Bargaining basically means setting up of an agreement or understanding between two parties with a view that each party can mutually decide as to what interests him/her the most and which can ultimately lead to the doing of a certain act by the other party diluting the intensity of the matter between them. This is a mutually settled agreement.

Now,  the concept of Plea bargaining under the Code of Criminal Procedure, 1973 carries with it the similar intent as above.

Plea Bargaining is a pre trial negotiation between the parties i.e the accused and the prosecution in which the former, on his own accord, pleads guilty to have committed an offence against the latter. And on the other side, the prosecution agrees to drop or to mitigate the charges against the accused on his pleading guilty. A Mutually agreed disposition is reached by both the parties here.

Plea bargaining as an entire separate chapter in the Code is included in Chapter 21 A running though sections 265 A to 265L.

Plea bargaining has its three main different types:

1. Charge bargain, where the accused agrees to plead guilty to a lesser charge in return of dismissing a greater charge.

2. Sentence Bargain, where the accused accepts the charges and agrees to be punished with a mild sentence.

3. Fact Bargain, where the accused prevents some facts to be entered as evidence and agrees to stipulate on some other facts.

In this present Article, I shall be discussing about the concept of Plea Bargaining, also about the merits and demerits of the same. I Shall also be discussing as to what better approaches should be considered in its place while preserving the interests of both the parties to a dispute.

Plea Bargaining: How It Found Its Place In The Indian Legal System

The idea of Plea bargaining was first proposed by The Law Commission of India through its 142nd and 154th Report. The Malimath Committee Report also provided an impetus for the emergence of such idea.

Then, The Criminal Law (Amendment) Act, 2005, which came into effect on July 5, 2006, officially recognised the idea of Plea Bargaining by inserting the same in the form of an all new chapter in the Code of Criminal Procedure, 1973. Plea Bargaining is included in Chapter 21 A in the Code.

The United States Judiciary had first adopted the idea of Plea Bargaining. Although, the Sixth Amendment to the US Constitution, which enshrines the principle of fair trial, has no mention in it of plea bargaining, yet, as of now, 90% of criminal cases in the United States are settled by plea bargaining rather than by Jury trial.

Now plea bargaining has gained an international recognition and every major country has adopted this idea, either entirely or in parts.

Having said that, it becomes necessary to discuss as to what were the major causes for the inclusion of plea bargaining in the Indian Criminal Justice System and also to understand whether there was actually a need for such an inclusion. 

Rationale Behind The Adoption Of Plea Bargaining

The major reasons for the inclusion of the idea of Plea Bargaining in the Indian Criminal Justice System have been:
Firstly, the enormous amount of pending litigations in our Courts of Law:
There is no denying to the face that the Justice delivery system of our country is lagging behind other Jurisdictions in terms of the pace of disposal of pending litigations. To make it more clear, below are the statistics reflecting the number of cases pending in our Courts of Law. These numbers are distressing, however we have to accept the bitter truth. 

According to the Ministry of Law and Justice Department, Government of India, the total number of cases pending in the Hon'ble Supreme Court of India, High Courts and District and Subordinate Courts are as below:

1. Supreme Court: 62,054 (as on 31.08.2020)

2. High Courts      : 51,57,378 (as on 20.09.2020)

3. District and Subordinate Courts : 3,45,71,854 (as on 20.09.2020)

This makes it nearing 4 crores. This is heart wrenching. Indian Judiciary is facing a huge delay in the disposals of the litigations. 

Secondly, the rise in the number of under trial prisoners languishing in prisons : The 25th Edition of the Prison Statistics Report in India released by The National Crime Record Bureau (NCRB) reflects the condition of the present scenario of the prison systems of our Country.

As per the Report, in the year 2019:

1. The number of Under trials prisoners behind bars : 69.05%
2. 
The number of convicts: 30.11%

3. The number of detenues: 0.67%

The above statistics shows that the number of undertrials prisoners eclipses considerably the number of convicts in prisons. This represents a worrisome situation.

And Thirdly, compensation to victims : Plea Bargaining involves compensating the prosecution for the wrong done by the accused. On the other side, the accused is relived off the intensity of the punishment which he would have originally undergone had he not exercised plea bargaining. This reduces the conflict between both the parties as they reach a compromise and also relieves off the burden on the Courts of Law.

Goodness Of Plea Bargaining

Keeping in mind the above statistics, it's clear that plea bargaining was introduced in the code as:

1. It would assist in Lessing the load of pending litigations on the Courts of Law, as the parties would settle their dispute mutually and amicably.

2. It would also help in resolving the problem of prison congestion.
3. 
It provides for compensating the prosecuting for the crime committed by the accused.

4. this would also mean that there would be no publicity involved in such cases that are settled through plea bargaining.

Plea Bargaining, A Frailty

Now, having understood the major reasons for proposing and accepting plea bargaining as a part of our criminal justice system and having discussed the merits of the same, it's time that we reflect on the above scenario and statistics and exercise our reason to question the legality and the constitutionality of Plea Bargaining.

Here are some points proving of Plea Bargaining to be a frailty:

1. Under Section 265B (4)(a) of The Code of Criminal Procedure, the use of the word May indicates that the outcome of the mutually satisfactory disposition between both the parties may or may not include compensation to the prosecution, which is not an impressive provision for the delivery of speedy remedy in the form of plea bargaining.

    
2. Exercising plea bargaining results in a comprise or an arrangement between the accused and the prosecution, which would not be an ideal situation for someone (prosecution) who really and actually intends to seek justice because a crime has been committed against him. Substituting the right to fair trial of the parties with a compromise between them has never been the object of our Criminal Justice System.
   
   If that is the case then what is the need for the courts of law to function? Every disputing party can then resolve their matters on their own. But the fact remains that the courts are the only hope left for the injured party. In fact, I will sue you or I will see you in court, there is a reason that these phrases are common to hear not only in movies but also in actual life.
    
3. The involvement of police officers in the process of reaching a mutually satisfactory disposition in plea bargaining can lead to corruption or coercion. There should be complete transparency in reaching a mutually satisfactory disposition.

    
4. Either of the parties to the dispute may exercise coercion on the other party throughout the entire process of plea bargaining, thus leading another loophole in this process.

    
5. Plea bargaining, as such, is neither an exemplary nor a deterrent procedure which is going to create any impression in the minds of the hardcore criminals prevent them in committing the crimes in future. The purpose for imposing a punishment on the wrongdoer for some crime is to create an admonitory affect on his mind so that he be dissuaded to commit the same crime again in future or commit altogether a new crime.

    
6. Taking into account the above mentioned loopholes of plea bargaining, it's clear that through this process the exercise of the fundamental right of a person of fair trial as guaranteed under Article 20(3) is not achievable, which thus is Also violative of the said Fundamental Right.

Apart from the above points, some important judgements of the Courts are worth mentioning here:

1. In Murlidhar Meghraj Loya Etc V. State of Maharashtra Etc[1], the Supreme Court held that:
   To begin with, we are free to confess to a hunch that the appellants had hastened with their pleas of guilty hopefully, induced by an informal, tripartite understanding of light sentence in lieu of nolo contendere stance. 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 ante-room settlement.
   
   The business-man culprit, confronted by a sure prospect of the agony and ignominy of tenancy of a 7 being a plea of guilt, coupled with a promise of 'no jail'. These advance arrangements please everyone except the dis- tant victim, the silent society.
   
   In this case, the court also held tha it is the duty of the state to enforce the law and not to barter with the accused for lesser sentence. Supreme Court declared that introduction of Plea bargaining is a necessary evil. Therefore, it should not be introduced in Indian Penal System.
    
2. In Thippaswamy V. State of Karnataka[2], it was held by the Court:
   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 and then in appeal or revision, to enhance the sentence.
    
3. State of Uttar Pradesh V. Chandrika[3], the court held, Such a procedure would be clearly unreasonable, unfair and unjust and would be violative of the new activist dimension of Article 2 1 of Constitution unfolded in the case of Maneka Gandhi v. Union of India, [1978] 1 SCC 248.
   
   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 cumbrous 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 deflected 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.
    
4. In the case of Kachhia Patel Shantilal Koderlal v. State of Gujarat and another[4], the Supreme Court strongly disapproved the practice of plea bargaining.

The courts of Law, thus, clearly disapproved of plea bargaining as a method of justice delivery system.

I, believe that Plea Bargaining is not a necessity, rather it's something that we have adopted into our system sans pondering on the other relevant and necessary considerations the adoption of which would have revamped the criminal justice system in our country and resulting in effortless machinery where the right to fair trial would never be compromised.

The inclusion of Plea Bargaining in the criminal Justice system, keeping into consideration all the reasons for its inclusion, is similar to giving a first aid to an ill person to keep the symptoms away for a while of a disease which has been diagnosed. Instead, we should discover the proper remedy for such disease once and for all with a view to not let the same reoccur in future.

Therefore, further in this discussion there are some remedies that I believe would be of immense support and worth considering for the road to complete and fair justice.

Perspectives To Consider For Creating A Noticeable Change

1. As discussed above, there are a huge amount of pendency of litigations in India. So, instead of aiming for short cuts, it would be better and meaningful if our Government work on the increase in the number of Judges and Courts of Law in the country. As there are 19.66 judges per million (10 lakh) people in India, based on the 2011 census. So, this would ensure speedy justice and disposal of pending litigations as well.
    
2. As the number of Judges and the Courts would increase, the pace of disposal of cases by the courts would be equally advanced, and the same Would automatically result in decrease in the number of under trial prisoners languishing in prisons. In this way, Justice will begin to be delivered smoothly.

    
3. More prison and judicial institutions should be set up in the country so that tasks could be divided among those institutions thus reducing the amount of work load off them, which will ultimately result in the achievement of desired goals of dispensation of speedy and complete justice.

Conclusion
Every victim in this country expects a fair trial when he intends to seek justice for himself for the injury caused by the opposite party. Moving the courts of law for seeking justice still remains the ultimate destination for every victim. And when it comes to his knowledge that instead of a fair trial he will have to end up making an arrangement or a compromise with the defaulting party, his hopes become less bright.

Nothing is permanent, and I believe that with the passage of time, the justice delivery system of our country will be better off than it is now. All we have to do is to look a little deeper and realise that the things are not as complicating as we perceive them to be. If the above shared approaches are taken into consideration by the Government and us and are implemented in real sense, then a time will come when our country will be on the pinnacle in terms of dispensation of smooth and prompt justice delivery mechanism. And as a result of the same our criminal justice system  would become healthier and the rights of each one will be preserved and defended at all times.

Reference:

1. AIR 1976 SC

2. AIR 1983 SC

3. AIR 2000 SC

4. 1980 CriLJ 553, 554
   
   Award Winning Article Is Written By: Ms.Rasleen Kour
   
   

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