Mapping the Constitutionality of Plea Bargaining in India

Authors - Sanskruti Yagnik and Aditya Bharadwaj


Criminal Justice is an extremely sensitive topic in any society and is usually taken as a hallmark of the Legal System for laymen. It is in this context, that it becomes important that justice is also seen to be done. The intent of law in India is to provide for easy, cheap and expeditious justice to resolve disputes. The concept of Plea Bargaining is not new but goes back to almost 300 years in England as a means to mitigate unduly harsh punishment[1]. Unfortunately, the British courts don’t recognise its existence even today. While in America, the process dates back to a century but has officially been recognised only 30 years back[2]. In India it was customarily incorporated into the Code of Criminal Procedure (CrPC) in 2005.[3]

Plea Bargaining is an alternative to deal with huge deficits of criminal and civil disparities in India. Black’s Law Dictionary defines Plea Bargain as, “A negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offense or to one of multiple charges in exchange for some concession by the prosecutor, usually a more lenient sentence or a dismissal of the other charges.”[4]

In India, the prosecutor can only assist with the process, and it is for the courts to decide upon the offences the accused is to be charged with, unlike in the USA, where the prosecutor has the discretion to press charges before the court and can either reduce, drop multiple charges and/or make recommendations to the court.[5] It is safe to say that the prosecutor doesn’t enjoy the powers in India, but the purpose of this article is not about the prosecutor’s privileges, rather, to examine the constitutionality and general dynamics of Plea Bargaining in India mainly from the perspective of fundamental rights. In USA, Brady v. United States (1970) established the constitutionality of plea bargaining. But the court warned that it would have “serious doubts” if the “encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves.”[6]

Legislation dealing with Plea bargaining in India is found in Chapter XXIA of the Code of Criminal Procedure from Sections 265A to 265L.[7] According to the US Department of Justice, around 90 to 95 percent of cases are resolved through the process of plea bargaining in the US.[8] By design, the Indian legislation is narrow and not meant to operate on the same scale that Plea Bargaining operates in the United States. Nevertheless, Indian law provides a number of negotiations between the accused and the prosecutor, or the tribunal itself which is very different from the US Law.

It is not available as an option to the accused in cases of crimes where the punishment is imprisonment for more than seven years or where the punishment is life imprisonment or death.[9] Plea Bargaining is also not available in cases where the crime affects the socio-economic character of the country or has been committed against a woman, or a child under fourteen years of age.[10] Here, Crimes affecting the socio-economic status of the country include those relating to dowry, caste discrimination, food adulteration, infractions listed in acts relating to the armed forces, etc.[11] Furthermore, it is not available as a remedy when the accused has been previously convicted of such an offence.[12]

Thus, Plea bargaining in India is a remedy for first-time offenders who commit crimes that aren’t of a grievous nature. It allows the accused to bypass the arduous trial process. The accused gets the benefit of leaving with minimal or lenient terms of punishment, while the victim may get compensation for the damage suffered.[13] As a side effect, this law tries to prevent first-time offenders from becoming repeat offenders by trying to minimise their time in contact with hardened criminals in prisons. This article will further examine the constitutionality of Plea Bargaining in India.

Constitutional Considerations

The report of 142nd and 154th Law commission proposed the concept of Plea Bargaining in India and contemplated as a tool for dealing with enormous criminal cases arrears. According to the Malimath Committee[14] this concept of Plea Bargaining will help to obtain speedy trial with benefits such as ending uncertainty, saving litigation cost and avoiding prolonged trials. They also recommended where the offences are not of a serious nature and the effect is predominantly on the victim and not on the society; it is desirable to encourage settlement without trial.

The Indian Courts examined plea bargaining in number of cases and did not approve on the basis of formal inducement. The Supreme Court further held that sentencing is illegal and unconstitutional[15] on the basis of plea Bargaining. In Thippaswamy v State of Karnataka[16] the Apex Court went one step further and opined that the concept of plea bargaining violated Article 21 of the Indian Constitution in order to induce or lead an accused to plead guilty under a promise or assurance that he would be let off lightly.

In addition, the purpose of law is to provide easy, cheap and expeditious justice by resolving disputes and considering the existing realistic profile of pending and delayed administration of law and justice, an emphasis has been placed in State of Gujarat v. Natwar Harchanji Thakore[17] on introducing plea bargaining as fundamental reforms are inevitable.

Let us now examine the constitutionality of plea bargaining.

The underlying criticism of Plea Bargaining as a practice is that it acts as a formal inducement or coercion for the accused to act as a witness against himself. And when inducement or coercion is present, it pollutes the stream of justice.[18]

Interestingly, a large measure of this opposition comes from interpretations of Article 20 and Article 21 of the Indian Constitution where plea bargaining is said to violate the right against self-incrimination and right to a fair & equitable trial respectively.

Article 20[19] gives individuals certain rights relating to criminal justice and is similar to the Fifth Amendment of the US constitution.[20] Clause 3 of Article 20 enshrines the right against self-incrimination, the exact words being, ‘No person accused of any offence shall be compelled to be a witness against himself.’[21] An important judgment in understanding the scope of this protection is that of the full bench of the Supreme Court in the case of State of Bombay v. Kathi Kalu Oghad.[22]In this case, the accused challenged the collection of his photographs, measurements, fingerprints and writing specimens by the police on the ground that any evidence obtained from such collection would be self-incrimination and thus violative of Article 20(3).[23] While dissecting the clause ‘to be a witness’ in Article 20(3), the bench held that,

“imparting knowledge in respect of relevant facts, by means of oral statements or statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation. A person is said to be a witness, to a certain state of facts which has to be determined by a court or authority authorised to come to a decision, by testifying to what he has seen, or something he has heard which is capable of being heard and is not hit by the rule excluding hearsay or giving his opinion, as an expert, in respect of matters in controversy.”

In the same case, it was also held that the clause ‘to be a witness’ may be taken to mean ‘furnishing evidence.’ The bench also stressed that ‘self-incrimination’ would mean ‘conveying information’ based upon the personal knowledge of the person giving the information. Thus, there is necessarily an element of communication of certain facts that may amount to self-incrimination. When such a communication is compelled is when the protections under Article 20(3) will kick in. Hence, the elements of communication of certain facts and furthermore, such communication being compelled are extremely important in such a scenario.

Mere acceptance of a guilty plea in exchange of a lighter sentence does not violate protections under Article 20(3). This is because; there hasn’t been any particular communication of material facts that has been compelled. If it were not so, then any plea of guilty and subsequent conviction of accused persons under Section 246(3)[24] of the CrPC would be unconstitutional and violative of Article 20(3).

Pendency has been a pertinent issue in the Indian Criminal Justice system accompanied by swelling prison population, which mostly consist of people awaiting trials .[25]Moreover, it is really essential to recognize the need for speedy trial under Article 21 which is also pertinent for a reasonable, just and fair procedure.[26] A plain reading of article 21 tells us the dimensions of law and its interpretation leads us to question the very existence of speedy trial for justice and a systematic way to reduce the pendency of cases. This in fact violates Article 21 of the Constitution.[27]

It is the fundamental right of a citizen to be ensured of a speedy trial.[28]Plea Bargaining in the current format ensures that in an already burdened criminal justice system, certain cases don’t drag along allowing the accused and the victim/state to benefit.

It is the state’s duty to ensure justice, because otherwise the very function of the Indian Judicial system would not facilitate ‘justice’ as guaranteed by the preamble of the constitution.[29]Some have consistently argued that plea bargaining is unconstitutional on the grounds that it violated the right of a victim to be provided fair trial and that an innocent person may, owing to the arduous nature of the criminal trial, falsely accept guilt.[30]


The immediate focus of this paper was to shed light on the constitutionality of Plea Bargaining. In India it has been designed to be a practical law keeping certain cases in mind. Provisions of law need to be pragmatic to allow a system which functions smoothly. To evaluate laws with extremely rigid lenses of propriety will render any legal system unworkable. The effects of laws need to be also taken into account with the backdrop of problems they seek to address. In the present case too, any judgement of plea bargaining has to be holistic in nature and well-rounded. It has to take into account the circumstances surrounding our legal system.

[The Authors are 4th-year law students at University of Mumbai.]

[1] Alschuler, Albert W. “Plea Bargaining and Its History.” Columbia Law Review, vol. 79, no. 1, 1979, pp. 1–43. JSTOR, Accessed 7 June 2020. [Since the inception of Common Law it has been very much possible for the accused to accept his guilt but historians have found only a handful of recorded instances of confessions. It is also noted that the courts were hesitant to receive guilty pleas when they were first adverted in Common Law treatise.] [2] One of the earliest reported decision on guilty plea can be dated back to 1804 (Commonwealth v. Battis, 1 Mass 95, 1804) when a 20 year old black man was accused of raping a 13 year old white girl and throwing her body into the river the accused plead guilty to incitements to rape and murder. The Court informed him that he was under no obligation to plead guilty and it was upon the prosecution to provide evidence. The accused again plead guilty and was reported to be executed thereafter. [3] Criminal Law (Amendment) Act, 2005, No. 2, Acts of Parliament, 2006 (India). [4] Plea Bargain, Black’s Law Dictionary (9th ed. 2009). [5] Mathur, J.K. “PLEA BARGAINING—IN INDIAN CONTEXT.” Journal of the Indian Law Institute, vol. 34, no. 3, 1992, pp. 429–442. JSTOR, Accessed 4 June 2020. [6] Lucian E.Dervan, THE INJUSTICE OF PLEA BARGAIN SYSTEM, The Wall Street journal, Available at Accessed 8 June 2020 [7] Code Crim. Proc., §§265A-265L (India). [8] Bureau of Justice Assistance, U.S. Department of Justice, Plea and Charge Bargaining: Research Summary, 3 (2011). [9] Code Crim. Proc., §265A (1) (b) (India). [10] Code Crim. Proc., §265A (India). [11] K. V. K. Santhy, Plea Bargaining in US and Indian Criminal Law Confessions for Concessions, 7 NALSAR Law Review, 84, 94 (2013) (discussing offences not included in Indian scheme of Plea Bargaining). [12] Code Crim. Proc., §265B (India). [13]Code Crim. Proc., §265E (India) [14] Committee on Reforms of Criminal Justice System [15] In Kasam Bhai Abdul Rehman Bhai Shiekh v. State of Gujrat AIR 1980 SC [16] AIR 1983 SC [17] 2005 Cr.L.J 2957. [18] Arthad Kurlekar & Sanika Gokhale, The Unconstitutionality of Plea Bargaining in the Indian Framework: The Vitiation of the Voluntariness Assumption, 7 India Law Journal 2, (Authors referring to Plea Bargaining as a form of coercion.) [19]India Const. art. 20. [20] U.S. Const. amend. V. [21] India Const. art. 20 cl. 3. [22] 1961 AIR 1808. [23] Ibid. [24] Code Crim. Proc., §246(3) (India). [25] LAW COMMISSION OF INDIA, PLEAD GUILTY, supra note 3, at 3-5. [26] Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 98. (Id an under trial prisoner is kept in jail for a period longer than the maximum term of imprisonment which could have been awarded on his conviction) [27] In Moses Wilson v Kasturba AIR 2008 SC 379 ; the SC expressed concern in delay in disposal of cases directed the concerned authorities to do the needful in the matter urgently before the situation goes totally out of control. [28] Astha Sharma, SPEEDY TRIAL FACILITATION OF LEGAL SYSTEM, 22nd April 2020 Accessed on 20th June 2020 [29] S.C Advocates –on-record Association v. Union of India, AIR 1994 SC 268 (Para 505-07) [30] Arthad Kurlekar and Sanika Gokhale, THE UNCONSTITUTIONALITY OF PLEA BARGAINING IN INDIAN FRAMEWORK, Indian Law Journal,a%20form%20of%20formal%20inducement.&text=Therefore%2C%20it%20is%20indeed%20palpable,expenses%20of%20the%20trial%20procedure. Accessed on 20th June, 2020

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