INSTITUTE OF LAW

NIRMA UNIVERSITY

Research Paper
of

COMPARATIVE CRIMINAL PROCEDURE [2CRM946]

on

Comparative Analysis of Plea-Bargaining:

India and USA

SUBMITTED TO – SUBMITTED BY –
Prof. Dr. Neeraj Gupta Pooja K Jojo
Lecturer Roll No. 19BBL039
Institute of Law BCom LLB (Hons.)
Nirma University SEMESTER IX

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 Comparative Analysis of Plea-Bargaining: India and USA

I. Introduction:

Plea bargaining is a crucial and prevalent component of the criminal justice system in many
countries, including the United States. It is a negotiation process between the prosecution and
the defense, in which the defendant agrees to plead guilty to a specific charge in exchange for
certain concessions or benefits. These benefits often include a reduction in the severity of
charges, a lighter sentence, or the dismissal of some charges altogether. The practice of plea
bargaining varies by jurisdiction, and the rules and ethical standards governing the process
can differ significantly.

II. Objective:

The main objective of this paper is to compare the existing plea bargaining system in the
American Criminal Justice System and Indian Criminal Justice System, to analyse them for
their flaws and efficiency in delivering justice to the people.

III. Research Methodology:

The research method and tools used in this paper are to study and analyse the existing
secondary data and other data available to make use of it in the comparative study. The
process involved data collection and data analysis considering the validity and reliability of
the sources within their limitations to come up with a conclusion for the purpose of this
research paper.

IV. Literature Review:

Plea bargaining is a controversial idea that is mostly motivated by practicality and reciprocal
advantages rather than by rigid morality, legality, or constitutionality is what is discussed in
the research paper titled ‘PLEA BARGAINING IN US AND INDIAN CRIMINAL
LAWCONFESSIONS FOR CONCESSIONS’1 authored by K.V.K. Santhy. Its acceptance
demonstrates the urgent need for a radical reform in the criminal justice system. Its
effectiveness, though, is dependent on the possibility of a quick and economical case
resolution. Plea bargaining removes some of its attraction if the criminal justice system's
main goal is to rehabilitate offenders by imposing specific jail sentences.

This paper titled ‘Bargained Justice: Legal Psychological Analysis of Plea-Bargaining in

India and USA’2 explores the legal system's adoption of plea bargaining and its historical
roots in India. It examines the Criminal Procedure Code's (Cr.P.C.) Plea Bargaining
provisions critically, pointing out the flaws that impede the main goals of lowering the
backlog of criminal cases and accelerating justice.

1
Santhy, K. V. K. "Plea Bargaining in US and Indian Criminal Law, Confessions for Concessions." NALSAR L.
REV 7.1 (2013): 85.
2
Vig, Komal, Ruchi Lal, and Priyanka Ghai. "Bargained Justice: Legal Psychological Analysis of Plea-Bargaining in
India and USA." Comparative Approaches in Law and Policy. Singapore: Springer Nature Singapore, 2023. 369-
380.

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The study explores how the Indian judiciary has adopted the idea of plea bargaining and
offers insights into how the Indian judiciary has used and implemented this idea. It also
addresses the psychological aspects that affect the Plea Bargaining process and provides a
comparison analysis with the American judicial system. In order to address the issue of
outstanding cases and delayed justice, the paper concludes by highlighting the importance of
plea bargaining as a crucial part of the adversarial criminal justice system in India and
offering recommendations for enhancing and bolstering the system.

In the framework of the Indian criminal justice system, the notion of plea bargaining is
examined in this research article titled ‘A critical analysis of plea-bargaining in India’ 3
authored by Putra G. It emphasises the value of plea bargaining as a crucial facet of the
management of the criminal justice system, highlighting its capacity to promote swift and
mostly conclusive resolutions of criminal cases.

The study notes that plea bargaining has not been very effective in India, even though laws
pertaining to it were added to the Criminal Procedure Code in 2005. The study explores the
causes of this failure and examines whether plea bargaining is in line with the actual goals of
the criminal justice system in India or if it pressures defendants to accept accusations.

Using a doctrinal research approach, the research study analyses current legal provisions,
concepts, and their real-world applications in India. It offers a thorough analysis of the idea
of plea bargaining as it applies to Indian law.

This research paper titled ‘Concept of Plea Bargaining under Indian Legal System’ 4 authored
by Bhaswat Prakash analyses the current condition of plea bargaining in India in light of the
Criminal Law Amendment Act of 2005 and offers a thorough examination of the concept's
history. This study critically evaluates Chapter XXIA of the Code, highlighting serious
questions regarding its applicability and breadth as well as the repercussions for the parties
concerned. The change has had a considerable impact on the Indian Criminal Justice System.

The report continues by making insightful comments and ideas for enhancing the
amendment's execution. It also demonstrates how the idea of plea bargaining has been
interpreted and applied by the Indian judiciary. The study also discusses the benefits and
drawbacks of plea bargaining in the Indian legal system.

V. History and Background of Plea-Bargaining:

In plea bargaining, the accused is urged to enter a guilty plea in exchange for the judge's
leniency in doling out punishment or considering the gravity of the crime. It is derived from
the Latin phrase 'Nolo Contendere', which means 'I do not intend to contend', i.e. a plea of
'No contest'. The accused acknowledges that the accusations against him are true and that he
will not contest the court's determination of his guilt.

3
Putra, G. "A critical analysis of plea-bargaining in India." (2021).
4
Prakash, Bhaswat. "Concept of Plea Bargaining under Indian Legal System." Available at SSRN
4320066 (2023).

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The concept of plea bargaining was not first introduced to the Indian legal system, but rather
to the American legal system. However, the Law Commission's efforts resulted in the
inclusion of Plea Bargaining provisions in its 142nd, 154th, and 177th reports. Based on the
Law Commission's recommendations, a new chapter on 'Plea Bargaining' was added to the
Criminal Procedure Code for certain offences.

There are three different varieties of Plea Bargaining: Sentence Bargaining, Charge
Bargaining, and Fact Bargaining.

The concept of 'Plea Bargaining' exists in both India and the United States, but the practise is
distinct. For a fruitful comparison, it is necessary to understand the concept of plea
bargaining and the landmark cases associated with it in both legal systems separately.

VI. Plea-Bargaining in USA:

In the United States, the accused may enter one of three pleas: Guilty, Not Guilty, or Nolo
Contendere. Under the doctrine of Nolo Contendere, the plea is considered an implied
confession of culpability or that the court will determine the degree of his guilt.

Plea bargaining is recognised in a number of cases in The United States Of America, though
there have been some exceptions. Some jurists and justices have observed that this
"agreement" significantly reduces the workload of the judiciary. Although it has been noted
that this procedure can be contaminated by coercion and compelling the defendant to choose
between two evils. In the case Brady v. United States 5, it was also determined that merely
because there is a possibility that this agreement was influenced by coercion, it cannot be
considered invalid. Plea-Bargaining gained traction in the USA because of the overcrowded
prisons even though the American Criminal Justice System was reluctant to adopt the system
of Plea-Bargaining.

Landmark Cases in USA

1. Bordenkircher v. Haynes6
In this case, the US Supreme Court upheld the constitutionality of plea bargaining and
sentenced the defendant to life in prison for refusing to plead guilty for a five-year
sentence. The Supreme Court acknowledged a minor possibility that the defendant
may be coerced into selecting the lesser of two punishments.

The Supreme Court also noted that there is no possibility of coercion or duress if the
defendant is free to accept or reject the offer made by the prosecutor during the Plea
Bargaining negotiation process.

2. Lott v. United States7

The court ruled that a guilty plea that amounts to an admission of culpability is not a
conviction, but rather a finding of guilt.
5
Brady v. United States, Oyez, https://www.oyez.org/cases/1969/270 (last visited Oct 22, 2023).
6
Bordenkircher v. Hayes, Oyez, https://www.oyez.org/cases/1977/76-1334 (last visited Oct 22, 2023).
7
Lott v. United States, Oyez, https://www.oyez.org/cases/1960/238 (last visited Oct 22, 2023).

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 VII. Plea Bargaining in India:

In India, plea bargaining is not a constitutionally mandated practise, but rather a response to
the abundance of cases pending before the Indian judiciary. This demonstrates the growth of
the Indian Criminal Justice System.

Nolo contendere influenced the Indian concept of plea bargaining. The legislature enacted it
in response to numerous recommendations from law commissions. This provision has been
carefully considered in light of the current social and economic conditions in our country.
Three types of pleasure-seeking can be distinguished: 1) charge negotiation 2) sentence
negotiation 3) negotiating a sentence.

In the case of multiple offences, charge bargaining is the process of negotiating the erasure of
one or more charges in exchange for a lesser charge. When the accused has the option to
confess guilt in exchange for a reduced sentence, sentence bargaining occurs. In fact
bargaining, certain facts are acknowledged in exchange for a promise not to introduce others.

Sections 265A to 265L (Chapter XXI A) of the Criminal Procedure Code, 1973 (hereinafter
referred to as the "CrPC") include provisions pertaining to "Plea Bargaining." Section 265A
of CrPC provides who is eligible to take benefit of Plea Bargaining. Section 265B provides
for the procedure to file an application for Plea Bargaining. Section 265C contains guidelines
for mutually satisfactory disposition of the case. Sections 265D to 265I contain provisions
regarding the report of mutually satisfactory disposition, the disposition of the case, the
Court's judgment, the finality of the judgment, the Court's authority in plea bargaining, and
the crediting of the period of detention already served by the defendant against the sentence
of imprisonment.

Landmark Cases in India

1. Murlidhar Meghraj Loya v. State of Maharashtra8

J. Krishna Iyer criticised the practise of plea bargaining in the present case. He
observed that the Trial Magistrate is overburdened with cases and, as a result,
approves of Plea Bargaining's secret transactions. Moreover, he remarked, "The
businessman criminal, facing the agony and disgrace of a prison cell, 'trades out' of
the situation by pleading guilty in exchange for an assurance of 'no jail'. These
arrangements in advance are favourable to all parties except the distant victim, the
mute society..."

2. State of Gujarat v. Natwar Harchandji Thakor

In the present case, the Gujarat High Court favored the process of Plea Bargaining
and held that its purpose is to provide easy, inexpensive, and expeditious resolution of
disputes, including criminal trials, and that it prevents pendency and delay in the
administration of justice.
8
AIR 1976 SC 1929

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 VIII. Legal Scope of Plea Bargaining in India:

In 2005, criminal law reforms led to a revision to the Code of Criminal Procedure, which in
turn brought about the introduction of plea bargaining in India9. Section 4 of the Amendment
Act, which was amended, created Chapter XXIA in the Code, which consists of sections
265A through 265L. The first day of this new chapter was July 5, 2006. Plea bargaining
under Chapter XXIA may be used under the following circumstances:

1. According to Section 265A, plea bargaining is only available for crimes carrying a
sentence of less than seven years in jail.

2. The accused is not eligible for a plea bargain if they have previously been found guilty of a
similar crime by any court (Section 265B).

3. Plea negotiation is not available for offences (Section 265C) that could have a major
impact on the nation's socioeconomic conditions.

4. According to Section 265L, it is also not available for crimes against women or minors
under the age of fourteen.

It's important to note that plea negotiating is not an option for people facing serious charges
like rape, murder, etc. It does not apply to crimes against women or children under the age of
fourteen10, or to sentences of death, life in prison, or more than seven years in prison. The
restrictions are in place to make sure that plea bargaining is mostly reserved for less serious
crimes and doesn't lessen the severity of the punishment in more serious situations.

IX. Judiciary response in India towards Plea Bargaining:

Although plea bargaining has been discussed in India since the 19th century, it is currently
being criticised as trading out or an immoral compromise in criminal cases. Due to dishonest
conditions, the Indian Supreme Court has begun to doubt the moral foundation of plea
bargaining. The Supreme Court condemned the practise in Murlidhar Meghraj Loya v. State
of Maharashtra11, ruling that it was unlawful, unconstitutional, and would promote
collaboration and corruption. The Supreme Court remarked about it in its judgment in,
Murlidhar Meghraj Loya v. State of Maharashtra, as follows:

“…call plea bargaining‘, plea negotiation‘, trading out‘ and compromise in criminal cases‘
and the trial magistrate drowned by a docket burden nods assent to the sub rosa anteroom
settlement. The businessman culprit, confronted by a sure prospect of the agony and

9
The Criminal Law (Amendment) Act, 2005 (Act 2 of 2006).
10
Section 265 L of CrPC, 1973
11
AIR 1976 SC 1929

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ignominy of tenancy of a prison cell, trades out of the situation, the bargain being a plea of
guilt, coupled with a promise of no jail‘. These advance arrangements please everyone
except the distant victim, the silent society…”

The Supreme Court expressed significant disapproval of plea bargaining in Kachhia Patel
Shantilal Koderlal v. State of Gujarat and Anr12, arguing that it would taint the unadulterated
source of justice. The Supreme Court voiced concerns about misuse in Kasambhai v. State of
Gujarat13 and held in State of Uttar Pradesh v. Chandrika 14 that conviction and sentence
should be based only on merits, even in cases where the accused admits guilt. The court
further stated that the accused cannot bargain for a reduced sentence because they pleaded
guilty, and that their simple acceptance or admittance into the guild should not be grounds for
a shorter penalty.

The Gujarat High Court acknowledged the value of the plea bargaining technique in the State
of Gujarat v. Natwar Harchandji Thakor 15 case as a substitute for handling the significant
backlog of criminal cases. The court stressed how crucial it is to provide simple, affordable,
and quick justice for the settlement of conflicts and the prosecution of criminal offences. The
court contended that significant adjustments were required in view of the expanding issue of
pending cases and delays in the legal system.

The court argued that fundamental reforms were necessary to solve the issue of backlogs and
delays, and that the judicial system should not remain unchanged. It saw plea bargaining as a
redressal method that could give judicial reforms a fresh perspective.

The Motor Vehicles Act of 1988 (Section 208(1)) and the Code of Criminal Procedure
(Sections 206(1) and 206(3)) contain particular legal provisions that form the basis of the plea
bargaining process. These clauses enable defendants to settle cases by agreeing to pay fines
or penalties in exchange for a guilty plea to lesser or less serious charges. The purpose of this
technique is to close cases involving minor offences more quickly.

X. Law Commission Report on Plea Bargaining in India:

In a number of reports, including the 142nd, 154th, and 177th reports, the Law Commission
of India has continuously argued in favour of implementing "Plea Bargaining". Plea
bargaining's successful adoption in the United States was highlighted in the 142nd Report,
which provided a thorough explanation of its justification. It suggested that plea bargaining
be used as a test measure for crimes carrying terms of less than seven years in jail and/or
fines, such as crimes falling under the purview of Section 320 of the Code. The report also
made the suggestion that plea negotiating might take into account the kind and gravity of the
offences as well as the related penalties. It was emphasised that people accused of serious
socioeconomic offences, crimes against women and children, or persistent offenders should
not be permitted to access this facility.

12
1980 CriLJ553
13
AIR 1980 SC 854
14
2000 Cr.L.J 384 (386)
15
(2005) Cr.L.J. 2957

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Plea bargaining is necessary to resolve the backlog of criminal cases, as the 154th Report
reiterated. In its 177th Report, the Law Commission restated this suggestion. In addition, the
Committee on the Reform of the Criminal Justice System, presided over by Justice (Dr.)
Malimath, highlighted the success of plea bargaining in the US as a means of resolving
backlogs and accelerating the administration of criminal justice in its 2000 report 16. The
Malimath Committee suggested that in order to expedite the conclusion of criminal cases and
lessen the load on the courts, a plea bargaining system be added to India's criminal justice
system.

In conclusion, these reports from the Malimath Committee and the Law Commission of India
have continuously backed the implementation of plea bargaining in India as a way to take
advantage of the successful experiences of the US legal system and address the backlog of
cases, speed up the delivery of justice, and lessen the burden on the legal system.

XI. Conclusion:

In conclusion, plea bargaining has significantly altered the global criminal justice system and
contributed to the reduction of the backlog of unresolved cases; yet, there are still issues and
restrictions that must be resolved, particularly in the Indian context. The remarks that are
presented highlight the following important points:

1. Demand for an Impenetrable Framework: To stop injustices and defend the rights of
innocent and underprivileged parties engaged in plea bargaining, a strong and
unbreakable framework is necessary.

2. Necessary Role of the Court: The defendant's sense of security and interests can be
better served by making the court's involvement in the plea bargaining process
necessary at every stage, from initial consent to the ultimate confirmation of sentence.

3. Preventing Coercion: The plea bargaining statute should include procedures to handle
any possible abuses, and investigating agencies and prosecutors should refrain from
pressuring defendants.

4. Custody and Defendant's Rights: Unless it is absolutely required, the default should
be to refrain from giving the police custody. The benefits and drawbacks of plea
bargaining should be thoroughly explained to defendants in a language they can
comprehend.

16
Recommendation 106 Malimath Commission Report, http://www.hrdc.net/sahrdc/hrfeatures/HRF88.htm

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 5. Victims' Consideration: During the plea negotiations, the victim's worries and
objections ought to be taken into account. The victim should be given the opportunity
to choose their own attorney if they desire a fair trial, and the court should give close
consideration to their requests.

6. Alternative conflict Resolution: To help cut down on the backlog of cases, alternative
conflict resolution techniques including local arbitration and the compounding of
offences should be promoted in addition to plea bargaining.

7. Limitation on Applicability: Plea bargaining should not be used to resolve horrific

crimes and offences that are outright illegal.

8. Expanding Scope: To increase its efficacy in lowering case backlogs, plea bargaining
in India should be extended beyond offences with sentences of no more than seven
years.

9. Lessons from the U.S. Model: India may want to include some aspects of the U.S.
model, like lowering the offence threshold for prompt plea agreements and offering
greater flexibility and leniency in plea negotiations than in a trial.

10. Rethinking Victim Involvement: Breaking up the tri-partite structure could help plea
negotiations succeed because victims in India frequently look for punitive forms of
justice.

To summarise, plea bargaining in India has to be further refined in order to increase its scope,
fix the issues, and better fit the particular dynamics of the Indian legal system. While
achieving restorative justice and speeding up case disposal are the main objectives, a fair and
efficient procedure depends on striking a balance between the rights and interests of all
parties, particularly victims and defendants.

XII. References:

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1. http://www.commonlii.org/in/journals/NALSARLawRw/2013/7.pdf Santhy, K. V. K.
"Plea Bargaining in US and Indian Criminal Law, Confessions for
Concessions." NALSAR L. REV 7.1 (2013): 85.
2. https://criminallawstudiesnluj.wordpress.com/2022/05/20/plea-bargaining-a-
comparison-between-usa-and-india/
3. https://enhelion.com/blogs/2021/02/18/plea-bargaining-in-india-and-usa-a-
comparative-study/
4. https://blog.ipleaders.in/plea-bargaining-laws-india-united-states-america/
5. https://jlrjs.com/wp-content/uploads/2022/12/4.-SATYABANSHAM-KUMAR.pdf
6. Role of plea bargaining for ensuring access to justice- A critical analysis. Legal
Service India - Law, Lawyers and Legal Resources. (n.d.). Retrieved, from
https://www.legalserviceindia.com/legal/article-1250-role-of-plea-bargaining-for-
ensuring-access-tojustice-a-critical-analysis.html

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