plea bargaining in india

With the advent of plea bargaining in India , dynamism has been infused into the criminal justice system which has been consistently dubbed archaic. Thus it is hoped with the barriers have been broken and the previously imposed glass ceilings have been shattered to find a solution to overcrowded criminal courts, increasing under trials languishing in jails and combat the increased pressure on judiciary which is reeling under a severe backlog of cases to move cases quickly through the overburdened system. 
Finally after 3 years of vigorous debating, the 142nd , 154th Law Commission Reports and the recommendations of the Malimath Committee were taken into consideration and with the inserton of Chapter XXI A, plea bargaining breath life in Indian Criminal Justice system as the 2005 criminal law amendment Act enumerated in Sec.265 (a) – (l) of Criminal Procedure Code, 2006.
Plea Bargaining is essentially derived from the principle of ‘Nolo Contendere’ which literally means ‘I do not wish to contend’. The apex court has interpreted this doctrine as an ‘implied confession, a quasi-confession of guilt, a formal declaration that the accused will not contend, a query directed to the Court to decide on plea-guilt, a promise between the Government and the accused, and a Government agreement on the part of the accused that the charge of the accused must be considered as true for the purpose of a particular case only.’[1] Thus While guilty plea is admissible as evidence against the defendant, plea of ‘Nolo Contendere’ is not.
In it’s most traditional and general sense, “plea- bargaining” entails pre trial negotiation between the defendant and the prosecution, during which the defendant agrees to plead guilty in exchange of certain concessions by the prosecution,[2] Like exchange for the reduction in sentence (sentence bargaining)or for dropping of charges(in case of multiple charges), or settling for less grave charge (Charge Bargaining), the accused also has an option of settling for less incriminating presentation of facts (fact bargaining).
Origins of plea bargaining
Originally an Anglo-American system of by-passing juries to reduce work load, plea bargaining arose between 1830 and 1840 as a part of a process of political stabilization, and as an effort for legitimate institutions of self rule accomplishment, that were vital to support efforts to reconsolidate political power of Boston’s social and economic elite[3]. Plea Bargaining also came in the limelight in the Alameda County, California in the 1880’s where judges apparently gave credit for guilty pleas[4]. Plea bargaining has its remnants even in the Middle East where Shariyat Laws prevail, wherein a man may be pardoned for committing murder by the family of the victim if he pleads guilty seeking mercy
The pressing need for plea bargaining – Objective
With the dawn of this amendment long and costly trials are being avoided and efficacious reprieve is being given which is based on consent of the parties .the results furnished are thus pre-decided and are not contrary to expectations, counterintuitive or perverse. It’s this security of plea bargaining over ceaseless trial, flanked by an element of   uncertainty and undesirable results which has made the entire concept extremely popular in other jurisdictions. The state of undertrials in the country is appalling. On a report based as on the 31st December 2004, about 11 states have overcrowding prevalent in their jails 39% higher than the all India average. About 70.1%of all prisoners are undertrials[5]. Amongst the women undertrials 12.8% of the women raise their children in jail[6]. Also, about 60% of the undertrials stay in jail for about 3-5 years. The 142nd Law Commission Report explains how plea bargaining is the answer to speedy trials, in order to reduce the staggering statistics, disposal of arrears, and to let innocents who live in sub-human conditions causing untold harassment, reducing the burden of judges and therefore will restore some credibility to the criminal justice system, serving the real purpose of victimology .
The Malimath Committee reiterated the benefits to the defendants who are left to choose between the certainty of accepting sentencing for a much less serious charge, or the uncertainty of a trial, risking being found guilty of the original, more serious charges since the prosecutors have wide discretion to charge the defendant with the highest charges that are applicable to the situation at hand. The sentence can be suspended  and he can be released on probation.
It is beneficial to the prosecution not only due to an assured conviction but also the flexibility involved in negotiating the outcome regarding sentences, charges and compensation without waging long, expensive and valiant battles.
This process enables avoiding hassles of paucity of resources , expenditure , agony and publicity involved in a trial.
The axiom on which the criminal justice system thrives in India i.e. ‘Better to let hundred guilty men go free rather than convict one innocent man', lends weight to logical conclusion that there is no conviction unless there is evidence beyond reasonable doubt to convict the accused. Thus plea bargaining is a welcome course to obtain justice also since the conviction rate is extremely low.
Features of Plea bargaining in India : a critical analysis
In India plea bargaining is not available for grave or heinous crimes (offences where death penalty or punishment above 7 years is prescribed) and habitual offenders. Crimes involving offences against women, children below the age of 14years and socio-economic offence are expressly ruled out from the scope of bargaining.
In India the legislation has endeavoured to make plea bargaining a tripartite process. It is pertinent to note that under the scheme available in USA, the settlement is out of court whereas in India it is proposed to involve the court as adjudicator between the parties,  ensuring voluntary conduct .This was done since the Court is charged by the Constitution to act as a sentinel on the qui vive guarding the fundamental rights guaranteed by the Constitution and public instill immense faith in judicial trials due to the belief that it ensures a check on unjust enrichment of either of the parties and the proceedings take a just and unbiased course. 
The Accused is examined by the court in private in camera to ensure absence of any coercion or external influence to plead guilty. If the case has been filed by the police then the police officer who has investigated the report will also participate in the settlement. A magistrate is allowed to prefer from 4 types of sentences which range from pardon and release on probation under the provisions of the Probation of Offenders Act, 1958 (20 of 1958) or any other enactment pertaining to the same. The application of plea bargaining in India has no evidentiary value as has been provided for in Sec (265 K).
Understanding the holistic approach of the legislature
To gather the intent of the legislature all the constituent parts of the statute are to be taken together and are to be considered in the light of the general object of the act. The cardinal principle of interpretation of socially beneficial legislation is that they should be construed liberally and unnatural and unreasonable interpretations should be avoided which might choke all beneficial legislation.
Compensation: It is stated in §265C, that while the mutually satisfactory disposition is worked out, the compensation and other expenses payable to the victim is included. Therefore, the accused cannot contest the quantum of the compensation which is quoted or voluntarily acquiesced to. In the absence of a guideline to work out the compensation the prosecutors have no restrictions or bars in deciding the quantum of compensation such an arbitrary provision leads to discrimination between people having financial ability to meet the prosecutions demands and those who are economically disadvantaged despite being similarly circumstanced i.e. being prosecuted for the same offence. The lacuna in plea bargaining has given scope of exploitation and “The law grinding the poor, the rich riding on them” and adequate measures have not been taken to evade it.
Charges: Unlike the common jurisdictions such as England and Wales, Victoria, Australia, where plea bargaining is permitted for the purpose of bargaining on charges There is no express mention of any discussion on charges in India . Thus the situation is bleak with regard to multiple charges.
§ 265 D
This section envisages commencement of de nova trial in case of failure to arrive at the mutually satisfactory disposition. This Provision has generated the highest amount of controversy due to the unforeseen discrimination it creates. It is a common grouse amongst the weaker sections of the society that such a process creates two distinct classes of people based on their ability to work out a satisfactory disposition which stems from their financial inability and ability to negotiate. In absence of settlement the only recourse is trial which contravenes the intention.
The two classes that are recognized are those who have been able to work out a mutually satisfactory disposition and those who have not been able to concede.
It is enjoined by article 14 that “Equal protection of laws mean equal subjection of all persons to the law and amongst equals, laws must be uniform”[7],But this does not mean that all laws must be uniform and reasonable classification for the purpose of legislation is justified.[8]
It may be emphasized that the outcome of the meeting is dependant on the parties involved in the negotiations and the legislature does not even create these classes and merely recognizes outcomes of the consensus for the purpose of giving appropriate remedies, without which it is impossible to obtain a verdict.
In absence of a mutual consensus, the judge acting on his own perusal and delivering judgment without any proper hearing of the case (in plea bargaining process fact finding and relying on witnesses becomes a mere formality), could lead to injustice. Thus it is clearly inferred from above that the classification is real and substantial and bears a just and reasonable relation to the object of the legislation.
It is also pertinent from the bare perusal of Section 265 D, the legislature had a holistic approach in enacting this law since it considered the plight of those people whose negotiations fail ,will still have the remedy of a de novo trial[9].
§S.265 (G)
This Section has generated some unrest in the masses since it involves the waiver of the right of the accused to appeal while entering into plea bargaining, as the verdict of the court is conclusive.
Any process based on negotiations and consensus leave no scope for appeals. An appeal is a creature of statute and only exists when expressly given. It is neither an absolute right nor an ingredient of natural justice.[10] The legislature has envisioned speedier criminal justice which will reduce delay due to frivolous and vexatious appeals, multiplicity of proceedings, pendency of criminal cases and inordinate delay in disposal of cases.
The provision is parallel to rationale behind the ‘plea of guilt’ [11] since plea of not guilty alone can be followed by a trial.[12] It has also been recommended that no appeal should lie from a plea of guilty as to the extent of legality if there is no scope of illegality.[13] It is pertinent to note that remedies as provided for under Articles 226, 227 and 136 are available to the aggrieved party for redressing any legitimate grievance.[14]
Binding Nature of Judgment based on consensus
 Any party who refuses to perform the terms agreed upon can be estopped from defecting since principle of Estoppel by election applies to both civil and criminal proceedings.[15] Election arises when there are two inconsistent rights or two rights, the choice of one of which necessarily precludes the choice of another, that when the party in entitled or bound to make an election, chooses one of the rights or benefits, he necessarily gives up the other.[16] In this case it refers to right to opt for procedure of regular trial or plea bargaining.          
The doctrine of approbation and reprobation is applicable to cases of plea bargaining where a person cannot retract from his election to avail of  benefits which were not available on the merits of the claims made even if the restitution was impossible of being equitable.[17]Applying the above belated grounds like unfair procedure which was known to the parties from the inception of election cannot be pleaded to refuse enforcing the settlement.
Preventing Bias
If the process is interrupted due to not arriving at a mutually satisfactory disposition, even Knowledge[18] of plea of guilt by the accused will cause bias , prejudicing his cause in proving his innocence and increasing the probability of proving perjury.
However ,Section 265 K provides the statements in this chapter shall not  prejudice any subsequent trial process. Moreover Section 191 of Cr.P.C entitles the accused to have the case enquired and tried by another magistrate if he has doubts of fairness in the proceedings.
Sentencing Policy : Proportitionality and Uniformity
 True, once the penal sanction has been established as a condemnatory institution to respond to criminal acts, its sentences ought to reflect the relative reprehensible ness of those acts. Ordinal Proportionality is thus concerned with preserving a correspondence between relative seriousness of offence and relative severity of sentence. This theory permits most offences to be dealt with non-custodial sentences. Custodial sentence is severe, and the theory requires severe sanctions only for serious crimes. Thus by permitting the disposal of less graver crimes by plea bargaining process and giving discretion to the judge to decide between alternate non custodial sentences for the same does not violate the doctrine of proportionality. It would be fit to interpret the inclusion of probation. Such provision has been justifiably introduced in the Chapter[19], thereby distinguishing lesser offences from the other offences enumerated in §265A.The provisions does not suffer from the vice of arbitrariness since the legislation has expressly laid down the sentencing policy in S. 265E of the Code which is in tune with the Indian concept of justice.
 Judges in essence affirm that punishment ought always to fit the crime. Yet, in practice, sentences are determined largely by other considerations.[20] It has been aptly indicated that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of a crime. [21]
 In judicial decision what may superficially appear to be an unequal application of law may not necessarily amount to a denial of equal protection of law, unless an element of intentional or purposeful discrimination.[22] Uniformity of decisions can never be guaranteed since decisions vary with special factors for which no strait-jacket formula can be indicated.[23]
 In order to exercise the discretion of reducing the sentence, the statutory requirement is that the Court has to record “adequate and special reasons” in the judgment. In plea bargaining the sentence is reduced considerably due to the ‘special circumstances due to waiver of rights of fair trial, self incrimination etc(not absolute) . Thus the provision is not unconstitutional as highlighted by the earlier judgments.  
Indian Experience
The implications of the amendment is noteworthy . Karnataka showcased speedy disposal of cases , the first state to introduce the system with over 14.5 lakh pending cases in various courts. Asia’s largest prison complex saw a reduction of nearly 2,000 inmates in 2007, as noted by the Director General (prisons) B.K. Gupta which is a milestone due to the plea bargaining process.
The Orissa Government is introducing a shift system in the sub-ordinate courts of Bhubaneshwar on experimental basis after  having established 18 courts of judicial magistrates in different parts of Orissa and achieving much success.
Critics may argue that plea bargaining downplays the crime and permits the accused to get away with a sanction lesser than what is called for. The principle of proportionality in prescribing liability according to the culpability of kind of criminal conduct is the prime compromise made in plea bargaining process inorder to obtain speedy justice.
Innovative methods should be adopted to reduce warranting the application of the desert theory which claims that the seriousness of crime should, on the grounds of justice, be the chief determinant of the quantum of punishment.[24]eg. The court could play a more active role in short circuiting unwarranted demands of the parties.
Certain Lacunas Still have to be looked into eg Plea Bargaining Chapter does not specify the sentencing procedure for multiple charges and there is scope for ambiguity as the statute does not envisage whether the ‘plea of guilt’ extends to every single offence or mention the consequence of a ‘partial plea of guilt’., i.e. when the accused person plead guilty to a certain offence and not to the others.
The hearing must take place in court and involving the police should not invite coercion. Moreover any Court order rejecting Application must be kept confidential at any cost to rule out any lurking apprehension of judicial bias. Factors like rampant corruption and inefficiency in various departments which may cripple its implementation in India can be rectified with training, awareness and proper guidelines.
The Concept no doubt undermines public confidence in justice however, the advantages outweigh the disadvantages and will help in cleaning “Augean Stables” of smaller offences. This is reflected in the US criminal justice system which has embraced plea bargaining along with its minor defects and is making attempts to iron those defects out.
Taking into account the advantages of plea-bargaining, the recommendations of the Law Commission Plea bargaining was clearly recognized as the need of the hour and by no stretch of imagination can the taint of legalizing a crime will attach to it.[25]
At this stage it can be safely held that ‘Law is not a Panacea. It cannot solve all problems , but it can reduce the severity’. Plea bargaining in India endeavours to address the same , which despite its shortcomings can go a long way in speeding the caseload disposition and attributing efficiency and credibility to Indian Criminal Justice.

[1] St of Gujarat V. NH Thakor, 2005 1GLR 709
2.142nd Law Commission Report on Concessional Treatment for Offenders who on their own initiative Choose to Plead Guilty without Bargaining, 1991 ; Chapter III- Concept of Plea Bargaining.
[3] The Social Origins of Plea Bargaining: Conflict and the Law in the Process of State Formation, 1830-1860, Mary E. Vogel, Law & Society Review, Vol. 33, No. 1 (1999), pp. 161-246, doi:10.2307/3115099
[4] Ibid @ Fn 2, pg 5, p 3.3.1
[5] See National Crime Records Bureau at
[7] Harnam Singh v. Regional Transport Authority AIR 1954 SC 190
[8] supra
[9] Sec 265D: since the court proceeds further in accordance with the provisions of this code from the stage the application under sub-section (1) of Section 265B has been filed in this case
[10] kondiba dagadu Kadam v. Savitri Bai Sopan GujarAIR 1999 SC 2213
[11] S. 252 Cr.P.C.- if the accused pleads guilty, the magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion, convict him thereon.
[12] Law Commission of India – 142nd Report, para 9.12
[13] Vide Law commission’s 41st report, Vol. I, p.260
[14] Workmen, Meenakshi Mills v Meenakshi Mills L td AIR 1994 SC 2724
[15] P.J Kurien v. Renjitha 2000 Cr. L.J 1731(Ker)
[16] Batuk Lal, Law of Evidence, 5th Edn. (2006 reprint edition), Orient Publishing House, p. 1324
[17] Bhau Ram v. Baijnath Singh, AIR 1961 SC 1327
[18] Bihar State Mineral Development Corporation v Encon Builders (I) P Ltd (2003) 7 SCC 418
[19]The justification for introducing plea-bargaining cannot be expressed any better that what the Twelfth Law Commission in it’s 142nd Report had already done as below: (2) it is desirable to infuse life in the reformative provision in §360 of the Cr. P.C and in §3 of  Probation of Offenders Act which remain practically unutilized as of now.
[20] State of Madhya Pradesh v. Munna Choubey AIR ……. in which it was elaborated further that “sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes our desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably, these considerations cause a departure from just desert as the basis of punishment and creates cases of apparent injustice that are serious and widespread.”
[21] Dennis Councle MCG Dother v. State of California 402 US 183 : 28 L.D.2d 711
[22] Triveniben (Smt.)v. State of Gujarat, AIR 1989 SC 1335
[23] ibid. 686
[24] Andrew von Hirsch & Andrew Ashworth, Principled Sentencing : 4. Desert on p.141 (Oxford 1998); Hegel, Philosophy of right(1854), tr. T.M Knox (Oxford,1942) “Injustice is done if there’s one lash too many, or one dollar or one cent, one week in prison or one day too many or too few”
[25] Volume I: Report of Committee on reforms in the Criminal Justice System, Govt. of India, Ministry of Home Affairs, India: March 2003.


on 11 August 2009
Published in Criminal Law
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