Hon’ble Justice (Retd.) J D Kapoor Delhi High Court

Though the terminology ‘plea bargaining’ in criminal jurisprudence does not augur well so far as the concept of justice is concerned, but it still has its own advantages and disadvantages. In criminal matters, the accused is almost incarcerated much before trial and on most of the occasion, the testimony of witnesses to the crime is rendered ineffective due to lapse of time.

The main object of introducing the ‘plea bargaining’ or ‘plea negotiation’ is to reduce the huge backlog and rocketing docket of criminal cases, most of which are highly innocuous and less serious but more time consuming and therefore, this doctrine should be only applied in respect of those cases, which are not of serious nature and can be visited with fine, or imprisonment, or both.

In order to ensure that an innocent does not plead guilty under coercion and his Constitutional right of fair and expeditious trial is taken care of, the doctrine of ‘plea negotiation’ or ‘plea bargaining’ should always be on the advice of the court including the charge reduction as is prevalent in USA, that the prosecutors, lawyer and the accused enter into an agreement. This process needs to involve intensive selectivity and not over zealousness of the court to reduce the number of pending cases.

As a mater of fact, this process involves case management techniques and studies show that when trial judge intervenes personally at an early stage, i.e. pre-trial steps, the case is disposed of by settlement with less acts and less delay than the situation takes, when the matter is left to the prosecutor, lawyer and the accused. Such a step alone can prove the usefulness of this doctrine.

Some of the advantages that it provides are that the defendant stands a big chance of receiving a lighter sentence than he would get after a full trial. Plea bargaining is cost-effective as well as an expeditious remedy. While on one hand, work pressure of the prosecutors and judges is reduced, at the same time, the reformation and rehabilitation of the offender becomes speedier.

Talking of advantages, some serious threats cannot be lost sight of. It is argued that decision of a case should be on merits and not on the basis of plea bargaining. There cannot be denying the fact of coercion in inducing false guilty pleas or accused pleading guilty to avoid the police and prosecution pressures, or the time period involved in a full trial. At times, the court’s importance is undermined by giving more weightage to accused’s plea and prosecution’s success in achieving it. Further, the fundamental presumption of accused’s innocence is denied. The provision of plea bargaining is silent on withdrawal of plea which may worsen the condition of the accused and may hamper the impartial trial of the case.

The problem can be tackled by improving the resource base of all criminal courts. Many hurdles will be avoided by plea bargaining, but this concept has failed to enthuse much confidence, as there are not sufficient safeguards to check its fallacies. It may also go against public policy, as crime is a public wrong whose decision will be made by a compromise between the accused and the victim. At the same time, it is a major reformative and progressive step.

Vikas Gupta reiterates “The future of this concept largely depends on adequate compensation to the victim, fairness, and honesty of the prosecutor and leniency of the courts. Great negotiating skills of the accused as well as the lawyer shall play a dominant role in quantifying the compensation paid to the victim and the minimum punishment awarded to the accused by the courts.

Speedy disposal of millions of cases and pending criminal trials in various courts in India shall create an environment of stability in Indian courts and shall repose faith and instil confidence in the fading judicial system.

Plea Bargaining is here to stay for a very long period of time. It is indeed a great and a laudable piece of legislation in the interest of a large number of litigants suffering at the hands of the system. It is a great responsibility on part of the accused, victim, prosecutor and above all, the courts to make it a success in times to come.”