Alternative Dispute Resolution In Criminology
This article deals with one of the significant applications of alternative dispute resolution (ADR) strategies related to criminology. ADR is often associated with civil law, although more recently there has been increased interest in its potential use in criminal justice systems.
it looks at how various alternative dispute resolution techniques are used in criminal law, including plea bargaining, diversion programs, mediation, and restorative justice.
References It examines how alternative dispute resolution can speed up the disposal of cases, reduce the case backlog, and promote the accountability of offenders, as well as the advantages and disadvantages of its adoption in the criminal justice system.
The study also examines the ethical issues and limitations of alternative dispute resolution in criminal situations, specifically, this article provides insight into the effectiveness of ADR approaches, their impact on victims, and the potential for reconciliation and healing in the criminal justice system.
Current research and case studies. it encourages further exploration of alternative dispute resolution’s potential to promote justice and heal communities harmed by crime, contributing to the ongoing conversation about non-adversarial approaches to dispute resolution within criminology.
Introduction
The power lies with Civil Courts to refer cases for alternative dispute resolution like judicial settlement, arbitration, conciliation & mediation by Lok Adalats under Section 89 of the Code of Civil Procedure.
unlike civil disputes, the scenario is different in the criminal environment and the distinction is expressed as follows:
“Restorative” justice, which views crime as a violation of one person’s rights by another person and believes that justice in a criminal context should emphasize compensation for the victim’s harm, is represented in the criminal context by ADR.
alternative dispute resolution in the criminal context includes the concept of reparation in the context of transitional justice, which may not be present in civil Restitution is constructive action taken by the offender on behalf of the victim and society, which may include monetary compensation, community service, etc.
- In a civil context, compensation is only part of a court
- In civil situations, an ADR is confidential and a matter between the parties only, but in criminal cases, some case laws require that the final decision be made public by the
However, as shown in the precedent case of Afcons Infrastructure and Ors. V. Cherian Varkey Construction & Ors, the Indian criminal justice system was not open to the idea of including the option of mediation.
Inclusion Of Plea Bargaining
Used effectively in many jurisdictions around the world, plea bargaining can be described as a pre-trial agreement between the prosecution and the accused in which the accused pleads guilty in exchange for certain concessions made by the prosecution.
as the following judgments show, the Supreme Court has not always supported the inclusion of plea bargaining in Indian criminal law:
- Hon’ble Supreme Court in Muralidhar Meghraj Loya The state of Maharashtra rejected the idea of plea bargaining as it violated the fundamental right of a person accused of a crime not to be compelled to testify against himself.
- Kasambhai State of Gujarat and Kachia Patel Shantilal Koderlal Vs. In the State of Gujarat and Anr, the Supreme Court while condemning and condemning the plea deal accepted by the Magistrate held that plea bargaining is against public policy. According to the court, plea bargaining is an ultra virus of society and even the Constitution. It can also encourage collusion and corruption and taint the pure fountain of justice.
- Thippeswamy Vs. In the State of Karnataka, the Court held that it would be contrary to Article 21 of the Constitution to induce or induce an accused to confess to a crime in return for a promise or assurance.
The Criminal Law Amendment Act, 2005 enacted in response to the 154th Law Commission Report paved the way for introducing Chapter XXIA, Sections 265 A to 265L of the Criminal Procedure Code, 1973 (CrPC), including plea bargaining.
Concept as an alternative to the normal process of resolution of disputes by courts. Plea bargaining is allowed in situations where the maximum penalty is seven years in prison, the crime has not adversely affected the socio-economic status of the nation and the victim is not a woman or a child under the age of fourteen.
Sections That Recognise The Concept Of Settlement
The rules of procedure to be followed by the court in case of mutually satisfactory disposition are laid down in Section 265-C.
The court will serve the interested public prosecutor, the investigating officer of the case, the victim of the case, and the accused to attend the meeting to find an acceptable solution to the case filed on the basis of the police report.
In case of a complaint, the court only gives the statement of the accused and the victim.
The procedure for preparation and submission of a report on mutually satisfactory settlement Is regulated in Section 265-D. However, two situations can arise here:
- If the court prepares a satisfactory settlement report at the hearing held under section 265- C, it must be signed by the presiding judge and every other participant, if
- If there is no resolution, the court continues the trial of the accused in accordance with the provisions of the Criminal Code while filing a motion in accordance with paragraph 1 of Article 265-B.
Domestic Courts Perspective
The following judgments show that the courts recognized the idea of ADR procedures after the establishment of plea bargaining in Indian criminal law:
- Gian Singh Vs. In the State of Punjab, the Supreme Court held and accepted that an out-of-court settlement was the result of the High Court exercising the legal power conferred on it by Section 482 of the Code of Criminal
Family disputes where the wrong is primarily private or are of a personal nature and the parties have settled their dispute” are also exempted from this rule.
In these situations, the High Court has the power to stay the criminal proceedings if it determines that the offender and the victim have reached a full and final compromise and settlement, which makes the possibility of conviction remote and uncertain and continues the criminal case.
alternative dispute resolution
Would subject the accused to great oppression and prejudice and would cause grave injustice to him.
Supreme Court K. Srinivasa Rao D.A. Recognize the need for ADR mechanisms in criminal cases in their decisions. Deepa said that a complaint under Section 498A of the Penal Code, 1860, though a non-compoundable offense, can be quashed and the parties in the respective cases should approach the mediation center if they so wish. And if it shows that there is an element of remedy in a criminal
Under Section 19(5) of the Legal Services Act, 1987, Lok Adalat only 320 Cr.P.C. Dayavati Ugogesh Kumar Gosain in Special Act can only dispose of criminal cases involving offenses under or specified therein.
The Court further noted that Section 320 of the Criminal Procedure Code expressly authorizes and recognizes the processing of certain criminal reports.
Of course, the parties will agree to the contract only voluntarily. The parties shall not be denied any assistance such as a neutral mediator or arbitration tribunal to facilitate this
Parbatbhai Ahir and Parbatbhai Bhimsinghbhai Karamur Vs. State of Gujarat, J.D.Y.
Speaking before a three-judge bench, Chandrachud upheld Gian Kaur’s decision and said that mediation or out-of-court settlement should be done only in personal matters like business, finance, trade, partnership or similar Actually the citizen is character and not in that case.
The Delhi High Court has laid down the procedure to be followed to quash important proceedings based on an agreement between the parties to settle the case against Ashashpal Chaudhary
The court established the following rules, which are to be followed in mediation and similarly for other ADR procedures:
A court referring the parties to a criminal case for arbitration must first determine by a preliminary inquiry whether it is lawful whether the offense charged is compound or the High Court will not be limited by its dismissal.
The mediator (before commencing the process of mediation) shall make a preliminary inquiry into the facts of the criminal case and determine whether he is able to assist the parties to a resolution that the Court may find acceptable, having regard to this Act.
Addition of criminal offenses or exercise of the power of the High Court under Section 482 For this, a formal organizational structure must be created in mediation centers. If any of the above criminal cases are brought forward by the parties during the mediation process, a review of this nature also needs to be conducted as it widens the scope of the case beyond what was initially specified.
A verification system should be institutionalized at the end of the mediation process so that, before the parties formally settle the criminal case, it is satisfied that it is a criminal charge which is either relevant or in respect of which, the High Court, taking into account the relevant jurisprudence, the section of the Civil Code 482 will not feel any limitation in the exercise of its own powers.
The above judgments clearly demonstrate a paradigm shift In the adoption of ADR practices even in criminal situations. Many minor privacy violations are now handled using these techniques.
International Perspective
United States:
The victim and are brought together to talk face-to-face during the US mediation process, all under the organized guidance of a Although mediation can occur at any time during court proceedings, it almost always occurs after attending court.
A national survey by the U.S. Department of Justice found that more than half of mediations took place after a formal finding of guilt, while about a third took place before.
Even the most serious violent crimes, such as murder and aggravated assault, have been effectively solved in the US.
South Africa:
Community conferencing is occasionally used in South Africa as an alternative plan of action to divert offenders from the criminal justice system.
With or without government funding, these programs are usually overseen by community organizations or Compliance with the terms of the agreement by the offender may or may not be directly monitored by law enforcement or justice personnel.
Czech Republic:
The Probation and Mediation Service, in an effort to mediate effective and prosocial correction of problems related to criminality, is involved in pretrial and judicial proceedings.
Mediation can only be conducted with the voluntary consent of both Effective negotiation skills are a strong point of mediators.
They help conflicting parties resolve their differences and determine a situational solution that is acceptable to both parties.
Conclusion
The Criminal Procedure Code (CRPC) has introduced the concept of conciliation and laid down guidelines for recognizing mutually agreed disputes in cases of non-serious nature and non-community impact.
Earlier, Indian criminal law did not recognize the concept of alternative remedies in criminal cases.
The use of alternative dispute resolution should be expanded and used more often, as it differs from traditional court procedures.
It is therefore very important to reduce pressure on courts through out-of-court settlements, which should become the ‘new normal’.
Written By
Akash dutta