By M. Ilampari

Plea Bargaining is basically a pre-trial negotiation between the defense and prosecution, where the accused plead guilty in return for the reduction of charges made by the prosecutor and for lesser punishment. Sec 265A-265L of Code of Criminal Procedure, 1973 deals with Plea Bargaining. In 1996, 154th  Law Commission Report brought forth a recommendation to implement a method called ‘Plea Bargaining’ in India  , which is a well known model used in USA, to deal with huge arrears of criminal cases. But this came to fruition only on 2006, through Criminal Law (amendment) act, 2005. This led to the introduction of chapter XXIA in the code of criminal procedure, 1973.


 Indian judiciary have always detested the concept of plea bargaining and they are right to do so. Compromising in a civil case is encouraged, but achieving compromise in a criminal case is immoral and at best a necessary evil. In the case of State Of Gujarat vs Natwar Harchandji Thakor, it was said that the concept of plea bargaining is not recognized in any jurisdictions of our country and the court also added that it is illegal and unconstitutional as it encourages collusion and pollution of poor punt of justice.


 Article 20(3) of Constitution of India reads that “No person accused of any offence shall be compelled to be a witness against himself.” But the concept of plea bargain violates article 20(3) indirectly. Even if the accused   pleads guilty for an offense voluntarily, that plea is based on the promise of lesser sentence made by prosecution. Now such promise is a way of inducing an accused to self incriminate. In the case of The State of Bombay vs Kathi Kalu Oghad it was said that, compulsion means an act which is involuntary, under threat, coercion or inducement. So, now it is safe to say that inducing an accused to plead guilty with a promise of lesser sentence is a form of psychological compulsion. Obviously, a person cannot be said to be compelled when he gives evidence against himself voluntarily. But when a compulsion emanates from an authority, it will attract the provisions of art 20(3).

Concept of plea bargaining is somewhat similar to the provision of S.24 of Indian Evidence Act, 1872. Sec.24 of Indian Evidence Act deals with confessions obtained by threat, inducement or promise. Even though we cannot place plea of guilt and confession in an equal footing, it is necessary to compare them to understand the effect of plea bargaining. In the case of Pyare lal Bhargava v State of Rajastan, it is said that “the mere existence of the threat, inducement or promise is not enough, but in the opinion of the court the said threat, inducement or promise shall be sufficient to cause a reasonable belief in the mind of accused that by confessing he would get an advantage or avoid any evil of a temporal nature in reference to the proceedings against him.” So, a confession cannot be considered relevant if it is acquired based on the promise of lesser evil. The same must be applied to the plea of guilty as both are nearly same form of self-incrimination.


 The concept of protection against self discrimination, which we have discussed earlier is one the elements of fair trial which is guaranteed by our constitution. But this system of plea bargain is trying to circumvent a fair trial by inducing an accused. The purpose of introduction of plea bargain is to reduce the burden of courts which in other words, is to reduce the number of cases going to trial as much as possible. A state should organize itself in a better way if there is an overflow of cases. Finding methods to deny a trial for an accused is not an ideal way of dealing with that. Sacrificing the right to fair trial of the accused merely for reducing the burden of court is absurd and unacceptable.

The concept of fair and speedy trial was discussed in detail in the case of   Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar. In this case, it was held that right to speedy trial is a fundamental right and state cannot restrict it on the ground of financial constraints. The exact quote from judgment is as follow. “The State cannot be permitted to deny the constitutional right of speedy trial to the accused on the ground that the State has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus with a view to ensuring speedy trial”. The concept of plea bargaining is a clear violation of this judicial precedent.


Plea bargaining is morally gray because it is about negotiating with the accused and giving him a lighter sentence than what he supposed  to get under normal circumstances. This shows the laziness on the side of the state as they are supposed to find the evidence, prosecute the case and deliver justice.  Disposing a case by the means of plea bargaining will create distrust of court in society. This will act as an incentive to the offenders as it creates the impression that state is weak and incapable of taking them to trial. 

Even though our system of plea bargaining involves the participation of victim in framing a  mutually satisfactory disposition, it is not fair for a state to ask its victim whether they want to enter into a compromise because state is incapacitated by burden of cases.


The concept of plea bargaining is adopted from the USA. But studies show that the criminal justice system of USA is heavily affected by this plea bargain method. Recent data shows that 97% of felony cases are disposed by the way of plea bargaining. It doesn’t matter anymore whether the accused is innocent or guilty. The only way they are dealing with cases is by the way of plea. Even if the accused is innocent, the public defenders are persuading the accused to take the offer of prosecution. They usually say that victim won’t even stand a chance of acquittal in trial so the best option is to take the offer. Since USA doesn’t have any restrictions regarding plea bargaining like India, even homicide and sexual assault cases are solved by the means of bargaining. To make the matters worse, even victim is not involved in the process of plea bargaining. The situation in USA can be pretty much summed up by the quote from Justice Kennedy of US Supreme Court.  He defined plea bargaining as “the pre-trial horse trading between prosecution and defense lawyers determines who goes to jail and for how long. It’s not some adjunct to the criminal justice system. It is the criminal justice system.”


Plea Bargaining is waiver of right to fair trial by the accused. But right to fair trial is a fundamental right, and it was declared in Basheshar nath case, that doctrine of waiver has no application in fundamental rights. Thankfully in India, Plea Bargaining is still in its pioneer stage. As per the data of National Criminal Records Bureau , in the year 2016, 4887 cases were disposed by means of plea bargaining in whole of India, whereas 20,94,996 cases were sent to trial. So only 0.23% cases were disposed by means of plea bargaining. In 2018, 20,062 cases were disposed by means of plea bargaining while 21,38,710 cases went for trial. So, 0.91% of cases were solved by plea bargaining in 2018. Even if the rate of cases disposed by plea bargaining is comparatively low when compared to USA, we can see that there is a steady increase every year. It won’t take long until it takes off and becomes our only method of disposing many criminal cases. So, it is high time for the judiciary to intervene and strike down this unconstitutional practice of plea bargaining.

About the author

M. Ilampari is a student 4th year pursuing B.C.A.LL.B (Hons) from School of Excellence in Law, Chennai

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