INTRODUCTION AND BACKGROUND OF THE STUDY
The Italian criminologist Cesare Beccaria, in his book “Crimes and Punishment (1764)1, wrote that to prevent crimes in society, the certainty of punishments is more crucial than the severity of punishments. He noted that the certainty of smaller punishments is more significant than the panic of harsh punishments coupled with the hope of exemption from punishments by the legal system.
It has been noted that more than five crore cases are pending in the Indian judicial system, according to 2025 data. The pendency in District and subordinate courts is about 4.76 crore cases, in High Courts, the pendency leads to 63 lakhs, and 92,000 cases are pending in the Supreme Court of India. These cases are pending despite the various reforms and schemes that have been brought up by the government against the curbing of this point at issue, such as establishing Lok Adalats, Fast-track courts, or the digitalization of Indian courts.2 It has been observed that more than 85 percent of cases are pending in the district and subordinate courts in India, wherein the citizen most experiences the Indian legal system directly. We must recognize that this is a structural deficiency rather than a matter of administrative oversight.
For individuals involved in criminal cases, victims suffer mentally, emotionally, and financially in the prolonged delay of cases, whereas the accused first suffer from pre-trial norms and then the prolonged delay of cases for which they are detained, irrespective of being found guilty or not. On the other hand, in civil matters such as divorce and property matters, the parties to the dispute suffer especially financially during the prolonged delay of legal proceedings. A prolonged delay in the settlement of disputes in the legal system is not good for the economy as well. This hampers the performance of contracts, diminishes the investors’ assertiveness, trust, and confidence in investing in corporeal and incorporeal properties in India. When justice is stalled, the public loses faith in the strength of the legal framework.
The concept of Plea Bargaining is relatively new in India. The Plea Bargaining enables the accused to plead guilty to the offences committed by him and seek a lesser punishment than what’s prescribed in the statute. In this process, the accused person takes a deal wherein he takes the responsibility of the crime he has committed, and in exchange, he pleads for a lesser punishment. The Plea-Bargaining concept, when carried out fairly and legitimately, can help the State in battling the pendency of litigation in the Indian courts, and the accused by permitting the dismissal of cases quickly and efficaciously.
Plea Bargaining came into effect in India in 2006, and after 20 years from its introduction in the criminal procedure, the concept has only been utilized in less than one percent of the cases. The challenges for its smooth integration in the criminal procedure comprise reluctance in procedure, failure to provide incentives for opting for the concept by the system, and procedural awareness between litigators, defense advocates, and public prosecutors3.
The Attorney General of India, R Venkataramani, recently spoke about the creation of a mechanism in the Indian legal system for plea bargaining, which can assist, advise, and guide the public prosecutors, defense advocates, legal practitioners, victims, and accused in the prolonged trial of cases in an equitable, honest, and accountable way.4
Significance of the study
There are more than five crore cases pending before the Indian judiciary, which has faded away the public confidence in achieving fast and equitable justice, thus representing a huge deficit in the procedural functioning of the statutory authorities. Despite the various reforms that have been brought up to curb this issue, such as digitization of the judicial system and Lok Adalats, the pendency of litigations in the courts is still a drastic issue, especially before the district and subordinate courts. The study evaluates the concept of plea bargaining as a potential solution to tackle the issue of pending litigation processes in the Indian judiciary. The plea-bargaining mechanism has been under-utilized traditionally by the contesting parties, as only 0.1 per cent of the matters have been disposed of by the courts in India, whereas in countries like the USA and China, the disposal rate by the assistance of plea-bargaining processes is approximately 90 to 95 percent.
The research unfolds rights, duties and obligations of the multiple stakeholders such as the victim, the accused, the investigation officer and the court. The study empowers the victim by advocating Mutually Satisfactory Disposition (MSD) and focusing towards restorative justice, and for the accused, the study aims to accomplish plausible alternatives for prolonged, delayed trials that lasts 3-10 years in India, assisting the accused persons in getting measured punishments and restoration.
The study also analyses the timely analysis of the transition phase of the Bhartiya Nagarik Suraksha Sanhita 2023 by examining the changes brought by the Act under Chapter XXIII, such as a 30-day cap under Section 290, deduction in certain punishments to half, one-fourth, and one-sixth. And lastly, proposing the Sahmati Samadhan Nyaya Mission for ensuring sustainable, efficient, quick and rehabilitation legal structure in India.
THE CRIMINAL PROCEDURE OF PLEA-BARGAINING TRANSFORMING UNDER BNSS: THE NEW PROCEDURAL CHALLENGES IN THE LEGAL SYSTEM
The transition from The Criminal Procedure Code, 1973 (CrPC)5 to Bhartiya Nagarik Suraksha Sanhita, 20236 marks as the landmark milestone for the Indian legal system. Under the CrPC, the plea-bargaining concept was often ignored by lawyers for its defective framework and due to a lack of motivation for opting towards negotiated settlements between the contesting parties. The BNSS offers the removal of inconsistencies in Chapter XXIII that discusses plea bargaining, especially for persons who are facing prosecution for the first time7. The plea bargaining in the new code acts as a primary mechanism for negotiated settlements between the victim and the accused, instead of being just a neglected afterthought procedure in the CrPC.
The 30-Day Bracket under Section 290 BNSS
Section 290 BNSS8 proposes 30 days window for the accused persons to file an application for the plea-bargaining from the date of filing of the chargesheet. For the promotion of speedy justice and improved efficiency in the court structure, the provision seems satisfying and clear. Previously, there was no specific time period of opting for plea-bargaining in the CrPC; however, in the BNSS, keeping in mind the adage, justice delayed is justice denied, the cap by the legislature for appealing for plea-bargaining has been restricted to 30 days.
This provision will be put to good use as it will help the judiciary in reducing the prolonged delay in the trial of the cases resulting to gigantic pendency of litigation processes. This shall motivate the advocates of the person accused to discuss the pros and cons of opting for plea-bargaining immediately after the charges are framed against the accused. Hence, it will assist the parties in reducing fatigue of the pending cases and helping the court while the evidences are fresh and new. Economically, also the 30-day bracket shall assist the court, as in when the disputed case will be negotiated and settled within months from framing of charge against the accused, the costs of summoning of witnesses and documents, extracting forensic reports, police verifications, etc., shall be saved by the State.
Section 293 BNSS supports the first-time offenders as it guarantees them with the release on probation, half of the minimum punishment or one-fourth of the minimum punishments, depending upon the good conduct of the accused. This provision will be advantageous for the offenders for quick restoration and reintegration in the society. However, this 30-day bracket can be used coercively by the legal system as the strict limit can place the impoverished accused to a position for haste decision, though the plea bargaining is a mutually satisfactory disposition concept wherein the victim, accused and the police officer gather before court to voluntarily admit for an equitable decision in the matter at hand9.
Measured punishments for first-time accused persons
The instigation of measured punishments under the Plea-Bargaining in the BNSS is a systematic transition from the discretionary powers of the court to legitimate certainty in the criminal procedure. In the Code of 1973, the plea-bargaining concept had vague guidelines that became difficult for the legal system to implement in criminal cases; however, the BNSS has formed a beneficial procedure for the accused persons who opt for plea-bargaining in the early stages of the case. The courts can reduce the punishment to one-fourth, wherein minimum punishment is prescribed under Section 293 BNSS and to one-sixth of the punishment in the cases wherein no punishment is prescribed under Section 294 BNSS10.
With the coming of measured punishments under section 293 and 294 of BNSS, the advocates of the accused persons can clearly and equitably inform about the exact punishments and prices for the plea-bargaining. Hence, the procedure has become less complicated, transparent, and straightforward. This reform has acted towards rehabilitation of the first-time accused persons, guaranteeing measured punishments and thus preventing them from becoming recidivists, jailbird, or habitual offenders living in prison for years due to prolonged pending trial in the courts. This shall also reduce the burden of jail authorities if more accused persons choose plea-bargaining. The plea-bargaining offers the accused persons a chance to exit from criminal law and order within months of the chargesheet.
Balancing the courts’ discretion and minimum punishments compulsory under the BNSS
It is very difficult for courts and the justice system to act fairly and adequately while adjudicating the process of plea bargaining. On one hand, there is a victim who is seeking for justice and aiming to ensure maximum punishment to the offender and on the other hand, there is the accused who is seeking a plea for a reduction of sentence less than the minimum prescribed punishment prescribed by the provision under the BNSS. The courts cannot oversee the statutory limits of punishments, especially in some specific legal provisions. Though Mutual Satisfactory Disposition (MSD) takes place among the victim, the accused, and the police officer before the court, and the negotiated settlement shall be reached after the consent of all the parties, yet the court must analyze all factors, issues, and opinions of the parties while deciding the matter in dispute.
In specific statutory provisions, the courts cannot grant less punishment than the minimum punishment prescribed in the provision. Hence, it is noted that in certain cases, the gravity of the offence is not diluted even after choosing plea-bargaining by the accused. In State of Gujarat v. Natwar Harchandji Thakor11, the landmark judgment on plea-bargaining by the Gujarat High Court held that the negotiated settlement should be lawful and voluntarily agreed upon by the parties. The final order of the plea-bargaining must be in consonance with the statutory limitations. The plea-bargaining should not be used as an escape from justice; rather, it is an instrument for speedy justice. Thus, the courts are advised not to grant punishment less than the minimum mandated punishment prescribed by the Statute. The court have the discretionary authority to reject the application if it finds that the plea-bargaining is not meeting up with the basic and necessary demands of justice.
VICTIM’S RIGHTS VERSUS RESTORATIVE CERTAINTIES
To implement plea-bargaining in India with full force and aiming for maximum output from the concept, there exists a tightness in the criminal justice system wherein the judiciary aims to protect the aggrieved persons along-with positioning towards quick disposal of cases. In this chapter, we’ll be examining whether the plea-bargaining concept that has been customarily viewed as a negotiated settlement between the State and the accused can act as a restorative justice mechanism with the pioneering of BNSS12. The mechanism is not just about retribution of the victims suffered by the accused persons, rather it also provides for real actions for reconciliation. The prolonged trial processes in the courts affect the victim and lead to their acceptance of monetary settlements due to the intimidating practices in the Indian courts.13 The Act of 2023 provide rights to the victim to participate in the Mutually Satisfactory Disposition (MSD) and the opportunity of presenting his opinions concerning the plea of the accused before the court.
The role of the victim14 in the Mutually Satisfactory Disposition (MSD)
MSD is the heart and soul of the chapter of plea-bargaining protected under section 292 BNSS.15 The process of MSD often results towards monetary compensation to the State and the victim; however, the intention of the legislation behind the creation of the MSD is to allow the victim to be present at the hearing of plea-bargaining in seeking justice, shifting his role from mere spectator to being the prosecution witness towards becoming a crucial member in the negotiated settlement process. MSD acts beyond just proceeding towards monetary settlement and aims to achieve restorative justice by involving the victim, the accused, the investigating officer of the police and the court aiding the process of negotiated settlement. The MSD process may include an apology letter from the accused, restoration of corporeal or incorporeal properties to the victim, or the declaration of guilt.
The victim shall feel satisfied if firstly, there is a certainty of punishment to the accused, and secondly, the dodging of prolonged pending trial in the courts resulting in the deprivation of mental, emotional and financial well-being due to the victim being victimized for the second time during court hearings, objections and belligerent cross-examinations. In Mr. G. Venkateshan v. The State, the Madras High Court issued extensive guidelines on strengthening plea-bargaining. The court observed that plea bargaining is often ignored by judges and advocates due to a lack of awareness. It directed the courts to rejuvenate the concept of plea bargaining in controlling the pendency of litigation processes and mandatorily inform the accused about their right to file a plea before the initiation of trial. The court also clarified that the plea-bargaining can be filed in all cases wherein the offence is punishable up to seven years, and offences against the State, women and children are exempted from the negotiated settlement process between the State and the accused.16 Therefore, the courts are duty bound to notify the accused about his rights of plea before trial.
Conflict of private settlements and the ambiguity of Compoundable offences
In reality, as per the current state of affairs in the criminal courts, most of the potential negotiated settlements between the parties are settled by informal compromises and not by the formal plea-bargaining process highlighted under Chapter XXIII BNSS. The private arrangements among the parties lead to the blend of Plea Bargaining with the Compounding of offences enshrined under Section 359 BNSS. Plea-bargaining is a mechanism for restorative justice by the State wherein, during MSD, the victim, the accused, and the investigation officer gather before the court for a quick negotiated settlement, whereas the compounding takes place basically when the victim buries the hatchet with the accused and withdraws the charges against the accused, which leads to the acquittal of the accused.17
The conflict arises because most of the offences are eligible for both plea-bargaining and the compounding of offences. The reason why the parties opt for compounding of offences is that it provides a clean slate to the accused, as the victim withdraws the charges, and it leads to acquittal and on the other hand, plea-bargaining leaves a permanent stain on the accused as he’s held guilty for the offence committed by him. Hence, the plea-bargaining mechanism is often ignored by the parties.18
In Ram Gopal v. State of Madhya Pradesh19, the Supreme Court held that the courts have inherent powers under section 482 CrPC (now Section 528 BNSS20) to quash the criminal case even if the compromise between the parties had taken place for the non-compoundable offences, provided that the non-compoundable offence does not affect society as a whole.
INTERNATIONAL PERSPECTIVES ON PLEA BARGAINING: TAKEAWAYS FOR THE INDIAN LEGAL SYSTEM
When the ball game of the plea-bargaining concept is compared with other countries, it is found that the plea-bargaining concept produces significant results in battling the delay in settlement of cases worldwide. In the USA, the courts utilize plea bargaining in 90-95 per cent of the cases, and the share of trial cases is only 2-5 per cent21. It takes only weeks or months for the USA judicial system to dispose of the case, which acts as a sustainable case processing of litigation.22
In the United Kingdom, 70 per cent of the matters in dispute are settled with the assistance of plea bargaining, and most cases are disposed of by the UK justice system at a very early stage of trial23. Hence, there is a controlled progression of accumulation of pending cases. In China, the mechanism for plea bargaining is very high, and the courts therein are less burdened with the trial process of the accused. There is less pressure on Chinese courts for pending trials, and it takes only weeks or months for completion of trial processes by the legal system24.
In Italy, Germany, and France, the utilization of the plea-bargaining concept betwixt 15 and 30 per cent of the cases, and the burden of trial in these European countries is somewhat moderate. In Italy, the trial is completed in less time, whereas in Germany, there are shorter trials for certain offences, and in France, the trial for minor-related offences is conducted in fast-track courts. Hence, the concept of plea-bargaining acts as a core in the disposal of criminal cases in the USA, UK, China, Italy, and France, with the consideration that the concept does not restrict the equity principle in the criminal justice system of these countries.
In India, the concept of plea-bargaining is available to the accused in only 0.1 percent of the criminal cases pending in the judiciary, and more than 99 percent of the cases are moved to prolonged trial processes. It is noted that each trial in an Indian court takes a minimum of 3 to 10 years for disposal of cases, and 85 to 90 per cent of the cases are still pending in the judicial system of the country. It is essential that India learns from the global justice systems and inculcates the mechanisms in its constitutional and administrative legal structural system. India must come up with a reform for a negotiated justice system for pre-trial prolonged processes and plea bargaining, and the reform can transform into a national mission that can be called Sahmati Samadhan Nyaya Mission.
CONCLUSION AND SUGGESTIONS
The plea-bargaining concept should be considered for implementation in the Indian criminal system because, firstly, observing the humongous pendency of cases in the Indian courts, it is next to impossible for the judiciary to deal with every case independently and separately. Neither the judicial system is capable enough to stand firm against the gigantic caseloads, nor are the reforms in the justice system sufficient to tackle the current setting of pending litigation.
Secondly, the result of the trial at times can be dicey, expensive, and a prolonged delay may hamper the faith of citizens in the justice system. The plea-bargaining concept can act as a way out for the accused and the victim to accomplish a negotiated settlement by mutual understanding and agreement25.
Thirdly, the plea bargaining helps the advocates representing the parties, public prosecutors, judges, and courts to focus on more serious and heinous offences and permits the law practitioners to devote their attention and time to more complex trials. This saves the time of the court and resources of the State that can be utilized in more important constitutional and criminal matters.
Fourthly, the victims of the crime shall be contented in settlement of the matter in point at the pre-trial stage with the assistance of plea bargaining instead of experiencing a prolonged pending trial in the courts that will drain out the victims emotionally, mentally, and financially, as the pending trial affects the entire family for years to come.
Fifthly, the effective enforcement of plea bargaining shall help the justice system to work more efficiently in building trust and confidence of the citizens in the rule of law and the Indian legal system framework.
The findings suggest that Public Prosecutors must undergo training and ensure structural capacity in the courts. The Public Prosecutors must be able to ensure fair and equitable deals on the table wherein the victims and the accused of the case in point are able to be negotiated, and the settlement of the case shall be done within a specific time period. The work cycle of legal practitioners also needs to be reformed, wherein the settlement of disputes between the parties shall be in their professional motivations and involvement. The judiciary should promote negotiated settlements, and the courts should scrutinize which cases are apt for plea bargaining and take down discretionary actions in deciding the same before the filing of a chargesheet.
The citizens are to be informed as to how they can take the help of the law in securing equity and justice. The legal practitioners should take into consideration that the concept of plea bargaining has not come into force for the purposes of admitting defeat, yet it is a wise alternative in deciding criminal cases. To properly inculcate plea bargaining in the Indian judicial system, the coercion, misuse, and shakedown of the legal system need to be stopped, due to which the prolonged delay takes place in criminal litigation. The negotiated settlement can largely help in reducing the pendency of cases in the Indian courts if it is utilized correctly. The time saved by the courts with the assistance of plea bargaining can be used for overseeing contemporary constitutional issues and more severe criminal trials in progress.
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Footnotes
1. CESARE BECCARIA, AN ESSAY ON CRIMES AND PUNISHMENTS (1764).
2. (Dr.) C. Raj Kumar, We Need a National Mission for Negotiated Justice, Indian Express (March 24, 2026), https://indianexpress.com/article/opinion/columns/we-need-a-national-mission-for-negotiated-justice-10599578/.
3. COMMITTEE ON REFORMS OF CRIMINAL JUSTICE SYSTEM, MINISTRY OF HOME AFFAIRS, REPORT VOL. 1 (2003) (The Malimath Committee Report).
4. R. Venkataramani, We Need a National Mission for Negotiated Justice, INDIAN EXPRESS (Sept. 18, 2024), https://indianexpress.com/article/opinion/columns/we-need-a-national-mission-for-negotiated-justice-10599578/.
5. Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974 (India).
6. Bhartiya Nagarik Suraksha Sanhita, 2023, No. 46, Acts of Parliament, 2023 (India).
7. Abhinav Sekhri, The Bharatiya Nagarik Suraksha Sanhita, 2023: A New Era or Old Wine in a New Bottle? 7 INT’L J.L. MGMT. & HUMAN. 1165 (2024).
8. Bhartiya Nagarik Suraksha Sanhita, 2023, § 290(1), No. 46, Acts of Parliament, 2023 (India)
9. Thippaswamy v. State of Karnataka, (1983) 1 SCC 194 (India)
10. Bhartiya Nagarik Suraksha Sanhita, 2023, § 293(c)-(d), No. 46, Acts of Parliament, 2023 (India)
11. State of Gujarat v. Natwar Harchandji Thakor, (2005) 1 GLR 709 (India).
12. A Comparative Study of the Bharatiya Nagarik Suraksha Sanhita, 2023 and the Code of Criminal Procedure, 1973: Continuity, Change and Constitutional Balance, 5 INT’L J.L. & POL’Y (2025).
13. Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 (India).
14. Bhartiya Nyaya Sanhita, 2023, § 2(1)(y), No. 45, Acts of Parliament, 2023 (India)
15. For offenses with a minimum punishment: Bhartiya Nagarik Suraksha Sanhita, 2023, § 292, No. 46, Acts of Parliament, 2023 (India)
16. Bhartiya Nagarik Suraksha Sanhita, 2023, § 289, No. 46, Acts of Parliament, 2023 (India)
17. Ramgopal & Anr. v. State of Madhya Pradesh, (2021) SCC OnLine SC 834 (India).
18. State of Uttar Pradesh v. Chandrika, (2000) 4 SCC 79 (India).
19. Ramgopal v. State of Madhya Pradesh, (2022) 14 SCC 531 (India).
20. Bhartiya Nagarik Suraksha Sanhita, 2023, § 528, No. 46, Acts of Parliament, 2023 (India)
21. Santobello v. New York, 404 U.S. 257 (1971)
22. Pooja S., Plea Bargaining as A Tool of Criminal Justice Reform: A Comparative Examination of India and International Legal Systems, 7 INDIAN J.L. & LEGAL RSCH. 1 (2025).
23. Sentencing Council, Reduction in Sentence for a Guilty Plea: First Guideline (2017)
24. Criminal Procedure Law of the People’s Republic of China (amended 2018), art. 15
25. Law Commission of India, 142nd Report on Concessional Treatment for Offenders who on their own initiative choose to plead guilty without any Bargaining (1991).