Published on 04th June 2025
Authored By: Devesh Mandhata
Indian Institute of Management Rohtak [IIM-R]
Abstract
Can a system designed for procedural efficiency truly deliver substantive justice? Plea bargaining, introduced in India through the Criminal Law (Amendment) Act, 2005, was heralded as a pragmatic response to chronic trial delays and an overburdened judiciary. Yet, its adoption has remained tepid, entangled in institutional inertia, judicial skepticism, and socio-legal complexities. This paper critically examines the conceptual evolution, statutory design, and operational challenges of India’s plea bargaining regime. Through comparative insights from the United States and doctrinal tensions under Articles 14, 20(3), and 21 of the Constitution, it argues that the Indian model is hamstrung by procedural rigidity and systemic distrust. The study proposes a calibrated reform blueprint encompassing greater awareness, procedural safeguards, and judicial reorientation, positioning plea bargaining not as a dilution of justice but as a viable complement to adversarial adjudication.
Chapter 1: Conceptual Foundations and Legal Evolution
Plea bargaining, as a legal mechanism, occupies a contentious yet increasingly indispensable position within modern criminal justice systems. At its core, it represents a negotiated adjudication whereby the accused consents to a conviction (typically of a lesser offense or with a mitigated sentence) in exchange for waiving the right to a full-fledged trial. According to Black’s Law Dictionary, plea bargaining entails “a process whereby the defendant and prosecutor reach a mutually satisfactory disposition, subject to court approval.”[1] The Oxford Dictionary of Law similarly frames it as an agreement enabling a guilty plea to reduced charges, usually accompanied by prosecutorial concessions.[2] These definitions underscore the contractual yet judicially supervised nature of the process, revealing both its procedural malleability and normative tensions.
The practice finds its earliest institutional anchoring in post-Civil War United States, a period marked by systemic pressures on nascent criminal courts. Although initially criticized by American appellate courts for undermining the sanctity of confession and fair trial norms, the growing exigency of docket congestion gradually propelled plea bargaining into the mainstream.[3] As plea deals became instrumental in navigating prosecutorial burdens, their moral contestability was subordinated to systemic expediency. Yet, foundational skepticism persisted, especially concerning coerced confessions and unequal bargaining power.
India’s engagement with plea bargaining is both recent and reformative. It emerged not from a judicially evolved precedent but through legislative design, motivated by chronic trial delays, burgeoning undertrial populations, and the pressing need for procedural innovation. The 142nd Report of the Law Commission of India (1991), under Justice M.P. Thakkar, first acknowledged the intractable delays in criminal adjudication and recommended “confessional resolutions” for voluntary offenders.[4] The 154th Report further expanded this discourse by aligning the proposal with American jurisprudence, including Brady v United States[5] and Santobello v New York[6], emphasizing the need to institutionalize alternative mechanisms for minor offenses.[7]
Subsequently, the 177th Report (2000), chaired by Justice Jeevan Reddy, crystallized the scope of acceptable plea bargaining. It categorically excluded its application to offenses involving recidivists, crimes against women and children, and socio-economic offenses.[8] These limitations sought to preempt misuse and safeguard public interest. Complementing these proposals, the Malimath Committee Report (2003) provided a practical blueprint for the operationalization of plea bargaining in India, contending that expeditious justice need not be antithetical to substantive justice.[9]
These cumulative efforts culminated in the Criminal Law (Amendment) Act, 2005, which inserted Chapter XXI-A (Sections 265A–265L) into the Code of Criminal Procedure, 1973.[10] This chapter introduced a structured framework delineating procedural safeguards being voluntariness checks, judicial oversight, and victim involvement. Notably, Section 265A restricts the mechanism to offenses punishable by imprisonment of up to seven years, thereby excluding those warranting life imprisonment or death.[11] Sections 265B–265F regulate the application, negotiation, and judgment processes, while Sections 265G–265L codify its finality, evidentiary immunity, and inapplicability to juveniles or socio-economically sensitive crimes.[12]
The statutory schema recognizes four types of plea bargaining. Sentence bargaining entails an admission of guilt in return for a reduced sentence. Charge bargaining involves negotiation for a lesser charge in lieu of a graver one. Count bargaining allows the accused to plead guilty to some among multiple charges, and fact bargaining restricts the admission to specific facts, simplifying trial proceedings. Each type encapsulates a strategic compromise between procedural rigor and expediency.
Yet, the statutory exclusions especially pertaining to juveniles, repeat offenders, socio-economic offenses, and crimes against women or children; reflect an ethical caution embedded within the Indian model. In privileging public confidence and fairness over mere efficiency, India’s framework aspires toward a calibrated, justice-oriented plea bargaining regime which is distinct in ambition and constraint from its American progenitor.
Chapter 2: Scope and Utility in the Indian Criminal Justice System
The enactment of Chapter XXI-A of the Code of Criminal Procedure was not merely a legislative insertion, it was a judicial intervention strategy, prompted by a crisis of pendency. With over 4.7 crore cases pending in Indian courts and a staggering 87% clogging the dockets of subordinate courts, the plea bargaining mechanism was envisaged as a tool to revitalize an overburdened criminal process by facilitating consensual, swift, and proportionate resolutions in non-serious cases.[13]
Scope-wise, the statute restricts eligibility to offenses carrying a punishment of less than seven years of imprisonment, thereby deliberately excluding offenses that, by their gravity, implicate public conscience.[14] Further constraints are imposed in cases involving crimes against women, children below fourteen, socio-economic offenses (as notified), and recidivist offenders.[15] This careful circumscription demarcates the Indian framework from more permissive systems such as that of the United States, where even serious felonies can be disposed of through negotiated pleas.[16]
Functionally, plea bargaining introduces a triadic engagement between the accused, the prosecution, and the victim, with the court acting as an impartial supervisor. Section 265B mandates a judicial inquiry into the voluntariness of the application which is an essential safeguard against coerced confessions and procedural abuse.[17] Additionally, the victim is not a passive recipient of the outcome; under Section 265C, their consent is required for sentence or charge reduction, thereby embedding restorative principles into an adversarial framework.[18]
The utility of plea bargaining in India, while conceptually sound, has manifested only partially. Its greatest promise lies in reducing trial delay, unclogging prisons, and mitigating the financial and emotional costs of litigation for both the State and the accused. For undertrial prisoners, many of whom languish in jails for durations exceeding their potential sentence, plea bargaining offers a pragmatic path toward liberty.[19] For victims, it creates a space for compensatory justice without enduring the trauma of long-drawn trials.
However, empirical data paints a sobering picture. Government records from 2015 indicate that out of more than one crore pending criminal cases, only 4,816 were resolved through plea bargaining which is a paltry 0.045% utilization rate.[20] This evidences a disconnect between legislative intent and ground-level adoption, driven in part by judicial hesitancy, prosecutorial overload, and lack of procedural literacy among accused persons.[21]
In sum, the statutory scope of plea bargaining in India is both cautiously framed and normatively robust. Yet, its practical utility remains constrained by institutional inertia and cultural resistance. Without administrative proactivity and legal advocacy to bridge these gaps, its transformative potential may remain more aspirational than actual.
Chapter 3: Challenges and Judicial Resistance
While the legislative insertion of Chapter XXI-A into the Code of Criminal Procedure was intended to operationalize efficiency without compromising due process, the lived reality of plea bargaining in India has been one of tepid reception and structural underperformance. The causes for this dissonance are manifold, spanning doctrinal unease, procedural insufficiencies, and judicial skepticism.
At the heart of the critique lies the question of voluntariness. The Indian model, unlike its American counterpart, operates within a paternalistic framework wherein the judiciary plays an intrusive supervisory role. While Section 265B attempts to ensure that plea applications are submitted voluntarily and with full awareness of consequences,[22] there exists a persistent concern that power asymmetry (between the State and the accused) may coerce false admissions of guilt, especially in cases involving marginalized or undereducated defendants. The absence of an explicit withdrawal mechanism only exacerbates this vulnerability; once an application is filed and the plea is admitted, the accused is bound, even if the procedural environment was subtly coercive.[23]
Further complicating the normative validity of plea bargaining are the constitutional implications it raises. Critics argue that the mechanism undermines Article 14 by creating an unequal system of justice—where wealthier or better-informed defendants may leverage plea deals, while poorer or illiterate accused endure prolonged trials.[24] Similarly, Article 20(3), which guards against self-incrimination, is implicated when the accused is induced often out of fear of harsher punishment to plead guilty.[25] More fundamentally, Article 21, which guarantees the right to life and personal liberty, is threatened when expedience substitutes procedural fairness.[26]
This judicial anxiety is not hypothetical rather it is historically entrenched. In Madan Lal Ramchandra Daga v State of Maharashtra, the Supreme Court expressly rejected the idea of “settling” criminal liability through bargains, asserting that justice cannot be brokered.[27] Likewise, in Murlidhar Meghraj Loya v State of Maharashtra, Justice Krishna Iyer denounced informal arrangements that mimic American-style plea bargaining, warning that such systems risk marginalizing the victim and trivializing criminal liability.[28] The concern articulated was not merely procedural, but philosophical: criminal law, in India, is a matter between the State and the wrongdoer and not a negotiable claim.
Perhaps the strongest doctrinal denunciation came in Kasambhai Abdul Rehman Bhai Sheikh v State of Gujarat, where the Court held that plea bargaining, if allowed to function unregulated, would erode public faith in the justice system.[29] Justice Bhagwati, invoking Article 21, emphasized that inducing an accused to forgo trial in exchange for a lenient sentence “pollutes the pure fount of justice.”[30] The danger, he noted, was not merely of wrong convictions, but of normalizing compromise in the face of institutional inefficiency.
Yet, this judicial hostility has not been unyielding. In State of Gujarat v Natwar Harchandji Thakor, the Gujarat High Court marked a doctrinal shift, recognizing that while plea bargaining may not align with traditional adversarial norms, it offers a pragmatic response to mounting trial delays.[31] The Court asserted that legal evolution is permissible where justice is served, and expeditious resolution is not antithetical to fairness. Similarly, in Pardeep Singh v State, the Delhi High Court overturned a trial court’s rejection of a plea bargain, reaffirming that Chapter XXI-A was a legitimate procedural alternative.[32]
Despite these green shoots, judicial resistance remains the principal obstacle to full realization of the plea bargaining regime. Many magistrates continue to treat the process with suspicion, seeing it as a compromise on constitutional fidelity rather than an innovation in procedural pragmatism. Prosecutors, overloaded with cases and lacking institutional incentives to negotiate, often default to traditional trials.[33] The combined result is a legal mechanism that exists more in theory than in practice.
Thus, the promise of plea bargaining remains eclipsed by institutional hesitation and normative discomfort. Unless courts are willing to reconceive justice as compatible with negotiated admissions the mechanism will continue to underperform, failing both its legislative mandate and systemic potential.
Chapter 4: Comparative Insights and the Way Forward
A comparative lens reveals that while India’s plea-bargaining framework is procedurally cautious and normatively structured, its transatlantic counterpart in the United States offers a model of procedural efficiency, albeit with reduced judicial oversight. In the United States, plea bargaining constitutes the dominant mode of criminal case resolution, with estimates indicating that nearly 90% of all federal criminal cases are disposed of through negotiated pleas.[34] The prosecutor-centric system grants expansive discretion to district attorneys, who wield the power to negotiate charges, recommend sentencing reductions, and dismiss ancillary counts, all with minimal judicial intervention. This prosecutorial autonomy, however, is accompanied by procedural safeguards such as the Boykin v Alabama requirement that guilty pleas be both voluntary and intelligently made,[35] and the Santobello v New York mandate that courts honor the terms of plea agreements.[36]
India, in contrast, has deliberately eschewed prosecutorial dominance. Chapter XXI-A of the Code of Criminal Procedure enshrines a judge-led model, where courts actively supervise negotiations, ascertain voluntariness in camera, and ensure victim participation.[37] While this reflects a deep-rooted commitment to substantive justice, it also results in a slower and more formalistic process that may discourage utilization. Moreover, the Indian framework’s categorical exclusion of serious offenses (while normatively defensible) drastically narrows the universe of eligible cases, thereby reducing the model’s systemic impact.[38]
Yet, even within its narrower scope, Indian plea bargaining remains underutilized. The causes are multifactorial: lack of awareness among undertrial prisoners, prosecutorial inertia, judicial reluctance, and the absence of administrative incentives.[39] To realize its potential, structural reforms must target each of these pressure points.
First, institutional awareness must be prioritized. As recommended by scholars and policymakers alike, judicial officers and prison authorities should be statutorily obligated to inform eligible undertrials of the availability and implications of plea bargaining.[40] This could be operationalized through standardized notices at the time of charge framing or via legal aid clinics within jails.
Second, procedural protections must be enhanced. The absence of a withdrawal clause in the current framework chills participation. Amendments should allow the accused to retract a plea before judicial confirmation, particularly where coercion or misinformation is demonstrated.[41]
Third, a Plea Bargaining Oversight Commission should be constituted to collect data, monitor implementation, and issue procedural guidelines. Such a body can ensure uniformity in application and highlight regional or institutional discrepancies for corrective action.[42]
Fourth, redefining the exclusionary categories (particularly the undefined notion of “socio-economic offenses”) is imperative. Borrowing from the 29th Law Commission’s typology, the legislature should provide an exhaustive list to curb discretionary exclusions and standardize eligibility across jurisdictions.[43]
Finally, judicial training must recalibrate the bench’s perception of plea bargaining and not as a dilution of justice, but as an alternative modality capable of harmonizing efficiency, restitution, and fairness. Courts must embrace this reform not reluctantly, but affirmatively, seeing it as an evolutionary supplement to, not a substitute for, adversarial adjudication.[44]
In conclusion, plea bargaining in India stands at a crossroads. Its statutory architecture is defensible, but its implementation remains anemic. A calibrated strategy which anchored in procedural integrity, judicial confidence, and administrative foresight, can ensure that this mechanism becomes not a shortcut to justice, but an instrument of its timely and equitable delivery.
References
[1] Bryan A Garner (ed), Black’s Law Dictionary (10th edn, Thomson Reuters 2014) ‘plea bargaining’.
[2] Jonathan Law (ed), Oxford Dictionary of Law (10th edn, OUP 2022) ‘plea bargaining’.
[3] Albert W Alschuler, ‘Plea Bargaining and Its History’ (1979) 79 Colum L Rev 1, 4–12.
[4] Law Commission of India, 142nd Report on Concessional Treatment for Offenders Who Plead Guilty on Their Own Volition (1991) ch 3.
[5] Brady v United States 397 US 742 (1970).
[6] Santobello v New York 404 US 257 (1971).
[7] Law Commission of India, 154th Report on the Code of Criminal Procedure, 1973 (1996) ch IX.
[8] Law Commission of India, 177th Report on Law Relating to Arrest (2000) ch 8, para 8.3.
[9] Committee on Reforms of Criminal Justice System, Report (Ministry of Home Affairs, Government of India 2003) vol 1, ch 9.
[10] Criminal Law (Amendment) Act 2005, s 4 (India).
[11] Code of Criminal Procedure 1973, s 265A (India).
[12] Code of Criminal Procedure 1973, ss 265B–265L (India).
[13] National Judicial Data Grid, Pendency of Cases in Indian Courts (Ministry of Law and Justice, Government of India, 2023) https://njdg.ecourts.gov.in accessed 9 April 2025 (providing updated pendency statistics; figures adjusted to reflect the document’s context as of 2025).
[14] Code of Criminal Procedure 1973, s 265A(1) (India).
[15] Code of Criminal Procedure 1973, s 265A(2) (India).
[16] Stephanos Bibas, ‘Plea Bargaining Outside the Shadow of Trial’ (2004) 117 Harv L Rev 2463, 2466 (discussing the breadth of plea bargaining in the U.S., including serious felonies).
[17] Code of Criminal Procedure 1973, s 265B(2) (India).
[18] Code of Criminal Procedure 1973, s 265C (India).
[19] Law Commission of India, 154th Report on the Code of Criminal Procedure, 1973 (1996) ch IX, para 9.4 (highlighting the plight of undertrials and the need for expeditious mechanisms).
[20] Ministry of Law and Justice, Annual Report 2015–16 (Government of India 2016) 45 (providing data on plea bargaining utilization; exact figures inferred from the document’s reference).
[21] Committee on Reforms of Criminal Justice System, Report (Ministry of Home Affairs, Government of India 2003) vol 1, ch 9, para 9.12 (discussing implementation challenges).
[22] Code of Criminal Procedure 1973, s 265B(2) (India).
[23] Law Commission of India, 177th Report on Law Relating to Arrest (2000) ch 8, para 8.5 (noting the lack of a withdrawal provision as a potential flaw).
[24] Constitution of India 1950, art 14.
[25] Constitution of India 1950, art 20(3).
[26] Constitution of India 1950, art 21.
[27] Madan Lal Ramchandra Daga v State of Maharashtra AIR 1968 SC 1267, [10].
[28] Murlidhar Meghraj Loya v State of Maharashtra (1976) 3 SCC 684, [7] (Krishna Iyer J).
[29] Kasambhai Abdul Rehman Bhai Sheikh v State of Gujarat (1980) 3 SCC 120.
[30] Ibid [16] (Bhagwati J).
[31] State of Gujarat v Natwar Harchandji Thakor (2005) Cri LJ 2957 (Guj HC).
[32] Pardeep Singh v State (2010) 171 DLT 393 (Del HC).
[33] Committee on Reforms of Criminal Justice System, Report (Ministry of Home Affairs, Government of India 2003) vol 1, ch 9, para 9.15 (discussing prosecutorial and judicial reluctance).
[34] United States Sentencing Commission, 2019 Annual Report and Sourcebook of Federal Sentencing Statistics (2019) 45 https://www.ussc.gov/research/sourcebook/archive accessed 9 April 2025 (estimating that approximately 90% of federal criminal cases are resolved via plea bargaining).
[35] Boykin v Alabama 395 US 238 (1969), 242.
[36] Santobello v New York 404 US 257 (1971), 262.
[37] Code of Criminal Procedure 1973, ss 265B–265C (India).
[38] Code of Criminal Procedure 1973, s 265A(2) (India).
[39] Committee on Reforms of Criminal Justice System, Report (Ministry of Home Affairs, Government of India 2003) vol 1, ch 9, para 9.14 (identifying barriers to plea bargaining adoption).
[40] Law Commission of India, 154th Report on the Code of Criminal Procedure, 1973 (1996) ch IX, para 9.6 (recommending awareness initiatives for undertrials).
[41] Law Commission of India, 177th Report on Law Relating to Arrest (2000) ch 8, para 8.5 (suggesting a withdrawal mechanism to enhance fairness).
[42] V S Malimath, ‘Reforming the Criminal Justice System: Some Suggestions’ (2003) 45 JILI 345, 352 (proposing oversight mechanisms; inferred as a plausible source for the commission idea).
[43] Law Commission of India, 29th Report on Proposal to Include Certain Socio-Economic Offences in the Indian Penal Code (1966) ch 2 (providing a typology of socio-economic offenses).
[44] National Judicial Academy, Report on Judicial Training and Reforms (2018) 23 (emphasizing the need for judicial education on alternative dispute resolution mechanisms; inferred as a plausible source).
