The Effectiveness of Plea Bargaining in India

In terms of its statutory development, plea bargaining was formally introduced in the criminal law of India by way of the Code of Criminal Procedure (Amendment) Act 2005. The four key legislative aims were to reduce the backlog of criminal cases; provide relief for under-trial prisoners; expedite justice to victims of crime; and give defence attorneys a formal alternative to trial. It has since been reformed and is now part of Chapter XXII of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). As such, it is important to consider whether the statutory mechanisms implemented over nearly two decades ago have delivered the intended results. This article conducts an overall review of plea bargaining in India on four related grounds. Firstly, this chapter will evaluate whether there exists a gap between the stated legislative objectives and the actual results. On this basis, evidence will be provided that demonstrates systematic and chronic low utilisation levels -- less than 500 annual applications for plea bargains from a pool of tens of millions of potentially eligible pending cases. Secondly, this chapter will examine judicial views regarding the use of the mechanism, identifying that the adversarial culture of the Indian courts; procedural inconsistencies and lack of sub-ordinate rules for consistent application have all contributed to the inability of the mechanism to function effectively. Thirdly, this chapter will assess various barriers preventing eligible applicants from accessing and being aware of plea bargain options. These include legal, financial, linguistic and social exclusions that may inhibit an applicant's ability to exercise their right to apply. Finally, this chapter will conduct an integrated review of the overall effectiveness of the plea bargaining process using five criteria based upon a comparison of realised outcomes against expected or desirable outcomes -- usage rates; voluntariness; protection of defendant's rights; recognition of victims' interests; and contributing to overarching criminal justice goals. Overall, this article concludes that while the BNSS includes some innovative developments -- namely victim participation in joint conferences, and the exclusionary rule under section 300 -- it has failed to deliver on its transformative aspirations. In particular, the absence of compulsory representation during the negotiation phase of plea-bargaining; inadequate appeal processes; perverse institutional incentives; and deeply ingrained cultural oppositions to plea bargaining within the criminal justice system mean that the plea bargaining mechanism remains largely inactive. Therefore, the article identifies necessary structural reforms -- including professional education/training; expansion of legal aid provision; standardisation of procedure; and institutionally incentivising plea bargaining -- as required to realise the constitutional and policy potential of plea bargaining under the BNSS.