The Criminal Procedure Code of India has been amended to include a provision for plea bargaining with effect from 7 June 2006. The new chapter in the statute, Chapter XXI A, allows plea bargaining to be used in criminal cases where the prescribed maximum punishment is below seven years. Plea bargaining is not allowed in cases where the victim is aged under 14 or where the crime committed is against a woman or likely to affect the socio-economic condition of the country. There are also provisions in the amendment aimed at ensuring the voluntariness of the accused before accepting a plea of guilt.
Notwithstanding, the Asian Human Rights Commission (AHRC) is deeply concerned about the introduction of plea bargaining to India. While the purpose of the new provision is ostensibly to reduce the long waits for trials endured by most accused, it will not have this effect. Even if it is taken for granted that the provision aims to reduce delays in trial procedures in Indian courts then the introduction of plea bargaining is similar to treating the symptoms of an illness rather than the actual ailment.
It is true that thousands of under-trial prisoners are languishing in prisons throughout India, but what are the reasons for this? In many cases delays are caused by failed investigations, or because evidence and witnesses fail to be produced in court. Even if everything is in order there are simply not enough mechanisms available to try a person. For example, there are not enough courts to deal with the huge number of cases pending. There is a shortage of public prosecutors due to a backlog in appointments, and government forensic facilities are an abject failure.
These are the obstacles to fair and speedy trial that the government should be trying to address if it is concerned to reduce delays in criminal procedures. By contrast, the introduction of plea bargaining is a shortcut aimed at quickly reducing the number of under-trial prisoners and increasing the number of convictions, with or without justice. The consequences will be felt most obviously by the countless numbers of poor languishing in the country’s prisons while awaiting trial. Those persons will now be pressed to plead guilty in exchange for shorter sentences.
In 2003 the by-now infamous Malimath Committee made a set of deeply regressive proposals for changes to the criminal justice system of India. The committee, which was headed by retired Justice Malimath, was strenuously criticised for trying to bend basic principles of criminal law, including the presumption of innocence and right to silence. It even suggested an amendment to the constitution to implement these measures. Faced with immense opposition from human rights groups, lawyers and other concerned parties inside and outside India, the then-government shelved the committee’s recommendations.
The introduction of plea bargaining is the ghost of Malimath coming back to haunt India. It appears that the government may seek to bring in his committee’s recommendations one by one. As its recommendations started from wrongheaded notions, the consequences of their introduction–be it one at a time or collectively–can only be disastrous. The committee started from the ill-founded premise that the lack of convictions in criminal cases is due to improper laws. Therefore, it suggested changes to laws to ensure more convictions. Sure enough, if its proposals are now pushed through piece by piece, there will be more convictions. But they will come at the expense of time-honoured and universally-accepted basic principles of criminal law.
It is correct to argue that several countries have incorporated plea bargaining into their criminal law jurisdictions. However, these countries also have functioning justice dispensation systems, where investigating agencies and the courts have sufficient safeguards to prevent gross miscarriages of justice. Even then, in the United States plea bargaining has proved to be highly problematic. The media and rights groups there have reported on large numbers of cases where the accused have been pressured to admit guilt or have been forced to bear the expenses of employing a defence attorney. Needless to say, most of the victims of such systemic abuse are poor. In the US, the authorities are now considering how to remove or limit the use of plea bargaining. Strangely, India, which has a completely defective and broken-down justice system with none of the resources and sophistication of its counterpart in the US, is moving blindly in the opposite direction. To do so ignores the realities of its law enforcement agencies and courts.
The plea bargaining provision may also have dramatic side-effects in cases involving state officers accused of human rights abuse. Take cases of torture. Custodial torture, which is rampant in India, is yet to be made a crime. An Indian police officer accused of torturing a person in his custody may instead only be tried for other offences, such as those punishable under sections 323, 324 or 330 of the Indian Penal Code. The punishments for these offences are well within the limit prescribed for punishment under the new law on plea bargaining. This means that the new law may allow torturers to escape with even lighter penalties, despite the fact that their offences fall into the gravest categories under international law.
Plea bargaining will not solve the delays in India’s courts, and is instead likely to dramatically increase the number of cases where innocent persons find themselves imprisoned and with criminal records. The Indian police are well-known for booking poor innocent victims for crimes that they never committed, often after being paid off by the actual perpetrators. In fact, the majority of under-trial prisoners in India are likely to belong to this category. With the introduction of plea bargaining, these persons will be getting pushed from one dark place to the next without the benefit of ever having a day in court or seeing a judge before whom to plead a case. This so-called measure to speed up justice will only speed up miscarriages of justice. And if it is the first of the Malimath Committee recommendations to be brought through one by one, via amendments to the existing criminal law, then this will be a tragedy for India’s already degraded criminal justice system, its vanishing rule of law and the wrongly accused wasting away in its jails.
