Plea Bargaining, in the most traditional and general sense, refers to a pre-trial negotiation between the defendant, who is represented by a counsel and the prosecution, during which the defendant agrees to plead guilty in exchange for certain concessions by the prosecutor. Plea Bargaining is further divided into two categories – "charge bargaining", where the negotiation is to reduce or dismiss some of the charges brought against the defendant in exchange for a guilty plea and "sentence bargaining", where the prosecutor promises to recommend a specific sentence or refrain from making any sentence recommendation defendant in exchange for a guilty plea. Despite its resounding success in the countries like the United States of America, there were divided opinions with respect to introducing Plea Bargaining in the Indian criminal justice system. In this article, we will examine all the concerns raised at various public institutions in India with respect to introducing Plea Bargaining in India so that we can proceed, very cautiously to dovetail interests of the society and met demands of the justice system.
The Indian Parliament on Plea Bargaining
Plea Bargaining was included in the Code of Criminal Procedure (Cr.P.C) under chapter 21A from Section 265A to Section 265L through the Criminal Law (Amendment) Act, 2005 (2 of 2006) on with effect from 5th July, 2006 as a prescription to the problem of overcrowded jails, overburdened courts and abnormal delays. The amendment inserting the chapter on plea bargaining in the Cr.P.C was first introduced though the Criminal Law Amendment Bill, 2003 in the Rajya Sabha on 12th December, 2005. The Bill was moved by the Minister of Home Affairs, Shivraj V. Patil. The Minister introduced Plea bargaining to the house by saying that when the accused brought before the Court makes a petition to the judge saying he is willing to admit his guilt, the court shall give notice and forward this application to the prosecutor and the defence lawyer and the accused, victim, prosecutor and defence lawyer can meet and discuss as to what should be done in that matter and how that case should be disposed of. Further the Court can go through the records and if the court finds that what has been agreed to between the two parties is quite acceptable, then the court can pass an order on that kind of agreement. However in cases where the punishment that could be awarded is imprisonment of more than seven years, life imprisonment, death sentence or cases in which women and children are involved, or, socio-economic conditions are involved, or, juvenile is involved, plea bargaining in such cases shall not be allowed.
This bill was hugely accepted by the upper house since it was intended to save public money, court's time and was beneficial for both victim and the accused than going to a trial. Though there were concerns also that were raised by some members. MP Ravi Shankar Prasad, who also is the current law minister of India, raised the concern of the rampant illiteracy in India and the understanding of the implications of plea bargaining by an illiterate victim. There are good chances that an accused might take advantage of an illiterate victim during plea bargaining. Second concern raised was regarding having an autonomous mechanism which would ensure that the plea bargaining is conducted in a fair, just and proper manner which is beneficial to both-accused and illiterate victim. Third concern raised was regarding the Police employing unethical, unfair means to coerce the accused to confess the guilt of the crime and apply for plea bargaining since the possibility of such a thing happening is very high in India. Fourth concern raised was with respect to the plea bargaining turning into a business where a person will get himself injured on propose to extract money. One important recommendation that was made in the upper house was that the application filed for plea bargaining should not used anywhere, for any proceedings, either same proceedings or collateral proceeding or by anybody in any place. This bill was passed by the upper house on 13th December, 2005 after few modifications.
The Criminal Law Amendment bill was taken up by the Lok Sabha on 22nd December, 2005. Hon'ble Minister, Shri Shivraj V. Patil pointed out few benefits of having plea bargaining before the house like victim could be given compensation of the losses incurred, the disposal of the cases will be quicker and dispensation of criminal justice will also be quicker. Recommendation was made by honourable members for including cases where punishment is death sentence, life sentence and sentences of imprisonment up to seven years, however this was rejected by the honourable minister saying that including these exceptions to plea bargaining was primarily to ensure that accused in all cases are not allowed to go scot-free and the social conditions in which live, these precautions are necessary. References were also made to Islamic criminal jurisprudence where it was claimed that plea bargaining is accepted, even in cases of murder. The Amendment Bill introducing plea bargaining, after an intensive debate, was finally passed by the Lok Sabha on the same day.
The Supreme Court of India on Plea Bargaining
The Hon'ble Supreme Court of India has time and again criticised the scheme of plea bargaining as Justice V.R. Krishna Iyer in the case of Murlidhar Meghraj Loya vs. State of Maharastra, said that:
"Many economic offenders resort to practices the American call 'plea bargaining', 'plea negotiation', 'trading out' and 'compromise in criminal cases' and the trial magistrate drowned by a docket burden nods assent to the sub rosa anteroom settlement. The businessman culprit, confronted by a sure prospect of the agony and ignominy of tenancy of a prison cell, 'trades out' of the situation, the bargain being a plea of guilt, coupled with a promise of 'no jail'. These advance arrangements please everyone except the distant victim, the silent society. The prosecutor is relieved of the long process of proof, legal technicalities and long arguments, punctuated by revisional excursions to higher courts, the court sighs relief that its ordeal, surrounded by a crowd of papers and persons, is avoided by one case less and the accused is happy that even if legalistic battles might have held out some astrological hope of abstract acquittal in the expensive hierarchy of the justice-system he is free early in the day to pursue his old professions. It is idle to speculate on the virtue of negotiated settlements of criminal cases, as obtains in the United States but in our jurisdiction, especially in the area of dangerous economic crimes and food offences, this practice intrudes on society's interests by opposing society's decision expressed through predetermined legislative fixation of minimum sentences and by subtly subverting the mandate of the law. The jurists across the Atlantic partly condemn the bad odour of purchased pleas of guilt and partly" justify it philosophically as a sentence concession to a defendant who has, by his plea 'aided in ensuring the prompt and certain application of correctional measures to him."
Even Justice P.N. Bhagwati in the case of Kasambhai Abdulrehmanbhai Sheikh vs. State of Gujarat had voiced a strong opinion against plea bargaining in his judgement. He said:
"To allow a conviction to be recorded against an accused by inducing him to confess to a plea of guilty on an allurement being held out to him that if he enters a plea of guilty, he will be let off very lightly. Such a procedure would be clearly unreasonable, unfair and unjust and would be violative of the new activist dimension of Article 21 of the Constitution unfolded in Maneka Gandhi vs. Union of India case. It would have the effect of polluting the pure fount of justice, because it might induce an innocent accused to plead guilty to suffer a light and inconsequential punishment rather than go through a long and arduous criminal trial which, having regard to our combers and unsatisfactory system of administration of justice, is not only long drawn out and ruinous in terms of time and money, but also uncertain and unpredictable in its result and the judge also might be likely to be defected from the path of duty to do justice and he might either convict an innocent accused by accepting the plea of guilty or let off a guilty accused with a light sentence, thus, subverting the process of law and frustrating the social objective and purpose of the anti-adulteration statute. This practice would also tend to encourage corruption and collusion and as a direct consequence, contribute to the lowering of the standard of justice. There is no doubt in our mind that the conviction of an accused based on a plea of guilty entered by him as a result of plea-bargaining with the prosecution and the Magistrate must be held to be unconstitutional and illegal."
Commission Reports on Plea Bargaining
The 142nd Report of the Law Commission of India, 1991, which discussed plea bargaining at length, examined the model of plea bargaining in the United States of America and Canada and recommended the same to be incorporated in the Indian legal system for a class of offences, also recorded few objections raised for the introduction of plea bargaining in India. Objections include the country's social condition not justifying the introduction of the concept as India as illiteracy being high in India, people here will not be able to realise the consequences of invoking the scheme involving a confession to a commission of a crime; there being a likelihood of pressure being exercised by the prosecuting agencies on innocent persons to yield confession; the poor will be the ultimate victim of this concept; the counsel representing the accused would be unwilling to advise confession invoking the scheme as the same would lead to the defendant losing faith in the counsel and engaging another one ; plea bargaining may increase the incidence of crime as it was pointed out by some that the adoption of this scheme may increaser the incidence of crime because of the expectation/impression that a person may be let off lightly by reason of pleading guilty.
The major justification that the law commission gave for incorporation Plea-bargaining was that the same would be just and fair on the part of accused who feels contrite and wants to make amends or an accused who is honest and candid enough to plead guilty in the hope that the community will enable him to pay the penalty for the crime with a degree of compassion. Further Plea-bargaining would infuse some life in the reformative process embodied in the Code of Criminal Procedure which remains practically unutilized for a long time. It will also help the accused whose trial remains hanging for years to obtain speedy trial with additional benefits like end of uncertainty, saving in litigation cost, saving in anxiety cost and being able to know his/her faith and start a fresh life without the fear of having to undergo a possible prison sentence at a future date disrupting his/her life or career. Plea-bargaining, as per the report, was also in public interest as it would decrease the back-breaking burden of the courts and reduce congestion in the jails. The Committee also noted that about 75% of the total convictions are the result of plea-bargaining in the USA and contrasted it with the 75% - 90% criminal cases resulting in acquittals in India.
The 154th Report of the Law Commission of India, 1996, relying on the 142nd law commission report also recommended the introduction of the scheme of plea bargaining in the Indian criminal jurisprudence. However this report also recommended that plea bargaining should not be available to habitual offenders, those who are accused of socio-economic offences of a grave nature and those who are accused of offences against women and children. The Law Commission in its 177th report, published in 2001, also recommended the incorporation of plea bargaining in the Code of Criminal Procedure based on the reasoning provided in the previous reports.
Even the Committee on Reforms of Criminal Justice System, popularly referred to as the Malimath Committee, in its report strongly recommended the incorporation of plea bargaining in the Code of Criminal Procedure and stated that offences, which are not of serious nature and impacts mainly the victim and not the values of the society, should be settled without a trial and these classes of offences should be made compoundable so that the victim, in the negotiation, can lead the settlement of criminal cases through courts or Plea-bargaining.
Despite several concerns and opposition, Plea bargaining was made a part of the Code of Criminal Procedure as a probable solution to the overcrowding in jails, overburden courts which causes abnormal delays in delivering justice and also to infuse some life in the reformative process of our criminal justice system since it remained practically unused for a long time.
Now, more than ever, India is at crossroads. With innovative investigative tools and the use of technology in pinning down criminal involvement, plea bargaining has a very important role to play in the dispensing of justice- both to the victim and the accused. Its benefits are certainly many. Nonetheless, we need a set of clear and decisive guidelines taking into account the concerns vis-à-vis plea bargaining. It has to be a fair deal- for all. How we proceed with it will certainly portray to the world our commitment to values of fairness and justice.
(Vishavjeet Chaudhary is a Barrister-at-Law (Inner Temple), Door Tenant at Lamb Building (A London based Barrister Chambers) and Advocate at the Supreme Court of India. Arindam Bharadwaj is a 4th Year Law Student, O.P. Jindal Global University, Sonepat, Haryana, India.
The authors may be reached at [email protected] & [email protected] respectively)
 The Criminal Law (Amendment) Act, 2005, Ministry of Home Affairs, Government of India. <available at: https://mha.gov.in/sites/default/files/CriminalLawAmendmendAct%2C2005.pdf>
 Rajya Sabha Debates, 205th Session, December 12th, 2005, Rajya Sabha Secretariat, New Delhi. <available at: http://22.214.171.124/Official_Debate_Nhindi/Floor/206/F12.12.2005.pdf >
 Ibid, pg. 241.
 Ibid, pg. 243.
 Ibid, pg. 251.
 Ibid, pg. 252.
 Ibid, pg. 259.
 Ibid, pg. 263.
 Rajya Sabha Debates, 206th Session, December 13th, 2005, Rajya Sabha Secretariat, New Delhi, pg. 247 <available at: http://126.96.36.199/Official_Debate_Nhindi/Floor/206/F13.12.2005.pdf>
 Ibid, pg. 265.
 Lok Sabha Debates, Sixth Session (Fourteenth Lok Sabha), December 22nd, 2005, Lok Sabha Secretariat, New Delhi, pg. 285. <available at: https://eparlib.nic.in/bitstream/123456789/785472/1/lsd_14_06_22-12-2005.pdf>
 Ibid, pg. 288.
 Ibid, pg. 289.
 Ibid, pg. 300.
 Ibid, pg. 384.
 Ibid, pg. 300 & 382.
 Ibid, pg. 392.
 (1976) 3 SCC 684.
 Ibid, Para13.
 (1980) 3 SCC 120.
 Ibid, Para 4.
 The 142nd Report of the Law Commission of India, Ministry of Law, Justice and Corporate Affairs, Government of India, 1991.
 Ibid, pg. 20.
 Ibid, pg. 21.
 Ibid, pg. 37.
 The 154th Report of the Law Commission of India, Ministry of Law, Justice and Corporate Affairs, Government of India, 1996.
 Ibid, pg. 54.
 Ibid, pg. 52.
 The 177th Report of the Law Commission of India, Ministry of Law, Justice and Corporate Affairs, Government of India, 2001, pg. 110-114.
 Report of the Committee on Reforms of Criminal Justice System, Vol. 1, Ministry of Home Affairs, Government of India, March 2003.
 Ibid, pg. 179.
 Ibid, pg. 80.