Plea bargaining in India: A unique concept

By Abhixit Singh and Digvijay Singh, Titus & Co
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P lea bargaining refers to pre-trial negotiation between the prosecution and the accused during which the accused agrees to plead guilty in exchange for certain concessions by the prosecutor.

It is essentially negotiation of incentives offered by a prosecutor to induce the accused to plead guilty.

The Indian concept of plea bargaining is inspired from the doctrine of nolo contendere (no contest).

In India, plea bargaining was introduced on the recommendation of the Justice Mali Math Committee constituted to examine reforms in the criminal justice system.

Human rights concerns

Abhixit Singh, Titus & Co
Abhixit Singh
Partner
Titus & Co

While the introduction of plea bargaining in India has been welcomed by certain sectors of the public as it aims to address the problems of overcrowded jails, overburdened courts and abnormal delays in the criminal justice system, it has also been criticized by individuals and organizations including the Asian Human Rights Commission who believe that it will lead to convictions of innocent people, inconsistent penalties and consequent miscarriages of justice.

Enforceability

Digvijay Singh, Titus & Co
Digvijay Singh
Associate
Titus & Co

A new chapter (XXI A sections 265 A to L) on plea bargaining was inserted into the Code of Crimina Procedure, 1973, by the Criminal Law (Amendment) Act, 2005, which came into effect from 5 July 2006.

Under this amendement, the salient features of plea bargaining include:

  • Plea bargaining is applicable only to offences where punishment of imprisonment is up to a period of seven years.
  • Plea bargaining does not apply to offences that affect the socio-economic conditions of the country or have been committed against a woman or a child below the age of 14 years.
  • Habitual offenders are also excluded from the purview of plea bargaining.
  • There is no appeal possible from judgments delivered by the court in cases of plea bargaining except a writ petition to the High Court under Article 226 and 227 of the Constitution or a Special Leave Petition to the Supreme Court of India under Article 136 of the Constitution.

Voluntary application

In terms of the amended Code of Criminal Procedure, 1973, an accused can voluntarily file an application for plea bargaining in the court which is conducting his trial.

The facts stated by an accused in the application cannot be used by the prosecution for any other purpose except for plea bargaining.

The validity of a plea bargain is dependent upon a known and voluntary waiver of rights by the accused and a factual basis to support the charge to which the accused is pleading guilty.

Two types

Typically there are two types of plea bargaining: Charge bargaining and sentence bargaining.

Charge bargaining is negotiating with the prosecution to plead guilty to a lesser charge or to only some of the charges that have been framed against the accused.

Sentence bargaining involves an agreement to plead guilty to the stated charge in return for a lighter sentence.

Besides applying to those offences where punishment of imprisonment is up to a period of seven years, plea bargaining applies to offences under the Indian Penal Code as well as to offences under several other statutes.

These include offences of copyright infringement, dishonour of cheques under the Negotiable Instruments Act, offences under the Arms Act, Representation of the Peoples Act, Standards of Weights and Measures (Enforcement) Act, Prevention of Corruption Act, 1988, and Child Marriage Restraint Act.

Faster justice

The legislature introduced plea bargaining in the Indian criminal justice system with a view to facilitate speedy disposal of cases.

It helps the court manage its load of work and could result in a reduction of the backlog of cases.

Another benefit is that it relieves the magistrate of the burden to prepare a detailed judgment.

This system offers advantages to the public prosecutors by relieving them of the burden of examining fragile and feeble witnesses while securing significant advantages to the accused.

While critics view the introduction of plea bargaining in India with some scepticism, given that it may be prone to coercion and corruption, in the Indian criminal justice system the advantages of plea bargain outweighs its demerits.

Abhixit Singh is a partner at Titus & Co. He can be contacted at asingh@titus-india.com. Digvijay Singh is an associate at Titus & Co and can be contacted at dsingh@titus-india.com.

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