HIDAYATULLAH NATIONAL LAW UNIVERSITY,RAIPUR

EXAMINING THE FLEXIBILITY OF ADR IN

CRIMINAL JUSTICE SYSTEM
Submitted to:
Mr. Manoj Kumar

Submitted by:
Kritika Mishra
Semester VI
Section B, Roll no. 78

Submitted on: 15/02/2016

CERTIFICATE
This is to certify that Kritika Mishra, SEM VI, BALLB (Hons.) has successfully
completed the Research project Titled Examining the flexibility of ADR in Criminal
Justice System under the guidance of Mr. Manoj Kumar, Faculty, HNLU, Raipur.

ACKNOWLEDGEMENTS
With a deep sense of gratitude, I acknowledge the help of all those people who have made the
completion of this project possible. I would like to thank my Alternate Dispute Resolution
teacher Mr. Manoj Kumar for her help and guidance and also for putting his faith on me by
giving me such a topic to work on. Sir, thanks for the opportunity which helped me grow.
My gratitude also goes out to the staff and administration of HNLU for the infrastructure in the
form of our library and IT Lab that was a source of great help for the completion of this project.

Kritika Mishra
Semester VI
Section B
Roll No. 78

INTRODUCTION
Quality of justice suffers not only when an innocent person is punished or a guilty person is
exonerated, but when there is enormous delay in deciding the criminal cases.1
Most of the literature dealing with ADR contains little or no reference to its use in the criminal
justice context. This is because ADR is usually described as a method of resolving disputes
between parties without resorting to formal court based adjudication. Traditional theories of
criminal justice, on the other hand, view criminal offending as largely a matter between the
offender and the state.2
The use of ADR processes in criminal matters is a relatively new phenomenon. In part, the
increased interest in the application of ADR processes to the criminal justice system was borne
from a general dissatisfaction with traditional adversial methods of dispute resolution. However,
the criminal justice system in India has attracted a particular set of criticisms; it is seen as
unsuccessful in reducing rates of recidivism and even may increase the likelihood of re offending
for particular groups, such as juveniles and indegenious persons. It ignores the victims of crime
and fails to recognise crime as a form of social conflict.

1 Government of India, ministry of home affairs , Report of the committee on reforms of criminal justice
system, vol.1, March 2000.
2 H Astor and C Chinkin,Dispute Resolution, (2nd edn,2002), 77-78.
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RESEARCH METHODOLOGY
The present study is a descriptive and analytical study based on the critical review of both
primary and secondary sources. Secondary and Electronic resources have been largely used to
gather information and data about the topic. Books and other references have been primarily
helpful in giving this project a firm structure. Websites, dictionaries and articles have also been
referred. Footnotes have been provided wherever needed, to acknowledge the sources.

OBJECTIVES

To study in brief about various types of ADR dispute settling mechanisms

To analyse the application and flexibility of ADR in criminal justice system.
To study about methods of ADR like Plea Bargaining and justice through lok adalats

in criminal justice system.

To study about restorative justice through ADR mechanisms.

CONTENTS

Introduction............................................................................................4
Research methodology............................................................................5
Objectives................................................................................................5
Alternative dispute resolution : methods of settling disputes..................6
Lok adalats and compoundable offences.................................................7
Advantages of ADR................................................................................8
ADR in the criminal justice system.......................................................10
Plea bargaining......................................................................................11
Describing flexibility of adr in criminal justice system.........................13
Mediation in criminal offences like rape : recent judgement...............14
Conclusion............................................................................................15
Bibliography........................................................................................16

Alternative Dispute Resolution : Methods of Settling Disputes

"Alternative Dispute Resolution" encompasses many mechanisms. Among the principal ones are
arbitration, mediation, small claims courts, community justice centers, media complaint boards,
and internal institutional grievance mechanisms. In addition, a number of formal, in-court
adjudication devices that share certain features of ADR are sometimes included under that rubric.
These devices include the use of masters and magistrates, settlement conferences, and offers of
judgment.
Arbitration is a process disputants have used for years in an effort to circumvent the court
system's costly delays. In arbitration, disputants submit their disagreement to an impartial third
party and agree to be bound by the arbitrator's decision, a decision that a court may enforce.
Conciliation is a less formal form of arbitration. This process does not require an existence of
any prior agreement. Any party can request the other party to appoint a conciliator. One
conciliator is preferred but two or three are also allowed. In case of multiple conciliators, all
must act jointly. If a party rejects an offer to conciliate, there can be no conciliation.
Parties may submit statements to the conciliator describing the general nature of the dispute and
the points at issue. Each party sends a copy of the statement to the other. The conciliator may
request further details, may ask to meet the parties, or communicate with the parties orally or in
writing. Parties may even submit suggestions for the settlement of the dispute to the conciliator.
In mediation, a neutral, noncoercive, nonadversarial third party coordinates and facilitates
negotiations between disputants.

The mediator only encourages settlement; the parties retain

ultimate decision making authority. Mediation is widely used in resolving domestic dispues and
consumer redressals. Small claims courts are adjuncts to the municipal courts that adjudicate
claims for small dollar amounts using simplified trial procedure. Formal evidentiary rules are
relaxed, the judge is the factfinder, and parties usually represent themselves. Controlling
substantive law and streamlined procedural rules constitute the primary formal restraints on
decision makers.

Negotiation is a dialogue intended to resolve disputes, to produce an agreement upon courses of

action, to bargain for individual or collective advantage, or to craft outcomes to satisfy various
interests. It is the primary method of alternative dispute resolution.
Negotiation occurs in business, non-profit organizations, government branches, legal
proceedings, among nations and in personal situations such as marriage, divorce, parenting, and
everyday life. The study of the subject is called negotiation theory. Those who work in
negotiation professionally are called negotiators. Professional negotiators are often specialized,
such as union negotiators, leverage buyout negotiators, peace negotiators, hostage negotiators, or
may work under other titles, such as diplomats, legislators or brokers

Lok Adalats and Compoundable offences

Lok Adalat roughly means "People's court". India has had a long history of resolving disputes
through the mediation of village elders. The system of Lok Adalats is an improvement on that
and is based on Gandhian principles. This is a non-adversarial system, where by mock courts
(called Lok Adalats) are held by the State Authority, District Auth[2]ority, Supreme Court Legal
Services Committee, High Court Legal Services Committee, or Taluk Legal Services Committee,
periodically for exercising such jurisdiction as they thinks fit. These are usually presided by
retired judge, social activists, or members of legal profession.
It does not have jurisdiction on matters related to non-compoundable offences.
Lok Adalat (peoples courts), established by the government, settles dispute through conciliation
and compromise. The First Lok Adalat was held in Chennai in 1986. Lok Adalat accepts the
cases which could be settled by conciliation and compromise and pending in the regular courts
within their jurisdiction.
Lok Adalat is very effective in settlement of money claims. Disputes like partition suits, damages
and matrimonial cases can also be easily settled before Lok Adalat as the scope for compromise
through an approach of give and take is high in these cases.

Advantages of ADR
ADR proponents feel that informal dispute resolution mechanisms are more efficient than formal
ones, saving both time and money. ADR is less time-consuming than full-fledged adjudication
because it eliminates many formalities of judicial proof (rules of evidence, for example), because
decisionmakers often are familiar with the subject matter of the dispute, and because jurors need
not be selected and educated.
ADR reduces the state's costs because informal forums require fewer decision makers and those
decision makers are generally paid less than their formal counter parts. Further, informal forums
do not require the many support personnel associated with formal proceedings such as clerks,
bailiffs and court reporters. The disputants' costs are lowered as well, because ADR's informality
often obviates the need for attorneys; in some cases attorneys are barred. Even if attorneys are
permitted, the brevity and simplicity of informal proceedings greatly reduce the costs of
representation.
These time and money savings are, in part, responsible for the second advantage ascribed to
ADR: it makes informal dispute resolution mechanisms more accessible than formal ones.
Individuals who cannot afford the expense or delay of traditional litigation may be able to bring
a dispute to an ADR forum. Some commentators also believe that ADR promotes access because
of its informality. Those who feel threatened or intimidated by formal courts may be willing to
bring a problem to an informal forum.
ADR's flexibility and lack of rigid rules enable the parties to work toward a creative resolution of
their dispute, one that neither party will perceive as a defeat.

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ADR in the Criminal Justice System

The criminal jurisprudence is quite different from the ADR mechanism, as in the case of a
criminal dispute, penal provision is sought after to place a benchmark. In the case of ADR, some
kind of settlement that may not result into court proceeding is sought after.
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.
In order that the rule of law and justice can be administered properly, certain basic steps are to be
taken by the state. As far as the picture of pendency is concerned in the civil cases, that can be
tackled by the alternatives available such as the ADR mechanisms. But there is some doubt upon
the application of ADR in criminal justice. 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).

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Plea Bargaining
A plea bargain is an agreement between the prosecutor, the defendants attorney and the
defendant. In return for the defendant entering a plea of guilty to a criminal charge, the
prosecutor agrees to recommend to the judge a particular penalty. Plea bargaining allows the
prosecutor to obtain guilty pleas in cases that might otherwise go to trial.
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.3 Further, to reduce the delay in disposing criminal cases, the 154th
Report of the Law Commission 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.
To give effect to the recommendations, the draft Criminal Law (Amendment) Bill, 2003 was
introduced in the parliament.4 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.
Procedure of Plea Bargaining
A person accused of an offence may file an application for plea-bargaining in the court in which
such offence is pending for trial. The application for plea-bargaining should be filed by the
accused voluntarily.5The proceedings are held in camera. Time is given to the accused and the
complainant for mutually satisfactory disposition of cases including expenses, compensation etc.
The secrecy of the matter is maintained as to ensure that the statement made by the accused
during plea-bargaining shall be voluntary. The concept includes women and children below 14
3 LAW COMMISSION OF INDIA REPORTS (101 169), http://lawcommissionofindia.nic.in/101169/index101-169.htm (last visited 10th february, 2016)
4 State of Uttar Pradesh v. Chandrika 2000 Cr.L.J. 384(386).
5 Section- 265 B (4) of CrPC, 1973.
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years. Crimes with punishment of more than 7 years or the punishments which are non
compoundable under section 320, CrPC have been excluded from purview of plea-bargaining
Speedy trial is the essence of criminal justice and there can be no doubt that delay in trial by
itself constitutes denial of justice.6 The theory of justice delayed is justice denied can be
applied after seeing the Indian context. The lengthy trial procedure takes years or sometimes
decade to adjudge the proceeding. The factors which really are the reason for such delays:

increasing number of litigation,

courts overburdened with cases.
number of judges in the Supreme Court, High Courts and subordinate Courts.

Describing flexibility of ADR in Criminal Justice System

ADR processes bring additional benefits that are not available through the litigation process.
ADR processes may, for example, lead to a meeting between parties where an apology is offered.
They can also facilitate an aggrieved party to participate in the creation of new arrangements or
procedures to prevent a recurrence of the incident in dispute. This underlines a key element of
ADR that it has the potential to enhance the empowerment of those involved in its processes. A
memorial to victims of a perceived wrong can also emerge from a mediated agreement. The
flexibility offered by ADR processes is an important aspect of a criminal justice system in its
widest sense.

Mediation in Criminal Offences like Rape : Recent Judgement

Recently a Judge of the Madras High Court (India) while hearing a bail appeal of a man
convicted of raping a young girl, agreed to the bail request on condition that the man try
mediation with the victim.

6 Hussainara Khatun v. State of Bihar AIR 1979 SC 1360.

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This order provoked widespread protests mainly on the ground that there cannot be a
compromise or settlement as it would be against the honour of the victim which matters the
most.
Though not linked with the Madras High Court decision, the Supreme Court of India in another
appeal relating to a rape case involving a minor in Madhya Pradesh (India), held on 1st July 2015
that mediation should not be encouraged in cases of rape or attempted rape.
Both the orders of the Madras High Court and the order of the Supreme Court of India has
considered whether there could be mediation in a rape case. The fundamental test as to
whether there could be mediation in a matter is to identify whether the parties to the dispute has
the right or power to make a settlement. Under the criminal jurisprudence, in a case of rape, the
prosecution is by the State and not by the victim. Section 376 of the Indian Penal Code, by which
rape is made a criminal offence is a non-compoundable offence and therefore is not a matter
which could be compromised by the parties.
Apart from the above, even if a matter could be resolved through mediation, it requires the
consent of both parties. In the case which was referred to mediation by the Madras High Court,
the consent or even the opinion of the victim was not sought by the Judge. The Judge decided
that it was for her benefit that she participates in mediation.

ADR and Restorative Justice

Crime is not just the violation of the law, but also the violation of people and relationships. This
violation creates an obligation rather than a guilt and justice, in its true sense. This could be
resolved ideally only when there is involvement of all the stakeholders of a crime, i.e., the
victims, the offenders and the community members, in an effort to put things right. The central
focus is, not on the offenders getting what they deserve, but on attending to the needs of the
victim and offender, for repairing the injury caused in the best possible manner. Justice is a
nebulous concept.
Aristotle divided justice into two main parts:
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distributive justice : the sharing of social benefits and burdens ;

and corrective justice : the rectification of injustice.
Bentham also dichotomised justice, considering
procedural justice : fairness in processes ;
and substantive justice : fairness in rights and obligations.
Taking these approaches together, we need to have a legal system which allows parties to
fairness in process and rectification of injustice. There cannot be a total ban of any opportunity to
settle, if the parties so desire. The order of the Supreme Court has closed the doors for
settlement.

Our traditional criminal justice system is a system of retributive justice asystem of

institutionalized vengeance. The system is based on the belief that justice is accomplished by
assigning blame and administering pain, where it is believed that justice equals punishment.
In many cases, punishment often leaves them unsatisfied and it fails to address the other
important needs of the victim, such as, consolation for their loss, easing their trauma or mending
their wounds. This failure of the criminal justice system to cater for the complete needs of the
victims has, over the past years, seen the emergence of alternate methods of criminal justice, the
prominent one being the theory and practice of restorative justice.
Restorative justice is a new way of looking at criminal justice that focuses on repairing the harm
done to people and relationships rather than punishing offenders.This should not be confused
with mediation in its present form. We need to have clear guidelines for settlement though
restorative justice mediation. Restorative justice is about the idea that because crime hurts,
justice should heal.

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CONCLUSION
The criminal justice system emphasizes the role of the state in resolving offences to ensure peace
and to protect the life and property of its subjects. However, it should be noted that many
offences do not fall under the category of crimes affecting the state, but affecting only a
particular individual or a group of individuals. In such cases, ADR can act as a viable option for
resolving disputes between the victim and the offender. This article advocates that, when applied
to criminal justice system, ADR would make it work more efficiently.
The delay in disposal of criminal cases, including petty matter, has been causing great damage to
the justice delivery system. The web of criminal matters generally traps common man into its
net, as a result of which the faith of the common man is continuously eroding in the criminal
justice system.
A developed or culturally matured society should have this option for resolving criminal offences
through restorative justice mediation. We find that when parties settle criminal matters outside
court, the law compels them to tell lies or file false statements in court to wriggle out of criminal
trials. We have seen in umpteen numbers of criminal cases where the victims or de-facto
complainants turn hostile and speak against the prosecution case. They are left with no choice of
telling the truth because that would upset the settlement and again wreck the relationship. The
index of a developed community should necessarily have laws that would encourage people to
speak truth without fear and uphold their dignity and integrity and not compel them to speak
falsehood.

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REFERENCES

S.K. Chawla, Law of Arbritration and Concillation, Eastern Law House(6th Ed, 2006)

G.K Kwatra, Arbitration And Conciliation Law Of India (7th Ed. 2008)

OP Malhotra, The Law and Practice of Arbitration and Conciliation 865 (2nd Ed., 2006).
Siegfried H. Elsing & John M. Townsend, Bridging the Common Law-Civil Law Divide
in Arbitration, 18 Arb. Intl 59, 64 (2002).

H Astor and C Chinkin,Dispute Resolution, (2nd Ed., 2002)

Sidhartha Mohapatra and Hailshree Saksena, Plea Bargaining: A unique remedy,

INDLAW NEWS.COM, http://www.indlawnews.com/display.aspx?4762
Peggy L. Chown, J.D. and John H. Parham, Can We Talk? Mediation In Juvenile
Criminal Cases, http://www.lectlaw.com/files/cjs08.htm

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