Plea Bargaining: Meaning and Presumption of Innocence


A plea bargaining is an agreement in a criminal case in which a prosecutor and an accused arrange to settle the case against the accused. The defendant agrees to plead guilty or no contest in exchange for some concession from the prosecutor. This concession can include reducing the original charge or charges,dismissing some of the charges against the defendant or limiting the punishment a court can impose on the defendant. Generally, a plea bargain allows the parties to agree on the outcome and settle the pending charge.

Plea bargaining is a significant part of the criminal justice system in the United States the vast
majority of criminal cases in the United States are settled by plea bargain rather than by a court trial.Plea bargains are subject to the approval of the court.In some common law jurisdictions, such as England and Wales, and Victoria, Australia, plea bargaining is permitted only to the extent that the prosecutors and the defense can agree that the defendant will plead
guilty to some charges and the prosecutor will drop the remainder. The courts in these jurisdictions have made it plain that they will always decide what the appropriate penalty is to be. No bargaining takes place over the penalty.

To reform criminal justice administration, the Central Government has introduced Bill in Parliament to amend some provisions of the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act, incorporating a few major recommendations of the Malimath Committee.

To avoid expensive, unpredictable trials and the potential for harassment in all small and medium crimes where the harm to society is relatively small anew concept based on American law and practice, the ‘plea bargaining’ or ‘mutually satisfactory disposition’
in all criminal cases other than an offence punishable with death or imprisonment for life or of imprisonment for a term exceeding seven years, has been introduced by insertion of new chapter XXIA to the Code of Criminal Procedure, effective from 16th day of April 2006.

Presumption of Innocence and Plea-Bargaining

Present era is an era of Democracy and Human Rights. Technical advancement has minimized the distance among countries. The world became so open that anything and every thing had been exposed to the whole world. Internet and other technicalities in the field of communication bring the nations and their citizens closer and together. The phase of individual supremacy (dictatorial rule of individual) over the collective or social force is faded out and collective force manifest through elected representatives has taken over all around the world.

The collective force has not settled in real sense, the individualistic interference exists in one way or others.Rule of law or the Rule of general will of the collective community or public is the base of democratic system of governance, on the contrary the arbitrary or discretionary powers of an individual is the root cause of arbitrary and dictatorial governance. Collective
strength being an abstract force mostly dependent on the individual for the performance of its acts and functions. Persons who have been assigned to perform certain functions for and on behalf of the public under delegated powers have tendency to behave as ruler,violate the rules and behave arbitrarily and in defiance of the delegated powers at the cost of public.

In the democratic set-up the primary institution of general will of the public known by the name of’Constitution’ is the source of all powers, and legislature the secondary institution of the general will has to frame and enact the law and rules to decide the ways and methods of the performance of individuals at large and of those persons, who have been assigned to execute those rules and laws and assist individuals in their day-to-day life. In democratic set-up the sovereign power vests in public or each and every individual and public servants are delegated with authority to enforce the command of general will of the public, the individuals.

In democratic set-up there is a very little scope for the individual discretion as the individual discretion is inconsistent to the basics of the doctrine of rule of law.Unfortunately under the adversary system’, the foundation stone of the ‘Anglo-Saxon’ jurisprudence,and its offshoot the ‘Precedence’ (individual wisdom)the concept of ‘Rule of Law (collective wisdom) is blurred and has been over-shadowed by the individual discretion. In democratic set-up the ‘Judiciary’ is the custodian of the primary general will the’Constitution’ and under powers of ‘Judicial review’,has to determine that offspring of the Constitution, the”Rules’ and ‘Laws’, must conform its basics, and the rights of the individual must not be infringed,by any-one without established process of law. In Maneka Gandhi case the Hon’ble Supreme Court has ruled that any order, law, rule or process must be”right and just and fair and not arbitrary, fanciful or oppressive.

This is a settled principle of jurisprudence that every person is innocent until proved otherwise. This fundamental doctrine of dispensation of criminal justice has been usurped under the shadow of discretion and garb of the public interest, and judicial malpractices coloured with colonial and dictatorial principles of arbitrary, oppressive methods to suppress the subjects (Public) for maintenance the rule of an individual the ‘King or Queen’. This situation has been prevailing in India in spite of her being the Biggest Democratic Country in the whole world. In practice there is, de jure, presumption of guilt, under which any and every person accused or suspected for the commission of any offence is branded the enemy of the society and every organ of the State machinery including judiciary became hostile in contravention of the doctrine of ‘innocence and his all rights including fundamental, human, and legal became suspended and such person is deprived even from the rules of natural law of justice. In other words such person became outcaste, inhuman and denied the justice. The typical infringements of rights of arraigned person as follows:

  • In some system suspects may be held on long period on remand, while inquiries proceed. Such long imprisonment constitutes, in practice, a hardship and a punishment for the suspect, even he or she not yet been sentenced.
  • Courts may prefer the testimonies of persons of certain class, status, ethnicity, gender, or political standing over those of others, regarding of actual circumstances.
  • In Europe and America, prior to the French Revolution it was common that justice could have
    suspects tortured so as to extract a confession from them. Even though the suspects were not, at this point, legally guilty, they were exposed to considerable pain,often lasting physical consequences.

In the backdrop of the factual practice of usurp the doctrine of innocence and the right of silence granted under Article 20 of the Constitution of India, and the law of denial of right to be heard and ‘notice to an accused, the provisions granting the interrogation or remand to police custody are illegal and inconsistent to the Article 20. Any interpretation of the provisions of the Article 20, whereby the interrogation or examination of any accused [Who is named in information or complaint (FIR) or warrant of arrest is issued for his arrest see Nandni Satpathi case] or remand for police custody, or admission of the disclosure statement recorded under Section 27 of the Indian Evidence Act, or any sort of confession is nothing but violation of the provisions of Article 20 and Human Rights.


*Dr. Deepak Miglani, Email id.:- [email protected]

Leave a Comment