Updated: Aug 14
- Madhu Mallah
TABLE OF CONTENTS
INTRODUCTION PLEA BARGAINING UNDER CRIMINAL LAW IN INDIA PLEA BARGAINING UNDER US
PLEA BARGAINING UNDER US LAW
PROS AND CONS CONCLUSION
We have heard the word bargaining in an assortment of streams where people bargain for one thing in exchange for another. So the question here is, can there be a bargaining in conviction and punishments too? The answer is Plea Bargaining. Plea Bargaining is an agreement or negotiation between the prosecutor and defendant where both the parties voluntarily participate and the defendant agrees to plead guilty but in exchange for lesser punishment from the prosecutor.
However, the principle of Plea Bargaining requires that the transaction entered into by both the parties is voluntary and not involuntary. Generally, there are two kinds of Plea Bargaining that is Charge Bargaining and Sentence Bargaining.
Charge Bargaining: It is basically an exchange of concessions where the defendant pleads guilty to a less serious charge, or to one of several charges in return for the dismissal of other charges; or it may mean that the defendant will plead guilty to the original criminal charge in return for a more lenient sentence.
Sentence bargaining: It is a process which was introduced in India, where the accused bargain for a lesser sentence than prescribed for the offence with the consent of the prosecutor and complainant or victim.
Meanwhile before establishing, India only practiced the mechanism of Sentence bargaining in Plea Bargaining because the apex court considered it immoral in charge bargaining in criminal cases. So the concept of charge bargaining was absent in India. Gradually, there was a shift in judicial thinking and the seed of Plea Bargaining was included in the Code of Criminal Procedure.
This concept is borrowed from the constitution of the United States of America. Plea Bargaining was introduced by the Law Commission of India in the 142th, 154th and 127th reports. While Plea Bargaining has been a subject matter of various judicial decisions in India since 1970. It was first incorporated in the 2005 amendment of the Code of Criminal Procedure as Chapter XXIX through the Criminal Law (Amendment) Act.
PLEA BARGAINING UNDER CRIMINAL LAW IN INDIA
As mentioned previously, Plea Bargaining was introduced by the Law Commission and later on it was incorporated in the amendment of code of criminal procedure in 2005. The chapter XXIA includes sections from 265 A to 265L which came into effect on 5th July 2006. These sections allows Plea Bargaining in criminal cases as follows;
1. 265 A: - that is Plea-Bargaining can be claimed only for offences that are penalized by imprisonment below seven years.
2. If the accused has been previously convicted of a similar offence by any court, then he/she will not be entitled to plea bargaining.
3. Plea-Bargaining is not available for offences which might affect the socio-economic conditions of the country.
4. 265 L: - Also, Plea-Bargaining is not available for an offence committed against a woman or a child below fourteen years of age.
The accused cannot plead the prospect of Plea Bargaining in serious crimes like murder, rape and offences against women and child. In Plea Bargaining the onus is on the accused. It is the pre trial negotiation if the prosecutor agrees for the Plea Bargaining. If the judge voluntarily agrees then the judge can reduce or lessen the sentence.
PLEA BARGAINING IN USA
In the US, Plea Bargaining has been very common for American Jurisprudence and an unproblematic way to dispose of the case. The American jurisprudence has both charge bargaining as well as sentence bargaining. This concept was recognized as an official mechanism for deciding criminal cases in Brady v. United States case. This case held the Plea Bargaining constitutional. Furthermore, the American constitution believes that this concept is easier to dispose of cases in an expeditious manner and it has been a significant part of the American justice system. It was established in 1989 that American cases were disposed of without trial by eighty six percent. It was also found in 1988 that various states practiced Plea Bargaining and almost ninety one cases were disposed of by way of guilty pleas in the state of USA.
United States has three options for accused in dealing with plea bargaining that is A) the defendant may plead guilty B) the defendant may not plead guilty C) the defendant may plea of nolo- contendere i.e. I do not wish to contend.
"Fox v. Schedit and in State exrel Clark v. Adams, Nolo- Contendere, the plea is also identified as “plea of Nolvut”; the accused in numerous cases pleads this doctrine of implied confession where the government has to look over such cases, if the charge of the accused must be considered or not. Nolo contendere is not ipso facto, but it is the discretion of court to accept or reject such plea. At this point, it is important for the court to consider the point of the prosecutor for influencing the court whether such a plea should be accepted or rejected.
PLEA BARGAINING UNDER US LAW
The plea bargaining was established in US laws in rule 11 of federal criminal procedure (2002) amendment which provides that the court shall address the defendant personally to establish that the plea is made voluntarily.
In America, firstly there is no restraint or control in any sought of offence. Unlike India the concept of Plea Bargaining, can be practiced in America even though the accused has been sentenced for any serious crimes, life imprisonments or hang to death. Secondly, the defendant can file an application for plea bargain only after the negotiation between the prosecutor and accused. This safeguards the accused from the oppression or dishonest dealings.
Furthermore, it is under the discretion of the court to accept or reject the application of Plea Bargaining in order to serve justice. If the judge believes that the case prima facie has no evidence against the accused then the judge can accept the Plea Bargain application. And if the judge believes that the accused is getting away from the punishments of wrongdoing then the judge can reject the Plea Bargaining application.
PROS AND CONS
There are various pros and cons in Plea Bargaining. As we know there are thousands of cases pending in various courts, Plea Bargaining saves times in disposing of cases. It is expeditious and speedy in nature. It is beneficiary for the non-guilty accused from reaching the grievous punishments by reducing the charges on him. The accused will be relieved from the extended trials; that is appeals consuming never-ending times.
The cons are the concept of plea bargaining that escapes the accused from rigorous punishments by dishonesty which is unfair for the victims. The victims do not acquire justice. Hence, it is not a fair trial for victims because it serves the society as an alternation for legalization of crimes to some extent. It is easier for the wrongdoer to get rid from the fair trials. This concept might also result in a phenomenal increase in convicts of innocent accused. The actual perpetrators of crime might pay the innocent ones in return to their guilty plea with assured reduction in penalty. Thus, there can be an illegal plea bargaining between the real culprits and the innocent’s one to get rid of the punishments.
The dubious concept of Plea Bargaining does not totally end the entire problem but it reduces the severity of offence. The mechanism of Plea Bargaining just exchanges the punishment of under-trial prisoners and gives them a shortcut to get rid of the specified punishments with or without justice. It is certainly a disputed concept as it gives justice one side and injustice on the other. If this mechanism is used in rigorous criminal cases then the Indian judiciary will lose in granting justice to the victims. Plea Bargaining has been practiced in India in various criminal cases which fails to serve justice. It restricts the fair trial for the victims but the defendant attorney must encourage the litigants to opt for Plea Bargaining rather than treating Plea Bargaining as a threat to their profession. In US, the perception of Plea Bargaining is used as a measure to dispose of the backlogs of cases. But Plea Bargaining should be practiced in a lawful and right manner in order to serve justice.
https://indiacode.nic.in/bitstream/123456789/6797/1/theccp%28amendment%29act%2C2005.pdf https://indiacode.nic.in/bitstream/123456789/6797/1/theccp%28amendment%29act %2C2005.pdf  http://www.commonlii.org/in/journals/NALSARLawRw/2013/7.pdf
 397 U.S. 742 (1970)  American Bar Association, Standards relating to the administration of criminal justice, The prosecution function Standard 3-4.1 (3ed 1992).  363 US 807  Plea and charge bargaining, Bureau of Justice Assistance U.S department of Justice, available at, https://www.bja.gov/Publications/PleaBargainingResearchSummary.pdf,