INTRODUCTION
Plea Bargaining was introduced into the Indian Criminal Justice System through the Code of Criminal Procedure (Amendment) Act, 2005. This introduction of Plea Bargaining was based on several legislatively-defined goals. The first goal was to decrease the backlog of criminal cases in overloaded Courts. Secondly, the lawmakers wished to help those incarcerated awaiting trial while facing charges that would result in no greater than the length of time they were being held. Thirdly, the lawmakers intended to provide quicker justice to Victims. Lastly, the lawmakers wanted to give the Accused an alternative to go to Trial and receive a lower sentence when admitting guilt voluntarily. Each of these goals were established by the lawmakers in response to decades of empirical evidence demonstrating how poorly the traditional criminal Trial delivers timely, easily available, and humane justice.
Almost twenty years after the inclusion of Plea Bargaining within the Indian Statute Book, and after having been restructured and continued under Chapter XXII of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereafter ‘BNSS’), it is both timely and imperative to perform an evaluation of the extent to which Plea Bargaining in India has fulfilled its legislative promise. An evaluation such as this will require engagement with empirical data regarding utilization rates and case results, judicial decisions defining the parameters of applicability of Plea Bargaining, social and structural limitations preventing access to Plea Bargaining, and theoretical frameworks for evaluating criminal justice systems as well as constitutional doctrine.
LEGISLATIVE OBJECTIVES VS. ACTUAL RESULTS
Stated Legislative Goals
The Statement of Objects and Reasons accompanying the Criminal Law (Amendment) Bill, 2005 described three main purposes: reducing the large numbers of criminal cases pending in courts; providing opportunities for defendants to negotiate for a lesser penalty in exchange for a plea of guilty; and enabling courts to dispose of criminal cases more quickly and saving court time and resources. These purposes were discussed within a backdrop of institutional critique that developed over decades, primarily through Law Commission reports — specifically Reports 142 (1991) and 154 (1996)—each of which advocated for the use of plea bargaining as a structural solution to what became known as “the crisis” of criminal case pendency.1 The degree of that crisis has also been documented. According to reports released by the National Crime Records Bureau dated March 31st, 2022, there are over 48 million criminal cases pending before courts of every level in India — with nearly all of them pending before subordinate criminal courts which have jurisdiction to hear Plea Bargaining Applications. Furthermore, the undertrial prison population was estimated to be around 434 thousand, representing over seventy-five percent of all prisoners in India — often for periods longer than any possible maximum sentence for their alleged offense. The above-mentioned statistics indicate not just a major administrative failure but a severe and ongoing human rights disaster which the framers of the Plea Bargaining Legislation attempted to mitigate.
Rates of Utilization: A Record of Underuse
One of the most compelling empirical facts regarding plea bargaining in India is that it has been grossly underutilized throughout its entire statutory existence. In spite of the magnitude of the problem it was supposed to solve; although it was explicitly mandated by law that it should be available; and even though it provides a substantial reduction in sentences to eligible defendants, plea bargaining has generally been viewed as a minor and relatively inactive aspect of criminal procedure — invoked in a small minority of otherwise eligible cases — and treated with distrust or disinterest by the key institutions involved in implementing it.
Following the enactment of Plea Bargaining in 2006, during each year subsequent thereto, less than 500 cases were resolved via Plea Bargaining across India — a minuscule percentage of the tens-of-millions of potentially eligible cases pending at any particular moment in time.
There are many other comparisons to be made. In the U.S., for example, 97% of federal convictions and 94% of state convictions were obtained via guilty pleas in the last few years. Most of these involved plea negotiations by prosecutors. In the UK, Crown Courts report that they receive more than 70% of their prosecutions in the form of guilty pleas and use incentives such as sentencing discounts to encourage parties to resolve disputes prior to going to trial. Even countries that adopted plea bargaining relatively late (South Africa, Italy and several Eastern European countries) have reported much higher rates of usage within the first ten years after its introduction. So far, India has taken a different course in this regard.2
It appears there is a gap between what was promised in legislation regarding the introduction of plea bargaining and how effectively it has been implemented due to a combination of legal, institutional, cultural, and structural reasons. First, and most significantly, India lacks a culture of plea bargaining among the main participants in the Indian Criminal Justice System. Adversarial trials remain the normative and dominant method of criminal adjudication. Therefore, Prosecutors, Defence Lawyers and Judges have been trained in, and have developed their professional identity based upon, the traditional trial process. As noted earlier, plea bargaining involves negotiation skills, an ability to compromise, and an understanding of ambiguity which are not common characteristics of the adversarial tradition. It was thus inevitable that when the legislature created a statutory environment allowing for plea bargaining, without providing any additional training for professionals working in the criminal justice system or institutional incentives to support its implementation, the results would include low levels of utilization.
Secondly, there exists a perverse incentive structure throughout the Indian Criminal Justice System. For prosecutors, full trials offer a greater opportunity for obtaining convictions resulting in longer prison sentences – a result which contributes to increased professional prestige relative to the benefits gained through negotiating a plea agreement. For Defence Counsel, full trials generate greater income and provide for longer periods of representation. For Judges, using plea agreements to clear dockets will generally elicit fewer forms of institutional recognition compared to issuing judgments. Consequently, the incentive structures present within the Indian Criminal Justice System clearly favor continued prosecution through trial rather than selecting plea bargains. Thirdly, there exists widespread distrust of the mechanisms of “negotiated justice” amongst individuals accused under the Indian Criminal Justice System — especially members of marginalized groups who have had extensive experience with coercively extracted confessions, fabricated evidence, and custodial abuse. Such experiences create a rational skepticism as regards any state sponsored mechanism designed to facilitate negotiation of justice.
JUDICIAL ATTITUDES AND REALISTIC APPLICATION
The Judiciary as A Structural Variable
Unlike the US Model where plea bargaining is largely a bilateral agreement between the prosecutor and defense counsel and takes place under the oversight of appellate courts, the Indian Model places the courts at the center of the process as the determining agency for eligibility; conducting the in camera hearing; convening the joint conference; and imposing sentence. Thus, judicial attitudes toward plea bargaining are not simply matters of personal preference but represent a fundamental structural variable that determines whether plea bargaining can occur at all and if so, how fairly and justly such bargains are resolved.10 Indian Judiciaries’ Attitudes Toward Plea Bargaining: Sceptical Rather Than Enthusiastic Indian judges have been skeptical rather than supportive of plea bargaining. Their reservations reflect a complex interplay of considerations including: an overall commitment to the adversarial trial as the idealized model of criminal adjudication; a fear of false guilty pleas; a worry about coercing vulnerable defendants into pleading guilty; general institutional reticence concerning procedural innovations; and in some instances, an anxiety about giving up aspects of their own judicial authority that arise out of reducing their role from decision-maker to mediator.
Judicial Opinions Regarding Plea Bargaining:
In Murlidhar Meghraj Loya v. State of Maharashtra — decided prior to the creation of the statutory regime governing plea bargaining —the Supreme Court examined the issue of consent sentencing in compoundable offense cases. Although the Court did not explicitly reject the notion of consent-based dispositions, its cautions against accepting them mechanically, absent judicial scrutiny of both their voluntariness and fairness set a tone of vigilant caution that has colored the judiciary’s response to statutorily-mandated plea bargaining ever since. In addition, in Thana Singh v. CBI, the Supreme Court ruled that Chapters XXI-A and XXII-B — dealing with pre-trial investigations — comprise an independent Code; that determination of eligibility should take place strictly pursuant to statutory requirements; and that Courts must consider Chapter XXI-A’s mandates seriously — given that waivers of rights are being made with respect to trial procedures.
A number of High Courts including Delhi, Bombay, and Karnataka have established a fair amount of jurisprudence regarding the standards to be met during the in-camera examinations; what can be included in the mutually satisfactory disposition; and the extent to which a sentence discount may be provided. However, other High Courts have less experience with plea bargaining because the mechanisms have seen minimal use in the lower courts of their respective jurisdictions. This unevenness results in a fractured body of law that provides insufficient direction for trial judges attempting to fairly and consistently apply the plea bargaining process.
Procedural Inconsistency And Institutional Hurdles to Practical Application
Plea bargaining has also been characterized by significant procedural variability and institutional hurdles that have contributed to decreased utilization of the procedure and reduced the quality of resulting pleas.
Specifically, there is considerable uncertainty amongst many trial judges as to the specific procedures required to properly file a motion for plea bargaining.
For example, do motions for plea bargaining need to be supported by affidavits in every case? What type of information must a defendant provide to the court when making a motion for plea bargaining? How will the court proceed if a motion is filed improperly?
The lack of subordinate rules and prescribed forms for filing motions for plea bargaining under either the Code of Criminal Procedure (“CrPC”) or the Baccarat Narcotics Suppression Scheme (“BNSS”) has significantly increased this uncertainty. As a result, the mechanism has been implemented without the procedural framework necessary to create a functional means for accessing the mechanism.
Concerns exist over the adequacy of the judicial inquiries made into each applicant’s voluntary participation in plea bargaining.
Anecdotal reports from practicing attorneys and empirical research concerning trial court operations indicate that in many instances, in-camera examinations were performed superficially (i.e., with the judge simply asking defendants routine questions and accepting affirmative answers without asking additional questions related to why they sought to plead guilty). There are several possible explanations for this perfunctory approach including heavy dockets and/or a lack of judicial training concerning plea bargaining.
Whatever explanation exists, the consequence is that one of the key safeguards built into the plea bargaining scheme often fails to function as anticipated.
Finally, while courts applying section 299 of the BNSS have attempted to uniformly apply the statutory formula used to calculate a mandatory minimum sentence, there have been discrepancies as to whether some courts impose sentences that fall outside the limits defined by the statute.3
In some cases, courts have imposed sentences below the statutorily defined minimum; in others, courts have exceeded the statutorily defined maximum allowable reduction in sentence. These discrepancies reflect both a lack of familiarity on the part of many judges with respect to the applicable sentencing schemes under the BNSS, as well as confusion over how these schemes interact with other sentencing options under both the BNSS and the Bharatiya Nyaya Sanhita, 2023.
AWARENESS AND ACCESS FOR ELIGIBLE ACCUSED PERSONS
Information Gap
Ignorance of a legal mechanism renders access to that mechanism impossible. Plea bargaining has suffered from an extreme information gap. Only a small minority of eligible defendants know about plea bargaining.
As previously noted, many defendants facing charges in Indian subordinate criminal courts are individuals who lack formal education and therefore lack independent ability to understand and work with the complex procedural details contained within criminal law statutes. Therefore, defendants’ knowledge of plea bargaining is largely dependent upon learning about it from their lawyers.
Without access to a lawyer (which is a frequent occurrence in India’s trial courts), defendants essentially cannot access plea bargaining.
The Economic Dimension of Inaccessibility
In addition to the obvious disparity in economic resources, the legal profession requires an enormous amount of money to pursue any type of litigation. As stated previously, the decision to plead guilty requires a “cost/benefit” analysis. It may seem simple enough; however, the decision involves weighing the definite costs associated with a guilty plea (i.e., a reduced sentence) versus the potential benefits of going to trial. There are three primary factors that one must consider when undertaking this evaluation.
Firstly, there is the question of whether or not you will win your case. In other words, do you have sufficient evidence to prove your innocence? Secondly, you must determine how long the trial will last. This factor is also tied into cost. The longer your trial lasts, the greater your expenses. Finally, you must determine what type of sentence you can expect if you lose. If you know that you cannot win your case, then pleading guilty may be the better choice.
This analysis is essentially impossible to undertake unless you receive some form of professional legal assistance. Therefore, the issue of being able to afford a lawyer is again raised. Many people who are incarcerated cannot afford a lawyer. They therefore rely on legal aid programs to help them through their time in jail. However, even these types of programs are often unavailable to those who are unable to pay for them.
Therefore, many under-trial prisoners are denied their right to participate in the legal process because they simply do not have the financial means to do so.
The Linguistic Dimension of Inaccessibility Criminal cases in India are typically heard in languages that are not native to many of the accused persons. Tribal groups, minority groups, and migrant workers from different states are all examples of people who may speak little or no English or Hindi. Because of this, they are unable to fully participate in the criminal process.
Plea bargaining is especially difficult for these individuals because it requires them to be able to understand and agree to complex legal concepts. Although Section 267 of the Code of Criminal Procedure has provisions regarding interpreters, these are rarely used in lower court settings.
Furthermore, because many accused persons have limited understanding of law enforcement procedures, they are often unable to provide accurate information about their case and are thus disadvantaged throughout the entire process.
The Social Dimension of Inaccessibility
Members of Scheduled Castes and Tribes make up a disproportionate number of those arrested in India and held in prisons and jails as undertrials. These individuals have historically been treated poorly by the police and judicial systems and continue to be marginalized today.
As a result, these individuals tend to view any proposed reforms in the justice system with skepticism. Their distrust stems from past injustices including false confessions and manufactured evidence. While providing information about plea bargaining would be a start toward changing attitudes, a complete reversal in perceptions will depend upon much broader changes in relationships between marginalized communities and institutions of criminal justice.
ROLE OF LEGAL AID & PARA-LEGAL SERVICES
If India truly wants to expand the use of plea bargaining across its eligible populations, it needs to radically increase funding and improve its legal aid services.
At the very least, each Legal Services Authority should create special projects to assist in identifying defendants eligible for plea bargaining. Additionally, they should train their legal aid attorneys in plea bargaining procedures, including communicating relevant information to defendants early in the criminal process (e.g. during arrest and at first appearance).
Finally, they should ensure that all appropriate staff are aware of plea bargaining options and that they communicate this information to clients at every possible opportunity.
Hussainara Khatoon v. State of Bihar holds that legal aid is a necessary part of an individual’s due process rights under Article 21 of the Indian Constitution. Therefore, it is constitutionally required that governments treat providing access to plea bargaining as an obligation rather than simply a discretionary program.4
Para-legal volunteers are rapidly becoming a critical component of India’s legal aid infrastructure, and can provide a vital conduit for increasing awareness of plea bargaining among disadvantaged populations. By training para-legals to identify suitable defendants, explaining plea bargains in easily understood language and facilitating contact with appropriately qualified legal aid attorneys, they would significantly help bridge the knowledge gap now hindering access to the individuals who are most likely to benefit from the mechanism. Training and counseling programs regarding plea bargain options within the institutional confines of prisons — provided by trained legal aid lawyers in collaboration with prison officials — would also go far to bridge the access gap currently existing for the undertrial population. The undertrial population is the group most directly impacted by the persistent underutilization of the mechanism.
ASSESSMENT OF EFFECTIVENESS
Criteria for Evaluation
To evaluate fairly whether plea bargaining has worked effectively in India, there should be some explicit and justifiable evaluation criteria. To achieve the goal of this chapter, the authors will evaluate the efficacy of plea bargaining through five dimensions based on those articulated in the legislation objectives, the relevant constitutional provisions and international standards applicable to criminal justice systems: (i) how extensively the mechanism is utilized; (ii) what quality and voluntary nature exist in the results generated; (iii) to what extent do the rights of defendants receive adequate protections; (iv) to what extent do the rights of victims receive adequate recognition and protection; and (v) to what extent does the mechanism contribute to achieving the overarching goals of the criminal justice system — deterrence, rehabilitation, restoration, and public confidence in the administration of justice.
Case Disposal Efficiency: Limited and Unrealized Potential
Assessed according to the criteria of case disposition efficiency, plea bargaining in India appears to be a mechanism with limited and primarily unrealized potential. It is apparent from the empirical analysis presented in Section 5.1 that over eighteen years since it was first statutorily available, plea bargaining has resulted in only a very small percentage of the total number of eligible cases having been resolved through this method, and therefore has had little direct effect upon reducing court congestion. According to NCRB data, no decline in criminal case backlog has occurred as a result of plea bargaining, nor has any state indicated that improvements in their respective case disposition rates were related to the utilization of plea bargaining. While such assessments require qualification due to an unknown counterfactual, it is possible that plea bargaining prevented additional increases in court congestion on a per-case basis regardless of the relatively small aggregate numbers.
Voluntary Nature and Quality of Results
While available evidence indicates that when plea bargaining has been employed, in the vast majority of instances it has been implemented using reasonably regular procedures, and that results — consisting of reductions in sentence and often restitution payments to victims — generally complied with legislative intent, there is no systemic evidence indicating that widespread false guilty pleas or gross miscarriages of justice have occurred as a direct result of this mechanism. However, while there is no systematic evidence regarding coercive police tactics, inadequate legal representation, or extended periods of pre-trial incarceration resulting in coercive pleas — all common problems within India’s criminal justice system — and thus while these factors are unlikely to be eliminated by the BNSS procedural safeguards alone, there exists legitimate concerns regarding voluntariness.28
Rights Protection for Defendants
Plea bargaining’s effectiveness as a rights protector for defendants produces a mixed assessment. The benefits include providing defendants with a means to lessen their sentence length, to secure early release from pre-trial detention, and to have greater control over the outcome of their case. Additionally, Section 300 of the BNSS provides an important safeguard for defendants who consider pleading but do not commit to doing so because it prohibits adverse references to statements made during the plea bargaining process from being used as evidence in a subsequent trial. On the other hand, limitations on defendant’s rights include lack of mandatory counsel at the time of negotiating a plea agreement under the BNSS, limited appellate jurisdiction pursuant to Section 302, and systemic disadvantages affecting defendants’ ability to utilize their constitutionally guaranteed rights through this process. Most notably absent from BNSS’s framework for protecting defendant rights is addressing mandatory counsel deficiency — which could have been mandated based upon right to fair process under Article 215— and is thus BNSS’s most severe limitation as a protective framework for defendant rights.
The Protection of Victims’ Interests in Plea Bargaining and the Bigger Picture of Criminal Justice Policy
One of the forward-thinking aspects of India’s plea bargaining framework is how it deals with the rights of the victim. This is demonstrated by two factors – (1) that the victim be invited to attend the joint conference; (2) that the agreement reached at that conference take into account the views of the victim as well. Both of these provisions represent an improvement upon what would otherwise be expected under either a traditional adversarial model or those used by other countries. When this process works effectively, some empirical data demonstrates that victims who receive a restitutionary aspect of their bargain do so with a greater sense of satisfaction than they might have received from attending a conventional trial. However, in order for a victim to have his/her/their needs satisfied through participation in such a process, he/she/they will need to meet certain preconditions of participation including being economically independent, free from social pressures, having available access to independent legal counsel. These pre-conditions for meaningful victim participation often cannot be realized in practice, especially when the defendant has economic and/or social power advantages over the victim.27 When evaluating the Indian plea bargaining experience relative to the larger goals of criminal justice policy, it may be seen as both complex and somewhat disappointing. The deterrent effect of plea bargaining as a mechanism is ambiguous per se; and because of the very low use rate of plea bargaining as a mechanism, it can be argued that there has been little if any demonstrable deterrent effect. Likewise, the rehabilitative potential of plea bargaining also remains unfulfilled. While the Indian BNSS framework allows for a sentence reduction in the plea bargaining context, unlike other systems such as that found in Canada, 29 there was virtually no consideration afforded regarding the qualitative characteristics of the final disposition – whether it be rehabilitative or restorative. Therefore, while it could provide some rehabilitative benefit to the offender, there is virtually none. From a perspective related to enhancing or damaging public confidence in the criminal justice system, because the plea bargaining process occurs behind closed doors and is rarely used, it does not currently contribute to the enhancement or diminishment of public confidence in criminal justice. There still exists a danger however of diminishing public confidence in criminal justice resulting from high profile cases where serious offenders appear to have avoided receiving an appropriately harsh penalty. The eligibility criteria for entry into the BNSS framework and the minimum sentences set forth therein were intended to help mitigate this risk, although they are sometimes insufficient.
CONCLUSION
The most clear and obvious conclusion I can draw from my study is that there is a large-scale and widespread underuse of plea bargaining in India. In spite of the massive number of pending criminal cases, which include approximately 48 million pending criminal cases, and an undertrial prison population greater than 434,000 people who have been detained longer than any possible jail term they may lawfully receive, fewer than 500 criminal cases are resolved each year through the use of plea bargaining. This statistic is not simply a statistical “failure”, it is a profound failure of the legal structure to convert legislative intent into real judicial practice.
The failure of plea bargaining in India is caused by a combination of multiple structural, institutional and socio-legal issues. The strong adversarial nature of the legal profession in India – the same adversarial orientation that defines the identities of the lawyers, the judges and the prosecutors – makes plea bargaining foreign to the prevailing way of conducting criminal proceedings in the country. Moreover, perverse incentive systems that exist throughout the criminal justice apparatus also reinforce this resistance. For almost every individual involved in the criminal justice process, trials continue to provide them with better career opportunities and higher incomes than negotiated settlements. The lack of standardized procedures, mandated forms and adequate judicial training create inconsistencies and fragmentation in how plea bargaining is applied throughout various jurisdictions. The quality of in camera hearings, conducted primarily in a perfunctory manner, severely limits the practical effect of voluntariness as the primary guarantee.
Barriers to access exacerbate these institutional failures. An overwhelming majority of eligible defendants – predominantly from scheduled caste and tribe populations, linguistically minority groups, migrant laborers and individuals who do not have financial resources – are completely unaware that they even have access to plea bargaining as a legitimate option. While access to plea bargaining is indirectly made available through attorneys, the legal aid system in India is grossly underdeveloped and therefore unable to help bridge this gap. As a result, while conceived as a method to offer some level of relief to the most marginalized members of the under-trial population, in actuality, plea bargaining remains unavailable to those very individuals it was intended to assist.
These failures have important implications related to the constitutional rights of Indians. The Supreme Court’s decision in Hussainara Khatoon v. State of Bihar establishes that timely access to justice is a fundamental aspect of the right to life and personal liberty protected by Article 21 of the Constitution. When the Indian government fails to provide meaningful access to eligible defendants – specifically through the absence of required legal representation at the time of negotiating pleas – it does not just constitute an ineffectual policy, it potentially violates its constitutional obligations. Furthermore, the BNSS failed to take advantage of an opportunity to ensure that the plea-bargaining framework complies with its constitutional obligations by mandating attorney representation during this critical phase.
While the BNSS contains beneficial elements such as provisions for victim participation during joint conferences, protections against prejudice provided by section 300 and structured sentencing guidelines established in section 299, it includes additional provisions that demonstrate an effort to strike a balance among competing interests of all parties in a constitutional context. Although the BNSS has incorporated numerous positive aspects found in comparable countries’ legislation regarding plea bargaining, these positive structural features would not be sufficient to overcome the fact that the plea bargaining mechanism has failed to accomplish its main purposes because these positive features are generally applicable in theory rather than being utilized effectively in practice.
Ultimately what India’s experience demonstrates about plea bargaining is that mere legislative enactment does not necessarily lead to transformations in criminal justice practices. Unless law reform is complemented with similar changes in professional culture, institutional incentives, resource distribution and public legal education then law reform is likely to fall far short of expectations. The gulf between “law on the books” and “the law in practice,” which has defined plea bargaining in India since 2006, cannot be bridged solely by revisions in statutes.
To move forward, we require an ongoing, multilateral commitment. Mandatory legal assistance must be provided prior to the application process, as a Constitutional mandate. Legal services authorities must be funded to carry out targeted plea bargaining outreach programs in detention centers. Judges must undergo formal training on negotiated disposition and trial procedures. There must be subordinate regulations and standard procedure forms issued pursuant to the BNSS to prevent jurisdictional inconsistencies. Professional rewards systems must be transformed such that the resolution of cases through plea bargains are granted the same level of professional recognition as convictions achieved by trial.
The Bharatiya Nagarik Suraksha Sanhita (India Citizen Protection Bill), 2023 offers the Indian government a new legislative framework to redirect the course of plea bargains in India. It remains to be seen whether this opportunity will be utilized by the political will, institutional commitment, and long-term funding required to convert a dormant mechanism into a working tool of accessible and humane criminal justice. Those pre-trial detainees awaiting incarceration longer than the time they would have spent incarcerated if convicted of their alleged offense are entitled to no less.
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Footnotes
1. Law Commission of India, 142nd Report; Law Commission of India, 154th Report
2. United States Department of Justice, Bureau of Justice Statistics, ‘Federal Justice Statistics 2020’
3. Bharatiya Nagarik Suraksha Sanhita, 2023, s. 299
4. Hussainara Khatoon v. Home Secretary, State of Bihar (1980) 1 SCC 81
5. Constitution of India, Art. 21