The Concept Of Plea Bargaining


Plea bargaining refers to negotiating an agreement between the prosecution and the accused, according to which the accused would plead guilty for a lesser punishment, or dismissal of other charges, in case there are multiple charges. This is supported by few people because it reduces the burden of the judiciary, by getting a confession from the accused. There are also a few criticisms regarding plea bargaining. The concept of plea bargaining is very common in the United States. There were always provisions in the Criminal Procedural Code for an accused to plead guilty, but not for plea bargaining. The concept of plea bargaining was made as a law, when the Criminal Procedural Code was amended by the Criminal Law (Amendment) Act, 2005, to include these. 

Types Of Plea Bargaining:

There are three types of plea bargaining, which are discussed as follow:

  1. Sentence bargaining: – in this type of bargaining, the defendant tries to get a lesser sentence for pleading guilty. It reduces the need to go into trial and gets over quickly when compared to a full trial.
  2. Charge bargaining: – in this type of bargaining, the defendant agrees to plead guilty for a lesser charge, for dismissing a greater charge. It is the most common plea bargaining in criminal cases and it is also known as a plea.
  3. Fact bargaining: – in this type of bargaining, the defendant agrees to certain facts, to prevent other facts from being introduced as a piece of evidence. This is usually not considered in a court, because it is considered to be against the rules of the criminal justice system.

Plea Bargaining In The US:

The concept of plea bargaining is used very commonly in the US, with nearly 90% of the criminal cases preferring plea bargaining instead of jury trials. But in the early times, plea bargaining was considered to be unethical and even sometimes illegal, because sometimes the plea bargaining might not be voluntary, or even a wrongly accused person could accept plea bargaining for a reduced sentence. In 1967, a report by the President’s Commission on Law Enforcement and Administration of Justice explained how widespread plea bargaining is and recommended it to be recognized.

The evolution of plea bargaining in the US can be seen in the following cases, to understand how they became an established and protected procedure. In 1969, in the case of Boykin v. Alabama, the US Supreme Court quashed the conviction of a man, who pleaded guilty to five counts of robbery and received five death sentences. This was because the trial judge did not ensure that the man pleaded guilty voluntarily. At present, the judges ensure that the plea bargaining was done voluntarily by questioning the accused in court. Following this, the US Supreme Court said that it is justifiable to award the accused who pleaded guilty with reduced penalties in the case Brady v. The United States and also said that the accused could also plead guilty even when they feel like they are factually innocent in the case North Carolina v. Alford. In addition, the Supreme Court in the case of Santobello v. New York, ruled that if the prosecutors break any of the conditions of the plea bargaining, then the accused is entitled to be provided with a proper legal remedy. The court also went ahead to say that plea bargaining is not just an essential part of a proceeding but is also highly desirable. Furthermore, the Supreme Court in the case of Bordenkircher v. Hayes held that the prosecutors may threaten the accused to bring additional charges against him, if he refuses to plea bargain, but those charges should be valid.

Plea Bargaining In India:

Like mentioned earlier, the concept of plea bargaining was introduced in the Criminal Procedural Code by The Criminal Law (Amendment) Act, 2005, which introduced chapter, XXIA, in the code, and came into force on July 5, 2006. As per this amendment, plea bargaining will be allowed for cases in which the maximum punishment is imprisonment for seven years; offenses that do not affect the socio-economic condition of the country and also do not include offenses committed against women and children below 14 years of age. Even before this amendment. The Supreme Court looked into the concept of plea bargaining in a few cases like, The State of U.P. v. Chandrika and Kripal Singh v. State of Haryana, in which the court said that neither the Trial Court nor the High Court has the power to overwrite the minimum penalties prescribed by law on the basis of plea bargaining. The Sakharam Bandekar case, in 2007, became the first case in India, where the accused requested plea bargaining for confessing to his crimes. The CBI opposed this by saying that the claims against the defendant were very serious corruption charges. The court took the views of the CBI and rejected the defendant’s plea and convicted him.

The Delhi High Court in the case of Pardeep Gupta v. Statedirected the Trial court to look into the provisions of Chapter XXIA of Criminal Procedure Code, reconsider the plea bargaining application of the accused, and said that it should be considered seriously. The Supreme Court has asked the States to consider plea bargaining to reduce a large number of pending cases before the court. Before the 2005 criminal amendment, the courts did not consider the concept of plea bargaining very positively, even after the amendment, only a very few times the court has looked into plea bargaining as a serious issue. The courts should really consider this as a measure to finish the trial quickly and reduce the pendency of cases before the court. 

Criticisms Of Plea Bargaining:

The concept of plea bargaining has a few advantages like the case could be disposed of quickly, and that it is a hassle-free method, but it also has a few criticisms, which would be discussed now. For starters, plea bargaining should be made voluntarily, an accused cannot make a plea bargaining because of coercion, or because of any misrepresentation. If the court doubts that it was made involuntarily, then the court has additional work to check if it was made voluntarily or not. Furthermore, many feel that plea bargaining lets the offenders not get the punishment that they deserve. Finally, few people believe that the innocent accused sometimes agree to plea bargain as they feel like they are stuck and don’t know what to do.


The concept of plea bargaining is not completely new in India, the courts have from time to time looked into this in certain cases, but most of it did not have a positive impact on it. But, along with time, the need for plea bargaining in India, was felt. But even when a change was brought, by the Legislature in 2005, it was not properly used by the people and the judiciary, too, did not work a lot for its proper implementation. Everything has a positive negative side; it is not right to judge plea bargaining based on its disadvantages alone and the concept of plea bargaining in India is only evolving and it will be improved only with proper and continuous usage. The US is one of the countries which use plea bargaining regularly. The Indian legal system is not yet ready to adopt plea bargaining like the US. But after a few years, India can try to implement it like that. The main reason for the implementation of plea bargaining in India is that India has more than half of the inmates who are under trial and a large number of pending cases before courts.

The article is written by Santhiya V., pursuing BBA LLB (Hons.) at Alliance University.

The article is edited by Shubham Yadav, pursuing LL.B.(4th Year) from Banasthali Vidyapith.

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