ADR in the Indian Criminal Justice System
This article by Vishwa Badrinath narrows down to the use of ADR in the Indian Criminal Justice system. In criminal law, we generally avoid using the term out of court settlement or ADR but we do have forms of ADR that are being practically accepted and being used in common. The concept by which the cases are finished… Read More »
This article by Vishwa Badrinath narrows down to the use of ADR in the Indian Criminal Justice system. In criminal law, we generally avoid using the term out of court settlement or ADR but we do have forms of ADR that are being practically accepted and being used in common. The concept by which the cases are finished without a full trial in criminal law is called Plea Bargaining.
There is a broad understanding of the people about the law being a regulator of social well-being and to take care of the society. In India the law has itself divided into judicial, legislation and execution. Moreover, the law has been substantive and procedural. People come to seek help from the law in various matters such as civil matters, criminal matters, family disputes, and consumer-producer problems and so on. Among these, except criminal law, all the other matters are matters of dispute between individuals or a group of individuals whereas criminal law deals with the matters between the state and the individual or group of individuals.
The state is the sole authority in deciding the punishment for the offences committed by the accused or the guilty. In this scenario, it is very important to know the reason behind the intervention of the state in criminal matters. It is because the role of the state is to maintain law and order. In India, the general policy is that the guilty should be punished. Right from the ancient period to the modern period this principle is being in practice.
In recent times a question has been aroused by the people as well as the legal practitioners whether punishment should be the only solution for a crime. Why there is no other way of solving problems. Unlike civil law, criminal law involves more care while interpretation, as well as execution as even a single mistake, will lead to a great loss of law, order and justice. Yet there are some ways of solving some types of offences by the way of Alternative Dispute Resolution which the paper is going to elaborate.
Alternative Dispute Resolution
The area of Alternative Dispute Resolution (ADR) is gaining popularity now a day. There are definitions for Alternative Dispute Resolution. Alternative dispute resolution refers to any methods used to resolve a dispute between parties without resorting to litigation. Thus ADR simply means out of court settlements. ADR is generally used in civil, consumer and Family matters. ADR is practiced in most countries in various forms. In India, we use arbitration and mediation most commonly.
- Arbitration- This is the most common form of ADR which is practiced even at the international level. In this concept, both the parties appear before the arbitrator and decide upon the case and the arbitrator’s decision is binding or non-binding on the parties depending upon the facts and circumstances of the case.
- Mediation- Unlike arbitration, mediation is a more simplified process. In the case of mediation, there will be a third party involvement in mediating between the parties. Mostly in India, mediation is preferred for individual matters.
The Need for Alternative Dispute Resolution
The demand for solving problems through Alternative Dispute Resolution is high in today’s judicial sector both in India as well as other countries. More specifically civil matters like land disputes, money recovery matters etc. are often solved through ADR. This is because civil matters consume more time than any other disputes do. For e.g. investigation of a crime and punishing the guilty may take approximately 2-3 years where a partition suit may take 20-30 years to complete. Having ADR reduces the burden of the courts by giving them time flexibility.
The parties too are benefitted as the process is less time-consuming as well as cost-efficient. ADR maintains confidentiality in disposing of the matters. Parties have more chances to state out their requirements from the other party very clearly.
The Use of Alternative Dispute Resolution in Indian Criminal Law
Now that it’s clear about the concept of ADR and its uses and applicability in general, the paper narrows down to the use of ADR in the Indian Criminal Justice system. In criminal law, we generally avoid using the term out of court settlement or ADR but we do have forms of ADR that are being practically accepted and being used in common. The concept by which the cases are finished without a full trial in criminal law is called Plea Bargaining.
Plea bargaining in the words of Hon’ble Justice Mr Shivraj. V. Patel “This plea-bargaining was suggested by the Law Commission. It was suggested by other Committees which were appointed for that. The system of plea-bargaining is existing in other countries. By and large, we are trying to implement the suggestions given by the Law Commission. But it has not been possible for us to consider all the suggestions together and do it.”
Plea bargaining has been included recently in the criminal law amendment act of 2005. Plea bargaining is a process by which the guilty seeks a lesser punishment or comes to a compromise to pay for the damages caused due to the offence committed by the guilty. Plea bargaining is defined under sections 265-A to 265L starting from applicability to its exceptions. Plea bargaining concept is explained through this illustration. The prosecution expenses Ramu with housebreaking, but he pleads responsible for trespassing and the prosecution dismisses the housebreaking rate. This is a sheer case of plea bargaining.
Essential conditions for Plea bargaining
The plea bargaining process though is not a trial, it requires some essentials satisfying which the case can go for plea bargaining. The famous case of State of Gujarat v. Ishwar Bhai Harkhabhai Patel has laid down the essentials of plea bargaining.
- The accused has pleaded guilty quite voluntarily,
- For that, he has passed a written purshis duly signed by him,
- That before recording the plea of guilty, neither any inducement nor threat has been administered to the accused and
- Since the said plea of guilty was absolutely voluntary, the same has been accepted.
The Code of Criminal Procedure under section 265 A says that a report must have been forwarded by the police officers in charge under section 173 of CrPC and that the punishment for the offence must not be a term exceeding 7 years or life imprisonment or the death penalty or it does not apply for offences that are against the socio-economic condition of the country or the offences that are against women.
For a successful plea bargaining, one has to follow the steps for application under section 265B where the accused has to state the brief description of his case. That application will be received by the public prosecutor following which the date for the case will be fixed. Then there will be a mutually satisfactory disposition that will take place between both parties.
Following this, a report will be prepared by the court and if the meeting ends in failure then the court moves to the next step. If the meeting is successfully concluded either by the direction of the court to award compensation to the victim or by giving minimum punishment. This is how the concept of Plea Bargaining works under Indian Law.
Plea Bargaining as ADR
The plea bargaining concept is regarded as a form of ADR in criminal law. Yet it does not function like arbitration or mediation. It is simply reducing the burden of both the accused as well as the victim. It is functioning in various places as ADR.
- Plea-bargaining as an ADR mechanism offers advantages to the sufferers like he/she will be able to without difficulty get repayment,
- The victim can avoid the long-drawn judicial process, much less money and time-consuming
- It is a blessing to the accused like keep away from long drawn judicial technique, he/she can get half punishment in case of minimum punishment, can be launched on probation or admonition,
- It ensures justice in the way that no attraction lies towards the judgment in favour of him, admission of the accused cannot be used for another function except for plea-bargaining, much less money and time-consuming and so forth.
Plea Bargaining as an International concept
International law regards plea bargaining as follows. “Plea bargaining is when the defence and prosecution engage in discussions surrounding an agreement at the state of affairs of the accused. Usually, the prosecution gives a reduction in a charge, dismissal of pending fees, and/or a promise to request or recommend a particular sentence. Plea bargaining, a frequent practice in most Common Law traditions but rarely used in Civil Law traditions, has a number of blessings. Plea deals save time, money and assets.
In addition, plea deals provide tons greater than absolutely helping in the technical technique. Some sufferers have said that they obtained extra consolation from a responsible plea than had the defendant been located guilty by the court docket. Remorse, recognition and reconciliation play a main role inside the plea bargaining manner”.
Plea bargaining concept is widely used in countries like UK, USA, and Canada. The concept of plea bargaining is an improving area in the field of International Criminal Law.
Plea bargaining reduces the time consumption of the court. It also helps the parties to reach a common conclusion. Sometimes the law is being framed in such a way that the offences may be less grave in nature but the punishments will be serious. Plea bargaining avoids these conditions and ensures the correct form of justice. Moreover, there are few offences like dowry torture, adulteration of food products etc. which happen in day to day life very often. The court cannot be dealing with all the matters. Thus the concept of plea bargaining acts as an Alternative Dispute Resolution in Criminal law and ensure justice to the people.
 The definition of Alternative Dispute Resolution referred at legaldictionary.net/alternative-dispute-resolution/
 The meaning of plea bargaining given by J. Shivraj. V. Patel in the Motion For Consideration Of The Criminal Law (Amendment) Bill, 2005, … on 22 December 2005 available at indiankanoon.com last accessed at 27/07/2017
 (1994) 2 GLR 1047; (1995) ILLJ 793 Guj
 2000 Cr.L.J. 384(386)
 (2005) Cr. L.J. 2957
 Bordenkircher v. Hayes available at www.manupatra.org last visited at 20/08/2017