Authored By: Mehvish Mushtaq
University of Kashmir
Abstract
Plea bargaining, as a mechanism for negotiated justice, was formally introduced into the Indian criminal justice system through the Criminal Law (Amendment) Act, 2005, by incorporating Chapter XXI-A (Sections 265A–265L) into the Code of Criminal Procedure, 1973. The primary objective of this reform was to address chronic delays, mounting case backlogs, and overcrowded prisons, while ensuring expeditious and cost-effective disposal of criminal cases involving less serious offences. This abstract analyzes the conceptual framework, statutory provisions, and practical significance of plea bargaining in India, with special reference to its operation and relevance in the Union Territory of Jammu and Kashmir.
In the Indian context, plea bargaining represents a departure from the traditional adversarial model, emphasizing consensual resolution while safeguarding voluntariness and judicial oversight. The law restricts its application to offences punishable with imprisonment up to seven years and excludes cases involving serious socio-economic offences or crimes against women and children. Judicial scrutiny is central to the process, ensuring that the accused’s consent is free from coercion and that the interests of victims and society are adequately protected.
With respect to Jammu and Kashmir, the introduction and implementation of plea bargaining have assumed particular importance due to systemic challenges such as prolonged trials, limited judicial infrastructure, and a historically high pendency of criminal cases. Following the extension of central criminal laws to the region after the constitutional reorganization of 2019, plea bargaining has emerged as a potentially effective tool for reducing delays and promoting restorative justice, especially in minor and first-time offences. However, its practical utilization in J&K remains limited due to lack of awareness, reluctance among legal practitioners, and societal perceptions associating plea bargaining with admission of guilt and stigma.
If I asked to mention the greatest drawback of our administration of justice in India today, I would say that is DELAY, The law may or may not be an ass, but in India it is certainly a snail and our cases proceed at a pace which would be regarded as unduly slow in a community of snails. Justice has to be blind but I see no reason why it should also be lame: here it just hobbles along, barely able to walk.
Nani A. Palkhivala
Introduction
Justice is desired by each and every person on this earth. As we all know that Justice delayed is Justice denied, it’s a matter of concern that how many people actually get justice in due time. Well, this is a vague question as there is no specificity to it. The pendency of criminal cases in India has assumed alarming propositions. The noose around the criminal justice system has been tightened by petty criminal cases and the cases in which punishment up to seven years has been prescribed which form a bulk of such pendency so much so those grave offences which have the effect of tearing the social fabric are not tried
promptly. Delay in administering Criminal Justice makes the system weak and meek. It tends to dilute the purpose of Criminal Law – the prevention of crimes. A punishment imposed after a long time may not have the same impact on the victim or the perpetrator or the public at large. There are persons who easily deceive the Criminal Justice System by evading punishment by flexing their muscle power because they have influence in the society while in contrast there are persons accused of offences who are not able to secure bail for one reason or another and languish in jail as under-trial prisoners for years. According to the latest “Crime in India, 2016” report released by the National Crime Record Bureau (NCRB) there were about 9703482 Criminal Cases pending in various courts. In thisreport it was observed that Courts have completed trials of 36067 cases after 10 years of trial, trials of 128223 cases took between 5 to 10 years, trials of 267192 cases took between 3 to 5 years, trials of 393867 cases took between 1 to 3 years, trials of 257535 cases took between 6 months to a year and trials of 191464 cases completed within 6 months. It may be seen that maximum time taken for disposal of cases by various courts was 1 to 3 years (31.2%) followed by 3 – 5 years (22.1%)1.
Legal Statutes
According to recent “Prison Statistics India, 2015” Report released by the National Crime Record Bureau (NCRB), 67.2 percent of our total prison population comprises of under trial prisoners. It means, that 2 out of every 3 prisoners in India are an under trial, i.e. a person who has been accused or charged with committing an offence, but has not been convicted and is still, presumed innocent. The state Government spends more than 51 rupees per day per inmate and annual expenditure comes up to Rupees 361 crore2.
A country wide survey titled “Access to Justice” was conducted by Daksh a Bengaluru based NGO partnered with National Law University, Delhi between November 2015 to February 2016. In this survey interviews of 9,329 litigants were conducted in both civil and criminal matters in 305 lower courts spread across 170 districts in 24 states. The study had shown up some shocking results the loss of wages and business for litigants attending lower court hearings has been estimated at over Rs 50,000 crore a year at an average of Rs 1,746 per case per day. The study found that litigants in criminal cases spent Rs 542- Rs 1,444 on expenditure involving attending court hearings and legal fees and Rs 902 per day due to loss
of pay/business income.
Certainly, this poorly reflects the inefficient functioning of system apart from running counter to the democratic principles of the respectable republic. The Under trials accused in criminal charges under various sections of the Indian Penal Code are facing twin dilemma of denial of basic human rights and are forced to squander away their productive years of life under imprisonment without any immediate light at the end of the tunnel. Incarceration of the under trials for such a long time – in some cases even beyond the prescribed penalty defies all theories of punishment. Though the Indian Courts including the apex court took a sympathetic view of the under trials, the insensitive and inflexible system did not allow the efforts to fructify. The corrupt and the lethargic bureaucracy objected and obstructed the unusually kind attitude adopted by the judiciary to release the under trials, who overstayed their punishment period had they been found guilty and ultimately punished by the court of law.
Speedy trial is the essence of criminal justice and delay in trial by itself constitutes denial of justice. A procedure which does not provide trial and disposal within a reasonable period cannot be said, to be just, fair and reasonable. The Supreme Court in Kadra Pehadiya v. State of Bihar- 1981 Cr.LJ. 481– held
It is a crying shame upon our ad-judicatory system which keeps men in jail for years on end without a tria3l. “The court in a compassionate expression observed…”no one shall be allowed to be confined in jail for more than a reasonable period of time, which we think cannot and should not exceed one year for a session trial… we fail to understand why our justice system has become so de-humanized that lawyers and judges do not feel a sense of revolt at caging people in jail for years without trial4.
Judicial Pronouncements
Mr. Justice K.G. Balakrishnan, the former Chief Justice of India pointed out at National Seminar on Delay in Administration of Criminal Justice System:
The State as a guardian of fundamental rights of its citizens is duty-bound to ensure speedy trial and avoid excessively long delays in trial of criminal cases that could result in grave miscarriage of justice. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible.
To reduce delay in disposing off criminal cases the Law Commission in its 142nd and 154th report recommended introduction of “plea-bargaining” as an alternative method to deal with huge arrears of criminal cases. This recommendation was supported by Justice V.S. Malimath Committee. The Code of Criminal Procedure has accordingly been amended by adding Chapter XXI-A consisting of 12 Sections. A notification to bring into effect the new provision has been issued and it has come into effect from 5th July, 2006.
Plea Bargaining refers to pretrial negotiations between the defendant, usually conducted by the counsel and the prosecution, during which the defendant agrees to plead guilty in exchange for certain concessions by the prosecutor. “plea bargaining” falls into two distinct categories depending upon the type of prosecutorial concession that is granted the first category is “Charge Bargaining” This is the most common form of bargaining in which refers to a promise by the prosecutor to reduce or dismisssome of the charges. The second category, “Sentence Bargaining” refers to the promises by the prosecutor to recommend a specific sentence or to refrain from making any sentence recommendation in exchange for a guilty plea. While commenting on this aspect, the division bench of the Gujarat High Court observed in State of Gujarat v. Natwar Harchanji Thakor (2005) Cr.L.J.29575.
That the very object of law is to provide easy, cheap and expeditious justice by resolution of disputes, including the trial of criminal cases and considering the present realistic profile of the pendency and delay in disposal in the administration of law and justice, fundamental reforms are inevitable6. There should not be anything static. It can thus be said that it is really a measure and redressal and it shall add a new dimension in the realm of judicial reforms. The reasons for plea bargaining by either side may be several. In most cases, the plea bargain is to avoid the uncertainty of the jury trial, and minimize the risk of undesirable resultsfor eitherside. Prosecutors generally have wide discretion regarding the chargesthey may bring, and therefore have the option to charge the defendant with the highest charges that are applicable to the situation at hand. Thus in a plea bargain, the defendant is left to choose between the certainty of accepting sentencing for a much less serious charge, or the uncertainty of a jury trial in which the defendant might be found not guilty, but which also carries the risk of being found guilty of the original, more serious charges7.
Chapter XXI A of the criminal procedure code provides legislative framework for plea bargaining in India contained in section 265A to Section 265L. An application with regard to plea bargaining may be made by an accused when the challan has been presented by the police in the court alleging that an offence, punishable with 7 years or less imprisonment, appears
to have been committed by an accused or on a private complaint the accused has been summoned by the court in respect of the offences punishable with 7 years or less imprisonment. The accused person above the age of 18 years can file such an application for plea-bargaining provided the offence should not have been committed against a women or a child below the age of 14 years. The offence should not affect the socio-economic conditions of the country and the accused should not have earlier been convicted for the same offence. In July 2006 the Central Govt. Issued a notification classifying 19 statutes as affecting the
socio-economic conditions of the country and the offence in those statutes now stand excluded from the process of plea-bargaining. There is no bar on woman taking the benefit of plea bargaining. According to section 265 B the application for plea- bargaining is to be filed in the court where the trial is pending. The application is should be accompanied by the affidavit from the accused that he is exercising this option voluntarily and he has no previous conviction for the same offence. The court then examines the accused in camera to ascertain whether the application has been filed voluntarily or not. On being convinced the court then calls upon the Public Prosecutor or the complainant to work out a mutually satisfactory disposition of the case. The negotiation is left to the freewill of the parties and if a settlement is reached, the court can award compensation based on it to the victimand then hearthe parties on the issue of punishment. After hearing the accused on the quantum of punishment the court can decide upon releasing the accused under S.360 of the Code or under the provisions of the Probation of Offenders Act, 1958; if a minimum sentence is provided for the offence committed, the accused may be sentenced to half ofsuch minimum punishment; if the offence committed does not fall within the scope of the above, then the accused may be sentenced to one- fourth of the punishment provided or extendable for such offence. The accused may also avail of the benefit under Section 428 of the Code which allows setting off the period of the detention undergone by the accused against the sentence of imprisonment in Plea bargained settlements. The statement or facts stated by an accused in an application for Plea bargaining shall not be used for any other purpose other than for plea bargaining. The court must deliver the judgment in open court according to the terms of the mutually agreed disposition. The judgment is final and no appeal lies against the decision of the court apart from a writ petition to the State High Court under Articles 226 and 227 of the Constitution or a special leave petition to the Supreme Court under Article 136 of the Constitution8.
Recent Development
Plea-bargaining has, over the years, emerged as a prominent feature of the American criminal justice system. While courts were initially skeptical towards the practice, the 1920s witnessed the rise of plea-bargaining making its correlation with the increasing complexity in the American criminal trial process apparent. In the United States, the criminal trial is an elaborate exercise with extended voir dire and peremptory challenges during jury selection, numerous evidentiary objections, complex jury instructions, motions for exclusion, etc. and though it provides the defendant with every means to dispute the charges against him, it has become the most expensive and time-consuming in the world.
To evade this intricate process, mechanism in the form plea bargaining gained popularity. Thus, plea-bargaining eventually became a prevalent practice and it was assessed that 90% of all criminal convictions in the United States were through guilty pleas. In 1970, the constitutional validity of plea-bargaining was upheld in Brady v. United States – 397 US 742 (1970), where it was stated that it was not unconstitutional to extend a benefit to a defendant who in turn extends a benefit to the State. One year later, in Santobello v. New York – 404 US 257 (1971) the United States Supreme Court formally accepted that plea- bargaining was essential for the administration of justice and when properly managed, was to be encourage9.
As criminal courts become more over crowded, prosecutors and judges have an increased 8 Kasambhai Abdulrehmanbhai Sheikh v State of Gujarat AIR 1980 SC 854 (SC) 9 Thippaswamy v State of Karnataka (1983) 1 SCC 194; AIR 1983 SC 747 (SC).
pressure to move cases quickly through the system. Trials can take days, weeks or sometimes months while guilty pleas can often be arranged in minutes. With over three crore cases pending in Indian courts, plea bargaining could well be the key to providing speedy justice, and it will help avoiding backlogs of pending cases. The system of plea bargaining is new to India; the same has been institutionalized by in other countries like America and Canada for quite some time. In America according to some commentators, asmany as 95% of all criminal cases are disposed of through guilty pleas and most of them are a result of plea bargaining between the prosecution and the defense. In India one of his state governments in Orissa has stressed plea bargaining scheme as a panacea for huge backlog of court cases. The Karnataka government after the introduction of ‘plea bargaining’ becomes the first state in India to initiate a system for speedy disposal of criminal cases. The establishment of such special courts will act as a deterrent to corruption and bribery in public office. For the first time in the history, Asia’s largest prison complex Tihar Jail saw a reduction of nearly 2,000 inmates in 2007, thanks to the introduction of plea bargain system. The director general (prison) B.K. Gupta said reduction from the 2006 figure of 13,500 inmates to 11,500 in 2007 was a milestone in the history of Tihar jail10.
In the state of J&K the Code of Criminal Procedure Samvat 1989 has accordingly been amended to include the provisions for the plea bargaining by adding Chapter XXII-A consisting of Sections 265A–265K. A notification to bring into effect the new provision has been issued and it has come into effect from 5th July, 200711.
1.1 Objectives of the Study
- To make historical understanding about the conceptual framework and idea of plea bargaining in India.
- To make a comparative analysis of applicability of plea bargaining in USA, UK and India.
- To evaluate the extent up to which the Plea Bargaining is constitutionally justified. 4. To know whether the restricted utilization of plea bargaining which is applicable to offences punishable up to 7 years excluding the offences against Children and women or socioeconomic offences, appropriate or does it need expansion.
- To study about the adaptability and awareness of plea bargaining in State of J&K. 10 State of Uttar Pradesh v Chandrika (1999) 8 SCC 638 (SC). 11 State of Gujarat v Natwar Harchandji Thakor 2005 Cri LJ 2957; (2005) 1 GLR 709 (Guj HC).
1.2 Research Methodology
Research Methodology involves systematic and scientific application of the methods approved for legal research. The objectives of any research work can be realized only by proper approved and desired technique. The Methodology which researcher has to apply depends upon variousfactorsincluding nature of research, objectives ofstudy, and purpose of research. Therefore proper care has been taken for selecting the methodology for undertaking
research. The present study titled, “Plea Bargaining –An Analysis of its Role in Administration of Criminal justice in India with Special Reference to the State of J&K” is partly Doctrinal and partly Non Doctrinal. Both primary and secondary sources of data were gathered for the study. To provide related literature on the issue different secondary sources were consulted. For reference purpose various documents from government and non-government organizations were collected. The statutory material of India, UK and US
relevant to the study has been analysed. The case law laid down by the courts of India and abroad has been examined. Reports/journal and survey of both Indian and foreign countries has also been referred to. For collection of primary data various accepted methods, such as, questionnaire and interview schedule was prepared. Based on Purposive Random Sampling the questionnaire was administered to Lawyers, Defence lawyers, Public Prosecutors,
Assistant Public Prosecutors and Police Prosecuting officers. The responses based on the questionnaire were collected, from the two divisions of Jammu and Kashmir. The Districts Srinagar, Anantnag and Baramulla were selected in Kashmir Division, while as, the District Jammu was selected from the Jammu Division. The researcher had prepared an interview schedule for Judicial Officers, with regard to express their views about the practice of plea bargaining. In order to know whether there is awareness about the law relating to Plea bargaining. An in depth interview of the persons belonging to general public was conducted. The sample universe for the study remains various sub-ordinate courts of district Srinagar, Anantnag, Baramulla and Jammu for both questionnaire and interview. The suggestions were framed after careful analysis of the literature and the primary and secondary data collected during the study.
1.3 Hypothesis
⮚ Plea bargaining is an effective method to reduce the backlog of cases in the administration of criminal justice.
Conclusion & Suggestions
Plea bargaining has emerged as a pragmatic mechanism within the Indian criminal justice system to address chronic delays, case backlogs, and resource constraints. Its statutory recognition through Chapter XXI-A of the Code of Criminal Procedure, 1973 marked a significant shift from a purely adversarial and trial-centric model toward a more negotiated and efficiency-oriented approach. While the concept remains cautiously framed—limited to less serious offences and subject to judicial oversight—it reflects an acknowledgment that timely justice is an essen tial component of substantive justice.
In the Indian context, plea bargaining has demonstrated potential in expediting case disposal, reducing undertrial incarceration, and enabling victims to receive compensation without prolonged litigation. However, its actual utilization remains limited due to factors such as lack of awareness among accused persons, hesitation within the legal fraternity, concerns about coercion, and the entrenched perception that plea bargaining undermines the presumption of innocence. These concerns underscore the need for careful implementation rather than rejection of the mechanism itself.
With special reference to the Union Territory of Jammu & Kashmir, the relevance of plea bargaining is particularly pronounced. The region has historically faced exceptional legal and administrative challenges, including prolonged pendency of cases, security-related prosecutions, and infrastructural constraints affecting courts and prisons. In such a setting, plea bargaining can serve as a valuable tool to decongest courts and correctional institutions, provided it is applied strictly in accordance with statutory safeguards. Judicial vigilance is especially critical in J&K to ensure that socio-economic vulnerabilities, limited legal literacy, or situational pressures do not translate into involuntary or unjust pleas.
Bibliography
Primary legal materials (India)
- The Code of Criminal Procedure, 1973 (CrPC) — Chapter XXI-A (Sections 265A–265L): Plea Bargaining.
- The Criminal Law (Amendment) Act, 2005 — inserted Chapter XXI-A in CrPC (framework provisions incl. application, procedure, mutually satisfactory disposition, judgment/finality, set-off, etc.).
- Post-2019 applicability to J&K (reorganisation context) — consolidated CrPC text noting that the phrase “except the State of Jammu and Kashmir” was omitted by Act 34 of 2019 (w.e.f. 31-10-2019), which is relevant when you discuss the shift from the J&K-specific procedural regime to the central framework.
- Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — successor procedural statute; useful for a “current law / future direction” chapter in your dissertation (compare with CrPC Chapter XXI-A). (For a quick provision view: BNSS plea bargaining appears around Sections ~289– 300; e.g., Section 290 on application). Law Commission / Parliamentary / Government committee materials (India)
- Law Commission of India, 142nd Report (1991) — Concessional Treatment for Offenders Who on Their Own Initiative Choose to Plead Guilty Without Any Bargaining. Foundational Indian policy document preceding formal adoption.
- Committee on Reforms of Criminal Justice System (Malimath Committee), 2003 — Report discusses plea bargaining as a tool within criminal justice administration and systemic delay.
- Rajya Sabha / Parliamentary Standing Committee on Home Affairs, 111th Report (February 2005) — on The Criminal Law (Amendment) Bill, 2003 (legislative scrutiny background to the 2005 amendment introducing plea bargaining).
- PRS India — The Criminal Law (Amendment) Bill, 2003 (bill text; use to trace legislative intent and drafting history)
1 Code of Criminal Procedure 1973 (CrPC), ch XXI-A, ss 265A–265L
2 Criminal Law (Amendment) Act 2005 (brought in plea bargaining as CrPC ch XXI-A, in force from July 2006)
3 Code of Criminal Procedure 1973, ch XXI-A, ss 265A–265L.
4 Law Commission of India, 142nd Report (1991)
5 Jammu and Kashmir Reorganisation (Adaptation of State Laws) Order 2020
6 National Judicial Academy (India), Plea bargaining: Challenges in Implementation (28 March 2023) (training material)
7 Ministry of Home Affairs (India), Report of the Committee on Reforms of Criminal Justice System (Malimath Committee Report) (2003).
