JAMIA MILLIA ISLAMIA

Jamia Nagar, New Delhi - 110025

FACULTY OF LAW

Submission of Assignment / Dissertation / Field Work

Name : SAIF ALI
Enrollment No. : JMI0183334
Program Name : L.L.M
: PENOLOGY AND REHABILITATION AND
Course Title CORRECTIONAL TECHNIQUES
Semester : 2nd Sem. 2018-19

Assignment topic-
"THE CONCEPT OF PLEA BARGAINING PANACEA FOR
CRIMINAL JUSTICE SYSTEM?- Comparative study of INDIA and
U.S.A"

Signature of the Student: ……………………………………

Course Teacher : Assistant Professor Dr. SAMIA

Grade Assign :
Signature of Teacher
THE CONCEPT OF PLEA BARGAINING PANACEA FOR CRIMINAL
JUSTICE SYSTEM?- Comparative study of INDIA and U.S.A"

SAIF ALI

JMI0183334

Chapter I

INTRODUCTION:

The question is can we bargain a conviction and negotiate some sentence without much trouble
for the state? The plea bargaining is somewhat an answer.

The famous jurist Nani Palkhivala has said "the greatest drawback of the administration of
justice in India today is because of delay of cases. The law may or may not be an ass, but in
India, it is certainly a snail and our cases proceed at a pace which would be regarded as unduly
slow in the community of snails. Justice has to be blind but I see no reason why it should be
lame. Here it just hobbles along, barely able to work."1

In plea bargaining, the accused goes to the court and admits his guilt. It is a Pre-Trial procedure
whereby a bargain or deal is struck between the accused of an offence and the prosecution with
the active participation of the trial judge. It is an agreement between the prosecution and defence
upon which the defendant admits their guilt in return for a reduction in their charge.

According to the Wikipedia Encyclopedia2,It is also called plea agreement, plea deal or copping
a plea which is an agreement between the prosecutor and defendant whereby the defendant
agrees to plead guilty to a particular charge in return for some concession from the prosecutor.

1
Legal service authority. Available at:http://www.legalservicesindia.com/article/658/Plea-Bargaining:-Present-
Status-in-India.html (Last Accessed on 26th October , 2018 at 10:15 PM).
2
Encyclopedia. Available at : https://www.encyclopedia.com/social-sciences-and-law/law/law/plea-bargaining
(Last accessed on 26th October , 2018 at 10:40 PM).

Page 2
According to the Advanced Law Lexicon3, plea bargain is a negotiated agreement between a
prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offence 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. It is also termed as plea agreement or
negotiated

AIMS AND OBJECTIVES OF THE STUDY:

The study aims at finding whether Plea Bargaining would be able to achieve its real purpose in
Indian circumstances and legal set up or in other words, whether Plea Bargaining is suitable for
Indian conditions in comparison to USA and how Plea Bargaining can help the overburdened
courts in India. In other states, the disadvantages do not override the advantages, but in Indian
social and legal set-up, to assess to what extent Plea Bargaining will be able to provide its
beneficial character. Nevertheless, the concept is not new to the Indian Courts, as the concept
had been discussed 51 years back by the Apex Court of India, but to assess the effect of
introducing this concept a statutory law and giving it a legal force and sanction. Invariably, the
Objectives of the study is:-

1. To know whether the law of Plea Bargaining will survive in Indian socio-legal set up.
2. To review how far it will be able to achieve its object in Indian Courts.
3. To know whether introduction of Plea Bargaining provide justice to the party or coerce
him to accept the charges.
4. To analyze whether Plea Bargaining affects the administration of justice adversely i.e. if
accused is innocent or the prosecution has meagre chances of convicting the accused, in
such situation Plea Bargaining will be harmful for justice.
5. To know whether by introducing Plea Bargaining Courts would be relieved from
overburden of cases or it will lead to another huge blog of cases of misuse of Plea
Bargaining by use of coercion of fraud.

3
Advanced Law Lexicon. Available at: https://www.vocabulary.com/dictionary/plea%20bargaining (Last accessed
on 26th October , 2018 at 11:00 PM).

Page 3
SCOPE OF THE STUDY:

This study examines plea bargaining process and argues that significant benefits flow from
formalisation, in the form of statutory recognition and control. It identifies and analyses the
different approaches of the states concerning plea bargaining and their justifications driving
the formalisation of plea bargaining. The aim is to stimulate debate about the scope of plea
bargaining in India and its comparative study with USA. The thesis object is to analyze
whether the Indian criminal jurisprudence is adaptable to the concept of plea bargaining as
the USA. The concept of Plea Bargaining has now become a part of criminal jurisprudence.
It benefits both the State and the accused under the scheme of Plea Bargaining. If an eligible
accused admits his guilt voluntarily, the court may release him on probation or award lesser
punishment than prescribed. This way the accused saves time and money both.

RESEARCH QUESTIONS:

1. Whether the law of Plea Bargaining will survive in Indian socio-legal set up.?
2. How far it will be able to achieve its object in Indian Courts?
3. Whether introduction of Plea Bargaining provide justice to the party or coerce
him to accept the charges?
4. Whether Plea Bargaining affects the administration of justice adversely?
5. Whether by introducing Plea Bargaining Courts would be relieved from
overburden of cases or it will lead to another huge blog of cases of misuse of Plea
Bargaining by use of coercion of fraud?

REVIEW OF LITERATURE:

Sarah Armstrong,"Capacity as Philosophy: A Review of Richard Lippke's The Ethics of Plea

Bargaining,4" Plea bargaining is generally accepted as the preeminent means of circumventing
costly and time consuming criminal trials.

Stephen J. Schulhofer, "Is Plea Bargaining Inevitable?" 5[Schulhofer “Inevitable”]Defenders

of plea bargaining usually argue that bargaining is unavoidable for either of two reasons. First, a
prohibition of plea bargaining, it is said, would generate enormous costs and monumental delays;
4
2014 8 Crim Law and Philos 265-281 at 266
5
1984 97: 5 Harv L Rev 1037 (HL)

Page 4
plea bargaining is essential for handling massive criminal caseloads. Second, a prohibition of
plea bargaining would be subverted by counsel and other participants in the system.

Bureau of Justice Statistics, 20056, regarding federal criminal cases alone, between October 1,
2004 and September 20, 2005, 86% of all such cases filed were resolved with a guilty plea.

Although the 6th amendment of the U.S. Constitution guarantees all criminal defendants the
right to a trial, it has been estimated that approximately 90% of cases are resolved through plea
bargaining.

Chapter II

6
Bureau of justice. Available at : https://www.bjs.gov/index.cfm?ty=tp&tid=23 (Last accessed on 27th of October,
2018 at 10:12 AM).

Page 5
PLEA BARGAINING IN USA- ORIGIN:

The Sixth Amendment to US Constitution enshrines the fair trial principle. But it did not mention
the practice of plea bargaining. However the US judiciary has upheld the constitutionality of this
process. The classic case of adoption of plea bargaining is the case of assassination of Martin
Luther King Jr. In a criminal trial in the United States, the accused has three options as far as
pleas are concerned:

 Guilty,

 Not guilty or

 Plea of nolo contendere (I do not wish to contend).

Within the United States system plea bargaining has become an integrated part of the process
with more than 90% of convictions in the federal system resulting from pleas of guilty rather
than convictions by jury trial.7 The U.S. model of plea bargaining is by far the most developed.
Rule 11 of the Federal Rules of Criminal Procedure governs all federal plea proceedings.

The Rule requires-

• the court to address the defendant personally in open court

• To make sure the defendant understands exactly what it means to plead guilty and what
the defendant is giving up by pleading guilty.

• The court must explain to all defendants that, if they plead guilty, they will be giving up
the constitutional rights associated with a trial listed in the Rule.

• The Rule also requires the court to describe the salient terms of the plea agreement.

The advent of plea bargaining becoming something which can be regulated by law was first
introduced by US Supreme Court in this case, Brady v. United States8In this case the
Supreme Court held that it was considered appropriate in cases of overwhelming guilt to
offer the defendant an opportunity to bargain which may afford him some kind of a benefit.
The increased practice of plea bargaining resulted in the need for establishing checks and
7
Bureau of justice. Available at : https://www.bjs.gov/index.cfm?ty=tp&tid=23 (Last accessed on 27th of October,
2018 at 10:12 AM).
8
397 U.S. 742 (1970)

Page 6
balances to ensure that individuals would not be coerced into making bargains. The court
would have to investigate the case to ensure that the guilty plea had not come from coercion,
misrepresentation of promises or bribes. By the twentieth century, guilty pleas dominated the
majority of criminal cases. Almost every criminal case is now conducted by Plea bargaining
and today it is often said that the American Criminal Justice would collapse if plea
bargaining is removed from it.

DUTY OF DEFENSE COUNSEL

The accused is entitled to efficient, fair and honest advice from the defense counsel
especially in plea bargaining. During March 2012, two US Supreme Court decisions are very
significant to explain this responsibility. Missouri v. Frye, 9 found that a Defense Attorney
had a duty to convey all written plea offers to the criminal defendant and the failure to do
amounts to ineffective assistance of counsel and a violation of the defendant‘s sixth
amendment rights. Lafler v. Cooper, 10however, the court held that bad advice from defense
counsel about whether or not to take a plea agreement may amount to ineffective assistance
of counsel and a violation of the defendant‘s sixth amendment rights.

PLEA BARGAINING IN INDIA- ORIGIN

The Supreme Court in Kachhia Patel Shantilal Koderlal v. State of Gujarat and
Anr11strongly disapproved the practice of plea bargain. It observed that practice of plea
bargaining is unconstitutional, illegal and would tend to encourage corruption, collusion and
pollute the pure fount of justice. Gradually, there was a Shift in Judicial Thinking in this
case, the Supreme Court ruled that, State of Gujarat v. Natwar Harchandji Thakor 12the very
object of law is to provide easy, cheap and expeditious justice by resolution of disputes,
including the trial of criminal cases and considering the present realistic profile of the
pendency and delay in disposal in the administration of law and justice, fundamental reforms
are inevitable.

9
No. 10-444 (2012)31, the US Supreme Court
10
No. 10-209 (2012)32
11
1980 CriLJ553
12
(2005) Cr.L.J. 2957

Page 7
The seed of the process of plea bargaining is found in Section 206(1) and 206(3) of the
Code of Criminal Procedure and Section 208 (1) of the Motor Vehicles Act, 1988. Under
these provisions the accused can plead guilty of petty offences or less grave offences and
settle with penalties for small offences to close the cases.

RESEARCH OF THE LAW COMMISSION:

The Indian concept of plea bargaining is inspired from the Doctrine of Nolo Contendere. It
has been incorporated by the legislature after several Law Commission Recommendations.
This doctrine has been considered and implemented in a manner that takes into account the
social and economic conditions prevailing in our country. The Law Commission of India
advocated the introduction of Plea Bargaining in the 142nd, 154th and 177th reports.

• 142nd- This Report recommended that the said concept be made applicable to offences
which are punishable with imprisonment of less than seven years and/or fine. This
recommendation of the Law Commission finally found support in Malimath Committee
Report.

• The Report of the Committee on the reform of criminal justice system, 2000 under
the Chairmanship of Justice (Dr) Malimath stated that the experience of United States
was an evidence of plea bargaining. In its report, the Malimath Committee recommended
that a system of plea-bargaining be introduced into the criminal justice system of India to
facilitate the earlier resolution of criminal cases and reduce the burden on the courts.

• Critics said it is not recognized and is against public policy under our criminal justice
system. The Supreme Court has also time and again blasted the concept of plea
bargaining that negotiation in criminal cases is not permissible. In State of Uttar
Pradesh v. Chandrika13, the Apex Court held that it is settled law that on the basis of
plea bargaining Court cannot dispose of the criminal cases. The Court has to decide it on
merits. If the accused confess his guilt, appropriate sentence is required to be
implemented. The Court further held in the same case that mere acceptance or admission
of the guilt should not be a ground for reduction of the sentence. Nor can the accused
bargain with the Court that as he is pleading guilty the sentence be reduced. Despite this

13
1999 Supp (4) SCR 239.

Page 8
huge hue and cry, the government found it acceptable and finally section 265-A to 265-L
were added in the Criminal Procedure Code, 1973 so as to provide for rising the plea
bargaining in certain types of criminal cases. The provisions were thus fully incorporated
into the Code of Criminal Procedure, 1973 as Chapter XXI-A through the Criminal Law
(Amendment) Act, 2005.

PROCESS OF PLEA BARGAINING: AMENDMENT TO CRIMINAL LAW-

The process of plea bargaining was brought in as a result of criminal law reforms introduced
in 2005. Section 4 of the Amendment Act introduced Chapter XXIA to the Code having
sections 265 A to 265L which came into effect on 5th July, 2006. The Cr.P.C. Chapter XXI
A, allows plea bargaining to be used in criminal cases where:

• Plea-bargaining can be claimed only for offences that are penalized by imprisonment
below seven years. (265 A)

• If the accused has been previously convicted of a similar offence by any court, then
he/she will not to be entitled to plea bargaining.

• Plea-bargaining is not available for offences which might affect the socio-economic
conditions of the country.

• Also, plea-bargaining is not available for an offence committed against a woman or a

child below fourteen years of age. (265 L).

• The judgment delivered by the Court in the case of plea bargaining shall be final and no
appeal shall lie in any court against such judgment (except Special Leave 18 Petition
under Article 136 and writ petition under Articles 226 and 227 of the Constitution).

The opportunity of plea bargaining is not acceptable for accused in serious crimes such as
murder, rape etc. It does not apply to serious cases wherein the punishment is death or life
imprisonment or a term exceeding seven years or offences committed against a woman or a
child below the age of 14 years.

Chapter III

Page 9
SOME OF THE EARLY SUCCESSFUL CASES IN INDIA WHERE PLEA
BARGAINING WAS DONE.

• Vijay Moses Das v CBI Crim. 14

• Guerrero Lugo Elvia Grissel v The State Of Maharashtra15 on 4 January, 2012

POOR USAGE OF PLEA BARGAINING, Apart from reported cases (above referred) of
plea bargaining, there is a very poor usage of this process in India. According to official
figures received through RTI16, during 2006 to 2010, only 22 cases have been reported and
solved in the state that too in the court of chief metropolitan magistrate in Ahmedabad.
Courts in most of the other cities including Gandhinagar, Vadodara and Rajkot have never
registered a case for plea bargaining. It is estimated that around 21.5 lakh cases are awaiting
trial in Gujarat.

AMERICAN MODEL VS. INDIAN MODEL

This concept has not emerged recently but existed even in 19th century. In the United States,
plea-bargaining is a significant part of the criminal justice system, Majority of criminal cases are
settled by plea-bargaining rather than by a trial by jury. But it is a subject to the approval of the
court. The rules pertaining to Plea-bargaining in all states of US are different. More than 90% of
the cases are settled through Plea-bargaining in US. It has become a prominent feature of
American Judiciary that the disposing rate of cases is very rapid therefore, backlog is under
control. Prosecutor initiates about the plea-bargaining proceedings. One of the main arguments
advanced in the favour of plea-bargaining is that it helps in speedy disposal of accumulated cases
and will expedite delivery of criminal justice.

In India, position is very different from US. As it came in the amendment Act of 2005 in Code of
Criminal Procedure, there are not much cases regarding it but even though, position under Indian
Judiciary is very clear. There were huge debates on this point before it was inserted in the
Cr.P.C. till 2005, it was not accepted by the Indian Judiciary. Every time it was opposed by court
of law by saying that it is not recognized under Indian law and other reasons. The concept is not
14
(Criminal Misc. Application 1037/2006), Uttrakhand High Court (Justice Praffula Pant) in March 2010 
15
Available at : https://indiankanoon.org/doc/173657747/ (Last accessed at 27th of October, 2018 at 1:43 PM).
16
Available at: https://blog.ipleaders.in/plea-bargaining-practice-india/ (Last Accessed at 27th ocotber, 2018 at
1:50 PM).

Page 10
widely recognized as it came recently and because there are cases, in which it was not applied
properly. The initiation of plea-bargaining has to be by accused which is different from US Law.
Our law provides for number of negotiations between the accused and the prosecutor or with the
court itself which is a cardinal difference from US. Unlike in US, where plea-bargaining is for all
sort of offences but in India, it is not for socio economic offences or the offences against women
and children. Court has to take great care at the time of application of plea-bargaining, therefore,
there is no recent case in which plea-bargaining has accepted. Speedy trial is the essence of
criminal justice and there can be no doubt, if there is delay in trial by itself, constitutes denial of
justice.

The Indian version of pleas bargaining leans heavily on the American provisions. However, there
are a few significant differences between the Indian and the American scheme of plea
bargaining:

 Firstly, in U.S.A, there is no restriction or limitation on the kind of offences for which
plea bargaining can be sought. Plea bargaining may be applied for even in offences
that carry a sentence of death penalty or life imprisonment. Further, Indian law
implies that the victim has an active say in the bargaining proceedings, and may refuse
or veto an unsatisfactory resolution. These differences are significant in the sense that
they help the Indian model avoid certain pitfalls that plea bargaining is identified with.
 Secondly, in America, an application for plea bargaining is filed only after
negotiations between the accused and the prosecutor is over. However in India, the
onus is on the defendant to file an application for plea bargaining. This is a safeguard
for the accused and helps in preventing cases of coercion and underhand dealings.
 Further, there is a provision for the court to ascertain the voluntariness of the
application. This too is an important safeguard, taking into account the socio-
economic groups that are an intrinsic part of Indian society. It means that the judge
can reject a plea bargaining application if he is of the view that there is prima facie no
case against the accused, or if he feels that that the accused is getting away with a
punishment that is less than what should be due, to the extent that it defeats the

Page 11
purpose of criminal justice or a disparity in the socio-economic status is being
exploited to arrive at the bargain.

With the changing world scenario where all the countries are shifting to ADR
mechanism from the traditional litigation process which is very lengthy and time
consuming, the plea-bargaining may be one of the best recourse as an ADR
mechanism to meet the challenges of disposal of pending cases.

Advantages of Plea Bargaining

 Management of caseloads
 Speedy disposal of cases
 Saves time and money
 Active participation of the accused

Disadvantages of Plea Bargaining

 Violation of the principles of criminal jurisprudence

 Failure to provide for an independent judicial authority
 Problem of coercion
 Risk of prejudice against the accused
 Risk of public cynicism and distrust
 Risk of Innocent pleading guilty
 In favor of the high handed and the rich
 Chances of abuse by prosecutors
 Victimization of the poor

International Divergence with Regard to Plea Bargaining

The United States does not restrict the use of plea bargaining. France, until recently, has not
permitted defendants to plead guilty to indictments. In a reform from March 9, 2004 France
introduced a version of guilty pleas and bargaining, but this new procedure is limited only to
crimes punishable with no more than five years in prison, and allows the prosecutor to propose a

Page 12
sentence not exceeding one year in prison. Reflecting the different restrictions on the use of plea
bargaining, in 2005 only 4% of French decisions by correctional courts were made using the new
guilty plea procedure.17 In contrast, in the same year in the United States 86% of all criminal
cases were closed as a result of a guilty plea. The legal literature on plea bargaining has been
dominated by the debate over the desirability of plea bargaining, with some scholars fiercely
opposing the use of plea bargaining and others defending it.

Chapter IV

SUGGESTIONS AND RECOMMENDATION:

It is important that the fairness of the proceedings is apparent. This element is currently not
observed in plea bargaining as the bargain process itself is not open to scrutiny. The parties must
be provided with a realistic opportunity of challenging the evidence in satisfactory conditions. As
the fairness of the proceedings are assessed in their entirety an isolated irregularity may not be
sufficient to render the proceedings as a whole unfair. All of these aspects serve to create an
intimidating environment in which the defendant must make a decision this is often not helped
by the lack of willingness on the part of both the defendant and the prosecution to go to trial. The
right against self-incrimination under Article 20(3) mandates that for plea bargaining to be
constitutional, it must be voluntary in nature. Voluntariness in such a circumstance means that
the accused should agree to the offer of the prosecutor freely without being coerced. However,
such a circumstance does not arise. Situations of hard coercion intrinsic to the system of criminal
justice compel the accused to accept the plea bargaining offer. Long trials or the prospect of
comparatively extreme sentences makes the exercise of plea bargaining a compulsion on the
accused. The accused does not have a reasonable choice between opting for trial instead of
opting for plea bargain. Such coercion is generally coupled with another form of coercion which
also plays a role in affecting the free choice of the accused. Socio-economic pressures or
concerns of livelihood induce a person to opt for a lighter sentence than pay hefty sums as bails
or potentially long sentences. It violates the free consent assumption and in turn, violates the
right against self-incrimination as under Article 20(3) of the Constitution of India. There is in
turn a requirement of voluntariness.

17
Available at: https://www.penalreform.org/blog/pleading-guilty-overview-french-procedure/ (Last accessed on
27th of October 2018, at 2:25 PM).

Page 13
CONCLUSION

Plea bargaining is undoubtedly, a disputed concept. Few people have welcomed it while others
have abandoned it. It is true that plea bargaining speeds up caseload disposition. Even the
Supreme Court has upheld that delay of one year in the commencement of trial is bad enough;
how much worse could it be when the delay is as long as three or five or seven to ten years or
more. Speedy trial is the essence of criminal justice and there is no doubt that delays in trial itself
constitutes denial of justice. Initially, the concept of plea- bargaining was criticized by a group of
society including legal experts and intellectuals by stating that it will demoralize the public
confidence in criminal justice system and also lead to lesser penalties to rich class, conviction of
innocent people and therefore, it has become disputed concept now. Today, it is used by all great
countries like USA, Europe, Canada and some authorities stated that the prevalent conditions in
India are very different from US, even then to meet out the huge backlog of cases in India and
ultimately it will have to be done with the consent of both the parties i.e. accused and
prosecution, then what undermines? Therefore, India cannot abstain itself for this law. This
practice has been accepted by Indian Judiciary. It can reduce the heavy backlog of cases in
Indian courts; as it requires today and we hope that overburdened criminal courts will soon get a
relief with it and rate of disposing will become rapid. Plea- bargaining will help in reducing
backlog under Indian Judiciary and number of prisoners in jails also although the Constitutional
obligation to provide speedy trial is also being fulfilled.

I feel that the compounding of offences is more useful than plea bargaining in criminal cases
because if parties compromise, then the result will be an acquittal. The plea bargaining is only
possible if an offence is punishable up to seven years as per law. So far as the list of
compoundable offences is concerned, it includes mostly those offences punishable up to seven
years, so compounding is more beneficial for accused. If the government comes forward and
includes more offences in the list given in section 320 Cr.P.C. it will be more useful.

BIBLIOGRAPHY

Page 14
BOOKS:

1- Sarah Armstrong,"Capacity as Philosophy: A Review of Richard Lippke's The Ethics of

Plea Bargaining, 1984 97: 5 Harvard L Rev 1037 (HL).
2- Criminal law manual.
3- Lal Batuk, “Introduction to Criminal procedure code”, Eastern Law book Publication.

WEB:

1. www.manuptra.com

2. www.shodhganga.com

3. www.mondaq.com

4. www.legalservicesindia.com

5. www.livelaw.com

6. www.lawoctopus.com

REFERENCES:

1. http://doktori.bibl.u-szeged.hu/2488/1/Samantha_Joy_Cheesman_ertekezes.pdf

2. http://www.manupatra.com/roundup/326/Articles/Plea%20bargaining.pdf

3. http://shodhganga.inflibnet.ac.in/bitstream/10603/38650/6/06_chapter%20%201.pdf

4. https://blog.ipleaders.in/plea-bargaining-india-different-usa/

5. http://ijtr.nic.in/PLEA%20BARGAINING.pdf

6.http://www.mondaq.com/india/x/273094/trials+appeals+compensation/Plea+Bargaining+An+
Overview

7. http://www.indialawjournal.org/archives/volume7/issue-2/article8.html

8. http://www.legalservicesindia.com/article/658/Plea-Bargaining:-Present-Status-in-India.html

9. https://www.penalreform.org/blog/pleading-guilty-overview-french-procedure/

10. https://blog.ipleaders.in/plea-bargaining-practice-india/

Page 15
11. https://indiankanoon.org/doc/173657747/

12. https://www.bjs.gov/index.cfm?ty=tp&tid=23

13. https://www.encyclopedia.com/social-sciences-and-law/law/law/plea-bargaining

14. https://www.encyclopedia.com/social-sciences-and-law/law/law/plea-bargaining

Page 16