Plea bargaining: violation of fundamental

rights

Submitted in partial fulfilment of the requirements

For the award of the degree B.Com. LL.B. (Hons)

Submitted by

M. Vishal Anand
Registration No.Bc0150033

Submitted to

Professor: Nikita Pattajoshi

TAMIL NADU NATIONAL LAW SCHOOL

TIRUCHIRAPPALLI 620 009

Synopsis
1. Introduction
2. Meaning
3. History of plea bargaining in india
 4. Objectives of plea bargaining
5. Types of plea bargaining
6. Procedure for plea bargaining
7. Plea bargaining happen in following ways
8. Fundamental rights of india
9. Plea-Bargaining: Is violative of Constitution?
10. Exceptions
11.Drawbacks of plea bargaining
12.When Plea Bargains are Made?
13.The unconstitutional conditions doctrine
14.Relevant case laws
15.conclusion

Decleration:

I,M.VISHAL ANAND do hereby declare that the project entitled PLEA

BARGAINING: A VIOLATION OF FUNDAMENTAL RIGHTS submitted to
Tamil Nadu National law school in partial fulfilment of requirement of award of
degree in undergraduate in law is a record of work done by me under the
supervision and guidance of Professor Nikita Pattajoshi department of
Constitutional Law, Tamil Nadu National law school and has not formed basis for
award of any degree or diploma or fellowship or any other title to any other
candidate of any university.

M.VISHAL ANAND
B.Com. LL.B ( Hons )
 Abstract
In this article I have tried to discuss about PLEA BARGAINING , which is said to be as
An agreement as a result of negotiation between the prosecution and defense (at time, also the
judge) which settles a criminal case, usually in exchange for a more lenient punishment. Then
this is about how it gets violated by fundamenta rights.

Objective
The objective of this research is to find out about plea bargaining and violation of fundamental
rights.

Research methodology

The methodology used in order to fulfil the objective and deriving conclusions is secondary, i.e.
the research is based on articles published online either in journals or various blogs and websites.
With the help of the above the topic has been researched thoroughly and inferences have been
drawn based on the findings of various scholars.
 PLEA BARGAINING: A VIOLATION OF FUNDAMENTAL
RIGHTS

INTRODUCTION

An agreement as a result of negotiation between the prosecution and defense (at time, also the
judge) which settles a criminal case, usually in exchange for a more lenient punishment.
Typically the defendant will plead guilty to a lesser crime or for a more fewer charges than
originally charged, in exchange for a more lenient punishment than the defendant would get if
convicted at trial. It is seen as a win-win for all the parties as the prosecution has a certain
conviction on the record, the defendant is provided a more lenient sentence than the risk of a
higher one at trial and the judge is freed to move to other cases and dispute to resolve. Plea
Bargaining can conclude a criminal case without a trial. When it is successful, Plea Bargaining
results in a plea agreement between the prosecutor and defendant. In this agreement, the
defendant agrees to plead guilty without a trial, and, in return the prosecutor agrees to dismiss
certain charges or make favorable sentence recommendation to the court. Plea Bargaining is
expressly authorized in statutes and in court rules.

RESEARCH QUESTION
1. Whether plea bargaining is constitutional or unconstitutional in accordance
to the Indian Constitution?
MEANING
Plea Bargaining can be described as a process whereby the accused may bargain with the
prosecution for a lesser punishment. In simple words, Plea Bargaining is an agreement (contract)
between the accused and the prosecution regarding disposition of the criminal charge leveled by
the prosecution against the accused. In laymans language, it is bargaining done by the accused
of a serious and severe offence, with the authority for a lighter punishment in lieu of a full
fledged trial.1

History of Plea Bargaining In India

As far as India goes, the country has a long history of opposing the introduction of plea
bargaining. The practice of plea bargaining was considered unconstitutional, illegal and immoral
1 Supra n 3
as far as criminal trials are concerned. The legality of this procedure and its usefulness was for
the first time realised in State of Gujrat v. Natwar Hachandji Thakor.

In Chandrikas case, The Court held Plea Bargaining to be an immoral compromise in criminal
trials and was for a long time held to be against public policy in the criminal justice system,
although it may be allowed in a civil case. The Court held that the sentencing of a person must
be decided only on the merits of the case. The fact that the accused has pleaded guilty should not
be a reason to award him a lesser sentence. The Court said that accepting plea bargains is against
the interest of the victim and the society at large. It only serves to satisfy the shallow
requirements of the culprit who does not want to face the horror of an Indian Jail, the prosecutor
who does not want to make multiple trips to the Court filling revisionary appeals and the
overworked trial magistrate is more than happy to accepts these sub rosa ante room
settlements as he is burdened by a docket of cases. It was widely recognized stated that if the
Courts wanted to be lenient with the accused they could grant a lighter sentence but entering into
a bargain for money was completely looked down upon. In the case of Kachhia Patel
Shantilal v. State of Gujrat, the Court strongly disapproved of plea bargaining and went to the
extent of stating that it would encourage corruption, collusion and pollute the front of justice.
Therefore, for a long time it was settled law that plea bargaining could not be used to dispose of
criminal cases, the Court has to decide the case on its merits and if the accused pleads guilty the
Court has to impose the appropriate sentence.2

Objectives of Plea Bargaining

(i) To reduce the arrears of criminal cases pending in the criminal courts in India
for a long time which could not be decided by the courts due to technicalities
involved and the cumber some process of trial of the offence being non-
compoundable.
(ii) To decrease the number of under-trial prisoners languishing in jail even for
longer terms than punishment prescribed in law for the offences and
overcrowding the jails there-by reducing burden on the state exchequer.
(iii) To make provision of compensation to the victims of crime by the accused,
who has suffered loss due to the offence committed against his person or
property by the accused.
(iv) To cut delays in the disposal of criminal cases.

2 154th report, Law Commission of India.The code of criminal procedure,1973,154.70

Applicability: Plea Bargaining may be applied to only in the cases of offences other than the
offence for which the punishment for death or imprisonment for a term exceeding seven years
are prescribed. Requests for plea bargaining can be initiated only at the stage of cognizance of
the offence by the court. In the positive sense all offences for which punishment up to seven
years has been provided under the law in force are covered under the law of plea bargaining.

Types of Plea Bargaining3

Plea bargaining can mainly be classified into three types:

1. Charge Bargaining

This is common and widely known form of plea. It involves a negotiation of the specific charges
(counts) or crimes that the defendants will face at trial. Usually, in return for a plea of guilty to
a lesser charge, a prosecutor will dismiss the higher or other charge(s) counts. For example: A
defendant charged with burglary may be offered the opportunity to plead guilty to attempt
burglary.

2. Sentence Bargaining

Sentence bargaining involves the agreement to a plea of guilty (for the sated charge rather then a
reduced charge) in return for a lighter sentence. It sources the prosecution the necessity of going
through trial and proving its case. It provides the defendant with a opportunity for a lighter
sentence.
3. Fact Bargaining

The least used negotiation involves an admission to certain facts (stipulating to the truth and
existence of provable facts, thereby eliminating the need for the prosecutor to have to prove
them) in return for an agreement not to introduce certain other facts into evidence.

Procedure For Plea Bargaining

Plea Bargaining can happen in a number of ways:

The Law Commission of India advocated the introduction of plea bargaining in India (even
though the Supreme Court vehemently opposed it) in its 142 nd, 154th and 177th reports. The
Criminal Law (Amendment) Act of 2005 introduced a chapter XXI A into the Criminal

3 Scott R E and stuntz w.J.,Plea bargaining as contract,The Yale law Journal

Procedure Code, 1973. This came into effect on 5 th July 2006.TIt allows plea bargaining to be
used in the following circumstances

2. Only for those offences that are punishable with imprisonment below 7 years.

3. If the accused has been previously convicted for a similar offence by any court, then
he/she will not be entitled to plea bargaining.

4. Plea Bargaining is not available to offences which might affect the socioeconomic
conditions of the country. For eg, for offences under the Dowry Prohibition Act, 1961,
Commission of Sati Prevention Act, 1987, Juvenile Justice (Care and protection of
Children) Act, 2000

5. It is also not available if the offence if committed against a woman or child below 14
years.

6. Plea Bargaining is not available for serious offences such as murder, rape.

Plea Bargaining Can Happen In the Following Ways

1. Withdrawal of one or more charges against an accused in return for a plea of guilty

2. Reduction of a charge from a more serious charge to a lesser charge in return of a plea
of guilty

3. Recommendations by prosecutor to sentencing judges for lesser sentence in lieu of

plea of guilty.

FUNDAMENTAL RIGHTS OF INDIA

Fundamental Rights is a charter of rights contained in the part three Constitution of India. It
guarantees civil liberties such that all Indians can lead their lives in peace and harmony
as citizens of India. These include individual rights common to most liberal democracies, such
as equality before law, freedom of speech and expression, and peaceful assembly, freedom to
practice religion, and the right to constitutional remedies for the protection of civil rights by
means of writs such as habeas corpus. Violation of these rights result in punishments as
prescribed in the Indian Penal Code or other special laws, subject to discretion of the judiciary.
The Fundamental Rights are defined as basic human freedoms that every Indian citizen has the
right to enjoy for a proper and harmonious development of personality. These rights universally
apply to all citizens, irrespective of race, place of birth, religion, caste or gender. Aliens (persons
who are not citizens) are also considered in matters like equality before law. They are
enforceable by the courts, subject to certain restrictions. The Rights have their origins in many
sources, including England's Bill of Rights, the United States Bill of Rights and France's
Declaration of the Rights of Man.
The seven fundamental rights recognized by the Indian constitution are

I. Right to equality: Which includes equality before law, prohibition of discrimination on

grounds of religion, race, caste, gender or place of birth, and equality of opportunity in
matters of employment, abolition of untouchability and abolition of titles.

II. Right to freedom: Which includes freedom of speech and expression, assembly,
association or union or cooperatives, movement, residence, and right to practice any
profession or occupation (some of these rights are subject to security of the State, friendly
relations with foreign countries, public order, decency or morality), right to life and
liberty, protection in respect to conviction in offences and protection against arrest and
detention in certain cases.

III. Right against exploitation: Which prohibits all forms of forced labour, child labour and
traffic of human beings

IV. Right to freedom of religion: Which includes freedom of conscience and free profession,
practice, and propagation of religion, freedom to manage religious affairs, freedom from
certain taxes and freedom from religious instructions in certain educational institutes.

V. Cultural and Educational rights: Preserve the right of any section of citizens to conserve
their culture, language or script, and right of minorities to establish and administer
educational institutions of their choice.

VI. Right to constitutional remedies: Which is present for enforcement of Fundamental

Rights.
Fundamental rights for Indians have also been aimed at overturning the inequalities of pre-
independence social practices. Specifically, they have also been used to abolish untouchability
and thus prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth.
They also forbid trafficking of human beings and forced labour (a crime). They also protect
cultural and educational rights of ethnic and religious minorities by allowing them to preserve
their languages and also establish and administer their own education institutions. They are
covered under articles 14 to 32 of the Indian constitution.

Plea-Bargaining: Is violative of Constitution?

Article 14:
The plea-bargaining has in fact created an arbitrary and unreasonable classification between two
similarly situated individuals. And the sole criterion for such distinction seems to be nothing but
the ability of a person to compensate the victim (necessarily by paying money) and the disability
of another person to do the same. This is not allowed by virtue of Article 14 of the Constitution
as it is arbitrary and unreasonable. This article caters the needs of only the rich offenders and is
thus unreasonable. A poor offender is actually deterred from pleading guilty because he knows
that even if he does plead guilty he will not get any incentive like his rich counterpart. This
distinction being created by the concept of plea-bargaining is violative of Article 14. This
distinction will also tend to increase rather than decrease the litigation as the poor offender will
opt for a trial rather than pleading guilty owing to the lack of incentive which is available only to
rich offenders having the capability to meet the demands of victim.

Article 20:
The concept of plea-bargaining is also violative of Article 20(3) of the Constitution. Article
20(3) protects an accused from self-incrimination and provides that: No person accused of any
offence shall be compelled to be a witness against himself." The compulsion referred to under
Article 20(3) means duress and includes not merely physical threats or violence, but also psychic
torture, atmospheric pressure, environmental coercion, tiring interrogative proximity,
overbearing and intimidating methods and the like .Under the concept of plea bargaining
though it appears that the accused acts voluntarily while making an application under Section
265-B, but in fact he is compelled to make the application and plead guilty and there is no
mechanism to ensure voluntariness. Hence the concept of plea-bargaining not only violates
Article 20(3) and causes injustice but is also a move towards legalizing extortion. At this juncture
it must also be pointed out that the scheme of plea bargaining has been profoundly criticized
by the Supreme Court, even before it was introduced to the Criminal Procedure Code. The
Supreme Court went to the extent of holding the concept to be violative of Article 21 of the
Constitution which guarantees the right to life and personal liberty.

Exceptions
1. Where the offence has been committed against a woman of a child below the age of fourteen
years.
2. Where the accused has previously been convicted by a court in a case charged with the same
offence.
 3. It does not apply where such offence affects the socio-economic conditions of the country
(which offences under the in force shall be notified by the Central Govt. through notification).
4.Where the accused is a juvenile as defined in clause (K) of section 2 of the Juvenile Justice
(Care and Protection of Children) Act, 2000 (56 of 2000).

Major drawbacks of plea-bargaining:

A) Involvement of the police in plea-bargaining process would tempt coercion on innocent

people.
B) If once guilty application of the accused is rejected then he would face great hardship to
prove himselfinnocent
C) Court is impartially challenged due to its involvement in plea-bargaining process.
D) Involvement of the victim may lead to corruption.

When Plea Bargains are Made?

i) On Police Report: When after the investigation of the case police report under section 173 of
the Code of Criminal Procedure is filed by the officer in charge of the police station in the court
Judicial Magistrate relating to an offence (other than an offence for which a punishment of death
or of imprisonment for life or of imprisonment for a term exceeding seven years has been
provided) and after applying its discretionary powers, the Judicial Magistrate proceeds to take
cognizance of the offence and frames a charge against the accused is the stage where the
application for plea bargaining can be entertained by the trial court.

ii) On Private Complaint: In case of private complaint the application for plea bargaining can
be filed by the accused at the stage when a Judicial Magistrate takes cognizance of an offence
(other than an offence for which the punishment of death or of imprisonment for life or of
imprisonment for a term exceeding seven years has been provided), after examination of
complainant and the witnesses and decides to issue process against the accused under sections
200 and 204 of crpc.

THE UNCONSTITUTIONAL CONDITIONS DOCTRINE

The unconstitutional conditions doctrine holds that the government cannot provide a benefit
on the condition that the recipient gives up his or her constitutional rights, even if the
government is not required to provide that benefit in the first place. The doctrine represents the
view that the government may not do indirectly what it may not do directly. Since an
unconstitutional condition imposes a burden on a fundamental constitutional right, such a
condition is subject to strict scrutiny review. Thus, the government cannot compel the recipient
to give up his or her right without a compelling state interest.
The government benefit in question must be one that the government is allowed, but not
required, to provide. However, it matters not whether the benefit is a right or a privilege. Also,
the constitutional right involved must be a fundamental right in which the individual is able to
make a choice of whether or not to exercise the right.
Initially, it was believed that the governments power to grant a benefit included the lesser
power of imposing a condition on receiving the benefit .The dangers of this thought soon became
clear when states began conditioning benefits on recipients relinquishing their rights. Shortly
after, the Supreme Court held in several cases that it was unconstitutional for states to condition
the granting of benefits if the condition prevented the exercise of certain federal rights
established by the Commerce Clause or by Article IIIs creation of federal judicial power. These
early cases generally involved the state providing benefits to out-of-state corporations for
conducting business within the state in exchange for the corporations relinquishment of their
federal rights. The Court limited its holdings, however, and did not include the rights listed in the
Bill of Rights. Finding that such rights only had value to the individual, the Court reasoned that
because such rights were waived voluntarily and resulted in many benefits, they did not need
protection from the state.

Relevant Case Laws:

In the case of Murlidhar Meghraj Loyat v. State of Maharashtra, the Supreme Court observed as
under:
We are free to confess to a hunch that the appellants had hastened with their pleas of guilty
hopefully, induced by an informal, tripartite understanding of light sentence in lieu of nolo
contendere stance. Many economic offenders resort to practices the American call plea bargain,
plea negotiation, trading out and compromise in criminal cases and the trial magistrate
drowned by a docket burden nods assent to the sub Rosa anteroom settlement. The businessman
culprit, confronted by a sure prospect of the agony and ignominy of tenancy of a prison cell,
'trades out' of the situation, the bargain being a plea of guilt, coupled with a promise of 'no jail'.
These advance arrangements please everyone except the distant victim, the silent society. The
prosecutor is relieved of the long process of proof, legal technicalities and long arguments,
punctuated by provisional excursions to higher courts, the court sighs relief that its ordeal,
surrounded by a crowd of papers and persons, is avoided by one case less and the accused is
happy that even if legalistic battles might have held out some astrological hope of abstract
acquittal in the expensive hierarchy of the justice-system he is free early in the day to pursue his
old professions. It is idle to speculate on the virtue of negotiated settlements of criminal cases, as
obtains in the United States but in our jurisdiction, especially in the area of dangerous economic
crimes and food offences, this practice intrudes on society's interests by opposing society's
decision expressed through predetermined legislative fixation of minimum sentences and by
subtly subverting the mandate of the law. The jurists across the Atlantic partly condemn the bad
odor of purchased pleas of guilt and partly" justify it philosophically as a sentence concession to
a accused who has, by his plea 'aided in ensuring the prompt and certain application of
correctional measures to him.

In civil cases we find compromises actually encouraged as a more satisfactory method of

settling disputes between individuals than an actual trial. However, if the dispute... finds itself in
the field of criminal law, "Law Enforcement" repudiates the idea of compromise as immoral, or
at best a necessary evil. The "State" can never compromise. It must enforce the law." Therefore
open methods of compromise are impossible.

The Supreme Court in the case of Rajinder Kumar Sharma and Anr v. The State and Anr
observed as under:
Recently, the legislature has introduced plea bargaining under law so as to benefit such accused
persons who repent upon their criminal act and are prepared to suffer some punishment for the
act. The purpose of plea bargaining is also to see that the criminals who admit their guilt and
repent upon, a lenient view should be taken while awarding punishment to them. But the
legislature has not thought it proper to give right to the individual to compound any offence and
every offence in which loss to individual is also involved. When a person goes to the extent of
opening fake account, putting fake signatures and getting cheque uncashed on the basis of forged
signatures, this shows his criminal bent of mind. If he is really repent full, he must undergo some
punishment for his crime committed and the sufferance which he made to the society.
Considering the view of the Supreme Court in the above two cases, it is quite evident that the
term plea bargaining existed since a long time. Though the judiciary did not find it necessary to
recognize it then, however, now it has got the recognition and is being implemented as well. The
importance of this doctrine has been well explained by the Indian judiciary.
In other case of Vijay Moses Das vs. CBI (Criminal Misc. Application 1037/2006), Uttrakahnd
High Court in March 2010 allowed the concept of plea-bargaining, wherein accused was charged
under section 420, 468 and 471 of IPC. In the said case, Accused supplied inferior material to
ONGC and that too at a wrong Port, which caused immense losses to ONGC, then investigation
was done through CBI by lodging a criminal case against the accused. Notwithstanding the fact
that ONGC (Victim) and CBI (Prosecution) had no objection to the Plea-bargaining Application,
the trial court rejected the application on the ground that the Affidavit u/s (265-B) was not filed
by the accused and also the compensation was not fixed. The Honble High Court allowed the
Misc. Application by directing the trial court to accept the plea-bargaining application.4

CONCLUSION

4 Federal rules of criminal procedure,Rule 11

 As this Note has shown, plea bargaining presents an unconstitutional conditions problem
and places an impermissible burden on several fundamental constitutional liberties. Although the
government has advanced a compelling state interest the continued function and efficiency of the
criminal justice system plea bargaining is not a means narrowly tailored to serve that interest and
is not the least restrictive alternative. But a jury waiver system is. While such a system still
necessarily entrenches on the right to a jury trial, it is a less intrusive way of preserving the
function and the efficiency of the legal system. A jury waiver system further conforms more
closely to due process and provides the defendant with an opportunity to be heard. Therefore,
since plea bargaining is not the least restrictive alternative, it is an unnecessary evil and should
be banned and held unconstitutional.