ADR- A Focus on Criminal Justice System in India

Submitted by
Muskan Goyal
UGJ2020-22
BA.A.LL.B. (Hons. in Adjudication and Justicing)

SEMESTER – V
ACADEMIC YEAR: 2022-2023

5.6 Clinic-1 Alternate Dispute Resolution

Submitted to
Dr. Shaik Nazim Ahmed Shafi , Associate Professor of Law

MAHARASHTRA NATIONAL LAW UNIVERSITY NAGPUR

Abstract

Alternative Dispute Resolution or simply ADR is the procedure for settlement of disputes
between two or more disputant parties, usually outside the court without following rigid
litigation processes, by means of mediation, arbitration or negotiation. The main purpose behind
the establishment of the system of ADR was to reduce the burden on courts, to make the
litigation inexpensive and less rigid to those who can’t afford more time and money. In the
Criminal Jurisprudence any criminal acts/offences are regarded as crimes against the State, but
not against the victim and only State has the Jurisdiction to address it. Since, ADR is a dispute
resolver, it is very difficult to call crime a dispute and hence, ADR is only restricted to petty
crimes like matrimonial disputes, motor vehicle cases etc. But the Indian Courts today are
flooded with numerous cases resulting in pending litigation. But it is also very necessary to
reduce the over-burden of litigation on the Courts. Thus, this paper focuses on the essentiality of
ADR in Criminal trial and to increase its scope for the same. The main purpose behind this paper
was to educate people and make them realise the importance of ADR. In addition, this study also
analyses the system of Alternative Dispute Resolution in India, its types, their functions, role in
the Indian Criminal Judicial system and a brief comparison of ADR in different countries.

Introduction

Lon L. Fuller describes Alternative Dispute Resolution (ADR) as: “a road that parties must
travel to arrive at their goal of mutually satisfactory settlement.”Any dispute is just like a Cancer.
If it is resolved sooner, it is better for all the parties concerned to it. In Indian courts the no. of
cases pending are huge. The present system falls short to deliver rapid and reasonable support to
the party. The procedure is also very complex. This leads to a search for an alternative
mechanism which should be inexpensive and quick. A new inclination that can be observed in
the realm of alternate dispute resolution is its applicability in criminal matters.

Alternative Dispute Resolution (ADR) includes methods that are out of court proceedings. It
usually includes negotiation, mediation, arbitration, collaborative law and conciliation. Thus,
there are different types of ADR for facilitating in different civil as well as Criminal matters 1.
The foundation of justice administration in any state-based formal justice system involving civil
1
MAZADOORIAN, H. N. (1999). Building an ADR program: What works, what doesn’t. Business Law Today,
8(4), 36–40.
and criminal justice, institutions like police, public prosecution, and courts. However, in spite of
well-established formal mechanism of criminal justice system in India, there is huge backlog and
pendency of cases, due to which the justice has often been delayed2. The essence of Criminal
Justice is speedy trial and it is certain that delay in trial by itself be equivalent to denial of justice.
The emphasis on the need of ADR can't be enough.

This paper tries to shed some light on it. ADR, particularly mediation, focuses on resolving the
disputes between the parties and maintaining the harmonious relations between them. Hence, it is
perfect tool for rendering the restorative justice in criminal matters. When it comes to ADR in
criminal cases there are arguments both for and against it because there are certain limitations
that have also been pointed out in this study. There is a judicially recognized ‘right to speedy
trial’ as part of Art 21 of the Indian Constitution. However, the right to speedy trial is not made
accessible to the citizens making the trial procedure prolonged because of undue delays.
Although, the Indian Constitution has provided its citizens with right to speedy trials, Indian
Courts’ system is suffering with huge number of cases pending 3. The saying “justice delayed is
justice denied” perfectly applies to the Indian Judicial system. Therefore, to solve this issue, the
successful implementation of ADR in India is very much essential. There are countries which
has given importance to to ADR long before and are gradually adapting it in every day matter.
The paper has also mentioned a comparative study on this to seen where Indian stands when it
comes to implementation of ADRs.

Types of ADR in Indian Justice System

These are the following types of ADRs practiced in Indian Justice System.

● Negotiation- Negotiation intends to solve the disputes between the parties by producing an
agreement, upon course of action, for the individual’s or collective advantage. In the process of
negotiation, the attorneys of each party work together to drag the dispute on the path of
settlement, ex- plea-bargain. Negotiation has become an integral part of a lot of disputes weather

2
LOEB, L. L. (1999). New Forms of Resolving Disputes— ADR. Family Law Quarterly, 33(3), 581–588.
3
Aresty, J. M. (2006). The Internet and ADR: Educating Lawyers about Online Dispute Resolution. GPSolo, 23(1),
30–35. http://www.jstor.org/stable/23673082
it is in business, non-profit organizations, legal proceedings, government branches, amid two or
more nations or in personal conditions such as marriage, divorce, parenting etc. This is the basic
method of alternative dispute resolution.

● Conciliation- Conciliation is an alternative dispute resolution (ADR) process whereby the

parties to a dispute use conciliator, who meets with the parties both separately and together in an
attempt to solve their disputes. This method is nearly same as the process of mediation, it differs
in and of itself, has no legal standing, and the conciliator has no legal authority to seek evidence
or call witness, usually writes no decision, and also makes no award.

● Mediation- The process of mediation is a form of ADR which aims at resolving disputes by
assisting the disputants to come to an agreement. Mediation involves a third party, who by
working on that particular dispute tries to resolve it. Mediation is that form of ADR which is
concerned with criminal justice the most. Mediators often use appropriate techniques and/or
skills to resolve the differences between the concerned disputants, aiming to help them reach an
agreement.

● Arbitration- It is a form of ADR which has got legal sanctity by the court to act as the ‘out of
court’ settlement. Arbitration includes resolving disputes by the third party (one or two persons)
and both the parties are bound to follow the same. An arbitration award is legally binding on
both sides and enforceable in courts.

Need For ADR in Criminal Trial

Judiciary is regarded as the most vital organ where people have faith. Judiciary exists to solve all
kinds of disputes, to render justice to the innocents by punishing the offenders by being impartial
and independent4. But now-a-days people are losing their trust in Indian Courts, and one of the
reasons is delay in Justice due to pending litigation. Hence, Alternative Dispute Resolution
(ADR) is one such mechanism established in the Indian Judicial system to reduce the burden on
courts to some extent. During this COVID19 lockdown situation, the no. of pending cases are
increasing exponential and ADR has become necessity in certain cases more then just an option.
Chhattisgarh High Court and Legal Authority pioneered e-Lok Adalats in the state during the
4
Aufses, A. H. (1990). Thinking About ADR. Litigation, 16(3), 33–57.
lockdown time. Chhattisgarh has become the first state in the country to do so. Through video
conferencing amicably the litigants were connected to the concerned court and as many as 156
cases has been taken up out of which 155 has already been settled. Thus, ADR has always
facilitated in reducing the burden of the courts no matter the situation are.

Alternative Dispute Resolution mechanism in criminal cases was developed to provide easy and
accessible remedy to poor criminals who are guilty of motor accident cases and other petty
criminal cases, to save them from for huge time consumption, high litigation cost and rigid
procedure5. The Legal Services Authorities Act, 1987 has accorded legal status to such
alternative attempts to solve the disputes of the parties outside the court, which are known as Lok
Adalat and the award passed by it is given the status of a ‘Civil Court decree’. Lok Adalats are
now acquiring a new dimension in order to reduce the litigation miseries of the weaker sections
of the society. It provides a statutory forum to the litigants to resolve their disputes through
negotiated settlements in presence of the Lok Adalat judges. The amendment effected to the
Legal Services Authorities Act, 1987 in 2002 provides the establishment of permanent Lok
Adalat for the settlement of disputes relating to public utility services by applying ADR
mechanism in order to decongest the courts6.

As already discussed above, the traditional courts’ system is too much time consuming and
expensive, which is unaffordable to many, resulting in injustice to the innocents. There are
approximately 59,867 criminal cases pending before the Supreme Court of India. The condition
is even worse in subordinate judicial system like there are 44.75 lakhs pending cases before the
various High Courts of India, out of which 13.1 lakhs are criminal cases and 3.14 crores pending
cases before the district and subordinate Courts. Flooding in the number of cases also results in
over-population of convicts and increase in the number of prisoners.

There is a saying, “Quality of justice suffers not only when an innocent person is punished or a
guilty person is exonerated, but when there is enormous delay in deciding the criminal cases.”
Speedy trial is an essence of criminal justice, but it is getting trotted in the Indian Judicial
5
Wald, P. M. (1997). ADR and the Courts: An Update. Duke Law Journal, 46(6), 1445–1473.
https://doi.org/10.2307/1372993
6
Sondhi, A. (2007). Arbitration in India — Some Myths Dispelled. Student Bar Review, 19(2), 48–54.
http://www.jstor.org/stable/44306675
system. Therefore, due to this alarming situation of the Indian Judicial system, ADR mechanism
is the need of the hour, especially to resolve the criminal cases. The preference to ADR is more
because of its inexpensive litigation, less wastage of time and the confidentiality that is being
maintained in this process of ADRs. Certain basic steps are to be taken by the State in order that
the rule of law and justice can be directed as it should be. But there is some hesitation upon the
solicitation of ADR in criminal justice. In the instance of the criminal justice, the term ADR
comprehends various practices which are not contemplated as a part of conventional criminal
justice such as victim/offender mediation; family group conferencing; victim offender-panels;
victim support programs; communal crime prevention programs; sentencing circles; community
service; plea bargaining; school programs7.

But still the scope of ADR in Criminal Justice is very less because crime is regarded as violation
against the State and not against the victim. Also only State has the Jurisdiction to address it.
This kind of system came with the Norman invasion of Britain in 12th century. Prior to it,
Western Law had viewed crime as conflict to be dealt between an offender and victim. This may
make an offender realize his crime, repent it and also helps him to make sense of the tragedy or
heal his wounds8. This discussion highlights the need of ADR, as it facilitates the communication
and conciliation between the victim and offender rather than leading to deterrence. As
consequent to this, Western Developed Countries like U.S.A have embraced ADR models like
victim-offender mediation, in their criminal justice system.

ADR is not to punish the offender, but rather to guide them to repent for their crime, strive to
mend the injury they have done, and reintegrate them into the community. The model for
example, which the victim-offender mediation contributes to and exercises, is a response against
the model of traditional justice . Revenge is not the answer to all the crimes committed against
the victims. It does not restore the losses of victims, answer questions, relieve fears, provide
closure, or help to make sense of a tragedy. For all the victims, that the offender has been
punished by the state does not necessarily restore the losses they have suffered—it does not

7
Ogbuabor, C. A., Obi-Ochiabutor, C. C., & Okiche, E. L. (2013). Using alternative dispute resolution (ADR) in the
criminal justice system: Comparative perspectives. Bassey Andah Journal, 6, 215.
8
Edossa, J. (2012). Mediating Criminal Matters in Ethiopian Criminal Justice System: The Prospect of Restorative
Justice System. Oromia Law Journal, 1, 99-143.0
“answer their questions, release their distresses and help them understand their tragedy or heal
their injuries9.

The formerly mentioned line of reasoning emphasizes the need of ADR, as it promotes the
communication and resolution between the parties rather than, discouraging it. And hence, for
the smooth functioning of the judicial system, it is very much necessary for India also to adopt
U.S.A’s model of victim-offender mediation which enhances the scope of ADR in Criminal
Justice, at the same time reduces the over-burden of cases on the Indian courts. Therefore, we
can regard that ADR mechanism in Criminal trial is need of the hour.

Focus of ADR Abroad

 Canada: In the 1980s and 1990s Canada saw the beginning of a “cultural shift” towards the
growth of ADR practices. During this time, they felt the need of alternative dispute resolution
against the more adversarial approach to dispute settlement that is typical in the traditional
court proceedings10. That is when, the growth of ADR started and continued for decades till it
is widely being accepted as a legitimate and effective approach to dispute resolution. Though
many provinces in Canada have not yet recognized the importance of ADRs, some of
theprovinces have at least examined the need of ADR as an alternative to traditional court
proceedings .
 Somalia: Somalia has a cultural and historical mediation and justice system known as ADR,
which is an informal justice system. It is a kind of system in which, the arbiter listens and he
himself finds a solution to solve the difference of the disputant parties, to which both parties
agree .
 United Kingdom: In the UK, Alternative Dispute Resolution is encouraged as a mean of
resolving taxpayers’ disputes with Her Majesty’s Revenue and Customs. ADR in recent
years is being widely used in the UK across many sectors such as: communications, energy,
finance and legal sectors. On October 1st, 2015 the UK adopted the Alternative dispute
Resolution for consumer disputes Regulations 2015.

9
Levine, A. (2003). Dark State of Criminal Affairs: ADR Can Restore Justice to the Criminal Justice
System. Hamline Journal of Public Law & Policy, 24(2), 369-406.
10
Rose, M., & Suffling, R. (2001). Alternative dispute resolution and the protection of vulnerable in Ontario,
Canada,56(1-2),1-9.
ADR in Indian Criminal Justice System

Application of ADR has been gradually increasing in criminal matters. It has become the new
trend, not only because it is affordable but also because it is less time consuming and we already
know about the huge pendency of the cases in Indian courts 11. Thus, for giving an easy and faster
way to the settlement of cases ADR is necessary. The following mechanism of ADR is mostly
used in Indian criminal cases-

● Mediation in Criminal Cases

Mediation is a kind of process in which parties themselves settle the disputes which is acceptable
by them. Both the parties have right to withdraw anytime from the mediation proceedings and
need not to assign a reason for the withdrawal. It is a party centered process as parties have direct
and active participation in the process of mediation for resolution of their dispute. On October
06, 2006 Hon’ble Allahabad High Court took initiative to inaugurate Allahabad High Court
Mediation and Conciliation Centre (AHCMCC). Mediation is considered as a very effective
process as it facilitates better and effective communication between the parties and also helps to
maintain, improve and restore relationship between them. Mediation can bring a win-win
situation for the parties whereas in the court 12. There is a win-lose situation and also gives a final
result. It results in speedy, efficient and cost-effective resolution of the dispute and also mutually
beneficial settlement is reached out in it. In criminal justice system there are a number of ADR
practices such as Victim/Offender Mediation; Family group conferencing, Victim offender
panels, Victim assistance programs, Community crime prevention program, sentencing circles,
ex-offender assistance, community service, plea bargaining school programs which are not
considered as traditional criminal justice. Mediation had done wonders in many countries namely
United States, Canada, UK, Sweden etc. and now it is becoming a very important and effective
tool by the litigants of our country, our last one decade or so. This mechanism is acting as a great
exchequer in India as it is doing tremendously well. Millions of cases had been disposed of
through Lok Adalat across the country.

● Lok Adalat

11
Volpe, M. R. (2000). Promises and Challenges- ADR in the Criminal Justice System. Dispute Resolution
Magazine, 7(1), 4-7.
12
Hanna, J. (2008). Mediation in criminal matters. Dispute Resolution Magazine 15(1), 4-29.
 ‘Lok Adalat’ roughly means "People's court". Lok Adalat is an innovative form of ADR
mechanism developed by India for resolving the disputes amicably, where the cases are sent for
speedy justice among the parties who are willing to settle the differences between them. Lok
Adalat included conciliation and negotiation methods together for the resolution of disputes and
no court fees are levied in Lok Adalat.

The History and Role of Lok Adalat

Arbitration and Conciliation Act, 1996 has a western approach towards ADR, while National
Legal Services Authority Act, 1987 which is constituted of Lok Adalats is necessarily an Indian
approach to achieve an affordable and swift alternative dispute resolution. India is a country,
which has had a long history of resolving disputes through the mediation of village elders called
‘sarpanch’, which was then considered as equivalent to Courts of Law. The system of Lok
Adalat is an improvement and is based on Gandhian principles. The Lok Adalat was first held at
Junagarh in Gujarat on March 14, 1982. Maharashtra commenced Lok Nyayalaya in 1984. Lok
Adalat obtains the statutory recognition under Legal services authorities Act 1987.According to
Section 19 (5) A of the Legal Service Authorities Act, 1987 referral of compoundable offences to
Lok Adalat is permitted. Under the Act, the Lok Adalats (mock courts) are held by State
Authority, District Authority, Supreme Court Legal Services Committee, High Court Legal
Services Committee, Taluk Legal Services Committee periodically. These are usually governed
or controlled by retired judge, social activists, or members of legal profession. A new episode to
the justice dispensation system was added with the introduction of Lok Adalat. The cases are
presided over by retired judges, social activists, or other members of legal profession.
Compromising between the parties is the main function of Lok Adalat. Lok Adalat cannot decide
the case on merits; it facilitates the parties to come with settlement . The settlements which are
made by the Lok Adalat are binding on both the parties. No court fees are levied in Lok Adalat.
The case again goes to the court if the matter is not resolved in Lok Adalat. Therefore, we can
say that Lok Adalat plays a vital role in resolving the matter through ADR making it a cost
effective, less time consuming and at the same time helps in reducing the burden of cases on the
Courts.

● Plea-Bargain
Another very common ADR mechanism that we can observe in criminal cases is the
Pleabargaining or Plea- deal which is basically a negotiation which takes place pre-trial between
prosecution and accused. The agreement in a criminal case between the prosecution and the
defense regarding the plea of the accused is known as plea-bargain. This is done in the presence
of a judge, in which the accused changes his plea from not guilty to guilty and accept an offer
made by the prosecution that his sentence will be minimized, if he pleads guilty 13 . Now, if we
talk about applicability of plea-bargain in India, keeping in mind the pendency of criminal cases,
the Law Commission of India in its 142nd report suggested reform, which also comprised the
application of plea bargaining in our country. Further, to increase the efficiency in disposing
criminal cases, the 154th Report of the Law Commission recommended for including ‘plea
bargaining’ as an alternative method to deal with colossal pendency of criminal cases, which was
supported by the Malimath Committee Report. The draft Criminal Law (Amendment) Bill, 2003
was introduced in the parliament to give effect to the recommendation. Despite of huge
objections against the amendment, the amendment was accepted and as a result of this, Chapter
XXIA was added in the Code of Criminal Procedure, 1973. The particular chapter deal with plea
bargaining specially containing Sections 265A to 265L. This method could reduce burden of
criminal courts and would enable the criminal courts to decide criminal cases expeditiously, and
without undue loss of time.

Limitations of ADR in Criminal Justice:

The following are the limitations of application of ADR in Criminal Jurisprudential System
faced in India: ● Alternative Dispute Resolutions can only be used in petty criminal offences and
not on serious offences.

● Existence of dispute is one of the prerequisite of ADR. But in certain criminal cases like rash
and negligent driving, drunken driving etc. resulting in injuries or even death of the pedestrians,
there may not be any dispute between the criminal and victim, and such difficulties limit the
scope of ADR in Criminal trial.

● Arbitration decisions are final. There are very few exceptions where the decision arbitration
can be appealed, with fraud being an obvious exception. Additionally, certain states does not
13
Ewulum, B. (2017). Alternative Dispute Resolution Mechanisms, Plea Bargain and Criminal Justice
System . Nnamdi Azikiwe University Journal of International Law and Jurisprudence, 8(2), 119-124.
enforce decisions of arbitrators that have unfair penalty. The scope of arbitration is limited to
specific disputes because some clauses are broad, others are narrowly. If we take the case of any
court then the decisions of a court, usually can be appealed to an appellate court for a variety of
legal grounds and for numerous alleged procedural errors.

Conclusion and Recommendation

In India, Judiciary along with the two other organs, Legislature and Executive have been
established to safeguard the rights of the citizens, but for its violation, the citizens have to
question it only before the Judiciary. India is a country with enormous population and that’s one
of the main reasons for increase in number of cases which is resulting in exhaustion of the courts.
There are many attempts being made in the country to reduce this burden but these attempts are
not satisfactory and Courts are still in need of a strong mechanism. Alternative Dispute
Resolution (ADR) is one such tool which can successfully lessen the burden of pending-
litigation on courts by resolving the disputes outside the courts.

In recent years, the scope for Alternative Dispute Resolution in India is gradually increasing. It
has many merits such as; it is inexpensive, less rigid, less time consuming… In this connection,
Alternative Dispute Resolution (ADR) has a significant role in criminal trial as well especially to
the convicts who are devoid of basic facilities. It is agreeable that applicability of ADR in
criminal trial has limitations, but as our research has stated that, it is convenient for India to
adopt victim-offender model of ADR where offender can feel sorry for what he has committed,
which will also reduce the increasing no. of prisoners in India and speedy trial can be rendered in
a positive way.

ADR system, undertaken in appropriate conditions, can support court reform, improve access to
justice and to increase disputant satisfaction. ADR processes have capability 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 should realize the importance of ADR, only then it is possible to ensure the quick
and substantial justice. ADR initiatives can ensure the cost-effective and speedy justice among
the common people of India.

Bibliography

Articles
 MAZADOORIAN, H. N. (1999). Building an ADR program: What works, what doesn’t.

Business Law Today, 8(4), 36–40.

 LOEB, L. L. (1999). New Forms of Resolving Disputes— ADR. Family Law Quarterly,

33(3), 581–588.

 Aresty, J. M. (2006). The Internet and ADR: Educating Lawyers about Online Dispute

Resolution. GPSolo, 23(1), 30–35. http://www.jstor.org/stable/23673082

 Aufses, A. H. (1990). Thinking About ADR. Litigation, 16(3), 33–57.

 Wald, P. M. (1997). ADR and the Courts: An Update. Duke Law Journal, 46(6), 1445–

1473. https://doi.org/10.2307/1372993

 Sondhi, A. (2007). Arbitration in India — Some Myths Dispelled. Student Bar Review,

19(2), 48–54. http://www.jstor.org/stable/44306675

 Ogbuabor, C. A., Obi-Ochiabutor, C. C., & Okiche, E. L. (2013). Using alternative

dispute resolution (ADR) in the criminal justice system: Comparative

perspectives. Bassey Andah Journal, 6, 215.

 Edossa, J. (2012). Mediating Criminal Matters in Ethiopian Criminal Justice System: The

Prospect of Restorative Justice System. Oromia Law Journal, 1, 99-143.0

 Levine, A. (2003). Dark State of Criminal Affairs: ADR Can Restore Justice to the

Criminal Justice System. Hamline Journal of Public Law & Policy, 24(2), 369-406.

 Rose, M., & Suffling, R. (2001). Alternative dispute resolution and the protection of

vulnerable in Ontario, Canada,56(1-2),1-9.

 Volpe, M. R. (2000). Promises and Challenges- ADR in the Criminal Justice

System. Dispute Resolution Magazine, 7(1), 4-7.

  Hanna, J. (2008). Mediation in criminal matters. Dispute Resolution Magazine

15(1), 429.

 Ewulum, B. (2017). Alternative Dispute Resolution Mechanisms, Plea Bargain and

Criminal Justice System . Nnamdi Azikiwe University Journal of International Law and

Jurisprudence, 8(2), 119-124.

Statutory References

 Code of Civil Procedure 1908 [ACT NO. 5 OF 1908]

 Arbitration and Conciliation Act 1996 [ACT No. 26 OF 1996]
 ADR Mediation Rules, 2003
 United Nations Convention on International Settlement Agreements Resulting from
Mediation, 2018
 Draft Mediation Bill, 2021