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Plea Bargaining


A provision enabling defendants to plead guilty to ensure a lesser sentence was adopted by the Indian government as a new law in the criminal courts after considering the popularity of ‘plea bargaining’ in the United States. This concept was introduced in the Indian criminal justice system (despite opposition from the Supreme Court) through the Criminal Law (Amendment) Act in 2005. By this amendment, a new chapter, XXIA, was added to the Code of Criminal Procedure, 1973. In this article, the author has made endeavors to bring out the differences between the criminal justice systems of the US and India vis-à-vis the concept of plea bargaining.


Plea bargaining is defined as “pre-trial negotiations in a criminal case between the defendant through his or her counsel and the prosecution, during which the accused agrees to plead guilty in exchange for lesser punishment from the court.”[1] It is applicable only for those offences for which the punishment of imprisonment is up to a period of seven years. The new law does not apply to all criminal offences. The concept of plea bargaining, in actuality, is basically a measure and redressal which has added new dimensions in the realm of judicial reforms.


The origins of plea bargaining as a concept are quite obscure. The foremost hints of plea bargaining being incorporated in a criminal justice system of a country is a 1485 English statute, which authorized prosecutions for unlawful hunting before the justice of the peace.[2]  The concept is not a new concept, and in ancient times, when an accused honestly pleaded guilty, in some cases, he or she received lesser punishment from the king or other authorities.

Plea Bargaining is common in England, Australia, Canada, and most other nations of the British Commonwealth. In 1967, in the US, both the American Bar Association and the President’s Commission on Law Enforcement and Administration of Justice approved the concept of plea bargaining. In 1970, the validity of plea bargaining was challenged in Brady v. United States[3] and the Supreme Court found it to be not unconstitutional. A year later, in Santobello v. New York[4], the concept of ‘plea bargaining’ was formally accepted by the US criminal justice system.

In India, the Apex Court was against the concept of plea bargaining before its introduction. In 1980, the Supreme Court in Kachhia Patel Shantilal Koderlal v. State of Gujarat[5], termed the negotiations between the wrongdoer and the aggrieved party or the State as against public policy. The same notion was upheld in Kasambhai v. State of Gujarat[6]and also in State of Uttar Pradesh v. Chandrika[7], that the concept of plea bargaining can never act as an alternative to the usual remedies given by the court. However, in 2005, in State of Gujarat v. Natwar Harchanji Thakor[8], the Gujarat High Court recognized the importance of a cheap and expeditious trial in a criminal matter. The court also went against the well-formed notion against plea bargaining and accepted it as an alternative measure of redress to deal with huge delays in the processing of criminal cases.


The Sixth Amendment to US Constitution enshrines the fair trial principle. However, it doesn’t mention the practice of plea bargaining. The US judiciary, however, has upheld the constitutionality of plea bargaining as seen in the classic case of assassination of Martin Luther King Jr. (James Earl Ray, the accused, had his punishment reduced from death penalty to 99 years of imprisonment).

In the US, in a criminal case, the accused has three options as far as pleas are concerned: A) guilty, B) not guilty or C) plea of nolo contender (‘I do not wish to contend’).  In the famous case of Fox v. Schedit[9] and in State exrel Clark v. Adams, the plea of “Nolo Contendre” also called “Plea of Nolvut” or “Nolle Contendere” means, in its literal sense, “I do not wish to contend”. In other words, this doctrine also means that it is expressed as an implied confession, a quasi- confession of guilt, a formal declaration that the accused will not contend, et al.

However, it should also be noted here that raising the plea of “Nolo Contendere” is not ipso facto , a matter of right of the accused. It is within the particular discretion of the Court concerned to accept or reject such a plea. It is also maintained that at times when such discretion is vested on the court, only some special cases with special considerations should make the cut. The plea of “Nolo Contendere” has been recognized in the US and has resulted in substantial reduction in the workload of the criminal justice system. Having practicality over technicality as the advantage, plea bargaining in the US has evolved in an excellent fashion.[10]


The law commission of India advocated the introduction of Plea Bargaining in the 142th, 154th & 177th reports. The 154th report of the Law commission recommended the new XXI A to be incorporated in the criminal procedure code. Based on recommendation of the Law Commission, the new chapter on plea bargaining making plea bargain in cases of offences punishable with imprisonment up to seven years has been included.

As already mentioned before, the concept of plea bargaining faced some flak during its conception days. As opposed to the US, the concept of plea bargaining is fairly new in the Indian criminal justice system. It was only in 2005, in the famous case of Harchandji Thakor, did India, for the first time realized the importance of plea bargaining in India and its power to expedite justice.


The author is of the view that plea bargaining is an excellent concept, only when it is used in a manner in accordance to public policy. This disputed concept of Plea Bargaining is more a mechanism of convenience and mutual benefit than an issue of morality, legality or constitutionality. There is an inevitable need for a radical change in criminal justice mechanism.

The author believes that the difference between the Indian and the US justice system also boils down to the fact that the US system of dealing with a particular crime is very liberal as compared to the more orthodox method as followed in India.

[1] Mathai Veramon Mathew, Plea Bargaining: A New Law Adopted by the Indian Criminal Justice System.

[2] Palmer, 1999.

[3] 397 U.S. 742 (1970).

[4] 404 U.S. 257 (1971).

[5] 1980 CriLJ 553.

[6] 1980 AIR 854.

[7] 2000 CriLJ 384 (386).

[8] 2005 CriLJ 2957.

[9] 363 US 807

[10] State of Gujarat v Natwar Harchandji Thakor, (decided on 22 February, 2005), 2005 Cri LJ 2957

Law Wire Team
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Law Wire Team attempts to delve into pertinent (and sometimes not immediately pertinent) questions regarding socio-politics, Law and their interesting matrix.

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