ADR and Criminal Justice System in India

CATHARSIS AND SETTLEMENT DIALOGUE:

DISCOVERING THE PARADIGMS OF CRIMINAL DISPUTE
SETTLEMENT

Researcher’s Note:- This Paper is divided into 3 subsections. The first one deals with the
basic theories, need and concept of ADR’s in the International and Indian Context. The
second section deals with the obscenity of Plea Bargaining, its disadvantages and the Indian
International Context of the same. The third and the last section deals with the concept of
Victim Offender Mediation as an alternative Dispute Resolution in criminal cases, its
implications and introduction in the Indian Judicial System.

ADR in the Criminal Justice System

The Meaning of ADR in Criminal Justice System

The absence of clear boundaries around the definition of ADR, makes it a major object of
judicial interpretation and assessment1 and hence there is a very limited approach to the
whims of ADR in the Criminal Justice System.2 In the specific offences of criminal nature,
justice is not conceptualized as a dispute between the victim and the offender, but a wrong
concerning the offender and the State.3 Furthermore, there is also a clash between the goals
that are sought to be achieved in criminal matters, and the relief providing ambit of ADR.
The former one categorizes more on deterrence and its practical aspects, while the latter harps
on the principles of restorative justice.4

The concept of ADR seeped into the Indian judicial system with the inclusion of the
Arbitration and Conciliation Act and Section 89 of the Civil Procedure Code. Article
159(2)(c) of the Constitution of India provides for one of the basic essential foundation of
1
NADRAC, ADR Terminology: A discussion paper (2002), (September 29, 2018 10:04 AM)
https://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Documents/NADRAC%20Publications/ADR
%20Terminology%20A%20Discussion%20Paper.pdf
2
Melissa Lewis and Les McCrimmon, ‘The Role of ADR Processes in the Criminal Justice System: A View
from Australia’, (September 29, 2018 10:24 AM)
http://www.justice.gov.za/alraesa/conferences/2005uganda/ent_s3_mccrimmon.pdf
3
Subramanian Swamy v. Union of India, (2016) 7 SCC 221
4
Shirli Kirschner, Criminal Justice and ADR, (September 20, 2018 09:23 AM)
https://www.mediate.com/articles/kirschnersbl20180126.cfm

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 ADR and Criminal Justice System in India

ADR by mandating courts and national tribunals to promote “alternative forms of dispute
resolution including reconciliation, arbitration, mediation and the traditional dispute
resolution mechanism.”5The amended provisions of the concerned act do not specifically
exclude any categories of disputes from the wings of additional methods of dispute
resolution.6 On one hand, where the apex court delivered the fabrication of ADR and its
implementation in civil matters7, on the other, it also introduced the intricacies of the concept
of mediation and its construction in matters of criminal jurisprudence8, overall providing an
alternative conceptualization of Justice. Mediation is a certified form of ADR, which
explicitly deals in Criminal matters9 wherein major acknowledgement and pursuance of
Victim’s consent plays a major role in the process of mediation 10, which furthermore widens
the scope of ADR in the Criminal Justice mechanism in India. The courts and tribunals which
have an upturned ratio in themselves can be a last resort, if in case mediation fails11, but more
often than not, for a speedy justice, and a fair, practical punishment to the wrong doer,
mediation between the two parties proves successful.12

Through the medium of this research paper, we discuss the intricacies of mediation in the
Indian Criminal Justice System and the need for a replacement from the traditional way of
dispute resolution to the Mediation process. A comparison with the successful
implementation of Victim Offender Mediation, in consonance with the principle of
restorative just13ice brings forward, a speedy, just and equitable concept of Additional
Dispute Resolution.

Judicial Interpretation of ADR in Criminal Justice System and the difference in goals

The well established principle of Justice delayed is justice denied14 stands as a testimony to
the need of Mediation in Criminal cases, as the number of cases awaiting justice in criminal

5
ADR in statutory crimes and crimes against the State, (September 29, 2018 11:24 AM)
https://adrconsultants.law/2018/06/25/adr-in-statutory-crimes-and-crimes-against-the-state/
6
India – Certain Categories of Disputes to be Non- Arbitrable, (September 29, 2018 01:14 PM) as available at
http://www.mondaq.com/india/x/572050/Arbitration+Dispute+Resolution/CERTAIN+CATEGORIES+OF+DIS
PUTES+TO+BE+NONARBITRABLE
7
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24
8
Vikram Baksi v. Sonia Khosla, (2014) 15 SCC 80
9
Kajal Jaiswal, ADR and the Criminal Justice System, (September 29, 2018 16:24 PM)
http://www.lawyersclubindia.com/articles/ADR-and-the-Criminal-Justice-System-6585.asp
10
Jagdish Chander v. Ramesh Chander, 2007 (5) SCC 719
11
Saraswati Singh v. Shailesh Singh, (2018) 5 SCC 373
12
Meenal Bhargava v. Naveen Sharma, 2018 SCC Online SC 508
13
Rahul Deo, Criminal Cases and ADR, (October 2, 2018 at 10:30 AM)
https://www.lawctopus.com/academike/criminal-cases-adr/
14
Hussainara Khatun v. State of Bihar, AIR 1979 SC 360

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 ADR and Criminal Justice System in India

matters far exceeds the Civil ones.15 The Supreme Court of India, via a large constitutional
Bench suggested a Case Flow Management System16 in order to bring forward the concept of
a just and speedy trial, and also directed the High Courts to focus on the same.17 A discussion
of classifying cases on the basis of priority was also upheld18, however, in the present
situation, neither has the Bill been approved by the Parliament, nor have the Courts been able
to successfully adapt and modify the Proposal that was set out by the Committee.

The Supreme Court, on various occasions has harped on the importance of a speedy trial 19,
which is in turn an integral part of our Fundamental Right to life as is enshrined under Article
21.20 By the aforementioned, it can be easily interpreted that the goals of the Indian Judiciary
are noble, however, the execution of the same is held up and needs a revolution. The Basic
Goal of introducing an additional method is to divert offenders from long unending trials,
promote victim involvement, encourage the healing process, empower the victim and the
community, and address the psychological aspects of both, the offender and the victim.21

The recent Judgment of A. Ayyasamy v. A. Paramasivam22, which even though majorly dealt
with fraud, threw light on the basic concepts of Applicability of ADR in the Criminal
Context. The judgment is a departure from the principle of arbitrability of fraud when it
comes to foreign seated arbitration vis-à-vis domestic arbitration where the SC6 has held that
in the case of arbitrations covered by New York Convention, the Court can decline to make a
reference only if it comes to the conclusion that the arbitration agreement is null and void.23It
gave an alternative test to decide the medium of justice and did not follow the general rule
settled in Booz Allen.24 Ayyasamy, indulges in pro-arbitration rhetoric while relying on
international authorities and established principles of Kompetenz-Kompetenz “The ability of

15
A.K.Sikri ” Reforming Criminal Justice System: Can Plea Bargaining Be The Answer?, NYAYA DEEP,
Vol.__,2006,p.39-60
16
Supreme Court of India suggested introduction of case management systems in a judgment on 3 August 2005.
17
Reported in The Hindu, 4 August 2005; Telegraph, 4 August 2005, Kolkata, p 1
18
Reported in Telegraph, 4 August 2005, Kolkata
19
Supra Note 13
20
Maneka Gandhi v. Union of India AIR 1978 SC 597
21
Evi Kadar, Victim-Offender Mediation Program (VOMP) (paper presented at National Conference on
Juvenile Justice, Canberra, 22-24 September 1992); AIC, above n6, 16; Gordon Bazemore and Mark
Umbreit, ‘A Comparison of Four Restorative Conferencing Models’(February 2001) Juvenile Justice Bulletin,
Washington: Office of Juvenile Justice and Delinquency Prevention, US Department of Justice, 6; NSW
Department of Justice and Attorney General, ‘Circle Sentencing’ (2009) Factsheet.
22
A. Ayyasamy v. A. Paramasivam, (2016) 10 SCC 386
23
Sachin Mandik and Others, India: Supreme Court Settles Position on the Arbitrability of Disputes where fraud
is alleged, (October 1, 2018, 11:30 AM)
http://www.mondaq.com/india/x/538894/trials+appeals+compensation/Supreme+Court+Settles+Position+On+T
he+Arbitrability+Of+Disputes+Where+Fraud+Is+Alleged
24
Booz-Allen & Hamilton Inc v. SBI Home Finance, (2011) 5 SCC 532

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 ADR and Criminal Justice System in India

the arbitral tribunal to rule on the question of whether it has jurisdiction before intervention
by national courts.”25, minimal interference and others.26

The Introduction of Victim Offender Mediation Programs27, Community Dispute Resolution

Programs, Victim Offender Panels28, Victim Assistance Programs29, Community Crime
Prevention Programs30 and PCMS (Private Complaint Mediation Service)31 were all methods
that were introduced and addressed in an international perspective to do justice to the
victims.32 As has already been established, that there is no bifurcation in the cases, which
have been addressed in the Arbitration Act, and it is a new concept open to Judicial
Interpretation, the Ayyasamy Judgement enhances the concept of literal interpretation and
opens the window for new methods of dispute resolution to be inculcated in the Indian
Judiciary System.

ENHANCEMENT OF THE RESTORATIVE JUSTICE SYSTEM

A commonly accepted definition of restorative justice comes from Marshall 33, who defines
restorative justice as ‘a process whereby all parties with a stake in a particular offence come
together to resolve collectively how to deal with the aftermath of the offence and its
implications for the future’34This System can be used, either to deviate offenders totally from

25
Legal Meaning of Kompetenz-Kompetenz, (October 1, 2018 at 11:00 AM)
https://uk.practicallaw.thomsonreuters.com/4-205-
6045?transitionType=Default&contextData=(sc.Default)&firstPage=true&comp=pluk&bhcp=1
26
Agnish Aditya, Takeaways from Ayyasamy: The Practical Impossibility of Determining “Serious Allegations
of Fraud” and the Apprehension Towards Arbitration (October 2, 2018 at 10:00 AM)
http://arbitrationblog.kluwerarbitration.com/2017/01/20/takeaways-from-ayyasamy-the-practical-impossibility-
of-determining-serious-allegations-of-fraud-and-the-apprehension-towards-arbitration/
27
John R. Gehm “Victim-Offender Mediation Programs: An Exploration of Practice and Theoretical
Frameworks”, Western Criminology Review 1 (1), (October 2, 2018 at 16:54 PM)
http://wcr.sonoma.edu/v1n1/gehm.html.
28
RESTORATIVE JUSTICE ONLINE: Victim Offender Panels, (October 2, 2018 at 17:54
PM) http://www.restorativejustice.org/university-classroom/01introduction/tutorial-introduction-to-restorative-
justice/processes/panels
29
OVC: OVC Links to Victim Assistance & Compensation Programs, (October 2, 2018 at 23:54
PM) http://www.ojp.usdoj.gov/ovc/help/links.htm
30
Prevention: Community Programs – The History Of Community Crime Prevention, Chicago Areas Project,
Political Mobilization, Evaluations Of Community Crime Prevention Programs, (October 1. 2018 at 13:23 PM)
http://law.jrank.org/pages/1739/Prevention-Community-Programs.html#ixzz0kxrprMHD
31
MEDIATION OF CRIMINAL MISDEMEANOR DISPUTES, (October 1. 2018 at 13:23 PM)
http://www.hamilton-co.org/MunicipalCourt/mediation/mediation_of_criminal.htm
32
Anoop Kumar, Applicability of ADR in Criminal Cases, (October 2, 2018 at 13:20 PM)
http://www.mightylaws.in/430/applicability-adr-criminal-cases
33
Supra Note 4
34
Australian Institute of Criminology (AIC), ‘Restorative Justice in Australian Criminal Justice System’, (2014)
127 Research and Public Policy Series, 23-28

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 ADR and Criminal Justice System in India

the ethnic process of courts, or be complementary/supplementary to such processes.35 In

comparison with the traditional criminal justice processes, restorative justice places more
overt focus on the victim, gives decision-making power to a broader range of actors, and
allows for more free discussion between a wide-range of parties.36

Understanding the critical Situation of Courts and facing a similar situation, as India is right
now, the U.S. adopted plea bargaining and diversion to administrative and quasi-judicial
institutions in a big way several years ago with the result that less than a third of criminal
cases are allowed to go for trial. Diversion is followed in the U.K. as well, where a central
role was given to the victims to direct their cases in the system. In Russia, Australia and
several other countries, the victim is brought centre stage through what is called “restorative
justice” to replace unproductive aspects of conventional criminal processes.37 ADR seeks to
give disputants the opportunity to be involved in the judicial process and most at times own
and determine the direction and outcome. them. The outcomes of ADR Mechanisms such as
Mediation are not imposed; they are determined by the disputants with the guidance and
direction of a third neutral party. Thus the outcome of such a process is not only legally
binding but morally and emotionally binding as well.38

As far as the Indian Context of Restorative Justice is concerned ‘Restorative Justice’ reflects
a crimino-victim balanced justice system where equal justice to offenders and victims is
ensured. There are four potent features of Restorative Justice: repair, restore, reconcile, and
reintegrate the offenders and victims to each other and to their shared environments and
communities. There are many examples within Indian criminological literature that
thoroughly explain the practice of restorative justice in India. Much of Gandhian philosophy
and practice is based on restorative justice principles including the participatory practices of
fairness and equality. 39

The Researchers, on a similar thought process with the Indian Judicial System believe in the
age old age of “End the Crime, and not the Criminal” As far as matters of Criminal Nature

35
Kathleen Daly and Hennessey Hayes, ‘Restorative Justice and Conferencing in Australia’ (February 2001) No
186 Trends & Issues in Crime and Criminal Justice, Australian Institute of Criminology.
36
Ibid.
37
N.R. Madhava Menon, Towards Restorative Criminal Justice System (October 2, 2018 at 17:45 PM)
https://www.thehindu.com/opinion/lead/towards-restorative-criminal-justice/article8433634.ece
38
Alternative Dispute Resolution: The way to Restorative Justice Justice, (October 3, 2018 at 18:00 PM)
https://www.ghanaweb.com/GhanaHomePage/features/Alternative-Dispute-Resolution-The-way-to-restorative-
justice-671907
39
S. Latha, Restorative Justice in India, Asian Journal of Criminology, (October 2, 2018 at 11:54 AM)
https://www.researchgate.net/publication/257681397_Restorative_Justice_in_India

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 ADR and Criminal Justice System in India

are concerned, The deterrence theory of Punishment is used, however in the past years, the
crime rate has majorly been seen in an increasing connotation, and there is need to understand
the basic essentials of how and why a crime is happening and the measures to put a stop to it.
Restorative Mediation in this context is not only a boon for the over burdened courts as an
ADR mechanism, but is also a favored method for both the victim and the offender. It is
better equipped to understand the nature of justice that is sought by the victim help him in
getting answers for the wrong caused to him, and also understand the psychology of the
offender, and help him reconcile and rehabilitate the general interest and welfare of Society. 40

RIGHT IN REM AND RIGHT IN PERSONAM

Derived from Roman Concepts, Right in Rem and Right in Personam are two individual
rights which play an important role while determining the course of punishments. A right in
rem is available against the whole world but a right in personam is available against a
particular individual only.41

The basic concept of these rights in clash with cases of Criminal Nature comes to the Scene,
wherein, a criminal act is an offence against the State, is proposed to be resolved in a manner
of Mediation, Circle referencing or Youth Counseling. ADR’s as of now, specifically in the
Indian Context have been interpreted against Right in personam only, however, via the
introduction of Victim Offender Mediations, it is proposed that they also be applied against
right in rem, because even though some offences are strictly against that of the State, it is the
individual loss of the victim, emotional vulnerability and social harassment that supercedes
the interests of the State at large.

Plea bargaining

The criminal justice system in India has not yet stood the true litmus test in the realms of
Alternate Dispute resolution. The introduction of ‘plea bargaining’ through the Criminal law
(Amendment) Act 2005, by virtue of s. 265A-265L under chapter XXIA of the Code of

40
Restorative mediation: a progressive process for alternative dispute resolution in the Caribbean, A special
report: International Dispute Resolution, Financier Worldwide Magazine (October 3, 2018 11:50 AM)
https://www.financierworldwide.com/restorative-mediation-a-progressive-process-for-alternative-dispute-
resolution-in-the-caribbean/#.W7R982gzbIU
41
What is meant by rights in rem and rights in personam, (October 3, 2018 11:54 AM)
https://www.gktoday.in/gk/what-is-meant-by-rights-in-rem-and-rights-in-personam/

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 ADR and Criminal Justice System in India

Criminal procedure has been an ice breaker for the conservative judicial approach in the
Indian Legal history.

Legal Background

The Criminal (amendment) Act 2005, the roadway upon which plea bargaining rests
construes its genesis from the recommendations of the Malimath Committee(2003) 42under
the chairmanship of Dr. Justice V.S. Malimath. What the committee, in its opinion,
intrinsically presses upon, is the immediate implementation of plea bargaining in the Indian
Criminal procedure43. An explicit agreement to the 142th and 154th Law commission reports
has been made in the following terms :

“14.10.2 The Law Commission in its 142nd report stated that it is desirable to infuse life into
reformative provisions embodied in Sec.360 CrPC and the Probation of Offenders Act which
according to the Law Commission remained unutilised. Law Commission noted the
advantages of plea-bargaining which ensures speedy trial with benefits such as end of
uncertainty, saving of cost of litigation, relieving of the anxiety that a prolonged trial might
involve and avoiding legal expenses. The Law Commission also noted that it would enable
the accused to start a fresh life after undergoing a lesser sentence. Law Commission noted
that about 75% of total convictions are the result of plea bargaining in USA and they
contrasted it with 75% of the acquittals in India. Law Commission also observed that
certainly plea-bargaining is a viable alternative to be explored to deal with huge arrears of
criminal cases. The same might involve pre-trail negotiations, and whether it is “charge
bargaining” or “sentence bargaining” it results in a reduced sentence and early disposal.
14.10.5 The Law Commission after thorough examination of the subject of plea-
bargaining/compounding/settlement without trial has in its 142nd and 154th reports made
detailed recommendations to promote settlement of criminal cases without trial. As the
Committee is substantially in agreement with the views and recommendations of the Law
Commission in the said reports it considers unnecessary to examine this issue in detail”44
The aim of Malimath committee herein, construes to be ideally, as to how to reduce the
burden on courts with respect to the criminal cases. However, what is overlooked by the
report is the blind adaptation of Law commission Reports, done without due regard to the
long terms adversity which tags along due to corrupt practices at the hands of the police and
the advocates. In our opinion, the committee takes a contradictory view. On one hand, it
proposes to encourage reformative justice as under s.360 CrPC while on the other side
encourages means such as of plea bargaining, the interventionist roots of which strive only
for retributive decision making.
42
Ghosh, S. (2018), Plea Bargaining - An Analysis of the concept [online] Legalserviceindia.com. Available at:
http://www.legalserviceindia.com/articles/plea_bar.htm [Accessed 1 Oct. 2018].
43
Malimath, V. (2003), Committee on Reforms of Criminal Justice System Government of India, Ministry of
Home Affairs, volume 1. Bangalore, pp.178-180.
44
Ibid, pp. 178,179

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 ADR and Criminal Justice System in India

The 142th Law Commission Report – An American Inspiration

The Supreme Court in the landmark case of Hussainara Khatoon v. State of Bihar45 gave first
ever recognition of the perturbing reality of pending cases with respect to minor crimes, the
under trials of which happen to serve beyond the prescribed sentence46. This concern has
been adequately dealt with in the report. However, the global reference to which the
Commission has based its recommendations belongs to the American Jurisprudence of
criminal law47.

The prevalence of Plea bargaining in the American judicial culture has existed since the
1880s48. In the United States, this concept of pre-trial negotiation exists for all offences,
irrespective of their degree of seriousness. The ordinary presumption that the American
Courts rely upon to justify this flexible approach is that ordinarily the innocent would not
plead guilty and withstand the judicial tests of the trial49, while the defendants who were
convicted on the basis of negotiated pleas of guilt would ordinarily be convicted had regular
trial taken place50. The line of thought on the basis which this presumption is based, is that
the courts pre-conceive the trial procedures to be non-arbitrary and that suppression of truth is
fatal when innocence is pre-determinant as a matter of fact.

The constitutional validity of plea bargaining has been upheld in the landmark case of Brady
v. United States51 on the premise that plea bargaining at no cost precludes the judicial review,
nor oust the range of choice of setting sentences for the judge or the jury 52. However the
essential pre-condition to declare a the plea bargaining practice as constitutional, as per the
American Courts is the informed consent, voluntary participation in the negotiation process
and admission of guilt free of any coercion53.

The commission takes note of certain thresholds that various U.S supreme Court cases
establish to ensure that the plea bargaining is “fair” in the broadest of the terms. Burger J. in

45
Supra Note 14
46
Ibid, Para 1
47
Justice M.P Thakkar(1991), Hundredth and forty-second Report on Concessional treatment For Offenders
Who On Their Own Initiative choose Plead Guilty Without Any Bargain, New Delhi, Chapter III pp,5
48
Ibid
49
Thakkar, Supra note 47, pp 6
50
Ibid
51
Brady v. United States, 297 US 742-25L. Ed 2 747
52
Ibid , pp. 758
53
Brady, supra note 51, pp. 751 (para 10) Also see Moore v. Michigan 335 US 155 (1957)

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 ADR and Criminal Justice System in India

Santo Bello v. New York54 states that the essence of guilty plea is speedy disposition of
charges, which in turn catalyses the correctional and rehabilitative prospects of the guilty55.

Victim Offender Mediation: The Undiscovered Paradigm

Victim-Offender Mediation Programs (VOM). Also referred to as victim-offender

reconciliation programs (VORP) or victim reparation programs, aims to propagate direct
communication and exchange of insight between the offending and the offended party .
Victims who participate are provided with an opportunity to ask questions, address the
emotional trauma caused by the crime and its aftermath, and seek reparations56.

Victim-Offender Mediation Programs have been successfully working to bring justice

between crime victims and offenders for over twenty years. There are over 300 such
programs in the U.S. and Canada and about 500 in England, Germany, Scandinavia, Eastern
Europe, Australia and New Zealand which focus on a healthy victim-offender dialogue.57 The
intrinsic ingredient that VOM enshrines is the principle of restorative justice58. Restorative
justice is seen as an evolved notion of justice which takes into account the victim psychology
and mental and economic satisfaction over the conservative Retributive Justice59 where crime
is viewed primarily as a violation of the state, and punishment is premised on deterrence and
spirit of vengeance .

Global adaptation of VOM

The gradual preference to VOM has been due to the generation shifts as to how individuals
and states want to perceive “justice” as. Restorative initiation gained currency in the 1990s,

54
Santo Bello v. New York, 94 L. Ed 2d 405
55
Ibid , pp. 261-262
56
John R. Gehm “Victim-Offender Mediation Programs: An Exploration of Practice and Theoretical
Frameworks”, Western Criminology Review 1 (1). [Online]. Available: http://wcr.sonoma.edu/v1n1/gehm.html.
57
Marty Price, Crime and Punishment: Can Mediation Produce Restorative Justice for Victims and Offenders?
VORP, available at http://www.vorp.com/articles/crime.html
58
Melissa Lewis and Les McCrimmon, The Role of ADR Processes in the Criminal Justice System: A view from
Australia (2005),pp.6-9
59
R Sarre and K Earle, ‘Restorative Justice’ in R Sarre and J Tomaino (eds), Key Issues in Criminal Justice
(2004) pp.144, 145

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 ADR and Criminal Justice System in India

although it has modern antecedents in the justice movement and the victim-offender
mediation programs of the 1970s and 1980s throughout the world60.

The worldwide survey conducted by to determine how widespread the practice of VOM has
become,the Centre for Restorative Justice & Peace making (formerly the Centre for
Restorative Justice & Mediation), School of Social Work, University of Minnesota, in 1996
was provided a grant by the Office for Victims of Crime (OVC) within the Office of Justice
Programs, U.S. Department of Justice (DOJ)61.

The following table represents the adaptation trends by way of showing the number of
Victim-offender Mediation Programmes each country incorporates :

S.No. Country No. of programmes

1. Australia 5
2. Austria 17
3. Belgium 31
4. Canada 26
5. Denmark 5
6. England 43
7. Finland 130
8. France 73
9. Germany 348
10. Italy 4
11. New Zealand Available in all Jurisdictions
12. Norway 44
13. South Africa 1
14. Scotland 2
15. Sweden 10
16. United states 289

60
K Daly and H Hayes, Restorative Justice and Conferencing in Australia–No 186 (2001) Australian Institute
of Criminology, pp. 1.
61
Mark S. Umbreit & Jean Greenwood, National Survey of Victim-Oender Mediation Programs in the United
States (2000) center for Restorative Justice & Peacemaking (formerly Center for Restorative Justice &
Mediation) School of Social Work University of Minnesota St. Paul, Minnesota , pp. 1

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 ADR and Criminal Justice System in India

Source : Data are taken from Umbreit, 1994b; Wright, 1996; and the Center’s national
survey of victim-offender mediation programs62(official document)

The results show the absence of southeast Asian states in accommodating VOM in their
criminal justice systems, while South Africa is providing a starter to the African continent,
most of the European and North American states have made a mark in welcoming VOM.
This implies the changing view these states have begun to culture, with due respect to
restorative justice as an overarching notion to deterrence and reformation.

The most astonishing results in the survey inevitably come to be seen in case of New
Zealand. The uniform application of VOM in the Pacific Island State has been a route map
for their neighbour state Australia. . the “family Group conferencing” first Introduced in New
Zealand in 1980s and later in Australia, builds on victim-offender mediation programs by
bringing together not only the individuals involved but also members of their families and
the broader community63. In conferences, family members of victims and offenders can
provide support and additionally can describe their ‘secondary victimisation’, thereby letting
out the emotional tremor felt by remotes victims in this regard.

The area of reconciliation emphasized by New Zealand was child and family welfare
decisions which was manifested in Children, Young Persons and Their Families Act in
198964 while in case of Australia, youth justice and empowerment become the core area of
experimentation65.

The Conferences strive to develop responses to criminal offending which maintain

equilibrium of victims’ economic and emotional regaining and accountability of offenders
for their behavior by giving them a more active role in the process ,wherein they deliberate
about why they committed the offence and listen to the victim describe the impact of the
offence. The explanation behind this is that it becomes difficult for offenders to deny the
harm they have caused or to offer excuses when placed in front of their victims, and that such
encounters are more likely to induce remorse66. This is demystified on the lines of Theory of
reintegrative shaming by John Braithwaite67. His theory proposes that “shaming” is used as

62
Ibid pp.3
63
Supra note 58, pp. 5-6
64
Daly, supra Note 20
65
Ibid
66
Hennessey Hayes, ‘Assessing Reoffending in Restorative Justice Conferences’ (2005) 38(1) The Australian
and New Zealand Journal of Criminology 77, 78–79.
67
J Braithwaite, Crime, Shame and Reintegration (1989).

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 ADR and Criminal Justice System in India

weapon by state to induce sanctions upon the offenders and encouraging ostracization and
thereby reinforcing the urge to offend in order to seek vengeance68. However, Braithwaite
relocates “shame” in social dialogue in order to recover the lost self esteem and social care
which ostracization caused previously in a retributive system.

The mechanism of VOM has not yet been initiated in India. This has been a major drawback
for the Judiciary’s stubborn approach to retribution and reformation has not succeeded in
giving the true “justice” to the victims in terms of their trauma recovery nor has this
approached helped in offenders improve upon their social reintegration for a better tomorrow.

VOM Model in India

Throughout the Research Paper, the researchers went into the tenets of the theoretical and
practical aspects of Additional Dispute Resolution and Victim Offender Mediation and how it
has been a globally practiced phenomenon. Post the success of Arbitration in commercial
matters, it is of essential importance to introduce methods and alternatives in criminal suits as
well, the numbers of which are rising every day.69

Proposed Model – Before getting into the practical aspects of this novel idea, it is essential
to set up the Bench that would be responsible for listening to these matters. A senior bench
consisting of 2 judges, one each of High Court and Supreme Court respectively, is having
minimum 5 years of experience in Criminal Jurisprudence. The facility would be available to
both adult and juvenile offenders, and their respective victims. It is a free, impartial and
private and would offer both, protective conditions and reparative mediation.70

Goals - The goals of victim offender mediation include71:

• Support the healing process of victims, by providing a safe and controlled setting for them
to meet and speak with the offender on a strictly voluntary basis.

68
Ibid
69
Crime and Law Data, (October 3, 2018 16:37 PM), https://www.indiastat.com/crime-and-law-
data/6/courts/72/district-sub-ordinate-courts/17697/stats.aspx
70
Victim-Offender Mediation, (October 3, 2018 at 16:42 PM) https://www.correctiveservices.wa.gov.au/victim-
services/victim-offender-mediation/default.aspx
71
Victim – offender Mediatiion, (October 3, 2018 at 16:48 PM)
http://www.courts.ca.gov/documents/VictimOffenderMediation.pdf

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 ADR and Criminal Justice System in India

• Allow the offender to learn about the impact of the crime on the victim and to take direct
responsibility for their behavior.

• Provide an opportunity for the victim and offender to develop a mutually acceptable plan
that addresses the harm caused by the crime.

72
Implementation - In implementing any victim offender mediation program, it is critically
important to maintain sensitivity to the needs of the victim. First and foremost, the mediator
must do everything possible to ensure that the victim will not be harmed in any way.
Additionally, the victim’s participation must be completely voluntary, as should the
participation of the offender. The victim should also be given choices, whenever possible,
concerning decisions such as when and where the mediation session will take place, who will
be present, who will speak first, etc. Cases should be carefully screened regarding the
readiness of both victim and offender to participate. The mediator should conduct in person,
pre-mediation sessions with both parties and make follow-up contacts, including the
monitoring of any agreement reached.

Conclusion

Change in judiciary and its provisions does not come in a day, and so does the common
understanding of the people. The main objective of this paper was to provide relief to the
emotional suppression of the victims and give them justice in a manner, where it is legally
acceptable and also works in favor of the victim.

Victim Offender Mediation is the new Arbitration for the Criminal Jurisprudence of
the Indian Judiciary. All it needs now is proper implementation and an Indian draft, which
promotes restorative justice through dialogues and not through deterrent unheard
punishments.

72
Victim Offender Mediation Programme, (October 3, 2018, 16:54 PM) http://restorativejustice.org/restorative-
justice/about-restorative-justice/tutorial-intro-to-restorative-justice/lesson-3-programs/victim-offender-
mediation/#sthash.2ErOUK58.dpbs

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Bibliography

Cases

1. A. Ayyasamy v. A. Paramasivam, (2016) 10 SCC 386 ................................................. 3

2. Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC
24.................................................................................................................................... 2
3. Booz-Allen & Hamilton Inc v. SBI Home Finance, (2011) 5 SCC 532 ......................... 3
4. Hussainara Khatun v. State of Bihar, AIR 1979 SC 360 ............................................... 2
5. Jagdish Chander v. Ramesh Chander, 2007 (5) SCC 719 ............................................. 2
6. Maneka Gandhi v. Union of India AIR 1978 SC 597.................................................... 3
7. Meenal Bhargava v. Naveen Sharma, 2018 SCC Online SC 508 ................................. 2
8. Saraswati Singh v. Shailesh Singh, (2018) 5 SCC 373.................................................. 2
9. Subramanian Swamy v. Union of India, (2016) 7 SCC 221 .......................................... 1
10. Vikram Baksi v. Sonia Khosla, (2014) 15 SCC 80........................................................ 2

References

11. A.K.Sikri ” Reforming Criminal Justice System: Can Plea Bargaining Be The
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 ADR and Criminal Justice System in India

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30. MEDIATION OF CRIMINAL MISDEMEANOR DISPUTES.................................... 4
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 ADR and Criminal Justice System in India

36. Prevention: Community Programs – The History Of Community Crime Prevention,

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International cases

1. Brady v. United States, 297 US 742-25L. Ed 2 747 ...................................................... 8

2. Moore v. Michigan 335 US 155 (1957) ......................................................................... 8
3. Santo Bello v. New York, 94 L. Ed 2d 405 .................................................................. 9

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