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Plea Bargaining - Concept, perspective and Criticism.

Updated: May 23, 2020


In a Democratic Country like India, judiciary plays a vital role in establishing a state of justice. Justice is desired by each and every person on this earth. But as we all know that justice delayed is justice denied, so it is a matter of concern that how many people actually get justice in due time. There are large numbers of cases which are pending before different courts. The problem of backlog of cases has been haunting the Indian courts for a long time.

Thus, it is very necessary that some sort of system is adhered to so as to speed up the trial process and relieve the courts from heavy backlog of cases. With such a large population it is quite obvious that at least thousands of crimes are committed almost every day throughout the country.

Thus, it is all the more obvious that with such a rate of criminal cases piling into the courts, the available workforce falls very short of the expectations. Apart from that there are several appeals which are preferred from the trials which furthermore increase the case numbers in the courts. In such a scenario it becomes a matter of concern as to how to control this problem.

Plea Bargaining- Meaning

“Plead Guilty and ensure Lesser Sentence” is the shortest possible meaning of Plea Bargaining. Plea Bargaining fostered by the Indian Legislature is actually the child of the West. The concept has been very much alive in the American System in the 19th century itself.

Plea Bargaining is so common in the American System that every minute a case is disposed in the American Criminal Court  by way of guilty plea. England, Wales, Australia and Victoria also recognises ‘Plea Bargaining’.

‘Plea Bargaining’ can be defined as “Pre-Trial negotiations between the accused and the prosecution during which the accused agrees to plead guilty in exchange for certain concessions by the prosecution”.

It gives criminal defendants the opportunity to avoid sitting through a trial risking and conviction on the original more serious charge. For example, a criminal defendant charged with a theft charge, the conviction of which would require imprisonment in state prison, may be offered the opportunity to plead guilty to a theft charge, which may not carry jail term.

Types of ‘Plea Bargaining’

‘Plea Bargaining’ may be divided into three broad types:

  • ‘Charge Bargaining’,

  • ‘Sentence Bargaining’,

  • ‘Fact Bargaining’.

(a) ‘Charge Bargaining’ is a common and widely known form of plea. It involves a negotiation of the specific charges or crimes that the defendant will face at trial. Usually, in return for a plea of guilty to a lesser charge, a prosecutor will dismiss the higher or other charge(s). For example, in return for dismissing charges for first-degree murder, a prosecutor may accept a guilty plea for manslaughter (subject to court approval).

(b) ‘Sentence Bargaining’ involves the agreement to a plea of guilty in return for a lighter sentence. It saves the prosecution the necessity of going through trial and proving its case. It provides the defendant with an opportunity for a lighter sentence.

(c) ‘Fact Bargaining’ is the least used in a prosecution in which the Prosecutor agrees not to reveal any aggravating factual circumstances to the court because that would lead to a mandatory minimum sentence or to a more severe sentence under sentencing guidelines.

Recent Incorporation of Plea Bargaining in Criminal Judicial System

Plea Bargaining , basically meant to reduce the time frame of criminal trials. The Supreme Court was very much against the concept of Plea Bargaining before its introduction. According to the Supreme Court, the court has to decide cases on its merit. If the accused confesses his/her guilt, even then appropriate sentence is required to be implemented.

The court viewed that mere acceptance or admission of the guilt should not be a ground for reduction of sentence, nor can the accused bargain with the court that as he/she is pleading guilty his sentence should be reduced. Despite strict opposition by the Supreme Court, the government found it comfortable to introduce this concept.

Long list of pending cases before the criminal courts was cited as the reason for the enactment of this provision. If a person accepts his guilt, then the time of the prosecution is saved, which can be then properly utilised for proving more serious offences.

Plea Bargaining is applicable only in respect of those offences for which punishment of imprisonment is upto period of seven years. It does not apply where such offence affects the socio-economic condition of the country or has been committed against women or committed against a child below the age of 14 years.

The application for Plea Bargaining should be filed by the accused voluntarily before the court which is trying the offence. The complainant and the accused are then given time by the court to work out satisfactory disposition of the case. The court may reduce the sentence to 1/4th if the accused pleads guilty. There shall be no appeal in the case where judgment has been pronounced by the court on the basis of plea bargaining.

Plea Bargaining has emerged and gained acceptance in the legal community only in recent decades. The Criminal Law (Amendment) Bill, 2003 which was introduced in the parliament attracted enormous public debate. Despite this huge hue and cry, the government found it acceptable and finally section 265-A to 265-L have been added in the Code of Criminal Procedure so as to apply the plea bargaining.

Advantages of Plea Bargaining

A significant feature of method of Plea Bargaining is that it helps the Court and State to manage the case loads. It reduces the work load of the prosecutors enabling them to prepare for gravest cases by leaving the effortless and petty offences to settle through plea bargaining.

It is also a factor in reforming the offenders by accepting the responsibility for their actions and by submitting them voluntarily before law without having an expensive and time consuming trial. In case wherein the prosecution is weak, if trial is concluded, for want of proper witnesses or evidences and the ultimate result may be an acquittal, the prosecution will have a chance to prove the accused as guilty by co-operating with the accused for a plea bargaining.

An intelligent prosecutor may agree for a plea bargaining of an insignificant accused to collect evidence against other graver accused. Normally, in cases wherein aged or women witnesses have the vital role to prove a charge against the accused, their death or non cooperation, may be a real cause for adverse conclusion of the case.

Here the prosecution avoids a chance of acquittal and the accused avoids a chance of conviction for more serious charges with higher punishments. From the angle of victim also, plea bargaining is a better substitute for his/her ultimate relief, as he/she can avoid a lengthy court process to see the accused, be convicted. The system gives a greater relief to a large number of undertrials lodged in various jails of the country and helps reduce the long pendency in the court.

There are some other supporting factors of ‘Plea Bargaining’ which fall into three main categories.

First, some jurists maintain that it is appropriate as a matter of sentencing policy to reward defendants who acknowledge their guilt. They advance several arguments in support of this position, notably, that a bargained guilty plea may manifest an acceptance of responsibility or a willingness to enter the correctional system in a frame of mind that may afford hope for rehabilitation over a short period of time than otherwise would be necessary.

A second view treats ‘Plea Bargaining’, not primarily as a sentencing device, but as a form of dispute resolution. Some plea bargaining advocates maintain that it is desirable to afford the accused and the state of opinion of compromising factual and legal disputes. They observe that if a plea agreement does not improve the positions of both the accused and the State, one party or other would insist upon a trial.

Finally, some observers supports ‘Plea Bargaining’ on grounds of economy or necessity. Viewing plea negotiation less as a sentencing device or a form of dispute resolution than as an administrative practice, they argue that society cannot afford to provide trials to all the accused who would demand them if guilty pleas were unrewarded. At least, there are more appropriate uses for the additional resources that an effective ‘Plea Bargaining’ could save.

Criticism of Plea Bargaining

  1. India’s Social condition do not justify the introduction of the concept.

  2. Pressure from prosecuting agencies may result in convictions of the innocents.

  3. The poor will be ultimate victim of the concept.

  4. Counsel representing the accused would be now willing to advise confession invoking scheme.

  5. Plea bargaining may increase incidence of crime

  6. Criminal will slip through the net with impunity

  7. No social benefit accrue by adopting such system

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