About the Author
Parvathy R Nair is doing her Masters in Law from Bharata Mata School of Legal Studies.
Introduction
The contemporary criminal justice system, designed for fair dispute resolution, prompts a reevaluation of procedural paradigms due to issues with the traditional adversarial model(1). This paper rigorously analyzes Alternative Dispute Resolution (ADR) as a compelling prospect, offering departures from adversarial frameworks. Focusing on criminal cases, it explores ADR methodologies like mediation and restorative justice, aiming to discern their efficacy in navigating criminal dispute dynamics. The study suggests that ADR holds promise for expeditious and cost-effective resolutions, enhancing stakeholder satisfaction(2). The study emphasizes designing ADR models aligned with fairness, accountability, and transparency principles. It advocates for ADR in criminal cases, envisioning a recalibrated justice paradigm prioritizing efficiency, equity, and a holistic understanding of intrinsic criminal dispute issues.
Background
The Constitution of India outlines the collective goal of ensuring justice—social, economic, and political, liberty, equality, and fraternity—for all citizens. In the contemporary context, the judiciary faces the significant challenge of delivering secure justice in line with the constitutional vision, emphasizing equal justice. Academic discourse within a welfare state scrutinizes India’s justice delivery mechanism, seeking to overcome barriers and ensure impartiality. Despite a tradition of formal legal dispute resolution, the imperative to address conflicts judiciously is crucial for societal peace. Therefore, establishing an efficient dispute- resolution mechanism is essential for sustaining a civilized society and realizing the welfare state’s objectives(3).
Alternate Dispute Resolution
Alternative Dispute Resolution (ADR) offers a departure from conventional legal proceedings, operating outside traditional court settings. It encompasses negotiation, mediation, collaborative law, and arbitration, occasionally including conciliation as a subcategory. Arbitration involves third-party decisions, while negotiation relies on collaborative efforts for dispute resolution. Mediation introduces a neutral third party for voluntary settlement. In India, ADR enhances the justice system by prioritizing speed, cost-effectiveness, confidentiality, and relationship-building, emphasizing enforceability, procedural fairness, and public acceptance. This stands in contrast to criminal jurisprudence, which relies on penal provisions, highlighting ADR’s emphasis on settlements to potentially bypass formal court proceedings. (4)
In 2011, the National Alternative Dispute Resolution Advisory Council (NADRAC) delineated a comprehensive set of principles aimed at fostering a responsible, equitable, and efficient Alternative Dispute Resolution (ADR) framework in Australia. These principles include the following(5):
▪ Principle 1 Reflect Personal Responsibility : Individuals bear an obligation to undertake sincere measures to settle or elucidate conflicts and should be aided in fulfilling that duty.
▪ Principle 2 Proportionality : Conflicts ought to be settled in the most straightforward and economically prudent manner. Measures to settle conflicts, incorporating the use of ADR processes where applicable, should be initiated as promptly as possible and both before and throughout any legal or tribunal proceedings.
▪ Principle 3 Participation and Effort : Individuals participating in a conflict resolution process should manifest their dedication to that procedure by attentively considering alternative perspectives and proposing various options for resolution.
▪ Principle 4 Informed Choice : Individuals embroiled in a dispute should possess entry to and actively pursue information facilitating their selection of appropriate conflict resolution processes, acquainting them with expectations from diverse processes and service providers
▪ Principle 5 Fairness : Those engaged in disputes should strive to achieve consensus through conflict resolution processes.
▪ Principle 6 Quality and Accessibility : They should not be compelled or coerced to do so if they perceive it to be unjust or inequitable. In the event of an unsuccessful resolution, individuals should have access to legal courts and tribunals.
▪ Principle 7 Stakeholder Confidence : Affordable, effective, and proficient ADR services, aligning with acceptable standards, should be readily accessible to individuals as a method of settling their disputes.
The Imperative of ADR in Indian Criminal Cases
The primary objective of justice is to provide relief to aggrieved and vulnerable individuals. Yet, the existing legal framework for dispute resolution has led to a considerable backlog of pending cases, exemplifying the truth in the saying, “Justice delayed is justice denied.” In a democratic society, it is crucial to guarantee substantial access to the dispute resolution mechanism, recognizing that the legal principle “Ubi jus, ibi remedium” must not be reduced to an empty promise(6). The 120th Law Commission Report(7) highlights that India has the lowest number of judges globally, with only 10.5 judges per million of the population. In light of this, the adoption of alternative dispute resolution mechanisms becomes imperative. This is driven by the need for an efficient system capable of delivering amicable and expeditious resolutions to public conflicts.
Chief Justice of India, DY Chandrachud, recently announced a significant development wherein the Supreme Court will henceforth disclose real-time data pertaining to case pendency through the National Judicial Data Grid (NJDG). Presently, the apex court contends with 80,344 pending cases, with 64,854 cases poised for hearing and an additional 15,490 cases yet to be registered for hearings. Noteworthy is the fact that, in the year 2023, the Supreme Court has effectively disposed of 36,164 cases out of the total 37,777 filed. Among the pending cases, civil matters constitute 78%, while criminal matters constitute 22%. Furthermore, there exist over 4,000 cases pending for more than a decade, encompassing 32,000 Special Leave Petitions (SLPs), 23,000 appeals, 884 contempt cases, and 35 suo motu cases (8).
ADR is essential in criminal cases, offering a swift and efficient way to resolve disputes outside the courtroom. It embodies a ‘restorative’ justice approach, focusing on addressing harm to the victim(9). Reparation involves offenders contributing positively through compensation and community services. ADR, distinct from traditional trials, addresses the global backlog of court cases through flexible alternatives like negotiation, mediation, collaborative law, and arbitration(10). Mediation, in particular, gains prominence in criminal justice, emphasizing voluntary resolution facilitated by a neutral third party.(11)
The strategic implementation of Alternative Dispute Resolution (ADR) in the Indian judicial system addresses challenges faced by traditional courts. Particularly tailored for criminal cases, ADR offers a swift and accessible resolution, benefiting economically disadvantaged offenders in motor accident and minor criminal cases. The key aim is to shield individuals from prolonged legal processes, high litigation costs, and procedural complexities, contributing to a more efficient and equitable justice system(12).
In response to the escalating backlog of criminal cases, the Law Commission of India advocated for reforms, notably proposing the implementation of plea bargaining in India in its 142nd report. Acknowledging the urgency to address delays in the disposition of criminal cases, the 154th Report of the Law Commission further endorsed the introduction of ‘plea bargaining’ as an alternative method to manage the substantial backlog, receiving support from the Malimath Committee Report. Subsequently, to operationalize these recommendations, the draft Criminal Law (Amendment) Bill, 2003, was presented in the parliament. Despite considerable opposition, the amendment was ultimately accepted. Consequently, Chapter XXIA was incorporated into the Code of Criminal Procedure, 1973, encompassing Sections 265 A to 265L, specifically addressing the mechanism of plea bargaining.(13)
Alternative Dispute Settlement (ADR) initiatives like Lok Adalats, legitimized by the Legal Services Authorities Act of 1987, enable dispute settlement outside traditional courtrooms. These informal forums help economically disadvantaged litigants negotiate resolutions. The 2002 amendment emphasizes the creation of permanent Lok Adalats for public utility service issues to expedite court proceedings and reduce traffic. ADR is used in these situations, but despite its success in criminal justice, there is still reluctance to use it in these settings, prompting careful implementation planning. (14)
In the realm of criminal justice, ADR encompasses a range of practices not traditionally deemed integral to the conventional criminal justice system. It encompasses(15):
❖ Victim/Offender Mediation,
❖ Family Group Conferencing,
❖ Victim-Offender Panels,
❖ Victim Support Programs,
❖ Communal Crime Prevention Initiatives,
❖ Community Service,
❖ Plea Bargaining, and
❖ School Programs.
Despite this expansive scope, the application of ADR in Criminal Justice within the Indian context remains circumscribed due to the perception of crime as a violation against the State rather than the individual victim. In contrast, Western Developed Countries, exemplified by the U.S.A, have embraced ADR models such as victim-offender mediation within their criminal justice frameworks.(16)
Comparative Perspective
ADR has revolutionized conflict resolution beyond traditional courts, providing efficient alternatives. Comparing ADR practices in India and the UK reveals shared principles and distinct approaches, offering insights into diverse legal and cultural contexts. (17)
Comparing ADR Values: India vs. UK:
Both India and the UK recognize the value of ADR in alleviating the burdens of traditional litigation. ADR methods are acknowledged for their efficiency and cost-effectiveness, minimizing strain on overloaded courts. The shared emphasis on amicable solutions underscores the global acknowledgment that collaborative and customized dispute resolution is crucial in modern legal systems.(18)
India’s Specialized ADR Strategies
India’s ADR evolution is deeply rooted in its socio-cultural context, showcased by the Lok Adalat system. These ‘people’s courts’ integrate community participation and consensus-based resolutions, resonating in rural and marginalized settings. India’s legislative framework, including the 1996 Arbitration and Conciliation Act, structures ADR. The challenge is shifting a litigation-centric mindset, necessitating awareness campaigns, legal literacy, and judicial encouragement. (19)
Innovative ADR Framework in the United Kingdom
In the UK, ADR seamlessly integrates into the legal framework through Civil Procedure Rules (CPR) and pre-action protocols. CPR outlines procedural rules, emphasizing ADR exploration before litigation, reflecting a culture valuing efficient resolution. Mediation is prominent, allowing quick and confidential dispute resolution. The UK’s commitment to innovation is evident through technology adoption in ADR, enhancing accessibility in a digital age. This comparative analysis emphasizes the importance of contextualizing ADR within legal, cultural, and technological landscapes. (20)
Suggestions and Recommendations
1. Avoid Adjudication or Imposition of Decisions: The panel in Lok Adalats should avoid imposing decisions to prevent litigants from losing faith. Proper training for presiding officers is recommended.
2. Public Awareness: There is a need to create awareness about Lok Adalats among the public, lawyers, and judges. Outreach efforts should include collaboration with Gram Panchayats, Sarpanch, and other local authorities.
3. Developing of ADR Tools: Clear definitions for ADR tools like Arbitration, Lok Adalat, Mediation, and Conciliation are necessary. Amendments should be made to provide specific definitions in related enactments. Specific ADR tools should be provided for different types of matters, such as matrimonial, commercial, negotiable instruments, and property disputes. Adequate infrastructure, including private meeting rooms, waiting rooms, and other amenities, should be provided to create a conducive environment for ADR.
4. Training for ADR Professionals and Referral Judges: Provide training for ADR professionals, including mediators, arbitrators, conciliators, and Lok Adalat panelists, covering different patterns, stages, note-taking, and agreement drafting. Referral judges and officers of legal service authorities should undergo periodic training in various ADR tools and the identification of cases suitable for referral.
5. Avoid Overburdening Mediators: Mediators should not be allotted too many cases to ensure sufficient time for settlement attempts. Consultation with legal service authorities can help in estimating the time required for case disposal.
6. Ethical Standards and Conduct Rules: Develop rules, regulations, and a uniform procedure for handling disciplinary complaints against ADR professionals who are not members of the judiciary. Include provisions for Establishing ethical standards and conduct rules for advocate mediators, conciliators, arbitrators, and Lok Adalat panel members.
In conclusion, the relevance of Alternative Dispute Resolution (ADR) in criminal cases is paramount, highlighting the importance of ADR models aligned with principles of fairness, accountability, and transparency. ADR offers a transformative approach to dispute resolution in criminal matters, mitigating the adversarial nature of traditional proceedings and fostering efficiency. Fairness is central to ADR, ensuring equitable treatment and consideration of all perspectives. Accountability is promoted through voluntary participation, encouraging parties to take ownership of the resolution process and fostering a sense of responsibility. Moreover, ADR’s emphasis on open communication and active involvement contributes to transparency, vital for maintaining public trust in the justice system. In navigating the complexities of criminal cases, ADR becomes a valuable tool, aligning with the principles of a just and responsive legal system and creating a framework for a more accessible, efficient, and equitable justice system.
LJRF Center for ADR
The Law and Justice Research Foundation’s Centre for Alternative Dispute Resolution (ADR) is dedicated to advancing expertise in all aspects of ADR. Committed to fostering knowledge, the center serves as a hub for research, education, and promotion of alternative dispute resolution methods. Through collaborative initiatives, the center aims to contribute to the evolution and enhancement of ADR practices, making significant strides in the field of law and justice.
Link to join the whatsapp group for LJRF Centre for ADR
https://chat.whatsapp.com/Iw09cLSt8XCHZ9S7ks41GP
Convenors
Adv. Abhirami G Nair, Mob: 7356655325
Adv. Aravind Prakash, Mob : 8593815222
Reference
1 Anoop Kumar Udai Pratap Singh, “ADR in Criminal Justice System in the Backdrop of Global Pandemic.,”
2 White Black Legal 5 (2020). 2 Kazi Hossain, “ADR in Criminal Justice System in India” (2021).
3 Gunjan Singhal, “Role of Alternative Dispute Resolution as a Mechanism for Administration of Justice” (Jiwaji University, Gwalior, 2017) available at.
http://hdl.handle.net/10603/190313
4 Anoop Kumar, “Applicability of ADR in Criminal cases” 2017 available at:
https://articles.manupatra.com/article-details?id=undefined&ifile=undefined
5 “Principles of ADR,” ADRAC available at:
https://www.adrac.org.au/principles-of-adr
6 Iftikhar Hussian Bhat, “Access to Justice: A Critical Analysis of Alternate Dispute Resolution Mechanisms in India,” 2 International Journal of Humanities and Social Science Invention 46 (2013).
7 Law Commission of India, 120th Report on Manpower Planning in the Judiciary: A Blueprint, Ministry of Law, Justice and Company Affairs, Government of India (1987).
8 “Data on Supreme Court pendency of cases goes live: Here’s a breakdown of numbers,” India Today available at:
9 Subhash Arbune and Dr Yadav, “Analysis of the Efficacy of Alternative Dispute Resolution Mechanisms in India and the UK” European Chemical Bulletin 7734–44 (2023).
10 Darshan Kumar and Pandya Rhishikesh Dave, “Possibility of Alternative Dispute Resolution Mechanism in Criminal Law,” 12 European Chemical Bulletin 1395–404 (2023).
11 Radhakrishnan H, “ADR in Criminal Law in India” 2023 available at:
https://portal.theedulaw.com/SingleArticle?uid=448
12 “The Role of Alternate Dispute Resolution in the Indian Legal System: Pros and Cons,” available at:
https://www.linkedin.com/pulse/role-alternate-dispute-resolution-adr-indian-legal-system-gupta
13 Supra note 4.
14 Anushtha Anupriya and Anusha C Gudagur, “Importance of ADR in Criminal Justice,” 2 International Journal of Legal Science and Innovation 528–34 (2020).
15 Supra note 6.
16 Supra note 11 at 530.
17 Prashant Subhash Arbune Dr. Priti Vijaynarayan Yadav, “Comparative Analysis of the Efficacy of Alternative Dispute Resolution Mechanisms in India and the UK,” 12 European Chemical Bulletin 7738–40 (2023).
18 Id., at 7739.
19 Id., at 7740.
20 Supra note 17 at 7741.
