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Report No. 142

6.16. Constitutionality.-

The next objection of the Supreme Court is that the procedure by which a person is convicted on a plea-bargaining made as a result of inducement, would be violative of Article 21 of the Constitution.

6.17. Article 21 of the Constitution provides that:

"No person shall be deprived of his life or personal liberty except according to procedure established by law."

The observation on this score has been made in the context of the fact that as at present neither the Code of Criminal Procedure nor any other law authorises plea-bargaining of the American model. It was without any authority of law that the practice was adopted in the case in question. It was in this backdrop that reference to violation of Article 21 as regards "procedure established by law" has been made. If there was a legal provision authorising the procedure, the objection would disappear. That was the reason why in Meghraj's case the Supreme Court observed that a "streamlined procedure" should be devised if the State should administer justice by recourse to plea-bargaining.

The observations made by the Supreme Court in Kasambhais case regarding the possible violation of Article 21 should be, therefore, confined to the situation where without legal sanction and appropriate procedure a court takes note of a voluntary plea of guilty and convicts the accused ignoring the mandate of law. These observations will be inapplicable in a situation where a law governing concessional treatment without higgle-haggling or bargaining (not plea-bargaining of the American model) is enacted as is being proposed.

6.18. Reference may usefully and with advantage be made to the two leading cases of the United States Supreme Court, namely, Brady v. United States, 25 L Ed 2d 747, and Santobello v. New York, 404 US 257 (1971) (upholding the constitutional validity of plea-bargaining) which were not brought to the notice of our Supreme Court in the aforesaid two decisions.

6.19. For the sake of convenience, the propositions which emerge from the aforesaid two decisions of the U.S. Supreme Court may be broadly stated whilst annexing for the sake of preciseness, the verbatim extracts of the relevant passages at Annexure 'C'. Broadly stated, the U.S. Supreme Court has taken the view that-

(1) the Constitution does not forbid the plea of guilty;

(2) the constitutional right to trial can be waived provided the waiver is made voluntarily and with sufficient awareness of the relevant circumstances and the likely consequences of such waiver;

(3) well over 75 % of the criminal convictions in the U.S.A. rest on the pleas of guilty;

(4) convictions based on guilty plea are not free from hazards for the innocent but experience shows that there is not much likelihood of defendants advised by competent counsel condemning themselves falsely. This view is based on the expectation that courts will satisfy themselves that pleas of guilty are voluntarily and intelligently made by competent defendants with adequate advice of counsel and there is no reason to question the accuracy and reliability of the admission made by the defendants that they committed the crimes with which they are charged. All trial courts are now required to interrogate the defendants who entered guilty plea so that the waiver of these fundamental rights will affirmatively appear in the record;

(5) plea-bargaining is an essential component of the administration of justice and, if properly administered, it deserves to be encouraged;

(6) the practice is considered desirable because -

(a) otherwise if every criminal charge were subjected to full-scale trial, if would be necessary to multiply by many times the number of judges-court facilities,

(b) it leads to prompt and largely final disposition of most criminal cases,

(c) it avoids much of the corrosive impact of enforced idleness during pre-trial confinement for those who are denied release pending trial;

(d) the public is protected from those who are prone to continue criminal conduct even white on pre-trial release,

(e) by shortening the time between the charge and the disposition, it enhances the rehabilitative prospects of the guilty when they are ultimately imprisoned,

(f) judicial and prosecutorial resources are conserved for those cases in which there is a substantial issue of the defendant's guilt or in which there is substantial doubt whether the State can sustain its burden of proof,

(g) a promptly imposed punishment after an admission of guilt may more effectively attain the objectives of punishment whilst avoiding trial,

(7) both the State and the defendant often find it advantageous to preclude the possibility of the maximum penalty authorised by law;

(8) for a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and limiting the probably penalty are obvious, namely:-

(a) his exposure is reduced,

(b) the correctional process can, begin immediately,

(c) the practical burdens of a trial are eliminated,

(9) the defendant may choose to plead guilty as he may consider a breach of the law as sufficient reason for surrendering himself and accepting the punishment;

(10) the defendant may choose to plead guilty on realising that it is not worth the agony and expense of a trial to himself and his family in view of the evidence gathered by the prosecution.

6.20. Whereas even the "plea-bargaining" as it obtains in the American system has been held constitutional by the United States Supreme Court, what is being proposed is a system where-

(1) there will be no bargaining at all between prosecution and defence;

(2) the accused alone can take the initiative to move the machinery for concessional treatment or benefit of probation leaving no scope for inducement from the prosecution;

(3) while the plea judges will bear the plea for concessional treatment, there will be no prior assurance to the accused and the judicial mind will deter mine the sentence;

(4) for serious offences punishable with punishment exceeding 7 years, a high-powered two-member Bench of retired High Court Judges will exercise the jurisdiction;

(5) the application will be entertained only if the plea court is fully-satisfied that it is voluntarily made without inducement or coercion and only if there is some prima facie material; and

(6) all possible safeguards are provided.

There is no scope for successfully assailing the constitutionality of the concerned provisions of law.

6.21. In view of the foregoing, the Commission is confident that the constitutional validity of a law setting out such a scheme for concessional treatment is not open to question and there is no violation of the provisions contained in Article 21 of the Constitution.

6.22. Conclusion.-

In the view of the Commission, the observations contained in the aforesaid two Supreme Court judgements do not militate against the enactment of a law carefully setting out the scheme broadly on the aforesaid pattern laying down appropriate guidelines and procedure governing the matter as is being proposed. It is, therefore, proposed to proceed to evolve, a scheme specially designed for the legal environment in India after dealing with the objections brought into focus during the survey undertaken by the Commission as reflected in Chapter IV.

Concessional Treatment for Offenders who on their own initiative choose to plead guilty without any bargaining Back

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