Justice is a concept of rightness, fairness based on ethics, moral, religion and rationality. Laws made by sovereign body strive for achieving justice to various section of the society; courts are established for eradicating injustice by reprimanding for violation of this laws and in some cases providing remedy to aggrieved person.
Man is not made for law, but the law is for man. It is a regulator of human conduct and No law works smoothly unless the interaction between the two is voluntary. An act is justified by law, only if it is warranted, validated and made blameless by law. The Indian Constitution guarantees justice to all, All Indian citizens are guaranteed equal right to life and personal liberty. The rule of law envisages that all men are equal before law, have equal rights but unfortunately cannot enjoy the rights equally as enforcement of the rights has to be through courts and the judicial procedure especially the criminal system is very complex, costly and dilatory thereby putting the common man at a distance.
The Constitution of india enjoins the state to secure social, economic and political justice to all its citizens, making the constitutional mandate for speedy justice inescapable through article 14 it guarantees equality before the law and the equal protection of the laws and article 39A of the Constitution mandates the State to secure the operation of the legal system in such a way that it promotes justice on a basis of equal opportunity and ensures that the same is not denied to any citizen by reason of economic or other disabilities further equal opportunity must be afforded for access to justice as its not sufficient that the law treats all persons equally, irrespective of the prevalent inequalities but the law must function in such a way that all the people have access to justice in spite of economic disparities. The expression “Access to justice” focuses on the following two basic purposes of the legal system:
The system must provide access to all.
It should lead to results which are fast, fair and economically viable.
The Supreme Court has on various events, in its judgements has made it clear that there can be no delay in trial, as that itself constitutes denial of justice. moreover directive principle of state policy directs the state to strive for reducing inequalities amongst groups of people in different areas under article 39A of the constitution of india now while interpreting this provision the supreme court held that, social justice includes ‘legal justice’ which means that the system of administration must provide a cheap and expeditious instrument for realization of justice.
The system of law which presently operates in India is largely based on English common law because of the long period of British colonial influence during the period of the British Raj. Much of contemporary Indian law shows substantial European and American influence and various legislations which were firstly introduced by the British are still in effect in their modified forms today. In India criminal law is enforced by the state, unlike the civil law which may be enforced by private parties. It reflects the social ambitions and norms of the society and generally refers to body of rules that defines the conduct which is prohibited by the state because it is held to threaten, harm or otherwise endanger the safety and welfare of the public, and sets out the punishment to be imposed on those who breach the said law. Now substantive criminal law defines crime and provides for their punishments where as In contrast procedural describes the process through which the criminal laws are enforced For e.g. the law prohibiting murder is a substantive criminal law; the manner in which government enforces this substantive law—through the gathering of evidence and prosecution—is generally considered a procedural matter.
Like every developed criminal legal system, India too has a reputation for long winding procedures and an elaborate system of trial and investigation exists our criminal justice system while the rationale is to ensure that the complainant has the satisfaction of the knowledge and erudition of the best legal minds and the offender does not go unpunished the price for this turns out to be the delay in finality, outcome of proceedings. There have been several attempts to simplify the procedure but the sheer number of cases seems to overwhelm the system and delay in disposal of cases in criminal law courts has really defeated the purpose for which the people approach the courts for remedy.
It is aptly said that justice delayed is justice denied therefore the need has arisen to find out an alternative to render justice to the common man who wants his grievances redressed through legal and faster means which proves also economical when compared to time consuming and expensive traditional court litigation process. In the background of this and the fact that India is presently at a critical stage of its development one needs to rethink about the dispute resolution mechanisms of the past. In the absence of a proper remedying system which is fast and as well as economically viable persons who are looking to knock the doors of criminal justice may conclude that exit that our legal system is slow and does not lead to fair dispensation of justice thereby eroding the trust of common man in the criminal justice system .
Now India for dispensation of criminal justice follows the adversarial system of justice which is inherited from the British Colonial Rulers (common law). The Indian criminal justice system calls for a change which has been noted in the Malimath committee report extensively, a perusal at even the simplest of internet search engine i.e. Google shows that there have been 29,900,900 results in 0.13 seconds when one searches for “need to change the Indian criminal system.” From the above search along with the perusal of the Malimath committee report and various reports and articles by which the news papers are flooded one can draw an inference that the Indian criminal justice system needs an overhaul in order to withstand the changing times. Further to add the agony the conviction rate is just 6.7 per cent. This figure sadly reflects the state of affairs of our criminal justice system.
The failure of the criminal justice system to punish the criminals has resulted in increased lawlessness and decreased fear of the law in the Indian society, the fear of punishment as a deterrent effect of has evaporated as the general impression is that nothing serious can happen in the existing system to a law breaker as the criminal justice system has failed to establish the certainty of punishment for any crime committed. It is well known that in States where the criminal justice system was unable to deliver justice various unauthorised groups like private army, militant organisations, underworld gangs, etc., have taken over the task of grievance removal at their level. Many States in India are the glaring examples of this fact where the common man for remedying his problems approaches the unauthorised aisle even though illegal only because he believes it to be faster and better than the prevailing legal solutions.
The problems of the current criminal system are mainly owing to its adversarial nature which is being followed since time immemorial though there have been various amendments and committee’s established but the basic premise of decision making i.e. the process of trial investigation remains the same which is cumbersome and adversarial in nature. The committee on criminal justice reforms in 2003 observed that though the inquisitorial System followed in France, Germany and other Continental countries is certainly efficient in the sense that the investigation is supervised by the Judicial Magistrate which results in a high rate of conviction but to maintain a balance felt that, a fair trial and in particular, fairness to the accused, are better protected in the adversarial system. However, the Committee felt that some of the good features of the Inquisitorial system can be adopted to strengthen the Adversarial System and to make it more effective.
In today’s complex society often in order to obtain justice it appears that we must reach outside the traditional parameters and movement in this direction comes from the idea, fast growing realisation of the litigants that court based adjudication is not the ideal form of justice in all situations. Furthermore the prosecution is not always viable for legally sufficient case which is to be differentiated with a trial sufficient case. A legally sufficient case is one which is identified as having probable cause and all the elements of crime present and a trial sufficient case is one in which there is a strong evidence for conviction. In such cases ADR techniques can be used to resolve the conflict without dropping the case as not all legally sufficient cases are not trial sufficient. Settlement of criminal cases via the procedure of ADR is no longer a new concept and the same is immediately required in our country to give some breathing space to already overburdened system.
Therefore there is an urgent need to find suitable alternate ways to criminal prosecution and settlement of cases which require speedy trial which is the essence of an efficient criminal justice system. The criminal system is becoming immobilized under its own weight due to heavy pendency, most of the criminal cases are not being effectively addressed; this would further lead to disintegration of the system and the immediate recourse is to adhere to alternative dispute resolution techniques.
Most of the countries these days to get out of the maze of litigation, courts and lawyers’ chambers encourage alternative methods of dispute resolution. It can be observed that ADR has become a global necessity in recent times, various methods of alternative dispute resolution have also emerged as one of the most significant movements as a part of judicial reform. It is pertinent to note that the entire legal fraternity – lawyers, students, judges and legislators – all over the world have started viewing alternate dispute resolution in a new perspective, treat it as now an integral part of modern legal practice and jurisprudence. ADR is not only the answer but also a solution to social peace and a viable solution to alternate resolution of various disputes. Alternative dispute resolution is a term that refers to several different methods of resolving various types of disputes outside the traditional legal and administrative forums. These methodologies have surged in popularity in recent years because courts became extremely frustrated over the expense, time and emotional toll involved in resolving disputes through the usual avenues of litigation.
Being a law student one during his internships is exposed to various sights and angles of a case, the judicial system especially when working in courts. There were also several instances where I would notice the position of the pauper, victims and even accused for that matter in criminal cases which can never go unnoticed e.g. a simple case of theft where in the accused was in jail for more than 2 years without a trial, call it ill fate or a lacunae in our system, many attribute it to the later reason being it’s the state’s primary responsibility to maintain law and order so that citizens can enjoy peace and security with an affluent judicial system for remedying their concerns .The Indian criminal justice system calls for a change which has been noted in the Malimath committee report extensively. Therefore the researcher has taken the present topic to research upon whether by introducing ADR techniques an improvement in the working of the current dispensation of criminal justice system can be made without calling for major infrastructural changes.
Predicaments of our criminal system and resolution via introduction of ADR techniques
India for dispensation of criminal justice follows the adversarial system which is inherited from the British Colonial Rulers (common law). In this system firstly the accused is presumed to be innocent and the burden lies on the prosecution to prove beyond reasonable doubt that he is guilty. To add to the agony the accused also enjoys the right to silence and cannot be compelled to reply it is to be noted that the aim of any criminal Justice System is to punish the guilty and protect the innocent where as in fact in the adversarial system truth is supposed to extracted from the respective versions of the facts presented by the prosecution and the defence before a neutral judge who acts like an umpire to see whether the prosecution has been able to prove the case beyond reasonable doubt or not and if not then gives the benefit of doubt to the accused. The trial here is oral, continuous and confrontational where the parties use examination and cross-examination of witnesses to undermine the opposite side’s case and to discover information which the other side might be concealing.
Secondly there is no positive duty on the judge to discover truth thereby making him play a passive role and is heavily inclined in favour of the accused and is insensitive to the victims’ plight and rights and allowing most of the accused to escape conviction which has eroded the confidence of the people in the efficacy of the system and made it necessary to seek out remedies outside the traditional parameters.
Thirdly the system operates like a two-sided structure under which the prosecution is pitted against the defence and justice is done when the most effective adversary is able to convince the judge or jury that his or her perspective on the case is the correct one thus making the system a resource based system i.e. one who can afford a better lawyer has an edge. Further in the adversarial system the judge is not a part of the investigating machinery, the standard of proof required is proof beyond reasonable doubt which spells trouble via discretion and the adversarial trial is built around cross examination of witness often results in adding insult to injury against which even the courts fail to help and this process besides being cumbersome is also time consuming which adds to the piling pendency of case.
As per figures available on 31th march 2010, the total number of cases pending before the Supreme Court was 54864, as against 45887 in 2008 this number instead of decreasing has increased and the time frame is just two years, the total pendency of cases being 3, 13, 91,526. The 120th law commission report , while recommending the fivefold increase in judicial strength at all levels of the Indian judiciary from 10.5 to 50 judges per million of population pointed out how India’s judge population stands poor in contrast when compared with several countries therefore a need has arisen to stop overburdening the courts and find alternative remedies and if the cases are disposed of expeditiously the number of under trails would also automatically stand reduced and apart from under trails and pendency problems the increasing rate of acquittals and failing convictions have become cause of serious concern.
The increasing corruption in the system also attracts attention as officials are bribed for making identification of a weak link in a criminal case all the more difficult by tampering of evidences etc, corruption in various levels of the system is the direct result of the lack of accountability on the part of the functionaries. Lack of commitment and decreasing coordination and cooperation among various functionaries of the criminal justice system resulted in failure not only on the part of the police to deliver justice to the victim, but also by the judiciary. This forces the police to resolve to the illegal methods of extraction of evidence on the suspects and in their enthusiasm to provide fast relief; policemen are slowly falling prey to the shortcut methods. The lack of evidence, hesitation of witness etc, and the lack of commitment shown by the witness and advocates, particularly defence council have totally vitiated the system as their cooperation is vital for the just operation.
Now before even beginning with as to how introduction of ADR techniques in our criminal cases would resolve the above mentioned problems conceptually three things are to be cleared in our minds;
ADR techniques do not only mean arbitration, mediation and conciliation but also include other various methods such as victim offender mediation, neutral fact finder method, early neutral evaluation etc which are useful in resolution of criminal disputes.
Disputes which are criminal in nature, the parties to such dispute cannot be forced to compromise or resolve the matter hence either both such parties should be willing to compromise or in view of changing time and needs a statutory rule needs to be laid down that even though a dispute is of criminal nature such dispute, after a reasonable time has elapsed should be referred to mediation on compulsory basis for early dispensation the view in this direction comes from the decision of the Gujarat division bench holding that the very object of law is to provide easy, cheap and expeditious justice by resolution of disputes, including the trial of criminal cases and considering the present realistic profile of the pendency and delay in disposal in the administration of law and justice, fundamental reforms are inevitable.
Using various techniques of ADR to resolve criminal disputes is not plea bargaining or in any way similar to plea-bargaining because plea bargaining is a pre-trial negotiation between the accused and the prosecution during which the accused agrees to plead guilty in exchange for certain concessions by the prosecution and has the following limitations ;
The offence against the accused should carry a maximum sentence of less than seven years.
The offence should not have been committed by the accused against a woman or a child below the age of 14 years.
The accused should not be a juvenile who is covered under Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000.
The accused should not have earlier been convicted for the same offence.
The offence should not affect the socio-economic condition of the country.
However ADR can be used at any stage of a criminal case and is not subject to any of the limitations above. The quality of justice determines the quality of society and governance. Equal and fair justice is the hallmark of the society, “all government, indeed every human benefit and enjoyment, every virtue and every prudent act, is founded on compromise and barter.” Hence compromise and barter sometimes become a viable solution besides the traditional methods. Introducing various methods in our criminal dispensation would resolve the above predicaments in the following way;
In proceedings under various ADR techniques there is no presumption or any kind of burden of proof on either of the parties in fact both the parties are required to present their side of case and a third party decides and helps them to compromise the matter.
A case won or lost in a court of law does not change the mindset of the litigants who continue to be adversaries and go on fighting in appeals after appeals where as alternate dispute resolution systems enable the change to be caused in the mental approach of the parties because when a person goes to court, he knows that he shall win all or lose all but whereas, when he opts for any method of ADR or goes in for any informal settlement he knows well that he may not get all what he wants, but he will not lose everything.
The rights to accused in our justice system are given by the constitution which is the grund norm of our country and cannot be over ridded by ADR techniques and principles but however the same can be bypassed for e.g. where the accused chooses to remain silent the neutral party can try and extract some information by being informal.
Judges in such proceedings are not bound by any strict procedural rules hence can play an active role in arriving at a conclusion or can be a part of investigation also where early neutral evaluation or neutral fact finding expert method of ADR is used.
The role of lawyers is minimal in ADR proceedings except for arbitration hence the problem that the system is resourced based can be adequately dealt with.
Strict adversarial trial procedure of pitting the prosecution against the defence can be dealt via means of ADR as it’s somewhat informal in nature e.g. Mediation further the Governmental functionaries have not realised the importance of non-governmental organisations or voluntary organisations for the success of the criminal justice system as NGO’s can be used as active participants.
The problem of low judge population ratio can be tackled by allowing eminent retired judges to act as judges and neutral parties in ADR proceedings there by adding to the judicial infrastructure.
Besides being known for providing fast and cheap results which can be kept confidential it is felt that ADR is more conductive in the preservation of relationships and avoidance of grudges. Therefore to administer the rule of law and justice certain steps are to be taken by the state. In case of civil matters there are already alternate statutory options available such as section 89 of Civil Procedure Code 1908 however such a provision is not available in administration of criminal justice hence there is a need to evolve an alternative approach of resolving criminal cases in a constructive manner the need for which is enumerated above. Therefore the researcher feels that by introducing ADR techniques in criminal cases would lead to discovering a rational, viable solution for prolonged trials and efficacy of the current system can be improved by leaps and bounds without bringing in a sea change.
Statement of problem
Therefore the current criminal justice system owing to its adversarial nature is unable to provide fair and expeditious justice and nowhere has a remedy for recourse to ADR methodologies, due to which the trust of the common man has not only eroded but has deterred him from initiating action under this system. Hence the researcher has undertaken the present topic in order to conduct a research whether recourse to ADR methodologies in the criminal justice system will improve its efficacy and repose the trust of the common man in the criminal system again without calling for a major infrastructural change.
The researcher by means of the instant research wants to test the hereinafter enumerated proposition;
“Introduction of ADR techniques in criminal law can provide for efficient alternative remedies and improve the efficacy of the current criminal justice system.”
The present criminal justice system provides no statutory leeway or recourse to alternative remedies outside the strict court procedure unlike the civil justice system where there exists section 89 which has proved to be a success.
Scope of the study
Owing to paucity of time, the researcher endeavoured to undertake the research upon the introduction of ADR techniques in the current criminal procedure with respect to the following provisions only;
Section 320 of Criminal Procedure Code
Section 268 of Indian Penal Code i.e. public nuisance
Section 323 and section 324 of Indian Penal Code i.e. hurt and voluntary causing hurt
Sections 378, 380 and 381 i.e. theft with respect to, in dwelling, or by servant
Sections 405, 408 and 409 IPC that is criminal breach of trust, by clerk servant, by banker merchant or agent.
Section 499 IPC i.e. defamation
Section 509 and 510 i.e. act intended to insult modesty of women & misconduct in public by a drunken person.
OBJECTIVES OF STUDY
Since the current criminal justice system is a gift of the colonial era and is being followed since time immemorial the procedure for dispensation of most of the crimes cannot be changed and bought under the purview of ADR techniques and moreover the point that the whole system cannot be changed as it would prove to be cumbersome and complex. However in contrast there also exist certain situations and issues which can be dealt and solved via the means of ADR techniques hence,
The researcher sought to examine and analyse:-
The evolution of ADR techniques, its legal position in India and statues dealing with it and to study the recent developing ADR techniques like V.o.m (victim offender mediation) and F.G.C (family group conferencing) etc which have not been introduced in our country yet.
The working and functioning of the present criminal justice system in India and how as to the procedure for trail and investigation are carried out with respect to the scope of the dissertation.
The drawbacks which exist in our criminal justice system and the legitimate need and expediency for introducing ADR techniques in the criminal justice system.
The various areas where effectiveness of functioning can be improved by bringing in ADR techniques in the current criminal system.
The ADR techniques are most suited to our system and which ADR techniques cannot be used for accessing criminal justice.
Whether introduction of such techniques will solve the problems of the current adversarial criminal system and also cause the reposition of trust back in the criminal justice system.
Further the researcher shall attempt to give practical suggestions on the basis of research which he believes to be germane for improved operation of criminal justice system to protect without necessarily changing the whole infrastructure.
The researcher proposes to utilize part-doctrinal and part empirical method to compile the research undertaken. Aid will be sought from relevant international law journals, books, statutes governing this field prevailing in different nations, precedents and reports of various expert committees / commissions to conduct the in-depth study in the proposed field of research.
Empirical research is proposed to be conducted from a sample of forty interviewees largely from the legal fraternity-lawyers and judges, professors and lectures, teachers and law students having knowledge of the research field and members of the criminal administration system, personally and telephonically, with a view to seek opinion upon the prevailing policy and framework of the current criminal justice system and how introduction of ADR techniques would prove to be. The suggestions and recommendations formulated by the researcher are intended to be duly put before the interviewees with an objective to elicit their opinion on the viability of such changes to the existing criminal justice system.
The sources proposed to be used by the Researcher in the present research work would be primary as well as secondary sources, Judging the nature of research work and the paucity of time the researcher as of now has placed equal reliance on both primary and secondary sources;
PRIMARY SOURCES would include Constitution, statues and judicial pronouncements. The emphasis, in respect of the statue, has been laid more on some relevant provision of the Indian penal code &Code of Criminal Procedure 1973. In addition to these statues, reference has also been made to relevant judicial pronouncements including periods before and after setting up of lok adalats.
SECONDARY SOURCES would include various commentaries, digests, books various articles written by different jurist, Professors and eminent persons will be studied in the present research work, reports of various commissions, committees etc constituted by the Government of India from time to time on the subject will also be discussed in the present research work.
Tentative chapterisation scheme
The chapterisation scheme of the dissertation is as follows:-
Chapter I – Introduction
The researcher will in this chapter discuss the prelude to the present work including the need for the same; the researcher shall outline the predicaments in our criminal dispensation system and features of ADR which could be used to resolve the same.
Chapter II – Evolution of ADR in India, its techniques
The researcher would in this chapter deal with the evolution of ADR in India and explain in detail the various techniques of ADR which are have not yet been used in our country.
Chapter III – Scope of ADR in Criminal Justice System
In this chapter the researcher would deal with the working of Indian criminal justice system and the procedure adopted for dispensation of certain criminal cases, areas where ADR techniques could be implemented without causing much of sea change and as to how its implementation can be carried out.
Chapter IV – Suggestions & Conclusions
The researcher shall in the instant chapter make an effort to render practical suggestions on the basis of doctrinal research coupled with empirical survey which the researcher believes would improve the operation of the criminal justice system and showcase a picture as to how the people who are involved in, governed by and implement the current criminal system would react to such a change and their opinions.