MEDIATION AS A MEANS TO RESTORATIVE CRIMINAL JUSTICE SYSTEM IN INDIA
– Dr. Priyamvada Tiwari
Current criminal law is encountering a “crisis of self-definition.” Recently, retributive theory has been a focal power fundamental our criminal equity framework. Society anticipates that criminals should be held “responsible” for their violations, accumulating proportionate sentences that relate legitimately to the depravity of a specific offense. Through retributivist belief system, the social order is protected, as potential crooks are deflected from taking part in future unlawful deeds.
In any case, as retributive theory faces expanding difficulties from countervailing speculations, the establishments of our modem criminal jurisprudence are being raised doubt about. In particular, the tenet of rehabilitation keeps on developing as an appealing option for settling the instances of trespass, nuisance, and so on. In these issues, where treatment is basic, it appears to be improbable to allude these wrongdoers to a criminal justice framework that underscores penological approach rather than rehabilitative goals.
Therefore, the settling of such violations in the criminal courts speaks to a confused methodology since it neglects to viably treat the guilty parties that light criminal acts, leaving wrongdoers in a situation to repeat offenses once imprisonment ends. This is the time when our criminal court framework, with its accentuation on retributivist law, is especially powerless, and where elective contest goals (ADR) components, for example, court-supported mediation, rise as a legitimate option.
Since so long, mediation as a method of dispute resolution is in fashion in India. Section 89 of the Code of Civil Procedure as redrafted in the year 2002 has unfold the extent for alternative dispute resolution methods by the ways of mediation, conciliation, arbitration and pre-trial settlement.
Mediation is one of the successful and has now been perceived worldwide as alternative dispute resolution techniques, which causes the litigants to determine their disputes intentionally and agreeably with the help of an outsider known as ‘Mediator’. The mediator by his aptitudes helps the parties to settle their questions. Through mediation proceeding parties arrive at a fair arrangement and are dependably in win-win position. Mediation proceeding are casual procedure in which the mediator, as an outsider without the ability to choose or as a rule without upholding a solution, enables the parties to determine a dispute or plan an exchange. This proceeding is normally willful, secret, straightforward and time and financially savvy moreover. By this system of dispute resolution, parties settle their questions with no distress and they additionally spare their important time and costs of prosecution also.
THE CONCEPT OF RESTORATIVE JUSTICE AND MEDIATION
“RESTORATIVE JUSTICE” which is a catch phrase encompassing exertion to de-emphasize the punitive aspects of the organization of the criminal justice framework, includes, in addition to other things, processes which encourage guilty party and victim interaction. The Community Court model welcomes more noteworthy contribution between the party impacted and the criminal respondent during the process of prosecuting the case.
Marshall’s generally accepted definition describes Restorative Justice as a ―process whereby parties with a stake in a specific offence collectively resolve how to deal with the aftermath of the offence and its implications for the future”
The civil court being obliged to allude the disputants before it to such process if “there exist components of a settlement which might be acceptable” the court required to “plan the terms of settlement” adjusting the equivalent, whenever required, in light of perceptions of the parties thereto and if such process were to succeed to “impact a tradeoff between the parties” and to “seek after such system as may be recommended”.
The general extent of Section 89 CPC and the request concerning whether such arrangement engages the court to so imply the parties “without the assent of the two parties” had risen for thought by the Supreme Court in decision reported as Afcons Infrastructure Ltd. Vs. Cherian Varkey Construction Co. (P) Ltd. . The court cleared it as to whether reference to ADR process is mandatory and, while answering the said question in the affirmative, carved out the exceptions, by specifying the category of cases which would be treated as “excluded”, as “not suitable for ADR process having regard to their nature”, referring in this context, inter alia, to the following:
a. Cases involving grave and specific allegations of fraud, tampering of documents, forgery, impersonation, coercion, etc.
b. Cases involving prosecution for criminal offence under IPC or Special Laws”
The Code of Criminal Procedure, 1973 (Cr.P.C.) administers the process of examination, request, or preliminary pertaining to criminal offenses. The Indian Penal Code, 1860 is the general law characterizing different offenses prescribing the punishment therefor. The IPC is supplemented by different enactments for example special rules, which likewise characterize certain different offenses prescribing the punishment for each.
As a rule, the procedural law, as provided by Cr.P.C., administers all such criminal law processes, be it identifying with offenses under IPC or under special resolutions (Section 4 Cr.P.C.). The special criminal law, in any case, on occasion, make a departure from the general criminal procedure and for such purposes come with necessary provisions indicating the degree to which Cr.P.C. is to be applied with essential modification.
Beside offenses under general law i.e. IPC, certain special rules likewise provide for crimes which might be compounded. For delineation, the offence under Section 138 of the Negotiable Instruments Act, 1881 is compoundable by the purview of Section 147. It is treated as semi civil in nature. In Kaushalya Devi Masand versus Roopkishore Khore , the distinction between customary criminal offenses and the said offense under Section 138 of the Negotiable Instruments Act (by and large known as “check bouncing case”) was commented upon along these lines:-
“The gravity of a complaint which is filed under the Negotiable Instruments Act cannot be handled with an offense under the provisions of the Indian Penal Code, 1860 or other criminal offenses. An offense under Section 138 of the Negotiable Instruments Act, 1881, is nearly in the idea of a civil wrong which has been given criminal insinuation.”
Aside from offences under general law (IPC), certain special statutes also provide for crimes which may be compounded. For illustration, the offence under Section 138 of the Negotiable Instruments Act, 1881 is compoundable by virtue of Section 147. It is treated as quasi civil in nature. In Kaushalya Devi Masand vs. Roopkishore Khore , the distinction between traditional criminal offences and the said offence under Section 138 of the Negotiable Instruments Act was taken into cognizance by the Courts as:-
“The gravity of a complaint under the Negotiable Instruments Act cannot be equated with an offence under the provisions of the Penal Code, 1860 or other criminal offences. An offence under Section 138 of the Negotiable Instruments Act, 1881, is almost in the nature of a civil wrong which has been given criminal overtones.”
In addition to this, the proviso to Section 19(5) of Legal Services Authority Act makes it clear that a Lok Adalat shall have no jurisdiction in respect of any case or matter relating to an offence “not compoundable under the law”. A practice has grown over the period for cases of such nature, unduly large in number, to be referred to Lok Adalats under Section 19 of Legal Services Authority Act, 1987. The settlements brought before the courts of Metropolitan Magistrates, whether through the process of mediation, or before Lok Adalat, or otherwise by the parties on their own, have been resulting in prosecution under Section 138 of the Negotiable Instruments Act, 1881 being treated as compounded, the parties thereafter expected to abide by the terms of such settlement.
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 after admonition), or, further to make amends (may be in addition to punishment) 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 meet out punishment, particularly if the victim wants to bury the hatchet.
It is necessary that peace and tranquillity prevails in the society, and, therefore, if the disputants (here, the offender and the victim) 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.
Section 320 Cr.P.C. provides the procedure which is followed by the criminal court for dealing with the request for compounding of an offence. It specifies the offences which may be compounded and the conditions subject to which such request may be entertained as indeed the person who has the authority to compound the offence with the offender. There are two broad classes of compoundable offences; first, where it is left to the discretion of the parties and, the second, where the compounding is subject to discretion of the court.
There are many “criminal” cases that are ripe for the mediation process. Take for example, a neighbor who files a criminal complaint against his next-door neighbor who habitually trespasses; landlord-tenant disputes that escalate to a breach of the peace charge etc.
In cases where criminal court does not have the jurisdiction to entertain a request for compounding of an offence because law does not classify such offence in that category or where there are other reasons why the request for compounding has not been entertained, a practice has grown over the years that the parties approach the High Court invoking the inherent power under Section 482 Cr.P.C. for seeking end to the criminal process (at times even at the stage of investigation or inquiry) on the plea that continuance thereof would be an abuse of the process of law, most of the time on the contention that the parties have amiably resolved to end the dispute. It is in this context that the parties have been taking the matter, with or without the intervention of the court, to ADR mechanisms, particularly the process of mediation, the settlement reached there being then brought before the High Court with the prayer under Section 482 Cr.P.C. for the criminal proceedings to be quashed.
Also 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. 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 . 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.
THE APPROACH OF THE CRIMINAL COURTS: THE RESTORATIVE METHOD
The criminal justice framework which depends on the philosophy of giving justice to the casualties of the wrongdoing, by putting the guilty parties in charge of the commission of the wrongdoing and likewise the punishment is being given with its accentuation on retributivist jurisprudence, is especially defenseless, and where alternative dispute Resolution (ADR) mechanisms, develop as a reasonable alternative as a way to restorative justice .
Restorative Justice Scholars attest that it is a non-reformatory alternative to the customary criminal justice framework. It is a development that endeavors to address the apparent failings of the criminal procedure. In the conventional justice framework the emphasis is on rebuffing or treating the guilty party. Victims are excluded from the procedure, community interests are spoken to by the State and the procedure is antagonistic in nature. Alternately, Restorative justice is more concerned with ―restoration of the person in question, reclamation of the wrongdoer to a reputable life and rebuilding of the harm brought about by wrongdoing to the network.
Any place, the injured individual wrongdoer intercession procedure goes on an antiquated rule which perceives that wrongdoing is on a very basic level against the general population and not just against the State which is by one way or another, through the methods for mediation process, the idea of restorative justice can be accomplished by encouraging the resolution techniques. Mediation has thus emerged as one of the viable and now surely understood alternative dispute resolution methods.
Section 320 of the Cr.P.C. counts and draws a distinction between offences as compoundable, either between the parties or with the leave of the court.
This provision clearly permits and recognizes the settlement of specified criminal offences. Settlement of the issue(s) is inherent in this arrangement conceiving compounding. The settlement can clearly be just by a deliberate procedure inter se the parties. To facilitate this process, there can be no possible exclusion of external third party assistance to the parties, say that of neutral mediators or conciliators .
As recognized from serious offenses, there might be criminal cases which have a staggering or overwhelming component of a civil contest. They remain on an unmistakable balance to the extent that the activity of the inherent power to quash the case is concerned.
The Delhi High Court, in the case of Yashpal Chaudhrani and Ors. v. State , has held that the court while considering reference of the parties to a criminal case to mediation must, before even determining regarding whether components of the settlement exist, first analyze the admissibility in law for the criminal activity to be finished either on the grounds that the offense involved is compoundable or in light of the fact that the High Court would have no hindrance to subdue it, remembering the wide rules that govern the activity of jurisdiction under Section 482 CrPC.
Here, for this circumstance, while summoning the inherent power of this court under Section 482 of the Code of Criminal Procedure, 1973, to look for quashing of criminal procedures because of “settlement” of the dispute with the party apparent to be the victim, questions have emerged concerning whether the procedure of mediation, especially one under the aegis of the court, ought to be allowed or urged to be profited of for achieving such settlement as may conceivably not be taken by the court to be a fair or adequate purpose behind such intervention, this having respect to the idea of the wrongdoing involved.
It was emphatically contended by the Addl Public Prosecutor that the examination has drawn out a profound established criminal intrigue wherein certain credit cards were cloned, stolen information having been utilized with configuration to perpetrate such fakes, countless public persons having additionally been subsequently unfavorably influenced, the case likewise including the component of criminal breach of trust by the bank and its employees.
DO VICTIMS IN CRIMINAL MATTERS WANT MEDIATION?
It is normally seen that individuals who report the violations to the police are fundamentally inspired by the private intrigue. Initially being made up for the demonstration done and the wounds so caused to them and besides, the wrongdoings are accounted for in light of the fact that insurance agencies require the charges as a pre-condition for conceding the compensation. Additionally, in by far most of these cases, abused individuals are not enthusiastic about rebuking the blameworthy party using any and all means. In fact from the unfortunate casualty’s viewpoint, punishment serves no need at all if the guilty party is condemned to pay the fine and subsequently ends up unfit to pay it.
Appraisal of Mediation in criminal justice system
Mediation, a term which finds its mention under the Alternative Dispute Resolution, where it can be termed as the triadic mode of dispute settlement process entailing the intervention of the neutral third party at the consent of the disputants, the outcome of which is a bilateral agreement between the parties who are disputants i.e. the victim and the offender. Victim—offender mediation provides an opportunity for crime victims to meet the offender, talk about the offense, express concerns, and negotiate a mutually agreeable restitution agreement.
Mediation depends on five focal ways of thinking which decide its hypothetical and pragmatic premise as well as make it an appealing technique for resolving disputes contrasted with other curial types of resolution techniques. As indicated by Charlton , the five focal methods of reasoning that support mediation are:
Secrecy;
Willfulness;
Strengthening;
Lack of bias; and
A unique solution
Some criminal ADR programs like Victim-Offender Mediation Programs have been effectively intervening to bring justice between wrongdoing, victims and offenders for more than twenty years. There are currently more than 300 such projects in the U.S. also, Canada and around 500 in England, Germany, Scandinavia, Eastern Europe, Australia and New Zealand.
In connection to the philosophical component of voluntariness, it tends to be said that so as to expand the viability of mediation, parties need to go to the procedure deliberately which is known as the ‘readiness factor’ . This implies that the parties opting for mediation must be eager to take part and to consult in a genuine and straightforward way. On the off chance that the parties are compelled to mediate by the Courts even, at that point they might not have the essential inspiration to consult such that looks to resolve the dispute. Furthermore, if parties are not yet eager to look for a resolution due to an assortment of components, for example, not understanding the options in contrast to a mediated result, at that point constraining them into mediation in the matters of criminal nature might be counterproductive .