It is originated in American Judiciary in the 19th century and gained acceptance. In a landmark judgment Bordenkircher vs. Hayes, the US Supreme Court held that the constitutional rationale for plea bargaining is that no element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer. In England and Wales, Victoria, Australia, ‘Plea Bargaining is allowed only to the extent that the prosecutor and defense can agree that the defendant will plead to some charges and the prosecutor shall drop the remainder.

Table of Contents:

• What is Plea Bargaining
• Case Law – State of UP Vs. Chandrika
• Case Law – State of Gujarat vs. Natwar Hemchandji Thakor
• Kinds of Plea Bargaining
• Forms of Plea Bargaining
• Advantages of Plea Bargaining
• Disadvantages of Plea Bargaining
• Offences affecting the socio-economic conditions
• Conclusion

What is plea bargaining?

According to Black’s Dictionary Plea Bargaining has been described as the process whereby the accused and prosecutor work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the accused pleading guilty to a lesser offence or to only one or some of the counts of multi-count indictment in return for a lighter sentence than that possible for grave charge. India did not recognize the concept of plea bargaining. After the recommendation given by 154th Law Commission it has been inserted in this code under Sec. 265(A-L) as Chapter XXI-A by Criminal Law (Amendment) Act 2005 and which came into force on July 05, 2006.

 In State of UP vs. Chandrika 2000, the apex court held that it is settled law that on the basis of Plea Bargaining court can’t dispose of the criminal cases. The court has to decide it on merits. If the accused confesses his or her guilt, the appropriate sentence is required to be implemented. The court further held that 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 should be reduced.

In the State of Gujarat vs. Natwar Hemchandji Thakor, (2005) It was held that one of the reasons for the introduction of plea bargaining in India is the speedy disposal of criminal cases

KINDS OF PLEA BARGAINING

A. Express Bargainingoccurs when an accused or his lawyer negotiates directly with a prosecutor or a trial judge concerning the benefits that may follow the entry of a plea of guilty.

B. Implicit Bargainingoccurs without face-to-face negotiations. In Implicit bargaining, the trial judges especially. establish a pattern of treating accused who plead guilty more leniently than those who exercise the right to trial, and the accused therefore come to expect that the entry of guilty pleas will be rewarded.

FORMS OF PLEA BARGAINING

(1) Charge Bargaining

When a defendant is charged with murder and facing decades in prison. In this case, the prosecution might offer to drop the murder charge and have him or her plead guilty to culpable homicide   

(2) Sentence Bargaining-

It is an active negotiation whereby the accused by confessing his guilt may get lighter punishment than prescribed for the offence. In India, this is sentence bargaining and not charge bargaining. Plea Bargaining is based on an ‘open method compromise’ which is possible and acceptable in India

(3) Fact Bargaining

In fact bargaining, a prosecutor agrees not to reveal aggravating factual circumstances to the court. This form of bargaining is likely to occur when proof of an aggravating circumstance would lead to a mandatory minimum sentence. He may agree to provide leniency to an accused’s accomplices, withhold damaging information from the court, influence the date of the accused’s sentencing, arrange for the accused to be sent to a particular correctional institution, etc.

ADVANTAGES

1. Plea bargaining helps the Courts and State to manage the case loads.
2.  Reduces the work load of the prosecutors enabling them to prepare for the gravest case by leaving the effortless and petty offences to settle through plea bargaining
3.  It is also a factor in reforming the offender by accepting the responsibility for their actions and by submitting them voluntarily before the law without having an expensive and time-consuming trial.
4.  In cases wherein the prosecution is weak, if a trial is concluded, for want of proper witnesses or evidence and the ultimate result may be an acquittal, the prosecution will have a chance to find the accused as guilty by cooperating with the accused of a plea bargaining.

DISADVANTAGES

 (1) A power is conferred on the prosecution to present accused with unconscionable pressures. Though, in procedure pleas as voluntary, there are chances of being practically coerced.

(2) The prosecution has the incentive to maximize the benefit of pleading guilty in the weakest cases. The more likely an acquittal at trial, the more attractive a guilty plea is to the prosecution, but in a borderline case the does go forward, the prosecution may very well threaten the most serious consequences to those accused who may very well be innocent.

ROLE OF LAWYERS AND JUDGES IN PLEA BARGAINING

Defence Lawyer, Trial Judges, and Prosecutors are the fundamental elements in the working of plea bargaining. Prosecutors plainly are influenced by the seriousness of the accused’s alleged crime, their prior criminal record, and so on. A prosecutor can avoid much of the hard work of preparing cases for trial and of trying them. In addition, prosecutors can use plea bargaining to create seemingly impressive conviction rates. The personal bias with the defence lawyers also may influence plea bargaining practices. “client control” as an important part of plea bargaining. Clients are reluctant to follow their advice. An effort to lead the clients to what the lawyers regard as the appropriate course of conduct is what plea bargaining is.

In India, plea bargaining doesn’t apply where the offence

(1) affects the socio-economic condition of the country or

(2) has been committed against a woman, or

(3) has been committed against a child below the age of fourteen years.

(4) Where the punishment for offence is death, imprisonment for life, or imprisonment for a term exceeding 7 years under the law for the time being.

But the Central Government shall, by notification, determine the offences under the law for the force which shall be the offences affecting the socio-economic condition of the country.

The laws containing the offences affecting the socio-economic conditions are:

1. The Dowry Prohibition Act, 1961.
2. The Commission of Sati Prevention Act, 1987.
3. The Indecent Representation of Women (Prohibition) Act, 1986. (v) The Immoral Traffic (Prevention) Act, 1956.
4. The Protection of Women from Domestic Violence Act, 2005. (1) The Infant Milk Substitutes, Feeding Bottles and Infant Foods
5. Production, Supply and Distribution) Act, 1992.
6. Provisions of Fruit Products Order, 1955 (issued under the Essential Services Commodities Act,1955).
7. (vi) Provisions of Meat Food Products Orders, 1973 (issued under the Essential Commodities Act, 1955).
8. Offences with respect to animals that find place in Schedule I and Part II of the Schedule Il as well as offences related to altering of boundaries of protected areas under the Wildlife (Protection) Act, 1972. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
9. Offences mentioned in the Protection of Civil Rights Act, 1955.
10. Offences listed in sections 23 to 28 of the Juvenile Justice (Care and Protection Children) Act, 2000.
11. The Army Act, 1950.
12. The Air Force Act, 1950.
13. The Navy Act, 1957.
14. Offences specified in sections 59 to 81 and 83 of the Delhi Metro Railway (Operation and Maintenance) Act, 2002.
15. The Explosives Act, 1884.

The list is not exhaustive.

Conclusion

Plea bargaining indeed speeds up the disposition but there is a huge backlogging of pendency of criminal cases. Only time will tell if the introduction of this concept is justified or not.