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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)

ACKNOWLEDGEMENT
0

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

ABSTRACT
1

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 lastmore 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.

TABLE OF CONTENTS
2

Objectives

Significance and scope of the study

Review of the literature

Research methodology

Hypothesis

Introduction

Definition of ADR

Characteristics of ADR

Nature of Criminal Justice System in India

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

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.

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 lastmore 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.
5

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.
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.
6

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
disputes. The emphasis in the ADR, which is informal and flexible, is on helping the parties
to help themselves5.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.
2.
3.
4.
5.
6.
7.

ADR operates without formal representation.


ADR program applied the doctrine of Equity.6
ADR system includes more direct participation by the disputants in the process.7
Gives opportunity for communication between the disputants.
Neutral case evaluation system.
ADR includes early neutral evaluation.
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
5 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
7

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 INDIA


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
8

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.

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

8 Section 6, CRPC, 1973


9

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
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 staff 10, 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

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.
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.
10

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;
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.
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.
14 Sidhartha Mohapatra and Hailshree Saksena, Plea Bargaining: A unique remedy, INDLAW
NEWS.COM, http://www.indlawnews.com/display.aspx?4762
11

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 142 nd 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 Commission 19 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
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

15 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 (101169), http://lawcommissionofindia.nic.in/101169/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
12

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 Victims 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.


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.

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
13

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 (Peoples 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
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#ixzz0kxrprMHD
26 MEDIATION OF CRIMINAL MISDEMEANOR DISPUTES, http://www.hamiltonco.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.
14

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
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
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 23.02.2014
31 P. T. Thomas v. Thomas Job, (2005) 6 SCC 478
32 In Sitanna v. Marivada Viranna AIR 1934 PC 105 the Privy Council affirmed the decision of the
Panchayat in a family dispute.
15

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
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

16

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
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
2.

failed in eliciting facts efficiently.


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

33 In 1990, the Malimath Committee comprising of Honble Mr. Justice V.S. Malimath, the two other members
being Honble Mr. Justice P.D. Desai and Honble 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 Laws 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.

34 Zeno Daniel Sustac, Mediation in the Criminal Law, MEDIATE.COM, http://www.media


te.com/article s/sus tacZ3.cfm
35 Peggy L. Chown, J.D. and John H. Parham, Can We Talk? Mediation In Juvenile Criminal Cases,
http://www.lectlaw.com/files/cjs08.htm
17

sense of safety and control in their lives 36. 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.

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

36 Marty Price, Crime and Punishment: Can Mediation Produce Restorative Justice for Victims and
Offenders? VORP,available at http://www.vorp.com/articles/crime.html
37 Id
38 Id
39 A. Chowdhury Dr. Jamila, ADR Theories and Practices, London College of Legal Studies (South),
First edition, 2013, p.54.
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_pubs
18

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 ongoing 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 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 wellversed 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
41 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 Honble Madras HC Justice S.B.Sinha
19

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.
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.
20

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.
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

21

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.
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.

22

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
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.
23

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 64544
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.
K. Srinivas Rao vs D.A. Deepa AIR, 2013 SCC 53245
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.

44 AIR 2011 SCC 645


45 AIR 2013 SCC 532
24

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 the countrys
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
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.

25

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
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.

26

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

27