Plea Bargaining in India: Scope, Benefits, and Challenges

Abstract

This article examines plea bargaining as a concept in India, one of the key legal reforms brought in to accelerate criminal trials and alleviate the humongous burden on the country’s overburdened judiciary. Enacted by the Criminal Law (Amendment) Act, 2005, the Indian system of plea bargaining is significantly weaker than that of its counterpart in countries like the United States, which is the very basis of criminal justice administration. This paper discusses the legislative history and regime of plea bargaining in Indian law, describing the procedural safeguards and limitations that encircle its application.

The article is a critical assessment of the projected benefits of the mechanism, including speedy disposal of cases, shortened case pendency, decongestion of prisons, and enhanced victim participation. It is also an inquiry into the internal flaws and shortcomings in plea bargaining, including coercion, asymmetrical bargaining power, victim marginalization, and violation of the constitutional rights of the accused, viz. the right to a fair trial and the right to the presumption of innocence.

Compared to international standards, the article puts India’s practice against world models, benchmarking best practices and gaps.

The analysis emphasizes the imperatives for sentencing guidelines reform, improved legal aid assistance, higher judicial training, and greater victim inclusivity. As a conclusion, the paper contends that although plea bargaining provides a realistic solution to systemic delay, its effectiveness in India hinges on achieving the precarious balance between expediency and justice. The reform must be informed by principles of the constitution to avoid becoming an instrument of miscarriage of justice or subverting the core values of India’s criminal jurisprudence.

Introduction

The Indian criminal justice system, which for a long time was marred with procedural delays, pendency of cases, and overcrowding of prisons, witnessed a foundational procedural change in 2005 when plea bargaining was formally introduced through Sections 265A to 265L of the Code of Criminal Procedure, 1973 (CrPC). This procedural change was legislated under the Criminal Law (Amendment) Act, 2005, and was a major departure from India’s criminal adjudicatory culture. Indian criminal trials have long been adversarial, where the guilt must be proven beyond a reasonable doubt by the prosecution. Plea bargaining, however, is a mode of alternative dispute resolution under criminal law where the accused enters a voluntary plea of guilty in exchange for a reduced sentence or other concessions from the court.

The notion has its roots in the Anglo-American tradition of law, especially in the United States, where more than 90% of criminal cases are settled through plea bargains. In India, though, its application is more traditional and restricted to certain types of offences—non-heinous crimes punishable by up to seven years’ imprisonment- and does not include socio-economic offence cases or those against the socio-economic fibre of society. It is allowed only where there has been a chance for the victim to participate and where the plea is volunteered.

This paper hypothesizes that though plea bargaining is an expedient device to confront the systemic issue of judicial lag and maximize allocation of resources, its application must be guarded and subtle, and it should still maintain the doctrine of natural justice and procedural justice. The evolution, purposes, advantages, and structural challenges of plea bargaining in India will be critically examined in this article. It shall advocate that unless and until the legal framework for plea bargaining is backed by appropriate safeguards, transparency, and supervision arrangements to guard against abuse and defend the rights of vulnerable accused, plea bargaining would not achieve its goal.[1]

Origin and Development of Plea Bargaining in India

Plea bargaining has been a part of the criminal justice system all over the world, especially in common law countries like the United States, where more than 90% of criminal cases are disposed of through negotiated pleas instead of full-fledged trials. In the United States, this process is a pragmatic necessity to deal with an overworked judiciary and provide speedy justice. But India took a long time to be reconciled to the idea, held back for decades by fears over coercion, voluntariness, and dilution of justice. The critics believed that in an unequal society, plea bargaining would result in coerced confessions and weaker sections being taken advantage of, diluting the very fundamental rights of the accused.

Notwithstanding such resistance, issues of judicial backlog, undertrial detention, and delay in adjudication led Indian policymakers to reconsider the proposal. The Law Commission of India, in its 142nd Report (1991) and later in the 154th Report (1996), reiterated forcefully the introduction of plea bargaining into Indian criminal law. The reports explained how the increasing pendency of cases, particularly minor offenses, clogged the system and affected the dispensation of justice.

Acting on these suggestions, the Criminal Law (Amendment) Act, 2005, added Chapter XXIA (Sections 265A to 265L) to the Code of Criminal Procedure, 1973 (CrPC). This chapter prescribes the statutory framework for plea bargaining in India. It restricts its application to situations where the offence is punishable by a jail term not exceeding seven years, and those which are detrimental to the socio-economic status of the nation, against women or children under the age of 14, and those which involve recidivist offenders. Additionally, it requires the voluntary participation of the accused, the attendance of the public prosecutor and, in some cases, the victim, thus embracing a participatory system for sentencing.

This hesitant and conditional embrace evidences India’s effort to harmonize expediency with procedural justice, domesticating a worldwide model to accommodate local socio-legal conditions.

Scope and Applicability of Plea Bargaining[2]

Plea bargaining in India functions within a narrow and narrowly defined ambit, evidencing legislative intent to achieve a balance between judicial efficiency and safeguarding of legal rights. In contrast to the wide-ranging application in jurisdictions such as the United States, where plea bargaining is extended to a broad category of offences, the Indian model is statutorily restricted in scope under Section 265A of the CrPC. It is extended only to offences:

• Subject to imprisonment for a period less than seven years,
• That do not impact the socio-economic status of the nation;
• That are not committed against a woman or a child under 14 years.

Further, plea bargaining is not available for repeat offenders or prior convicted individuals. This is the exclusion clause intended to avert hardened criminals from evading the full weight of criminal prosecutions so that the device does not turn into an avenue for loopholes for serial offenders.

The procedure requires the accused to submit a plea bargaining application voluntarily, with an affidavit asserting that the plea is voluntary, free from undue influence or coercion, or threat. On receiving it, the court examines the voluntariness in camera. On being satisfied, the court enters into a mutually acceptable disposition in the form of compensation to the victim and reduced punishment for the accused. Yet, the judge is not without discretion and can refuse the application in case of suspected foul play.

This restrictive framework finds its roots in India’s constitutional culture, particularly the right to equality (Article 14) and the right to life and personal liberty (Article 21). It keeps plea bargaining an exceptional path rather than an alternative to trial and does not undermine the fair trial principle underlying Indian criminal jurisprudence.

Procedure Under Chapter XXIA of CrPC

The procedure is carefully set out under Chapter XXIA:

– Voluntarily, the accused has to apply to the trial court, along with an affidavit claiming that the application is filed voluntarily and under a thorough understanding of the consequences.

– On receipt of the application, notice is sent to the prosecutor and the victim, and a preliminary examination in camera is done to establish voluntariness.

– If so, the court arranges a mutually satisfactory settlement between the parties.

– The result is noted, and the court delivers judgment accordingly.

This quasi-adjudicative procedure provides judicial supervision and seeks to avoid coercion or unequal bargaining.[3]

Advantages of Plea Bargaining in India

a. Prompt Disposal of Cases

The greatest benefit is the speedy disposal of criminal cases. With more than 4 crore cases pending in Indian courts, plea bargaining provides a practical solution to decongest the judiciary.

b. Lightening the Burden on Prisons

Numerous undertrial prisoners are kept in jails for crimes punishable with less than seven years. Plea bargaining allows early disposal and lightens the burden on congested prisons.

c. Victim Participation and Compensation

In contrast to adversary trials, plea bargaining is victim-inclusive, with negotiated compensation and restitution, which is congruent with the principles of restorative justice.

d. Cost-Effective Mechanism

It saves the state and accused the cost of litigation. It also reduces the burden on legal aid mechanisms.

e. Certainty of Outcome

The bargained nature of the plea guarantees to the accused certainty regarding the outcome, which is usually better than the uncertainty of an adversary trial.

Criticisms and Challenges

a. Risk of Coercion and Involuntary Pleas

One of the serious issues is the risk of coercion of disadvantaged or unrepresented accused to plead guilty because of fear of a long trial or ignorance of the law.

Case Law: Thippaswamy v. State of Karnataka (1983)[4]

The Supreme Court cautioned against coerced guilty pleas and stressed the importance of ensuring free and informed consent.

a. Undermining of Due Process

Plea bargaining, by avoiding  full trials, can weaken the procedural protections assured under Article 21 of the Constitution.

b. Disparity in Bargaining Power

With India’s socio-economic disparities, the capacity to bargain for good terms tends to be against marginalized groups, and this raises issues of fairness.

c. Public Perception and Legitimacy

It is contended that plea bargaining can result in a perception of leniency in criminal justice, especially in cases involving moral or public outrage.

d. Narrow Scope and Undue Cautiousness

Although the restricted applicability promises caution, at the same time, it limits the benefit of plea bargaining. Most crimes that can profit from plea deals are ruled out.

Comparative Jurisprudence

It is a leading feature of the criminal justice process in the United States. On the other hand, it is criticized for allowing ‘assembly-line justice.’

Brady v. United States (1970)[5]

The US Supreme Court also held that plea bargaining was constitutional but emphasized that pleas should be voluntary and informed.

India’s model, under judicial oversight and the involvement of victims, is possibly better regulated and transparent. But in its absence of prosecutorial discretion, the room for negotiation is also restricted.

Judicial Interpretation and Reception

The Indian judiciary has tentatively received plea bargaining. In State of Gujarat v. Natwar Harchandji Thakor (2005), the High Court of Gujarat affirmed the acceptability of plea bargaining and indicated its function within restorative justice, subject to not denigrating the judicial process.

Law Commission Recommendations and Reforms:[6]

The 239th Report of the Law Commission (2012) assessed the enforcement of plea bargaining and recommended enhancements, such as improved legal aid arrangements, public awareness campaigns, and extension to some economic offenses.

Conclusion

Plea bargaining in India is a paradigm shift in criminal justice, signaling a shift from a purely retributive and adversarial model to one with elements of restorative justice, efficiency, and pragmatism. It aims to alleviate the judicial establishment from the unwieldy burden of pendency and encourage prompt disposal of less serious crimes by convergence of the prosecution and accused. The innovation in law gives recognition to the necessity of procedural economy without compromising the fundamental guarantees of fairness and due process.

The placing of plea bargaining within Chapter XXIA of the CrPC, with the multiple eligibility limits and checks as to procedure, reflects a chary legislative action responsive to Indian constitutional ethos. The emphasis placed on voluntariness, oversight by the judge, exclusion from heinous crime, and facilitating victim participation, offers a good procedural safeguarding. But these admirable safeguards should not cloud the real practical issues, like lack of access to legal assistance, judicial disparities, and risk of coercion or undue pressure, especially by economically and socially disadvantaged accused.

To realize the full potential of plea bargaining, more reforms are necessary. These can include:

• Increasing its scope to cover some economic crimes with suitable checks;
• Applying independent review bodies to oversee judicial discretion
• Strengthening institutions of legal aid to facilitate equal bargaining;
• Giving specialized training to judges and public prosecutors to manage plea bargains with integrity and transparency;
• Carrying out public campaign messages to lower the stigma surrounding negotiated pleas.

If used with transparency, accountability, and compassion, plea bargaining can become an effective tool for decongesting courts, minimizing pre-trial detentions, and dispensing substantive justice. It is not a mere procedural shortcut but a legal reform that, if administered correctly, can make a substantial difference in access to justice in India’s criminal law jurisprudence.

Reference(s):

[1]Encyclopaedia Britannica, ‘Benefits of Plea Bargaining’ (Encyclopaedia Britannica, 26 March 2024) https://www.britannica.com/topic/plea-bargaining/Benefits-of-plea-bargaining accessed 9 April 2025.

[2]Judicial Training & Research Institute, U.P., ‘Plea Bargaining’ (IJTR) https://ijtr.nic.in/PLEA%20BARGAINING.pdf accessed 6 April 2025.

[3]SN Misra, The Code of Criminal Procedure: With The Juvenile Justice (Care & Protection of Children) Act and The Probation of Offenders Act (23rd edn, Central Law Publications).

[4]Thippaswamy v State of Karnataka AIR 1983 SC 747, (1983) 1 SCC 194, 1983 Cri LJ 1271.

[5]Brady v. United States, 397 U.S. 742 (1970)

[6]Law Commission of India, Official Websitehttps://lawcommissionofindia.nic.in/ accessed 7 April 2025.