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Concept of Plea Bargaining: Overview of Plea Bargaining under the Indian Legal System (By-Kumar Aditya)

Concept of Plea Bargaining: Overview of Plea Bargaining under the Indian Legal System

Authored By-Kumar Aditya

School of Law, Bennett University


“Every saint has a past, and every sinner has a future”

- Oscar Wilde

Most of the convictions in criminal cases in the USA end not with the traditional jury trials instead it concludes through application of plea bargaining where the accused pleads guilty of the charges framed against him in return for certain leniency in terms of quantum of imprisonment term or dropping off few charges against him by the prosecution. Though in foreign jurisdictions like that of the USA, the federal judge’s role in successful conviction through plea bargaining is limited,[1] but, in India, through amendment to the Code of Criminal Procedure, power has been bestowed on judges to look at the viability and validity of such pleas to ensure that the process is voluntary. The concept of plea bargaining is based on the twin principle of delivering speedy justice to the victim, and at the same time, treating the accused with compassion since he/she has admitted to his/her guilt, this is also based on the reformative theory of justice where punishment is imposed on the convicted person not to create deterrence but to give him a chance to reform himself and reconnect with the society. From time to time, the constitutional validity of plea bargaining is challenged in almost all jurisdictions on the ground that it will amount to “trading justice for peace”. Thus, the present paper will deal with different aspects of plea bargaining including but not limited to analyzing its constitutional validity, its viability in applying it to civil matters, and how this can turn out to be a boon for India keeping in mind the pendency of cases and the principle of “justice delayed is justice denied.

Keywords: Plea bargaining, Justice, Constitutionality, Pre-trial negotiation, Voluntary.


Plea bargaining is an arrangement between the accused person and the prosecution in which the accused pleads guilty of charges framed against him/her in response to that the prosecution drops certain charges or pleads for lesser punishment to be given to the accused against what is provided in the concerned provision.[2] This is referred to as pre-trial negotiation between the accused and prosecution which may involve bargaining on the point of charges or the quantum of sentence. And, most importantly, it results in quick disposal of cases and also increases the conviction rate at the same time. In the USA, this is common practice to avoid long and complicated trials which in return reduces the burden on the courts, and, the situation is such that almost 75% of convictions in the USA happen through plea bargaining,[3] but, in India, this practice is still in its germinal phase.

In the pre-2006 period, India does not have any provision that inculcates the spirit of plea bargaining in its true nature and spirit even though the Code of Criminal Procedure, 1973,[4] contains the provision for the accused to plead guilty before the court, but, it is not the same as “plea bargaining”.[5] Even the Law Commission in its 142nd report suggested treating such accused with certain concession who pleads guilty of the offences charged against him/her, though it explicitly rejected the idea of entering into a bargain or negotiation with the prosecution over the concerned offences. Thus, it can be seen that even the Law Commission had initiated the suggestion for introducing reform under the criminal justice system in India, but, for one or another reason, the legislature focuses on deterrence theory instead of focusing on the reformative and rehabilitative aspects of the concerned accused person.

Just to provide a glimpse of the current legislative framework in India concerning plea bargaining, such practice is limited to those offences only which are punishable with less than 7 years of imprisonment, and the accused have to apply before the court for invoking the benefit of plea bargaining,[6] furthermore, even those offences which are committed against a woman or a child will not come under the purview of the said benefit. And, the court must ensure that the accused who pleads guilty has come before the court “voluntarily” without any sort of influence, or inducement.[7]

Types Of Plea Bargaining In Indian Jurisprudence:

There are mainly three types of plea bargaining which are widely recognized across the criminal jurisprudence of different countries which legally accepts such a plea from the accused person, these are;

(i) Charge Bargain: Charge bargaining is an arrangement in which the defendant enters a guilty plea in exchange for a reduced charge. This type of bargaining usually happens, it manifests as a felony being downgraded to a misdemeanor like reducing the charges of drug trafficking on the accused person to that of mere drug possession. Through this process, the accused may be able to avoid the obligatory minimum sentence for some crimes by lowering the charge during pre-trial negotiation.

(ii) Sentence Bargain: When an accused person agrees on the point of entering into a guilty plea in exchange for a reduced sentence, this is known as sentence bargaining. There are many different possible punishments for some offences. A sentencing compromise could ensure that the punishment for less severe offences is a fine rather than a jail term. And, in more serious circumstances, compromise on the point of quantum of sentence may reduce the length of jail term or change the nature of the sentence from incarceration to that of mere probation.

(iii) Fact Bargain: The third and least common sort of plea in plea bargaining is “fact bargaining,” which entails an admission of some facts (or “stipulating” to the reality and existence of demonstrable facts, hence obviating the need for the prosecutor to prove the accepted facts) in exchange for a promise by the prosecutor to an accused person about not introducing certain other facts which can be incriminating for the accused.

Plea Bargaining And The Constitutional Conundrum:

In the landmark case of Brady v. United States, the court established the constitutional validity of the concept of plea bargaining in the legal framework, however, the court was sceptical on the point of the prevalence of guilty plea, especially by poor/indigent defendants who are innocent but

has no apt means to prove his/her innocence.[8] Furthermore, the benefits of this kind of system have been highlighted by the Malimath Committee report, which considers plea bargain as a tool for getting speedy justice, reducing the cost of arduous trials, along with ending the uncertainty in terms of conviction.[9] The recommendation of the said committee was to an extent that it advocated settlement between the disputing parties when the consequences of the accused’s action were largely directed towards the victim and not the society at large, provided that the concerned offence most not fall under the ambit heinous or severe crimes.[10]

Before the 2005-amendment to the CrPC, the views of the Indian judiciary were unanimous for the fact that the punishment should be awarded to the convict in accordance with the crime committed by him/her,[11] though courts can show leniency in terms of punishment on the ground that the accused had pleaded guilty to the charges framed against him, but, in no case, the court enters into a bargain with the convict to create a win-win situation like that of negotiation.[12] The situation was such that, referring to American criminal jurisprudence, the Supreme Court of India held the practice of leading or inducing the accused to plead guilty in return for a promise that the quantum of punishment imposed on him shall be comparatively lighter is violative of the fundamental right of an accused person vide Article-21 of the Constitution, especially regarding the accused’s right to a fair trial.[13]

Though there is a complete shift in the criminal jurisprudence with the passage of the 2005-amendment to the CrPC which legally recognises the concept of a plea bargain in certain offences which are punishable with the imprisonment term of less than or equal to 7-years in toto. Furthermore, section-320 of the CrPC also entails some sort of bargain between the disputing parties in criminal cases, and the process of entering into any such compromise is in line with the withdrawal/abandonment of claim vide Order-23 of the Code of Civil Procedure, 1908. Since with subsequent judicial adjudications,

the scope of section-320 has been widened and even some non-compoundable offences are covered under the ambit of section-320 provided that the concerned offence is not heinous or it must not affect the socio-economic condition of the country.[14] Moreover, apart from the provisions recognising plea bargaining which are inserted through the 2005-amendment or compounding nature of offences vide section-320, Indian criminal law jurisprudence holds different judicial adjudication on the point of imposing lesser punishment considering different factors which are broadly referred to as “mitigating factors” that acts in favour of the convicted person in terms of the sentence.[15]

Opponents of plea bargain often criticise it on the ground that it acts as an inducement to violate the rule against self-incrimination vide Article-20, it is widely accepted that when there is an inducement or threat it pollutes the very essence of justice, and it also stands in derogation with the right bestowed on the accused under Article-21 regarding “right to a fair trial.”[16] While discussing the scope of the phrase “to be a witness” under Article-20, it has been settled that there must be some sort of communication of material facts which is required to be “compelled” and “non-voluntary” to attract the bar of Article-20(3) concerning right against self-incrimination.[17]

It is pertinent to note here that mere acceptance of the guilty plea will not stand in violation of Article-20(3), firstly, because the provisions contained in CrPC vide section-265C impose a duty on the Court to look over the fact that whether the concerned plea is voluntary or not. Moreover, plea bargaining in its very essence ensures the speedy trial and subsequent conviction of the concerned convict which also falls under the wider interpretation of Article-21.[18]

Thus, it can be said that on closer scrutiny of the plea bargain system, it can validly be said that it in no way stand in derogation with constitutionally guaranteed fundamental right contained in Article-20(3) and/or Article-21.

Jurisprudential Evolution Of The Concept Of Plea Bargain In India:

In the early phase of development of legal norms, laws evolved through the continuous and unhindered practice of specified guidelines which later on took shape of custom. Next comes the phase in which ancient codes were developed to govern the daily life activities of its subjects, these codes were considered as some sort of revelation from the deities,[19] thus, it was backed by divine sanction in order to preserve and protect the integrity of the state. And, it is argued that even modern laws somewhat trace back origin from these ancient codes only, at least in its germinal phase.[20]

In Indian jurisprudence, Dharmshastras and Smritis contain ample excerpts which advocate for providing a chance to the accused person for self-purification.[21] And, it was mandatory that certain additional measures like probation or admonition must be taken against the convicted person in addition to the penalty/punishment imposed on him by the existing law at that time.[22] Even in the ancient era, confession and repentance with respect to own act were considered essential measures for the purpose of attaining self-purification, and, it acts as a mitigating factor in terms of awarding a sentence against the convict person who confessed about his crime. One of the early records shows that during the reign of Vikram Chola, a husband had pushed his wife which resulted in the latter’s death, but, since the husband confessed his guilt and showed repentance for his acts, he was directed to burn a lamp in a temple for a specified time instead of going through any imprisonment term or capital punishment.[23]

On the other hand, Kautilya’s Arthashastra provides for detailed philosophy on the criminal justice system too apart from its dealings with economics, public policy, etc. On the point of imposition of punishment on convicted person, Kautilya was of the view that if severe punishment is imposed on the convict, he will become repulsive to society, while if mild punishment is imposed, then, such punishment will itself become subject to contemptible, thus, it is required that “deserved

punishment” must be awarded keeping in mind the factual matrix of individual cases.[24] Moreover, recognition of concepts like ignorance, temporary insanity, and inadvertence has also been recognised as mitigating factor on the point of imposition of punishment, and in suitable cases, these factors results in the commutation of severe punishment on the convict to the imposition of a fine only or reduction in the death penalty to that of life imprisonment.[25]

Moreover, even Quranic verses bestow mercy on the convicted person provided that the aggrieved party agrees to the same, and, the incident during the rule of Mughal Emperor Jahangir, his beloved wife Noorjahan accidentally killed a boy while hunting for the deer, and when the fariyadi cried before His Excellency, Jahangir imposed the punishment of “life for life” even on his wife in the cause of meeting justice. However, the Jury Courtiers and the aggrieved party too were perplexed by this decision and the jury members gave staunching reference to the Quran for reducing the severity of punishment imposed on Noorjahan for which the aggrieved father agreed too to show mercy to the queen, as a result of which the punishment was commuted to payment of bargained amount at the satisfaction of the concerned aggrieved party.[26]

Thus, these excerpts aptly show that though the concept of plea bargaining was not that much directly recognised in ancient Indian criminal law jurisprudence, reference to its wider horizon is quite evident in bits and pieces throughout the legal literature of that era.

Reason For The Delayed Justice Delivery System In Criminal Cases:

(1) Investigation-

This is an intrinsic part of criminal cases where the police must collect evidence or collection of evidence by a person other than the police officer who is authorised by the Magistrate investigation in the concerned case.[27] This process constitutes of several processes, which are;

Ascertainment of facts and circumstances in which the alleged crime has been committed.
Preliminary examination of several witnesses before presenting them before the court.

Search and seizure of relevant weapons or items which are relevant for the case.
Preparation and submission of charge sheet before the court indicating the opinion formed by investigating officer (I/O) on the charges framed against the accused person in the FIR based on the evidence collected and witnesses examined by the I/O.[28]
This is not an exhaustive list of processes that are involved in the investigation process, but, it highlights the complex nitty-gritty involved in the process as a result of which, the investigation continues for several months or even years in select cases. However, there are certainly other issues too which are intertwined with the investigation by the police personnel which cause the delay in the submission of a charge sheet before the competent court, these are;

(a) Inadequacy of Police Personnel: It is very much evident that the police stations are under-staffed keeping in mind the increase in population and crime rate along with a plethora of duties like patrolling, escorting criminals to courts and respective jails, security of VIPs, conducting an investigation on “n” number of cases at the same time with little staff strength, etc. are some of the reasons which answer the question of why a lot of time is being taken by the investigation officers in successfully submitting the charge sheet before the court as required by CrPC.[29]

(b) Public Co-operation: When it comes to the public masses towards the police personnel to co-operate with them so that to successfully convict the criminals, it is often observed that they abstain from coming forward to provide evidence against the concerned accused because of reasons like fear from the accused person, or the expenses which are involved in presenting themselves before different authorities and time spent in these activities.[30]

(c) Workload in lieu of Territorial Jurisdiction: Coupled with the issue of inadequacy of personnel, it is quite usual that an investigating officer might have several cases to conduct a thorough investigation in each of these cases as a result of which a lot of time is spent in travelling from one part to another as even the jurisdiction of police stations too are also wide, this results in compromise with the quality investigation which is the right of an aggrieved person and in some way it violates the right of accused who expects fair, impartial, and thorough investigation in his case.[31]

(2) Issues During Trial-

Even the trial process in India is cumbersome and takes a lot of time and effort from both bar and bench for the speedy resolution of a dispute between the parties or adjudication over the fact in issue, some of the major reasons for a delay in disposal of cases are;

(a) Problems Faced by Witnesses: Most of the time, trials go for several years as a result of which witnesses in the cases where their deposition is required to be made before the court of law, have to travel and wait for long hours for their chance to come up, but, most often the opposing counsel takes adjournments for some or other reason which makes the court itself a party to the miscarriage of justice. Moreover, even before the trial commences, these witnesses become subject to the threat of their lives from notorious criminals, and in the absence of a robust witness protection scheme coupled with the issues in the implementation aspect of the existing framework, these witnesses become hostile or show their unwillingness to come before the court at all.[32]

(b) Adjournments: Taking adjournments by opposing counsels is one of the tactics of harassing the witnesses and undermining the court’s authority, but, it is an unchallenged notion that in an adversarial system, the process of conducting trials is largely dependent upon the counsels. From time to time, several directions have been issued and even the CrPC contains the provision for expediting the procedure of witness deposition,[33] but, it has rarely been applied by the trial courts in the wake of a huge pile of cases for disposal in their roaster.[34] It has also been stated that taking adjournments without any viable cause shows dereliction in the advocate’s duty to the court, and if this trend continues by a particular advocate, then, it will amount to “misconduct” for which the concerned ‘Bar’ must take appropriate action against such advocates.[35]

(c) Judge’s Strength: Judicial vacancies in different courts and neglect of suggestions made by the Law Commission from time to time for the appointment of at least 50-judges/million population against the existing number of 13.5,[36]

it results in creating huge pendency of cases and the recent pandemic too contributed to the pendency issue since the courts were taking only on urgent matters, and the matters about bail or anticipatory bail. And, the situation is such that even though there is an increase in a number of cases over the years, judicial vacancies keep on increasing; in 2012 there was a vacancy of 3732 which increased up to 4213 in 2015.[37]

In civil matters there are a plethora of opportunities for dispute resolution like going through the Alternative Dispute Resolution mechanism instead of waiting in line for a court’s hearing, this is a lucrative opportunity as a result of which most of the disputes about corporate matters are now handled through ADR process instead on tradition court’s adjudication over the dispute. But, in criminal cases, there is a need to implement the black letters of “compounding of offences”,[38] and “plea bargain” in its true nature and spirit in an active manner especially for less serious offences which can also lead to speedy adjudication of cases, and can be fruitful for the aggrieved party too as he/she can get justice in no time.

(3) Judicial Approach Towards Plea Bargaining In The Pre-2005 Era:

Judiciary was sceptical towards the application of plea bargaining in an Indian society where there are huge chances of pressure being exerted by the accused person having the political and financial support to induce the poor victim to enter into an arrangement. Moreover, it was also considered an attack on the accused’s right to have a fair trial violating the very essence of the fundamental right of right to life vide Article-21 of the Constitution,[39] which according to the courts, can be addressed only if the accused have all the options to plead his/her case through proper trial and process of appeal.

In earlier times, courts were of the view that if any offence has been committed by the accused person, then, that should be tried before the court and punished (if found guilty). And, it is immoral to enter into any kind of arrangement in criminal cases, moreover, in case the accused person had

pleaded guilty then that can be considered as a mitigating factor while imposing a sentence on the said person, but, in no way it should be stretched to an extent that amounts to complete disregard to existing legislative framework.[40] Moreover, courts also took the existence of plea bargaining as against the public policy as it acts as an allurement to confess one’s guilt in return for lighter punishment.[41]

Conclusion & Suggestions:

Over the period, it is evident that Indian criminal law jurisprudence has adopted the crux of a plea bargain in the wake of a plethora of issues that are faced by the courts in dealing with the problem of pendency of cases. It is not true that this concept was not in existence in ancient India, on the contrary, evidence are available that implies the applicability of bargaining in criminal cases and some of these cases have already been highlighted earlier.

However, in India, this jurisprudence got its formal recognition after vehement recommendation put forth by the Law Commission through its 154th report and was also supported by the Malimath Committee which was formulated to suggest reforms in the criminal justice system. And, by this way, the CrPC was amended in 2005 and devoted the whole chapter-XXI-A to plea bargaining. But, this has not resulted in reducing the court’s burden, which is why need arises to revisit the scheme of a plea bargain.

First of all, chapter-xxxi-A of the CrPC must be amended to insert a provision to recast a duty on the court about informing the accused person while serving summons by the court about the possibility of entering into plea bargaining in the case presented before it. Furthermore, the classification of cases in which plea bargain can be entered into must not be based on the consideration “number of years” of punishment in that cases, instead, the ambit of s.265A(1) needs to be broadened to make it applicable to cases which are punishable with imprisonment term beyond seven years as well provided that it does not fall under the category of crime of severe/heinous nature. And, discretionary power in a limited manner can be bestowed on the courts through amending the provisions contained in s.265D, where court can have the power to amend

certain terms of the settlement between the parties after considering their socio-economic condition holistically.

The ambit of “socio-economic offences” vide s.265A(2) should be defined through legislative enactment or judicial intervention to prevent the arbitrariness which may take place due to its vagueness. And, a time frame should be given through amending s.265C within which both the parties must enter into some sort of settlement, in absence of which, the due trial must be commenced. Apart from all this, an awareness programs must also be conducted in jail where the under-trial accused must be educated with the possibility of pre-trial negotiation in suitable cases.

The major hurdle behind the application of this system lies in the fact that there is a general tendency amongst the accused persons to evade the confines of judicial adjudication as much as possible, and also, plea bargaining in India is permitted only in criminal cases with limited applicability on the offences which are punishable with an imprisonment term of less than or equal to 7-years in toto except cases which involves woman or child as the victim.

Moreover, there are several benefits that are attached to this system, as it has the potential to reduce the cost and time involved in conducting lengthy trials, and also it can give justice to the victim in a speedy manner. Furthermore, the time and money can be allocated to the most relevant cases on a priority basis through the resources which are saved through those cases in which successful pre-trial negotiations happened. Thus, it is required that the applicability of plea bargaining should be extended beyond the existing bar of a 7-years imprisonment term and can be applied to those cases as well which does not involve much harm to the body of an individual.

And, there is no plausible answer to the question that why the benefits of plea bargaining are restricted to criminal cases, instead, a suitable amendment requires to be inserted in the Code of Civil Procedure, 1908, to develop such a mechanism that can be universally applied irrespective of the fact that whether it is criminal or civil cases.


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