Given the sheer scale of pending litigation and the inefficiency of the criminal justice system, the government’s proposed scheme for funding under-trials and prisoners to obtain bail may further exacerbate the problem and result in dilution of crimes.
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ON April 8, the Union government announced the launch of a scheme to provide financial aid to the several thousand languishing prisoners and under-trials who do not have the ability to pay fines and obtain bail. The scheme also proposes changes to Section 436A (maximum period for which an under trial prisoner can be detained) of the Criminal Procedure Code, 1973 and Chapter XXIA of the Code titled ‘Plea bargaining’, both inserted by the Criminal Law (Amendment) Act, 2005.
Though the scheme seems promising and reformatory, here is why it could be lopsided and regressive for India’s criminal justice system.
Dilution of punishment for a crime
Adopted from American jurisprudence, plea bargaining intends to save time and cost for the judiciary where the accused does not wish to contend (nolo contendere) for specific offences. The constitutional validity of plea bargaining in relation to Article 20(3) of the Constitution, which protects the right against self-incrimination, was clarified by the Supreme Court in State of Gujarat versus Natwar Harchandji Thokor (2005) wherein it was held that plea bargaining must be assessed factually and evaluated on a case-by-case basis, giving adequate discretion to the judge.
However, given the sheer scale of pending litigation and the inefficiency of the criminal justice system, the government’s proposed scheme for funding under-trials and prisoners to obtain bail may further exacerbate the problem and result in dilution of crimes. The focus of the government must be on addressing issues pertaining to judicial reforms and increasing the efficiency of the system. Whereas the introduction of plea bargaining and financing would simply commercialise justice dispensation.
The core ideals of the criminal justice system in a welfare democracy such as India is laid on the bedrock that the State shall have the primary duty of justice dispensation. The proposed scheme waters down the fundamental right of the sovereign to punish an offender.
Also read: Criminal Justice Reforms will Make Plea Bargaining Effective in Reducing Pendency of Cases
Focus to be on increased judicial efficacy
There is a plethora of issues that ail the Indian judiciary, including pendency, corruption, lack of infrastructure, a poor judge–population ratio, the controversial collegium system, and several redundant colonial practices. The judiciary is allocated not more than a miserly 0.2 percent out of the total Union budget in any given financial year. The government’s imperative must lie at resolving these gargantuan issues.
To the contrary, providing direct financial assistance to under-trials and convicts without a proper method of identifying the needy will aggravate the problem. It is appalling that rich tycoons are still endeavoured to be extradited while poor under-trials spend several years without even a conviction in Indian jails.
The scheme also has a likelihood of being misused wherein hardened criminals and under-trials with political influence may be bailed out.
Loss of fair trial
The criminal justice system is fundamentally based on the principle of audi alteram partem, which requires the court to hear both parties before adjudicating. The founding principle of criminal justice is deeply rooted in the idea of providing a fair opportunity to the accused prior to passing a verdict. However, the accused loses out their right over fair trial when it comes to plea bargaining wherein they may be coerced to plead guilty in order to avoid a harsher sentence. The accused may plead guilty even when they may not have committed any crime in order to avoid unnecessary legal hassles, and it is probable that the prosecution includes additional charges in order to harass the accused.
The scheme is blind to the fact that financing under-trials or prisoners may make it easier for hardened criminals to be released on bail. A crime is a crime, and must be viewed as a crime irrespective of the economic status of the offender; however, the scheme neglects this value of the criminal justice system. Further, it does not provide a rationale for economic assistance or a methodology for assessing deserving under-trials.
Plea bargaining is non-reformatory in nature as it may not deter crimes, but instead may result in an offender obtaining a lesser sentence for a heinous crime.
Procedural flaws
Plea bargaining in developing nations such as India has a high probability of an innocent person pleading guilty merely out of fear of the lengthy legal process or coercion. A lenient approach towards crimes decays the fabric of hope that citizens weave around the judiciary, and weakens investigation by the police force, who would fail to investigate thoroughly when they realise that a crime would end up in a plea-bargaining settlement.
Involving the police force in plea-bargaining would also bring an element of coercion wherein the accused pleads guilty.
Plea bargaining: Not a panacea for an overburdened judiciary
Data from the National Crime Records Bureau shows that less than 1 percent of all cases have been settled using plea bargaining in India since the inception of plea bargaining in 2006, primarily owing to the fact that it cannot be availed for all types of cases. Further, the law expressly bars the right to appeal if the case is disposed of under plea bargaining.
Delay is the single biggest factor that hampers justice administration. Therefore, the efficiency of the criminal justice system will determine the success of plea bargaining at large.
Also read: Pendency in lower judiciary: Importance of mapping data over time
Major reforms needed
The criminal justice system is flawed with several drawbacks, and increased judicial efficiency requires transparent and accountable systems. Access to justice would also mean increased public participation, and bringing technological interventions such as the use of information technology could bridge the gap between the haves and the have nots of information in the legal arena.
Financing prisoners may not deter crimes or reform criminals, but instead may act as a catalyst to promote crime. An impetus to improvements in the justice delivery mechanisms is the need of the hour.
