Table of Contents CHAPTER 1: INTRODUCTION LL. What is aft ADR?...ssnnsnnnnnnnn ssnntnnnnnnnnnnin ssn 1.2. Legislative Intent... 8 1.3. Scope of ADR in Criminal Justice System 9 CHAPTER 2: NEED FOR ADR IN CRIMINAL JUSTICE SYSTEM .. 2.1. Restorative Justice & ADR... 10 2.1. Need for restorative justice 10 2.1.2. ADR and restorative justice in practice vietim-offender mediation... 2.1.3. Limitations of ADR in Criminal System 12 2.2. Different models of Criminal ADR Systems across the Globe. 2 CHAPTER 3: PLEA BARGAINING AS AN ADR MECHANISM 3.1. Kinds of Plea Bargaining... AS 3.2. Growth of Plea Bargaining in India nee 3.2.1. _ Effects of Plea Bargaining 7 3.3. Comparative Study of Plea Bargaining in Other Countries... vo ld 3.3.1. United Kingdom... 19 3.3.2. United States of America 19 3.3.3. Plea Bargain in Canada. 20 CHAPTER 4: POSITION IN INDIA. 4.1, Constitutionality of ADR programs in India, 4.2. Appraisal Of Criminal ADR Systems...... . snd 43, COVID-19 Impact... CONCLUSION & RECOMMENDATION ADR in Criminal Disputes | 2TABLE OF AUTHORITIES Cases Blackledge vs Allison, (1977] 431 US 63 2 Brady v US, [1970] 397 US 742 2 Dayawati v. Yogesh Kumar Gosain, 243 (2017) Delhi Law Times 117 (DB). Ganeshmal Jashraj vs Govt, of Gujarat, [1980] CriLJ 208 . 14 Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360. Kachhia Patel Shantilal Koderlal vs State of Gujarat & Anr, (1980] 3 SCC 121 Kachhia Patel ShantilalKoderlal v. State of Gujarat and Anr, 1980 CriLJ553 19 1 Babu Ram v. Raghunathji Maharaj and Ors., AIR. 1976 SC 1734... a 5 Maneka Gandhi v. Union of India, (1978] AIR SC 597. “4 Maneka Gandhi v. Union of India, AIR 1978 SC $97, 6 Murlidhar Meghraj Loya v. State of Maharashtra, AIR 1976 SC 1929, 19 Santa Bello vs New York, [1971] 404 US 257 sueannnnennennnennnes 2 State of Gujarat v, Natwar Harchandji Thakor, (2008) Cr.L.J. 2957. ssnnennnsnes 20 Statutes Art 38(1), Indian Constitution... . se . 6 Section- 265 B (4), The Code of Criminal Procedute 1973 se. we ¥ Other Author “RESTORATIVE JUSTICE ONLINE: Victim Offender Panel” 10 “There will be ‘flood’ of pending cases post-COVID, mediation needs to be emphasised:CIV' The Economic Times, (September 12, 2020) accessed at . 22 AK Sikri" Reforming Criminal Justice System: Can Plea Bargaining Be The Answer?, (NYAYA DEEP 2006) 39-60, on 1S, Alyssa H Shenk. “Victim-Offender Mediation: ‘The Road to Repairing Hate Crime Injustice”, 17 Ohio St. J.on Disp. Resol. 2001, 185-186... sontinnnninnnnninninnnnnnininnnnnnennnnn 9 Anoop Kumar, “Applicability of ADR in Criminal Cases”, Manupatra, 7 Ashworth & Redmayne, ‘The Criminal Process’ (ed. 3°) 283. 15 ADR in Criminal Disputes | 3Attorneys Paul Bergman & Sara J, Berman- Barett, “The criminal law handbook: Know your rights, survive the system’ (Berkeley, Nolo press 1997). 15 Department of Justice - SI's Blog. Doj.gov.hk. (2020). 2 Economy, C, (2020). China Pushes for Increase in Online Dispute Resolution as It Reboots Economy | Law.com International. Law.com International. Retrieved 8 June 2020. 2 Ewa Wojkowska, “Doing Justice: How informal justice systems can contribute (Oslo)”, 2006, 9......5 George Fisher, ‘Plea bargaining's triumph: a history of plea bargaining in America’ (Stanford University Press, 2003). v7 Government of India, justice system,” Vol.1, March 2000. 5 Impact of COVID+19 on Criminal Cases. Justia. (2020). 22 inistry of Home Affairs, “Report of the committee on reforms of criminal Indian courts will have to prepare for a different kind of a Covid crisis, ThePrint, (2020), .erunsnnen 21 Jim Dignan, “Understanding Vietims and restorative Justice”, (Open University Press,), 2005, 94... 8 John R. Gehm, ‘Victim-Offender Mediation Programs: An Exploration of Practice and Theoretical Frameworks’, Wester Criminology Rev. I (1) 10 K.V.K. Santhy, Plea Bargaining in US and Indian Criminal Law Confessions for Concessions, hup://www.commonlii.org/inijournals/NALSARLawRw/2013/7.pdf (last visited 30th January, 2020), 19 Khagesh Gautam, “Justice cannot be blind to the economy”, The Hindu Business Line, (March 2018), 5 Lucian E Dervan, ‘Bargained Justice: Plea Bargaining’s Innocence Problem and the Brady Safety- Valve (2012) Utah Law Review (1) 51-97. a Maggie T, Grace, ‘Criminal Alternative Dispute Resolution, Restoring Justice, Respecting Responsibility, and Renewing Public Norms” a Maggie T, Grace, “Criminal Altemative Dispute Resolution: Restoring Justice, Respecting Responsibility, and Renewing Public Norms (December 17, 2009)”, p. 564, Vermont Law Review, Vol. 34, 2010. snnnnnnne Mark 8. Umbreit, Robert Coates, Betty Vos. “VictimOffender Mediation: Three Decades of Practice and Research, Conflict Resol.” Q. 2004; 270-81:280.....0nn Marty Price, ‘Crime and Punishment: Can Mediation Produce Restorative Justice for Victims and Offenders?” 20 Melissa Lewis & Les MeCrimmon, “The Role of ADR Processes in the Criminal Justice System: A View from Australia’ on 10 Nani A. Palkhivala, “We the nation — lost decade (1994), UBS Publications, p. 215, 8 ADR in Criminal Disputes | 4NETWORK, L. (2020). 32.45 Million Cases Pending In India; 10% Over 10 Years Old : Justice Chandrachud Shares NIDG Statisties. a Peggy L. Chown, J.D. and John H. Parham, ‘Can We Talk? Mediation In Juvenile Criminal Cases” 21 Stetan, J Kapsch,’ Plea Bargaining, The guide to American Law: Everyone's legal Encyclopedia, (Minneapolis MN West, 1998). 16 Theo Gavrielides, Restorative Justice Theory and Practice: Addressing the Discrepancy (Criminal Justice Press, Helsinki), 2007, 21 . 8 Umbreit, Coates & Vos, The Impact of Victim-Offender Mediation: Two Decades of Research, 65 Federal Probation at, 2001, 30-31 9 The United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power of. 1985. . 9 ADR in Criminal Disputes | 5RESEARCH METHODOLOGY * SCOPE OF RESEARCH ‘The project aims to explore new concepts, theories and ideas about how ADR can be implemented in the criminal justice system in India, especially in light of the ongoing pandemic crisis to take the judiciary off the hook for the suppressed economy growth due to extensive judicial delays and pendency * STATEMENT OF PROBLEM Itis clear in hindsight that even before the Covid-19 pandemic, the effi eney of judiciary in India was inept due to combination of backlog of cases, judicial pendency and delays, lack of institutional infrastructure and resources. Then, the Covid-19 pandemic triggered a contraction that brought the criminal justi system in India to its kne As saying goes, “Justice delayed is justice denied”, it becomes the paramount duty of Indian Judiciary to impart timely justice. ‘Therefore, to include ADR mechanism into the criminal judicial regime in India is no more an option, rather has become the need of the hour. + RESEARCH QUESTIONS . What is ADR? What are the various modes of criminal ADR programmes across the globe? 2. What is the position of judiciary in India? Is there any need for ADR in Criminal Justi System in India? h ADR mechanism can be included in the 3. What are the methods/modes by whit Indian Criminal Judicial stem? Discuss the constitutionality of the same. 4. What are the advantages and criticisms involved in the Criminal ADR System? ADR in Criminal Disputes | 6CHAPTER 1: INTRODUCTION “Quality of Justice suffers not only when an innocent person is punished or a guilty person is exonerated, but also when there is an enormous delay in deciding the criminal cases."! Ina State-bas have been established -d formal justice system, numerous authoritative bodis such as police, public prosecution, and courts to ensure the efficacy in administration of Justice.’ However, despite the establishment of well structured justice system, the Indian Judiciary is burdened with huge backlog of cases, judicial pendency and delays. As per the existing practice, Justice is often being delayed (‘denied’), than timely served. With an aim to get the judiciary off the hook for also impacting the GDP of Indian Economy®, wherein such practice of delays also tends to erode the quality of justic erved and hampers the socio- economic development of the Indian society, ADR system is being regarded as an efficient method for resolution of disputes, and henceforth, disposing off the cases. ‘Social Justice’ inspires a systemic administration of justice that provides a cheap, expeditious and effective set-up for realization of justice for all the sections of people in the society, irrespective of their social or economic background.‘ In administration of an efficient law and justice regime, instant remedial mechanism needs to be enforced, especially in the matters of criminal justice. The civil justice system has already adopted to the arbitration and conciliation format for fast disposal of eases. However, there is a need to construct an alternative approach in the criminal justice regime, such as rationalization of pre-trial investigations, prosecutions, and compounding of less serious crimes. Another such measure is the introduction of ADR techniques in criminal matters as well, wherein plea bargaining, victim/offender mediation and panels, assistance programs, community service, ex-offender assistance, sentencing circles are some highlighted alternatives that can resolve the judicial delays of the Indian judiciary. Plea bargaining, in particular can be regarded as a practice that can significantly reduce the burden of the courts and increase the rate of convictions, Government of India, Ministry of Home Affairs, “Report of the committee on reforms of criminal justice system,” Vol.1, March 2000, Ewa Wojkowska, “Doing Justice: How informal justice systems can contribute (Oslo), 2006, 9 ® Khagesh Gautam, “Justice cannot be blind to the economy”, The Hindu Business Line, (March 2018) “1 Babu Ram v. Raghunathji Maharaj and Ors, AIR 1976 SC 1734, ADR in Criminal Disputes | 71.1. WHATIS AN ADR? Alternative Dispute Resolution (“ADR”) means dispute settlement practices other than courtroom adjudication to resolve the concerned issue among the parties to the dispute. As the term suggests, ADR is an alternative to the traditional courtroom procedures. Its differential characteristic is the considerable involvement of the concerned parties, rather than formal Utilizing court administered ADR mechanism, in addition to Lok Adalats, such as in compoundable offences, may re-ignite the process of speedy trial in criminal matters, which ‘was also awarded the status of fundamental right by the Apex Court of the nation An expeditious trial is an indispensable part of fundamental right of life and liberty under Article 21°. Reducing the burden from the shoulders of the judiciary will significantly expedite the Criminal Justice regime in the country and ensure the citizens of their basic right of quality justice. 1.2.__ LEGISLATIVE INTENT ‘The Indian Constitution enjoins the state to secure to all its citizens social, economic and political justice. The constitutional mandate calls for speedy justice as its catalyst to ensure socio-economic order in the nation, The Directive Principles of State Policy under Article 38 directs the States to ensure equality among different groups of people.” Right to Speedy Trial is recognized as a legal right under Article 21 of the Indian Constitution. ‘The British reign in India also gave us some headway in this field by introducing two effective legislations to deal with arbitration, ie., The Indian Arbitration Act 1899 and Section 89, Code of Civil Procedure 1908. Thereafter the Geneva Conventions of 1937 formed a parallel legislation as The Arbitration (Protocol and Convention) Act 1937. Ultimately, by 1966, a single piece of legislation known as the Arbitration and Conciliation Act, 1996 was enforced following the UNCITRAL Model Law. However, the inception of ADR mechanism in the criminal trials grew because of inherent necessity to remedy the criminals charged with petty offences from the indeterminate delays, extensive costs and rigid procedures. The Legal Services Authorities Act 1987 empowered such * Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360. * Maneka Gandhi v. Union of India, AIR 1978 SC 397. ‘Art38(1), Indian Constitution ADR in Criminal Disputes | 8conciliatory measures to take effect, which was formalized as ‘Lok Adalats’, which is a statutory platform that secks to address the litigation miseries of the weaker section of the society through negotiated settlements supervised by the Lok Adalat Judges. 1.3. SCOPE OF ADR IN CRIMINAL JUSTICE SY, M With due regards to the successful application of ADR in civil cases, there are numerous internationally accepted practices which do not form a part of traditional criminal justice system, that are being acknowledged as the savior of judiciaries worldwide from delays and pendency. It was during the 1980s when range of non-traditional dispute resolution processes evolved. Also, during the Roscoe Pound Conference on Perspectives on Justice in Future, ADRs advantage over crowded courts and strong potential of procedural alternatives to adjudication received enormous highlight as mode of resolving disputes in times to comet. Application of ADR in criminal justice system is seen as shift towards restorative justice, as such it aims to imbibe a sense of responsibility in the offender for the victim and the society. Criminal ADR procedures can be understood from various informal justice programs practiced across the globe, which consequently determine the scope of application of ADR mechanism to the criminal justice system, such as: 1. Plea bargaining: 2. Vietim-Offender Mediations (VoM); 3. Vietim-Offender Panels (VoP), 4. Vietim Assistance Programmes, 5. Private Complaint Mediation Service (PCMS); Numerous other programs and methods are equally enforced as part of criminal ADR systems. Adherence to such initiatives signifies the shift from the theory of deterrence to reparation, and henceforth setting up of restorative justice approach.” In Indian perspective, where the country is already dealing with issues arising due to over-population, the unchecked rising of cases has The famous left the judiciary vulnerable which is considerably undermining its efficiency Jurist Nani Palkhivala stated: * Maggie. Grace, “Criminal A terative Dispute Resolution: Restoring Justice, Respecting Responsibility, and Renewing Publie Norms (December 17, 2009)", p. 564, Vermont Law Review, Vol. 34,2010, ° Anoop Kumar, “Applicability of ADR in Criminal Cases”, Manupata, ADR in Criminal Disputes | 9“The greatest drawback of the administration of justice in India today is because of delay of cases The law may or may not be an ass, but in India, itis certainly a snail and our cases proceed at a pace which would be regarded as unduly slow in the community of snails Justice has to be blind but I see no reason why it should be lame. Here it just hobbles along, barely able to work." CHAPTER 2: NEED FOR ADR IN CRIMINAL JUSTICE S' EM In any state-based justice system, there is involvement of justice institutions like the police and the courts for prosecution as their foundation for administering justice. Even though the justice system is well established and well defined, there is a backlog of cases, due to which the justice provided to the people is usually delayed. The ADR system being speedier in nature is a more accessible alternative to this system in order to clear the backlog and pendency of cases. 2.1, RESTORATIVE JUSTICE & ADR The primary goal of Restorative Justice is to restore the relationship between the parties at dispute. ADR, focuses on resolving the disputes and maintaining a harmonious relationship between the parties. That's why ADR is considered to be the perfect tool for rendering the restorative justice in criminal matters 2.11. Need for restorative justice ‘The term Restorative Justice was coined by Albert Eglash, he did so in order to differentiate between the 3 types of criminal justice", They are as follows- 1. Retributive Justice- Emphasis is on punishing offenders for their wrong doings. 2. Distributive Justice- Emphasis is on the rehabilitation of offenders. 3. Restorative Justice- Emphasis on restoring the harmful effects of the acts of crime"? The theory of Restorative Justice is not to punish the offender, but to guide him to repent for the crimes he has committed and reintegrate him into the community. The fact that Restorative Iustice creates opportunities for the vietims, offenders and the community members who want to meet to discuss the crime committed and its consequences. The theory also expects the ® Nani A. Palkhivala, “We te nation — lost decade (1994), UBS Publications, p. 215. Theo Gavrelides, Restorative lustice Theory and Practice: Addressing the Discrepancy (Criminal ustice Press, Helsinki), 2007, 21 ® Jim Dignan, “Understanding Vietims and restorative Justice”, (Open University Press), 2005, 94 ADR in Criminal Disputes | 10offenders to take steps to repair the harm they have caused and seeks to restore the victims and offenders to whole and contributing members of the society. It also provides opportunities for the parties that committed the crime to participate in its resolution, Restorative justice, the model which victim-offender mediation subscribes to and practices, is a reaction against this model of conventional retributive justice. For the victims, that the offender has been punished by the state does not necessarily restore the losses they have suffered—it does not “answer their questions, relieve their fears, and help them make sense of their tragedy or heal their wounds”. The above discussion underlines the need of ADR, as it facilitates the communication and resolution between the parties rather than, deterrence. As results of this, westem countries like USA, have adopted ADR models like victim offender mediation, in their criminal justice system, Moreover, lack of victims ultimate control over the adjudicative process and the outcomes of the dispute, hampered the need to address the psychological needs of the victim in restoring the status quos. The criminal justice system has attracted a particular set of criticisms: itis seen as unsuccessfill in reducing rates of recidivism (and even may increase the likelihood of reoffending for particular groups, such as juveniles and Indigenous persons); it ignores the victims of crime and fails to recognize crime as a form of social conflict. Majority of crimes ori inates from dispute between individuals and communities. Hence, use of ADR, which aims at resolution of dispute, will not only resolve the dispute but will also prevent the future crime likely to arise out of such dispute. 2.1.2. ADR and restorative justice in practice victim-offender mediation It’s a process in which the offender and the victim of the crime are brought together to meet face-to-face under the structured guidance of a mediator’. The mediation may take place at any time during the course of the justice process, but almost all of them take place after court involvement, Studies have underlined the utility of Victim offender mediation programme wherein, victims and offenders going through mediation were far more satisfied with the Even the criminal justice system than those who went through regular court (79% to 57%))® ® Alyssa HH Shenk. “Vietim-Offender Mediation: The Road to Repairing Hate Crime Injustice”, 17 Ohio St. J. on Disp. Reso. 2001, 185-186. Mark S. Umbreit, Robert Coates, Betty Vos. “VietimO fender Mediation: Three Decades of Practice and Rescarch, Conflict Resol.” Q. 2004; 270-81:280. * Umbreit, Coates & Vos, The Impact of Vietim-Offender Mediation: Two Devades of Research, 65 Federal Probation a. 2001, 30-31 ADR in Criminal Disputes | 1United Nations has supported the use of “informal mechanisms for the resolution of disputes, including mediation,” where it is appropriate to “facilitate conciliation and redress for vietims'®, 2.1.3._Limitations of ADR in Criminal System ‘The limitations are as follows- 1. ADR can be used only in moderate criminal offences, 2. Existence of dispute is one of the prerequisite of ADR. In certain criminal cases there may not any dispute between the parties for e.g. rash and negligent driving resulting in injuries to pedestrians. 2.2. DIFFERENT MODELS OF CRIMINAL ADR SYSTEMS ACROSS THE GLOBE As far as the development of Criminal ADR procedures is concerned, it took birth from earlier “informal justice” programs." There are various criminal ADR programmes that are running throughout the globe. Some of these are as follows: 1. Victim-Offender Mediation Programs (VOM). Also referred to as victim-offender recone tion programs (VORP) or victim reparation programs, in most cases, its purpose is to promote direct communication between victim and offender. Victims who participate are provided with an opportunity to ask questions, address the emotional trauma caused by the crime and its aftermath, and seek reparations.!* 2. Community Dispute Resolution Programmes (CDRP) - CDRP seeks to dispose of minor conflicts that have not been disposed off and are clogging criminal dockets. The United Nations Declaration of Basic Principles of Justice for Viotims of Crime and Abuse of Power of 198, " Melissa Lewis & Les MeCrimmon, “The Role of ADR Processes inthe Criminal Justice System: A View from Australi’ * John R. Gehm, “Vietim-Offender Mediation Programs: An Exploration of Practice and Theoretical Frameworks’, Westem Criminology Rev. 1 (1) ADR in Criminal Disputes | 123. Vietim-offender Panels (VOP) - VOP developed as a result of the rise of the victims? rights movement in the last two decades and in particular to the campaign against drunk driving. They often used to provide the convicted drunk drivers with a chance to te human cost of drunk driving on vietims and survivors. It also intends to appreci decrease the likelihood of repeat off ses. 4, Victim Assistance Programs- VOCA established the ime Victim’s Fund, which is, supported by all fines that are collected from persons who have been convicted of offenses against the United States, except for fines that are collected through certain environmental statues and other fines that are specifically designated for certain accounts, such as the Postal Service Fund. 5. Community Crime Prevention Programs- The community crime prevention has included a plethora of activities, including media anti-drug campaigns, silent observer programs, and neighborhood dispute resolution programs. RESTORATIVE JUSTICE ONLINE: Vietim Offender Panel” ADR in Criminal Disputes | 13CHAPTER 3: PLEA BARGAINING AS AN ADR MECHANISM Plea bargain has its origin from the United States in 1920, before this period plea bargaining was not recognized at all in the society. It was termed as arbitrary and against the principals of natural justice and due to that the constitutional validity of plea bargain was challenged in the Harvard Law Review (1387). Later, in the year of 1967 rule 18 of Bar Association assented to the standards relating to the guilty plea, and advised the same for the accused. In the case of Brady vs US®, the validity of the plea bargain is upheld, it says that “plea bargain extends benefit to the accused that in tum, extends the benefits to the accused.” Further, in Santa Bello vs New York”!, the Hon’ble court said that when plea bargain is properly regulated and executed, it will help in proper administration of justice and hence should be practised more. Presently, in the cases of criminal justice system, plea bargain is a very popular practise followed in the United States for the resolution of criminal cases, For a statistical comparison, handful of criminal cases go for trial, few are appealed and even less than that end up in collateral review. Prosecutors rather than going for court room trial and filing charges prefers plea of guilty or a successful motion to dismiss. Statistics vary across Jurisdictions, but it would not be uncommon for half of all arrests to result either in no charges or in charges that are later dismissed, for 80 percent of the cases that are not dismissed to end in guilty pleas, and for the remaining cases to be tried. The plea bargain system of India is inspired from the United States Legal System for the purpose of achieving speedy justice and to reduce the accumulation of cases, it has also been added by the parliament in the Chapter XXIA of the Code of Criminal Procedure (CrPe) Plea bargain is always open to interpretation, in Blackledge vs Allison”, it was held that an accused can file an application for plea bargain in the court where the trial is pending. The application for plea-bargaining should be filed by the accused voluntarily.”® The proceedings are al, recorded and a substantial amount of time I given to the both, i.e. the complainant and Brady v US, [1970] 397 US 742 Santa Bello vs New York, [1971] 404 US 257 ® Blackledge vs Allison, [1977] 431 US 63 ® Section- 265 B (4), The Code of Criminal Procedure 1973, ADR in Criminal Disputes | 14the accused so that they can work out a deal. The confidentiality of the trial is maintained and it is ensured that whatever statement made by the accused during plea bargain are voluntary. ‘The concept includes women and children below 14 years. Crimes with punishment of more than 7 years or the punishments which are not compoundable under section 320, CrPC have been excluded from the purview of plea-bargaining. In other words, in a criminal proceeding a plea bargain can also be termed as an agreement between the accused and the victim, where the accused can plead guilty at the starting of trial or in between a trial in return for an deal from the prosecution. In such a deal the sentence is minimized and the judge informally informs the same. In the end, such an practise reduces the cost of the proceedings and saves time of the court. 3.1.KINDS OF PLEA BARGAINING. 1. Charge Bargaining: It is the defendant who has to come to plead guilty for reduction of charges. It occurs when the defendant pleads guilty to necessarily included offenses.” In such type of bargain the prosecutor agrees to change the charges to a charge which carries lesser amount or term of punishment. “An individual charged with burglary, a felony, may be offered a chance to plead guilty to criminal trespass, which is a misdemeanour.” Further, a person accused of drink and drive if pleads guilty, if there are other charges attached to it, such as suspended license or over speeding, such charges might be dropped. ‘The upper hand in amending the charges always lies with the prosecutor. 2. Sentence Bargaining: In such type of bargain, the certainty of sentence is assured by the prosecutor where an expression to the judge is made in return for a guilty plea. One opts for such a bargain is because, most charges has a very wide possibility of sentences, and due to this uncertainty itis preferred, When the sentence is specific itis always beneficial or else it would be of the discretion of the judge, that how much to > ibid ADR in Criminal Disputes | 15charge and what sentences the judgement will carry. Generally, sentence bargains must be approved by the trial judge. 3. Pact Bargaii ing- This type of bargain involves negotiations and admissions of certain facts stipulating to the truth and existence of provable fact, thereby eliminating the need for the prosecutor to prove them.’s There has been instances where, when there is a minor criminal offence a civil remedy is awarded to the crime doer. “Fact bargaining involves a stipulation to certain facts or the introduction to certain evidence, thereby eliminating the need for the prosecutor to have to prove them, in return for an agreement not to introduce certain other facts into evidence. The defendant may then technically maintain a plea of not guilty, though it is understood he will be found guilty.” 3.2.GROWTH OF PLEA BARGAINING IN INDIA It is an undisputed fact that crime was, is and always will be against the society and state. In the case of Kachhia Patel Shantilal Koderlal vs State of Gujarat & An, it was held that “the negotiation between the wrongdoer and the aggrieved party or with the state was held unconstitutional and illegal terming, it to be against the public policy.” Further in the case of Ganeshmal Jashraj vs Govt. of Gujarat”, the hon’ ble Supreme Court set aside the order of the Gujarat High Court and the matter was remanded back to the judicial magistrate as it was clearly established that the order passed for the conviction of the accused was due to coerced admission of guilt as a result of plea bargaining and hence against Article 21 of The Constitution. “But after the amendment in CrPC in 2005, there is a change in criminal justice. ‘The time has come to take it as norm rather than exception in the Criminal Justice system. 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 %Maneka Gandhi v. Union of India (1978] AIR SC 597, % Kachhia Patel Shamtilal Koderlal vs State of Gujarat & Anr, [1980] 3 SCC 121 © Ganeshmal Jashraj vs Govt. of Guiarar, [1980] Cri.) 208 ADR in Criminal Disputes | 16of Criminal Procedure, 1973. The said chapter contains Sections 265 A to 265L, which deal with plea bargaining.” ‘The initiative of speedy justice is always appreciated by increase of backlog of cases genuinely raising questions re 1rding functioning of judiciary and people are losing faith in the same. Plea bargain will help in restoring the faith and reduce the backlog, basically it a process which will definitely reform the criminal justice system. The benefits of the plea bargaining system outweighs the negative side of it, and the way it is drafted it is ensures that abuse of the process is minimal, 3.2.1. Effects of Plea Bargaining “Without the use of plea-bargaining the already over-crowded prisons would be even worse." In order to reduce the backlog of eases and achieve speedy justice plea bargaining is the key and it can be successful only if when judges, public prosecutors, accused, investigating officers and the victims co-operate and work together. The reasons to go for plea bargaining are as follows; 1. Plea Bargaining in respect to victims- The priority and needs of the vietim has to be prioritised. Plea bargaining has be drafted keeping in mind the vietim-oriented reform in the criminal system, Howevers, it is the first time that the recommendation and suggestion of Law Commission in CrPC have been implemented for taking care of the interest of the victim.” There is a scheme for compulsory compensation; and also the satisfactory disposition of the eas -. When the process is complete and the quantum of punishment and possibility of the probation is finished, we can say that the victims are not the forgotten actor rather they have become a key player in the et iminal justice % AK Sikri” Reforming Criminal ustice System: Can Plea Bargaining Be The Answer?, (NYAYA DEEP 2006) 39-60, » iid. ADR in Criminal Disputes | 17system.” They can bargain over the court's decision, The victim does not have to produce evidence in the Court and thus led to a reduction in anxiety to the vietims and the unpleasantness of hearing all details of erime analyse in length in public." This all also helps the court in disposing the case without causing any backlog and hence saving its time, 2. Plea Bargi approach of plea bargain is victim oriented but it is the accused who benefits from the ing in Respect to Accused and Judges and Prosecutors: Though the same, however this benefit comes with a condition precedent, and that is the accused have to plead guilty or has to confess about the commission of crime. Here the accused is awarded a lesser term or less harsh punishment in return of confession, hence benefiting the accused. 3. Plea Bargaining in Respect to Judges and Prosecutors- The time consumed in Plea Bargaining is always less as compared to take the case in trial. Many judges and Prosecutors get powerful incentive because of crowded calendars and overburdening of Prisons. Plea Bargaining help court and prosecutors to manage caseloads.”? Judge even presides effective trials because of Plea bargaining, minimize the risk of the ruling being overturned on appeal; and to avoid the necessity of making. a ruling during the trial, > ttomeys Paul Bergman & Sara J. Bermane Barett, “The eriminal law handbook: Know your rights, survive the system’ (Berkeley, Nolo press 1997). ® Ashworth & Redmayne, ‘The Criminal Process’ (ed. 3%) 283. ® stetan, J Kapsch, Plea Bargaining, The guide to American Law: Everyone's legal Encyclopedia, (Minneapolis MN West, 1998). ADR in Criminal Disputes | 183.3. COMPARATIVE STUDY OF PLEA BARGAINING IN OTHER, COUNTRIES 3.3.1. United Kingdom A criminal act is not just related to an individual, a company can also cause an criminal activity and hard other people, for instance three out of ten of all merger and acquisition deals in Britain show signs of irregular share trading activity just before they are announced. It is quite clear that insider activity in increasing in UK. Now such an act of crime is not victimless, it affects the shareholders profit, might affect the closing of the deal and can also ultimately lead to loss of jobs. If London is to retain its reputation as the leading global financial centre, the Financial Services Authority must crack down on this illegal activity. This is easier said than done, as all too often it has proved too difficult to catch the culprits and, even when identified, to0 complicated to obtain a successful prosecution. To combat the problem, the Attorney General is considering importing a mechanism from the US that has proved useful in securing a better conviction rate - plea bargaining. In countries such as England and Wales, Victoria, Australi "Plea Bargaining’ is allowed only to the extent that the prosecutors and defence can agree that the defendant will plead to some chatges and the prosecutor shall drop the remainder. 3.3.2. United States of America It would be true if someone said that The United States introduces plea bargain to the world and they are one who has amended and interpreted it to accommodate large number and types of cases. The majority of criminal cases are first tried by plea bargain and then if deal fails the matter goes to the trial. They have also been increasing in frequency—they rose from 84% of federal cases in 1984 to 94% by 2001.” The case of Brady vs United States 1970, established the constitutional validity of plea bargain although the Supreme Court warned that plea incentives which were sufficiently large or coercive as to over-rule defendants’ abilities to act freely, or used in a manner giving rise to a significant number of inno ent people pl » George Fisher, ‘Plea bargaining’ triumph: a history of plea bargaining in America’ (Stanford University Press, 2008), ADR in Criminal Disputes | 19guilty, might be prohibited or lead to concerns over constitutionality.** Santobello v. New York added that when plea bargains are broken, legal remedies exist 3. Plea Bargain in Canada Statistically speaking, around 90% of the eases in Canada are solved by admission of guilt, and in that too many are outcome of negotiation to plead guilty between Crown and the accused defence. While implementing plea bargain, the nature of charges that will be charged and the charges which will be dropped ate discussed by the Crown and the Defense, and hence this system benefits all the party concerned to the case, it is clear that the parties to a successful plea negotiation enjoy the de facto power to exercise a considerable degree of influence over the sentence that is ultimately imposed by the trial judge, ™ Lucian E Dervan, ‘Bargained Justice: Plea Bargsining’s Innocence Problem and the Brady Safety-Valve (2012) Utah Law Review (1) 51-97. ADR in Criminal Disputes | 20CHAPTER 4: POSITION IN INDIA 4.1, CONSTITUTIONALITY OF ADR PROGRAMS IN INDIA. After India achieved its independence, and the Indian Constitution was adopted in 1950, alternative dispute resolution methods were founded in India on the constitutional basis of basic rights granted under Article 14 and 21, ic., Equality before law and equal protection of law and right to life and personal liberty. Further constitutional directives were framed under Article 39A directing states to implement practices ensuring equal justices and free legal aid, ADR seems to be the fitting piece of puzzle in making justice available to all at an affordable cost. Article 40 of the Constitution further directs the States to endow village panchayats as unit of self-government, The underlying objectives of Article 40 have been accomplished by enacting the 73" Constitutional Amendment Act 1992 introducing the panchayat system for resolution of small disputes as primary levels. This amendment is viewed as the constitutional sanction to the distinct resolution methods outside the ambit of the courtrooms. ‘The Constitution of India has provided the basic set-up to introduce ADR mechanism. The ultimate duty lies upon the Judicial wing and the States to bring such methods into mainstream practice. ADR has received recognition from the Legislature in form of various statutes. However, when it comes to implementing such techniques in criminal matters, disputes have arisen for years. ‘The concept of Plea bargaining has not received the warm welcome by the Indian judiciary in the previous decades. It has been viewed as an immoral method of trading out criminals from their charges."* Even the Apex Court of the country did not give its assent to such practice as vivid from the case of Murlidhar Meghraj Loya v. State of Maharashtra®® where the Court observed that such advance arrangements of compromising in the criminal cases may please everyone except the distant victims and the silent society. Further ahead, it was held that such practice is unconstitutional, illegal and tends to promote corruption and pollute the justice % K.V.K. Santhy, Plea Bargaining in US and Indian Criminal Law Confessions for Concessions, huips/isyww.commonli.orginjjournals/NALSARLawRw/2013/7-paf (last visited 30th January, 2020), Murlidhar Meghraj Lova v. State of Maharashtra, AIR 1976 SC 1929 ADR in Criminal Disputes | 24front.2” However, it was only in the preceding decade its significance was realised, when the Gujarat High Court emphasised on incorporating such methods to deal with huge arrears in criminal cases.** Recently, in the judgement of Dayawati v. Yogesh Kumar Gosain”, Delhi High Court held that the criminal compoundable offences can be settled through intercession. This case particularly dealt with the legality of settlement of criminal disputes via alternative methods and held that even though no express provision is dedicated towards utilising ADR methods in criminal dispute redressal, there is no bar in implementing such methods where subject matter of the offences are covered under Section 320 of the Code of Criminal Procedure. ‘This judgement proves to become a milestone of advancement in this field where general ADR. practices can be inculcated into the criminal judicial curriculum and suits. In ape pointles pursuance of this judgement, and to achieve the goal of settling of compoundable criminal cases through intercession, it becomes an indespendable step to amend CrPC and introduce an arrangement equivalent to Section 8 of Code of Civil Procedure, which shall offer legislative backing to the criminal courts in infusing the ADR mechanism in the criminal jurisprudence. 4.2. APPRAISAL OF CRIMINAL ADR SYST! MS Some criminal ADR programmes like Victim-Offender Mediation Programs have been successfully mediating to bring justice between crime victims and offenders for over twenty ‘years. There are now over 300 such programs in the U.S. and Canada and about 500 in England, Germany, Scandinavia, Eastern Europe, Australia and New Zealand.*? Some statistics from a slice of the North American programs reveal that about two-thirds of the cases referred resulted in a face-to-face mediation meeting; over 95% of the cases mediated resulted in a written restitution agreement; over 90% of those restitution agreements are completed within one ye On the other hand, the actual rate of payment of court-ordered restitution (nationally) is typically only from 20-30%." ‘Privatizing the public harm With the growth of the ADR movement, Owen Fiss in his seminal article Against Settlement, argued that ADR advocates naively painted » Kachhia Patel ShantilalKoderlal v. State of Gujarat and Anr, 1980 CHiLSS3 % State of Gujarat v. Narwar Harchandji Thakor, (2005) Cr.L.J. 2987, © Dayawat v. Yogesh Kumar Gosain, 243 (2017) Delhi Law Times 117 (DB). © Marty Price, ‘Crime and Punishment: Can Mediation Produce Restorative Justice for Victims and Offenders?” “ibid ADR in Criminal Disputes | 22settlement as a “perfect substitute for judgment” by trivializing the remedial role of lawsuits and privatizing disputes at the cost of public justi ‘+ Mediation mostly being followed -Mediation has been adopted in various countries as a means to resolve the criminal disputes. To be specific, mediation has been consistently applied in juvenile justice programmes. As an example, Romania has been applying mediation to the field of Criminal Law. Articles 67-70 in the Law 192/2006 of Romania lay down provisions regarding mediation in the criminal cases. In countries like Canada, England, Finland, and even in the United States, the system of mediation is being used to resolve the juvenile offences.” ‘Though, the mediation of severely violent crimes is not usual, ina chunk of vietim-offender programs, victims and survivors of severely violent crimes, including murders and sexual assaults, are finding that confronting their offender in a safe and controlled setting, with the assistance of a mediator, retums their stolen sense of safety and control in their lives. The emphasis is upon healing and closure, But in cases of severely violent crimes, victim-offender mediation cannot replace punishment. 4.3. COVID-19 IMPACT As per the recent revelation by Justice D Y Chandrachud during a webinar organised by Nyaya Forum, NALSAR, and the data from the National Judicial Data Grid suggest that there are around 32.34 million cases pending in India.* Asa further addition, the imposition of complete nationwide lockdown gave the Indian judiciary a severe blow in handling of the already pending cases, and invited significant number of more cases, due to COvid-19 resulting in issues in regulation of trade and commerce. © Maggie T. Grace, ‘Criminal Alternative Dispute Resolution, Restoring Justice, Respecting Responsibility, and Renewing Public Norms” © Peggy L. Chown, }.D. and John H. Parham, “Can We Talk? Mediation In Juvenile Criminal Cases + NETWORK, L. (2020), 32.45 Million Cases Pending In India; 10% Over 10 Years Old : Justice Chandrachud Shares NIDG Statistics, “Indian cours will have to prepare fora different kind of a Covid crisis. ThePrint, (2020) ADR in Criminal Disputes | 23.As a counterpart in being overpopulous nations, China introduced “internet arbitration system’ and Hong Kong launched the special “Covid-10 Online Dispute Resolution”? to tackle the expected rise in disputes and curb the pre-existing judicial pendency. In the Indian context, e-conferencing hearing and e-filing facilities have been initiated to resolve the disruption in administration of justice. However, the sitTuaito is criminal matters have not received the much needed attention. No significant steps have been taken either by the government or the judiciary. In comparison, the U.S. has resolved its bulk of criminal cases through plea bargains.** However, the Indian scenario with respect to disposal of criminal matters still remains at a nascent stage which if unaddressed shall negatively impact the Indian ‘economy as well. NOG Duin FvsnyDantns OgpesDatons Rh nr nan ED PE RCSL IKL IE 7586189 (20.12%) ar (79.76%) : Source: National Judicial Data Grid, as on November 3, 2020. Addressing a gathering, the Chief Justice of India suggested that after the lockdown is lifted, the Indian Judiciary is going to face a flood of cases, which cannot be dealt with the usual method of detailed court procedures and emphasis needs to be placed on mediation, pre-and post -Litigation mediation for resolution of the matters.° “ Eeonomy, C. (2020). China Pushes for Increase in Online Dispute Resolution as It Reboots Economy | Law.com International. Law.com Intemational © Department of Justice = STs Blog. Doj.gov.hk. (2020), * Impact of COVID-19 on Criminal Cases. Justia, (2020), © “There will be ‘flood’ of pending cases post-COVID, mediation needs to be emphasised:CIT' The Economic ‘Times, (September 12, 2020) accessed at ADR in Criminal Disputes | 24‘CONCLUSION & RECOMMENDATION In India, for protecting and enhancing the rights of the people, not only judiciary but also, the legislature and the executive play an important role in the enforcement of rights of citizens and remedies thereto, in case of violation thereof, Courts have been established at all levels in the country. In this connection, Alternative Dispute Resolution (ADR) has a significant role in criminal trial and to the convicts, which are devoid of general facilities. The rate of conviction is high in case of plea-bargaining, ADR system, undertaken in appropriate conditions, can support court reform, improve access to justice, increase disputant satisfaction with outcomes. It has reduced not only delay but also the cost of resolving disputes. Common concept developed among the people is that once a criminal litigation started, will never be ended, because the adjudication of eriminal case in criminal justice delivery system is a long time and cost consuming. ADR processes have potentiality to decrease significantly the costs and delays associated with traditional court proceedings, In present situation we must apply ADR system in wider way, and to decrease the caseload. We should enforce ADR system from the root level. Rising awareness and effective initiatives are the tools of ensuring proper justice by ADR system. People know and realize the advantages of ADR, and then it is possible to ensure the quick and substantial justice. ADR initiatives can ensure the proper and speedy justice among the common people of India. RECOMMENDATIO! In this juncture, few things are most required to be done for furtherance of smooth ADR mechanisms. Few of them a Creation of awareness and popularizing the methods is the first thing to be done. NGOs and medias have prominent role to play in this regard. - For Court annexed mediation and conciliation, necessary personnel and infrastructure shall be needed for which government funding is necessary. - Training programmes on the ADR mechanism are of vital importance. State level judicial academies can assume the role of facilitator or active doer for that purpose. ADR in Criminal Disputes | 25