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Criticism Of Plea Bargaining Under ADR

Alternative Dispute Resolution, or ADR, is resolving conflicts between two or more disputing parties, typically outside of court and without adhering to conventional litigation processes, through mediation, arbitration, or negotiation. The primary reason for establishing ADR was to reduce the burden on courts and make litigation more affordable and flexible for those who cannot afford to invest more time and money.

The number of pending cases in Indian courts is enormous. The current structure fails to provide the party with fast and reasonable support. The method is likewise extremely intricate. This necessitates the quest for an alternate process that is affordable and rapid. The application of alternative dispute resolution to criminal proceedings is a recent development in the field. The basis of justice administration in any state-based formal justice system, including civil and criminal justice, institutions such as the police, public prosecution, and courts1.

Despite the well-established formal mechanisms of the criminal justice system in India, there is a massive backlog and pendency of cases, resulting in frequent delays in the administration of justice. The essence of Criminal Justice is a quick trial; unquestionably, a delay in trial equates to a denial of justice. ADR, particularly mediation, focuses on resolving disputes and preserving harmonious relationships between the parties.

Therefore, it is the ideal instrument for administering restorative justice in criminal cases. Due to its limits, there are reasons for and against alternative dispute resolution in criminal cases. Art. 21 of the Indian Constitution recognizes a 'right to a quick trial' acknowledged by the courts. However, citizens do not have access to the right to a speedy trial, prolonging the trial process owing to unnecessary delays.

Even though the Indian Constitution guarantees its citizens the right to timely trials, the Indian judicial system is burdened by many pending cases. The expression 'justice delayed is justice denied' relates perfectly to the Indian judicial system. Therefore, the successful implementation of ADR in India is crucial for resolving this issue.

ADR in Criminal Law System In India
The application of ADR in criminal proceedings has been continuously growing. It has grown popular because it is inexpensive, less time-consuming, and because of the enormous backlog of cases in Indian courts. Consequently, ADR must provide a simple and expedient method for resolving disputes.

The following ADR procedure is most prevalent in Indian criminal cases:
  1. Mediation:
    Mediation is a kind of dispute resolution in which the parties themselves reach an amicable resolution. Both parties can withdraw from the mediation proceedings at any moment and are not required to provide a reason. It is a procedure centred on the parties, where parties participate directly and actively in the mediation process to resolve their issue. Mediation is regarded as a very effective method since it allows better and more effective communication between parties and helps to preserve, develop, and recover their relationships. In contrast to litigation, mediation can result in a win-win outcome for all parties involved.

    There is a win-lose scenario, as well as a conclusion. It leads to a swift, efficient, and cost-effective resolution of the issue and a mutually beneficial settlement. In the criminal justice system, there are various ADR practises, such as Victim/Offender Mediation, Victim-Offender Panels, Family Group Conferencing, Victim Assistance Programs, Sentencing Circles, Community Crime Prevention Programs, Ex-Offender Assistance, Plea Bargaining School Programs and Community Service, that are not considered traditional criminal justice.

    In many nations, such as the United States, Canada, the United Kingdom, and Sweden, mediation has worked wonders, and in the last decade or so, it has become a crucial and highly useful instrument for litigants in our country. This mechanism serves as India's big treasury because it is doing so well. Lok Adalat had already resolved millions of cases across the nation.
  2. Lok Adalat:
    'Lok Adalat' translates as 'People's court.' Lok Adalat is an innovative alternative dispute resolution (ADR) method developed by India for settling disputes amicably, where cases are sent for swift justice among parties wanting to settle their issues. Lok Adalat combines conciliation and negotiation to resolve conflicts, and there are no court expenses in Lok Adalat.
  3. Plea Bargaining:
    Plea- bargaining or Plea- deal, essentially a pre-trial agreement between the prosecution and the accused, is another typical ADR method observed in criminal cases. A plea bargain is an arrangement between the prosecution and defence in a criminal case about the accused's plea. In the presence of the judge, the defendant changes his plea from not guilty to guilty and accepts the prosecution's offer to reduce his sentence in exchange for a guilty plea.2

Scope of Plea Bargaining
In criminal law, plea bargaining is a sort of alternative dispute resolution. However, it is not comparable to arbitration or mediation. It merely lightens the load for both the accused and the victim. It functions as ADR in many locations.

As a mechanism for alternative dispute resolution (ADR), plea bargaining gives victims advantages, such as the ability to get restitution easily. The victim can escape the lengthy, costly, and time-consuming judicial process.

It is a boon to the accused, who can avoid a lengthy judicial process, receive a reduced sentence in cases of minimum punishment, and be placed on probation or reprimand. It also provides justice because there is no appeal to the verdict in his favour, admission of the accused cannot be utilized for any other purpose outside plea-bargaining, it is less expensive and time-consuming, etc.

Although the plea bargaining procedure is not a trial, it does require that certain conditions be met before the matter may proceed to plea bargaining. The fundamentals of plea bargaining were established in the landmark case State of Gujarat v. Ishwar Bhai Harkhabhai Patel 3.
  • The accused has willingly entered a plea of guilty.
  • For this reason, he has passed a written purshis bearing his signature.
  • Before entering a guilty plea, neither incentive nor threat was delivered to the defendant.
  • Since the aforementioned guilty plea was entirely voluntary, it has been accepted.
  • By section 265 A of the Code of Criminal Procedure, a report must have been forwarded by the police officers in charge by section 173 of the Code of Criminal Procedure, and the punishment for the offence cannot exceed seven years, life in prison, or the death penalty. This provision is not applicable to offences against the socioeconomic condition of the country or women.4
For successful plea negotiation, one must follow the steps outlined in section 265B, in which the accused must provide a summary of his case. The public prosecutor will receive this application and schedule the trial date. After that, both parties will reach a mutually agreeable resolution.

The court will then compile a report, and if the meeting is unsuccessful, the court will proceed to the next phase. If the meeting is successful, either the court is directed to provide compensation to the victim or the offender receives minimal punishment. Under Indian law, this is how the concept of Plea Bargaining operates.

Plea Bargaining is an arrangement between the prosecution and the accused where the accused pleads guilty rather than not guilty. As per the information provided above, Plea Bargaining is a form of ADR mechanism. It is a good route, which, if adopted, can result in decreased workload and speedy justice.

However, Indian courts are still sceptical about plea bargaining. This can be drawn out from the following judgements given by the Supreme Court.

In Kasambhai vs State of Gujarat & Kachhia Patel Shantilal Koderlal and Others 5, the Supreme Court, while criticizing and lamenting the magistrate's acceptance of a plea bargain, declared that plea bargaining is contrary to public policy. In addition, the court ruled that plea bargaining was contrary to society and the Constitution and might promote collaboration and corruption and contaminate the pure source of justice.

In Murlidhar Meghraj Loya vs the State of Maharashtra 6, the Supreme Court was opposed to the inclusion of the notion of plea bargaining because it violates the right of a person accused of an offence not to be forced to testify against oneself.

In Uttar Pradesh v. Chandrika 7, the court stated, 'it is settled law that the court cannot decide criminal matters based on plea bargaining. Acceptance or acknowledgement of guilt alone should not be grounds for a sentence reduction. Nor can the defendant bargain with the court for a reduced penalty after pleading guilty.'

After the above judgements, it was the 154th Report of the Law Commission that first suggested the inclusion of the concept of Plea Bargaining in Indian Criminal Jurisprudence as an alternative to the traditional dispute resolution via courts, paving the way for its incorporation into the Criminal Procedure Code, 1973 as Chapter XXIA, Sections 265A to 265L via the Criminal Amendment Act of 2005. It permits plea bargaining in cases where the maximum sentence is seven years, the offence does not impact the socioeconomic state of the country, and the victim is neither a woman nor a child less than 14 years old.

In India, not only the judiciary but also the legislative and the administration play an essential role in safeguarding and encouraging the rights of the people. Courts have been formed at all levels of the country to enforce citizens' rights and remedy their violations. In this regard, Alternative Dispute Resolution (ADR) plays an important role in criminal trials and for prisoners who lack universal facilities. In instances of plea bargaining, the conviction rate is high.

A properly implemented ADR system can encourage court reform, improve access to justice, and raise disputant satisfaction with the results. Not only has it decreased delay, but also the expense of settling conflicts. The adjudication of a criminal case in the criminal justice delivery system takes a long time and is expensive, leading to the widespread belief that once criminal litigation has begun, it will never conclude.

ADR processes can dramatically reduce the expense and duration of formal court proceedings. The ADR system must be broadly utilized in the current environment and reduce the burden. The ADR system should be implemented from the ground up. Increasing knowledge and practical activities are how the ADR system ensures proper justice.8 When people understand and appreciate the benefits of ADR, it is feasible to secure swift and significant justice. ADR measures can ensure that the Indian populace receives proper and prompt justice.

End Notes:
  1. EwaWojkowska, Doing Justice: How informal justice systems can contribute (Oslo), 2006, 9
  2. 2022. [online] Available at: [Accessed 14 October 2022].
  3. State of Gujarat v. Ishwar Bhai Harkhabhai Patel (1994) 2 GLR 1047
  4. State of Uttar Pradesh v. Chandrika 2000 Cr.L.J. 384(386)
  5. Kasambhai vs State of Gujarat & Kachhia Patel Shantilal Koderlal and Others, 1980 CriLJ 553
  6. Murlidhar Meghraj Loya v. State of Maharashtra, AIR 1976 SC 1929
  7. Uttar Pradesh v. Chandrika, AIR 2000 SC 164
  8. 2022. Role for ADR in the Criminal Justice System? | Office of Justice Programs. [online] Available at: [Accessed 14 October 2022].

Written By: Simran Kalra - Symbiosis Law School, Pune

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