Bargaining basically means setting up of an agreement or understanding
between two parties with a view that each party can mutually decide as to what
interests him/her the most and which can ultimately lead to the doing of a
certain act by the other party diluting the intensity of the matter between
them. This is a mutually settled agreement.
Now, the concept of Plea bargaining under the Code of Criminal Procedure, 1973
carries with it the similar intent as above.
Plea Bargaining is a pre trial negotiation between the parties i.e the accused
and the prosecution in which the former, on his own accord, pleads guilty to
have committed an offence against the latter. And on the other side, the
prosecution agrees to drop or to mitigate the charges against the accused on his
pleading guilty. A Mutually agreed disposition is reached by both the parties
Plea bargaining as an entire separate chapter in the Code is included in Chapter
21 A running though sections 265 A to 265L.
Plea bargaining has its three main different types:
- Charge bargain, where the accused agrees to plead guilty to a lesser
charge in return of dismissing a greater charge.?
- Sentence Bargain, where the accused accepts the charges and agrees to be
punished with a mild sentence.?
- Fact Bargain, where the accused prevents some facts to be entered as
evidence and agrees to stipulate on some other facts.
In this present Article, I shall be discussing about the concept of Plea
Bargaining, also about the merits and demerits of the same. I Shall also be
discussing as to what better approaches should be considered in its place while
preserving the interests of both the parties to a dispute.
Plea Bargaining: How It Found Its Place In The Indian Legal System
The idea of Plea bargaining was first proposed by The Law Commission of India
through its 142nd and 154th Report. The Malimath Committee Report also provided
an impetus for the emergence of such idea.
Then, The Criminal Law (Amendment) Act, 2005, which came into effect on July 5,
2006, officially recognised the idea of Plea Bargaining by inserting the same in
the form of an all new chapter in the Code of Criminal Procedure, 1973. Plea
Bargaining is included in Chapter 21 A in the Code.
The United States Judiciary had first adopted the idea of Plea Bargaining.
Although, the Sixth Amendment to the US Constitution, which enshrines the
principle of fair trial, has no mention in it of plea bargaining, yet, as of
now, 90% of criminal cases in the United States are settled by plea bargaining
rather than by Jury trial.
Now plea bargaining has gained an international recognition and every major
country has adopted this idea, either entirely or in parts.
Having said that, it becomes necessary to discuss as to what were the major
causes for the inclusion of plea bargaining in the Indian Criminal Justice
System and also to understand whether there was actually a need for such an
Rationale Behind The Adoption Of Plea Bargaining
The major reasons for the inclusion of the idea of Plea Bargaining in the
Indian Criminal Justice System have been:
Firstly, the enormous amount of pending litigations in our Courts of Law:
There is no denying to the face that the Justice delivery system of our
country is lagging behind other Jurisdictions in terms of the pace of disposal
of pending litigations. To make it more clear, below are the statistics
reflecting the number of cases pending in our Courts of Law. These numbers are
distressing, however we have to accept the bitter truth.
According to the Ministry of Law and Justice Department, Government of India,
the total number of cases pending in the Hon'ble Supreme Court of India, High
Courts and District and Subordinate Courts are as below:
- Supreme Court: 62,054 (as on 31.08.2020)?
- High Courts : 51,57,378 (as on 20.09.2020)?
- District and Subordinate Courts : 3,45,71,854 (as on 20.09.2020)
This makes it nearing 4 crores. This is heart wrenching. Indian Judiciary is
facing a huge delay in the disposals of the litigations.
the rise in the number of under trial prisoners languishing in
prisons : The 25th Edition of the Prison Statistics Report in India released by
The National Crime Record Bureau (NCRB) reflects the condition of the present
scenario of the prison systems of our Country.
As per the Report, in the year 2019:
- The number of Under trials prisoners behind bars : 69.05%
- ?The number of convicts: 30.11%?
- The number of detenues: 0.67%
The above statistics shows that the number of undertrials prisoners eclipses
considerably the number of convicts in prisons. This represents a worrisome
, compensation to victims : Plea Bargaining involves
compensating the prosecution for the wrong done by the accused. On the other
side, the accused is relived off the intensity of the punishment which he would
have originally undergone had he not exercised plea bargaining. This reduces the
conflict between both the parties as they reach a compromise and also relieves
off the burden on the Courts of Law.
Goodness Of Plea Bargaining
Keeping in mind the above statistics, it's clear that plea bargaining was
introduced in the code as:
- It would assist in Lessing the load of pending litigations on the Courts
of Law, as the parties would settle their dispute mutually and amicably.?
- It would also help in resolving the problem of prison congestion.
- ?It provides for compensating the prosecuting for the crime committed by
- this would also mean that there would be no publicity involved in such
cases that are settled through plea bargaining.
Plea Bargaining, A Frailty
Now, having understood the major reasons for proposing and accepting plea
bargaining as a part of our criminal justice system and having discussed the
merits of the same, it's time that we reflect on the above scenario and
statistics and exercise our reason to question the legality and the
constitutionality of Plea Bargaining.
Here are some points proving of Plea Bargaining to be a frailty:
Apart from the above points, some important judgements of the Courts are
worth mentioning here:
- Under Section 265B (4)(a) of The Code of Criminal Procedure, the use of
the word May indicates that the outcome of the mutually satisfactory
disposition between both the parties may or may not include compensation to
the prosecution, which is not an impressive provision for the delivery of
speedy remedy in the form of plea bargaining.?
- Exercising plea bargaining results in a comprise or an arrangement
between the accused and the prosecution, which would not be an ideal
situation for someone (prosecution) who really and actually intends to seek
justice because a crime has been committed against him. Substituting the
right to fair trial of the parties with a compromise between them has never
been the object of our Criminal Justice System.
If that is the case then what is the need for the courts of law to function?
Every disputing party can then resolve their matters on their own. But the
fact remains that the courts are the only hope left for the injured party.
In fact, I will sue you or I will see you in court, there is a
reason that these phrases are common to hear not only in movies but also in
- The involvement of police officers in the process of reaching a mutually
satisfactory disposition in plea bargaining can lead to corruption or
coercion. There should be complete transparency in reaching a mutually
- Either of the parties to the dispute may exercise coercion on the other
party throughout the entire process of plea bargaining, thus leading another
loophole in this process.?
- Plea bargaining, as such, is neither an exemplary nor a deterrent
procedure which is going to create any impression in the minds of the
hardcore criminals prevent them in committing the crimes in future. The
purpose for imposing a punishment on the wrongdoer for some crime is to
create an admonitory affect on his mind so that he be dissuaded to commit
the same crime again in future or commit altogether a new crime.?
- Taking into account the above mentioned loopholes of plea bargaining,
it's clear that through this process the exercise of the fundamental right
of a person of fair trial as guaranteed under Article 20(3) is not
achievable, which thus is Also violative of the said Fundamental Right.
- In Murlidhar Meghraj Loya Etc V. State of Maharashtra Etc, the
Supreme Court held that:
To begin with, we are free to confess to a hunch that the appellants had
hastened with their pleas of guilty hopefully, induced by an informal,
tripartite understanding of light sentence in lieu of nolo contendere
stance. Many economic offenders resort to practices the American call
'plea bargaining', 'plea negotiation', 'trading out' and
'compromise in criminal cases' and the trial magistrate drowned by a
docket burden nods assent to the sub rosa ante-room settlement.
The business-man culprit, confronted by a sure prospect of the agony and
ignominy of tenancy of a 7 being a plea of guilt, coupled with a promise of
'no jail'. These advance arrangements please everyone except the dis-
tant victim, the silent society.
In this case, the court also held tha it is the duty of the state to enforce
the law and not to barter with the accused for lesser sentence. Supreme
Court declared that introduction of Plea bargaining is a necessary evil.
Therefore, it should not be introduced in Indian Penal System.
- In Thippaswamy V. State of Karnataka, it was held by the
It would be clearly violative of Article 21 of the Constitution to induce or
lead an accused to plead guilty under a promise or assurance that he would
be let off lightly and then in appeal or revision, to enhance the sentence.
- State of Uttar Pradesh V. Chandrika, the court held, Such a
procedure would be clearly unreasonable, unfair and unjust and would be
violative of the new activist dimension of Article 2 1 of Constitution
unfolded in the case of Maneka Gandhi v. Union of India,  1 SCC
It would have the effect of polluting the pure fount of justice, because it
might induce an innocent accused to plead guilty to suffer a light and
inconsequential punishment rather than go through a long and arduous
criminal trial which, having regard to our cumbrous and unsatisfactory
system of administration of justice, is not only long drawn out and ruinous
in terms of time and money, but also uncertain and unpredictable in its
result and the judge also might be likely to be deflected from the path of
duty to do justice and he might either convict an innocent accused by
accepting the plea of guilty or let off a guilty accused with a light
sentence, thus, subverting the process of law and frustrating the social
objective and purpose of the anti- adulteration statute.
- In the case of Kachhia Patel Shantilal Koderlal v. State of Gujarat
and another, the Supreme Court strongly disapproved the practice of
The courts of Law, thus, clearly disapproved of plea bargaining as a method of
justice delivery system.
I, believe that Plea Bargaining is not a necessity, rather it's something that
we have adopted into our system sans pondering on the other relevant and
necessary considerations the adoption of which would have revamped the criminal
justice system in our country and resulting in effortless machinery where the
right to fair trial would never be compromised.
The inclusion of Plea Bargaining in the criminal Justice system, keeping into
consideration all the reasons for its inclusion, is similar to giving a first
aid to an ill person to keep the symptoms away for a while of a disease which
has been diagnosed. Instead, we should discover the proper remedy for such
disease once and for all with a view to not let the same reoccur in future.
Therefore, further in this discussion there are some remedies that I believe
would be of immense support and worth considering for the road to complete and
Perspectives To Consider For Creating A Noticeable Change
- As discussed above, there are a huge amount of pendency of litigations
in India. So, instead of aiming for short cuts, it would be better and
meaningful if our Government work on the increase in the number of Judges
and Courts of Law in the country. As there are 19.66 judges per million (10
lakh) people in India, based on the 2011 census. So, this would ensure
speedy justice and disposal of pending litigations as well.
- As the number of Judges and the Courts would increase, the pace of
disposal of cases by the courts would be equally advanced, and the same
Would automatically result in decrease in the number of under trial
prisoners languishing in prisons. In this way, Justice will begin to be
- More prison and judicial institutions should be set up in the country so
that tasks could be divided among those institutions thus reducing the
amount of work load off them, which will ultimately result in the
achievement of desired goals of dispensation of speedy and complete justice.
Every victim in this country expects a fair trial when he intends to seek
justice for himself for the injury caused by the opposite party. Moving the
courts of law for seeking justice still remains the ultimate destination for
every victim. And when it comes to his knowledge that instead of a fair trial he
will have to end up making an arrangement or a compromise with the defaulting
party, his hopes become less bright.
Nothing is permanent, and I believe that with the passage of time, the justice
delivery system of our country will be better off than it is now. All we have to
do is to look a little deeper and realise that the things are not as
complicating as we perceive them to be. If the above shared approaches are taken
into consideration by the Government and us and are implemented in real sense,
then a time will come when our country will be on the pinnacle in terms of
dispensation of smooth and prompt justice delivery mechanism. And as a result of
the same our criminal justice system would become healthier and the rights of
each one will be preserved and defended at all times.
- AIR 1976 SC?
- AIR 1983 SC?
- AIR 2000 SC?
- 1980 CriLJ 553, 554
Award Winning Article Is Written By: Ms.Rasleen Kour
Authentication No: DE33617222494-1-1220