ADR and the Criminal Justice System

Unlike the suits and writs filed for a trial, alternate dispute resolution (ADR)  is a kind of out of court settlement. Alternative dispute resolution (ADR) is a process qualitatively distinct from judicial process. It is a process where the disputes are resolved by third neutral party usually chosen them, where the neutral is generally familiar with the disputes of that nature, where the proceedings are informal without procedural technicalities and are conducted in a manner agreed to by the parties. ADR has gained a significance in every possible civilized dispensation. ADR is a process where the disputes are resolved with comparably less expenditure of time, talent and money with the decision making process geared to delivery of substantial justice, maintaining the confidentiality of the subject matter of the dispute. ADR in its wider perspective gains various  forms including arbitration, mediation, negotiation and conciliation. In the present time, conciliation follows almost the same process as mediation. Arbitration includes resolving the disputes by third party to make decision which is binding on both the parties. This is a binding method of resolving the disputes and both the parties are expected to follow the same. Mediation includes resolving the disputes by the third party by working on the dispute and settling it. Unlike arbitration, the process of  mediation is not a binding method. Negotiation is the process where attorneys of the parties work together to settle the dispute.

 

Considering our present criminal jurisprudence, the Constitution of India has stated some articles for the same. For example, Article 20 is provided against double jeopardy. Once an accused is acquitted for a crime done, he/she cannot be prosecuted once again. A fresh trial is impermissible even if an evidence not available at the first trial later on becomes leading to his involvement. Article 22 guarantees a person arrested to be informed to the charge under which he/she is arrested and seek legal assistance followed by producing of the person before the nearest magistrate within 24 hours of the arrest.

 

ADR as mentioned earlier is classified further into the branches of mediation, arbitration and conciliation. Mediation and conciliation is more or less almost the same process. Mediation is a settlement effort which utilizes the services of an impartial, third party, mediator in an effort to reach an agreement to the dispute. Mediation in most of the cases would be facilitative, encouraging the parties to settle the issues by the intervening procedure by the mediator. On the other hand, there is a slight difference in the process of conciliation, where the conciliator tends to take the procedure to evaluative mediation. The parties in mediation can agree to conciliate at any point of time. Conciliation is officially recognized in India by the Arbitration and Conciliation Act, 1996. The conciliated settlement agreement is given the same status as of a decree of court. Unlike in the day to day courts’ litigation, in mediation, each party may on his own on invitation to the mediator can present the dispute and ask the mediator to proceed with the settlement of the case.

 

Arbitration on the other hand is a process where the disputes are resolved by a distinct judicial process with the binding decision. India has a comprehensive, contemporary and progressive legal framework to support the process of arbitration. Party autonomy and maximum judicial support with the minimum judicial intervention are the abiding features of the Arbitration and Conciliation Act, 1996. Even the judiciary is in full support of arbitration. The court can even stop a case from being carried on in a breach of an arbitration agreement. In arbitration, the parties rely on third party decision maker to make binding judgments. An example that can be stated regarding arbitration process in India is K.V. George vs. Secretary to Government; water and power department, Trivandrum 1990 AIR 53, 1989 SCR Supl. (1) 398 1989 SCC (4) 595 JT 1989 (4) 166 1989 SCALE (2) 822.Unlike mediation and conciliation, arbitration makes judgments which are binding on both the parties and they have to accept the same.

 

A new trend that can be noticed in the sphere of alternate dispute resolution is its applicability in criminal matters. Mediation is one form of its kind where the issue of criminal justice is concerned. Considering todays practicality in the courts of  law, many of the judges pass on some of the current running cases to be resolved in the lokadalats.

 

Lokadalat is a system of alternate dispute resolution where the cases are sent for speedy justice among the parties who are willing to settle the issue between them. Lokadalat is generally called as “People’s court”. The introduction of lokadalats added a new chapter to the justice dispensation system. It is one of the components of ADR. Lokadalats are generally held periodically to try such cases, which are presided over by retired judges, social activists, or other members of legal profession. Earlier, there was panchayat system in India. The disputes were referred to the panchayats and the decision of the panchayat was final and binding. The main function of lokadalat is compromise between the parties. If both the parties are willing to get the settlement as soon as possible, their cases are send to lokadalats. Hence, lokadalats try to settle the matter between both the parties. The settlement made by the lokadalat are binding on both the parties. No court fees are levied in lokadalats.  Every lokadalat while resolving any case shall be guided by the principles of justice and equality. In case, if the matter is not resolved in the lokadalat, the matter again goes to the court.Hence it can be said that lokadalat plays a vital role in resolving the matter through ADR with less expenditure of time and money.

 

In ADR, the third neutral party would be to identify the causes relating to the dispute and settle the matter accordingly. ADR is a process of  alternate dispute where no party wins or loses, but every party walks out as a winner. It is basically a process for a compromise between two disputing parties. ADR has a vital role to play in resolving criminal matters though not of heinous crimes. In our criminal jurisprudence, the issue of live in relations have observed an increase in trend along with modernisation. Live-in relation is basically an arrangement where two people live together unmarried. But marriage in India is a sacred institution. People look down upon the person who is unmarried for a long period of time. But along with changing times, Indian society has observed a great increase in trend in live in relationships. Live in relationships in India have observed many disputes arising among them with changing times. Reason for a couple preferring live in relation is a secondary matter. But this cannot be completely ignored as to resolve the dispute between them requires the reason for which the couple has preferred such way. Resolving the disputes requires the reason so that dispute receives a proper decision and settlement. Live in relationships has no specific provision in Indian law. Hence the matters of live in relations have increased bearing no specific provision in the law. Along with changing times, the cases of live in relationships had quadrupled from nearly 5,00,000 to nearly 3 million. ADR is the method usually used to settle the disputes of live in relationships. Especially mediation is used for settling such matters. Protection given through domestic violence act has given a ray of hope to such matters but as newly introduced, it needs time to totally get implemented in the Indian society. Many of such disputes if not settled in the courts of law, ADR helps settling such matters.

 

ADR also has a vital role to play in international law. After the World War 2, the world was divided into two allies, namely, USA and USSR. Thereafter the cold war began and there were many disputes arising out of nations. To curb this, there was need of an organization felt to establish for world peace. Hence, League of Nations and United Nations was established. In those times, ADR was a method to settle the disputes between the nations. The nations requested the third neutral nation to resolve the dispute between them through this method either by mediation or arbitration. This method is still continued in today’s time. In the cases of terrorism or any other dispute, due to ADR in international law, two nations can collaborate to bring the accused in a particular country for interrogation. Hence ADR play a role in international law as well.

 

Also a divorce can be resolved through mediations between the divorcing couples, through use alternate dispute resolution proceedings that tend to facilitate a voluntary settlement, or in the traditional court setting where a judge makes final and binding decisions. Here ADR proves to be a beneficiary process for the divorcing couples for getting divorce before the issue goes to the court of law. Through the process of alternate dispute resolution, many couples who are willing to get divorce by easy process and within a less span of time, they get through easily with ADR. ADR may prove to be a beneficial tool in resolving the divorce cases depending on factors such as:

1) the degree to which the couple are in a dispute on key issues like child custody and distribution of property, and,

2) the willingness to work together to resolve those issues.

The process of alternate dispute resolution encourages and facilitates an early settlement. With the help of the process of mediation, the divorcing couple along with the mediator have an opportunity to resolve the dispute and, make key decisions related to the divorce, instead of having third party interfering in the case. Very rarely used in divorce cases, arbitration is most structured option of ADR in which third neutral party makes decisions after hearing both the parties evidence and arguments. The arbitrator’s decision in a divorce case may not be necessarily final and binding and the parties may still be able to move the court at a later date.

 

Divorce mediation might not be acceptable for both the spouses undergoing the process. It has several disadvantages further:

1) the opposite spouse may not co-operate and you can’t force him/her.

2) the opposite party could try to show dominance over you and here a court lawyer can solely offset the imbalance.

3) the opposite spouse may frighten or threaten you, and once a spouse is afraid of personal safety, the participation interest drastically drops down.

4) others argue that the decrease in the value of mediation and the upper fee of lawyers is due to their high expertise in the sector and solely they can higher predict the appropriate outcome of the case.

Therefore, every divorcing couple should try to settle down their marital issues within themselves. If they cannot go that manner a minimum of they need to not hide anything from one another and should bear the mediation process resulting in a conclusion. Under certain circumstances, things go out of hand and both the spouses cannot reach to conformity, the traditional adversarial approach might be a final resort.

 

One cannot shut one’s eyes to the rapid growth in the rate of crimes. In present times, present system which is available takes a long time for investigation to be completed and charge sheet to be filed. The trial takes over years and the possibility of the accused being convicted of the crime is no deterrent for committing it. As far as wrong are concerned, they are as much entitled to the justice as much as wrong doer and the assailant. Suitable provision can also be made in respect of 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. This can be considered both during the trial as also more at the stage of investigation. Similarly, offences could be made triable by special magistrates to be appointed for the purposes. Similarly, several offences can be triable by Nyaya Panchayats. These measures could reduce burden of the criminal courts and would enable the criminal courts to decide criminal cases expeditiously, and without undue loss of time. The system of justice in India is a vast concept in today’s time considering various parts or bodies of justice both in urban and rural areas. Some of the rural areas still have a purview of Panchayati Raj. Panchayat system is one of the most ancient concepts of providing justice.

 

ADR can be used even in cases such as cheque bouncing cases, motor accidents claims cases, banking and insurance cases. Mainly ADR is used in matrimonial cases, property matters, partnership and corporate disputes, etc. There are various instances where matters are pending since 4-5 years which are resolved in 12-14 hours in 4-5 sittings. The procedure of ADR is very flexible and there total transparency in the process. ADR reduces the cost of litigation and time for resolving the disputes. Regarding the process of alternate dispute resolution, J.Krishna Iyer in the case of Agarwal Engineering Co. Vs. Technoimpex Hugarian Machine Industries Foreign Trade Company, AIR 1977 SC 2122=1977 (4) SCC, 367 said “A legal adjudication may be flawless but heartless; but a negotiated settlement will be satisfying even if it departs from strict law.” The common experience is that ADR processes preserve or enhance personal and business relationships that might otherwise be damaged by the adversarial process. However, ADR is not limited to disputes involving relationships between the parties.

 

As far as the procedure of ADR is concerned, an arbitration award has the effect of a binding resolution subject, however, to intervention by the court under section 34 of the 1996 act. The award of the Arbitrator is enforceable as if it were a decree of the court. On the other hand, conciliation is only facilitative and evaluative. The process of alternate dispute resolution by way of mediation, arbitration, or conciliation is not a panacea of all evils. It is not a substitute for formal adjudication of disputes by the courts. It is an alternative route to a more speedy and less expensive mode of settlement of disputes. It is not a compulsory method of settlement, as trial of a case is, but a voluntary and willing way out of the impasse.

 

India today has witnessed a tremendous increase in the cases of cyber crimes. Today the issues of cyber crimes have reached its height and it seems to no end in this regard. ADR has also made its way towards cyber crimes. Cyber arbitration is one such aspect. Cyber arbitration is popularly known as Online Dispute Resolution (ODR) in India. ODR is a better and improved form of ADR provided India is willing to encash its benefits. The problem is there are very few ODR institutions in India. Even lesser are ODR experts who can resolve technical, legal and other scientific disputes in an online environment. There is no doubt that formulating good techno-legal ODR practices and regulations require tremendous expertise. There are few ODR providers who can assist the Indian government in this regard.

 

In this regard, we can say that the process of Alternate Dispute Resolution has proved to be a boon for the people of India as well as the judicial system as it is cost effective and less expenditure of time has been experienced.   

 

kajaljaiswal 
on 09 March 2015
Published in Students
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