MEDIATION: A PARADIGM FOR CRIMINAL JUSTICE
– Ms. Kavita Bhatia
“The goal of resolving differences is not to win or to defeat, it’s an attempt to develop understanding between the disputant parties”
Over the years legal scholars and judicial commissions in India have noted that the most pervasive and ‘ pathological ‘ problem afflicting India’s legal system is the problem of judicial delay. The backlog of pending cases is touching 3.3 crore. While 2.84 crore cases are pending in the subordinate courts, the backlog clogging the High Courts and Supreme Court (SC) is 43 lakh and 57,987 cases, respectively. According to National Judicial Data Grid (NJDG), the five states which account for the highest pendency are Uttar Pradesh (61.58 lakh), Maharashtra (33.22 lakh), West Bengal (17.59 lakh), Bihar (16.58 lakh) and Gujarat (16.45 lakh) . The complex, formalistic, and open-ended codes of civil and criminal procedure is the main reason for judicial delay .
There is one infamous slogan that, “Arbitrate and not Litigate” which is the most powerful catchphrase given by the Legislative donor, recognised whole heartedly by the judicial wisdom and accepted gratefully by donee, the general public.” This is evident from the ground reality as, conviction is better to avoid waging a mock battle in the court room . The Alternative Dispute Resolution (ADR) mechanism is a game-changer in the entire process of handling the challenges of pendency and delays.
The present practice of Alternate Dispute Resolution Machinery is a legislatively and judicially sanctioned and approved version and technique-oriented art of mediation or conciliation and arbitration . Mediation being a medium for preserving relationship between the disputant parties has become favourable amongst the other Alternate Dispute Resolution techniques. It reduces the burden on the judiciary and also lessen the hard-ship caused to the parties due to complex and time-consuming court litigation.
A full-fledged law pertaining to arbitration in India was the Arbitration Act,1899 and the consolidated law relating to arbitration was passed in 1940 called The Arbitration Act,1940. The functioning of the 1940 Act was questioned and examined by the Law Commission of India on grounds of delay and hardship caused due to clogs that affect smooth arbitral proceedings. The Commission recommended amendment of certain provisions of the Act rather than reworking the entire framework. Consequently, the Arbitration and Conciliation Act, 1996, based on the 1985 United Nations Commission on International Trade Law (UNCITRAL) model law and rules, was enacted.
The Arbitration and Conciliation (Amendment) Act, 2015 brought in crucial changes to the 1996 statute to overcome the shortcomings of the previous Act of 1996. Under section 30 of the Arbitration and Conciliation (Amendment) Act, 2015, the arbitral tribunal may use mediation, conciliation or other procedures at any time during the arbitral proceedings to encourage settlement. Hence, amongst conventional conflict resolution methods, Mediation is one of the species of Alternative Dispute Resolution Mechanism. Under Section 89 of the Code of Civil Procedure, it is obligatory for the Court to refer the dispute after issued are framed for settlement with the concurrence of the parties.
When the matter is referred for mediation, the court shall affect a compromise between the parties. Mediation involves the help of a go-between third party, called a “mediator,” whose job is to help parties reach some mutual agreement. A mediator cannot force parties to agree and is not even permitted decide the outcome of a dispute. Therefore, while mediating, both parties retain significant control over the course of mediation. Mediation is fully confidential and agreements are usually non-binding, so parties may still pursue litigation following the mediation process.
The Supreme Court of India held that all disputes relating to rights in personam are amenable to arbitration (right in personam is an interest protected solely against specific individuals); and all disputes relating to rights in rem (right exercisable against the world at large) are required to be adjudicated by courts and public tribunals only. Some examples of such non-arbitrable disputes are disputes pertaining to the rights and liabilities arising out of criminal offences, “matrimonial disputes, insolvency and winding up, testamentary issues like grant of probate, succession certificate, admiralty suits, foreclosure of mortgage, and eviction or tenancy matters governed by special statutes”.
At the same time, this rule allows flexibility to the extent that even disputes relating to sub-ordinate rights in personam arising from rights in rem are considered to be arbitrable. For instance, where a criminal matter such as physical injury gives the injured the right to claim damages, the dispute can be referred to arbitration. Similarly, while an arbitral tribunal cannot grant a judicial separation, a husband and wife may refer to arbitration the terms on which they shall separate .
Conventionally, Mediation and Criminal Justice System looked upon as different concepts. In the case of criminal disputes, the act of the offender is a crime against the state and society at large and the victim has relatively insignificant role in the proceeding. There are conflicting opinions of the judiciary for compounding of offences. But certainly, the offences which are compoundable in nature mentioned under section 320 of Indian Penal Code, can be referred for the mediation where the victim or the person by whom offence may be compounded, is ready to negotiate with the offender.
In Western North Carolina is no stranger to using mediation services to address criminal conduct. In North Carolina, like elsewhere, citizens can file criminal charges against other citizens for such things as noise complaints, child custody interference, shoplifting, etc. In these cases, the prosecuting attorney can request that the presiding judge refer the matter to court ordered mediation . Here in this article the researcher has tried to justify the role of mediation in criminal justice system, which is relatively speedy resolution of disputes due to procedural flexibility as compare to conventional trial.
It is an agreement in a criminal case between the prosecution and the defence. 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. Plea-bargaining should be explored as a means to settling criminal cases . Further, there should be diversion to the ADR schemes, and every High Court in consultation with subordinate judiciary, Bar Associations, the Advocate General on behalf of Government and the Legal Services Authorities should take a policy decision, develop a manual for operating procedures and start diverting cases in the first instance .
In India following the recommendations of the 142nd and 154th Law Commission and Malimath Committee report the concept of plea bargaining was introduced in the Indian Penal Code, 1973, as an alternative to traditional adjudicatory mechanism which were slow and increased the burden of the courts. To give effect to the recommendations, the draft Criminal Law (Amendment) Bill, 2003 the 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.
PLEA BARGAINING IN OTHER COUNTRIES:
The concept of plea bargaining prevails in U.S., England, Canada, Germany and most of the other nations of the British Commonwealth. In White J, in a US case of Brady v. Unites States observed the validity of plea bargaining and upheld its validity .
CRIMINAL ADR PROGRAMMES
There are various criminal ADR programmes that are running throughout the globe. Some of these are as follows:
1. Victim-Offender Mediation Programs (VOM) or Victim-offender reconciliation programs or victim reparation programs, 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 . In Canada the first victim offender mediation began in 1989 in Kitchener, Ontario when a youth probation officer convinced a judge that two youths convicted of vandalism should meet the victims of their crimes. After the meetings, the judge ordered the two youths to pay restitution to those victims as a condition of probation. Thus, in Canada the VOM probation based and post-conviction sentencing alternative. In 1978 the first US programme was launched in Indiana. The programme then spread to other parts of US and Europe, consequently there are about 800 VOM programmes in the US and Europe.
2. Community Dispute Resolution Programmes (CDRP) seek to dispose-off minor conflicts that have not been disposed-off and are clogging criminal dockets.
3. Victim-Offender Panels (VOP) . VOP is 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.
4. Victim Assistance Programmes (VAP) established the Crime Victim’s 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.
5. Community Crime Prevention Programs (CCPP) , has included a plethora of activities, including media anti-drug campaigns, silent observer programs, and neighbourhood dispute resolution programs.
6. Private Complaint Mediation Service (PCMS) . It provides the mediation as an alternative to the formal judicial process of handling criminal misdemeanour disputes between private citizens. PCMS gets its authority from Administrative Rule 9.02 of the Hamilton County Municipal Court.
COMPLETE JUSTICE UNDER ARTICLE 142 OF THE INDIAN CONSTITUTION
Compounding of the offences under section 320 of the Code of Criminal Procedure 1973, is available only where the offences are essentially of a private nature and relatively not quite serious, the Code considers it expedient to recognise some of them as compoundable offenses and some others as compoundable only with the permission of the court . The last sub-section (9) of the section makes it quite clear that offences not provided by this section are non-compoundable. And all offences under the special or local laws are simply non-compoundable; and it is left to the legislature to decide as a matter of policy whether and to what extent offences under such laws should be compoundable.
However, the Supreme Court in Mahesh Chand v. State of Rajasthan gave permission to compound the offence under Section 307 of Indian Penal Code 1860 . Following this the High Courts in India have been rendering conflicting judgements. While some high courts follow the Supreme Courts invoking their inherent powers under Section 482 , others refuse to follow on the ground that they do not have the plenary power conferred on the Supreme Court in Article 142 of the Constitution under which apparently the Supreme Court permitted compounding of offence under Section 307 of IPC.
The Supreme Court has in Ram Lal v. State of J&K overruled its decision in Mahesh Chand and held that an offence which law declares to be non-compoundable even with the permission of the court can not be compoundable at all . The conflicting decisions of two-member Bench on the question of quashing the proceedings under Section 482 after compromise between the parties despite the offences like the one under Section 498-A of IPC being non-compoundable, came to be settled in Gian Singh v. State of Punjab upholding B.S.Joshi v. State of Haryana .
Hence, offences arising out of matrimony relating to dowry, etc. or family disputes where the wrong is basically private or personal in nature and parties have resolved their disputes, High Court may quash proceedings under Section 482 of the Cr.P.C. This power is different from the power of Criminal court to compound offences .
The Supreme Court in Kanchan Devi v. Promod Kumar granted divorce in exercise of its power under article 142 of the Constitution of India by a decree of divorce during the hearing in criminal appeal proceedings before it under section 125 of the Criminal Code Procedure, 1973.
Another important judgement of the apex court, is Ashok Hurra v. Rupa Bipin Zaveri , in which the supreme court has concluded that the ingredients of section 13-B of Hindu marriage Act,1956 of the Act are not fully met, yet it preferred to grant divorce by mutual consent, and for that it had to exercise its power under Article 142 of the Constitution, The supreme court in this case has terminated the proceedings under section 497 and 498 read with section 347 and section 324 of Indian Penal code read with section 17 of Hindu Marriage Act,1956. It is once again Rupa Ashok Hurra v. Ashok Hurra , wherein the wife approached the Supreme Court and filed a writ petition under article 32 challenging the validity of the earlier judgement of the Supreme Court in Ashok Hurra. It was held that, it is undesirable on the part of Supreme Court to grant divorce by exercising its extraordinary jurisdiction under Article 142.
In order to bring out its true functional character, one tends to call the Article 142 of the Constitution as ‘judicial legislation’, because the judicial power is conceived to meet situations that cannot be otherwise adequately met to do ‘complete Justice’ under the existing provisions of law provisions of law. In that respect this power, thus, become similar to the law enacted by the legislature in the exercise of its legislative power .
COMPANIES (MEDIATION AND CONCILIATION) RULES, 2016
Under Section 442 read with Section 469 of Companies Act 2013, requires the Central Government to maintain a panel of experts to be called as the Mediation and Conciliation Panel. The panel is for mediation between the parties during the pendency of any proceedings before the Central Government or National Company Law Tribunal (NCLT) under Section 408 of the Companies Act or National Company Law Appellate Tribunal (NCLTA) constituted under Section 410 of the Companies Act. The section 442 was enforced with effect from 01.04.2014 and The Central Government has accordingly made Companies (Mediation and Conciliation) Rules, 2016 dated 09.09.2016 (“Companies Rules”). This is the great step to lessen the burden of the NCLT and NCLAT.
CRIMINAL DISPUTE UNDER SEC.138 OF NEGOTIABLE INSTRUMENT ACT,1881
In a landmark judgment , A division bench of Delhi High Court has held that it is legal to refer a criminal compoundable case as one under Section 138 of the Negotiable Instrument Act to mediation. The bench found that, “though the Code of Civil Procedure contains a specific provision in Section 89 of the C.P.C. enabling reference of matters to alternate dispute redressal, however, so far as criminal cases are concerned, it is amply clear that the Code of Criminal Procedure does not contain any express statutory provision enabling the criminal court to refer the parties to a forum for alternate dispute resolution including mediation.
However, the Code of Criminal Procedure does permit and recognize settlement without stipulating or restricting the process by which it may be reached. There is thus no bar to utilizing the alternate dispute mechanisms including arbitration, mediation, conciliation (recognized under Section 89 of Civil Procedure Code) for the purposes of settling disputes which are the subject matter of offences covered under Section 320 of the Code of Criminal Procedure” . If Legal Services Authority were to undertake pre-litigation mediation in a big way, the inflow of cases into courts can be regulated. Adequate research, training and preparation in ADR mechanism can make distinct contribution to the reduction of pendency of cases .
In very recent case, the Delhi High Court, in Yashpal Chaudhrani & Ors. v. State, has held that the court while considering reference of the parties to a criminal case to mediation must, before even ascertaining as to whether elements of the settlement exist, first examine the permissibility in law for the criminal action to be brought to an end either because the offence involved is compoundable or because the high court would have no inhibition to quash it, bearing in mind the broad principles that govern the exercise of jurisdiction under Section 482 Criminal Procedure Code. Framing guidelines for such cases, a single bench of Justice RK Gauba held that the mediator (before commencing mediation) must undertake preliminary scrutiny of the facts of the criminal case and satisfy himself as to the possibility of assisting the parties to such a settlement as would be acceptable to the court, bearing in mind the law governing the compounding of the offences or exercise of power of the high court under Section 482 of the Criminal Procedure Code.
The existence of an independent and unbiased judiciary is possible only when the citizen’s rights to have justice is not delay. “Justice delayed is justice denied” and it is against the rule of law. Cases of certain nature are believed to be a major contributor to the pendency numbers. Accordingly, special courts have been created to deal with exclusively for Matrimonial Cases, including dowry related cases under Section 498A of the Indian Penal Code, 1860; Cases under section 138 of the Negotiable Instrument Act,1988; Cases under the Prevention of Corruption Act, 1988; Petty Cases such as Traffic Challans; Motor Accident Claims. Looking to the benefits, mediation techniques, especially in disputes related to matrimonial, cases under Sec.138 of the Negotiable Instrument, Domestic Violence, Consumer Protection, Industrial Disputes, Companies Act; ‘where the offence is compoundable or non-compoundable offence but, the wrong is private in nature’ it is justifiable to refer the matter to the mediator who can arrive at compromise between the disputant parties out of the court. Moreover, we have to ignore the demerits of the mediation which are very negligible in comparison to the advantages of mediation for the litigant seeking redressal of their disputes and do not wish to prolong the matter by taking advantage of complex procedures of the Criminal Procedure Code.
a. The Legal Services Authority should organise pre-litigation mediation in a by which the inflow of cases into courts can be regulated.
b. Adequate research, training and preparation in ADR mechanism by the Schools of Law across the country can make distinct contribution to the reduction of pendency of cases.
c. The courts should have reality check of the so-called pending cases because it may possible that one may find many cases are non-existent in the sense that no one is interested in pursuing the claim or no live issues are involved.
d. The awareness programmes should be organised to educated people about Mediation, resulting that, instead of going straight to the court, parties in conflict would take the help of a trained mediator to reach a settlement of their differences.
e. There should some training programmes for legal counsel to enable them best practices to be followed as a mediator.
f. lawyers must practice as a mediator during their career to develop a fresh approach towards the alternate dispute resolution machinery.
g. There should more permanent mediation centre with modern facilities and good infrastructure.
h. There should proper record of cases registered for seeking for mediation.