Plea bargaining, a reform new criminal laws missed

One reason for this failure pertains to the stigma of conviction. A successful plea bargain under Section 294 of the BNSS yields a formal conviction

The Union Home Ministry’s decision to convene a multi-stakeholder conference to review the reforms required for the consistently failing system of plea bargaining in India is laudable. Plea bargaining is a pre-trial, negotiated agreement in which the accused admits to a lesser charge or accepts a reduced sentence . It applies to offences with penalties of less than seven years.

In several countries, this system is a major means of decongesting the criminal justice system. While India uses plea bargaining at very low levels, of less than 1 per cent, in the US, approximately 90-95 per cent of criminal cases are resolved through plea bargaining. In Canada, the figure is around 85-90 per cent. In Australia, about 80-90 per cent of cases end in such pleas.

Plea bargaining was introduced via the Criminal Law (Amendment) Act, 2005, into the Code of Criminal Procedure (CrPC). But it was soon evident that parties were not inclined towards it.

Addressing the non-implementation of, and indifference, to plea bargaining is crucial, as the courts have almost exhausted their capacity — 58.8 million cases are in pendency. The move to identify reform areas is important, more so because the new criminal laws lost the opportunity to reform plea bargaining.

One reason for this failure pertains to the stigma of conviction. A successful plea bargain under Section 294 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) yields a formal conviction. As per NCRB data for 2023, of the 1.65 crore criminal cases tried, only 35,889 were resolved through plea bargaining, resulting in a disposal rate of 0.216 per cent. Plea bargaining does not result in a straight acquittal, as the accused must undergo a reduced sentence.

In contrast, BNSS’s section 359 provides for the “compounding” of offences, allowing victims and accused parties to settle specific minor offences to avoid trial. Compounding acts as a formal settlement, resulting in the accused’s acquittal. Compounding has, therefore, dealt a blow to the prospects of plea bargaining. Prosecutors have not done enough to actualise the idea of plea bargaining. Rather, their indifference and lack of training and expertise have significantly undermined the plea-bargaining system.

The proposed conference can make the applications of plea bargaining slightly more stringent by establishing compliance systems and accountability among the officials responsible. There is a need to reconcile the conflicting situation in cases of compounding and plea bargaining. There is a perception that plea bargaining is less attractive given that compounding results in acquittal. Guidelines must be developed in this respect. A guided process will ensure that the choices don’t conflict.

A negotiating prosecutor, interested in effective and quality disposition of plea-bargaining cases — and not high conviction rates — is preferable. The Canadian model is a good example. Mandatory training for legal aid lawyers, who represent the majority of undertrials, must accompany this reform. All this requires complete judicial evaluation, even when parties have agreed on a disposition, with the judge monitoring the agreed charges, ensuring the relevant facts are proved, and imposing a sentence within the sentencing range.

A direction from a high court can ensure implementation of all this without a legislative amendment. A high court-mandated data dashboard requiring monthly district-level reporting, disaggregated by offence category, outcome, and time-to-resolution, would create the accountability mechanism currently absent in plea bargaining. Further, district courts require a standalone plea-bargaining mediation cell with a trained facilitator, legal aid officer, and victim liaison.

Plea bargaining can be made more attractive by two measures. One, the attached punishment in plea bargaining can be made stigma-free by removing any disqualification arising from the effects of imprisonment. Second, acquittal can be introduced as one of the outcomes of the negotiated plea. Prisoners coming through plea bargaining may be favourably considered for measures like parole, remission, and aftercare.

The writer is vice chancellor, National Law University Delhi. Views are personal