CRIMINAL LAW CONVERGENCE WITH MEDIATION
– Vinamra Gogia
Nani Palkhivala once rightly remarked, “If I were asked to mention the greatest drawback of the administration of justice in India today, I would say that it is delay. Our cases drag over a length of time which makes eternity intelligible. The law may or may not be an ass, but in India it is certainly a snail. Justice has to be blind but I see no reason why it should be lame.” Today, in the present times considering the status quo of the judiciary and the dismal rates of disposal of cases, it would certainly not be an exaggeration to purport that the fears that Nani Palkhivala had succumbed to, have finally been met.
It is noteworthy to highlight that as of today there are 58,168 cases pending to be heard before the Apex Court of the country. This Lis pendens that the judicial institutions have found itself surrounded by is not only detrimental to the rule of law but also defies the publicly accepted notion that have labelled the courts as harbinger of rights. The judiciary finds itself in a quandary and the only conceivable resort to save itself from this was an Alternative Dispute Resolution System which called for an out of court settlement.
The narrative that was proffered by mediation came bearing fruits, and it proved to be efficacious in resolving the disputes expediently in matters of civil, matrimonial, property disputes and so forth. But what was to be seen was whether the narrative put forth by mediation is in compliance and acquiescence with the ends of the Criminal Justice System. Conventionally, Alternate Dispute Resolution and Criminal Justice System were looked upon as two distinct and unrelated concepts in the society. A victim approaching a court for a criminal case often comes with an unconditional asperity and vouch for retributive justice in contrary to an amicable settlement, which is by now abundantly clear.
Furthermore, it is an undisputed fact that the penal provisions sought to be imposed serves no penological purpose whatsoever and there is almost no empirical evidence available showing that imposing these provisions have had a deterrent effect on the crimes. In the face of this invidiously prejudiced application of the Criminal Justice System is mediation seen as a mechanism to reform and restore the faith in the system. Critics have time and again contended that the acts in the Criminal Jurisprudence are so grotesque in nature that applying the principles of Mediation may not act as a pragmatic device and could destroy the very objective of having penal provisions in the system, but it is rather important, imperative and indispensable for classifying the acts by their very nature and then scrutinize the application of the same. There can be no second opinion to the fact that there is a significant need to bring reforms in the existing laws which is riddled with lacunas, in order to bring in a paradigm shift in the Criminal Justice System.
A HISTORICAL PERSPECTIVE TO MEDIATION
The delivery of justice within a reasonable time is a fundamental right enshrined in the constitution, but in reality, the judicial system has come under severe strain on account of backlog and delay. The timely disposal of cases is imperative for maintaining the rule of law and to uphold the rights to which a citizen have claim to. Furthermore, in addition to the already backlogged cases, the courts are inept in handling or keeping pace with the new cases that are being instituted every day.
The already severe problem of backlogs is, therefore, getting exacerbated by the day, leading to a dilution of the constitutional guarantee of access to timely justice and erosion of rule of law. With double folds increase and accumulation of laws and with the creation of various rights frequently, the cases filed in the courts are escalating the burden on the courts by leaps and bounds. The Indian Judicial System is currently clutched with many pitfalls e.g. increasing pendency, lack of sufficient resource, miniscule multiplication of number of courts and large vacancies in the institutions.
According to the most recent data on pendency of cases, there are approximately 54,013 matter pending in Supreme Court of India out of which 22,511 matters have been placed for regular hearing. The existing pendency in the court added with the wrinkled workload has resulted in the creation of this humongous amount of backlog of cases in the highest court of the country.
The mammoth pendency of cases in the High courts and the Subordinate courts is dismal than that of the Apex Court with approximately 3.03 crore cases pending in both courts with at least 2.84 crore cases back logged in the subordinate courts all over the country itself. Justice Y.V. Chandrachud (Former CJI 1978-1985) had intuited this existent lacuna prematurely and observed that, “The legal system of India in its present form will collapse under its own weight within the next ten years. I believe people will lose confidence in the system of administration of justice.” Considering this humongous amount of cases pending in the judiciary and the ineptitude of the courts to handle the cases accumulated, the principles of Alternative Dispute Resolution were perceived to be the most plausible and pragmatic approach to palliate the burden of the courts in resolving the disputes.
The Law Commission of India was prompt enough to recognize the issue and subsequently, in its 129th report made recommendations for making it obligatory for the courts to refer the dispute to Alternative Dispute Resolution and had underlined the importance of mediation as a way to refer the cases for an out of court settlement. Furthermore, the Malimath Committee by backing the report, called for a legal sanction to a machinery for resolution of disputes with the sole objective of reducing the large influx of cases in the courts and made various recommendations for reducing litigation and making justice easily accessible to the people with minimum cost and time.
Subsequently, the requisite statutory backing was given to it by the Arbitration and Conciliation Act, 1996 (hereinafter referred to as act) which laid down elaborate rules and procedures for the administration of the same. The Arbitration and Conciliation Act, 1996 provides for various modes of Alternative Dispute Resolution by way of settlement which includes Arbitration, Conciliation, Mediation, Negotiation and Lok Adalat.
MEDIATION IN CRIMINAL JURISPRUDENCE- A FORMALIST APPROACH
Zeroing in on the topic, Mediation can be defined as a process of negotiation by which the disputants in a particular case attempts to resolve a dispute with the assistance of a neutral third party. Christopher W. Moore defines Mediation as, “Mediation is essentially a negotiation that includes a third party who is knowledgeable in effective negotiation procedures and can help people in conflict to co-ordinate their activities and to be more effective in bargaining.”
The concept of Mediation received statutory recognition in India for the first time in the Industrial Disputes Act, 1947. The Section 4(1) of the Industrial Disputes Act, 1947 provided for conciliators to be appointed for settling an industrial dispute and detailed procedures were laid down for conciliation proceedings under the act. In 1999, the Indian Parliament passed the CPC Amendment Act of 1999 which made way for Section 89 in the Code of Civil Procedure, 1908 providing for reference of cases pending in the courts to any of the modes of ADR which included mediation. The amendment was subsequently brought into force with effect from 1st July, 2002.
Extended delays in the cases often erode public trust and confidence of the people in the judiciary which raises earnest questions on the access of justice to the people. Although the application of the process of Mediation has shown tremendous growth in settling the civil cases, victims have always longed for a retributive approach when they institute the proceedings in the court of law. The Supreme Court of India has held in the case of P. Ramachandra Rao v. State of Karnataka that it is neither feasible nor viable to come to a presumption on the outcome of the case in the criminal proceedings beforehand.
It was noted by the court that if there seems or perceives to be a situation where there is even a low-lying chance to settle the case with a pretrial negotiation, it is obliged to settle it with the available means. This was laid down by court after analyzing the fulsome amount of cases pending in the judiciary and so that it led to speedy trial of the cases. The Supreme Court has, on various occasions observed in its unconditional pronouncements that, “Speedy Trial is of essence to criminal justice and there can be no doubt that the delay in the trial, by itself, continues denial of justice.”
The traditional methods to charge an offender of a crime with the penal provisions have had many drawbacks in the past. It has failed to achieve the objective of its existence and demote the crimes in the society and the proliferation of the same has been significant even after the charging the offenders with the specific penal provisions. There is hardly any hint of the principles of restorative justice in administrating the criminal judicial system. People have always been perverse to look for mediation as the solution to the crimes in the society, therefore a serious introspection was to be called for in addressing the enigma that we were long been surrounded by.
In India the primary objective of Criminal Justice System is seen to deviate from its path due to the extant criminal justice system which is crippled due to various maladies and faults. By addressing this malady existent in the system, the Delhi High Court in the case of Dayawati v. Yogesh Kumar Gosain laid down the legality of referring a criminal compoundable case to mediation and held that the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the victim in great oppression and prejudice.
Considering the resistance of the victims to approach the mediation centers for resolving the criminal disputes due to the retributive emotion that the victims are entangled in, the Legislators had made efforts to segregate the crimes into Compoundable and Non-Compoundable Offences. The Compounding of the offences in the context of Criminal Justice System means forbearance from the prosecution by resolving the dispute with an amicable settlement.
When there arises a situation where the victim is willing to condone the conduct of the offender, the criminal law needs to be attuned in a way that it takes into consideration the situations where the criminal proceedings can be terminated in order to provide a leeway for settling the disputes amicably. The Section 320 of the Criminal Procedure Code, 1973 lays down the list of offences that come under the ambit of Compoundable and Non-Compoundable Offences. There are some offences which are so grotesque in nature and hence cannot be settled by reaching an agreement.
This rationale was heavily relied upon in deciding the kinds of cases that can be compounded without wasting the courts time. The Section 320(3) of the CrPC, 1973 gives the courts the requisite sufferance and autonomy to cast a look to the other forms of settling the dispute which reduces the burden of the courts in addition to satisfying the requirements of parties to the dispute. The rationale behind emplacing certain kinds of cases as Non-Compoundable was by taking into consideration the gravity of the offence that a particular case is dealt with.
To much consternation, the concept of speedy redressal mechanism by way of Mediation has always been at sea. The courts over a catena of judicial pronouncements have tried to elucidate this by following distinct narratives. The court’s interpretation to juxtapose the Criminal Jurisprudence with Mediation has seen a tectonic shift, with the courts trying to restrict the scope and purview of the compoundable offences in the serious backdrop of it being detrimental for public good.
The question as to whether a court can quash a First Information Report (hereinafter referred to as FIR) or a Criminal case in the event of the parties settling the dispute among themselves by invoking the Section 482 of the CrPC, 1973 first arose in the case of B.S Joshi v. State of Haryana . The courts by following the lines of its decisions in the earlier pronouncements held that it would be impermissible in law to quash the FIR for a non-compoundable offence on the ground that the dispute has been settled by the parties. It held that “There is no doubt that the object of introducing Chapter XX-A containing Section 498-A in the Indian Penal Code was to prevent torture to a woman by her husband or by relatives of her husband. Section 498-A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper technical view would be counterproductive and would act against interests of women and against the object for which this provision was added.”
The court was of the view that a non-compoundable offence cannot be compounded or settled with as it would prove to be egregious for the society at large and will not meet the ends sought to be achieved by the provisions herewith. Subsequently, the Apex Court in Afcons Infrastructure Ltd v. Cherian Varkey Construction Co. (P) Ltd made it mandatory for the cases to be considered for mediation before the initiation of a trial. It held that, “having a hearing after completion of pleadings, to consider recourse to ADR process under Section 89, is mandatory.” .
The court whilst purporting that it is imperative for a case to be assessed for mediation tried to segregate the offences and left out the possibility of criminal cases being eligible for mediation. It embarked upon a detailed scrutiny of wearing down the conundrum by attrition and while considering the question of whether it is mandatory for the reference of the cases for mediation carved out certain requisite exceptions by holding the answer in the affirmative. It laid down that the ‘cases involving prosecution for criminal offences’ are generally not considered to be suitable for its reference to mediation with regards to their nature and left out the scope of its ability for any of the ADR process in an entirety.
To the contrary, by being mindful of the possibility of further exacerbation of the clogged cases, it went on to note that, “the above enumeration of `suitable’ and `unsuitable’ categorization of cases is not intended to be exhaustive or rigid. They are illustrative, which can be subjected to just exceptions or additions by the court/tribunal exercising its jurisdiction/discretion in referring a dispute/case to an ADR process.” The Afcons judgment was perceived as being instrumental as it laid down the approach for the courts in posterity.
One question that had often remained in seclusion and needed to be addressed profoundly was the scope and interpretation of the Section 320 of the CrPC, 1973. The Apex court in Gian Singh v. State of Punjab took up this issue and held that, “Section 320 of the Code articulates public policy with regard to the compounding of offences. Sub-section (9) of Section 320 mandates that no offence shall be compounded except as provided by this Section. Obviously, in view thereof the composition of an offence has to be in accord with Section 320 and in no other manner.”
In the process of determining the extent to which the Section 320 can be interpreted, the court by a bare perusal of the said section held that the offences that are excluded from the purview of the section are not to be settled with and hence took to the restrictive approach in dealing with the subject matter. The court held that, “Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed.”.
The court in the aftermath of the Gian Singh judgement took forward the issue in hand and elucidated by holding that in the cases where the offences are so grotesque in nature that compounding of the same would prove to be detrimental to the society at large, it eventually comes down to the discretion of the court to not allow the same. In Narinder Singh v. State of Punjab the Apex court held that, “We find that there are cases where the power of the High Court under Section 482 of the Code to quash the proceedings in those offences which are uncompoundable has been recognized. Likewise, when the parties reach settlement in respect of offences enumerated in Section 320(2) of the Code, compounding is permissible but it requires the approval of the Court. In so far as serious offences are concerned, quashing of criminal proceedings upon compromise is within the discretionary powers of the High Court”.
The court observed that in the offences that are non-compoundable or cannot be settled or comprised with in the wake of its seriousness, it is the obligation of the courts to not allow for the quashing of the same by invoking its inherent jurisdiction as provided by in the Section 482 of the CrPC, 1973. It fails to serve the purpose of meeting the ends of justice if the offender is exonerated from his/her acts and in the eventuality is allowed to be divorced from the requisite penalty. Subsequently, the court in State of Madhya Pradesh v. Laxmi Narayan and Others laid down the hard and fast rule for the categorization of cases for the sake of conviction.
The driving force behind the courts instant contention was the overriding element of public interest and the gravitas of the offence which is fundamentally distinct from a palatable misdemeanor. The verbatim that the Apex court proffered was, “i) that the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves (ii) such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society.”
The Delhi High Court in Yashpal Chaudhrani & Ors. v. State acknowledged the spate of pendency of the cases and laid down proper guidelines for the referral of cases for mediation. The court held that it is quintessential for the mediator to undergo a preliminary scrutiny after taking into consideration the factual matrix of the case and the possibility of assisting the parties to come to a settlement. The court stressed the need to introduce an institutional mechanism for the regulation of cases with consistency and uniformity and did away with the ‘system of vetting’ the cases for mediation. It unconditionally and conclusively held that the same would mutatis mutandis apply to other forms of Alternative Redressal Mechanisms, which was rather indispensable for the discharge of cases expediently. One of the significant questions that the court answered was whether there is a need for a precursory scrutiny whilst referring a non-compoundable for mediation.
It held that, “The objective of criminal law is primarily to visit the offender with certain consequences. He may be made to suffer punishment or may be given opportunity to reform by release on probation, or, further to make amends by paying compensation to the victim. The law, at the same time, recognizes that it may not be always desirable in every criminal offence to mete out punishment, particularly if the victim wants to bury the hatchet. It is necessary that peace and tranquility prevails in the society, and, therefore, if the disputants want to move on, forgetting the damage done, depending on the nature and seriousness of the consequences that may flow from the particular offence, the law classifies the crimes into two categories, viz., compoundable or non-compoundable.”
The court conceded to the contention that where there is a possibility of settling a non-compoundable offence in an out of court settlement, there is no bar in doing the same but it is the obligation of the court to consider it for a preliminary scrutiny for better institutionalization and speedy disposal of cases. It has time and again been acknowledged by the courts that there are a sloth of cases pending in the judicial system which breeds a proper redressal mechanism and hence the courts by way of the above judicial holdings have tried to overcome this obstacle.
THE WAY FORWARD
The road ahead for capitalizing on the narrative that Mediation offers and using it to alleviate the burden on the courts is indeed a precarious one. Desperate times call for desperate measures and hence the courts being cognizant of this laid down exacting guidelines for the better institutionalization of cases in Yashpal Chaudhrani & Ors. v. State. It laid down the guidelines in a three-fold manner and held that Firstly, even before the institution of the cases in the court it is indispensable for the same to go through a preliminary scrutiny for it to stand the permissibility of law after taking into consideration the extent and scope of the inherent powers of the courts as laid down in Section 482 of the CrPC, 1973.
Secondly, the mediator must satisfy himself for assessing the parties to a settlement after examining the facts and circumstances of the case and thirdly, the process of vetting at the conclusion called for uniformity and there had to be an assurance between the parties with respect to the gravity of the offence called for settlement, bearing in mind the relevant jurisprudence. Another concept was introduced by the government for the concessional treatment of those who choose to plead guilty without any bargaining to the authority of the law with certain safeguards surrounding it.
The Law Commission of India in its 142nd report suggested a reform in the Criminal Justice System by the introduction of ‘Plea Bargaining’ as a concept to reduce the pendency of cases in the courts. Plea Bargaining is a pre-trial negotiation between the defendant and the prosecution where the accused in the case chooses to plead guilty in exchange for commutation or concessions by the prosecutor. In furtherance to the 142nd report, the Law Commission in its 154th report laid emphasis on the speedy disposal of criminal cases pending in the courts and recommended the introduction and implementation of Plea Bargaining as an alternate method to deal with the arrears of criminal cases which subsequently found support in the Malimath Committee Report.
In 2006, a new Chapter XXIA on Plea Bargaining was added to the Criminal Procedure Code by inserting Section 265A to 265L which allowed for an accused to make an application for Plea Bargaining in certain criminal cases. The Gujarat High Court in the case of State of Gujarat vs Natwar Harchandji Thakor , observed that, “every ‘plea of guilty’ which is construed to be a part of the statutory process in the criminal trial, should not be understood as Plea Bargaining ispo facto, it is a matter that has to be decided on case to case basis. Considering the dynamic nature of law and society, the court said that the very object of the law is to provide an easy, cheap and expeditious justice by resolving the disputes.”
Often, it has come to be seen that the most gruesome of the offences sparks the fuel of public opinion to the point of seeking the most grievous of retributions as punishment for the crimes committed. But, by taking one step back and after much contemplation, it might not seem to be the most pragmatic of the steps to achieve justice, at least in the current scenario considering the amount of cases pending in the Judiciary. True, the perception of justice might be different for different people, but this ‘judicial deadlock’ can be overcome by adopting a more sophisticated approach or way of thinking. The principles of the Alternate Dispute Resolution have, since inception, been proven to be an effectual way of restoring the justice and can certainly act as that sophisticated approach.