Guilt & acceptance

Plea bargaining is a unique concept in the legal system that, in certain cases, allows parties to avoid lengthy trials and the risk of conviction on more serious charges. It is basically a process whereby the accused admits part or all of the crime in exchange for a lesser punishment. Needless to say, it should be opted for under appropriate legal guidance.

In 1991, the Law Commission, in its 142nd Report on Concessional Treatment of Offenders who on Their Own Initiative Choose to Plead Guilty, considered the introduction of plea bargaining. Interestingly, the report mentioned the reformative provisions embodied in Section 360 of the Code of Criminal Procedure, 1973, and in the Probation of Offenders Act. The concept of plea bargaining was reiterated in the 154th and 177th reports. In 2003, the Committee on Criminal Justice Reforms, under the chairmanship of Justice VS Malimath, formerly Chief Justice of the Kerala High Court, suggested reforms to the criminal justice system and referred to plea bargaining as well. There were several high-level meetings and discussions on such issues. By way of the Criminal Law (Amendment) Act, 2005, a new Chapter XXIA on Plea Bargaining was introduced in the Code of Criminal Procedure, consisting of Sections 265A-265L.

The positives of plea bargaining include alleviating the burden on courts, which often face a significant caseload. By resolving cases through these provisions, the judicial system can allocate resources and focus on litigation that requires more attention, thereby improving efficiency. Parties can avoid the lengthy process of trials and appeals. The costs and time of litigation are minimised, which is a huge pro. It is a positive, rectifying approach for the accused and provides compensation to victims in many cases.

However, it is not applicable to all kinds of offences. Lawmakers have been extremely cautious while drafting such provisions. Plea bargaining is applicable to offences for which the maximum punishment is imprisonment for seven years or less. It does not apply to offences punishable by death, life imprisonment, or imprisonment for a term exceeding seven years. It also cannot be used in offences that affect the socio-economic condition or where the offence is committed against a woman or a child below 14 years of age, and other similar conditions.

The Central Government has determined the offences under the following laws that shall be considered as affecting socio-economic conditions: the Dowry Prohibition Act, 1961; the Commission of Sati Prevention Act, 1987; the Indecent Representation of Women (Prohibition) Act, 1986; the Immoral Traffic (Prevention) Act, 1956; the Protection of Women from Domestic Violence Act, 2005; the Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992; provisions of the Fruit Products Order, 1955 (issued under the Essential Commodities Act, 1955); provisions of the Meat Food Products Order, 1973 (issued under the Essential Commodities Act, 1955); offences with respect to animals that find place in Schedule I and Part II of Schedule II, as well as offences related to altering boundaries of protected areas under the Wildlife (Protection) Act, 1972; the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989; offences mentioned in the Protection of Civil Rights Act, 1955; offences listed in Sections 23 to 28 of the Juvenile Justice (Care and Protection of Children) Act, 2000; the Army Act, 1950; the Air Force Act, 1950; the Navy Act, 1957; offences specified in Sections 59 to 81 and 83 of the Delhi Metro Railway (Operation and Maintenance) Act, 2002; the Explosives Act, 1884; offences specified in Sections 11 to 18 of the Cable Television Networks (Regulation) Act, 1995; and the Cinematograph Act, 1952. Thus, there are many statutes and offences to which the concept is not applicable.

Overall, the concept of plea bargaining in India is a positive middle path and has been brought about as a holistic view for a reformative approach. At the same time, the exceptions and non-applicability of provisions to certain offences keep the deterrent approach intact. With some more clarity and development, several more issues can be streamlined.

The writer is a practising Advocate in Supreme Court and High Court of Delhi. Views expressed are personal