Alternate Dispute Resolution

ALTERNATE DISPUTE RESOLUTION
T3- Research Paper
“REVIEW OF ALTERNATE DISPUTE RESOLUTIION IN CRIMINAL TRIAL

UNDER INDIAN JUDICIAL SYSTEM”
by
G SHASHANK RAO
BBA LLB; Division C; PRN 17010324019
Batch 2017-22
Submitted to
Symbiosis Law School, Hyderabad
Symbiosis International (Deemed University), Pune

Under the guidance of
Dr. Irfan Ali Abbas
Visiting Professor
Alternate Dispute Resolution
In
September, 2021
INTRODUCTION
Background
Many cases are pending in Indian courts. Alternative Justice Resolution (hence referred to as
ADR) has gained critical importance in practically every civilised society as lawsuits have
skyrocketed. Negotiation, mediation, arbitration, collaborative law, and conciliation are all
examples of alternative dispute resolution1. The parties rely on a third-party decision-maker
to reach binding decisions in arbitration. In the event of a negotiation, the attorneys for both
parties work together to resolve the conflict. Mediation is a way of bringing about a voluntary
resolution and settlement via the use of a neutral third-party.
Alternative Dispute Resolution (ADR) refers to processes that take place outside of the
courtroom. Because the number of pending court cases and lawsuits has increased
dramatically, ADR has become increasingly important in practically every civilised society.
It is necessary to recollect US President Abraham Lincoln's famous statements underlining
the importance of ADR2.
The idea of an alternative dispute resolution (ADR) component in criminal cases emerged
from a urgent need to give a straightforward and open solution for helpless hoodlums who are
at fault for engine vehicle accidents and other disputes which are concise in nature such as
matrimonial disputes , recovery etc to save time and money invested in it resulting in saving
of resources which is the dire need of the judicial system . The Legal Services Authorities
Act of 1987 give a certification and backing of some sort to acknowledge a speedy justice
system outside of court room called Lok Adalat3. Lok Adalat's are presently taking on another
measurement to help the lower areas of society manage their legitimate troubles. It offers
defendants with a legal discussion to settle their issues through arranged settlements before
Lok Adalat judges4.
To ease the burden, the Legal Services Authorities Act, 1987 introduced Lok Adalat through
2002 amendment, for the settlement of disputes related with public utility organizations
using an ADR method5.
1
https://madhavuniversity.edu.in/critical-study-on-adr.html
2
https://www.lawctopus.com/academike/criminal-cases-adr/
3
4
https://heinonline.org/HOL/LandingPage?handle=hein.journals/ijlj7&div=26&id=&page=
5
In the criminal setting, ADR represents a pattern toward 'helpful' equity, which considers a
wrongdoing as an infringement of one individual's right by another, with equity zeroing in on
repairing the casualty's aggravation.
In the criminal setting, ADR remembers an idea of restitution for the setting of temporary
equity, which might possibly be available in civil intercession. In the civil setting, repayment
alludes to an act on a wrongdoer to accomplish something advantageous in the interest of the
person in question and society, which might incorporate remuneration, local area
administration, etc, and is essentially a piece of the court settlement6.
In criminal instances, ADR entails a final settlement that must be declared in court under
varied rules, however in civil situations, the same is confidential and solely between the
parties.
On the other hand the judiciary, was not open to the idea of including mediation as an option,
as evidenced by the landmark case of Afcons Infrastructure v. C V Construction and Ors 7.,
which held ADR is not the most judicially sound method for Criminal Trial.
The 154th Report of the Law Commission was quick to propose the incorporation of the idea
of supplication bartering in Indian criminal law to decongest courts introduced a method of
outside dispute resolution with the Criminal Amendment Act, 2005 ready for it in Chapter
XXIA, Sections 265 A to 265Lof Code of Criminal Procedure 8. It considers supplication
haggling in situations where the most extreme sentence is seven years, the wrongdoing no
affects the country's financial circumstance, and the wrongdoing was not carried out against a
lady or a kid younger than fourteen.
Sections relevant to ADR:
 Section 265C comes as a remedy adopted by courts when arriving at a commonly

satisfactory resolution. The court serves notice to the intrigued public investigator, the
researching official of the case, the survivor of the case, and the blamed to go to a
gathering to work out an OK resolution of the case for a situation started on a police
report. The Court just serves notice to the blamed and the casualty in an objection
case9.
6
https://shodhganga.inflibnet.ac.in/bitstream/10603/111472/11/11%20chapter%2002.pdf
7
2010 (8) SCC 24
8
9
https://blog.ipleaders.in/alternate-dispute-resolution-criminal-jurisprudence/
 Section 265D establishes the method for preparing and submitting a report of
mutually agreeable disposition. While doing so, two situations may emerge, as stated
in the provision itself:
 On the off chance that the court composes a report of the satisfactory demeanor,
assuming any, at a gathering under area 265-C, it should be endorsed by the directing
official of the Courts and any remaining people who went to the gathering.10.
 In the event that no resolution has been reached, the court will proceed with the
blamed's preliminary; under the necessities of the CrPC, 265-B has been documented
in such a case, in the wake of recording the perceptions of disappointment of the
resolution11.
International perspective
UNITED STATES OF AMERICA: The person in question and the guilty party of the
wrongdoing are united to meet vis-à-vis under the coordinated administration of a go between
in the United States. Intervention can occur anytime during the legitimate interaction, yet it
almost consistently occurs after the court has been involved. As indicated by a public review
performed by the US Department of Justice, almost 33% of interventions happen before to
any conventional judgment of culpability 12, while the greater part happens from there on. In
the United States, even the most genuine vicious offenses, like genuine attack and murder,
have been effectively intervened.
RESEARCH METHODOLOGY
Generally, there are three ways in which the research study is carried out. They are:
● Doctrinal Research
● Non- Doctrinal Research
● Empirical Research
This study has been carried out by following Doctrinal Research Methodology. It has further
helped in analysing the Sections related to the alteration or Amendment of the Object Clause
of the Memorandum with legal concepts and case laws and statutes. The research adopted
closely assesses the impact it has on both the government and the citizens of the state by
closely reviewing intricate cases and accumulating the data to form an opinion. Doctrinal
method is normally a two-part process, because it involves:
10
11
http://www.questjournals.org/jrhss/papers/vol5-issue7/F574350.pdf
12
● First part of doctrinal methodology:
Locate the Sources of Law and to Frame the Research Questions

● Second Part of the Methodology:
RESEARCH QUESTIONS
 WHAT IS THE SCOPE OF ADR IN A CRIMINAL TRIAL?

 WHETHER THE PROVISONS FROM THE CIVIL PROCEDUREC BE ADAPTED
AND ADJUSTED FOR INCLUSION OF ALTERNATE SETTLEMENTS IN
CRIMINAL TRIALS?
 WHETHER THE SCOPE OF ADR IN CRIMINAL TRIALS IN DIFFERENT
COUNTRIES CAN BE ADOPTED I TH EINDIAN JUDICIAL SYSTEM?
STATEMENT OF RESEARCH OBJECTIVE
There are roughly 59,867 criminal cases waiting before the Supreme Court of India,
according to a well-known idea in the Indian judicial system: "justice delayed is justice
denied." The situation is significantly worse in the subordinate legal system, with 44.75 lakh
cases pending before India's high courts and 3.14 crore cases pending before district and
subordinate courts. In the recent decade, the number of cases pending in Indian courts has
grown. Around 25% of the cases in the High Courts have been outstanding for more than ten
years. The backlog of cases before the courts has become a challenge for our country's legal
system. As a result, there is an urgent need for an ALTERNATE method of resolving
criminal disputes in order to provide correct and timely justice.
The following is the objective of this paper
 To conclude on a definite way of alternate settlement which is judicially sound.

 To take instances for different case laws and Provisions to observe and comment on
their efficiency in criminal matters if possible.
 To review ADR policy in criminal matters of other States and Republics so that there
can be a fair opinion on the functioning of the same.
LITERATURE REVIEW
Alternative Dispute Resolution :A Developing World Perspective
By Albert Fiadjoe
As a result of this book, civil justice in the Commonwealth Caribbean has undergone a
dramatic change from litigation to alternative dispute resolution (ADR) approaches. ADR has
gained a lot of traction in the last quarter of a century, and the literature on the subject is now
extensive.
ADR should be reconsidered in light of the experiences of those in developing countries,

according to this book. We have unique challenges in our knowledge of civil and criminal
justice in the developing world because of the impact of globalisation. This book is suitable
for readers of all ages and backgrounds..
Alternative Dispute Resolution System in India
By Dr. Ashok Kumar
With the current state of affairs, alternative dispute resolution (ADR) is becoming an
increasingly popular way to settle early-stage disagreements. It's a national issue that affects
the entire nation as a whole. It is a fast, cheap, and low-cost method of resolving
disagreements. For the traditional or ordinary courts, this lessens their workloads. It's become
an essential aspect of our country's legal system. Dispute resolution is made more accessible
to everyone through the ADRS, which encourages participation from the national
community. Students will learn all they need to know about the ADRS from this book. There
are nine sections to the book. The first section of the book is titled "Introduction to ADR."
Alternative Dispute Resolution System Global and National Perspective
By Dr. Ashok Kumar
Information on alternative dispute resolution is provided in a concise and well-organized

manner in this book. Throughout the book, there are two parts and twenty chapters that make
up the whole length. ADRs on a global scale are the focus of Part 1, whereas ADRs at the
national level are the focus of Part 2. ADR's origins and development are covered in the first
chapter13.
The Indian Statutes and ADR are covered in Chapter 16. NyayaPanchayat and Gram
Nayalaya make up the seventeenth chapter of the text. Arbitration and Conciliation Act of
13
1996 (AC Act) is the subject of Chapter Eighteen 14. The Innovative Trends of Justice and
ADR are the subject of Chapter 19. Chapter twenty focuses on litigation policy, and a number
of useful ideas are stated or referred to. Many important international and national ADR rules
are discussed in Chapter twenty-one. Students will benefit from the book's easy-to-
understand language.
Future of Justice
By Dr. V.V.L.N. Sastry
For a long time, individuals, groups, and organisations depended primarily on the courts to
resolve their problems. On the other hand, many people today are able to resolve their
disputes without having to go through the legal system. Arbitration and mediation are two
forms of alternative dispute resolution that can be used to resolve conflicts outside the court
system. In order to reduce the cost and time of alternative dispute resolution, current
technology might be used into the proceedings 15. One of the ways of Alternative Dispute
Resolutions, Online Arbitration, is the topic of this book. Dispute resolution via online
arbitration requires a legal framework that specifies how notifications will be sent, how they
will be performed, and how an acknowledgement of receipt will be issued. It should also
highlight the parties' commitment to maintain high ethical standards during the dispute
resolution process and allow parties to choose the most appropriate extra-judicial measures
for faster and simpler execution of the proposed verdict16.
New Law of Arbitration
By Mital
Changes in Indian arbitration law made by the Arbitration and Conciliation Act of 1996 ('the
1996 Act') were significant. Rather than relying on courts to act as watchdogs, it took on a
more supportive role. It increased the parties' ability to determine the appropriate arbitration
processes on their own17. It removed the requirement that foreign arbitrations be conducted in
accordance with Indian law. What a blessing! These improvements could be a godsend to the
business community, which has been subjected to a barrage of judicial lawsuits. ADR
processes like conciliation, bargaining, and mediation are also discussed in this literature. The
Indian court system is also discussed. As a result, this book is able to provide an in-depth
14
15
Future of Justice
16
Future of Justice
17
https://heinonline.org/HOL/LandingPage?handle=hein.journals/ijlj7&div=26&id=&page
look at a wide range of topics, citing key court decisions in the process. Such an authoritative
and succinct summary of major aspects of arbitration and conciliation legislation in India is
provided by this document18.
DISCUSSION
ADR stands for "Alternative Dispute Resolution."
Conflicts can be resolved without the use of courts through a process called Alternative
Dispute Resolution (ADR). Arbitration, negotiation, mediation, and conciliation are just a
few of the techniques used by a neutral third party to reach a solution. Without the Court's
intervention, the matter has been resolved19.
ADR techniques have long been used in India. The Panchayat System, for example, dates
back more than 2,500 years and is still commonly utilised to resolve conflicts.
ADR in criminal trials in India
Due to the benefits that ADR processes provide, their usage in criminal trials in India has
increased significantly. Speedy trial, confidentiality, and cost-effectiveness are all advantages
of this method of settling disagreements. In this way, litigation as a method of dispute
resolution is mostly overcome20.
The Malimath Committee undertook a study of the Indian judicial system in order to deal
with the backlog of cases. Plea Bargaining should be established in India's Criminal Justice
System to lessen the load on the courts and to guarantee that justice is accessible to
individuals at the minimal cost of time and money, according to a report from the
Committee21.
As a result, the Criminal Law (Amendment) Act, 2005, under Chapter XXI A of the Code of
Criminal Procedure, 1973, brought the idea of "plea bargaining" into the Indian criminal
court system, formally introducing ADR methods22.
India's plea bargaining, a report:
18
19
20
21
22
Plea Bargaining sparked a massive public discussion in India. The Supreme Court ruled in
State of Uttar Pradesh vs. Chandrika 23 that it is established law that the court cannot dismiss
a criminal case without considering the evidence. If the defendant admits guilt, the court must
impose the proper punishment. In addition, the court ruled that pleading guilty was not
enough to warrant a reduction in sentence. It was ultimately accepted by the government, and
Sections 265A – 265L[5] were added to the Code of Criminal Procedure, 1973. The
application, method, and other requirements for a plea bargain are laid forth in these laws24.
Advantages
It is possible that a plea bargain is a way of acknowledging one's guilt and attempting to
improve one's behaviour toward society. It protects the victim from the stress of a protracted
criminal trial, therefore enhancing the victim's position through compromise25.
Due to the high expenses associated with litigation, it is a cost-effective approach of settling
criminal matters. As a result, major criminals are prevented from avoiding punishment26.
Criticism
Claims that this approach trivialises litigation and court proceedings have been made against
this system. Privatizing conflicts at the expense of public interest and justice, especially in
criminal cases, is considered to be against the interests of society at large27.
According to the judiciary, there is a risk of coercion during plea negotiations, thus the choice
to engage into a deal must be made willingly by the accused. Because so many defendants
choose to plead guilty rather than go to trial, some argue that this results in a lacklustre
inquiry process28.
The stance of the Indian Judiciary
India's judiciary's position on this issue has changed throughout time, and this can be
observed in the numerous judicial rulings made by the courts.
23
State of Uttar Pradesh Vs Chandrika, A.I.R. 2000 SC 164
24
25
26
27
28
In the case of Murlidhar Meghraj Loya v. State of Maharashtra 29, the Supreme Court
expressed reservations about plea bargaining, claiming that this concept allowed the
perpetrator to "trade out," People who have committed criminal offences are given the
opportunity to address the consequences of their actions with a trained expert in order to
come up with solutions that benefit both parties while also preventing future incidents of the
same misconduct. Using family group conferencing may assist convict the offender of their
wrongdoings, develop a restitution plan, and demonstrate the need for more stringent
monitoring or jail if necessary, according to the New Zealand model. Kachhia Patel Shantilal
Koderal vs. State of Gujarat and Anr30 similarly stated that the process was unconstitutional,
illegitimate, and that it would foster collaboration, which would lead to the pure judicial
system being contaminated by it. The Courts' disapproval of this approach was made very
clear by such pronouncements31.
State of Gujarat v. Natwar Harchandji Thakor32 was the first case in which the Gujarat High
Court recognised the approach as a replacement for litigation. Because "the very object of
law is to provide easy, cheap, and expeditious justice by resolution of disputes, including
criminal cases and considering the present realistic profile in the pendency and delay in
disposal in administration of law, fundamental reforms are inevitable." — The Supreme
Court of the United States Nothing should remain the same. A new dimension of judicial
changes will be added to the mix, thereby making it a true measure and remedy33."
International Perspective
PHILIPPINES: A "peacekeeping committee" and a locally chosen Barangay captain judge

cases involving disputes amongst residents under the Philippines' Barangay judicial system.
The captain or another committee member facilitates a mediation session. The agreements
that are established through this method are recognised by the courts as legally binding.
Restorative justice initiatives like victim-offender mediation go back a long way.
CZECH REPUBLIC: Pretrial and judicial processes in the Czech Republic are attended by
the Probation and Mediation Service, which seeks to mediate effective and socially beneficial
remedies to criminal problems. Only when both parties voluntarily agree to participate in
29
Murlidhar Meghraj Loya v. State of Maharashtra, AIR 1976 SC 1929
30
Kachhia Patel Shantilal Koderlal v. State of Gujarat and Anr,1980 CriLJ553
31
32
State of Gujarat v. Natwar Harchandji Thakor, 2005, CriLJ 2957
33
mediation can it be conducted. Mediators are competent at efficient negotiations. It is their
job to assist the disputing parties in reaching a resolution that is agreeable to both sides.
NEW ZEALAND: As a result of a 1989 New Zealand law, community and family group
conferencing was permitted to be used in the juvenile justice system. It is estimated that
police handle 99 percent of all criminal cases in the United States. It's based on Maori dispute
resolution techniques, as the name suggests. The first time this method has been used in
South Australia, South Africa and Ireland and Lesotho and Minnesota, Pennsylvania and
Montana in the United States, authorities are diverting criminals from their activities. Every
conference requires a convener or facilitator34. Victims' loved ones, as well as they are urged
to participate in a professional-facilitated process in which they may identify acceptable
outcomes for both parties, examine the criminal ramifications of their crime, and seek
appropriate actions to prevent the offending behaviour from recurring. According to the New
Zealand model, family group conferencing can be used to assist convict the offender of their
wrongdoings, design a restitution plan, and demonstrate the need for more stringent
monitoring or jail if necessary. .
SOUTH AFRICA: It may be necessary to deploy alternative measures programmes such as

community conferencing in order to divert a criminal offender's attention away from the
criminal court system. Typically, these events are hosted by non-profit organisations or
government agencies, regardless of whether or not they get support from the government. An
offender's compliance with the conditions of the agreement can be monitored without the
involvement of a court or a law enforcement official. One of the consequences of the peace-
making negotiations is the exchange of apology letters, restitution and recompense35.
CANADA: Many aboriginal groups in Canada conduct sentencing circles. Everyone sits in a
circle facing each other in order to negotiate punishment, including the victim's family and
the offender's counsel. Circle sentencing is an alternative for offenders who have pleaded
guilty and are willing to accept the consequences of their actions. It is a common practise in
criminal courts to utilise a sentencing circle, which consists of justice professionals. There's
no way to know for sure if the judge was actually a part of the group or not, but he or she will
be presented with a summary of its findings36. When it comes to restorative justice, circle
sentencing is a fantastic example of how it may be used in a holistic framework where justice
34
35
36
system professionals share power and authority with the community. Individuals, families,
and communities can learn problem-solving skills, rebuild relationships, promote awareness
and respect for the values and lives of others, address the needs and interests of all parties –
including victims – and focus action on causes through circular sentencing., not just
symptoms of issues37.
Conclusion
Plea bargaining has been regarded as a need in today's litigious society. It is reasonable to say
that 'Law is not a panacea' in this case. No problem can be solved completely, but the
intensity of such difficulties can be significantly reduced. Even if it has flaws, plea bargaining
in Indian courts has the potential to expedite the resolution of cases. It gives the Indian justice
system legitimacy and efficiency, and it has the potential to transform the way criminal trials
are conducted in India. It has the potential to assist with judicial reform and hence enhance
public access to the courts. In the end, it's a comprehensive strategy for ensuring justice.
The Indian Criminal Jurisprudence has progressed for not recognizing ADR to assessing the
possibilities of it by reviewing other states and republics and what is the sense of the general
population and the Policy’s social impact.38. Alternative Dispute Resolution (ADR) is a
special case for average court systems that ought to be utilized all the more often and totally.
Accordingly, such out-of-court settlements are basic for diminishing the courts' exorbitant
responsibility, and they ought to likewise turn into the "new ordinary."
BIBLIOGRAPHY
Books
 Alternative Dispute Resolution: A Developing World Perspective By Albert Fiadjoe

 Alternative Dispute Resolution System Global and National Perspective By Dr.
Ashok Kumar
 Alternative Dispute Resolution System in India By Dr. Ashok Kumar
 Future of Justice By Dr. V.V.L.N. Sastry
 New Law of Arbitration By Mital
Websites & Articles

37
38
 https://madhavuniversity.edu.in/critical-study-on-adr.html
 https://blog.ipleaders.in/alternate-dispute-resolution-criminal-jurisprudence/
 http://www.questjournals.org/jrhss/papers/vol5-issue7/F574350.pdf
 https://shodhganga.inflibnet.ac.in/bitstream/10603/111472/11/11%20chapter
%2002.pdf
 https://www.lawctopus.com/academike/criminal-cases-adr/
 https://heinonline.org/HOL/LandingPage?handle=hein.journals/
ijlj7&div=26&id=&page

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T3- Research Paper

“REVIEW OF ALTERNATE DISPUTE RESOLUTIION IN CRIMINAL TRIAL

BBA LLB; Division C; PRN 17010324019

Symbiosis Law School, Hyderabad

Symbiosis International (Deemed University), Pune

Dr. Irfan Ali Abbas

Alternate Dispute Resolution

Sections relevant to ADR:

 Section 265C comes as a remedy adopted by courts when arriving at a commonly

● Non- Doctrinal Research

Locate the Sources of Law and to Frame the Research Questions

 WHAT IS THE SCOPE OF ADR IN A CRIMINAL TRIAL?

STATEMENT OF RESEARCH OBJECTIVE

The following is the objective of this paper

 To conclude on a definite way of alternate settlement which is judicially sound.

Alternative Dispute Resolution :A Developing World Perspective

ADR should be reconsidered in light of the experiences of those in developing countries,

Alternative Dispute Resolution System in India

By Dr. Ashok Kumar

Alternative Dispute Resolution System Global and National Perspective

By Dr. Ashok Kumar

Information on alternative dispute resolution is provided in a concise and well-organized

By Dr. V.V.L.N. Sastry

New Law of Arbitration

ADR stands for "Alternative Dispute Resolution."

ADR in criminal trials in India

India's plea bargaining, a report:

The stance of the Indian Judiciary

PHILIPPINES: A "peacekeeping committee" and a locally chosen Barangay captain judge

SOUTH AFRICA: It may be necessary to deploy alternative measures programmes such as

 Alternative Dispute Resolution: A Developing World Perspective By Albert Fiadjoe

Websites & Articles

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