Plea Bargaining: A legal overview


This article was written by Akanksha Kumar, a student of Amity University, Delhi.

It would be correct to begin this article with the famous quote of Indian Jurist and leading lawyer NaniPalkhivala: ”the greatest drawback of the administration of justice in India today is because of delay of cases…The law may or may not be an ass, but in India, it is certainly a snail and our cases proceed at a pace which would be regarded as unduly slow in the community of snails. Justice has to be blind but I see no reason why it should be lame. Here it just hobbles along, barely able to work”[1] the the the the the the the

Plea bargaining is a procedure within a criminal justice system whereby prosecutors anddefendants negotiate a plea and dispose of a case before trial.[2] “Plead guilty for the offence and bargain for lesser punishment”  is the shortest possible way to explain plea bargaining.

Its only in the 1970’s that plea bargaining has gained acceptance. It is a result of modern judicial thinking, pervious to such widespread acceptance the legal experts described it as a lazy form of prosecution that resulted in undue leniency to the offenders. But, due to the increasing number of pending cases in the modern day courts, plea bargaining seems like a perfect solution.

Though many countries have not yet accepted the process of plea bargaining, considering it as immoral and unethical, but in America, almost 90% of all the criminal cases are solved by plea bargaining instead of jury trial. The US constitution does not mention the practice of plea bargaining, but it is a well-accepted phenomena there, the case of assassination of martin luther king jr. is a classic case of the adoption of the principle by US.The constitutionality of plea bargaining was established by Brady v. United States[3] in 1970.

An offender in a criminal trial has 3 options: 1) to hold himself guilty   2) to hold himself not guilty     3) nolo contendere

Literal meaning of “nolo contendere“is that I do not wish to contend.  In the case of“Fox v. Schedit and in State exrel Clark v. Adams[4] the court said that this doctrine also means confession or quasi-confession of guilt, a plea of guilty  a substitute for plea of guilty, a formal declaration that the accused will not contend, a query directed to the Court to decide on pleaguilt, 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.

In the code of criminal procedure, the 2005 amendment introduced a new chapter on plea bargaining. This plea can only be taken by offenders who have not committed an offence for which the punishment is of death or of imprisonment for life or for imprisonment for a term exceeding 7 years, or an offence against woman or children under 14 years of age. Under the doctrine, bargaining can be done of two things: of charge or of sentence.“charge bargaining” which refers to a promise by the prosecutor to reduce or dismiss some of the charges brought against the defendant in exchange for a guilty plea. “sentence bargaining” refers to a promise by the prosecutor to recommend a specific sentence or to refrain from making any sentence recommendation in exchange for a guilty plea.[5]

The Indian government was very hesitant and reluctant in adopting this doctrine, not only that, the Hon’ble Supreme court in its various judgement had criticized the doctrine and called it illegal and unconstitutional. There were various doubts in the minds related to the applicability of this policy in India, thus the Law commission decided to advocate plea bargaining in its 142nd report. Some of the arguments were rebutted satisfactorily by the commission:

  • There is a concern that the poor will be a victim of this concept and will come forward to make confessions and suffer the consequent conviction.

The commission stated that the argument that the scheme may not succeed was not good enough a reason to oppose the scheme. Also, in the trade-off between languishing in jail as an under-trail prisoner and suffering imprisonment for a lesser or similar period, the latter would be the rational choice as long period in jail brought about economic and social run.

  • It is feared that the prosecution pressure may cause the poor people to yield and forego their right to trial. The commission had opined that such concerns could be dispelled if the judicial officer explained the implications of the scheme and was made by the accused of his own volition and not as a result of coerce or duress, as provided by current section 265-B.
  • Due to widespread illiteracy in India, it is claimed, people would not adequately understand the consequences of pleading guilty. The commission was of the opinion that because the contention fails to distinguish between common sense and illiteracy, the contention holds no ground.
  • Human rights expert allege that the plea bargains in Indian cases may be made under duress from the police. However, this is not a condition peculiar to plea bargaining.

In the case of Santobello v. New York, chief justice Burger observed that it would be blasphemous to equate the practice of plea bargaining to that of legalizing crime. They have been implemented in favor of the community interest that they serve. If plea bargaining is correctly undertaken, the two prolonged objective of securing conviction and reducing pendency can be simultaneously achieved. in the current dismal situation of criminal justice in India.

In conclusion, the following words of Abraham Lincoln may be aptly quoted: –

“discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man.”

[1]Nani A Palkhivala, ―We the nation…lost decade (1994) UBS Publications, p 215


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

[4]363 US 807


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