The Plea Bargaining System

In India and US

SUBMITTED BY:
VAISHALI RATHI
V YEAR, E
15010126478
BATCH- 2015-2020

WORD COUNT- 1100

INTRODUCTION

Plea bargaining is a form of compromise where the defendant agrees to plead guilty to the
charges filed against him and in return the other party provides him some concession either by
reducing his sentence (known as Sentence Bargaining) or by applying lesser charges against him
(known as Charge Bargaining). However, the principle of plea bargaining requires that the
transaction entered into by both the parties is voluntary and of disposing cases is that

There is a huge backlog of cases in each court, and plea bargaining is the most convenient of
reducing that backlog by ensuring not involuntary.

The primary justification behind this mechanism

 speedy disposal of cases, as the accused himself agrees to plead guilty.

 The prosecutors are also overburdened with cases hence if less serious cases are disposed
off, by plea bargaining, then they could efficiently work on the more serious cases.
 The defendant can save his time and money by not having to defend himself at trial.

PLEA BARGAINING IN USA

Plea bargaining was officially recognised as a formal constitutional mechanism for deciding
criminal cases in Brady v. United States case.1 In Peter Westen and David Westin2 it was
observed by the U.S Supreme Court that the persecutor and the defendant must adhere to the
terms of the plea bargaining to make it legally valid. And, a plea bargaining will be legally
binding only if it is approved by a judge.3

There are three kinds of pleadings that are accepted by the US courts: the accused can plead
guilty, not guilty or nolo contendere. Plea bargaining is based on the plea of nolo
contendere which, as per Fox v. Schedit4 and State Exrel Clark v. Adam5, is a quasi-confession.
It is not an inherent right afforded to the accused, but once given by the court it cannot be
conditional or retracted in any manner. Essentially, in relation to punishment, it carries the same

1
397 U.S. 742 (1970)
2
1978 CALIF L.R. 66
3
Emilio C. Viano, Plea bargaining in United States: A perversion of Justice, available at,
https://www.cairn.info/revue-internationale-de-droit-penal-2012-1-page-109.htm#re7no7
4
84 S.E.2d 259 (1954)
5
111 S.E.2d 336 (1959)
implications as a guilty plea, but subsequently, it is not admissible to establish guilt in the
subsequent cases.

In a situation of normal plea bargaining, the agreement is initiated by the prosecutor, it is the
prosecutor who offers to either reduce the statement or the charges filed against the defendant.
Hence, in US, the parties who are involved in the process of plea negotiation are only the
prosecutor and the defendant and is a kind of out of court settlement.

PLEA BARGAINING IN INDIA

The Indian concept of plea bargaining is inspired from the Doctrine of Nolo Contendere. It has
been incorporated by the legislature after the Law Commission recommended it in its 142nd,
154th and 177th reports.

The recommendations were incorporated in the CrPC through the Criminal Law (Amendment)
Act 2005. Sections 265A to 265L under chapter XXI now deal with plea bargaining, as per
which

 the onus to invoke the provisions of plea bargaining is on the accused.6

 Only those accused of offences whose punishment is less than seven years imprisonment
and/or fine, and which do not fall under the category of socio-economic offences or
crimes against women and children can apply under the given provision.7
 Further, only first time offenders can avail this provision.8

The procedure is fairly straightforward.

 Once the application is made, it is submitted to the judge along with an affidavit who will
examine the accused in camera to ascertain the voluntariness of the application.9
 If satisfied with the voluntariness of the plea of the accused, the judge gives the accused,
the public prosecutor and the victim time to come to a mutually satisfactory resolution.10

6
Section 265A (1) (b)
7
Section 265B (2)
8
Section 265B (4)
9
Section 265B (4)(a)
10
Section 265E (4) and (5)
  The judge will then serve the reduced sentence (half or to a fourth of the sentence
provided for as per the statute) upon the accused, pronouncing his judgement in open
court.11
 The accused may also have to give some amount as compensation or cover the victim’s
legal expenses.12
 The accuser’s statements will not be admissible anywhere else and there is no provision
for an appeal except by special leave petition and writ petitions.13

The provision as contemplated by the CrPC is significantly at odds with the model that was
proposed by the Law Commission, of a “competent authority” who would act as a plea judge.
The prosecutor and the victim would be involved only to the extent of putting forth their version
of the story in front of the requisite authority. Hence, this proposal was not based on the
traditional understanding of plea bargaining but only sought to formally acknowledge the
practice of showing judicial leniency to those who pleaded guilty.14 The Indian judiciary was
also reluctant in applying this concept prior to the 2005 amendment and has on various occasions
rejected the concept of plea bargaining even after several recommendations of the Law
Commission of India.

DIFFERENCE BETWEEN AMERICAN MODEL AND INDIAN MODEL

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

11
Section 265F
12
Section 265G
13
Section 265K
14
Sonam Kathuria, The Bargain has been Struck: A Case for Plea Bargaining in India, 19(2) NLS Student Bar
Review, (2007) http://www.manupatra.co.in/newsline/articles/Upload/3BEB7B04-1EE3-48EB-8716-
279FA2B9AF8A.pdf
 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 purpose of criminal justice or a disparity in
the socio-economic status is being exploited to arrive at the bargain.

CONCLUSION

The rationale behind the introduction of plea bargaining in India was its efficacy in disposing off
cases quickly and hence substantially reducing in the backlog problem. The courts have long
maintained that justice delayed is justice denied. However, the Indian courts are plagued with a
systemic case of backlogs. Plea bargaining certainly seems like an expeditious and efficient
device to solve this problem; however it is yet to become popular. Although the legislature has
been extremely cautious in its approach towards it and has succeeded in circumventing some of
the issues that are associated with plea bargaining, there is still some scope for improvement to
make it not only administratively efficient, but also procedurally fair and just.

BIBLIOGRAPHY

 Emilio C. Viano, Plea bargaining in United States: A perversion of Justice (2012)

https://www.cairn.info/revue-internationale-de-droit-penal-2012-1-page-109.htm#re7no7
 K.V.K. Santhy, Plea Bargaining In US And Indian Criminal Law Confessions For
Concessions, 7(1) NALSAR LAW REVIEW (2013)
http://www.commonlii.org/in/journals/NALSARLawRw/2013/7.pdf
 Rosie Athulya Joseph, Plea bargaining: a means to an end, MANUPATRA (2006)
http://www.manupatra.com/roundup/326/Articles/Plea%20bargaining.pdf
 Sonam Kathuria, The Bargain has been Struck: A Case for Plea Bargaining in India,
19(2) NLS STUDENT BAR REVIEW (2007).
http://www.manupatra.co.in/newsline/articles/Upload/3BEB7B04-1EE3-48EB-8716-
279FA2B9AF8A.pdf