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There are a vast number of litigations, pre trials and back log cases pending before the courts in India. Undue delay in hearing the matters often amounts to questioning of the credibility and reliability of the Indian Judiciary. In order to reduce the pendency and backlogging of cases, and also alleviate the sufferings of the undertrial prisoners, the Criminal Law (Amendment) Act (2005) has introduced sections 265A- 265L in the Code of Criminal Procedure (CrPC). Plea bargaining is a beneficial induction for reforming the criminal justice system in the country.
The pre-trial negotiation between the defendant and the prosecution whereby the defendant pleads guilty and the prosecution makes certain concessions is the general meaning of plea bargaining. The concession can be relating to the sentence or the seriousness of charge. It is a contractual agreement between the prosecution and the defendant and this contract can be enforced until approved by a judge.
Plea Bargaining in USA
Plea bargaining is a crucial feature of the American Criminal Justice system. In the landmark case of Brady v. United States, the constitutionality of plea bargaining was considered by the SCOTUS who ruled in the positive. The court recognised the mutuality of advantage for the prosecution and the State and erased the fears of the real guilty persons escaping lightly under this mechanism. A voluntary guilty plea is not just an admission of past conduct, rather, it is the defendant’s authorisation for the judgement of conviction without a right to trial before a judge. The Supreme Court also found that awarding lesser punishment is not invalid and is, in fact, beneficial for the State and the accused enters the correctional system with the frame of mind that enables success of rehabilitation. Similar position was reiterated in other notable cases like Hutto v. Ross, Backledge v. Allison and Chaffin v. Stynchcombe.
Plea bargaining is generally of two distinct categories: charge bargaining and sentence bargaining. The accused pleads guilty, not guilty or plea of nolo contendere in the United States. In India, the concept of plea bargaining is derived from the doctrine of nolo contendere.
Right to speedy trial and plea bargaining in India
In the landmark case of Hussainara Khatoon v. State of Bihar, the Supreme Court noticed several under- trial prisoners and took cognisance of the enormous delay in the disposal of criminal matters in the Courts. It lamented the travesty of justice for several poor under- trials and ruled that speedy trial is the essence of criminal justice. Further, delay in trial constitutes denial of justice.
In India, the concept of plea bargaining was not recognised as such. Reference was found in section 206(1) and (3) of CrPC and 208(1) of the Motor Vehicles Act, 1988. The Supreme Court assessed the importance of plea bargaining in Murlidhar Meghraj Loya v. State of Maharashtra (Per Krishna Iyer, Goswami JJ) and Kasambhai Abdulrehmanbhai Sheik v. State of Gujarat (Per Bhadwati, Sen JJ). However, the court ruled that the procedure of plea bargaining was unreasonable, unjust and violative of Article 21 of the Constitution prescribing that no person shall be deprived of life or personal liberty except according to procedure established by law. This, however, restricts to the context of entering into plea bargaining in an informal way and without legal sanction.
Objections to plea bargaining in India
It was contended that the introduction of plea bargaining is counterproductive in Indian criminal jurisprudence because the social condition of the country viz., economic and educational conditions does not justify the introduction of the concept. Therefore, the poor will be the ultimate victims of plea bargaining. However, the Law Commission was of the opinion that such criticisms are unwarranted as plea bargaining saves aa lot of time, cost and resources and also makes rehabilitation and reformation of offenders easier. It also concluded that plea bargaining must be restricted to “less serious” offences and socio- economic offences are offended.
Chapter XXI-A of the CrPC
Sections 265A to 265L of the CrPC deals with plea bargaining. Section 265A lays down the applicability of plea bargaining and clearly enunciates that it is available only for offences whose punishment is lesser than 7 years. It excludes offences whose punishment is death, imprisonment of life, imprisonment greater than 7 years and socio- economic offences against a woman or child lesser than fourteen years.
Section 265B allows the accused to file an application of plea bargaining in the Court which is accompanied with a sworn affidavit as to the voluntary confession of the offence, while the case is subsisting in the Court. The guidelines for satisfactory disposition among the parties is laid down in Section 265C. The Court delivers a judgement on plea bargaining under Section 265F and the finality of the judgement is stated under Section 265G of CrPC. The non- obstante clause is contained in Section 265J.
- Law commission of India, One Hundred Forty Second Report on Concessional Treatment for Offenders who on their own initiative choose to plead guilty without any Bargaining (1991).
- Rosie Athulya Joseph, Plea Bargaining: a means to an end, Manupatra
By Ananya Bhat
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The term “transgender” refers to people whose gender does not correspond to that which was assigned to them at birth, such as those who identify as female but are male at birth or those who identify as male but are female at birth.
The biggest problem is how it is understood; while some people can identify as transgender from an early age, others struggle with this and only come to terms with it later in life. Whether they are athletes or not, these people frequently experience hostility from the culture in which they reside; even the IOC (International Olympic Committee) shows little concern for them.
Values like fraternity, teamwork, equality, discipline, justice, and respect are embodied in sports. It brings people from all walks of life together so they can interact, compete, and forge bonds of brotherhood. It has been observed, nonetheless, that some of its unfavourable laws and restrictions serve as a foundation for exclusion as well.
Without their knowledge or awareness, transgender athletes are subjected to harsh screening procedures by the sporting community and are treated indifferently.
Sex verification or gender determination tests are conducted on athletes to determine their hormone and testosterone levels. These tests have been around for a while, and their main purpose is to stop men from dressing as women to compete unfairly against other athletes. However, there are some problems with the same, such as the fact that when female athletes are forced to undergo such tests, they feel alone and a lack of identity develops, which can cause depression and even suicide, as in the case of Santhi Soundarajan, who attempted suicide after failing the sex verification test. The main concern is the worry that men who pose as women may get an unfair competitive advantage in sports and eventually take over and rule women’s sports, particularly athletics. However, it is important to note that the topic of transgender and intersex athletes, as well as the other issues they confront, should not be confused with the quite unrelated issue of gender fraud. However, it is undeniable that there is a thin line between someone who wants to alter their gender for sincere reasons and someone who does it to obtain an unfair competitive advantage. It could be challenging to determine the difference; therefore, it must be inferred from circumstantial evidence. It should also be emphasised that this duty is far from simple because other aspects become crucial and it is impossible to evaluate the case in isolation. Without regard to the nation or the sport, the media seizes every chance to cover a dispute in the world of sports.
Sports involving transgender athletes are a contentious subject, especially when it comes to trans women who allegedly exhibit higher amounts of testosterone than cisgender women and are therefore superior to them.
Supporters claim that the testing is necessary to ensure fair competition and equality among the athletes. Some female Olympians also agreed that the testing was necessary to identify men who were dressing as women, rather than to protect women who might be vulnerable to such tests due to certain congenital conditions. Additionally, these tests only approximate the gender, not the precise genetic characteristics that make a girl to be a female. Additionally, some medical professionals have discredited such testing, claiming that it is unethical and unreliable for determining a person’s gender.
VIOLATION OF EQUALITY
In order to assure fairness, these tests are only performed on female athletes. This is because male impersonators may dominate the sport of athletics, whereas female impersonators would not have an advantage over other competitors. This is essentially predicated on the notion of male physical dominance, which is based on sex superiority rather than someone having a better personal potential. The “gender parade” was one of the practices the IOC Medical Commission utilized until 2000, at international games or Olympics, in which women athletes had to parade naked in front of IOC Medical Commission members, assuring all females possessed the sexual characteristics of a woman.
Santhi Soundarajan, a woman from Tamil Nadu, was stripped of her silver medal from the 2006 Asian Games held in Doha, Qatar, after failing a sex verification test, and she was deemed ineligible in the women’s competition as she didn’t possess the sexual characteristics of a woman. Her case highlights the plight of transgender people in India. The Olympics Council of Asia was unable to provide all the necessary laboratory tests to support their case against Santhi, and the Indian Olympic Association (IOC) instructed her to stop competing without informing her of the type of test she had failed. This demonstrates their lack of accountability for taking an athlete’s medal away without providing adequate justification. As a result, her rights were violated, and the government, which has a duty to defend the rights of athletes who are representing their nation, did not follow suit.
The main complaint is that, unlike doping, which is used on both male and female athletes, the sex determination test is mostly used on female athletes, leading to discrimination, inequality, and invasion of privacy. Sex testing has been used to limit the participation of women in sports, but medical professionals view this practise as unethical, unscientific, and without any real benefit.
Additionally, negative psychological effects from gossip, media, and testing of players without their knowledge can result in those athletes feeling ashamed, withdrawing from sport despite it being their source of income, and ultimately attempting suicide. Women who failed these examinations faced discrimination, while those who declined to take them had to deal with rumours about their sexual orientation. The best thing that can be done to support these athletes is to educate the government about its responsibility to uphold the rights of its athletes who would bring honour and pride to the nation through their accomplishments. Additionally, the various organisations and committees organising competitions at the national or international levels should refrain from enforcing such unfair rules and regulations.