Subject : CRIMINAL

   Title :       "plea - Bargaining" : A Catalyst Or A Compromised Mockery ?
   Author : Mr. Shankey Gupta  

Shankey Gupta*

Plea bargaining is introduced to provide a speedy alternative for those who know they are guilty and are ready to plead guilty, in such a case they deserve expeditious trial and some concession in their punishment.

The Indian judicial system has an age old history and since that age of history, our judicial system has been designated as the paragon of trauma, harassment and pain for the litigants. Just like young toddlers learn English in the primary schools with essay topics like "My Hobby", "My best friend", etc... law students grow up with topics for essays and moot courts like "justice delayed is justice denied" which conveys my sarcastic intentions clear. It makes me burst with laughter when I comment on this issue, since we all know that several efforts have been given in this regard, to build a system of efficiency and bring about speed in the system, fast track courts, lok adalats, arbitration, consumer forums, special commissions and many other modes have been accepted by our system, but still it has been insignificant to dispose the stacks of cases lying in the court rooms begging for justice. The people are now acquainted with it and as a student I am well versed to its tunes by now.

When we look into the statistics1 as regards the criminal justice system in India, they are horrifying! In 2001, the number of inmates housed in Indian jails were about 1,00,000 more than their capacity. It was estimated that 70.5 per cent of all inmates were under-trials and of these 0.6 per cent had been detained in jail for more than five years at the end of 2001. Numerous commissions and chief justices and various other hon'ble patrons have expressed their serious concern over this issue but to my three years experience, I feel it has never been worth any result, nor was it in the past.

In Kolkata itself, I have witnessed a criminal case wherein the accused was convicted after 23 years of undergoing the trail. While we criticize this aspect we are completely ignorant of the tyranny that the victim's family suffers, due to this delayed justice. The accused in most cases enjoy the better part of their life on bail and the conviction comes only in the late 50's for the accused.

Now, when our system suffers from inefficiency, the only remedy available is to look forward to the system of justice practiced in other developed nations. That has been always done in India, the entire legal structure in India has been contributed partially or wholly by the western countries. To enhance the speed of the courts in disposing cases, the United States, European Union and various other countries have adopted the system of 'plea bargaining' in their respective criminal justice systems so as to relieve the courts from the increasing number of files and to promote expeditiousness in adjudicating criminal cases. It is estimated that more than 90 per cent of the cases in America, are settled by plea bargaining. The history of plea bargaining is extremely old2, and in contemporary generation it has a wide amplitude to settle cases with efficiency.

The system of 'plea bargain' is a deal offered by a prosecutor as an incentive for a defendant to plead guilty. If every case in the justice system goes for trial before courts, then courts would be so overloaded that they wouldn't be efficient. Plea bargaining allows the prosecutor to obtain guilty pleas in cases that might otherwise go to trial. The Black's law dictionary3 defines the term as "a negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offence or to one of multiple charges in exchange for some concession by the prosecutor, usu: a more lenient sentence or a dismissal of the other charges - also termed as plea agreement, or a negotiated plea."

On various occasions the legitimacy of the system of plea bargaining has been put to controversies, but without going into the facts of such criticisms it is worth noting that, in 1970, the constitutional validity of plea bargaining was upheld in the leading case of, Brady v United States4 where it was stated that "it was not unconstitutional to extend a benefit to a defendant who in turn extends a benefit to the state". One year later, in Santobello v New York5 the United States Supreme Court formally accepted that "plea-bargaining was essential for the administration of justice and when properly managed, was to be encouraged."

Plea bargaining has been introduced as a prescription to the problem of over crowded jails, over burdened courts and abnormal delays. It cannot be denied that the practice should result in faster disposal of cases, because delayed trials are problematic in many aspects, the proposal may seem appealing.

The reasons that are cited for the introduction of plea bargaining is for the tremendous over crowding of jails, high rates of acquittal, torture undergone by petitioners/accused awaiting trial, etc can all be traced back to one major factor, that is, delay in the trial process. In India, the reason behind delay in trials can be traced to the delays of the investigating agencies as well as the over burdened judiciary. The Supreme Court suggested in the year 2004 that above every 40,000 people there should be one judicial authority and this parameter is far beyond acceptability till date. The population is multiplying every passing day but the number of courts are static, all this adds to the misery of the judicial system. Therefore the system of plea bargain was required in our system since guilty pleas can be disposed off in minutes, but disputed pleas require a lot of examination and trial procedure, etc which consumes a lot of time.

In India, plea bargaining was firstly recommended in the 154th Report of the Law Commission of India and subsequently in the 177th Report6, there were concerns regarding this growing delay latch in the judicial system, a committee comprising the former Chief Justice of Kerala & Karnataka High Court, Justice V S Malimath was requested to prepare a report on the reformation measures and in this report the system of plea bargaining was suggested as an efficient remedy. Thereafter, numerous proposals7 were made to introduce plea bargaining in the Criminal Procedure Code, but all of them failed, and they were reintroduced with slight moderations through the Criminal Law (Amendment) Bill, 20058, and thereon we have this system recognized in our criminal justice system which has also sparked off a controversy in the legal community and made a lot of hue-n-cry in the media.

Irrespective of the ongoing controversies, the system has been result-oriented to a great extent. The enacted proviso is absolutely simple and speedy; it enables an accused to file an application for plea bargaining in the trial court. The court, on receiving the application, examines the accused in camera to ascertain the voluntary will of the accused. The court issues a notice to the public prosecutor or the complainant to work out a mutually satisfactory disposition of the case. The negotiation of such a mutually acceptable settlement is left to the prosecution and the victim and the accused. On reaching a settlement, the court can award compensation based on it to the victim and then hear the parties on the issue of punishment.

Concerning the punishment, the court may release the accused on probation if the law allows for it; if a minimum sentence is provided for the offence, the accused may be sentenced to half of such minimum punishment; if the offence committed does not fall within the scope of the above, then the accused may be sentenced to one-fourth of the punishment provided or extendable for such offence.

The accused may also avail of the benefit under Section 428 of the Code of Criminal Procedure, 1973 which allows setting off the period of detention undergone by the accused against the sentence of imprisonment in plea bargained settlements. The court delivers the judgment in open court according to the terms of the mutually agreed disposition and the formula prescribed for sentencing including compensation for the victim. Since this decision is a mutual agreement of the accused, this decision is final and no appeal lies to any higher court (Articles 226, 227, and 136 of the Constitution of India, is an exception to this.) henceforth, the expeditiousness and transparency of the procedure is crystal clear, in view of the given procedure and it stands true to the fact that it will certainly reduce the backlog in the criminal courts in India.

The procedure is far better in many other ways for the reason that 'plea bargaining' may be applicable only in limited cases9, it does not apply to cases where the offence committed is a socio-economic offence or where the offence is committed against a woman or a child below the age of 14 years. Simply speaking it is applicable in respect of those offences for which punishment is upto a period of seven years.

Plea bargaining has come not only as a boon for the over burdened judiciary but renders benefits to many others. The principal benefit to the accused is that the accused is entitled to a lighter punishment than usual punishment prescribed after a regular trial. Secondly, the defendant saves an enormous amount of money which he could have lavishly spent around his advocates as their professional fee, documentation, clerical and miscellaneous expenses, etc... Thirdly, it saves a lot of time (of the court, defendant, public prosecutor) which was obviously required for the trial procedure, and the duration is never estimated, it could stretch to weeks or years. Fourthly, there are more chances that the guilty plea will be accepted by the court, the court wouldn't be skeptic to reject the plea on menial issues and that is far more profitable for the accused. Finally, it also benefits the public prosecutors by reducing their workload and obviously relieves the court off the growing number of cases.

Considering the procedure overall, one can rightly contend that it is a justified system since it has a synchronized balance between the principles of justice and the law. The Gujarat High Court appreciated this procedure and observed in State of Gujarat v Natwar Harchanji Thakor10 that, "The very object of law is to provide easy, cheap and expeditious justice by resolution of disputes, including the trial of criminal cases and considering the present realistic profile of the pendency and delay in disposal in the administration of law and justice, fundamental reforms are inevitable. There should not be anything static. It can thus be said that it is really a measure and redressal and it shall add a new dimension in the realm of judicial reforms."

There are many merits to this procedure as compared to the usual system of trial. The said scheme is available only in limited cases and not in all kinds of criminal cases as I have already discussed earlier11, the judges aren't ostracized from the scene, they exercise complete supervision over the procedure and have the discretion to reject the plea or take other substantial measures. Plea bargaining shall not benefit the habitual offenders, or established criminals, it is meant to benefit only the freshers! The accused should have a voluntary motive to plead guilty, if the intention isn't voluntary then the plea is liable to be dismissed ab initio. This procedure gives a chance to the victim to negotiate for a settlement, the status of the victim is to be considered by the prosecutor, in usual trial only the state prosecutor has the right to plead on behalf of the victim12. This relieves the victim with a considerate amount of compensation (However, the judges have their powers limited to sentencing only).

On the contrary, every new invention brings its own evils with it. The essay will turn incomplete if the hidden flaws of plea bargaining aren't discussed at length. There is no doubt that plea bargaining has been introduced as an alternative measure to relieve the court of the growing number of cases and not with a motive to strengthen the judicial system. Plea bargaining is nothing but a cover up of the inadequacies of the Government in dealing with each and every case that comes before it. It indirectly shows the incompetence of the traditional procedural laws. The Supreme Court condemned the introduction of plea bargaining in State of Uttar Pradesh v. Chandrika13, The Apex Court held that, "It is settled law that on the basis of plea bargaining court cannot dispose of the criminal cases. The court has to decide it on merits. If the accused confesses its guilt, appropriate sentence is required to be implemented... Mere acceptance or admission of the guilt should not be a ground for reduction of sentence. Nor can the accused bargain with the court that as he is pleading guilty the sentence be reduced."

While we look into the merits of plea bargaining we must be neutral to accept the demerits it is vested with. The bargaining (or negotiation) procedure makes it vital for the prosecutor to consult the police for matters of evidence and other factors (just like the court depends upon the charge-sheet filed by the police), and in a country like India, the very term police would bring with itself a lot of corruption, coercion, threats etc to the accused or the victim. And through the medium of police, all the politicians, anti-social elements, rich dominating class can gain control of the negotiations14 ! (In western countries like the USA and UK the policemen are considered far more reliable). The scope of plea bargaining isn't secured in privacy, it needs to be checked and the interference of the police has to be eliminated to a reasonable extent.

We must also consider the fact that for a majority of the Indians, pleading before a court of justice is a symbol of torture and zeal and the 142nd Law Commission Report states, "Prosecution pressures may cause innocent people to yield and forego their right to trial". Therefore, it is more likely that innocent people might plead guilty in order to escape the horrifying trial sessions, or even the prosecutors might pressurize the accused. At the same time, it is hard to see how the prosecution can derive more than a purely statistical benefit from the conviction so obtained 15, this should be the worst set back for our country.

The other flaw that comes to light is that the court is also a participant in the negotiation process, I feel the impartial nature of the court gets depreciated since the judges will be more keen to get rid of such cases. This is a rising problem in America where the judges are pre-determined to settle away such cases since 90 per cent of the cases are settled by plea bargaining. The courts won't presume the innocence of the accused anymore and the age old standard of proving the accused beyond reasonable doubt gets worn out with the increasing addiction to plea bargaining.

Some of the flagrant errors pointed out by the 142nd Report of the Law Commission of India include that the system is widely successful in America for the high rate of literacy. India isn't blessed with a high literacy rate and as such plea bargain may not be a success for our system since the major part of the population might not be aware of the pros & cons of the system. The report further points out that, The incidence of crime might increase due to criminals being let-off easily..." since the bargaining plea would be acceptable to all courts, that would be enough to promote crime in the state., and that "Criminals may escape with impunity and escape due punishment.", since the punishment applicable is certainly lower than the punishment prescribed as in due course of the usual trials.

It is also understood that this system has a wide amplitude to benefit the rich for they will be able to influence the prosecutors and the victims and the police during the bargaining procedure, and will dominate the poor who have no cognizance in our society. The best way to eliminate this obstacle is by conducting the negotiations before the court itself or in the presence of certain commissioners appointed by the court. The government can also design special forums to take up such bargaining sessions.

Although, the concept of plea bargaining has been introduced to reduce the growing number of cases in the criminal courts and to catalyze the delayed system prevalent for ages, it is enacted, to provide a speedy alternative for those who know they are guilty and are ready to plead guilty, in such a case they deserve expeditious trial and some concession in their punishment. But this concept undoubtedly undermines the public's confidence in the criminal justice system and as a result of this it will lead to the conviction of innocent, inconsistent penalties form similar crimes and lighter penalties for the rich. The legislature and the executive pose a challenge to strike a proper balance between the merits and the flaws discussed above.

To conclude, plea bargaining is undoubtedly, a disputed concept. Few people have welcomed it while others have abandoned it. It is true that plea bargaining speeds up case load disposition, but it takes place in an unsatisfied and in a translucent manner. Perhaps we have no other choice but to adopt this technique. The criminal courts are too over burdened to allow each and every case to go on trial, and we have to somehow cooperate with this compromised mockery, irrespective of its dark flaws for the moment. After all, not all good things come with absolute goodness, some come with problems as well, and we hope that the future of this concept will be revised soon.



* The author is a student of South Calcutta Law College. He can be reached at

1. National Crime Records Bureau at 

2. It is said that it was first recorded in the year 1920 in USA, it stretches its origin from 

3. The Black's Law Dictionary, 7th edition. 

4. 397 US 742 (1970) 

5. 404 US 257 (1971) 

6. In the year 2001 

7. The Bill was introduced in the Upper House of Parliament on 22-8-2003 and referred to the Standing Committee on Home Affairs by the Chairman. However, because the Lower House of Parliament was dissolved on 6-2-2004, the Committee could not present its report. The Bill may be taken up for consideration and passing in case the report on the Bill of the Committee on its constitution is presented in the Lower House and the Bill is passed by Upper House. See Lok Sabha? Bulletin, Part II, Wednesday, June 30, 2004 at ls/bulletin2/04/govtbusi300604.pdf 

8. It was passed by the Rajya Sabha on 13-12-2005 and by the Lok Sabha on 22.12.2005. The provisions were thus finally incorporated into the Code of Criminal Procedure, 1973 as Chapter XXI-A through the Criminal Law (Amendment) Act, 2005, notified in the Official Gazette of India as Act 2 of 2006 (hereinafter referred to as the Act). 

9. Section 265-A(1). For instance, offences affecting the socio-economic condition of the country? have been excluded. However, the determination of which offences would come within such a category has been left to the discretion of the Central Government. 

10. (2005) Cr. L.J. 2957 

11. That "plea bargaining" may be applicable only in limited cases, it does not apply to cases where the offence committed is a socio-economic offence or where the offence is committed is committed against a woman or a child below the age of 14 years. Simply speaking it is applicable in respect of those offences for which punishment is up to a period of seven years. 

12. Report of the Committee on Reforms of Criminal Justice System, 2003 

13. 2000 Cr.L.J. 384(386) 

14. In the name of Malimath: Bill on plea-bargaining seeks to subvert justice? at 

15. Loftus E. Becker, Jr., Plea Bargaining and the Supreme Court, (1988) 21 Loy. L.A. L. Rev. 757, 838 . Page no. 7 of 25.


















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