THE ROLE OF ALTERNATIVE DISPUTE RESOLUTION IN CRIMINAL TRIALS IN INDIA.

ABSTRACT :

The basics of Plea Bargaining and Alternative Dispute Resolution (ADR) have been explained in the initial part of this article. The application of ADR in criminal trials in India has been highlighted to give a better understanding of the entire concept of plea bargaining and its analysis, concerning India. Further, various judicial decisions have been cited to understand the stance of the judiciary towards the concept of plea bargaining in criminal trials in India.

Keywords: Plea Bargain, ADR, Criminal Trials, Negotiation, Courts.

INTRODUCTION :

WHAT IS PLEA BARGAINING? :

In essence, Plea Bargaining is a pre-trial negotiation which is usually conducted by the counsel between the defendant and the prosecutor. Here, the accused agrees to plead guilty in exchange for concessions provided by the prosecutor in the criminal case. The concessions are provided with respect to the severity or duration of the punishment imposed on the accused.

The concept of plea bargaining has been borrowed from the Constitution of the United States of America. It was first suggested by the 142nd Report[1] of the Law Commission of India as an alternative step to tackle huge arrears and loopholes of the criminal cases in the courts.

WHAT IS ALTERNATIVE DISPUTE RESOLUTION (ADR)? :

Alternative Dispute Resolution (ADR) is a procedure for settling disputes by means other than litigation. The settlement is done by an impartial third party using methods such as arbitration, negotiation, mediation, and conciliation. The dispute is settled without the Court’s interference.

India has a long tradition of using ADR mechanisms. For instance, the Panchayat System is over 2,500 years old and is still widely used for resolution of disputes.

ADR IN CRIMINAL TRIALS IN INDIA :

There has been a significant rise in the use of ADR mechanisms in the Indian Judicial System due to the advantages that they offer. It facilitates a speedy trial; it is a confidential procedure and is also an economically feasible process of resolving disputes. It thereby overcomes most challenges which are posed by litigation as a process of resolution.

As a way to manage the backlog of cases in the Indian Courts, a review of the court system was undertaken by the Malimath Committee. In its Report, the Committee recommended that a system of Plea Bargaining be introduced in the Indian Criminal Justice System to facilitate better disposal of cases to reduce the burden of the courts and to ensure that justice is made accessible to the citizens at the minimum cost of time and finances.[2]

Hence, ADR mechanisms were formally introduced into the criminal justice system by way of the Criminal Law (Amendment) Act, 2005 under Chapter XXI A in the Code of Criminal Procedure, 1973 which introduced the concept of “plea bargaining” in India.[3]

PLEA BARGAINING IN INDIA, AN ANALYSIS :

In India, the concept of Plea Bargaining attracted enormous public debate. In the case of State of Uttar Pradesh vs. Chandrika[4] , the Apex court held that it is a settled law that based on Plea Bargaining; the court cannot dispose of the criminal case but has to decide based on its merits. If the accused confesses his guilt, an appropriate sentence has to be implemented. The court further held that merely pleading guilty should not be a ground for reduction of sentence. However, the Government finally accepted it and added Section 265A – 265L[5], in the Code of Criminal Procedure, 1973. These statutes specify the application, procedure, and other specifications for a plea bargain.

ADVANTAGES :

A plea bargain may be a manifestation of the acceptance of the responsibility of one’s crime, with a view to correct one’s behaviour towards the society. It saves the victim the psychological trauma which they might undergo in the otherwise lengthy criminal trial thereby improving the position of the victim by way of compromise.

It is an economically feasible method of resolving criminal cases as it effectively saves the hefty costs of litigation. It creates a certainty of conviction as it prevents escaping due punishment by serious offenders.

CRITICISMS :

This mechanism has been criticised as it is said to trivialize the role of lawsuits and the judicial processes. Especially with regard to criminal cases, it is said to privatise the disputes at the cost of public interest and justice, as crimes are against the society at large.

The judiciary has pointed towards the possibility of coercion in the process of plea bargaining, and the need to ensure that the decision to enter into a plea bargain is done voluntarily by the accused.  Since many numbers of accused opt for a plea bargain instead of a trial, there is an argument made that this concept leads to lacklustre investigation practices.

THE STANCE OF THE INDIAN JUDICIARY :

The opinion of the Indian Courts on this concept has evolved over time which can be seen in the various judicial decisions by the courts.

For instance, the Supreme Court expressed reservations against plea bargaining in the case of Murlidhar Meghraj Loya v. State of Maharashtra[6] it was claimed that this concept made room for the culprit to “trade out”, an arrangement that was beneficial to everyone but the victim and the society, which questioned the standard of justice and the rights of the parties involved. On similar lines, in Kachhia Patel Shantilal Koderlal vs. State of Gujarat and Anr[7]the court termed the mechanism unconstitutional, illegal and that it would encourage collusion, and lead to the pure justice system being polluted. Such statements made the disapproving nature of the Courts towards this concept very evident.

It was much later in, State of Gujarat v. Natwar Harchandji Thakor[8], where the Gujarat High Court acknowledged the method as a substitute for litigation. The court’s reasoning was, “the very object of law is to provide easy, cheap and expeditious justice by resolution of disputes, including the trial of criminal cases and considering the present realistic profile of the pendency and delay in disposal in the administration of law and justice, fundamental reforms are inevitable. There should not be anything static. It can thus be said that it is really a measure and redressal and it shall add a new dimension in the realm of judicial reforms.”

CONCLUSION :

Plea bargaining has been recognized as the need of the hour. In this scenario it can be safely said that ‘Law is not a Panacea. It cannot solve all problems, but it can definitely reduce the severity’. Plea bargaining in India aims to address the same, which despite its shortcomings can go a long way in speeding the disposition of cases in the Courts. It attributes efficiency and credibility to Indian Criminal Justice System and has the potential to change the face of criminal trials in India. It can support court reform and effectively improve access to justice. It is, after all, a holistic approach towards securing justice.

REFERENCES :

1.      Louise Gaille, 11 Advantages and Disadvantages of Plea Bargaining, https://vittana.org/11-advantages-and-disadvantages-of-plea-bargaining.

2. Soura Subha Ghosh, – Advocate, Plea Bargaining-an analysis on the concept, http://www.legalserviceindia.com/articles/plea_bar.htm.

3.      Rahul Deo, Criminal Cases and ADR, https://www.lawctopus.com/academike/criminal-cases-adr/#_edn18.Anonymous, CONCEPT OF PLEA BARGAINING – AN ANALYSIS,

4. https://sg.inflibnet.ac.in/bitstream/10603/220567/12/12_chapter-iii%20concept%20of%20plea%20bargaining%20%EF%BF%BD%20an%20analysis.pdf.

5. Navratan Lal Saini, A Critical study on ADR in Criminal Trial, https://madhavuniversity.edu.in/critical-study-on-adr.html.

6.      Ananya Kulkarni, THE SCOPE AND LIMITS OF PLEA BARGAINING AS AN ADR TOOL IN CRIMINAL LAW-THE INDIAN PERSPECTIVE, https://valentilaw.com/2015/01/19/guest-post-the-scope-and-limits-of-plea-bargaining-as-an-adr-tool-in-criminal-law-the-indian-perspective/#_ftn11.

 

 


[1]142nd Law Commission of India Report, Concessional Treatment for Offenders who on their own initiative choose to plead guilty without any bargaining (1991), http://lawcommissionofindia.nic.in/101- 169/Report142.pdf.

[2]Ms. Suchitra Ghogare-Katkar, Plea Bargaining – Challenges For Implementation, http://docs.manupatra.in/newsline/articles/Upload/4C2F9AF3-AAC9-4059-A312-A7E5A00A5F0B.pdf.  

[3] Criminal Law Amendment Act (2005), Chapter III- § 256A- 256L, page 2, https://www.indiacode.nic.in/bitstream/123456789/6799/1/criminallawamendmendact%2c2005.pdf

[4]State of Uttar Pradesh Vs Chandrika, A.I.R. 2000 SC 164 (India).

[5] Supra 3 at 2, https://www.indiacode.nic.in/bitstream/123456789/6799/1/criminallawamendmendact%2c2005.pdf

[6]Murlidhar Meghraj Loya v. State of Maharashtra, AIR 1976 SC 1929 (India).

[7] Kachhia Patel Shantilal Koderlal v. State of Gujarat and Anr,1980 CriLJ553 (India).

[8] State of Gujarat v. Natwar Harchandji Thakor, 2005, CriLJ 2957 (India).

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