The unstruck bargain: Reviving plea bargaining to strengthen justice delivery in India

One of the gravest challenges to justice in India is delay. What begins as a pursuit of truth often drags on for decades. Speedy trial is not merely a matter of administrative efficiency; it is a fundamental right under Article 21 of the Constitution of India. When justice moves at a snail’s pace, litigants become disillusioned. An accused languishing in custody for decades without a verdict, or a victim waiting endlessly for closure, both represent the violation of this fundamental right.

The delay in conclusion of trials also has significant repercussions. The cost of litigation for parties continues to rise with every adjournment. From the perspective of the State, the delays lead to enormous costs for the government as well, especially since more than 75% of India’s prison population comprises undertrials. The State, which is expected to uphold efficient administration of justice, ends up bearing a recurring financial burden due to systemic inefficiencies.

The Supreme Court has repeatedly recognised the growing challenge of overburdened courts and ever-rising pendency. Recently in Mahesh Khatri @ Bholi v. State (NCT of Delhi) (2025), the Court drew attention to the shortage of prosecutors and emphasised the need to set up more fast-track courts. Likewise, in Shubham Ganpati @ Ganesh Rathod v. State of Maharashtra (2025), the Court reiterated that the right to a speedy trial is not a matter of discretion but a binding constitutional mandate under Article 21 and directed the High Court to devise a structured monitoring mechanism to prevent procedural delays. Echoing the same concern, the High Court of Chhattisgarh had even awarded compensation to an accused for the violation of his right to a speedy trial, observing that it is the State’s duty to deliver timely justice.

Against this backdrop of mounting systemic strain, it becomes imperative to revisit a mechanism that has proven effective worldwide yet remains underused in India - plea bargaining.

Plea bargaining, as developed in American Jurisprudence, can broadly be divided into three types - sentence bargaining, charge bargaining and fact bargaining. Each type involves implied sentence reductions but differs in the ways of achieving those reductions.

Plea bargaining was brought into the Indian legal system about 20 years ago, through Section 265 (A-L) of Code of Criminal Procedure, 1973 (Section 289-295 BNSS). It was brought with the hope to solve the ever-growing disease of delay in effective conclusion of criminal proceedings. Apart from fact bargaining, the other forms were incorporated in the Code.

Globally, plea bargaining is integral to the criminal justice mechanism. In the United States, over 97% of federal criminal cases are resolved through negotiated pleas. Australia and the United Kingdom also reflect similar patterns of successful implementation, with over 70-85% of criminal cases ending in plea deals. Recently, in the high-profile 2025 Idaho murders case, Bryan Kohberger’s plea deal avoided a death sentence, showcasing how the US uses plea bargaining to ensure conviction and finality even in capital offences.

While plea bargaining is widely successful in western nations, India has struggled to emulate its effectiveness. As per 2022 data from the National Crime Records Bureau (NCRB), out of 1.7 crore cases that went to trial, only 19,135 were disposed of through plea bargaining, accounting for a negligible 0.11% of the total. The prime reasons for its scanty success in India can be broadly attributed to the following:

• Procedural hurdles: For plea bargaining to be successful, all the stakeholders, namely the victim, the prosecutor, the investigating officer and the accused have to agree on a common proposal. The process stalls if even one of the stakeholders disagrees. Further, in cases where the government is the complainant, plea bargaining becomes more complex due to concerns of quid pro quo or perceived bias. In such cases, the proposal must be justified with clear evidence that it is being considered impartially and without any element of personal interest, which often discourages them from promoting it at all.

• Restricted applicability: In India, plea bargaining is not available to accused charged for offences punishable with death or imprisonment or for life or imprisonment for a term exceeding seven years. The exclusion of offences involving socio-economic offences, crimes against women and children and repeat offenders, significantly limit its applicability. In contrast, the United States permits plea bargaining even for serious offences.

• Systematic and cultural resistance: Social stigma associated with pleading guilty deters accused persons from availing it. Unlike in the US and the UK, where prosecutors lead or facilitate negotiations, in India, the accused is required to step up and plead guilty voluntarily. There are no dedicated support mechanisms to guide accused persons, particularly indigent or first-time offenders, through the legal complexities of the process.

This is symptomatic of deeper systemic hesitations rooted in India’s judicial culture, statutory restrictions and procedural rigidity. India’s prisons are severely overcrowded, with undertrials comprising over 75% of inmates in 2022. Plea bargaining offers a practical solution by expediting case disposal and easing the burden on limited prison resources. However, if implemented well, plea bargaining can become a powerful instrument of restorative and timely justice.

Judicial decisions have remarked that plea bargaining conserves time, legal manpower, and costs for the judiciary, prosecution, and the accused alike. (see Vijay Moses Das v. CBI) The very object of the law is to provide easy, cheap and expeditious justice. Plea bargaining is recognised as a tool to reduce the burden on overworked courts and facilitate speedy disposal. The Delhi High Court in Pradeep Gupta v. State stressed upon the need for proper implementation of plea bargaining to reduce unnecessary trials.

Certain legal and structural reforms are need of the hour for its practical implementation in India:

• As an initial measure, a structured pre-trial mediation mechanism may be adopted - similar to pre-institution mediation under the Commercial Courts Act. Concurrently, the BNSS could be amended to mandate the early consideration of plea bargaining in non-cognizable offences, with resolution potentially culminating in the imposition of fines/compounding.

• To make the system more effective, the plea bargaining framework may be considered to include economic offences - especially cases where the offence is committed by first-time offenders and does not involve a systemic or organised fraud. In the United States, plea deals are routinely used even in white-collar cases.

• Prosecutors should be allowed to take a more active role in starting and negotiating plea deals.

• The complainant/victim’s role should be consultative rather than decisive, ensuring that their voice is heard without blocking fair settlements. Canada follows such a model, where victims are heard but the final decision rests with the court, striking a balance between empathy and efficiency.

• Dedicated support units and legal aid should be set up to help guide the process. For instance, Australia has early plea incentive programs backed by training for legal officers, which have significantly reduced trial backlog.

• Measures like clear sentencing discounts, prevalent in Australia, should be introduced to normalise plea agreements and spread awareness.

As for recent reforms, Section 290(1) of the BNSS provides that a plea bargaining application must be filed within 30 days of framing of charges, while Section 290(4)(a) requires the prosecution, the complainant and the accused to make concerted efforts to reach a mutually satisfactory resolution within 60 days. These provisions mark a significant step towards improving timelines. Nonetheless, their consistent enforcement will be critical to assess their effectiveness.

The world has already proven that plea bargaining is not a compromise of justice, but a catalyst for it. In India, however, this provision still lies in the shadows, caught between legal caution and cultural hesitation. The list of socio-economic offences excluded from plea bargaining is narrow, leaving ample scope for negotiated settlements. Yet, much more is needed to generate awareness and bring the statutory provisions to life.

Mayank Makhija is currently serving as Assistant Legal Advisor & Special Public Prosecutor for the Directorate of Enforcement.

Nidhi Singh is presently working as Legal Consultant with the Directorate of Enforcement.

The views expressed are personal and do not represent those of the Enforcement Directorate or the Government of India.