The introduction of plea bargaining is an important start to judicial reform. This will singularly reduce the backlog of cases that has paralysed our justice mechanism. Though largely unnoticed, the Indian government has initiated a momentous judicial reform. In July, it amended the Code of Criminal Procedure to allow criminal offenders to plea bargain — that is, admit their crime in exchange for a lighter sentence. If it gets going, the reform could reduce the enormous backlog of cases in our courts. Of around three crore cases clogging the courts, 1.81 crore are criminal cases. Tens of thousands of these criminal cases could vaporise with the plea bargain reform.
Many criminal undertrials, in jail and outside, could choose to plead guilty for two reasons. One, a guilty plea will get them only one-fourth the jail sentence prescribed for their offence. Two, it would save them the nightmare of an endless trial.
The same advantages of plea bargaining may also prompt fresh offenders to admit their guilt and settle out of court. This happens routinely in the United States. Ninety per cent of criminal offences there do not reach the trial stage. They are settled through plea agreements between lawyers representing the State and the defendant, in the presence of a judge.
America’s experience shows that plea bargaining benefits both the State and the criminal offender. The State saves time, money and effort in prosecuting criminal suspects, while the latter get a lenient punishment by pleading guilty. Only 10 per cent of criminal cases come up for trial in the US.
With the absence of plea bargaining in our judicial system, an avalanche of prosecutions has caused a judicial collapse. Figures tell the story. In the US, it takes 10 months to dispose of a criminal case, from the filing of the case to the conviction or acquittal. In India, 10-year-old unresolved cases number 11.3 lakh in our lower courts and 6.14 lakh in the high courts. Our justice system has turned into a farce.
Take the worst crimes like murder, manslaughter, rape or kidnapping. In India, two out of three individuals charged with these crimes are acquitted. In the US, the conviction rate is around 90 per cent for every offence, from murder, robbery to auto-theft. Contrast that with our 28 per cent conviction rate for kidnapping and 34 per cent for burglary.
To be fair, the Indian judiciary isn’t solely to blame for its collapse. No justice system can prosecute every infraction of the law as India ends up trying to do. Around 66 lakh people are arrested every year in India for offences under the Indian Penal Code and under local and special laws. No justice system can put 66 lakh individuals through a lengthy court trial. Yet the Indian State does exactly this, mindlessly going after even small offenders who may have stolen Rs 50.
In contrast, plea bargaining is an effective, speedy and low-cost arbitration that gives justice to criminal undertrials. Otherwise, why would they opt for it?
Sadly, in some respects, India’s plea bargain reform doesn’t go far enough. The reform hems itself with unnecessary conditions. Plea bargaining is disallowed for three kinds of offences. One, for offences against women and children under 14. Two, for offences of a ‘socio-economic’ nature, like the violation of the Food Adulteration Act. And three, plea bargaining isn’t permitted for any offence that attracts over seven years in jail. Contrast this with the US, which permits plea bargains for every kind of offender. If, say, Pramod Mahajan’s murder had taken place in the US, the public prosecutor would have told his brother, Pravin Mahajan, that plea bargaining for a life sentence lay in his interest, as a court could hand him the death sentence.
In fact, 90 per cent of murder cases in the US are settled out of court. But in India, the nearly 66,000 people arrested for murder in 2003 will go through never-ending trials where two-thirds of them will be acquitted.
Endless court delays will reduce once the plea bargaining reform reduces the backlog paralysing our courts. Strangely, the Indian legal fraternity and media have been silent on the kind of promise the reform holds.