A formal proposal for incorporating plea-bargaining into the Indian criminal justice system was put forth in 2003 through the Criminal Law (Amendment) Bill, 2003 (hereinafter referred to as the Bill).10 However, those provisions failed to come through and were reintroduced with slight changes through the Criminal Law (Amendment) Bill, 2005, which was passed by the Rajya Sabha on 13-12-2005 and by the Lok Sabha on 22.12.2005. The provisions were thus finally incorporated into the Code of Criminal Procedure, 1973 as Chapter XXI-A through the Criminal Law (Amendment) Act, 2005, notified in the Official Gazette of India as Act 2 of 2006 (hereinafter referred to as the Act). Recognising that there are significant differences in criminal procedure as well as in the role and status of various agencies, the Act does not give recognition to any existing practice akin to plea-bargaining. Instead, it enables an accused to file an application for plea-bargaining in the court where the trial is pending. The court, on receiving the application, must examine the accused in camera to ascertain whether the application has been filed voluntarily. The court must then issue notice to the Public Prosecutor or the complainant to work out a mutually satisfactory disposition of the case. The negotiation of such a mutually acceptable settlement is left to the free will of the prosecution (including the victim) and the accused. If a settlement is reached, the court can award compensation based on it to the victim and then hear the parties on the issue of punishment. The court may release the accused on probation if the law allows for it; if a minimum sentence is provided for the offence committed, the accused may be sentenced to half of such minimum punishment; if the offence committed does not fall within the scope of the above, then the accused may be sentenced to one-fourth of the punishment provided or extendable for such offence. The accused may also avail of the benefit under Section 428 of the Code of Criminal Procedure, 1973 which allows setting off the period of detention undergone by the accused against the sentence of imprisonment in plea-bargained settlements. The court must deliver the judgment in open court according to the terms of the mutually agreed disposition and the formula prescribed for sentencing including victim compensation. It may be noted that this judgment is final and no appeal lies apart from a writ petition to the State High Court under Articles 226 and 227 of the Constitution or a special leave petition to the Supreme Court under Article 136 of the Constitution. One positive aspect of the Act is that the offences in which a mutually satisfactory agreement can be reached are limited.11 Secondly, the judge is not completely excluded from the process and exerts supervisory control. Therefore at least theoretically, administrative control of the process of granting concessions to those who plead guilty is ensured. Thirdly, the Act ensures that such an opportunity will not be available to habitual offenders. Fourthly, the fact that the Act does not provide for an ordinary appeal from the judgment in such a case is a step towards expediting the disposal of cases. At the same time, a process for reviewing illegal or unethical bargains does exist though it may be noted that Article 136 of the Constitution does not confer a right of appeal on a party as such but confers a wide discretionary power on the Supreme Court to grant special leave. Also, though the remedy under Articles 226 and 227 of the Constitution can be made use of, it is unclear whether the victim of the offence can utilise this remedy. Earlier in this article, the authors had examined the various criticisms levelled against the practice of plea-bargaining in the United States. Whether the Act addresses the same is an issue which needs to be examined. The requirement of voluntariness In the American context, a ?voluntary? plea can be one made either in the absence of coercion or in the absence of unjustifiable coercion. Strictly ?no coercion? would to a certain extent rule out plea agreements because some form of coercion is needed even to reach a consensus. One must determine the level of coercion that would be fatal to the plea agreement, especially because the bargaining power of the parties involved is not always equal. In considering the plea agreement, the court must acquaint itself with the circumstances leading to the plea, the nature and the background of the defendant and any other factors that could have motivated him to plead guilty.12 Though the Act does not envisage such far-reaching involvement of the judge, one way to inform the court may be to make these details a mandatory part of the ?brief description of the case relating to which the application is filed? under Section 265.B(2).13 Further, a perusal of the Act shows that there seems to be no provision for the accused to withdraw his application. Now Section 306 of the Code of Criminal Procedure, 1973 provides for an accomplice to be pardoned if he consents to fully disclose the information he possesses. Though the provision is silent on whether the approver can renege on this promise, it does not mean that he is barred from doing so. In fact, once the approver has accepted a tender of pardon, he becomes a witness for the prosecution and a refusal to make full disclosure necessarily implies a forfeit of his pardon. Action can then be taken against him by virtue of Section 308. Similarly, just because the Act in this case is silent on the issue of withdrawal, it cannot be assumed that withdrawal is prohibited. It may be argued that the accused is entitled to withdraw his application and the case would then be subject to trial. However, the matter is open to a contrary interpretation. Degree of involvement of the judge The extent of involvement of the judge in the plea-bargaining process is debatable because excessive intervention could compromise his position as a neutral arbiter while no intervention could lead to an unjust result. It appears that the Act gives the judge limited freedom in awarding compensation to the victim as the compensation is to be ?in accordance with the disposition?. In Mithu v. State of Punjab14 Section 303 of the Code of Criminal Procedure, 1973 was struck down as unconstitutional because it excluded judicial discretion. Though Section 303 refers to the death penalty, the logic of the unconstitutionality of excluding judicial discretion with respect to serious matters can be extended to this situation. Therefore, the intention of the legislature may not have been to completely exclude judicial discretion because that would involve the risk of the provision being struck down as unconstitutional. Also, though the court does not have to entertain an application if it is ascertained at the very outset that the accused did not file it voluntarily, the Act has no provision for the court to reject the settlement arrived at. It is true that in an adversarial set-up, if the opposing parties reach a settlement, then the deciding authority should not be allowed to disturb it. However, in a scenario where there may be serious inadequacies in the capabilities of the accused, a risk of prosecutorial coercion and the probability of corruption at various levels, a reasonable level of discretion on the part of the deciding authority is needed. Relegating the judge to the sidelines will result in a status quo in the inequality of the bargaining power of the prosecution and the defence, if not an increase. This imbalance will work in the favour of the accused if he is either well off or well connected, or both. Possibility of innocent defendants pleading guilty In a country like India, where there are lengthy pre-trial delays, guilty pleas may be entered upon the promise that the plea will be accepted swiftly, and the sentence will be for no more than the amount of time already served. In such cases, the sentence discount is extremely appealing and the pressure on innocent defendants to plead guilty may be tremendous. At the same time, it is hard to see how the prosecution can derive more than a purely statistical benefit from the conviction so obtained.15 Status of the victim Another problem is that of the status of the victim. The Committee on Reforms of Criminal Justice System, 2003 recommended giving a role to the victim in the negotiation leading to settlement of criminal cases either through courts, lok adalats or plea-bargaining. Prior to the Act, the law only envisaged the prosecutor appointed by the State to be the proper authority to plead on behalf of the victim.16 However, the Act has provided for some degree of participation by the victim, which similar to some parts of the United States, effectively provides for consultation with the prosecutor whose interests in disposing of the case may differ significantly from those of the victim. In fact, the mutually satisfactory disposition to be worked out by the Public Prosecutor or the complainant and the accused may include compensating the victim. Furthermore, victim participation in the negotiation with his lawyer is expressly provided for in cases instituted otherwise than on a police report while there is no such provision for cases instituted on a police report. Further, because of the limited involvement of the judge, there is no mechanism to verify whether the wishes of the victim have been satisfactorily fulfilled. Under the new system, prima facie it seems that the judge has discretion only with respect to sentencing and not with the quantum of compensation. It follows that the victim?s interest in restitution may not be served even if he is allowed to consult with the judge. Scope for exploitation Firstly, it is feared that plea-bargaining may violate principles of criminal jurisprudence and deprive the accused of assured constitutional safeguards.17 Another problem is coercion, which is sought to be eliminated through nomenclature by referring to the arrangement as a ?mutually satisfactory disposition?. Though there is a procedural safeguard in that the judge is bound to examine the accused in camera to determine if the plea was voluntary and that the application must include an affidavit signed by the accused, prosecutorial or other pressure could always exist.18 The requirement of the plea being in a written format and accompanied by an affidavit allows scope for coercion by the police and the prosecution.19 Moreover, such a system still does not solve the problem of acquiring adequate legal representation for those who are underprivileged. Thus, for the rich, plea-bargaining will merely make crime affordable and will be anything but a deterrent.20 However, one positive feature of the Act is Section 265.K, which provides the accused with immunity against the use of the statements or facts stated by him in his application for plea-bargaining for any purpose other than for the purpose of Chapter XXI-A of the Code of Criminal Procedure, 1973.21 Transparency of the process and risk of bias The failure to provide for an independent judicial authority for receiving and evaluating plea-bargaining applications is a glaring error. The court?s examination of the accused in camera, as opposed to in open court, may lead to public cynicism and distrust for the plea-bargaining system. The failure to make confidential any order passed by the court rejecting an application could also create prejudice against the accused. A justification often given for the incorporation of plea-bargaining is the high rate of acquittal in criminal cases. The main reason behind this is that witnesses often become hostile because of threats by professional criminals, politicians or because of enticement through money by the well off and as a result, the accused is never punished. However, if the accused has connections with criminals and politicians or has money, he would have no reason to file an application to get inducted into a process with certain punishment if he can secure an acquittal otherwise. Realising that any system of plea-bargaining which is implemented would have to be tailored to suit the conditions in India, the Law Commission of India had proposed a scheme more than a decade ago, which differs substantially from the Act. Recommendations by the Law Commission of India The subject of the 142nd Report of the Law Commission of India and the subsequent conclusions and recommendations were motivated by the abnormal delays in the disposal of criminal trials and appeals. In this context the system of plea-bargaining in the United States drew attention to itself and the Law Commission outlined a scheme of plea-bargaining for India. The Commission noted that because no improvement had been made in the situation and there was little scope for streamlining the system, the problem was a grave one and clamoured for urgent attention. Based on an analysis of plea-bargaining as it exists in the United States, the report stated that the practice was not inconsistent either with the Constitution or the fairness principle and was, on the whole, worthy of emulation with appropriate safeguards. The Commission conducted a survey to ascertain whether the legal community was in support of plea-bargaining and also to gather opinions on the applicability of the practice if the earlier response was in the affirmative. Of those surveyed, a high percentage were in favour of the introduction of the scheme; additionally, most were in favour of introducing the concept only to specified offences.22 The report concluded that an improved version of the scheme suitable to the law and legal ethos of India should be considered with seriousness and with a sense of urgency. The report also attempted to address some reservations that were expressed as regards the introduction of plea-bargaining: * The scheme would not be successful in India due to illiteracy, which is comparatively much higher than in the United States and thus people would not adequately understand the consequences of pleading guilty. The Commission was of the opinion that because the contention fails to distinguish between literacy and common sense, it does not hold ground. Further, the proposed scheme accounts for this objection by providing for judicial officers to be plea judges, who would explain to the accused persons, the consequences of pleading guilty under the scheme. * Prosecution pressures may cause innocent people to yield and forego their right to trial. The Commission opined that such concerns could be dispelled if the judicial officer explained the implications of the scheme and was satisfied that the application was made by the accused of his own volition and not as a result of coercion or duress. * In the existing situation where the acquittal rate is as high as 90% to 95%, it is the poor who will be the victims of the concept and come forward to make confessions and suffer the consequent conviction. The Commission stated that the argument that the scheme may not succeed was merely a matter of opinion and was not good enough a reason to oppose the scheme. Also, in the trade-off between languishing in jail as an undertrial prisoner and suffering imprisonment for a lesser or similar period, the latter would be the rational choice as long periods in jail brought about economic and social ruin. * The incidence of crime might increase due to criminals being let-off easily. The Commission regarded this concern as unfounded as the authority considering the acceptance or otherwise of the request for concessional treatment would weigh all pros and cons and look into the nature of the offence and exercise its discretion in granting or rejecting the request. * Criminals may escape with impunity and escape due punishment. The Commission stated that the scheme provides for concessional treatment and not for ?no punishment? and the stigma of conviction would persist. As additional justifications, the Commission stated that considerable resources would be saved and that the rehabilitation process of the offender would be initiated early. The Commission concluded that the scheme for concessional treatment in respect of those offenders, who on their own volition invoked the scheme which incorporated appropriate safeguards, may prove beneficial. The Commission envisaged that in due time, the scheme would encompass all offences, but proposed that initially the scheme should be extended only to offences that provide for imprisonment for a period of less than seven years. The extension of the scheme would then be considered after a scrutiny of the results and in the light of public opinion. The Commission also suggested further subdivision for a more effective and phased application. In its 154th Report, the Law Commission reiterated the need for remedial legislative measures to reduce the delays in the disposal of criminal trials and appeals and also to alleviate the suffering of undertrial prisoners. The 177th Report of the Law Commission, 2001 also sought to incorporate the concept of plea-bargaining. The Report of the Committee on Reforms of the Criminal Justice System, 2003 stated that the experience of the United States was an evidence of plea-bargaining being a means for the disposal of accumulated cases and expediting the delivery of criminal justice; the Committee thus affirmed the recommendations of the Law Commission of India in its 142nd and 154th Reports. The authors shall now examine the scheme as suggested under the 142nd Law Commission Report and the viability of implementing the same: * The Commission sought to incorporate a separate chapter in the Code of Criminal Procedure, 1973 which would provide for a competent authority, who would be either a Metropolitan Judge or a Magistrate of the First Class, appointed as ?Plea Judge? by the High Court for offences involving imprisonment below seven years. The Plea Judge would not try any offences as a regular judge so as to ensure that matters are disposed of fairly. Two retired Judges of the High Court appointed in consultation with the Chief Justice and his two seniormost colleagues would constitute the competent authority for offences involving imprisonment for seven years and above. * The entire process would be set in motion by a written application made by the accused desirous of seeking the benefit of the scheme. This initiation solely at the instance of the accused is in departure from the scheme prevailing in the United States as the framework of the scheme provides for making an application by the Public Prosecutor and the accused after a process of negotiation between them. The Commission was averse to the possibility of the Public Prosecutor playing the role of a negotiator for bargaining and thus no underhand understanding can be arrived at between the Public Prosecutor and the accused in this scheme. The apprehension of prosecutorial pressure on the accused is also removed as the Public Prosecutor has no authority to invoke the proceedings under the scheme. The application can be made at any time after the filing of charge-sheet in cases instituted by filing an FIR. In respect of complaints initiated by private persons, the application may be moved any time after the court issues a process. The 154th Report states that the entire process of plea-bargaining can also be initiated by the court suo motu to ascertain the willingness of the accused. On ascertainment of the willingness of the accused, the court would require him to make an application accordingly. * Upon the institution of an application, a date for preliminary hearing is fixed. The competent authority shall ascertain from the accused in open court, in the absence of the Public Prosecutor and the police officers, whether the application was made voluntarily and without inducement or pressure. If the competent authority is not satisfied that the application was voluntary or that the applicant after realising the consequences is not prepared to proceed with the application, the application may be rejected. * On the accused pleading guilty, and subsequent to hearing the Public Prosecutor or the aggrieved person, the competent authority shall record a conviction for such offence as appears to have been committed. Subsequently, a recommendation imposing a suspended sentence and release on probation or some quantum of sentence and release on probation may be made. The competent authority may also direct the accused to pay compensation to the aggrieved party or impose sentence considered appropriate by the competent authority. * An application can be rejected at the initial stage or after hearing the aggrieved party or the Public Prosecutor. The competent authority can decide that the case is not a fit one to exercise its powers, based on its opinion of having regard to the gravity of the offence or any circumstance brought to its notice by the Public Prosecutor or the aggrieved party. The application may thus be rejected, briefly indicating the reasons for the same. The making of such application or its rejection shall not create any prejudice against the accused at a regular trial which may follow in due course. This is also ensured by the confidentiality of the scheme. * At the hearing, the accused or his counsel, the Public Prosecutor and the aggrieved party shall be heard as regards the prayer of the accused. The competent authority shall pass an order considered appropriate by it, mentioning in brief such reasons as it may consider appropriate and shall pass an order having regard to the circumstances of the case. * The 154th Report of the Law Commission points out that an order accepting the plea passed by the competent authority on such a plea shall be final and no appeal shall lie against the same. * As regards the procedure to be followed in cases where a minimum sentence is provided for the offence, the competent authority may, after following the aforementioned procedure, accept the plea of guilty and record an order of conviction and impose a sentence to the tune of half of the minimum term of jail provided by the statute for the offence concerned. A statutory provision empowering the competent authority would have to be made so that the provision prescribing the minimum sentence is not violated. * The competent authority shall have the power to record a conviction for an offence of lesser gravity than that for which the offender has been charged in the charge-sheet or if the facts and materials constitute an offence of lesser gravity. The Law Commission was of the opinion that bargaining with the prosecutor which provides the offender with an attraction to avail of the scheme is hazardous in the Indian context, and that a just, fair, proper and acceptable scheme would be that the competent authority can impose such punishment as may seem appropriate as regards the facts and circumstances of the case subject to a limit of one-half of the maximum term provided by the statute for the offence concerned. The scheme also bars habitual offenders, that is, persons convicted for an offence under the same provision from invoking the scheme. There is, therefore, no merit in the apprehension that those who secure concessional treatment may indulge in the same activity again in the hope of being let off lightly once more. Persons charged with offences against women and children are also excluded from the purview of the scheme. The scheme allows for no negotiation between the accused and the State or the prosecutor or with the court itself, which is a fundamental difference the scheme maintains from the practice as it exists in the United States. The scheme does not mention any provision or procedure for withdrawal of pleas. These include subsequent withdrawal of the nature of stating that the plea was not taken voluntarily. The scheme however maintains a difference between the courts examining the case on merits and a totally separate institution i.e. the competent authority for the purposes of the plea.bargaining proceedings. It is important to note that this separation ensures that the right to fair trial is not eroded. Since the competent authority is an autonomous body to decide the fate of the accused over the application made by him voluntarily and knowingly which has the effect of eliminating the possibility of the prosecuting agency obtaining the plea through fraud, misrepresentation or coercion. As regards determination of the quantum of substantive punishment, it needs to be noted that in the American system, an offender would approach the court in a situation where the prosecution is agreeable to a concessional treatment as well as the extent of the same. Thus, in the United States, the offender is assured as to the extent of the concession that is likely to be secured in the event of the court agreeing to the bargain. In India, the offender would be facing an unknown hazard, and may prompt him to avoid availing of the scheme. However, this is qualified to the extent that the competent authority, upon acceptance of the plea of guilty, is more or less limited in terms of the sentence that can be awarded and the accused can be assured as to a substantial level of leniency on most occasions. Such a situation creates an undue level of pressure on the accused to plead guilty so as to avail of the scheme. The trade-off for an innocent accused with a strong case against him amounts to a choice between: * the expected difference between sentence at trial and sentence subsequent to availing of the scheme which would become an increasingly safe prediction in time; and * the risk of continuing with the trial and maintaining his innocence. This situation will result in the ?innocent? pleading guilty unless the equilibrium situation is corrected by reducing the difference between sentences at trial and sentences awarded by the competent authority. The unpredictability of the trial is also a factor that should also be taken into account. The innocent will plead guilty due to the feeling of hopelessness at attempting to rebut the evidence of the police, the severity of the sentence anticipated, the weariness of the case dragging on and the attractiveness of the existent scheme. It should be noted that no programme of rehabilitation can be effective on a prisoner who is convinced in his own mind that he is in prison because he is the victim of a mindless, undirected, and corrupt system of justice and in this manner the very basis of a criminal justice system will be undermined.23 Understandably, the entire scheme owes its existence to the severe pressure on the resources of the court. However, the scheme fails to make the distinction between efficiency at the level of inception and the same being the motivation for guilty pleas from the accused. The motivation for leniency is acknowledgement of error and a desire to reform, not the conservation of resources. The failure to take into account this basic distinction is a fallacy that needs to be addressed. Also, defendants will inevitably assume some level of leniency in an implicit manner. In a ?natural state? that is, in the absence of plea.bargaining, 50% to 75% of defendants plead guilty. Increase in case pressure may affect plea-bargaining but it would be fallacious to assume that plea-bargaining is ?caused? by caseload.24 This is however, the reason for introducing the scheme under the 142nd Report of the Law Commission. In fact, prosecutors are the main propagators of plea-bargaining. It is contended that plea-bargaining went hand-in-hand with the imposition of mandatory sentencing, which implies that prosecutors will plea-bargain when judicial discretion is bound.25 Thus, it may be inferred that even the scheme proposed by the Law Commission of India may not be advantageous. At this juncture, it may be helpful to examine compounding of offences under Section 320 of the Code of Criminal Procedure, 1973. The issue is whether expanding the list of compoundable offences will be an effective solution for the problem of overcrowded courts and whether this can then serve as an alternative to the introduction of plea-bargaining. Since a crime is essentially a wrong against society, a compromise between the accused and the victim does not ideally serve to absolve the accused from criminal responsibility. However, offences which are essentially of a private nature are recognised as compoundable offences while some others are compoundable with the permission of the court.26 Compounding of offences has the effect of an acquittal and there is no admission of guilt envisaged in the process. The extension of the list of compoundable offences seems to be inconsistent with the logic underlying the same, which is that the offence is essentially a private one. Also, the compounding of offences has the effect of an acquittal which certainly cannot be maintained for serious offences. The scope for consideration being involved in the transaction is prima facie against public policy especially for more serious offences and the same would operate to the detriment of the financially weaker classes. The compounding of offences does not require the admission of guilt which is an essential requirement of commencing the rehabilitation and reformation of the accused. It is on this basis that the argument for extending compoundable offences so as to allow courts to function expeditiously is misplaced, as the scope of any such expansion will be severely restricted due to the aforementioned reasons. Conclusion Plea-bargaining has been introduced as a prescription to the problem of overcrowded jails, overburdened courts and abnormal delays. It cannot be denied that the practice may result in faster disposal of cases; because delayed trials are problematic in many aspects, the proposal may seem appealing. However, this ?introduction? is unlikely to succeed, for the practice had existed in the United States long before it received any legislative backing and was thus, merely given recognition. Therefore, the success of plea-bargaining in the United States cannot be looked at in isolation of its origin, a supporting American culture and radically different roles for entities like the prosecutor, etc. Additionally, the nature and extent of plea-bargaining in England indicates that plea-bargaining cannot simply be transplanted from the United States. There is thus, no reason to believe that the practice will achieve the same scale and magnitude of success in India that it has in the United States. Further, the scheme incorporated by the Criminal Law (Amendment) Act, 2005, is grossly inadequate because many factors crucial to the functioning of such a system in India have not been taken into consideration. The reasons that are cited for the introduction of plea-bargaining include the tremendous overcrowding of jails, high rates of acquittal, torture undergone by prisoners awaiting trial, etc. can all be traced back to one major factor, and that is delay in the trial process. Since one reason for overburdened dockets in the United States was the nature of jury trials, the experience of some jurisdictions suggested that the problem could be solved by shortening the trial period. In India, the reason behind delay in trials can be traced to the operation of the investigative agencies as well as the judiciary. Expanding the list of compoundable offences is not a wise option and what is actually needed is not a substitute for trial but an overhaul of the system, in terms of structure, composition as well as work culture to ensure reasonably swift trials. If then the trial procedure itself proves to be too long drawn out and unmanageable, then one may think of launching an alternative to trial. Therefore reformation of the existing system may be a more prudent approach rather than introducing a parallel arrangement (as recommended by the Law Commission) or supplementing the present arrangement (as suggested by the Act). Nevertheless, if a system akin to plea-bargaining has to be implemented in India, then the deciding authority must be independent from the trial court and instead of the Public Prosecutor retaining most of the power, the deciding authority must be given a greater role in the process. If the deciding authority is the sole arbiter, the risk of coercion into pleading guilty and of underhand dealings can be eliminated substantially. Therefore not only will the victim?s needs be addressed but also the susceptibility of the system of being misused by the Public Prosecutor, the police and even the affluent will be considerably reduced. In this respect, the scheme proposed by the 142nd Report of the Law Commission of India is prudent as it does not seek to carelessly replicate the American model of plea-bargaining. It cannot be denied that the scheme ignores the fact that many lack the resources for proper legal representation and is more a formalisation of the unwritten rule of showing leniency to those who plead guilty rather than plea-bargaining. Nonetheless, given that reformation of the present system is unlikely to occur in the near future, the proposal outlined by the 142nd Report of the Law Commission of India should not have been overlooked and may have proved to be a far more practicable solution to the problem. --- * IVth year BA, LLB (Hons), National Law School of India University, Bangalore. The authors would like to thank Mrinal Satish, Visiting Lecturer, National Law School of India University and Stephanos Bibas, Associate Professor, University of Iowa College of Law for their guidance. The authors would also like to thank Shri Singh, Advocate for his comments on this article. 1. See National Crime Records Bureau at 2. While for purposes of punishment, a plea of nolo contendere is essentially the same as a plea of guilty, such a plea cannot be used against the defendant as an admission of guilt in subsequent cases. See C.H. Whitebread: Criminal Procedure: An Analysis of Constitutional Cases and Concepts, (1986) 407-408. 3. See John Bradley, ?For Your First Guilty Plea?, (2004) 67 Tex BJ 230. 4. Griffin v. State, 77 SE 1080 (Ga Ct App 1913) 5. Often the jury selection process lasts longer than the trial itself and furthermore, substantive law such as the complex hearsay rule, constitutional prohibition on admission of illegally obtained evidence, etc. makes the process more tiresome. See Nancy Amoury Combs, ?Copping a Plea to Genocide: The Plea Bargaining of International Crimes?, (2002) 151 U. Pa. L. Rev. 1, 18-19. 6. It must be noted however that the incidence of guilty pleas cannot be taken as an indication of the extent of plea-bargaining because in some cases, defendants may plead guilty without any hope of lenient treatment and such pleas would continue to be submitted even without the existence of guilty plea concessions. In such a scenario, official guilty plea rates may overstate the bargaining rate. On the other hand, some defendants who plead not guilty, waive a jury and present a perfunctory defence before a judge, often receive lenient treatment. Thus official guilty plea rates may also understate the importance of plea-bargaining. See Sanford H. Kadish, Stephen J. Schulofer, Monrad G. Paulsen, Criminal Law and its Processes: Cases and Materials, (1983) 155. 7. 397 US 742 (1970) 8. 404 US 257 (1971) 9. Sanford H. Kadish, Stephen J. Schulofer, Monrad G. Paulsen, supra fn 6, 156-57. 10. The Bill was introduced in the Upper House of Parliament on 22-8-2003 and referred to the Standing Committee on Home Affairs by the Chairman. However, because the Lower House of Parliament was dissolved on 6-2-2004, the Committee could not present its report. The Bill may be taken up for consideration and passing in case the report on the Bill of the Committee on its constitution is presented in the Lower House and the Bill is passed by Upper House. See Lok Sabha?Bulletin, Part II, Wednesday, June 30, 2004 at ls/bulletin2/04/govtbusi300604.pdf 11. See Section 265-A(1). For instance, ?offences affecting the socio-economic condition of the country? have been excluded. However, the determination of which offences would come within such a category has been left to the discretion of the Central Government. 12. United States v. Speed Joyeros, 2002 US Dist LEXIS 8836 (2002) cited from 13. The relevant part of the proposed provision is as follows: ?265-B. Application for plea-bargaining.?(1) A person accused of an offence may file an application for plea-bargaining in the court in which such offence is pending for trial. (2) The application under sub-section (1) shall contain a brief description of the case relating to which the application is filed including the offence to which the case relates and shall be accompanied by an affidavit sworn by the accused stating therein that he has voluntarily preferred, after understanding the nature and extent of punishment provided under the law for the offence, the plea-bargaining in his case and that he has not previously been convicted by a court in a case in which he had been charged with the same offence.? 14. (1983) 2 SCC 277 : 1983 SCC (Cri) 405 15. Loftus E. Becker, Jr., ?Plea Bargaining and the Supreme Court?, (1988) 21 Loy. L.A. L. Rev. 757, 838. 16. Report of the Committee on Reforms of Criminal Justice System, 2003. 17. The Chairman and Vice-Chairman of the All-India Bar Association are of the opinion that the amendments would affect the rights and safeguards given to the accused in a criminal trial, thus undermining the basic rights guaranteed by the Constitution. See http:// stories/2006011201870900.htm 18. Further, examination of the accused in camera could cast a shadow of doubt over the judge?s position as a neutral arbiter. 19. ?In the name of Malimath: Bill on plea-bargaining seeks to subvert justice? at 20. PUCL response to questionnaire by the Committee on Reforms of Criminal Justice System? at 21. This differs from the Bill wherein such a provision was absent. Also, the Bill contained a clause which stated that the punishment imposed under plea-bargaining would be considered expiatory in nature and no person punished would be liable to any disability under any law on the ground that he had been so punished. The Act contains no such provision. 22. The numbers are 307 out of 422 surveyed and 239 out of the 307 in favour of introducing the concept respectively 23. Yale Kamisar et al., Modern Criminal Procedure, (1980) 1233. 24. See Milton Heumann, ?Back to the Future: The Centrality of Plea Bargaining in the Criminal Justice System?, (2003) 18 Canadian Journal of Law and Society 133. 25. Jon M. Sands, ?Plea Bargaining?s Triumph: A History of Plea Bargaining in America by George Fisher?, (2004) 51 MAY Fed Law 55, 56. 26. R.V. Kelkar, Lectures on Criminal Procedure, (2003) 209.
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