DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

ALTERNATIVE DISPUTE RESOLUTION MECHANISMS AND

CRIMINAL CASES

ALTERNATIVE DISPUTE RESOLUTION

SUBMITTED TO:

Mrs N. Bhagyalakshmi

(FACULTY: ADR)

Rishabh singh

201290 (6th semester)

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ACKNOWLEDGEMENT

I would like to take this opportunity to express my deep sense of gratitude towards my course

teacher, Mrs N. Bhagyalakshmi for giving me constant guidance and encouragement

throughout the course of the project.

I would also like to thank the University for providing me the internet and library facilities

which were indispensable for getting relevant content on the subject, as well as subscriptions

to online databases and journals, which were instrumental in writing relevant text.

Special thanks goes out to my seniors who have been relentless in their help and supporting

providing any material whenever required and my colleagues, who always stood by me,

irrespective of the decisions taken by me. Without their support this project would not have

seen the light of the day.

RISHABH SINGH

Semester - VI

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ABSTRACT

MECHANISMS AND CRIMINAL CASES

Alternative Dispute Resolution (ADR) is a term for describing process of resolving disputes

in place of litigation and includes arbitration, mediation, conciliation, expert determination

and early neutral evaluation by a third person. In a rapidly developing society human needs

are bound to multiply resulting into conflict of interests. People become more conscious

about their individual rights and litigation becomes an inevitable part of their life due to

rising incidence of disputes among them. Particularly, in a modern technologically and

economically well advanced society, litigation is a primary means of resolving disputes.

When it fails to meet the need of the people there is oblivious need to search for new

alternative methods of dispute resolution. It is in this context that the alternative modes of

dispute resolution have gained primacy in the present millennium. Now the courts are also

referring small criminal matters to the ADR section to remove the backlogging of pending

case and to save the time for more important issue of the society.

The legal system in India is viewed by many as part of ‘colonial legacy’. Undoubtedly,

judiciary is the important institution which has withstood many challenges during the last-

more than fifty years to retain its integrity. But with the mounting pressure of cases especially

criminal cases, the workload of judiciary increased leaps and bound and it has now reached a

stage of unmanageable magnitude and the cases remain undecided for years together for one

reason or the other.

The constitution of India ensures “equal access to justice for all”. But the ground reality is

that the law hardly reaches the vulnerable sections of the society here majority of the people

are illiterate, rustic and rural and are ignorant about existence of their legal rights and

remedies. And those who are aware of their right find it difficult to get them translated into

reality because of the legal and procedural ordeals on has to undergo in the process of

litigation. The crises therefore, call for an urgent solution. The cause for such backlog of

cases is institutional and the delay in disposal of the cases is due to procedural laws.

Unlike the suits and trial cases, Alternative Dispute Resolution (ADR) includes processes that

are out of court proceedings. Due to fact that pendency of court cases and suits have gone

through roofs, ADR has gained paramount significance in almost every civilized

dispensation.

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TABLE OF CONTENTS

Objectives 4

Significance and scope of the study 4

Review of the literature 4

Research methodology 4

Hypothesis 5

Introduction 5

Definition of ADR 6

Characteristics of ADR 7

Nature of Criminal Justice System in India 8

Problems of Formal Legal System 11

Types of ADR in Criminal Cases 15

Advantages of ADR 15

Disadvantages of ADR 17

Implementation of ADR in Criminal Justice System 17

Victim offender mediation 19

Compoundable offences under 320 and 498(a) of Crpc 21

Conclusion and Suggestions 24

Bibliography 25

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OBJECTIVES

To point out the problems in the formal legal criminal system

To enunciate the advantages and disadvantages of introducing an alternative criminal

mechanism

To detail upon the types of ADR mechanisms that can be introduced with regard to

criminal cases along with their appraisal and applicability in Indian scenario

To suggest necessary steps that can be taken to implement a working model of an

alternate dispute resolution mechanism for criminal case.

SIGNIFICANCE AND SCOPE OF THE STUDY

The scope of the topic ‘Alternative Dispute Resolution Mechanisms and Criminal Cases’

widens up to the examination and analysis of the need of ADR in the light of the current legal

scenario of criminal cases in India.

REVIEW OF THE LITERATURE

The completion of this paper has required collection of relevant information through a

number of law journals, books by renowned authors on alternative dispute resolution and

several websites. Since ADR is not a new concept, a plethora of information can be found

very easily.

RESEARCH METHODOLOGY

This project report is based on analytical and descriptive Research Methodology. Secondary

and Electronic resources have been largely used to gather information and data about the

topic.

Books and other reference as guided by Faculty have been primarily helpful in giving this

project a firm structure. Websites, dictionaries and articles have also been referred.

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HYPOTHESIS

ADR, though being an ancient means of dispute settlement, cannot be said to be serving the

intended purpose due to several reasons.

INTRODUCTION

 In a rapidly developing society human needs are bound to multiply resulting into conflict of

interests. People become more conscious about their individual rights and litigation becomes

an inevitable part of their life due to rising incidence of disputes among them. The problem is

further compounded when there is lack of discipline in the litigation process and judicial

mechanism finds it difficult to cope up with the enormous caseload. Particularly, in a modern

technologically and economically well advanced society, litigation is a primary means of

resolving disputes. When it fails to meet the need of the people there is oblivious need to

search for new alternative methods of dispute resolution. It is in this context that the

alternative modes of dispute resolution have gained primacy in the present millennium.

The legal system in India is viewed by many as part of ‘colonial legacy’. Undoubtedly,

judiciary is the important institution which has withstood many challenges during the last-

more than fifty years to retain its integrity. But with the mounting pressure of cases especially

criminal cases, the workload of judiciary increased leaps and bound and it has now reached a

stage of unmanageable magnitude and the cases remain undecided for years together for one

reason or the other.

The constitution of India ensures “equal access to justice for all”.1 But the ground reality is

that the law hardly reaches the vulnerable sections of the society here majority of the people

are illiterate, rustic and rural and are ignorant about existence of their legal rights and

remedies. And those who are aware of their right find it difficult to get them translated into

reality because of the legal and procedural ordeals on has to undergo in the process of

1 The preamble to the constitution of India promises to secure socio-economic and political justice and equality of status and of opportunity to all the citizens. Art. 39-A contains a directive principle which holds that the state will ensure that the legal system operates in a manner so as to promote justice to all and to ensure that no citizen is denied the opportunities of securing justice by reason of economic or any other disability. In addition, Art. 14 of Part III of the Constitution ensures” Equality before Law and Equal Protection by Law” to all citizens which can only be realized by providing “equal access to justice”. The SC also enunciated on this principle in Maneka Gandhi vs UOI (1978) 1 SCC 248, Sheela Barse v. State of Maharashtra AIR 1983 SC 378 , State of Haryana v. Darshana Devi AIR 1979 SC 855.

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litigation. The crises therefore, call for an urgent solution. The cause for such backlog of

cases is institutional and the delay in disposal of the cases is due to procedural laws.2

Unlike the suits and trial cases, Alternative Dispute Resolution (ADR) includes processes that

are out of court proceedings. Due to fact that pendency of court cases and suits have gone

through roofs, ADR has gained paramount significance in almost every civilized

dispensation. ADR is generally classified into at least four types: negotiation, mediation,

collaborative law, and arbitration. Sometimes a fifth type, conciliation, is included as well,

but for present purposes it can be regarded as a form of mediation.

A recent trend that can be noticed in the sphere of ADR is its applicability to the criminal

matters. Mediation is the most sought after form of ADR, where the issue of criminal justice

is concerned.

DEFINITION OF ADR

Alternative Dispute Resolution (ADR) is a term for describing process of resolving disputes

in place of litigation and includes arbitration, mediation, conciliation, expert determination

and early neutral evaluation by a third person.3 In India, The Arbitration and Conciliation

Act, 1996 is a long leap in the direction of Alternative Dispute Resolution system. It is based

on UNCTRAL model.4Prior to the enactment of The Arbitration and Conciliation Act, 1996,

none of these forms of ADR except arbitration had any statutory basis in India. Mediation

and Conciliation require an independent third party as mediator or conciliator to assist the

parties to settle their disputes. The expert determination requires independent experts in the

subject of disagreement of the parties to decide the case. Such expert is chosen jointly by the

parties and his decision is binding.

 The objective of ADR as the phrase itself suggest is to resolve disputes of all sorts outside

the traditional legal mechanism i.e. courts/judicial system. There is a broad spectrum ranging

from the purely consensual mode of resolution of disputes to an executive procedure like

arbitration, conciliation or negotiation. ADR thus offers an alternative route for resolution of

2 [Report on National Juridicare Equal Justice – Social Justice, Ministry of Law, Justice and Company Affairs (1977)3 Black's Law Dictionary Free Online Legal Dictionary 2nd Ed.4 United Nations Commission on International Trade Law (UNCITRAL) prepared a Model Law on international commercial arbitration in 1985. The General Assembly of the United Nations has recommended that all member countries should give due consideration to the Model Law, for the desirability of uniformity of the Law of Arbitral Procedures and the specific needs of International Commercial Arbitration Practice. The United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Conciliation.

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disputes. The emphasis in the ADR, which is informal and flexible, is on “helping the parties

to help themselves”5.The arbitral proceedings being informal, less expansive and relatively

speedier, have proved to be an efficient alternative means for the redressal of disputes and

differences between the parties. Like arbitration, conciliation and mediation as an alternative

means of settlement of disputes also needs to be popularized.

CHARACTERISTICS OF ADR

Although the characteristics of arbitration, mediation, negotiation and other forms of

community justice vary, all share a few common elements of distinction from the formal

judicial structure. These elements permit them to address development objectives in a manner

different from judicial systems. The common characteristics of ADR are given below:

1. ADR operates without formal representation.

2. ADR program applied the doctrine of Equity.6

3. ADR system includes more direct participation by the disputants in the process.7

4. Gives opportunity for communication between the disputants.

5. Neutral case evaluation system.

6. ADR includes early neutral evaluation.

7. Make scope for family group conference.

The nature of ADR mechanisms can be ascertained from the above mentioned characteristics.

The primary object of ADR movement is avoidance of vexation, expense and delay and

promotion of the ideal of “access of justice” for all. ADR system seeks to provide cheap,

simple, quick and accessible justice. ADR is a process distinct from normal judicial process.

Under this, disputes are settled with the assistance of third party, where proceedings are

simple and are conducted, by and large, in the manner agreed to by the parties. ADR

stimulates to resolve the disputes expeditiously with less expenditure of time, talent money

with the decision making process towards substantial justice, maintaining to confidentiality of

subject matter. So, precisely saying, ADR aims at providing justice that not only resolves

dispute but also harmonizes the relation of the parties.

NATURE OF CRIMINAL JUSTICE SYSTEM IN INDIA5 Totaro, Gianna., “Avoid court at all costs” The Australian Financial Review Nov. 14 2008.6 S.C. Dr. Tripathi, Alternative Dispute Resolution System (ADR), Central Law Publications Allahabad, First edition, 2012, p.03. 7 Ibid

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Under the constitution, criminal jurisdiction belongs concurrently to the central government

and the states. The prevailing law on crime prevention and punishment is embodied in two

principal statutes: the Indian Penal Code and the Code of Criminal Procedure of 1973. These

laws take precedence over any state legislation, and the states cannot alter or amend them.

Separate legislation enacted by both the states and the central government also has

established criminal liability for acts such as smuggling, illegal use of arms and ammunition,

and corruption. All legislation, however, remains subordinate to the constitution.

The Indian Penal Code came into force in 1862; as amended, it continued in force in 1993.

Based on British criminal law, the code defines basic crimes and punishments, applies to

resident foreigners and citizens alike, and recognizes offenses committed abroad by Indian

nationals. The penal code classifies crimes under various categories: crimes against the state,

the armed forces, public order, the human body, and property; and crimes relating to

elections, religion, marriage, and health, safety, decency, and morals. Crimes are cognizable

or non-cognizable, comparable to the distinction between felonies and misdemeanors in legal

use in the United States.

Courts of law try cases under procedures that resemble the Anglo-American pattern. The

machinery for prevention and punishment through the criminal court system rests on the

Code of Criminal Procedure of 1973, which came into force on April 1, 1974, replacing a

code dating from 1898. The code includes provisions to expedite the judicial process,

increase efficiency, prevent abuses, and provide legal relief to the poor. The basic framework

of the criminal justice system, however, was left unchanged.

India has an integrated and relatively independent court system. At the apex is the Supreme

Court, which has original, appellate, and advisory jurisdiction. Below it are eighteen high

courts that preside over the states and union territories. The high courts have supervisory

authority over all subordinate courts within their jurisdictions. In general, these include

several district courts headed by district magistrates, who in turn have several subordinate

magistrates under their supervision. The Code of Criminal Procedure8 established three sets

of magistrates for the subordinate criminal courts. The first consists of executive magistrates,

whose duties include issuing warrants, advising the police, and determining proper

procedures to deal with public violence. The second consists of judicial magistrates, who are

essentially trial judges. Petty criminal cases are sometimes settled in panchayat courts.

8 Section 6, CRPC, 1973

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PROBLEMS OF FORMAL LEGAL SYSTEM

The Formal Legal system to address criminal matters as of now is rigged with the major

problems of:

Awareness: The lack of awareness of legal rights and remedies among common people

acts as a formidable barrier to accessing the formal legal system. Those who are

economically and socially disadvantaged see the entire legal system as irrelevant to them

as a tool of empowerment and survival. The economically disadvantaged litigant stands

outside the network of courts. To those who were unwilling to part with money, these

court officials were not prepared even to tell whether the presiding officer would come

and the cases would be heard or not.” The formal system, as presently ordered, tends to

operate to the greater disadvantage of this class of society which then looks to devising

ways of avoiding it rather than engaging with it. Without fundamental systemic changes,

any alternative system, however promising the results may seem, is bound to be viewed

with suspicion. The participatory nature of an ADR mechanism, which offers a level

playing field that encourages a just result and where the control of the result is in the

hands of the parties, and not the lawyers or the judges, would act as a definite incentive to

get parties to embrace it.

Mystification: The language of the law, invariably in very difficult and complicated

English, makes it unintelligible even to the literate or educated person. Only few attempts

have been made at vernacular sing the language of the law and making it simpler and

easily comprehensible to the person.

Delays: The greatest challenge that the justice delivery system faces today is the delay in

the disposal of case and prohibitive cost of litigation. Alternative dispute resolution wads

thought of as a weapon to meet this challenge. The average waiting time, both in the civil

and criminal subordinate courts, can extent to several years. This negates fair justice. To

this end, there are several barricades. The judiciary in India is already suffering from a

docket explosion.9 In fact, as on 31st October 2005, the number of cases pending before

the Supreme Court was 253587003. The huge backlog of cases only makes justice less

9 Indian Law Institute, Judicial System and Reforms in Asian Countries: The Case of India, Institute of Developing Economies, Japan External Trade Organisation (IDE-JETRO), (March 2001) 37. The Parliamentary Standing Committee on Home Affairs found that as of 2001, there were in 21 High Courts in the country, 35.4 lakh cases pending.

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accessible. The delay in the judicial system results in loss of public confidence on the

confidence on the concept of justice.

Expenses and Costs: One disincentive for a person to engage with the legal system is the

problem of uncompensated costs that have to be incurred. Apart from court fees, cost of

legal representation, obtaining certified copies and the like, the system fails to

acknowledge, and therefore compensate, bribes paid to the court staff10, the extra `fees’ to

the legal aid11, the bribes paid (in criminal cases) to the policemen for obtaining

documents, copies of depositions and the like or to prison officials for small favours.12 In

some instances, even legal aid beneficiaries may not get services for `free’ after all. 13 In

addition, the considerable delay in reaching the conclusion in any litigation adds to the

costs and makes the absence of an effective mechanism for their recovery even more

problematic.

All of the above factors should in fact persuade prospective and present litigants, as well as

those engaging with the formal legal system as judges and lawyers, to reservedly embrace the

notion of ADR, conciliation and mediation.

TYPES OF ADR IN CRIMINAL CASES

In reference to the criminal justice, the term ADR encompasses a number of practices which

are not considered part of traditional criminal justice such as victim/offender mediation;

10, V.N.Rajan and M.Z.Khan, Delay in Disposal of Criminal Cases in the Sessions and Lower Courts in Delhi, Institute of Criminology and Forensic Science, (1982). The authors point out (at 42) “It was seen that those who greased the palm of the readers and peons were able to get adjournments readily while others waited outside the court helplessly. To those who were unwilling to part with money, these court officials were not prepared even to tell whether the presiding officer would come and the cases would be heard or not.”11 Siraj Sait, “Save the legal aid movement”, The Hindu, June 29, 1997, V: “What is galling is that many sleazy lawyers who get legal aid cases tell the poor victims that if they want result they must pay them extra over what the Tamil Nadu Legal Aid Board pays them.” 12 Kumkum Chadha, The Indian Jail: A Contemporary Document, Vikas Publishing Pvt. Ltd., 31 where she talks of the system of a `setting’ for various tasks involving the prisoner having to depend on the jail official in Tihar Jail in Delhi: “A minimum `setting’ even for the official to consider the request is Rs.500.”(emphasis in original) William Chambliss, “Epilogue- Notes on Law, Justice and Society”, in William Chambliss (ed.), Crime and the Legal Process, McGraw Hill Book Co. (1969) points out (at 421): “When a police force or an entire legal system is found to be engaged in a symbiotic relationship with professional criminals, the cause of this unfortunate circumstance is seen as residing in the inherent corruptibility of the individuals involved.”13 An empirical study of the working of legal aid schemes in Punjab showed that beneficiaries of legal aid complained that “they were provided only the services of a counsel and nothing beyond” and that they “had to spend amounts varying between Rs.100 to 900 for their cases in lower courts”: Sujan Singh, Legal Aid: Human right to Equality, Deep and Deep, (1998), 272.

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family group conferencing; victim offender-panels; victim assistance programs; community

crime prevention programs; sentencing circles; ex-offender assistance; community service;

plea bargaining; school programs. It may also take the shape of cautioning and specialist

courts (such as Indigenous Courts and Drug Courts) or Lok Adalats and Panchayats. These

types of ADR mechanisms along with their appraisal and applicability in Indian scenario

have been further detailed upon.

1. Plea Bargaining.

Plea bargaining may be defined as an agreement in a criminal case between the prosecution

and the defence by which the accused changes his plea from not guilty to guilty in return for

an offer by the prosecution or when the judge has informally made the accused aware that his

sentence will be minimized, if the accused pleads guilty.14In other words, it is an instrument

of criminal procedure which reduces enforcement costs (for both parties) and allows the

prosecutor to concentrate on more meritorious cases.15 The concept of plea bargaining

prevails in England, Canada, and most of the other nations of the British Commonwealth.

Earlier Germany was referred to as “the land without plea bargaining”. Subsequently, due to

time-taking trials and increasing white-collar crimes in Germany, the system of plea

bargaining was instituted by statute.16 In United States of America, plea bargaining has a vital

role to play. White J, in a US case of Brady v. Unites States17 observed the validity of plea

bargaining and upheld its validity. In India, keeping in mind that the pendencies of criminal

cases have gone through the roofs, the Law Commission of India in its 142nd report suggested

reform, which included implementation of plea bargaining in India.18 Further, to reduce the

delay in disposing criminal cases, the 154th Report of the Law Commission19 recommended

the introduction of ‘plea bargaining’ as an alternative method to deal with huge arrears of

criminal cases, which found a support in Malimath Committee Report.20 To give effect to the

recommendations, the draft Criminal Law (Amendment) Bill, 2003 was introduced in the

14 Sidhartha Mohapatra and Hailshree Saksena, Plea Bargaining: A unique remedy, INDLAW NEWS.COM, http://www.indlawnews.com/display.aspx?476215 Id.16 K.P. Pradeep, Plea Bargaining- New Horizon in Criminal Jurisprudence, available at http://kja.nic.in/ article/ PLEA%20BARGAINING.pdf.17 397 U. S. 742 (1970), also available at JUSTIA: US SUPREME COURT CENTRE http://supreme. justia.co m /us/397/742/case.html 18 LAW COMMISSION OF INDIA REPORTS (101–169), http://lawcommissionofindia.nic.in/101-169/index101-169.htm 19 Report of the Law Commission, India on the “Code of Criminal Procedure, 1973”20 Report of Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, March 2003

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parliament. Despite a very huge hue and cry against the amendment, the amendment was

accepted and with the effect of same, Chapter XXIA was added in the Code of Criminal

Procedure, 1973. The said chapter contains Sections 265 A to 265L, which deal with plea

bargaining.

2. Criminal ADR Programs

As far as the development of Criminal ADR procedures is concerned, it took birth from

earlier “informal justice” programs.21 There are various criminal ADR programmes that are

running throughout the globe. Some of these are as follows:

Victim-Offender Mediation Programs (VOM). Also referred to as victim-offender

reconciliation programs (VORP) or victim reparation programs, in most cases, its

purpose is to promote direct communication between victim and offender. Victims who

participate are provided with an opportunity to ask questions, address the emotional

trauma caused by the crime and its aftermath, and seek reparations.22

Community Dispute Resolution Programmes (CDRP). CDRP seek to dispose of minor

conflicts that have not been disposed off and are clogging criminal dockets.

Victim-offender Panels (VOP). VOP developed as a result of the rise of the victims’ rights

movement in the last two decades and in particular to the campaign against drunk driving.

They often used to provide the convicted drunk drivers with a chance to appreciate human

cost of drunk driving on victims and survivors. It also intends to decrease the likelihood

of repeat offenses.23

Victim Assistance Programs24. VOCA established the Crime Victim’s Fund, which is

supported by all fines that are collected from persons who have been convicted of

offenses against the United States, except for fines that are collected through certain

environmental statues and other fines that are specifically designated for certain accounts,

such as the Postal Service Fund.

21 Melissa Lewis & Les McCrimmon, The Role of ADR Processes in the Criminal Justice System: A View from Australia, available at http://www.doj.gov.za/alraesa/conferences/papers/ent_s3_mccrimmon.pdf. 22 John R. Gehm “Victim-Offender Mediation Programs: An Exploration of Practice and Theoretical Frameworks”, Western Criminology Review 1 (1). [Online]. Available: http://wcr.sonoma.edu/v1n1/gehm.html.]23 RESTORATIVE JUSTICE ONLINE: Victim Offender Panels, http://www.restorativejustice.or g/university-classroom /01introduction/tutorial-introduction-to-restorative-justice/processes/panels 24 OVC: OVC Links to Victim Assistance & Compensation Programs, http://www.ojp.usdoj .gov/ovc/help /links.htm

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Community Crime Prevention Programs25. The community crime prevention has included

a plethora of activities, including media anti-drug campaigns, silent observer programs,

and neighbourhood dispute resolution programs.

Private Complaint Mediation Service (PCMS). It provides the mediation as an alternative

to the formal judicial process of handling criminal misdemeanour disputes between

private citizens. PCMS gets its authority from Administrative Rule 9.02 of the Hamilton

County Municipal Court26.

Apart from the above programmes, there are also available the mechanism of sentencing

circles, ex-offender assistance, community service, school programs, and specialist courts.

These programmes point towards a gradual shift from deterrence to reparation, as a mode of

criminal justice in some nations. In a nutshell, they show the application of restorative justice.

Some criminal ADR programmes like Victim-Offender Mediation Programs have been

successfully mediating to bring justice between crime victims and offenders for over twenty

years. There are now over 300 such programs in the U.S. and Canada and about 500 in

England, Germany, Scandinavia, Eastern Europe, Australia and New Zealand27.

3. Lok Adalats and Panchayats

An important measure taken by the Government to reduce the backlog of cases and burden on

the judiciary28 was the introduction of the ingenious concept ‘Lok Adalats’ (People’s Courts)

under The Legal Services Authorities Act, 198729 to solve disputes by compromise and

conciliation. These Lok Adalats are not akin to regularly constituted courts but they

supplement the existing justice administration system. They provide adequate and effective

means of disputes resolution at reasonable costs. Special status has been assigned to the Lok

Adalat under the Legal Services Authorities Act which provides statutory base to such Lok

25 Prevention: Community Programs – The History Of Community Crime Prevention, Chicago Areas Project, Political Mobilization, Evaluations Of Community Crime Prevention Programs, http://law.jrank.org/pages/1739/ Prevention-Community-Programs.html#ixzz0kxrprMHD26 MEDIATION OF CRIMINAL MISDEMEANOR DISPUTES, http://www.hamilton-co.org/Municipal Court/ mediation/mediation_of_criminal.htm 27 Marty Price, Crime and Punishment: Can Mediation Produce Restorative Justice for Victims and Offenders? VORP, available at http://www.vorp.com/articles/crime.html.28 Special Address by Dr.S.Muralidhar, Part-time Member, Law Commission of India in the International Conference on ADR, Conciliation, Mediation and Case Management, May 3-4, 2003. 29 The provisions relating to Lok Adalat are contained in sections 19 to 22 of the Legal Services Authorities Act, 1987.Section 22B of the Legal Services Authorities Act, 1987, as amended in 2002, enables establishment of permanent Lok Adalats and its sub-section (1) reads as follows:“Notwithstanding anything contained in section 19, the Central Authority or, as the case may be, every State Authority shall, by notification, establish Permanent Lok Adalats at such places and for exercising such jurisdiction in respect of one or more public utility services and for such areas as may be specified in the notification.”

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Adalat, which are regularly organized primarily by the State Legal Aid and Advice Boards

with the help of District Legal Aid and Advice Committees.30 Some of the Lok Adalats are

being sponsored by the various voluntary legal aid agencies. The whole emphasis in the Lok

Adalat proceedings is on conciliation rather than adjudication. They endeavor to arrive at a

compromise and settlement between the parties using the principles of justice, equity and fair

play. Lok Adalats have the power to look into any criminal, civil or revenue dispute when the

parties mutually agree to do so.

In a case where no compromise or settlement can be arrived at, it is open to the parties to the

proceeding, to request for transfer of their proceedings before the courts at a later stage from

which it was transferred. Every award of the Lok Adalat is a civil decree and every award

made by the Lok Adalat is deemed to be final and binding on all parties to the proceedings or

disputes. No appeal lies to any court against such an award.31

Panchayati Raj or self-governance at the village level is another revolutionary process in our

democratic governance. Along with powers of administration, system of self-government

dispute resolution can also be delegated to these institutes. If the object of judicial reform is

fair, quick and inexpensive justice to the common people, there can be no better way to

pursue the objective than to invoke participatory systems at the grass-root level for simpler

disputes so that judicial time at higher levels is sought only for hard and complex litigation.

According to Law Commission recommendation a very simple procedure envisaging quick

decision, informed by justice, equity and good conscience.32 In respect of jurisdiction, the

Commission preferred criminal jurisdiction covering boundary disputes, tenancies, irrigation

disputes, minor property disputes, family disputes, wage disputes irrespective of pecuniary

value of the dispute.

The establishment of such Lok Adalats and Panchayats is undoubtedly an important step in

encouraging people to settle disputes through conciliation. However the Lok Adalat system

has main drawbacks for criminal cases: Firstly, the requirement of consensus of the parties to

approach Lok Adalats or the requirement of the permission of the Court to approach Lok

30 “The Delhi Legal Services Authority has set up 9 permanent Lok Adalats in Government bodies/departments and 7 MACT permanent Lok Adalats have been functioning regularly in Delhi. Similarly, permanent Lok Adalats have also been set up in some other States. But, there is a need to establish more permanent Lok Adalats throughout the country” via http://dlsa.nic.in/lokadalat.html, visited 23.02.201431 P. T. Thomas v. Thomas Job, (2005) 6 SCC 47832 In Sitanna v. Marivada Viranna AIR 1934 PC 105 the Privy Council affirmed the decision of the Panchayat in a family dispute.

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Adalats on request by any party.  Secondly, Lok Adalats are only organised at intervals and

places as deemed fit by the State Government or District Authorities. Hence it may be

difficult for people to get speedy justice and more often than not, people are likely to face

delays. And lastly, Lok Adalats do not have actual punitive powers but can only endeavour to

work for a settlement or compromise or award compensation. If it is not possible to have a

settlement or compromise, the parties are allowed to resume proceedings in the

court. Panchayats are already known to settle disputes informally and unofficially, often

imposing ‘inhuman’ self-styled punishments.

ADR mechanisms like Lok Adalats and Panchayats will not get the expected response till

they make a gradual but conscious effort to offering positive reasons for litigants to be

willing consumers of the ADR processes. Lok Adalats face the challenge of becoming easily

accessible and approachable. Officially delegating authority to panchayats and municipalities

to arbitrate trivial disputes will not only reduce the burden of the judiciary but also allow

people to get ‘instant’ justice. It would also be important to evolve statutory provisions to

‘mandate’ arbitration in less important matters of low pecuniary limit. Also important is the

requirement of provisions to give punitive powers to these local self-government bodies. 

The Nyaya Panchayats Bill, 2009 if passed will be the most important and effective method

of delivering speedy justice as most of the provisions envisioned are similar to the

recommendations in this article. However, implementation and passage of the bill may prove

to be difficult.

ADVANTAGES OF ADR

1. The benefits or advantages33 that can be accomplished by the ADR system are summed

up here briefly: Reliable information is an indispensable tool for adjudicator. Judicial

proceedings make halting progress because of reluctance of parties to part with

inconvenient information. ADR moves this drawback in the judicial system. The truth

could be difficulty found out by making a person stand in the witness-box and he pilloried

33 In 1990, the Malimath Committee comprising of Hon’ble Mr. Justice V.S. Malimath, the two other members being Hon’ble Mr. Justice P.D. Desai and Hon’ble Dr. Justice A.S.Anand discussed the problem of the Indian Judicial System. The Committee which is also known as the Arrears committee, undertook a comprehensive review of the working of the court system, particularly all aspects of arrears and Law’s delay and made various useful recommendations for reducing litigation and making justice readily accessible to the people at the minimum cost, time and money. It underlined the need for alternative dispute resolution mechanism such as mediation, conciliation, arbitration, Lok Adalats etc. as a viable alternative to the conventional court litigation.

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in the public gaze. Information can be gathered more efficiently by an informal exchange

across the table. Therefore, ADR is a step towards success where judicial system has

failed in eliciting facts efficiently.

2. In Mediation or Conciliation, parties are themselves prodded to take a decision, since

they are themselves decision-makers and they are aware of the truth of their position, the

obstacle does not exist. In addition, Mediation has been adopted in various countries as a

means to resolve the criminal disputes. To be specific, mediation has been consistently

applied in juvenile justice programmes. As an example, Romania has been applying

mediation to the field of Criminal Law. Articles 67-70 in the Law 192/2006 of Romania

lay down provisions regarding mediation in the criminal cases34. In countries like Canada,

England, Finland, and even in the United States, the system of mediation is being used to

resolve the juvenile offences35.Though, the mediation of severely violent crimes is not

usual, in a chunk of victim-offender programs, victims and survivors of severely violent

crimes, including murders and sexual assaults, are finding that confronting their offender

in a safe and controlled setting, with the assistance of a mediator, returns their stolen

sense of safety and control in their lives36. The emphasis is upon healing and closure. But

in cases of severely violent crimes, victim-offender mediation cannot replace punishment.

3. The formality involved in the ADR is lesser than traditional judicial process and costs

incurred are very low in ADR.

4. There is finality of the result, cost involved is less, the time required to be spent is less,

and the mechanism is more efficient as there is a possibility of avoiding disruption.

5. Improve Attorney-client relationship.37

6. ADR supports Court reform 38and ensure justice for disadvantaged group.

7. In rural areas, the court is a taboo for women, ADR process ensure privacy. That means it

is a confidential process.39

8. ADR is a consensual process to enhance social harmony and there is lesser scope for bias

or corruption.

34 Zeno Daniel Sustac, Mediation in the Criminal Law, MEDIATE.COM, http://www.media te.com/article s/sus tacZ3.cfm35 Peggy L. Chown, J.D. and John H. Parham, Can We Talk? Mediation In Juvenile Criminal Cases, http://www.lectlaw.com/files/cjs08.htm36 Marty Price, Crime and Punishment: Can Mediation Produce Restorative Justice for Victims and Offenders? VORP,available at http://www.vorp.com/articles/crime.html37 Id38 Id39 A. Chowdhury Dr. Jamila, ADR Theories and Practices, London College of Legal Studies (South), First edition, 2013, p.54.

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DISADVANTAGES OF ADR

There have been several criticisms against the applicability of ADR in criminal disputes,

which render ADR techniques unlikely to succeed.

1. Extreme power imbalance between the parties: The victim-offender mediation is

considered to be highly emotionally charged. Further, the offender may feel to be under

pressure to reach an agreement, rather than genuinely seeking to repair the harm done.

2. Privatizing the public harm: With the growth of the ADR movement, Owen Fiss in his

seminal article Against Settlement argued that ADR advocates naively painted settlement

as a “perfect substitute for judgment” by trivializing the remedial role of lawsuits and

privatizing disputes at the cost of public justice40.

3. Undermining judicial reforms efforts41

4. There may be lack of legal expertise and since, there is no set system of arriving at a

verdict, the decisions maybe arbitrary.

5. Other criticisms include that ADR is an appropriate remedy, where the parties have an

on-going relationship (which provides a significant motivation to achieve reconciliation).

But this is not usually the case with victim-offender mediations.

IMPLEMENTATION OF ADR IN CRIMINAL JUSTICE SYSTEM

The factors that ail the formal legal system if not adequately addressed in the proposed

alternative system may hinder the move for transformation. This assumes particular

significance in the context of suggestions that the ADR, mediation or conciliation processes

should be court-annexed and institutionalised.42 It has been suggested43 that the institutional

framework must be brought about at three stages. The first stage is to bring awareness, the

second acceptance and the third implementation.

Awareness: In view of spreading awareness holding seminars, workshops, etc. would be

imperative. An ADR literacy programme has to be done for mass awareness. Awareness

40  Grace, Maggie T., Criminal Alternative Dispute Resolution, Restoring Justice, Respecting Responsibility, and Renewing Public Norms. Available at  http://digitalcommons.law.umaryland.e du/cgi/viewcontent.cgi? article = 1017&context=student_pubs41 S.C. Dr. Tripathi, Alternative Dispute Resolution System (ADR), Central Law Publications, Allahabad, First edition, 2012, p.09. 42 LAW COMMISSION OF INDIA, Report No. 222, Need for Justice-dispensation through ADR etc., Govt. of India, April 2009. In addition, SC in Union of India v. M/S. Singh Builders Syndicate, 2009 (4) SCALE 491 has suggested that ADR processes be institutionalised.43 Judicial Reforms in Justice Delivery System, (2004) 4 SCC(Jour) 35. In an address titled “ADR and Access to Justice: Issues and Perspectives” by Hon’ble Madras HC Justice S.B.Sinha

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camp should be initiated to change the mindset of all concerned disputants, the lawyers and

judges.

Acceptance: In this regard extensive training should be imparted to those who intend to act

as a facilitator, mediators, and conciliators. Imparting of training should be made a part of

continuing education on different facets of ADR so that judicial officers and judges are well-

versed with the functioning of ADR mechanisms.

Implementation: For this purpose, judicial officers must be trained to identify cases which

would be suitable for taking recourse to a particular form of ADR. In the decision of House

of Lords in Dunnett V. Railtrack ill (In railway administration, [2002]2 All ER 850, the Court

had noticed that: “the encouragement and facilitating of ADR by the court in an aspect of

active case management which in turn is an aspect of achieving the overriding objective. The

parties have a duty to help the court in furthering that objective and therefore, they have a

duty to consider seriously the possibility of ADR procedures being utilized for the purpose of

resolving their claim or particular issues within it when encouraged by the court to do so.”

In this situation for implementation of ADR in criminal cases the following measures are

required the most:

• Mandatory reference to ADRs: To introduce this system in Criminal Justice System it is

suggested that like the Code of Civil Procedure, Code of Criminal Procedure should also be

amended. ADR can be introduced in Code of Criminal Procedure by enlarging the scope of

required sections and inserting a new section and empower the Criminal courts to dispose of

criminal cases through ADR.

• Case management by Judges- Case management includes identifying the issues in the case;

summarily disposing of some issues and deciding in which order other issues to be resolved;

fixing timetables for the parties to take particular steps in the case; and limiting disclosure

and expert evidence.

• Committed teams of Judges and Lawyers: The mindset of the members of the Bar is also

to be changed accordingly otherwise it would be difficult it is difficult to implement ADR.

The myth that ADR was alternative decline in Revenue or Alternative Drop in Revenue is

now being debunked by them realizing that as more and more matters get resolved their work

would increase and not decrease. Also, unless the mindset of the judges is changed, there will

be no motivation for the lawyers to go to any of the ADR methods.

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• Governmental support and implementation in setting up ADR institutes at every level from

district to national level.

• Support by Litigants: Few parties are usually interested in delay and not hesitate in taking a

stand so as to take the benefit of the delay. Parties have to realize that at the end, litigation in

court may prove very costly to them in terms of both cost and consequence.

VICTIM OFFENDER MEDIATION

Victim offender mediation is a process that provides interested victims an opportunity to

meet their offender, in a safe and structured setting, and engage in a mediated discussion of

the crime. With the assistance of a trained mediator, the victim is able to tell the offender

about the crime's physical, emotional, and financial impact; to receive answers to lingering

questions about the crime and the offender; and to be directly involved in developing a

restitution plan for the offender to pay back his or her financial debt.

This process is different from mediation as it is practiced in civil or commercial disputes,

since the involved parties are not "disputants" nor of similar status - with one an admitted

offender and the other the victim. Also, the process is not primarily focused upon reaching a

settlement, although most sessions do, in fact, result in a signed restitution agreement.

Because of these fundamental differences with standard mediation practices, some programs

call the process a victim offender "dialogue," "meeting," or "conference."

Currently, there are more than 290 victim offender mediation programs in the United States

and more than 500 in Europe. The American Bar Association recently endorsed victim

offender mediation and recommends its use throughout the country. A recent statewide

survey of victim service providers in Minnesota found that 91 percent of those surveyed

believe that victim offender mediation should be available in every judicial district, since it

represents an important victim service.

Goals

The goals of victim offender mediation include:

Support the healing process of victims, by providing a safe and controlled setting for them to

meet and speak with the offender on a strictly voluntary basis.

Allow the offender to learn about the impact of the crime on the victim and to take direct

responsibility for their behavior.

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Provide an opportunity for the victim and offender to develop a mutually acceptable plan that

addresses the harm caused by the crime.

Implementation

Cases may be referred to victim offender mediation programs by judges, probation officers,

victim advocates, prosecutors, defense attorneys, and police. In some programs, cases are

primarily referred as a diversion from prosecution, assuming any agreement reached during

the mediation session is successfully completed. In other programs, cases are usually referred

after a formal admission of guilt has been accepted by the court, with mediation being a

condition of probation (if the victim has volunteered to participate). Some programs receive

case referrals at both stages. The majority of mediation sessions involve juvenile offenders,

although the process is occasionally used with adults and even in very serious violent cases

In implementing any victim offender mediation program, it is critically important to maintain

sensitivity to the needs of the victim. First and foremost, the mediator must do everything

possible to ensure that the victim will not be harmed in any way. Additionally, the victim's

participation must be completely voluntary, as should the participation of the offender. The

victim should also be given choices, whenever possible, concerning decisions such as when

and where the mediation session will take place, who will be present, who will speak first,

etc. Cases should be carefully screened regarding the readiness of both victim and offender to

participate. The mediator should conduct in person, pre-mediation sessions with both parties

and make follow-up contacts, including the monitoring of any agreement reached.

Lessons Learned

A large multi-site study (Umbreit, 1994) of victim offender mediation programs with juvenile

offenders found the following:

3,142 cases were referred to the four study-site programs during a two-year period, with 95

percent of the mediation sessions resulting in a successfully negotiated restitution agreement

to restore the victim's financial losses.

Victims who met with their offender in the presence of a trained mediator were more likely to

be satisfied (79 percent) with the justice system than similar victims who went through the

normal court process (57 percent).

After meeting the offender, victims were significantly less fearful of being revictimized.

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Offenders who met with their victims were far more likely to successfully complete their

restitution obligation (81 percent) than similar offenders who did not participate in mediation

(58 percent).

Fewer offenders who participated in victim offender mediation recidivated (18 percent) than

similar offenders who did not participate in mediation (27 percent); furthermore, participating

offenders' subsequent crimes tended to be less serious.

COMPOUNDABLE OFFENCES UNDER 320 AND 498(A) OF CRPC

Legal provisions regarding compounding of offences under section 320 of the Code of

Criminal Procedure, 1973.

A composition is an arrangement whereby there is settlement of the differences between the

injured party and the person against whom the complaint is made. It is not necessary that the

composition should be in writing. It may be oral.

If both the parties agree that there has been compromise, then the Court has to dispose of the

case in terms of that compromise and the petitioner is to be acquitted. If, on the other hand,

parties differ, then the Court has to call upon them to lead evidence and then record a finding

on such evidence.The offences that may lawfully be compounded are those that are

mentioned in Section 320 of the Code of Criminal Procedure. The offences other than those

mentioned cannot be compounded. The offences punishable laws other than the Penal Code

are not compoundable. Only the person named in the third column of Section 320 can legally

compound an offence under Section 320. Any person may set the criminal law in motion, but

it is only the person specified in the third column who can compound the offence. A case may

be compared at any time before sentence is pronounced even whilst the Magistrate is writing

the judgment.

The compounding of an offence signifies that the person against whom the offence has been

committed has received some gratification, not necessarily of a pecuniary character, to act as

an inducement for his desiring to abstain from a prosecution and Section 320 provides that if

the offence be compoundable, composition shall have the effect of an acquittal.

The object of Section 320 of the Code is to promote friendliness between the parties so that

peace between them is restored. Even compounding has been permitted during the hearing of

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Appeal and revision in High Court or Supreme Court, but if the accused is previous convict

and he is liable to enhanced or different kinds of punishment from the ordinary punishment

then compounding is not permitted.

Under 498(A) earlier what used to happen that if a person files a case for domestic violence

and seeks divorce, the divorce was granted easily but with the change in the mind-set of the

society, new ways of solving this kind of family dispute is becoming prevalent these days.

This amendment stops the police from making arbitrary arrests. The very fact that reasons

shall have to be recorded in writing fixes responsibility and makes the Police Officer

accountable for justifying the arrest. Recording an arbitrary reason would be difficult, since it

would need to be substantiated and will also be open to judicial scrutiny. 

The amendment lays considerable stress on the importance of investigation before an arrest

is made or not made. This further means that the officer must be convinced about the

bonafides of the case. A mere complaint would not be enough to exercise the power of arrest.

Insertion of Section 41A, pertaining to issue of Notice of Appearance, is in line with the

Right to Life and Liberty of Indian citizens. It would also help bring down the number of

arrests, which in turn would decongest the crowded Indian jails. Simultaneously, the

innocents too can feel secure in case they stand a chance of exposure to implication in false

cases.

CASE LAWS

Shiji Pappu & Ors vs Radhika & Anr on AIR, 2011 SCC 645 44

FACTS – when the husband and brother of the complainant were parking the car, 2 people

came and snatched her purse and gold chain from her.after few wekk they were caught due to

the evidence from cctv footage.

HELD- The matter was referred to criminal court and the court held that during the pendency

of the criminal proceedings aforementioned, the parties appear to have amicably settled the

matter among them.

44 AIR 2011 SCC 645

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K. Srinivas Rao vs D.A. Deepa AIR, 2013 SCC 532 45

FACTS – The complainant (wife) filed a divorce petition because of several dispute between

them and the main reason for dispute was that the husband use to snore whenever he was

sleeping, so frustrated by this his wife filed a suit.

HELD – It was held by the court that they should be given a time period of 6 months for

resolving their dispute through a arbitrator by the way of compromise.

CONCLUSION

As has been established through the paper, despite the challenges that face the ADR

processes today, the benefits in the long run that they are capable of generating appear to

outweigh the factors that may in the short run deter their enforcement. The diverse nature of 45 AIR 2013 SCC 532

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the country’s population defies any uniform approach or set pattern and this is perhaps the

biggest strength of the ADR mechanisms. Their flexibility and informality, the scope they

offer for innovation and creativity, hold out the promise of a great degree of acceptability

lending them the required legitimacy. Their utility as a case management tool cannot be

overemphasised. ADR processes provide the bypasses to handle large chunks of disputes thus

leaving the formal legal system to handle the more complex litigation. It is baseless to give in

to the scepticism that ADR mechanisms would lead to falling out of the formal criminal legal

system. 46

However, it must be kept in mind that a successful implementation of ADR processes will

have to be preceded by an identification of categories of cases or specific dispute areas that

are most amenable to their introduction. This system has already been introduced in Civil

Litigation System. To introduce this system in Criminal Justice System it is suggested that

like the Code of Civil Procedure, Code of Criminal Procedure should also be amended. ADR

can be introduced in Code of Criminal Procedure by enlarging the scope of required sections

and inserting a new section and empower the Criminal courts to dispose of criminal cases

through ADR.

To conclude, even while they do not offer to be a panacea for all the ills of the formal legal

system, ADR processes offer the best hope yet of complementing and helping to fortify the

formal legal criminal system.

BIBLIOGRAPHY

Books Referred

Dr. SC Tripathi, Alternative Dispute Resolution, 2nd ed., Central Law Publications

46 Hernando de Soto, The Other Path, Harper & Row (1989). This seminal work could form a model for initiating a study of the working of the criminal justice system. This might reveal the actual costs involved in several stages of the system. Since the legitimacy of the ADR mechanism is premised on parties consenting to the process, the costs of engaging with either the parallel system or benefiting from the ills of the formal system have to be raised considerably high to drive the parties to consent to the ADR processes.

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S.R. Dr. Myneni, Alternative Dispute Resolution, 2nd ed., Asia Law House,

Hyderabad, 2012

Samad Md. Atickus, A Text Book on ADR & Legal Aid, 1 st ed., National Law

Publications, 2013

Articles and Committee Reports Referred

Judicial Reforms in Justice Delivery System, (2004) 4 SCC(Jour) 35

Law Commission of India, Report No. 222, Need for Justice-dispensation through

ADR etc., Govt. of India, April 2009.

Report of the Expert Committee on Legal Aid: Procedural Justice to the People,

Government of India, Ministry of Law, Justice and Company Affairs (1973)

Special Address by Dr.S.Muralidhar, Part-time Member, Law Commission of India in

the International Conference on ADR, Conciliation, Mediation and Case

Management, May 3-4, 2003

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