ALTERNATIVE DISPUTE RESOLUTION MECHANISMS AND CRIMINAL CASES

SUBMITTED TO: MR. MANOJ KUMAR (FACULTY: ADR)

SUBMITTED BY: SURBHI GUPTA SEMESTER 6-A ROLL NO. 153

HIDAYATULLAH NATIONAL LAW UNIVERSITY Raipur (C.G) Submitted on: 25.02.2014

TABLE OF CONTENTS
Acknowledgements........................2 Research Methodology, Objectives and Scope..3 Introduction........................4 Definition of ADR..5 Characteristics of ADR...5 Nature of Criminal Justice System in India6 Problems of Formal Legal System..7 Types of ADR in Criminal Cases...8 Advantages of ADR.12 Disadvantages of ADR.14 Implementation of ADR in Criminal Justice System...14 Conclusion and Suggestions.15 Bibliography.................17

ACKNOWLEDGEMENTS
I would like to take this opportunity to express my deep sense of gratitude towards my course teacher, Mr. Manoj Kumar 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. SURBHI GUPTA Semester - VI

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.

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.

SCOPE
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.

INTRODUCTION
In a rapidly developing society human needs are bound to multiply resulting into conflict of interests. People become more conscious about their individual rights and litigation becomes an inevitable part of their life due to rising incidence of disputes among them. The problem is further compounded when there is lack of discipline in the litigation process and judicial mechanism finds it difficult to cope up with the enormous caseload. Particularly, in a modern technologically and economically well advanced society, litigation is a primary means of resolving disputes. When it fails to meet the need of the people there is oblivious need to search for new alternative methods of dispute resolution. It is in this context that the alternative modes of dispute resolution have gained primacy in the present millennium. The legal system in India is viewed by many as part of colonial legacy. Undoubtedly, judiciary is the important institution which has withstood many challenges during the last-more than fifty years to retain its integrity. But with the mounting pressure of cases especially criminal cases, the workload of judiciary increased leaps and bound and it has now reached a stage of unmanageable magnitude and the cases remain undecided for years together for one reason or the other. The constitution of India ensures equal access to justice for all.1 But the ground reality is that the law hardly reaches the vulnerable sections of the society here majority of the people are illiterate, rustic and rural and are ignorant about existence of their legal rights and remedies. And those who are aware of their right find it difficult to get them translated into reality because of the legal and procedural ordeals on has to undergo in the process of 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.

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 enunc iated 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. 2 [Report on National Juridicare Equal Justice Social Justice, Ministry of Law, Justice and Company Affairs (1977)

A recent trend that can be noticed in the sphere of ADR is its applicability to the criminal matters. Mediation is the most sought after form of ADR, where the issue of criminal justice is concerned.

DEFINITION OF ADR
Alternative Dispute Resolution (ADR) is a term for describing process of resolving disputes in place of litigation and includes arbitration, mediation, conciliation, expert determination and early neutral evaluation by a third person.3 In India, The Arbitration and Conciliation Act, 1996 is a long leap in the direction of Alternative Dispute Resolution system. It is based on UNCTRAL model.4Prior to the enactment of The Arbitration and Conciliation Act, 1996, none of these forms of ADR except arbitration had any statutory basis in India. Mediation and Conciliation require an independent third party as mediator or conciliator to assist the parties to settle their disputes. The expert determination requires independent experts in the subject of disagreement of the parties to decide the case. Such expert is chosen jointly by the parties and his decision is binding. The objective of ADR as the phrase itself suggest is to resolve disputes of all sorts outside the traditional legal mechanism i.e. courts/judicial system. There is a broad spectrum ranging from the purely consensual mode of resolution of disputes to an executive procedure like arbitration, conciliation or negotiation. ADR thus offers an alternative route for resolution of 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. ADR operates without formal representation. 2. ADR program applied the doctrine of Equity.6

3 4

Black's Law Dictionary Free Online Legal Dictionary 2nd Ed. 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. 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.

3. ADR system includes more direct participation by the disputants in the process.7 4. Gives opportunity for communication between the disputants. 5. Neutral case evaluation system. 6. ADR includes early neutral evaluation. 7. Make scope for family group conference. The nature of ADR mechanisms can be ascertained from the above mentioned characteristics. The primary object of ADR movement is avoidance of vexation, expense and delay and promotion of th e ideal of access of justice for all. ADR system seeks to provide cheap, simple, quick and accessible justice. ADR is a process distinct from normal judicial process. Under this, disputes are settled with the assistance of third party, where proceedings are simple and are conducted, by and large, in the manner agreed to by the parties. ADR stimulates to resolve the disputes expeditiously with less expenditure of time, talent money with the decision making process towards substantial justice, maintaining to confidentiality of subject matter. So, precisely saying, ADR aims at providing justice that not only resolves dispute but also harmonizes the relation of the parties.

NATURE OF CRIMINAL JUSTICE SYSTEM IN 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

Ibid

provisions to expedite the judicial process, increase efficiency, prevent abuses, and provide legal relief to the poor. The basic framework of the criminal justice system, however, was left unchanged. India has an integrated and relatively independent court system. At the apex is the Supreme Court, which has original, appellate, and advisory jurisdiction. Below it are eighteen high courts that preside over the states and union territories. The high courts have supervisory authority over all subordinate courts within their jurisdictions. In general, these include several district courts headed by district magistrates, who in turn have several subordinate magistrates under their supervision. The Code of Criminal Procedure 8 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 and criminal subordinate
8

Section 6, CRPC, 1973

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 staff10, the extra `fees to the legal aid11, the bribes paid (in criminal cases) to the policemen for obtaining documents, copies of depositions and the like or to prison officials for small favours.12 In some instances, even legal aid beneficiaries may not get services for `free after all.13 In addition, the considerable delay in reaching the conclusion in any litigation adds to the costs and makes the absence of an effective mechanism for their recovery even more problematic. All of the above factors should in fact persuade prospective and present litigants, as well as those engaging with the formal legal system as judges and lawyers, to reservedly embrace the notion of ADR, conciliation and mediation.

TYPES OF ADR IN CRIMINAL CASES

In reference to the criminal justice, the term ADR encompasses a number of practices which are not considered part of traditional criminal justice such as victim/offender mediation; 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

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. 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.

Panchayats. These types of ADR mechanisms along with their appraisal and applicability in Indian scenario have been further detailed upon. 1. Plea Bargaining. Plea bargaining may be defined as an agreement in a criminal case between the prosecution and the defence by which the accused changes his plea from not guilty to guilty in return for an offer by the prosecution or when the judge has informally made the accused aware that his sentence will be minimized, if the accused pleads guilty.14In other words, it is an instrument of criminal procedure which reduces enforcement costs (for both parties) and allows the prosecutor to concentrate on more meritorious cases.15 The concept of plea bargaining prevails in England, Canada, and most of the other nations of the British Commonwealth. Earlier Germany was referred to as the land without plea bargaining. Subsequently, due to time -taking trials and increasing white-collar crimes in Germany, the system of plea bargaining was instituted by statute.16 In United States of America, plea bargaining has a vital role to play. White J, in a US case of Brady v. Unites States17 observed the validity of plea bargaining and upheld its validity. In India, keeping in mind that the pendencies of criminal cases have gone through the roofs, the Law Commission of India in its 142nd report suggested reform, which included implementation of plea bargaining in India.18 Further, to reduce the delay in disposing criminal cases, the 154th Report of the Law Commission19 recommended the introduction of plea bargaining as an alternative method to deal with huge arrears of criminal cases, which found a support in Malimath Committee Report.20 To give effect to the recommendations, the draft Criminal Law (Amendment) Bill, 2003 was introduced in the parliament. Despite a very huge hue and cry against the amendment, the amendment was accepted and with the effect of same, Chapter XXIA was added in the Code of Criminal Procedure, 1973. The said chapter contains Sections 265 A to 265L, which deal with plea bargaining. 2. Criminal ADR Programs As far as the development of Criminal ADR procedures is concerned, it took birth from earlier informal justice programs.21 There are various criminal ADR programmes that are running throughout the globe. Some of these are as follows:

14

Sidhartha Mohapatra and Hailshree Saksena, Plea Bargaining: A unique remedy, INDLAW NEWS.COM, http://www.indlawnews.com/display.aspx?4762 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/101-169/index101-169.htm 19 Report of the Law Commission, India on the Code of Criminal Procedure, 1973 20 Report of Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, March 2003 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.

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 neighborhood dispute resolution programs. Private Complaint Mediation Service (PCMS). It provides the mediation as an alternative to the formal judicial process of handling criminal misdemeanor 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

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 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-CommunityPrograms.html#ixzz0kxrprMHD 26 MEDIATION OF CRIMINAL MISDEMEANOR DISPUTES, http://www.hamilton-co.org/Municipal Court/ mediation/mediation_of_criminal.htm

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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 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

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. 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

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complex litigation. According to Law Commission recommendation a very simple procedure envisaging quick decision, informed by justice, equity and good conscience. 32 In respect of jurisdiction, the

Commission preferred criminal jurisdiction covering boundary disputes, tenancies, irrigation disputes, minor property disputes, family disputes, wage disputes irrespective of pecuniary value of the dispute. The establishment of such Lok Adalats and Panchayats is undoubtedly an important step in encouraging people to settle disputes through conciliation. However the Lok Adalat system has main drawbacks for criminal cases: Firstly, the requirement of consensus of the parties to approach Lok Adalats or the requirement of the permission of the Court to approach Lok 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
The benefits or advantages33 that can be accomplished by the ADR system are summed up here briefly:

32

In Sitanna v. Marivada Viranna AIR 1934 PC 105 the Privy Council affirmed the decision of the Panchayat in a family dispute. 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 liti gation 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.
33

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1. 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 failed in eliciting facts efficiently. 2. In Mediation or Conciliation, parties are themselves prodded to take a decision, since they are themselves decision-makers and they are aware of the truth of their position, the obstacle does not exist. In addition, Mediation has been adopted in various countries as a means to resolve the criminal disputes. To be specific, mediation has been consistently applied in juvenile justice programmes. As an example, Romania has been applying mediation to the field of Criminal Law. Articles 67-70 in the Law 192/2006 of Romania lay down provisions regarding mediation in the criminal cases34. In countries like Canada, England, Finland, and even in the United States, the system of mediation is being used to resolve the juvenile offences35.Though, the mediation of severely violent crimes is not usual, in a chunk of victim-offender programs, victims and survivors of severely violent crimes, including murders and sexual assaults, are finding that confronting their offender in a safe and controlled setting, with the assistance of a mediator, returns their stolen sense of safety and control in their lives36. The emphasis is upon healing and closure. But in cases of severely violent crimes, victim-offender mediation cannot replace punishment. 3. The formality involved in the ADR is lesser than traditional judicial process and costs incurred is very low in ADR 4. There is finality of the result, cost involved is less, the time required to be spent is less, the mechanism is more efficient as there is a possibility of avoiding disruption. 5. Improve Attorney-client relationship.37 6. ADR supports Court reform.38 7. Ensure justice for disadvantaged group. 8. In rural areas, the court is a taboo for women, ADR process ensure privacy. That means it is a confidential process.39 10. ADR is a consensual process to enhance social harmony. 11. There is lesser scope for bias or corruption.

34 35

Zeno Daniel Sustac, Mediation in the Criminal Law, MEDIATE.COM, http://www.media te.com/article s/sus tacZ3.cfm Peggy L. Chown, J.D. and John H. Parham, Can We Talk? Mediation In Juvenile Criminal Cases, http://www.lectlaw.com/files/cjs08.htm 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.

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DISADVANTAGES OF ADR
There have been several criticisms against the applicability of ADR in criminal disputes, which render ADR techniques unlikely to succeed. 1. Extreme power imbalance between the parties: The victim-offender mediation is considered to be highly emotionally charged. Further, the offender may feel to be under pressure to reach an agreement, rather than genuinely seeking to repair the harm done. 2. Privatizing the public harm: With the growth of the ADR movement, Owen Fiss in his seminal article Against Settlement, argued that ADR advocates naively painted settlement as a perfect substitute for judgment by trivializing the remedial role of lawsuits and privatizing disputes at the cost of public justice40. 3. Undermining judicial reforms efforts41 4. There may be lack of legal expertise and since, there is no set system of arriving at a verdict, the decisions maybe arbitrary. 5. Other criticisms include that ADR is an appropriate remedy, where the parties have an 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
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 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

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facets of ADR so that judicial officers and judges are well- versed with the functioning of ADR mechanisms. Implementation: For this purpose, judicial officers must be trained to identify cases which would be suitable for taking recourse to a particular form of ADR. In the decision of House of Lords in Dunnett V. Railtrack ill (In railway administration, [2002]2 All ER 850, the Court had noticed that: the encouragement and facilitating of ADR by the court in an aspect of active case management which in turn is an aspect of achieving the overriding objective. The parties have a duty to help the court in furthering that objective and therefore, they have a duty to consider seriously the possibility of ADR procedures being utilized for the purpose of resolving their claim or particular issues within it when encouraged by the court to do so. In this situation for implementation of ADR in criminal cases the following measures are required the most: Mandatory reference to ADRs: To introduce this system in Criminal Justice System it is suggested that like the Code of Civil Procedure, Code of Criminal Procedure should also be amended. ADR can be introduced in Code of Criminal Procedure by enlarging the scope of required sections and inserting a new section and empower the Criminal courts to dispose of criminal cases through ADR. Case management by Judges- Case management includes identifying the issues in the case; summarily disposing of some issues and deciding in which order other issues to be resolved; fixing timetables for the parties to take particular steps in the case; and limiting disclosure and expert evidence. Committed teams of Judges and Lawyers: The mindset of the members of the Bar is also to be changed accordingly otherwise it would be difficult it is difficult to implement ADR. The myth that ADR was alternative decline in Revenue or Alternative Drop in Revenue is now being debunked by them realizing that as more and more matters get resolved their work would increase and not decrease. Also, unless the mindset of the judges is changed, there will be no motivation for the lawyers to go to any of the ADR methods. 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.

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
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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. 44 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.

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

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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, 1st ed., National Law Publications, 2013

Articles and Committee Reports Referred

Judicial Reforms in Justice Delivery System, (2004) 4 SCC(Jour) 35 Law Commission of India, Report No. 222, Need for Justice-dispensation through ADR etc., Govt. of India, April 2009. Report of the Expert Committee on Legal Aid: Procedural Justice to the People, Government of India, Ministry of Law, Justice and Company Affairs (1973) Special Address by Dr.S.Muralidhar, Part-time Member, Law Commission of India in the International Conference on ADR, Conciliation, Mediation and Case Management, May 3-4, 2003

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