Unequal Bargains? Plea Bargaining and Joint Liability under BNSS

1. INTRODUCTION TO PLEA BARGAINING 

Understanding Plea Bargaining as a concept 

When breaking down the word “ plea” means “request” and “bargaining” means “negotiation.”; in simple words, it explains a process in which a person who is charged with an offence that is criminal in nature negotiates with prosecution for lesser punishment than what is provided by “law”. It is based on the principle of “Nolo Contendere”, a Latin phrase that translates as “I do not wish to contend”, which simply translates to accused accepting all the charges applied on him without pleading guilty and agrees to accept the penalty in lieu of bargaining with lesser punishment with victim. This as a concept can only be used in criminal offence. According to Black’s Law Dictionary, plea bargaining is “an agreement set up between the plaintiff and the defendant to come to a resolution about a case without ever taking it to trial.”. 

Plea bargaining has been “directly linked to the US criminal justice system, since it has been extensively used there since the beginning of the 20th century”, until becoming “the primary way to resolve criminal cases”. As the National Association of Criminal Defense Lawyers notes, virtually all federal cases of US end in pleas – “trial sentences [are] roughly three times higher than plea sentences… The trial penalty is so coercive that it causes some innocent people to plead guilty.”​ Such bargaining is not officially part of the system in England and Wales, except in complex fraud cases. Still, the judicial sentencing guidelines suggests those who plead guilty at the earliest hearing over other crimes may be given a reduction of up to a third of their sentence. There is a sliding scale of sentence reductions as criminal proceedings continue, and informal bargaining is widespread. “instead judges’ sentencing guidelines encourage early guilty pleas (up to a one-third discount)”​ Currently, “101 countries” allow plea bargaining. “Muslim-majority populations and the French and Scandinavian legal origins are associated with lower probabilities of formalizing plea bargaining, while democracies are associated with higher probabilities”. 

There are three categories of plea bargaining: “charge bargaining”, “sentence bargaining”, and “fact bargaining”. Although inferred sentence reductions are a part of each category, the methods used to accomplish these reductions vary.
In the first type, known as charge bargaining, a defendant enters a guilty plea to fewer charges. It happens when a defendant enters a guilty plea to offenses that are inevitably included. punishment bargaining is the second kind, where a defendant who enters a guilty plea is guaranteed a lighter or different punishment. Only with the trial judge’s approval may they be provided in the United States. The prosecution may refuse to drop the charges against the defendant in high-profile cases, typically out of concern for how the media may portray the case. A sentence bargain may guarantee the defendant a suitable sentence while enabling the prosecution to secure a conviction on the most serious allegation. Fact is the third kind of plea and the least common sort of negotiation.
This type of bargaining entails agreeing not to introduce some additional facts in exchange for an admission of certain facts (“stipulating” the existence and verifiability of verifiable facts, thereby removing the necessity for the prosecutor to prove them).

Historical evolution of Plea bargaining in the Indian criminal system 

In India, the idea of plea bargaining was long discussed but not recognized until the 21st century. Law Commissions (“142^nd”, “154^th”, “177^th”) and the “Malimath Committee”(2001–03) recommended it as a means to reduce case backlogs. The concept of plea bargaining was introduced in India in year of 2005 through the “Amendments” to “Chapter XXIA” (Sections 265A to 265L) of Code of Criminal Procedure, 1973 ( CrPc), effective 2006. This further was withheld and continued through enactment of Bhartiya Nagrik Suraksha Sanhita in “Chapter XXIII”. 

Initially courts were skeptical: historically, cases like “Murlidhar Loya v. Maharashtra (1976)” and “State of U.P. v. Chandrika (1999)” held that bargains cannot supplant judicial trial of guilt​. In “Chandrika” , the Supreme Court struck down a murder plea deal as “illegal and erroneous,” emphasizing that plea bargaining was not recognized in Indian law for serious offences​ Similarly, in “Ganeshmal Jashraj v. Gujarat” and “Thippaswamy v. Karnataka”, the Court condemned plea arrangements as unconstitutional shortcuts that invite collusion and weaken justice​. These precedents were overtaken by statute, but they underscore caution: plea deals in India must fit within carefully circumscribed rules, or courts will reject them.

Under the CrPC, plea bargaining was limited to sentence bargaining in minor offences. Only cases where the maximum punishment was seven years or less could be considered, and even then offences affecting the country’s “socio‐economic condition” or crimes against women or children were excluded​. The law expressly forbade bargaining on the charges themselves – an accused could not plead guilty to a lesser offence or have certain charges dropped – only a reduced punishment could be negotiated​. In practice it was rarely used: “National Crime Records Bureau data show that in 2015 only 4,816 of over 10.5 million pending IPC cases (≈0.05%) ended in plea bargaining”. Many commentators blamed this low uptake on procedural limitations. Critics observed that plea bargaining tended to attract only undertrials who could not afford bail, and that these accused often did not fully understand the consequences of pleading. The Supreme Court has also cautioned that a plea must be voluntary, not the product of fear, or it will be treated as a miscarriage of justice. 

Plea bargain in BNSS 

In 2023 India replaced the CrPC with the Bharatiya Nagarik Suraksha Sanhita (BNSS), which largely carries forward plea bargaining along the same lines. “Chapter XXIII” of the BNSS (Sections 289–297) governs the procedure. “Section 289” closely mirrors the old law: it applies only to offences instituted on police report or complaint that are not punishable by death, life imprisonment, or more than seven years. Crucially, certain offences remain excluded: any crime “affecting the socio-economic condition of the country” (as notified by government), or offences against women or children under 18, fall outside plea bargaining​. Thus, in line with the CrPC, plea deals are limited to relatively less serious crimes and (for now) no new classes of excluded offence have been added. “Section 290” sets out the plea application process. An accused must apply within 30 days of the charge being framed​ – a new time limit introduced by BNSS (the CrPC had no fixed deadline). The application must include a brief case description and be sworn by the accused, who must admit that he has “voluntarily preferred” the plea bargaining after understanding the offence and its penalty, and that he has no prior conviction for the same charge. Upon filing, the court issues notice to the prosecution (or complainant) and the accused. When all parties appear, the court holds a private examination of the accused to verify voluntariness​. If the court finds the plea was involuntary or that the accused has a prior conviction for the same crime, it rejects the application and the trial proceeds normally​. Otherwise, the court gives the parties up to sixty days to negotiate a mutually satisfactory disposition​. During this period, the accused and prosecutor meet (in or outside court) to agree terms – the law explicitly contemplates paying compensation to the victim as part of the settlement​. If the accused desires, he may include his counsel in these discussions.

Once negotiations conclude, BNSS “292” requires the court to prepare a written report of the disposition, signed by the judge and all participants​. If the parties reach an agreement, the court then “disposes of the case” under “Section 293” by imposing the agreed sentence. The statute first mandates that any compensation negotiated to the victim be awarded. The judge then hears argument on punishment and may even release the accused on probation or admonition under the “Probation of Offenders Act”, if applicable. Finally, “Section 293(c)–(d)” prescribes sentencing limits: if the offence carries a minimum sentence, the court may impose at most half that minimum, or (for first-time offenders) one‐quarter of it . If no minimum is fixed, the maximum term may be reduced to one‐fourth (or one‐sixth for a first offender) of the maximum prescribed​. These fractions echo the old law but provide even lighter terms for first offenders. Throughout, the court’s discretion is constrained by these fixed caps. 

Sections 294–297 address the conclusion and finality of the plea process. “Section 294” requires the judgment to be pronounced in open court and signed by the judge. “Section 295” then makes the plea judgment final: no appeal lies except by special leave of the Supreme Court or by constitutional writ. Section 296 confirms that during the plea procedure the court retains its usual powers (bail, trial management, etc.) as if the plea application had never been filed​. Finally, Section 297 provides that any time already spent in detention is to be set off against the sentence imposed, just as under ordinary law​. 

The BNSS scheme thus preserves the core safeguards of the CrPC regime: a plea must be voluntary, the victim must consent (implicitly, via compensation), and detailed procedures govern the process​ It also embodies the same policy limits (offence gravity and excluded categories) and non‐negotiability of charges. The main novelties are administrative: a firm 30-day window to apply, and somewhat lighter sentencing floors for first offenders (BNSS allows one‐sixth of the term instead of one‐fourth). In all other respects BNSS 289–297 track CrPC 265A–265L with renumbering of sections.

2. JOINT LIABILITY 

Joint Liabilty in Bharatiya Nyaya Sanhita (2023)

The new Bharatiya Nyaya Sanhita (BNS), 2023 carries forward these principles, embedding them in the General Explanations. In particular, “Section 3(5) BNS” restates the common-intention rule: “When a criminal act is committed in furtherance of a common intention by several individuals, each person is liable as if they alone committed the act”​ This codifies the old IPC 34 doctrine directly into the new Penal Code. Likewise, “Section 3(6) BNS” deals with criminal knowledge or intention: it provides that when an act is criminal because of the intent or knowledge behind it, then “each person who joins the act with the same knowledge or intention is held equally responsible”​ In effect, if two or more join an inherently criminal act (for example, if all share the intent to kill), they are all guilty of the resulting offense. But if their intents differ (say one intended murder while another only meant to injure), Section 3(6) ensures each is punished according to their degree of intent​. Thus, the BNS keeps group liability robust but also clarifies individual culpability when intentions diverge.

Joint Trials in Bharatiya Nagarik Suraksha Sanhita (2023)

Parallel to the substantive BNS, the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 updates the Criminal Procedure rules on joint trials. BNSS Sections “246” and “247” closely mirror the old CrPC Sections 223–224, with minor updates in references and numbering. Specifically, “Section 246 BNSS” lists the categories of persons who “may be charged and tried together,” including: (a) those accused of the same offence in one transaction; (b) those charged with an offence and those charged with abetment or attempt of that offence; (c) those who jointly committed multiple offences of the same kind within 12 months; (d) those accused of different offences in one transaction; (e) offences like theft/extortion and those accused of receiving the stolen property; and (f)-(g) similar groupings involving stolen goods or counterfeit coins. Like the old law, “S. 246” also contains a proviso allowing the court to try other co-accused together by application if it is fair to do so. 

Section 247 BNSS governs the withdrawal of charges after a conviction on one head. It states: if multiple charges are framed against a person and the court convicts on one or more heads, the prosecution (with court consent) may withdraw the remaining charges, or the court itself may stay those trials. Any withdrawn charge is treated as an acquittal, unless the conviction is overturned, in which case the court can resume the trial of the dropped charges​. 

Example 1 – Joint Trial under BNSS: Suppose two cousins, X and Y, are accused of robbery on the same night at nearby houses. The prosecution charges them in two separate complaint cases, but finds that the offences were part of one continuous criminal episode. Under BNSS S. 246(a)&(d), the court may join the charges and try X and Y together in a single trial . This avoids duplication and ensures the jury or judge hears all related evidence at once.

Example 2 – Withdrawal of Charges: Imagine Z is charged with both murder and theft for the same incident (a deadly robbery). The trial proceeds on both counts. If Z is convicted of murder first, the prosecutor (or the court) can withdraw the theft charge under BNSS S. 247​. Legally this withdrawal counts as an acquittal for theft, simplifying the remaining procedure.

3. Plea Bargains in Multi-Accused Cases (“Unequal Bargains”)

When criminal charges involve multiple defendants acting together, plea bargaining can produce what feel like unequal bargains. “The new Indian code (BNSS) allows eligible accused to plead guilty in exchange for reduced punishment​, but it says nothing about how to proceed if only some co-accused choose that route”. In practice, “this gap can create confusion. For example, the court may grant a plea for one or two defendants while requiring the others to stand trial”. “The result is that cooperating defendants get leniency, whereas those who resist pleadings face the full charges, raising questions of fairness and consistent justice”. 

Consider a hypothetical situation : three suspects are charged with armed robbery. Two accept plea agreements, conceding guilt in exchange for lighter sentences; the third insists on a trial. The court will accept the pleas and sentence those two, leaving the third to face trial alone. If the two cooperators made statements implicating the third, those statements ordinarily cannot be used at his trial without exposing him to hearsay prejudice (a problem analogous to the U.S. Bruton rule in case of “Bruton v. United States”) . BNSS expressly tries to prevent this kind of prejudice: “Section 299” forbids using any statement made during a plea-bargaining application for any other purpose​. Even so, practical issues remain. How can the prosecution prove the third person’s guilt without the plea-takers’ live testimony? The court might have to sever the trial or rely only on remaining evidence, which may weaken the case or unfairly tip it against the non-pleader.

In such group-plea situations, key concerns arise:

• Disparate outcomes: “Co-accused face very different fates. One group may go free (or receive light sentences) via plea, while others risk maximum punishment”. This disparity can feel arbitrary and undermine confidence in justice.
• Coercion of defendants: The spectre of harsher trial penalties can pressure even innocent defendants to plead guilty. Critics warn that plea bargains sometimes “coerce…innocent [people] to plead guilty” to avoid an uncertain or severe outcome​ In a multi-accused case, a defendant might plead simply because others did, even if he believes he could be acquitted at trial.
• Evidentiary prejudice: A plea bargain usually involves admissions. If one defendant admits facts implicating a co-defendant, the latter can’t cross-examine the confessor if the confessor doesn’t testify at trial. This raises Sixth Amendment–type fairness issues​. (In our example, the two who pled wouldn’t testify at the third defendant’s trial, so his right to confrontation is at risk.)
• Procedural complexity: “BNSS does not clearly prescribe how to manage a mixed plea. Courts may struggle with questions like: Should the cases be tried separately or kept joint?” Can the prosecution still prosecute conspiracy counts? These uncertainties can delay cases and produce inconsistent handling of similar situations.

Importantly, BNSS does include some safeguards. A court must interview each accused privately to confirm that any plea is voluntary​, and as noted it bars using plea statements as evidence against co-defendants. These provisions aim to protect defendants from coercion and unfair prejudice. Even with such rules, however, the power imbalance between prosecutor and defendants means the “unequal bargain” problem persists as a potential concern.

Fairness, Coercion, Prejudice

(i) Disparate Outcomes and Sentencing Inequality

“Where some co-accused plead guilty and others go to trial, sentencing disparities are inevitable”. Courts have historically struggled with this, leading to a patchwork of judicial discretion. In “Kasambhai v. State of Gujarat,” the Supreme Court warned against “disproportionate sentencing” where co-accused similarly situated were treated very differently without justification. In “State of Maharashtra v. Natwarlal Damodardas Soni”, the Court emphasized that sentencing must maintain consistency and should not be arbitrary just because of procedural shortcuts like plea bargains. Thus, when only some co-accused negotiate lighter terms, the court must ensure that the differences are justified by evidence, not by bargaining dynamics alone.

(ii) Coercion of Innocent Defendants

Plea bargaining always carries a risk of coercion, especially when defendants face the fear of harsh sentencing upon trial conviction.

• In “State of Uttar Pradesh v. Chandrika”, the Court disapproved the use of plea bargaining under CrPC before formal legislative insertion, warning that it might force innocent people to admit guilt.
• Scholars note (and courts have echoed) that innocent accused sometimes plead guilty merely to avoid prolonged trial uncertainty and harsher penalties if convicted.

This danger multiplies in joint trials. If three out of four accused plead guilty, the remaining individual might feel pressured, fearing that isolated resistance will be seen negatively.

(iii) Evidentiary Prejudice

The statements made by plea-bargaining co-accused can indirectly taint the trial of the non-pleading accused.

In the American context, the landmark case of “Bruton v. United States”, , established that a defendant’s confession implicating a co-defendant is inadmissible unless the confessor testifies and is cross-examined.
Similarly, Indian law (under BNSS Section 299) disallows plea statements from being used in other trials.

However, practical concerns remain:

• If the plea-bargaining co-accused testifies for the prosecution, their prior admissions could influence the outcome.
• Courts must be cautious in such cases to ensure the independence of evidence against the non-pleading accused.

(iv) Procedural Complexity and Lack of Clear Guidance

BNSS gives procedural steps for plea bargains but does not provide instructions on partial pleas—where some defendants plead guilty and others insist on a full trial.

In “Babu Singh v. State of Uttar Pradesh”, the Court stressed that criminal procedure must ensure “speedy and fair trial,” but never at the cost of justice. Where plea bargains for some accused create undue procedural advantage or confusion, the integrity of the entire trial is threatened.

4. Conclusions and recommendations  

BNSS largely maintains the existing plea-bargaining framework, limiting deals to reduced sentences (not lesser charges). In practice, this means defendants can only negotiate their punishment​.  The new law adds clear timelines (e.g. a 30-day window to apply for a plea) and records judicial reasons at key stages. It also codifies rules for joint trials (who may be tried together) and withdrawal of charges after one conviction​. These measures aim to speed up cases and remove outdated procedures, which is a positive step.

However, our analysis reveals a risk of “unequal bargains.” If one co-defendant negotiates a lighter sentence, others tied to the same crime still face full charges. The law’s focus on efficiency can leave co-accused in a tough spot: they may feel pressured to plea just to avoid the maximum penalty, creating a potential fairness gap between bargain-makers and those who go to trial. In short, BNSS streamlines justice but does little to equalize outcomes among jointly accused persons.

Authors info: 

Shriya singh 

2^nd year, BALLB  

Dharmashastra National Law University