JUDICIAL ACTIVISM

Judicial activism is a philosophy in the judiciary that actuates (motivates) judges to go beyond

statutory precedents and adopt a progressive method in deciding cases. The term originated in the

United States by Arthur Schlesinger in 1947. In recent days, it is seen in view that a judge favours

judicial activism when he sets aside his earlier judgment.

The Legislature, Executive and Judiciary are the three organs in our country. And according to the

doctrine of separation of powers, which is based on the principle of trias politica, all the three

organs should exercise their powers independently. Or in other words, no organ should interfere

with the decisions of other organs. Note: The said doctrine is not fully accepted in India as held

in Ram Jawaya vs Punjab State. In some instances, the judiciary has to go beyond the doctrine of

separation of powers which is termed as ‘judicial activism‘

Indian Precedent of Judicial Activism

With respect to the doctrine of separation of powers, the Indian Constitution has the following

provisions-

1. Article 121 and Article 211 prohibit any Legislature in its functions from talking about

the conduct of any judge.

2. Article 122 and Article 212 impede the judiciary from judging the legislature’s

proceedings.

3. In terms of freedom of speech and voting, Article 105(2) and Article 194(2) protect

legislators from judiciary interference

Our Constitution favours judicial activism to some extent in Articles 13, 32 and 226, which

provides power to the higher judiciary to declare the executive’s statutory orders as void.
Examples of Judicial Activism

The first case of judicial activism started in 1979 when the Hon’ble High Court of Judicature

Allahabad declined the electioneering of Ms Indira Gandhi. Other landmark cases include

the Keshavananda Bharti case, Golakhnath vs Punjab State, Hussainara Khatoon vs Bihar

State etc.

Some recent case laws on judicial activism are:

1. Rajesh Sharma vs State of UP (2017): Here, the court became fed up with the misuse

of section 498A IPC and directed that the complaints be forwarded to Family Welfare

Committee constituted under respective DLSAs (District Legal Services Authority) as

there is no such provision mentioned in the code.

2. MC Mehta vs UOI (2018): When the Hon’ble apex court ordered the sale of BS-6

vehicles and banned the sale of BS-4 vehicles after 30th March 2020, it had invalidated

the statutory rule of section 115(21) of Central Motor Vehicle Rules. Here the court

exercised power vested under Article 142 of the Constitution.

3. The Hon’ble Supreme Court on 29th October 2018 passed a judgement, banning 15-

year-old petrol vehicles and 10-year-old diesel vehicles from plying in the National
Capital.

What Propels Judges to Become Judicial Activists?

Society is moving at a breakneck pace. Our laws are outdated when compared to the updated

demands of society. When the legislative machinery fails to update the laws at the desired speed,

and government machinery fails to discharge its functions, to uphold the values of the democracy,

the judiciary has to step in to fill the gaps reserved for the other two organs of the country.
Another reason is to uphold the faith of the people in the judiciary. Finally, when there is a clash

between statutory laws and fundamental rights, the judiciary has to step in to protect

the fundamental rights of the citizens.

Advantages of Judicial Activism

1. It creates an equilibrium in different government departments.

2. It enhances people’s faith in the judiciary

3. Where the law fails to meet the expectations, judicial activism comes into play.

4. Judicial activism helps judicial mechanism to prevent haste misuse of power by the state

machinery.

5. Aids in speedy justice.

Disadvantages Judicial Activism

1. The judgements delivered via judicial activism mode sets a basic rule for other

judgements.

2. Recurring review of judgements can result in a loss of faith in the judiciary.

3. State and Central machinery functioning become limited with judicial activism.

4. Statutory and legislative laws are violated.

5. Decisions or orders can be influenced for personal gains.

Opinion and Importance

Legal experts cite judicial activism as more democratic. Our country is a democratic country. Law

is for society. When a situation arises such that judicial activism is not followed, the judicial system

becomes a mere looker, and the purpose of law will not get solved. Hence, judicial activism with

discipline must be followed to save society from getting prejudiced and create a perfect balance.
If discipline is not maintained and the judges will keep on making laws, our democracy will be

crippled.

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Public Interest Litigation

▪ The expression ‘Public Interest Litigation’ has been borrowed from American
jurisprudence, where it was designed to provide legal representation to previously
unrepresented groups like the poor, the racial minorities, unorganised consumers,
citizens who were passionate about the environmental issues, etc.
▪ Public interest Litigation (PIL) means litigation filed in a court of law, for the
protection of “Public Interest”, such as Pollution, Terrorism, Road safety,
Constructional hazards etc. Any matter where the interest of public at large is affected
can be redressed by filing a Public Interest Litigation in a court of law.
▪ Public interest litigation is not defined in any statute or in any act. It has been
interpreted by judges to consider the intent of public at large.
▪ Public interest litigation is the power given to the public by courts through judicial
activism. However, the person filing the petition must prove to the satisfaction of the
court that the petition is being filed for a public interest and not just as a frivolous
litigation by a busy body.
▪ The court can itself take cognizance of the matter and proceed suo motu or cases can
commence on the petition of any public spirited individual.
Some of the matters which are entertained under PIL are:
o Bonded Labour matters
o Neglected Children
o Non-payment of minimum wages to workers and exploitation of casual
workers
o Atrocities on women
o Environmental pollution and disturbance of ecological balance
o Food adulteration
o Maintenance of heritage and culture

Genesis and Evolution of PIL in India: Some Landmark Judgements

▪ The seeds of the concept of public interest litigation were initially sown in India
by Justice Krishna Iyer, in 1976 in Mumbai Kamagar Sabha vs. Abdul Thai.
▪ The first reported case of PIL was Hussainara Khatoon vs. State of Bihar (1979)
that focused on the inhuman conditions of prisons and under trial prisoners that led
to the release of more than 40,000 under trial prisoners.

o Right to speedy justice emerged as a basic fundamental right which

had been denied to these prisoners. The same set pattern was adopted in
subsequent cases.
▪ A new era of the PIL movement was heralded by Justice P.N. Bhagawati in the case
of S.P. Gupta vs. Union of India.

o In this case it was held that “any member of the public or social action
group acting bonafide” can invoke the Writ Jurisdiction of the High
Courts (under article 226) or the Supreme Court (under Article 32)
seeking redressal against violation of legal or constitutional rights of
persons who due to social or economic or any other disability cannot
approach the Court.
o By this judgment PIL became a potent weapon for the enforcement of
“public duties” where executive action or misdeed resulted in public
injury. And as a result any citizen of India or any consumer groups or
social action groups can now approach the apex court of the country
seeking legal remedies in all cases where the interests of general public
or a section of the public are at stake.
o Justice Bhagwati did a lot to ensure that the concept of PILs was clearly
enunciated. He did not insist on the observance of procedural
technicalities and even treated ordinary letters from public-minded
individuals as writ petitions.
▪ The Supreme Court in Indian Banks’ Association, Bombay & Ors. vs. M/s
Devkala Consultancy Service and Ors held :- “In an appropriate case, where the
petitioner might have moved a court in her private interest and for redressal of the
personal grievance, the court in furtherance of Public Interest may treat it a necessity
to enquire into the state of affairs of the subject of litigation in the interest of
justice.” Thus, a private interest case can also be treated as public interest case.
▪ M.C Mehta vs. Union of India: In a Public Interest Litigation brought against Ganga
water pollution so as to prevent any further pollution of Ganga water. Supreme Court
held that petitioner although not a riparian owner is entitled to move the court for the
enforcement of statutory provisions, as he is the person interested in protecting the
lives of the people who make use of Ganga water.
▪ Vishaka v. State of Rajasthan: The judgement of the case recognized sexual
harassment as a violation of the fundamental constitutional rights of Article 14,
Article 15 and Article 21. The guidelines also directed for the Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
Factors Responsible for the Growth of PIL in India

▪ The character of the Indian Constitution. India has a written constitution which
through Part III (Fundamental Rights) and Part IV (Directive Principles of State
Policy) provides a framework for regulating relations between the state and its
citizens and between citizens inter-se.
▪ India has some of the most progressive social legislations to be found anywhere in
the world whether it be relating to bonded labor, minimum wages, land ceiling,
environmental protection, etc. This has made it easier for the courts to haul up the
executive when it is not performing its duties in ensuring the rights of the poor as per
the law of the land.
▪ The liberal interpretation of locus standi where any person can apply to the court
on behalf of those who are economically or physically unable to come before it has
helped. Judges themselves have in some cases initiated suo moto action based on
newspaper articles or letters received.
▪ Although social and economic rights given in the Indian Constitution under Part IV
are not legally enforceable, courts have creatively read these into fundamental rights
thereby making them judicially enforceable. For instance the "right to life" in Article
21 has been expanded to include right to free legal aid, right to live with dignity, right
to education, right to work, freedom from torture, bar fetters and hand cuffing in
prisons, etc.
▪ Judicial innovations to help the poor and marginalised: For instance, in
the Bandhua Mukti Morcha, the Supreme Court put the burden of proof on the
respondent stating it would treat every case of forced labor as a case of bonded labor
unless proven otherwise by the employer. Similarly in the Asiad Workers judgment
case, Justice P.N. Bhagwati held that anyone getting less than the minimum wage can
approach the Supreme Court directly without going through the labor commissioner
and lower courts.
▪ In PIL cases where the petitioner is not in a position to provide all the necessary
evidence, either because it is voluminous or because the parties are weak socially or
economically, courts have appointed commissions to collect information on facts and
present it before the bench.
Who Can File a PIL and Against Whom?

▪ Any citizen can file a public case by filing a petition:

o Under Art 32 of the Indian Constitution, in the Supreme Court.

o Under Art 226 of the Indian Constitution, in the High Court.
o Under sec. 133 of the Criminal Procedure Code, in the Court of
Magistrate.
 ▪ However, the court must be satisfied that the Writ petition fulfils some basic needs
for PIL as the letter is addressed by the aggrieved person, public spirited individual
and a social action group for the enforcement of legal or Constitutional rights to any
person who are not able to approach the court for redress.
▪ A Public Interest Litigation can be filed against a State/ Central Govt., Municipal
Authorities, and not any private party. The definition of State is the same as given
under Article 12 of the Constitution and this includes the Governmental and
Parliament of India and the Government and the Legislature of each of the States and
all local or other authorities within the territory of India or under the control of the
Government of India.
Significance of PIL

▪ The aim of PIL is to give to the common people access to the courts to obtain legal
redress.
▪ PIL is an important instrument of social change and for maintaining the Rule of law
and accelerating the balance between law and justice.
▪ The original purpose of PILs have been to make justice accessible to the poor and
the marginalised.
▪ It is an important tool to make human rights reach those who have been denied rights.
▪ It democratises the access of justice to all. Any citizen or organisation who is
capable can file petitions on behalf of those who cannot or do not have the means to
do so.
▪ It helps in judicial monitoring of state institutions like prisons, asylums, protective
homes, etc.
▪ It is an important tool for implementing the concept of judicial review.
▪ Enhanced public participation in judicial review of administrative action is assured
by the inception of PILs.
Certain Weaknesses of PIL

▪ PIL actions may sometimes give rise to the problem of competing rights. For
instance, when a court orders the closure of a polluting industry, the interests of the
workmen and their families who are deprived of their livelihood may not be taken
into account by the court.
▪ It could lead to overburdening of courts with frivolous PILs by parties with vested
interests. PILs today has been appropriated for corporate, political and personal
gains. Today the PIL is no more limited to problems of the poor and the oppressed.
▪ Cases of Judicial Overreach by the Judiciary in the process of solving socio-
economic or environmental problems can take place through the PILs.
 ▪ PIL matters concerning the exploited and disadvantaged groups are pending for many
years. Inordinate delays in the disposal of PIL cases may render many leading
judgments merely of academic value.
Fast Track Courts
We have heard of the High Court, Supreme Court as well as district courts in India.
But via this article we will come to know about another concept of courts .

So what are fast track courts?

These are special kind of courts which have exclusive jurisdiction over a particular
category of law (in this case- sexual assault and children’s cases) .

Fast track courts were introduced in India in the year 2000 in order to reduce the
burden of cases from high courts and district courts and also to provide speedy justice.
That was the first fast track court in India.

Approximately three crore cases were pending in all courts in the country at that time
and to help solve those, the 11th finance commission approved the creation of 1734
fast track courts across the country for an experimental period of five year s.

For the next five years these fast track courts worked efficiently and solved almost
10 million cases and so the term kept on renewing till 2012 when the heinous rape
case shook the country to its core and that is when the government ordered to set up
six fast track courts in Delhi that will only deal with sexual assault cases. So now we
understand what fast track courts are .

Objective of Fast Track courts

The main objective of fast track courts in India is to provide speedy justice to a large
number of pending cases in a specified time. Judges are appointed on an ad hoc basis
and retired judges are eligible for selection.

Fast track courts in India have t urned out to be a good way of dealing with sexual
assault and children’s cases since they get the full attention of the judiciary which
lacked in high courts and district courts due to abundance of pending cases .

In a generation where technological advance ments are taking place and increasing
day by day and the nature of crimes is also changing and becoming critical; the
judiciary cannot afford to lag behind, it has to keep up with the changing times in
order to render speedy justice.
Need for Fast Track courts

1. Aimed at clearing the considerable amount of pending cases: The main motive
behind the establishment of fast track courts was to solve the enormous amount of
pending cases and to reduce some burden off district and high courts. Another motive
was to give proper attention and time to sexual assault cases .

2. Expected to reduce the number of undertrials in jails: India has one of the largest
number of people (approximately 2.8 lakhs) in prison awaiting their trial or going
through their trials and this number keeps increasing everyday as new cases emerge
and new accused are imprisoned. To reduce this number fast track courts are needed
in the country.

3. Need for Speedy Trial: In a country where thousands of crimes take place every
day it is very important to provide speedy trial and justice. Speedy trial, also being a
constitutional right, has yet to see its goals achieved and for the same, fast track
courts are required.

4. Judiciary’s commitment to end sexual and gender based violence: Fast track c ourts
work to provide speedy and accurate justice to gender and sexual violence victims. It
proves that the judiciary is committed towards ending sexual and gender based
violence.

Advantages of Fast Track courts

1. Lessening of the general caseload burden: The objective with which the fast track
courts were established has been very beneficial for judiciary as it has solved over a
million cases and has reduced the case load from other courts .

2. Promotes specialization and professionalization: It has helped employ thousands

of people from different fields, it also avails retired judges from high courts and
district courts. The establishment of fast track courts has promoted the specialization
of a category of law.

3. Improves judicial efficiency and effectiv eness: By the proper use of judiciary and
by speedy trial and judgment, fast track courts boost the efficiency of the judiciary .

4. High case clearance rate and speedy trial rate: Fast Track courts in India have the
highest case disposal rate due to its sp eedy trial and judgment. And hence it is
efficient in solving cases in a bound time.

5. Guarantees consistency and predictability: Fast track courts have high performance
rate and are stable and steady. It renders justice with high accuracy .
Disadvantages of Fast Track Courts

1. Fast track courts do not do full justice in some cases: Courts take time to render
justice because they examine each and every aspect thoroughly. But in fast track
courts some cases are disposed of without proper examination of evi dence and many
people are wrongly convicted in the name of speedy trial .

2. Tampered subject matter and lowers professionalism of Judges: Since fast track
courts deal with only one category of law it lowers the ability of judges to deal with
other cases coming under different laws.

Lok Adalat

NALSA along with other Legal Services Institutions conducts Lok Adalats. Lok Adalat is one of
the alternative dispute redressal mechanisms, it is a forum where disputes/cases pending in the
court of law or at pre-litigation stage are settled/ compromised amicably. Lok Adalats have been
given statutory status under the Legal Services Authorities Act, 1987. Under the said Act, the
award (decision) made by the Lok Adalats is deemed to be a decree of a civil court and is final and
binding on all parties and no appeal against such an award lies before any court of law. If the
parties are not satisfied with the award of the Lok Adalat though there is no provision for an appeal
against such an award, but they are free to initiate litigation by approaching the court of appropriate
jurisdiction by filing a case by following the required procedure, in exercise of their right to litigate.

There is no court fee payable when a matter is filed in a Lok Adalat. If a matter pending in the
court of law is referred to the Lok Adalat and is settled subsequently, the court fee originally paid
in the court on the complaints/petition is also refunded back to the parties. The persons deciding
the cases in the Lok Adalats are called the Members of the Lok Adalats, they have the role of
statutory conciliators only and do not have any judicial role; therefore they can only persuade the
parties to come to a conclusion for settling the dispute outside the court in the Lok Adalat and shall
not pressurize or coerce any of the parties to compromise or settle cases or matters either directly
or indirectly. The Lok Adalat shall not decide the matter so referred at its own instance, instead
the same would be decided on the basis of the compromise or settlement between the parties. The
members shall assist the parties in an independent and impartial manner in their attempt to reach
amicable settlement of their dispute.

Nature of Cases to be Referred to Lok Adalat

1. Any case pending before any court.

2. Any dispute which has not been brought before any court and is likely to be filed before the
court.

Provided that any matter relating to an offence not compoundable under the law shall not be settled
in Lok Adalat.
Which Lok Adalat to be Approached

As per section 18(1) of the Act, a Lok Adalat shall have jurisdiction to determine and to arrive at
a compromise or settlement between the parties to a dispute in respect of -

(1) Any case pending before; or

(2) Any matter which is falling within the jurisdiction of, and is not brought before, any court for
which the Lok Adalat is organised.

Provided that the Lok Adalat shall have no jurisdiction in respect of matters relating to divorce or
matters relating to an offence not compoundable under any law.

How to Get the Case Referred to the Lok Adalat for Settlement

(A) Case pending before the court.

(B) Any dispute at pre-litigative stage.

The State Legal Services Authority or District Legal Services Authority as the case may be on
receipt of an application from any one of the parties at a pre-litigation stage may refer such matter
to the Lok Adalat for amicable settlement of the dispute for which notice would then be issued to
the other party.

Levels and Composition of Lok Adalats:

At the State Authority Level -

The Member Secretary of the State Legal Services Authority organizing the Lok Adalat would
constitute benches of the Lok Adalat, each bench comprising of a sitting or retired judge of the
High Court or a sitting or retired judicial officer and any one or both of- a member from the legal
profession; a social worker engaged in the upliftment of the weaker sections and interested in the
implementation of legal services schemes or programmes.

At High Court Level -

The Secretary of the High Court Legal Services Committee would constitute benches of the Lok
Adalat, each bench comprising of a sitting or retired judge of the High Court and any one or both
of- a member from the legal profession; a social worker engaged in the upliftment of the weaker
sections and interested in the implementation of legal services schemes or programmes.

At District Level -

The Secretary of the District Legal Services Authority organizing the Lok Adalat would constitute
benches of the Lok Adalat, each bench comprising of a sitting or retired judicial officer and any
one or both of either a member from the legal profession; and/or a social worker engaged in the
upliftment of the weaker sections and interested in the implementation of legal services schemes
or programmes or a person engaged in para-legal activities of the area, preferably a woman.

At Taluk Level -

The Secretary of the Taluk Legal Services Committee organizing the Lok Adalat would constitute
benches of the Lok Adalat, each bench comprising of a sitting or retired judicial officer and any
one or both of either a member from the legal profession; and/or a social worker engaged in the
upliftment of the weaker sections and interested in the implementation of legal services schemes
or programmes or a person engaged in para-legal activities of the area, preferably a woman.

National Lok Adalat

National Level Lok Adalats are held for at regular intervals where on a single day Lok Adalats are
held throughout the country, in all the courts right from the Supreme Court till the Taluk Levels
wherein cases are disposed off in huge numbers. From February 2015, National Lok Adalats are
being held on a specific subject matter every month.

Permanent Lok Adalat

The other type of Lok Adalat is the Permanent Lok Adalat, organized under Section 22-B of The
Legal Services Authorities Act, 1987. Permanent Lok Adalats have been set up as permanent
bodies with a Chairman and two members for providing compulsory pre-litigative mechanism for
conciliation and settlement of cases relating to Public Utility Services like transport, postal,
telegraph etc. Here, even if the parties fail to reach to a settlement, the Permanent Lok Adalat gets
jurisdiction to decide the dispute, provided, the dispute does not relate to any offence. Further, the
Award of the Permanent Lok Adalat is final and binding on all the parties. The jurisdiction of the
Permanent Lok Adalats is upto Rs. Ten Lakhs. Here if the parties fail to reach to a settlement, the
Permanent Lok Adalat has the jurisdiction to decide the case. The award of the Permanent Lok
Adalat is final and binding upon the parties. The Lok Adalat may conduct the proceedings in such
a manner as it considers appropriate, taking into account the circumstances of the case, wishes of
the parties like requests to hear oral statements, speedy settlement of dispute etc.

Concept of Plea Bargaining

The famous saying “Justice delayed is justice denied” holds utmost significance when the concept
of Plea bargaining is discussed. The number of cases pending in the courts is shocking but at the
same time, it has been normalized by people. These astonishing figures are no more astonishing
because people have started accepting this as their fate. The concept of plea bargaining was not
there in criminal law since its inception. Considering this scenario, Indian Legal scholars and
Jurists incorporated this concept in Indian Criminal Law. As the term itself suggests that it is an
agreement between accused and the prosecutor. Many countries have accepted this concept in their
Criminal Justice System (CJS).
Meaning of Plea Bargaining

Plea bargaining is a pretrial negotiation between the accused and the prosecution where the accused
agrees to plead guilty in exchange for certain concessions by the prosecution. It is a bargain where
a defendant pleads guilty to a lesser charge and the prosecutors in return drop more serious charges.
It is not available for all types of crime e.g. a person cannot claim plea bargaining after committing
heinous crimes or for the crimes which are punishable with death or life imprisonment.

History of Plea Bargaining

In the Jury System, the need for plea bargaining was not felt because there was no legal
representation. Later on, in 1960 legal representation was allowed and the need for Plea Bargaining
was felt. Although the traces of the origin of the concept of Plea Bargaining is in American legal
history. This concept has been used since the 19th century. Judges used this bargaining to
encourage confessions.

Plea Bargaining in India

Plea Bargaining is not an indigenous concept of Indian legal system. It is a part of the recent
development of Indian Criminal Justice System (ICJS). It was inculcated in Indian Criminal Justice
System after considering the burden of long-standing cases on the Judiciary.

Criminal Procedure Code and Plea Bargaining

Section 265A to 265L, Chapter XXIA of the Criminal Procedure Code deals with the concept of
Plea Bargaining. It was inserted into the Criminal Law (Amendment) Act, 2005. It allows plea
bargaining for cases:

1. Where the maximum punishment is imprisonment for 7 years;

2. Where the offenses don’t affect the socio-economic condition of the country;
3. When the offenses are not committed against a woman or a child below 14 are excluded
The 154th Report of the Law Commission was first to recommend the ‘plea bargaining’ in Indian
Criminal Justice System. It defined Plea Bargaining as an alternative method which should be
introduced to deal with huge arrears of criminal cases in Indian courts.

Then under the NDA government, a committee was constituted which was headed by the former
Chief Justice of the Karnataka and Kerala High Courts, Justice V.S.Malimath to tackle the issue
of escalating number of criminal cases. The Malimath Committee recommended for the plea
bargaining system in India. The committee said that it would facilitate the expedite disposal of
criminal cases and reduce the burden of the courts. Moreover, the Malimath Committee pointed
out the success of plea bargaining system in the USA to show the importance of Plea Bargaining.

Accordingly, the draft Criminal Law (Amendment) Bill, 2003 was introduced in the parliament
and finally it became an enforceable Indian law from enforceable from July 5, 2006. It sought to
amend the Indian Penal Code 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC) and the
Indian Evidence Act, 1892 to improve upon the existing Criminal Justice System in the country,
which is inundate with a plethora of criminal cases and overabundant delay in their disposal on the
one hand and very low rate of conviction in cases involving serious crimes on the other. The
Criminal Law (Amendment) Bill, 2003 focused on following key issues of the criminal justice
system:-

(i) Witnesses turning hostile

(ii) Plea-bargaining

(iii) Compounding the offense under Section 498A, IPC (Husband or relative of husband of a
woman subjecting her to cruelty) and

(iv) Evidence of scientific experts in cases relating to fake currency notes.

Finally, it introduced Chapter XXIA Section 265A to 265L and brought the concept of plea
bargaining in India. The following are provisions which it added:-

• Section 265-A (Application of Chapter) the plea bargaining shall be available to the
accused who is charged with any offense other than offenses punishable with death or
imprisonment or for life or of an imprisonment for a term exceeding to seven years.
Section 265 A (2) of the Code gives the power to notify the offenses to the Central
Government.
The Central Government issued Notification No. SO1042 (II) dated 11-7/2006 specifying the
offenses affecting the socio-economic condition of the country.

• Section 265-B (Application for Plea Bargaining)

1. A person accused of an offense may file the application of plea bargaining in trails
which are pending.
2. The application for plea bargaining is to be filed by the accused containing brief details
about the case relating to which such application is filed. It includes the offences to
which the case relates and shall be accompanied by an affidavit sworn by the accused
stating therein that he has voluntarily preferred the application, the plea bargaining the
nature and extent of the punishment provided under the law for the offence, the plea
bargaining in his case that he has not previously been convicted by a court in a case in
which he had been charged with the same offence.
3. The court will thereafter issue the notice to the public prosecutor concerned,
investigating officer of the case, the victim of the case and the accused of the date fixed
for the plea bargaining.
4. When the parties appear, the court shall examine the accused in-camera wherein the
other parties in the case shall not be present, with the motive to satisfy itself that the
accused has filed the application voluntarily.

• Section 265-C (Guidelines for Mutually satisfactory disposition) It lays down the
procedure to be followed by the court in mutually satisfactory disposition. In a case
instituted on a police report, the court shall issue the notice to the public prosecutor
concerned, investigating officer of the case, and the victim of the case and the accused
to participate in the meeting to work out a satisfactory disposition of the case. In a
complaint case, the Court shall issue a notice to the accused and the victim of the case.
• Section 265-D (Report of the mutually satisfactory disposition) This provision talks
about the preparation of the report of mutually satisfactory disposition and submission
of the same. Two situations may arise here namely

1. If in a meeting under section 265-C, a satisfactory disposition of the case has been
worked out, the report of such disposition is to be prepared by the court. It shall be
signed by the presiding officer of the Courts and all other persons who participated in
the meeting.
2. If no such disposition has been worked out, the Court shall record such observation and
proceed further in accordance with the provisions of this Code from the stage the
application under sub-section (1) of section 265-B has been filed in such case.

•
o Section 265-E (Disposal of the case) prescribes the procedure to be
followed in disposing of the cases when a satisfactory disposition of the case
is worked out. After completion of proceedings under Section 265-D, by
preparing a report signed by the presiding officer of the Court and parties in
the meeting, the Court has to hear the parties on the quantum of the
punishment or accused entitlement of release on probation of good conduct
or after admonition. Court can either release the accused on probation under
the provisions of Section 360 of the Code or under the Probation of
Offenders Act, 1958 or under any other legal provisions in force or punish
the accused, passing the sentence. While punishing the accused, the Court,
at its discretion, can pass sentence of minimum punishment, if the law
provides such minimum punishment for the offenses committed by the
accused or if such minimum punishment is not provided, can pass a sentence
of one-fourth of the punishment provided for such offense. ”
o Section 265-F (Judgment of the Court) talks about the pronouncement of
judgment in terms of mutually satisfactory disposition.
 o Section 265-G (Finality of Judgment) says that no appeal shall be against
such judgment but Special Leave Petition (Article 136) or writ petition
(under Article 226 or 227) can be filed.
o Section 265-H (Power of the Court in Plea Bargaining) talks about the
powers of the court in plea bargaining. These powers include powers in
respect of bail, the trial of offenses and other matters relating to the disposal
of a case in such court under Criminal Procedure Code.

• Section 265-I (Period of detention undergone by the accused to be set off against
the sentence of imprisonment) says that Section 428 of CrPC is applicable for setting
off the period of detention undergone by the accused against the sentence of
imprisonment imposed under this chapter.

• 265-J (Savings) talks about the provisions of the chapter which shall have effect
notwithstanding anything inconsistent therewith contained in any other provisions of
the Code and nothing in such other provisions shall be construed to contain the meaning
of any provision of chapter XXI-A

• Section 265-K (Statement of the accused to be used) specifies that the statements or
facts stated by the accused in an application under section 265-B shall not be used for
any other purpose except for the purpose as mentioned in the chapter.
• Section 265-L (Non-application of the chapter) makes it clear that this chapter will
not be applicable in case of any juvenile or child as defined in Section 2(k) of Juvenile
Justice (Care and Protection of Children) Act, 2000.

Types of Plea Bargaining

Plea Bargaining is generally of three types namely:-

1. Sentence bargaining;
2. Charge bargaining;
3. Fact bargaining.
S.
Concept Type Meaning
No.

In this type of bargaining the main motive is to get a lesser sentence.

Plea Sentence
1. In Sentence bargaining, the defendant agrees to plead guilty to the
Bargaining bargaining
stated charge and in return, he bargains for a lighter sentence.
 This kind of plea bargaining happens for getting less severe charges.
This the most common form of plea bargaining in criminal cases. Here
Charge
2. the defendant agrees to plead guilty to a lesser charge in consideration
bargaining
of dismissing greater charges. E.g. Pleading for manslaughter for
dropping the charges of murder.

This is generally not used in courts because it is alleged to be against

Fact Criminal Justice System. It occurs when a defendant agrees to stipulate
3.
bargaining to certain facts in order to prevent other facts from being introduced
into evidence.

Plea Bargaining and Judicial Pronouncements

In Murlidhar Meghraj Loya vs State of Maharashtra (AIR 1976 SC 1929), The Hon’ble
Supreme Court criticized the concept of Plea Bargaining and said that it intrudes upon the society’s
interests. (see here)

In Kasambhai vs State of Gujarat (1980 AIR 854) & Kachhia Patel Shantilal Koderlal vs
State of Gujarat and Anr, the Apex court said that the Plea Bargaining is against public policy.
Moreover, it regretted the fact that the magistrate accepted the plea bargaining of accused.
Furthermore, Hon’ble Court described this concept as a highly reprehensible practice. (see here)

The Court also held that practice of plea bargaining as illegal and unconstitutional and tends to
encourage the corruption, collusion and pollute the pure fount of justice.

Thippaswamy vs State of Karnataka, [1983] 1 SCC 194, the Court said that inducing or leading
an accused to plead guilty under a promise or assurance would be violative of Article 21 of the
Constitution.

The Court also stated that “In such cases, the Court of appeal or revision should set aside the
conviction and sentence of the accused and remand the case to the trial court so that the accused
can, if he so wishes defend himself against the charge and if he is found guilty, proper sentence
can be passed against him”.

In State of Uttar Pradesh vs Chandrika 2000 Cr.L.J. 384(386), the Apex Court disparaged the
concept of plea bargaining and held this practice as unconstitutional and illegal. Here the Hon’ble
Court was of the view that on the plea bargaining Court cannot basis of disposing of criminal cases.
The case has to be decided on the merit. In furtherance of the same, court said that if the accused
confesses his guilt, he must be given the appropriate sentence as required by the law. (see here)
In the State Of Gujarat vs Natwar Harchandji Thakor (2005) 1 GLR 709, the Court
acknowledged the importance of plea bargaining and said that every “plea of guilty” which is
construed to be a part of the statutory process in the criminal trial, should not be understood as a
“plea bargaining” ipso facto. It is a matter of matter and has to be decided on a case to case basis.
Considering the dynamic nature of law and society, the court said that the very object of the law
is to provide an easy, cheap and expeditious justice by resolving disputes.

Arguments against Plea Bargaining in India

Voluntarily adopted Mechanism

As per the legal provision dealing with Plea bargaining, it is a voluntary mechanism which is only
entertained when accused opts it willingly. But the law is silent on the point that in case, the
settlement reached is contrary to the purpose of the legal system.

Involvement of Police

The Involvement of the police in plea bargaining also attracts criticism. As India is infamous for
the custodial torture by police. In such scenario, the concept of Plea Bargaining is more likely to
aggravate the situation.

Corruption

The role of victims in plea bargaining process is also not appreciated. The role of victim in this
process would attract corruption which is ultimately defeating the purpose which is sought to be
achieved by such action.

Independent Judicial Authority

The provisions of Plea Bargaining do not provide for an independent judicial authority to evaluate
plea-bargaining applications. This is one of the glaring reasons for its criticism.

The in camera examination of the accused by the court attract may lead to public cynicism and
distrust for the plea-bargaining system. The failure to make confidential any order passed by the
court rejecting an application could also create biases towards the accused.

Not the Final Solution

The reasons given for the introduction of plea-bargaining are the tremendous overcrowding of
jails, high rates of acquittal, torture undergone by under trial prisoners etc. But the main factor
behind all these reasons is a delay in the trial process. In India, the reason behind the delay in trials
is many e.g. the operation of the investigative agencies as well as the judiciary, personal interest
of lawyers etc. Therefore, the need of the hour is not a substitute for trial but an overhaul of the
system which can be in terms of structure, composition and its work culture. All these measures
would ensure reasonably fast trials.

Arguments for Plea Bargaining in India

Fast disposal of cases

The plea bargaining is beneficial for both the prosecution and the defense because there is no risk
of complete loss at trial. It helps the attorneys to defend their clients in an easy way because both
the parties possess bargaining power. This is how the long-standing disputes can be resolved and
the court would also not need to face encumbrance of case files. Moreover, Plea bargaining helps
the courts in preserving scarce resources for the cases that need them most.

Less serious offenses on one’s record

In a country like India, society plays a vital role. Once a person is stigmatized by society it becomes
very difficult for that person to survive. Many a time stigmatization leads to ostracization. In such
scenario, Plea Bargaining allows a person to plead guilty or no contest in exchange for a reduction
in the number of charges or the seriousness of the offenses. This results in recording less serious
offenses on the official court records of an accused. This can be good for the accused when he is
convicted in the future.

A hassle-free approach

Indian is known for its long-standing case. Many cases proceedings go for 8-10 year thereby both
the parties suffer. There have been instances where accused spent more time in jail than the
maximum punishment for which he was accused. Such instances show a grave infringement of
their human rights. Plea bargaining allows a person to plead guilty without hiring a lawyer. But If
they waited to go to trial, they would have to find and hire a lawyer, and in that process, they have
to spend at least some time working with the lawyer to prepare for trial and pay the lawyer. The
concept of plea bargaining safeguards the interest of such persons by avoiding the hassles that they
face when the case remains pending.

It avoids publicity

Moreover, Plea Bargaining is also a good mechanism to avoid publicity because the longer the
case goes the more publicity the accuses gets. Therefore plea bargaining avoids such publicity by
a fast settlement of the case. Famous and ordinary People who depend on their reputation in the
community for their living, and those people who want to escape any unnecessary stigmatization.
Although the news of the plea itself may be public yet it stays only for a short time when compared
to news of a trial.

How to be a master at Plea Bargaining

There is no straight jacket formula or mathematical precision to gain expertise at Plea bargaining.
Expertise comes with experience and to have an experience of something we need to step in that
thing.

To become a master of plea bargaining one has to be good at negotiations and communication. At
the end of the day, Plea Bargaining boils down to the bargaining. It is about how well you bargain
for your client. The better you bargain the better results you bring to your client. To become a
master of plea bargaining one need to be abreast of the facts and the relevant laws. Your convincing
power is one thing which makes you different. In the legal arena, cases are unique in themselves,
every case brings new opportunity to learn. The more plea bargaining you do, the more expertise
you will have. Except for these skills, logical and analytical reasoning skills are very relevant for
Plea Bargaining because it is very difficult to defy a statement backed by sound reasoning.
Therefore, a conglomeration of all these skills makes you a master of plea bargaining.

Alternative Dispute Resolution

Today’s world has become globalised and commercial with the advent of technology. People can
now contact each other and settle business deals and disputes when they are sitting at the opposite
ends of the world. Most people no longer have the time to go and file papers at the courts and then
wait long periods for a hearing. We are rapidly approaching a stage where litigation is being
replaced with alternative dispute resolution (ADR), due to the inefficiencies and drawbacks of
litigation. India hasn’t quite reached a stage where litigation has been completely displaced by
ADR methods, but the legal system is beginning to see the benefits of ADR. This article shall be
helpful to give you an overview of the ADR methods and how it is beneficial.

What is alternative dispute resolution?

Alternative dispute resolution (ADR) refers to a range of dispute settlement methods which help
the parties in the dispute to come to a settlement without going to court, or without litigating on
the said matter. These methods usually involve a third party, who helps them in settling the
disputes. In many cases, ADR methods are used alongside the litigation process as well through
court authorisation.
How did the concept of ADR arise?
As stated in the 222nd Report of the Law Commission of India, the Constitution has guaranteed
access to justice for all, primarily through Article 39A, which states that everyone must have an
equal opportunity of getting justice and this must not be denied to any citizen by reason of
economic or other sort of disabilities.

The report further states that ‘access to justice’ for the common masses in India means access to
the courts of law. But even that has been hindered, due to factors like poverty, illiteracy, ignorance,
social and political backwardness etc.

In a developing country like India, many people still live in poverty. When their rights get violated,
they often do not have the money to fight long battles in the Court. They do not have the money
to afford a lawyer. They do not know the legal system and procedures. Therefore, they often think
that the court system is an inconvenience.

These kinds of inefficiencies are shared reasons among many countries, which is why ADR is
being explored. The courts also have too many pending cases and these cases keep going on for
many years which is a tremendous burden to the courts.

These reasons prompted the Indian Government to enact Section 89 of the Code of Civil
Procedure, 1908 and replace the earlier Arbitration Act,1940 with The Arbitration and
Conciliation Act 1996, in accordance with the mandates of the United Nations Commission on
International Trade Law (UNCITRAL).

Pros and cons of ADR

Pros of ADR

• It is less expensive.
• It is less time consuming.
• It is free from the technicalities that are present in the court system.
• The parties are free to differ in their opinion and can discuss their opinions with each
other, without any fear of disclosure of this fact before the courts.
• There is no feeling of enmity between the parties as there is no winning and losing side.
They also get their grievances redressed and their relationship remains as it was before,
therefore, they can conduct future business deals with each other.
 • ADR is more suitable for multi party disputes, as all the parties can put forward their
opinions at the same place and in one go, rather than going to court again and again.
Also, it provides for a wider perspective of the dispute.
• The parties often have the choice of the ADR method to be used. They sometimes also
have the choice to select the individuals or bodies who will settle the dispute.
• The process is also very flexible, according to what suits the parties.
• The parties also have the option of being confidential. The ADR system also enables
the parties to put focus on practical solutions.
• A wider range of issues are considered and shared future interests of the parties are
protected.
• ADR system also allows for risk management.

Cons of ADR

• ADR is not helpful where a dispute is to be decided on the basis of a precedent.

• When there is a need for court and interim orders, ADR would not be useful.
• ADR is less suitable when there is a need for enforcement.
• When there is a need for live and expert evidence and analysis in a case, then ADR
would not be useful.
• When there is an imbalance of power, between the parties in the dispute, then ADR
would not work.
• If the case is of a complex nature, then the adjudicating body must look into minor
details and may need expert advice and suggestions. Here, ADR would probably not
work.

Types of ADR methods

There are various ADR methods, but they differ from country to country. This article shall look at
the main ADR methods used, with special focus on India.

• Arbitration

Arbitration in India is governed by The Arbitration and Conciliation Act, 1996. It is a form of
dispute resolution where one or more parties are appointed to adjudicate the dispute. They act as
third parties. This third party should be neutral and this party is referred to as an ’arbitrator’ while
the decision of the arbitrator, which is essentially a determination of merits in the case, is known
as ‘arbitration award’.
The arbitration process is informal and this process allows the dispute to be resolved amicably and
efficiently as it takes less time and involves lesser costs for the parties. Therefore, parties
frequently choose to arbitrate when disputes arise, especially in the business world. Big
corporations would rather settle disputes quickly, rather than fighting long cases in the courts.

Before the arbitration process begins, an arbitration agreement is required to be formed. This
agreement lays down the terms and conditions on which the arbitration process is carried out. It is
determined through this agreement as to how the process will be made cheaper, efficient and and
how the rules of evidence would be applied etc. This agreement should be valid as per The Indian
Contract Act 1972 and the parties must have the capacity to contract under Sections 11 and 12 of
the same Act.

Arbitral decisions are final and binding on the parties, who have limited scope of objecting to the
decisions. Non binding arbitrations also exist wherein the party can request a trial if it is not
satisfied with the arbitrator’s decision.

Main Types of arbitral proceedings

Ad Hoc Arbitration

Under ad hoc arbitration , the parties involved in the dispute determine the conduct of the
arbitration proceedings themselves, without going to an arbitral institution. In case if the parties
are not able to settle on one arbitrator, or one of the parties is reluctant to appoint that particular
arbitrator, then Section 11 of The Arbitration and Conciliation Act 1996 will be invoked by the
other party. Under Section 11 of the Act, the arbitrator for that dispute will be appointed by either
the Chief Justice of the Supreme Court or his designate or the Chief Justice of the High Court or
his designate.

• If it is a domestic arbitration, then the Chief Justice of the High Court or his designate
will appoint the arbitrator.
• If it is international commercial arbitration, then the Chief Justice of India or his
designate will appoint the arbitrator. In ad hoc arbitration, the fee of the arbitrator is
decided mutually by the parties and the arbitrator.

Institutional Arbitration

In this kind of arbitration, the parties decide in the agreement itself, that an arbitration institution
will administer the arbitration. The Indian institutions are International Centre for Alternative
Dispute Resolution and the Indian Council of Arbitration. These institutions formulate the rules
for arbitration owing to their experience in observing arbitral procedures and situations, therefore
they are prepared for all possible situations that may arise in future arbitration cases.
 • Mediation

In mediation, a third neutral party aims to assist two or more disputants in reaching a settlement.
This third party is referred to as the mediator. The mediator needs to properly communicate with
both the parties and use proper negotiation techniques, in order to make one party fully aware of
the other party’s perspective, through empathy and dialogue. This process is controlled by the
parties.

One of the characteristics of this type of dispute resolution is that the mediator is not allowed to
give an outcome of the dispute. The solution is given mutually, and the agreements are generally
non binding. Parties are in significant control of the mediation process and it is strictly confidential.
The parties can even go for litigation if they are not satisfied with the mediation process.

It must be observed that the main aim of the mediation process is to build relationships, and not to
make a decision. It is more of an amicable resolution of differences with potential form future
business between the parties.

• Negotiation

Negotiation is also a form of dispute resolution, but there is no third party to adjudicate the matter,
therefore the parties work together to find a mutually acceptable solution or a compromise. The
parties may choose to be represented by their attorneys during their negotiations. Negotiation is
not statutorily recognized in India. There are no set rules for conducting a negotiation.

Essentials of negotiation-

• It is a process of communication which helps to resolve conflicts.

• It can be entered into voluntarily and its outcome is non-binding.
• The parties are benefitted here as they have control over the outcome and procedure and
the process is carried out keeping their interests in mind.

• Conciliation

In conciliation, the third party, who is called the conciliator, talks to the parties involved separately
so that the parties can arrive at a mutually acceptable solution through facilitating talks between
the parties. Conciliation is also governed in India under The Arbitration and Conciliation Act,
1996. Under Section 61, conciliation is provided for disputes arising out of legal relationships,
whether they are contractual or not.
Difference between mediation and conciliation

In mediation, the mediator plays a more active role in the the process by proposing compromise
solutions after hearing all parties while in the case of conciliation, the conciliator has to bring the
parties into such a state of mind as to facilitate the parties to come to an acceptable compromise.

• Lok Adalats

In a country like India where there are many illiterate people, the concept of Lok Adalats is a
necessity. This was first introduced in 1982 in Gujarat. This concept mainly focused on reducing
the burden of pending cases on the Courts and has incorporated the concept keeping in mind
various factors like social justice.

Lok Adalats are governed under The Legal Services Authorities Act,1987. Sections
19, 20, 21 and 22 specifically deal with Lok Adalats. They have been organised by the State Legal
Aid and Advice Boards with the aid of District Legal Aid and Advice Committees. These have
helped poor people to avoid the inefficiencies of litigation. The aim of The Legal Services
Authorities Act was to provide access to justice for all, whether he be poor or rich. Since the poor
masses of the society were not being delivered on this promise, this Act was formed. This access
has been further strengthened by judgements of various courts, such as the Delhi High Court, in
the case of Abul Hasan and National Legal Service Authority v. Delhi Vidyut Board & Ors. AIR
1999 Del 88, where it gave an order for setting up permanent Lok Adalats. Further, the decision
given by the Lok Adalat is binding and shall be treated akin to the order of a civil court., thereby
increasing poor people’s access to justice.