By Mohammed Bengali and Nikunj Rana
While the prime objective of the judiciary is to safeguard the rights and duties of the citizens and deliver unbiased justice, the ever increasing population and the unprecedented rise in conflicts and crime has disabled them to perform up to their optimum level. The criminal judicial systems of the world have come up to a point where they have extinguished most of their resources but are still unable to cope with pressure of the daily conflicts.
The continuous development of mankind is certainly going to escalate the complexities and pressure on the courts. With no change in the current judicial scenario till date, it is high time that assistance be provided to the criminal courts in order to relieve them of the burden and enable them to function in a way that serves the purpose of their existence. In the present times the need of the hour requires a quick and efficient means of resolving conflicts.
Alternate Dispute Resolution would fit the bill as it has proven to be a success and tremendously helped in relieving the pressure off the civil courts. Nolo’s Law Dictionary defines ADR as “A catchall term that describes a variety of methods that parties can use to resolve disputes outside of court, including Negotiation , Conciliation , Mediation , Collaborative Practice , and the many types of Arbitration.
The common denominator of all ADR methods is that they are faster, less formalistic, less expensive, and often less adversarial than a court trial. ADR’s roots can be traced back to the 1800 B.C when The Mari Kingdom (modemn day Syria) used arbitration to settle its conflicts with other kingdoms. However the first instance of ADR in India was witnessed in the 322 B.C during the period of Chandragupta Maurya’s rule under the Mauryan dynasty.
The cases were registered and witnesses were produced and the decisions were taken by a body of arbitrators whose decisions were appealable to the King. With time, similar dispute resolution methodologies were seen in the Mughal and the Marathas era. ADR then picked up pace with the advent of the East India Co.
ALTERNATIVE DISPUTE RESOLUTION IN THE CRIMINAL JUSTICE SYSTEM
advent of the East India Co. The Britishers took several steps to codify arbitration. The modern arbitration law in India was created by the Bengal Regulations. The acts of 1772 and 1781 required parties to submit their disputes to an arbitrator who was appointed mutually and had the final verdict. The first substantial law of arbitration was passed in 1899 and came to be called The Indian Arbitration Act, 1899. It took its origin from the English Arbitration Act, 1889.
Nevertheless, this Act faced severe criticisms and was replaced by The Arbitration Act of 1940. Subsequently, the post-Independence period saw the emergence of Panchayats wherein a group of elders and influential persons in a village, decided the disputes between villagers. The growing popularity of Panchayats helped people realize that out of court settlements were a more efficient and inexpensive way of settling disputes, this led to the augmentation of Lok Adalats in the year 1982.
Initially, Lok Adalats functioned merely as a voluntary and conciliatory agency without any statutory backing. This status was changed after enactment of the Legal Services Authorities Act, 1987. And as a final point, The Arbitration Act of 1940 was replaced by the Arbitration and Conciliation Act, 1996 and this has been used till date. ADR in civil justice system has shown immense success but lately there has been a debate regarding implementation of ADR in the criminal aspect of justice.
Application of ADR in criminal justice system gets its basis from the reformative theory of punishment which was supported by many famous political thinkers, such as, Jeremy Bentham, Hart and Ewing. According to this concept, the aim of criminal procedure should be to reform the criminal so that they may be able to ol comfortably integrate themselves back into the society, but most of the criminal law systems in the world are retribution-oriented and they ignore the needs of the victims and the society.
It is a vehicle through which individuals are made law-abiding citizens naturally instead of a response to a forceful threat. Its form include negotiation, mediation, collaborative law, and arbitration. Sometimes, conciliation is also included but most of the times it can be regarded as a form of mediation.
Different countries have opted for different forms of settlements
.The American and European countries have had an inclination towards Victim-Offender Mediation programs. Whereas, Australia and New Zealand have taken the Family Group Conferencing approach. Victim-Offender Mediation was first used in Ontario, Canada. It is somewhat different from the traditional mediation process as it involves an innocent victim and the admission of guilt by the offender. While in a traditional mediation, it is assumed that both the parties have in some way contributed to the conflict.
In spite of critics having raised questions, it has risen to the occasion manifesting completion of 80 to 90% of the restitutionary contracts.
Another approach is the Family Group Conferencing
which was initiated in New Zealand in the year 1989. FGC involves the community of people most affected by the crime—the victim and the offender and the family, friends, and key supporters of both—in deciding the resolution of a felonious act. The offender must admit to the offence to participate. The parties affected are brought together by a trained facilitator to discuss how they have been harmed by the offence and how that harm might be repaired.
Another important process of ADR is Plea Bargaining
which refers to pre-trial negotiations between the defendant and the prosecution, during which the defendant agrees to plead guilty in exchange for certain pre-decided concessions by the prosecutor. Plea bargaining may give rise to a situation wherein the prosecutor promises to reduce or dismiss some of the charges brought against the defendant or, he may recommend a specific sentence or refrain from making any recommendation in exchange for a guilty plea.
The Law Commission of India in its 142″ report suggested implementing Plea bargaining in India. Apart from the above-mentioned methods of ADR there are a couple of others as well: Community Dispute Resolution Programmes, Victim Offender Panels (VOP), Victim Assistance Programmes, Community Crime Prevention Programmes, Private Complaint Mediation Service and Circle sentencing.
Countries have now started taking steps towards institutionalising these forms of settlements
in their respective criminal justice systems, USA being the front runner. The arrival of ADR in the US was marked in the 1970s, in the form of a legal movement to address increased delay and expense in litigation arising from an overburdened court system.
Ever since, there has been concrete institutionalization of ADR with the support of the American Bar Association, academics, courts, the U.S. Congress and state governments.
The most prevalent form of out of court settiement in the US is VOM. In Henderson County, North Carolina, trials were reduced by two-thirds as a result of the implementation of victim-offender mediation. Even in the European continent VOM is one of the most pervasive forms of restorative justice. It has been codified in a majority of European countries as a new approach towards criminal justice.
On July 24, 2002, the UN Economic and Social Council adopted a resolution encouraging countries to use Basic Principles on the Use of Restorative Justice programmes in Criminal Matters in developing and implementing restorative justice in their countries. Countries leading in VOM in the European continent include Ukraine and Poland. In 2003, laws and regulations of Poland were modified to make more cases eligible for victim-offender mediation.
The parties are required to meet in person and cannot resort to indirect or shuttle mediation. In Bangladesh, implementation of ADR in the criminal justice system has only begun to capture attention. It is felt that enhancing the scope of compoundable offences under section 345 of the Code of Criminal Procedure of Bangladesh, would pave the way for influence of ADR on the criminal framework. Compounding means compromise that the parties enter into, as an alternative for turning towards the court.
This ensures that the parties don’t have to undergo the cumbersome litigation process and the attached costs. Australia developed the restorative justice processes under the influence of the conferencing model of New Zealand. By 2007, all Australian states and territories had legislated the use of restorative justice within their criminal justice systems. World-wide organisations such as, the United Nations and The Asia Foundation (TAF) have also been noted to be in support of ADR.
The UN uses the restorative justice scheme in dealing with human rights violations, cases of genocide, and war crimes. TAF works are primarily minor civil disputes and sometimes petty criminal cases. To add on, TAF has undertaken various projects for the incorporation of the concept of ADR in countries, example, Nepal. 87% of the cases were resolved, with 96% of disputants expressing satisfaction. Other countries that have benefited with the aid of TAF include Philippines, Indonesia and Bangladesh.
As it can be inferred from the above examples ADR proved its mettle not only in settling the civil litigation matters, but has also silenced its critics when it comes to its application in the criminal justice system of countries. As seen earlier ADR programmes like VOM (Victim-Offender Mediation) and FGC (Family Group Conferencing) have very efficiently settled majority of matters referred to them, leaving parties satisfied.
The question is whether ADR can or should be used as a full-fledged system of settling disputes? By doing so, we would be creating a parallel system to the traditional courts which could lead to further complications. If at all it is implemented, it is strongly recommended that we use these dispute resolutions mechanisms in less serious offences like those of theft, misappropriation of trust or property etc. and leave the rest to the traditional courts.
Reason being that the graver offences shouldn’t be dealt with in an individualistic manner, as they are not offences only against a solitary person but against the state as a whole; and also the decisions passed by the courts have a two-pronged approach of educating citizens and deterring potential criminals. For example, what if a very recent and tragic incident, The Nirbhaya Rape Case; happened behind closed doors with the public having no idea of how or why the decision was passed against the offenders?
On what basis would the citizens of India demand amendments in the rape laws? Also, considering most of the leading countries in the world are democracies where public opinion is very important, the courts play an imperative role in educating the public through their judgements.
Even though the short term advantages of ADR seem to be flowery in settling grievous offences like murder, rape and the like, in the long run if people always choose the option of ADR to solve their disputes, we would be facing a huge problem as there would be no precedents to fall back upon. Moreover these dispute resolution mechanisms would be worthless in the case of hardened criminals as certain anti-social elements in the society have to be dealt with in a harsh manner.
Using ADR on hardened criminals and grievous offences would also be an added expenditure on the states as the mediators would have to be given intensive training in order to make them able enough to handle heated discussions between the victim and offenders. Every mediation meeting ends with signing of an agreement which includes terms and conditions laid down by both the parties and what the offender would have to do in order to repair the damage caused by his acts.
Now, there are two problems to this aspect of mechanisms. Primarily, the possible solution after committing murder or rape could be asking for forgiveness; but would that really be sufficient. Secondly there is absolutely no guarantee that a particular offender would sincerely follow the terms and conditions laid down in the contract. It would therefore be a better option to ensure that hardened criminals and serious offenders be dealt by courts.
Also the basis on which ADR is formulated is that every crime should be dealt by considering the environmental factors which lead to commission of the crime. This is possible in offences like theft, robbery or in offences against property of an individual, as these offences can somewhat be justified by a social and economic perspective. But in a scenario involving a grave offence, justification may not be acceptable.
Leaving this aside the most fundamental problem in ADR is that for the proceeding to start, the offender has to admit that he committed the crime, what if he doesn’t admit to the crime. How many offenders of heinous crimes actually admit in the first instance itself. Owing to the reasons given above we personally believe that ADR would not be of much help in grave offences.
However, as mentioned earlier ADR can be very useful in dealing with less serious offences. Reason being firstly, it would relieve the courts of a lot of pressure thereby giving the courts an opportunity to deal with important matters in a more efficient manner and ADR is also cheaper way of getting justice when compared to the expensive litigation process.
It has been proved statistically that the parties which opt for ADR in order in settle their differences have a higher satisfaction level as against the traditional court trials; especially cases of juvenile offences. Most of the leading democracies in the world have used VOM and FGC for juvenile offences and other lesser serious crimes, and the results have undoubtedly pleased everyone. Lately, people have been disappointed with the way courts have been functioning because of the delays in seeking justice.
One of the main reasons for this is the “litigation explosion” which disables the courts from working at their optimum level. ADR is certainly the tool through which the courts will get relieved of the pressure and start working effectively, institutionalising ADR would hence have a two-fold advantage the first being, giving an option to the people to opt for ADR and get speedy justice and secondly helping the courts to function in a better manner.
We believe that there should be a clear cut division by creating a list of offences which should be handled by ADR only and this would do the trick of achieving the perfect balance in the criminal justice systems of the world.
– Mohammed Bengali and Nikunj Rana @ IV BA. LLB., ILS Law College, Pune