Criminal Justice Reforms will Make Plea Bargaining Effective in Reducing Pendency of Cases

Amodern Indian judicial system in the form of civil and criminal courts started evolving during British rule.

The traditional system of justice in India had been largely based on customary law which arose from the long tradition and practices. Many laws were based on the Shastras and the Shariat. However, the British gradually evolved a new system of laws.

The British established a new system of laws through the processes of enactment and codification of old laws. They introduced regulations that codified the existing laws and often systematised and modernised them through judicial interpretation.

After Independence, our leaders adopted the justice delivery system set by the Britishers. The Constitution of India is mostly adopted from the Government of India Act, 1935 with certain modifications and additions, particularly the most important part, i.e, Part III on fundamental rights. Criminal and civil laws that were codified by the Britishers were adopted with a rider provided in Article 13 of the Constitution, i.e, any law will be invalid to the extent it violates fundamental rights.

One of the major achievements after independence was that over a period, justice became accessible to a larger population. Even common persons started thinking of approaching courts against the injustice meted to them in hands of state or private persons.

This achievement of ensuring access to justice to the common man was not complemented with the increase or enhancement in infrastructure and modernisation of the justice delivery system.

The courts continued functioning in the same manner and in most cases in the same infrastructure created by the Britishers. No concrete efforts were made to practically enhance the slow speed proceeding of the civil cases.

Of course, certain amendments were made in the civil laws to increase the speed of civil proceedings but those were either not enough or were not effectively implemented.

Resultantly, slowly the courts were overburdened with pending cases, especially civil cases. Effect of pendency and slow civil proceedings started reflecting on criminal courts. Along with genuine criminal cases, people started adopting a shortcut route to settle the civil and land disputes by filing cases with allegations of criminal offences. Such criminal cases are used to pressurise the accused persons for compromising the civil and land dispute. Thus, with the passage of time, even criminal courts are burdened by such cases that arise out of civil and land disputes.

From the way it was introduced and the response it received from the stakeholders; it cannot be said that it was introduced to seriously tackle the problem of pendency of cases in the courts.

The government created additional infrastructure and enhanced the strength of judges over a period of time but somehow those were not enough to meet the need of the justice delivery system.

The Government of India established the Law Commission of India,  for suggesting legal reforms regularly so that necessary changes could be made with changing times. The Law Commission in its 142nd Report, 154th, and 177th reports advocated the idea of introducing the concept of plea bargaining in the Indian Judicial system. Further, the Report of the Committee on the reform of the criminal justice system, 2000 under the Chairmanship of Justice (Dr.) Malimath also advocated that the experience of the United States is evidence of plea bargaining being an efficacious tool for the disposal of accumulated cases and expediting the delivery of criminal justice in India.

Plea bargaining was already a successful concept. In the United States, an overwhelming rate of around 95% of criminal convictions is reached by using a plea bargain known as negotiated pleas. The system of pre-trial negotiations has been a successful method of avoiding protracted and complicated trials. Resultantly the conviction rates are significantly high in the US.

Plea bargaining is permitted in the legal system of England and Wales. They follow the principle that the earlier a guilty plea is entered, the greater the discount to the sentence is granted.  In England and Wales, around 92% of convictions come through plea bargains. While in the British crown courts only 14.3% of cases proceed for trial, the remaining ones opt for a plea bargain.

However, the concept of confession, pleading guilty, admission, compounding of certain offences were already existing in our laws but plea bargaining or pre-trial negotiations between accused and prosecution was neither accepted nor encouraged. In fact, such attempts were seen as an interference in the justice delivery system.

But probably the delays in criminal cases gave reason to introduce the phenomenon called plea bargaining in India.

Plea bargaining in India has been inserted by the Criminal Procedure Code (CrPC) Amendment Act of 2005. From the way it was introduced and the response it received from the stakeholders; it cannot be said that it was introduced to seriously tackle the problem of pendency of cases in the courts.

Unfortunately, even after the introduction of provisions of plea bargaining in the procedural law, no serious efforts were made by the stakeholders of the justice delivery system, who were responsible to offer this to the parties.

Plea bargaining refers to concession for a person charged with a criminal offence. An accused person can negotiate with the prosecution for a lesser punishment than what is provided in law by pleading guilty to a less serious offence.

Through the introduction of Chapter XXI-A, containing Sections 265A to 265L, in CrPC, India incorporated the system of ‘Plea Bargaining’ in the criminal justice delivery system.

Some of the salient features of ‘Plea Bargaining’ in India are that it is applicable in respect of those offences for which punishment is up to a period of 7 years. Moreover, it does not apply to cases where the offence committed is a socio-economic offence or where the offence is committed against a woman or a child below the age of 14 years.

Unfortunately, even after the introduction of provisions of plea bargaining in the procedural law, no serious efforts were made by the stakeholders of the justice delivery system, who were responsible to offer this to the parties.

NGOs, stakeholders in the justice delivery system, governments, the public, and the media kept highlighting the issue of pendency of cases in Indian courts for decades. But no serious efforts were made to learn from other countries who have successfully delivered justice to its public by using the provisions of plea bargaining.

The introduction of Nyay Mitra system at the village level could have been used for introducing the people to the provisions of plea bargaining. This could have led to the disposal of thousands of cases at the pre-trial stage, consequently, offloading the burden of both old, stale cases from the courts as well as reducing the flood of new cases in the already overloaded courts.

Till the outbreak of the COVID-19 pandemic, modernisation of the courts and overall justice delivery system was on the back burner. The pandemic literally stopped the functioning of overburdened and overcrowded courts. In a hush-hush manner, modernisation of courts started with e-courts being introduced. But when the infrastructure for physical courts could not be enhanced for ensuring the fundamental right of speedy justice to people than with almost zero infrastructure for e-courts and no proper and formal training to judges, staff and lawyers, the fate of e-courts can be easily imagined.

The urgent need now is to overhaul the old and sedentary justice delivery system. The Supreme Court and High Courts on the administrative side in record time created a system for delivery of justice looking at them with hope. However, courts have their own limitations due to extraordinary and unprecedented situations.

Legal researchers, luminaries and other stakeholders are struggling to find ways to uphold the fundamental right of access to speedy justice to all which is also the spirit of our constitution.

 It is not that the American system of plea bargaining should be adopted in toto but the system can be adopted by making necessary amendments that suit the needs of Indian people and can be used to protect the fundamental rights of both victim and accused.

In such an extraordinary situation, I feel the provisions of plea bargaining can be looked at with great hope. There can be expectations to rescue the justice delivery system from the current situation and consequently, strengthening the faith of the public in the justice delivery system.

The scope and area of provisions of plea bargaining need to be enhanced. The provisions not only can rescue the courts from the burden of such cases but will also increase the conviction rate in genuine matters. Thus, on one hand, the victim or aggrieved party will get speedy justice. On the other hand, the accused will not have to face incarceration in jail as an undertrial for several years before the final decision arrives.

From the review of judgements passed by Indian Courts pre as well as post amendment, it appears that plea bargaining is in a poor state in the Indian criminal justice system. Before the Criminal Law Amendment Act 2005, almost all the plea bargain cases were rejected by the courts. The situation changed after the amendment in the year 2005 to some extent but still, the judiciary has a mixed approach towards this valuable addition to the criminal law justice system.

By all standards, it is a grossly underutilised provision.

The need of the hour is to study the American Model of plea bargaining which is used for disposal of 95 percent of cases in America. Due to limited applicability and little awareness of the provisions among the general masses, the Indian system with about three crore pending cases has not benefitted much from the provisions.

It is not that the American system of plea bargaining should be adopted in toto but the system can be adopted by making necessary amendments that suit the needs of Indian people and can be used to protect the fundamental rights of both victim and accused.

The law relating to plea bargaining should be encouraged by the judiciary and the other stakeholders without which this law cannot become a common and efficacious remedy.

The law relating to plea bargaining should be given importance. It should be practiced regularly to address the problems of overburdened courts regarding the pendency of cases.

While the strengthening and strict implementation of perjury laws can also prove an effective tool to curb the flood of cases and pendency of cases. In the present situation, plea bargaining seems to be an urgent and near solution to address the problem of pendency of cases.

(Shama Sinha is an Advocate on Record in the Patna High Court. She likes to provide free legal aid to the needy and conducts legal camps in remote areas to bring awareness about fundamental rights and duties.  Views are personal.)

Originally Published in The Leaflet