A Deviation from the Former Adversarial Trial: The Concept of Plea Bargaining and its Contemporary Relevance

Abstract

In its most conventional and general sense, plea bargaining refers to pre-trial negotiations between the prosecution and the defence during which the accused agrees to plead guilty in return for certain concessions promised by the prosecutor: usually to drop or reduce some charges, or to recommend a specific sentence or to refrain from making any sentence recommendation. Since ultimately both affect the dispositional phase of the criminal proceedings by affecting the sentence, plea bargaining in this project will be taken to imply the waiver of the right to a trial in exchange for reduction in sentence.Plea bargaining is widely resorted to in the United States of America, so much so that ninety to ninety five percent of the criminal cases end with negotiated agreements rather than courtroom trials. By virtue of the Criminal Law (Amendment) Act, 2005, plea bargaining has been introduced in India by way of insertion of Chapter XXIA into the Criminal Procedure Code of 1973 [hereinafter Cr. P.C.], which has come into effect from July 5, 2006.The introduction of plea bargaining in the Indian criminal justice system is largely a response to the deplorable status quo, reflected in the delay in disposal of criminal cases and appeals, the huge arrears of cases and the appalling plight of under trial prisoners in jails. Critics of the plea bargaining system, however, allege that the system leads to excessive and undeserved leniency in the sentencing of admitted criminals, dilutes the deterrent effect of law and is coercive insofar as it induces the accused either to plead guilty in return for a lighter sentence or to waive the right to a trial in return for some other advantage. Others simply contend that the outcome of a criminal case should not be affected by lack of resources and that haggling over the price of a guilty plea is in principle wrong.No doubt efficiency and speedy disposal of cases are important and desirable goals. The question that is considered in this note is whether they are worth the perceived costs of plea bargaining. To this end, an attempt is made to examine whether there is any inherent impropriety in the system of plea negotiation, as also to understand the Indian avatar of plea bargaining and appraise it in view of the traditional objections to any system of plea bargaining.