Author: Aaradhy Shrivastava, 3rd Year, B.A. LL.B (H), School of Law, Jagran Lakecity University, Bhopal.


Plea Bargaining, in the traditional sense, refers to the pre-trial negotiations between the defendant usually conducted by the counsel and prosecution. In the legal world, it is defined as a contractual agreement between the prosecution and the accused conducting a criminal charge[1].

The concept of plea-bargaining originated in the United States of America and was gradually accepted by different countries around the globe. Several countries adopted this concept as it is very helpful in reducing the burden over the law courts and also helps in the speedy disposition of the cases. In India, plea bargaining was initially not a part of the criminal law system. It was added by the Criminal Law Amendment Act, 2005. By the amendment of 2005, Chapter XXI-A was added under Code of Criminal Procedure, 1973 in which Section 265-A to Section 265-L gives the provisions about the plea bargaining.

The two primary reasons due to which plea bargaining was accepted in India was due to docket pressure and delay in disposal of cases. Overcrowding in the existing prison is among the secondary reasons due to which this concept was accepted in India. Plea bargaining is different from compounding offences as the former results into punishment and the latter results into acquittal.

The bone of Contention:-

Ever since the concept of plea bargaining is accepted in India, there is a constant debate going around the country regarding its validity and efficiency. Some Indian jurists are of the view that it is against the fundamental rights while others are of the view that it is helpful in the speedy disposition of criminal cases.

Answer to the problem:

Talking about the first view, the argument presented by the jurists that it violates the fundamental rights of the accused is right. The rights of an accused are well enshrined under Article 20[2] and Article 22[3] of the Indian Constitution. The right to a free and fair trial are the rights that are guaranteed to each and every accused in the country. If any accused moves the application of plea bargaining under Section 265-B of Code of Criminal Procedure Code, 1973, even though voluntarily, it clearly implies that he/she is waiving his/her fundamental right of a free and fair trial. Waiving of fundamental rights is prohibited under the Indian Constitution.

The question regarding waiving of the fundamental rights came up before the court in the case of Basheshar Nath v. CIT[4]. In this case, the question arose whether a fundamental right may be waived by the person who has it. The court in the ratio of 4:1 decided that it was not open to a citizen to waive any of the fundamental rights conferred by Part- III of the Constitution. The same judgment was held in other cases like Nar Pal Singh v. Union of India[5], Assam Sanmilita Mahasangha v. Union of India[6]. It is now a settled principle that fundamental rights cannot be waived by any individual. Therefore, any individual who voluntarily moves the application of plea bargaining is said to waive off his/her fundamental right, which is prohibited under the Constitution of India.

The jurist in support of plea bargaining doesn’t believe the same. They believe that with the change in time, it becomes necessary that we should also bring some reforms in our traditional criminal justice system. They believe in the principle of “Justice delayed is justice denied.” And the delay in the trial also violates the fundamental right of the accused. This view was also upheld by the apex court in the case of Hussainara Khatoon v. State of Bihar[7] The court said that “the right to life under article 21 includes the right to a speedy trial, only through which the right to life can be attained.” They believe that plea bargaining will help in the speedy disposition of criminal cases. But the concept of plea bargaining comes with many challenges and difficulties. In India, the scenario is different from the U.S or any other developed nation. The very requirement of plea bargaining is that the accused should voluntarily move the plea before the court. But not every time it is voluntary. Sometimes the accused are forced by their lawyers or the prosecution to accept their guilt before the court, even when they are innocent. Unlike the traditional concept of plea bargaining, in India, the judge does not participate in the bargaining.

The problem arises when money becomes a deciding factor in plea bargaining. There have been a lot of instances where such things happen. But since in India, the discussion regarding Plea Bargaining happens in the absence of a Judge, these things have never come out. Some accused who are not financially sound, tend to accept their guilt in return of money, even though they have actually not committed crime. There is always a possibility of collusion and coercion during the plea bargaining sessions.

The Law Commission in its 142nd report[8] had recommended no such bargaining despite accepting a guilty plea and reduced sentence argument. The court also, was of the view that in Indian scenario, it is very difficult to actually ensure that the working out of mutually agreeable disposition is something wherein the consent of both the parties is actually free. Hon’ble Justice P.N. Bhagwati in the case of Kasambhai Abdul Rehman Bhai Sheikh v. State of Gujarat[9] said that “Such a procedure would be clearly unreasonable, unfair, and would be violative of the new activist dimension of Article 21 of the Constitution.” However, the judgment by Justice P.N Bhagwati should not be taken in its entirety in the contemporary scenario because it is a very old judgment, given at a time when the concept of plea bargaining was not even introduced in India.

How Plea Bargaining is helpful?

However, it should also be noted that plea bargaining also has several silent features which ensure that there is no misuse of this feature. The concept of plea bargaining is applicable only to those offences for which punishment of imprisonment is up to a period of seven years. It does not apply to offences which affect the socio-economic condition of the country or an offence which is committed against a woman or a child below the age of 14 years. Plea bargaining is also not available for habitual offenders. Plea bargaining helps in reduction of criminal cases. In petty cases, it saves the accused from harassment and unnecessary expenditure and saves the court’s time.


The concept of Plea Bargaining is already an accepted law under the criminal justice system. It has become an important need for the criminal justice system. It is us who have to accept this reform like we have accepted new tools like Lok Adalat, Arbitration, Mediation, Fast track courts etc., but the real problem lies in its acceptance by society. For acceptance in society, it needs a proper implementation plan. The successful implementation of plea bargaining is possible when we look positively and work not only for personal interest but for real socio-legal justice. We also need an overhaul of the system, in terms of structure, composition as well as work culture to ensure reasonably swift trials. Despite all the pros and cons of plea bargaining, it is better to welcome plea bargaining and move with it.


[1] Black’s Law Dictionary.

[2] Article 20 of the Indian Constitution: Protection in respect of conviction for offences.

[3] Article 22 of the Indian Constitution: Protection against arrest and detention in certain cases.

[4] Basheshar Nath v. CIT (AIR 1959 SC 149).

[5] Nar Pal Singh v. Union of India (AIR 2000 SC 1401).

[6]Assam Sanmilita Mahasangha v. Union of India [(2015) 3 SCC 1].

[7] Hussainara Khatoon v. State of Bihar (A.I.R 1979 S.C 1360).

[8] Law Commission Report No. 142- Concessional treatment for offenders who on their own initiative choose to plead guilty without any Bargaining

[9] Kasambhai Abdul Rehman Bhai Sheikh v. State of Gujarat [(1980) 3 SCC 120].

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Editorial Credits: Merin PG.

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