By Shamayeeta Bhattacharyya

It is said that justice hurried is justice buried and at the same time justice delayed is justice denied. Justice should not only be done, but should also manifestly appear to have been done. A perfect blend of these sayings strikes a balance between the quantitative and qualitative aspects of the justice delivery system. In a dynamic and progressive society,when social life is much complicated by technological innovations, exposure to the new regions of hitherto unknown value systems and ever changing normative structures in the society, strong undercurrents of litigative pendencies are causing enormous arrears of work in courts. The consequences of judicial delays involving ordinary litigants or high-profile cases are not justifiable. Any delay in the expeditious disposal of criminal trial infringes the right to life and liberty guaranteed under Article 21 of the Indian Constitution. The concept of plea bargaining has been introduced to bid farewell to the dormancy of the conventional measures of penal policy.

'Plea Bargaining' can be defined as the pre-trial negotiations between the accused and the prosecutor during which the accused agrees to plead guilty in exchange for certain concessions by the prosecutions. The Wikipedia defines it as to make an aggrement in which the defendants plead guilty to a lesser charge and the prosecutors in return drop more serious charges. The object of plea bargaining is to avoid the uncertainity of jury trial, minimize the risk of undesirable results for either side and alleviate the sufferings of the undertrial prisoners awaiting the commencement of the trial. To reduce the delay in disposing criminal cases , the 154th Report of the Law Commision first recommended the introduction of plea bargaining as an alternative method to deal with the huge arrears of criminal cases. As recommended by the Malimath Committee, plea bargaining should be introduced in the criminal justice to facilitate early disposal of criminal cases . The Division b ench of the Gujarat High Court observed in State of Gujarat v. Natwar Harichauji Thakor that the very object of law is to provide easy, cheap and expeditious justice by resolution of disputes , including the trial of criminal cases.

The concept of plea bargaining has been used in the American Judiciary in the 19 th century. Under American criminal jurisprudence, every minute a criminal case is disposed of by way of guilty plea or nolo contendere plea. In a landmark judgment Bordenkircher v. Hayes , the Supreme Court held that the constitutional rationale for plea bargaining is that there is no element of punishment or retaliation so long as the accused is free to accept or object the prosecutor's offer. In countries such as England and Australia , 'plea bargaining' is allowed only to the extent that the prosecutor and the defense can agree that the defendant will plead to some charges and the prosecutor shall drop the remainder for receiving favourable governmental treatment.

Chapter XX1A on Plea Bargaining has been introduced in the Cr.PC, 1973 through the Criminal Amendment Act, 2005. In India, plea bargaining may not be availed in cases punishable with a sentence of more than seven years, or in cases of life imprisonment or death sentence. This provision will also not apply where the offence in question affects the socio-economic condition of the country or has been against any woman or any child below 14 years of age. 'Charge b argaining' and 'Sentence Bargaining' are the two most common forms of plea bargaining practised in the Indian courts. A 'charge bargain' occurs when the prosecutor allows a defendant to plead guilty to a lesser charge that has been filed against him. 'Sentence Bargain' occurs when a defendant is told in advance what his sentence will be, reduced if he pleads guilty. A Sentence Bargain may allow the prosecutor to obtain a conviction to the most serious charge , while assuring the defendant of an acceptable sentence. Section 265-A deals with the applicability of c hapter XX1A of Cr.PC. As per section 265-B, the process of plea bargaining begins with an application from the accused that has to be filed before the trial courts only . If the court feels the eligibility of the accused for plea bargaining then it further proceeds for a settlement giving time to prosecution and accused to work out a mutually satisfactory disposition of the case.

Under section 265H the provision of plea bargaining is not applicable to any juvenile or child. The savings provision under section 265J has extended an independent existence to the chapter, in case of inconsistence with other provisions of the Act.

As held in Pawan Kumar v. State of Haryana , when the accused pleads guilty, the magistrate may not be obliged to write a judgment containing a brief statement of reasons, but the magistrate is not absolved of the obligation to record the substance of the evidence. Otherwise , it would be difficult to conceive as to what could the accused plead to. His plea of guilt is an admission to whatever factual data the prosecution lays before the court about the commission of the offence. Pleading guilty by the accused to the violation of provision of law is no plea at all , as he would have to be confronted with the substance of allegation , in order to enter upon a plea, one way or the other.

Plea negotiation raises substantive legal and constitutional issues. For one thing, common law courts traditionally treated a confession as involuntary when it had been induced by a promise of leniency from a person to an authority. A guilty plea waives the constitutional right to trial and subordinate's trial rights. Some of the critics are of the view that plea bargaining cannot solve the delay in Indian courts, instead it is likely that there might be a dramatic increase in the number of cases where innocent persons will find themselves imprisoned with criminal records. The introduction of Plea Bargaining is similar to treating the symptoms of an illness rather the actual ailment. Inspite of the fact that out of every 100 criminal convictions in the US , nearly 90 come from negotiated pleas , the concept of plea bargaining has been graded as 'bribed testimony' by many critics. Even in India the concept has not been much experimented, there has been several shakes of disapproval . In State of U.P v. Chandrika , the Supreme Court has observed 'It is settled law that on the basis of plea bargaining, court may not dispose of the criminal cases . If the accused confesses his guilt, appropriate sentence will be imposed.....Mere acceptance or admission of the guilt must not be a ground for reduction of sentence.' The system of plea bargaining is posing a threat to one of the most indespensible ingredients of criminal jurisprudence that is the right of the accused to fair trial. Every accused has a right to be heard freely and fairly, without any kind of oppression from either the prosecutor or the investigative agencies. It provides scope for a variety of risks that may include the prosecutor framing the highest charges than normal and an innocent accused might end up getting punished. Critics maintain that plea bargaining results in unwarranted leniency for offenders and that it promotes a cynical view of the legal process.

It is believed that light alone can dispel darkness and darkness alone cannot dispel darkness. A convict is a human being and merely because of conviction, he does not cease to be so. The concept of plea bargaining gives the offender a chance to reform himself by accepting the responsibility of his actions and submitting voluntarily before the law without having an expensive and time consuming trial. Thus keeping in mind the crowded calendars and overburdened prisons in the Indian judiciary, plea bargaining helps to process out offenders and tends to solve the problem of delay in the administration of justice.

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* ICFAI Law School , Dehradun