Saturday, 1 July 2017

Shloka Suda

PLEA BARGAIN AS AN INCLUSION IN THE CRIMINAL JUSTICE SYSTEM

http://www.lawji.in/2017/07/plea-bargain-as-inclusion-in-criminal.html
Whenever an accused is faced with criminal charges , he has only one goal ,which is , to be found innocent at trial , and being acquitted. In case that’s not possible least the defendant is expected to do is minimise the potential penalty .It is impossible to predict what the jury will decide but when the case starts to slip out of the defendants hands is when they choose to enter into a plea bargain agreement with the prosecution.

Definition of Plea Bargaining
The Plea bargain (also plea agreement, plea deal, copping a plea, or plea in mitigation) is defined in black’s law dictionary as“the process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant’s pleading guilty to a lesser offence or to only one or some of the of a multi-count indictment in return for a lighter sentence than that possible for the graver charge.”

It can be described as the process in which the accused bargains with the prosecution for lesser punishment.“plea bargaining” falls in two categories; first being “charge bargaining” which gets the prosecutor to reduce or dismiss some of the charges brought up against the defendant in exchange for a guilty plea. The other category , “sentence bargaining” refers to a promise by the prosecutor to recommend a specific sentence or to refrain from making any sentence recommendation in exchange for a guilty plea.

When both sides agree on a plea bargain then the plea bargain agreement is stated on the court record before a judge who then issues the agreed upon sentence. Both parties are then required to follow up with the agreed upon disposition of the case.

Plea bargaining in India
The concept of plea bargaining was introduced in India Criminal Justice System in the year 2005 by means of Criminal Law (Amendment) Act, 2005. By this amendment, a new Chapter XXI A has been introduced in the Code of Criminal Procedure. It allows plea bargaining for cases in which the maximum punishment is imprisonment for 7 years; however, offences affecting the socio-economic condition of the country and offences committed against a woman or a child below 14 are excluded.

The government was hesitant on taking the decision to introduce plea bargaining in the criminal justice system due to opposition from legal experts, judiciary , etc. It was nevertheless introduced with the intention to reduce delay in disposing criminal cases. The first recommendation for the introduction of plea bargains, as an alternative method to deal with huge arrears of criminal cases , was seen in the 154th report of the law commission. The “malimath committee report” was the first step towards the introduction of plea bargaining.

The NDA government had also formed a committee , headed by former chief justice of the Karnataka and Kerela High Court , Justice V.S. Malimath to tackle with the problem of pendency of cases in courts. The Malimath committee also laid huge emphasis on the fact that the plea bargaining system was very successful in the U.S.A.

The Pros and Cons of Plea Bargaining
For the accused , plea bargaining can be seen as a great way to minimize the sentence and take away the uncertainty of a criminal trial. The society also benefits from plea bargaining since the arguments lessen and the court congestion frees up prosecutors to handle more cases.

When talking about drawbacks, the first and most major drawback is for the innocent defendant who decides to plead guilty to a lesser charge in order to avoid the risk that he or she will be found guilty at trial.

In addition to that , some legal experts also argue that plea bargaining has led to degradation in the quality of police investigations and also attorneys who no longer want to take the time to prepare the case, rather just want the easy way out. Instead of pursuing justice parties rely on settling the case without having to go through the stress of a trial. The legal consequences are given less value as the matter is decided between the parties to suit suit their best interest.

Some may also argue that plea bargaining is unconstitutional because it takes away a defendant’s constitutional right to a trial by court . If the defendant is coerced or pressured into a plea bargain agreement then this argument may have weight. However, if the defendant, at all times in the criminal case, retains the right to a trial by jury without pressure to make an agreement then the courts have found that plea bargaining remains constitutional.

Conclusion
Plea bargaining has both its merits and demerits, but it has been established that it speeds up the process of the court to a great extent, in a country with as many pending cases as India it is definitely a step in the right direction , maybe in a unconstitutional manner yet still only time will really tell if the introduction of this new concept is justified or not.