MUMBAI: Had Pakistani-American terror plotter David Coleman Headley been tried in India, he would not have been able to enter into a plea bargain, say legal experts. Plea bargaining is not allowed in India for serious offences that attract the death penalty.
Headley plea bargained in the US in exchange for not getting the death sentence and escaping extradition to India in connection with the 26/11 attacks. On Thursday, he was sentenced to 35 years for conspiracy in the Mumbai attacks in addition to other charges. Upto 166 people died and 304 were injured in the 26/11 attacks in Mumbai.
"Headley would not have got the benefit of a plea bargain in India as the law does not permit plea bargains for serious crimes, like terror-related ones or murder," said former Supreme Court justice V S Sirpurkar on Friday in Mumbai. Senior counsel Amit Desai also said that a plea bargain would not have applied to Headley in India.
In India, plea bargains are only applicable if the offence attracts a punishment of up to seven years. However, again, they are not applicable if the crime is against a woman or child below 14. Many 26/11 victims were women and children. A plea bargain also doesn't apply if the offence affects the socio-economic status of the country. Headley could, however, have been an approver in India for a lighter sentence.
The US is bound by its plea bargaining deals, said legal experts. The US accepts plea bargains for even grave crimes, like conspiracy to commit and plot terror. US courts have held the law to be constitutional even though there have been debates about its efficacy.
Retired Justice Sirpurkar said in India many lawyers do not have faith in plea bargaining. He added that the "certainty of punishment" may have played a part with Headley. If he knew punishment was certain in the US, he would have admitted guilt and cooperated.
Double jeopardy: There is debate over whether Headley can now be tried in India. Aside from the no-extradition deal, some lawyers said an accused cannot be put in 'double jeopardy' and tried for the same offence twice. But, Desai said Headley could be tried under different charges in India, like waging a war against the country.
Video-conferencing: Chairperson of the All India Bar Association, Adish Aggarwala, said, "India could try Headley via a video-link, as he has committed serious crimes in India and against India. But the video-link's usefulness is debatable." Desai added that without extradition, Headley would be unable to be present for sentencing, which is mandatory. He said India could however pass on evidence got through a video-link to Pakistan for its trial.
Special 26/11 public prosecutor Ujjwal Nikam said that Headley can't be extradited to India or Pakistan, but since Pakistan's 26/11 case is still on, they could make him an approver.
Sirpukar added, "The conviction justifies India's position that everything went on from Pakistani soil."
Headley wouldn't have got a plea bargain in India: Experts
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Headley wouldn't have got a plea bargain in India: Experts
