16 From Process to Consent: The Growth of Consent based Dispute Resolution Mechanisms such as ADR and Plea Bargaining

1. INTRODUCTION

“I realized that the true function of a lawyer was to unite parties… . A large part of my time during the 20 years of my practice as a lawyer was occupied in bringing out private compromise of hundreds of cases. I lost nothing thereby- not even money, certainly not my soul”.-Mahatama Gandhi

Preamble  to   our   Constitution  reflects  such  aspiration  as   justice:  social,   economic and political. Article 39A of the Constitution provides for ensuring equal access to justice. However the current state of affairs of the legal system is primarily characterised by delay, cost, procedural tardiness, adversarial process and consequently fear to approach and denial of justice to many.

Failure of the Indian democracy to deliver justice within a time-frame is bound to create a sense of frustration, loss of faith and dissatisfaction in the legal system. Perhaps the time has come where students of law need to question procedural as well as sociological reasons for delay in our judicial system and understand the anxiety and trauma caused to litigants. There is an urgent need to focus on the consent based systems of dispute resolution in a non-adversarial setting which should lead to a dispute being resolved in an amicable and expeditious manner.

Administration of Justice involves protection of the innocent, punishment of the guilty and the satisfactory resolution of disputes. In order to overcome the much criticized delay in justice delivery system, the adoption of Alternative Dispute Resolution (ADR) have emerged as an alternative, litigation-free method of resolving disputes. The entire globe of ADR can be divided under two major sub-heads: arbitration and mediation. Arbitration is consent based adjudication processes outside the traditional judicial system of the court by an independent person or intuition, whereas mediation is a process of settlement between the parties with the help of independent person/intuition. In addition, ADR includes settlement through conciliation, settlement before Lok Adalat/Permanent Lok Adalat etc. In ADR active roles are envisaged to be played by the parties to dispute, lawyers representing them, the court/forum before which dispute is brought or pending and the person/ intuitions facilitating the settlement of dispute.

An alternative means the privilege of choosing one of two things or courses offered at one‘s choice. It does not mean the choice of an alternative court but something which is an alternative to court procedures or something which can operate as court annexed procedure.1 They are called “alternative” because they are ways of resolving disputes not necessarily adhering to elements and technicalities involved in the traditional legal process. The approach to achieve settlement is not dependent on reference to legal rights or the legal merits of the dispute, but view the dispute as a problem capable of solution. The eventual settlement can incorporate anything to which the parties will agree, and does not have to bear any relationship either to the type or to the magnitude of any remedy that would have been available under the law. Indeed the ‘spirit’ of mediation is precisely to shift away from a focus on legal entitlement to a problem solving- frame of reference. It is about different interests and seeking to achieve a settlement that maximizes the opportunity of both sides to achieve their interests. 2 The approach of ADR can be understood with the help of following pictorial diagram:

In the present module we shall learn about historical development of consent based settlement of dispute resolution system (ADR) and its introduction in Criminal Justice system in the form of ‘plea bargaining’- a new form of ADR.

LEARNING OUTCOMES

The aim of this module is to give a general overview of the following:

(i) Brief historical perspective on ADR,

(ii) Need of ADR mechanism,

(iii) The consent based solution of dispute instead of adjudication by the traditional legal system, and

(iv) Plea bargaining as an element of ADR in Criminal Justice system.

1. GROWTH OF ADR- A CONSENT BASED MECHANISM

1.1. Pre-independence

India has a long history of settlement of disputes outside the formal justice delivery system. The concept of parties settling their disputes by reference to a person or persons of their choice or private tribunals were well known to ancient India. Long before the king came to adjudicate disputes between persons such disputes were peacefully decided by the intervention of the kulas, srenis, pugas and such other non-state bodies. These traditional institutions worked as primary institution of dispute resolution and not merely as an alternative.

Another early form of dispute resolution used by tribes and village communities, often till this day, is the use of panchas or wise persons to resolve individual/village disputes. Here, disputing members of tribe meet with a pancha to present their grievances and to attempt to work out a settlement. If that is unsuccessful, the dispute is submitted to a public forum attended by all interested members of the tribe. After considering the claims, defences, and interests of the tribe in great detail, the pancha again attempts to settle the dispute. If settlement is not possible, the pancha renders a decision that is binding upon the parties. The pancha‘s decision is made in accordance with the tribal law as well as the long-range interests of the tribe in maintaining harmony and prosperity. All proceedings are oral; hardly a record is made of the proceedings or the outcome. Despite the lack of legal authority or sanctions, such mediation processes were regularly used and commonly accepted by parties to a dispute in Indian.3

Mediation bears a striking resemblance, in some respects, to the ancient dispute resolution processes. In mediation the parties are encouraged to participate directly in the process. The expanded framework of discussion in mediation consists of both the applicable law and the underlying interests of the parties. The mediator, an expert in the process of dispute resolution, controls the proceedings, much like a tribal chief serving in the role of peacemaker. But under the ancient methods, if mediation failed, the same person was authorized to render a binding decision.

Since our judicial system has its roots in the British adversarial system, which seems to be one of the main reasons for the fact that consent based settlement has not become firmly established in our judicial system. It is useful to have a brief look at the development of mediation in England.

Although there has been mediation in matters family disputes since the mid 1980’s and arbitration and conciliation for a long time, the modern history of mediation in civil and commercial disputes started in the early 1990s. Prior to the introduction of the reforms by Lord Woolf in the mid-1990s, mediation providers had been working hard to establish the value of mediation and other ADR processes as the answer to the perceived problems of civil justice.4

Mediation, Conciliation and Arbitration, in their earlier forms are historically more ancient than the present day Anglo-Saxon adversarial system of law. By 1750s India was converted into a British Colony and the British style courts were established in India by 1775. The British ignored local indigenous adjudication procedures and modelled the process in the courts after that of British law courts of the period. There was a conflict between British values, which required a clear-cut decision, and Indian values, which encouraged the parties to work out their differences through some form of compromise. Therefore, during British Raj traditional institutions of dispute resolution somehow started withering and the formal legal system introduced by the British began to rule. The Bengal Regulations of 1772, 1780 and 1781 were designed to encourage arbitration. There were several Regulations and legislation that were brought in effecting considerable changes from 1772 onwards. After several Regulations containing provisions relating to arbitration, Act VIII of 1857 codified the procedure of Civil Courts except those established by the Royal Charter, which contained provisions of dealing with arbitration in suits. The first substantial law on arbitration i,e, Indian Arbitration Act 1899 was passed, based on the English Arbitration Act 1889. But it had its application limited to Presidency towns of Calcutta, Bombay and Madras. In 1908 the Code of Civil Procedure was re-enacted. The Code made no substantial changes in the law of arbitration. At last the Arbitration Act of 1940 was enacted replacing the Indian Arbitration Act of 1899 and section 89 and clauses (a) to (f) of section 104(1) and the Second Schedule of the Code of Civil Procedure 1908 added. It amended and consolidated the law relating to arbitration in British India and remained in operation until enactment of Arbitration and Conciliation Act 1996.

1.2. Post-independence

1.2.1 Legislative provisions

The concept of mediation received legislative recognition in India for the first time in the Industrial Disputes Act, 1947. The conciliators appointed under section 4 of the Act are “charged with the duty of mediating in and promoting the settlement of Industrial disputes. Arbitration, as a dispute resolution process was recognized as early as 1879 and also found a palace in the Civil Procedure Code of 1908 (hereinafter CPC). When the Arbitration Act was enacted in 1940 the provision for arbitration originally contained in section 89 of the CPC was repealed. The Indian Legislature made headway by enacting The Legal Services Authorities Act 1987 by constituting the National Legal Services Authority as a Central Authority to encourage the settlement of disputes by way of negotiations, arbitration and conciliation. The Indian parliament enacted the Arbitration and Conciliation Act in 1996, making elaborate provisions for conciliation of disputes arising out of legal relationship, whether contractual or not, and to all proceedings relating thereto. In 1999, the Indian Parliament passed the CPC Amendment Act of 1999 inserting section 89 in CPC, providing for reference of cases pending in the Courts to ADR. In addition, there are statues i.e., Chapter IV of the Family Courts Act 1984; sections 23 (2) and 23 (3) of the Hindu Marriage Act 1955; and section 34 (3) of the Special Marriage Act 1954; section 10A of the Industrial Dispute Act 1947; and Section 26 of the Gram Nyayalayas Act 2008, which provide for ADR. While Arbitration and Conciliation Act 1996 (hereinafter AC Act 1996) is a fairly standard western approach towards ADR, the Lok Adalat system constituted under National Legal Services Authority Act 1987 (henceforth NALSA 1987) are uniquely Indian approaches.

1.2.2 Judicial pronouncement

The need to encourage and strengthen the ADR has been felt by almost all stakeholders of the legal system including the Supreme Court. The Court in Food Corporation of India v Joginder Pal, 5 laid emphases on ADR system of adjudication through arbitration, mediation and conciliation is a modern innovation into the arena of the legal system and it has brought revolutionary changes in the administration of justice. It can provide a better solution to a dispute more expeditiously and at a lesser cost than in regular litigation.

The Supreme Court underlined the scope of ADR mechanism in procedural as well in family law in Jag Raj Singh v Bripal Kaur.6 The Court affirmed and observed that the approach of a court of law in matrimonial matters is much more constructive, affirmative and productive rather than abstract, theoretical or doctrinaire. The Court also said that in matrimonial matters must be considered by the courts with human angle and sensitivity and to make every endeavour to bring about reconciliation between the parties.

In Afcons Infrastructure Ltd v Cherian Varkey Construction Co (P) Ltd,7 held as follows:”The following categories of cases are normally considered to be not suitable for Arbitration or Conciliation [ADR process]:

i.Representative suits under Order 1 Rule 8 CPC which involves public interest or interest of numerous persons who are not parties before the court. (In fact, even a compromise in such a suit is a difficult process requiring notice to the persons interested in the suit, before its acceptance).

ii.Disputes relating to election to public offices (as contrasted from disputes between two groups trying to get control over the management of societies, clubs, association etc.).

iii.Cases involving grant of authority by the court after enquiry, as for example, suits for grant of probate or letters of administration.

iv.Cases involving serious and specific allegations of fraud, fabrication of documents, forgery, impersonation, coercion etc.

v.Cases requiring protection of courts, as for example, claims against minors, deities and mentally challenged and suits for declaration of title against government.

vi.Cases involving prosecution for criminal offences.

The Court further held that all other suits and cases of civil nature in particular the following categories of cases (whether pending in civil courts or other special Tribunals/Forums) are normally suitable for ADR processes:

i.All cases relating to trade, commerce and contracts,

ii.All cases arising from strained or soured relationships,

iii.All cases where there is a need for continuation of the pre-existing relationship in spite of the disputes;

iv.All cases relating to tortious liability; and

v.All consumer disputes.”

Supreme Court further held that ‘the above enumeration of ‘suitable’ and ‘unsuitable’ category of cases is not intended to be exhaustive or rigid. They are only illustrative’. In Afcons, the Court considered that whether ‘under section 89 of CPC, it is feasible to have recourse mandatorily for a civil court to have a hearing, after the completion of pleadings, for the purpose of to refer parties to Arbitration or Conciliation (ADR Process). However, the Court clearly held that it is not mandatory to refer the Parties to any ADR process in all cases. Where the case falls under an excluded category there need not be reference to ADR Process. In all other cases reference to ADR process is a must’.

In Jagdish Chander v Ramesh Chander,8 the Court laid down that it should not also be overlooked that even though section 89 of CPC mandates courts to refer pending suits to any of the several alternative dispute resolution processes mentioned therein, there cannot be a reference to arbitration even under that section, unless there is a mutual consent of all parties, for such reference’.

1.3.3 Online Alternative Dispute Resolution (OADR)- A new trended of ADR

Since law is changing with the changing demand of time, to meet the needs of the peoples. ADR mechanisms would certainly supplement the existing adjudicatory machin ery so as to develop the confidence of common man in the justice delivery system.

In the past few years E- Commerce has gained important and is, in a way, inevitable. The advent of internet has created challenges and opportunities for dispute resolution mechanisms in general and for ADR in particular. The lack of dispute resolution mechanisms in cyberspace will constitute a serious obstacle in the growth and development of e-commerce. Online Alternative Dispute Resolution (OADR) or ADR online, refers to the use of information and communication technology, wholly or partially, as a medium to conduct the proceedings of ADR in order to resolve commercial disputes that arise from the use of the Internet. Neutral private bodies operate these proceedings under published rules of procedure. Thus ADR emerged as a powerful weapon for resolution of disputes at domestic as well as international level. It is developing as a separate and independent branch of legal discipline. ODR is defined as a method for resolving dispute that arise online, and for which traditional means of dispute resolution were inefficient or unavailable. Using computer-networking technology, ODR brings disputing parties together “online” to participate in a dialogue about resolving their dispute.

ODR also involves the modes of arbitration, mediation and conciliation to solve such disputes online. The whole procedure is carried over online, no matter wherever the parties are. Distance does not cause any barrier in solving such disputes whether it is business related or consumer related, whether related to marital separation or interstate conflicts. The concept of ODR has been accepted in many countries worldwide. In India, to reduce the burden of the already overburdened courts the Alternative Dispute Resolution Mechanism has been put into practice and is gaining its popularity as days are passing by.

If we need to relate the practice of Online Dispute Resolution Mechanisms with the legal framework then we need to go through the provisions of the Information Technology Act 2000 (IT Act 2000) for establishing an Information and Communication Technology (ICT) base that may be conducive for the development of ODR in India. ODR is firstly, concerned with the civilized (i.e. peaceful) resolution of disputes between private parties, and, secondly, with the prevention of such conflicts through the provision of legal certainty. The judgment of the Supreme Court in State of Maharashtra v Praful B Desai,9 is a landmark judgment in this regard. The Court observed that it (ODR) has the potential to seek help of those witnesses who are crucial for rendering the complete justice but who cannot come due to territorial distances or even due to fear, expenses, old age, etc. The judiciary in India is not only aware of the advantages of information technology but is actively and positively using it in the administration of justice, particularly the criminal justice. Thus, it can be safely concluded that the e- justice system has found its presence in India. It is not at all absurd to suggest that ODRM will also find its place in the Indian legal system very soon.10

Recently many initiatives were taken by the governments around the world, industry groups, consumer advocacy groups and dispute resolution professionals devoted great attention to the development of ODR services and the standards and oversight over these ODR providers.

2. PLEA BARGAINING IN INDIA. 2.1 Origin

Guiding principle of this new concept in criminal justice system is Mutual satisfaction/ mutual acknowledgement of weakness/strength of the accused and the state in the back drop of crowded criminal justice delivery system. According to Black’s Law Dictionary Plea Bargaining means:

[t]he process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant’s pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that possible for the graver charge.

India‘s efficiency in crime investigation, prosecution and trial process is under a shadow of doubt and crisis of credibility because more than seventy per cent accused are acquitted. When it is difficult or impossible to secure evidence to establish crime through efficient investigation, what are the alternatives to send the criminals to jails? One limited answer is ‘plea bargaining’ where confessions will be bargained from criminals under judicial supervision which might result in speedy trial and sentencing.11

In plea bargain proceedings, the investigating officer, the Public Prosecutor, the victim of a crime, the complainant and the person accused of an offence join hands to voluntarily settle a pending criminal case to each other’s mutual satisfaction. The process is completely voluntary. If the plea bargain succeeds, the criminal case is disposed of in terms of the agreed settlement. If the plea bargain does not succeed, the criminal case proceeds from the stage when the plea bargain application was filed.

Plea Bargaining has its origins in the United States. The Sixth Amendment to the US Constitution enshrines the fair trial principle. But it did not mention the practice of plea bargaining. However, the US judiciary has upheld the constitutionality of this process. The classic case of adoption of plea bargaining is the case of the assassination of Martin Luther King Jr where accused James Earl Ray pleaded guilty to avoid the death penalty.12

The introduction of plea bargaining in the Indian criminal justice system is largely a response to the deplorable status quo, reflected in the delay in the disposal of criminal cases and appeals, the huge arrears of cases and appalling plight of under trial prisoners in jail.13

The doctrine of Nolo Contendere (I do not wish to contend) is often expressed as an implied confession or a quasi-confession of guilt. But raising the plea of Nolo-Contendere is not ipso facto, a matter of right of the accused. It is within the particular discretion of the court to accept or reject such a plea. However the court must accept the plea unqualifiedly.14 The Court is responsible for ensuring that the whole process is carried out with the full and voluntary consent of the accused.15 Plea bargaining involves the following:

Withdrawal of one or more charges against an accused in return for a plea of guilty Reduction of a charge from a more serious charge to a lesser charge in return for a plea of guilty.

Recommendation by the prosecutor to sentencing judges as to leniency of sentence in lieu of plea of guilty.16

2.2 The Code of Criminal Procedure 1973: Chapter XXI A

Law commission of India advocated the introduction of Plea Bargaining in the 142th, 154th, and 177th reports. The 154th report of the Law commission recommended the new chapter XXI A to be incorporated in the CrPC. Based on recommendation of the Law Commission, the new chapter on plea bargaining making plea bargain in cases of offences punishable with imprisonment up to seven years has been included.

2.3 Procedure of plea bargaining:

Chapter XXI A of the Code of Criminal Procedure, 1973 inserted by the Amendment Act of 2005, governs plea bargaining w.e.f. 5th July, 2006. It lays down the following procedure of plea bargaining: An application for plea-bargaining by a person accused of having committed an offence can be filed only if the following conditions are satisfied:17

• If the offences is penalized by imprisonment below seven years. However, if the accused has been previously convicted of a similar offence by any court, then he/she will not to be entitled to plea bargaining.

• Plea-bargaining is not available for offences which might affect the socio-economic conditions of the country. The Central Government has power to notify offenses affecting the socio-economic conditions of the country

• Also, plea-bargaining is not available for an offence committed against a woman or a child below fourteen years of age.

Thus the opportunity of plea bargaining is not acceptable for accused in serious crimes such as murder, rape etc. It does not apply to serious cases wherein the punishment is death or life imprisonment or a term exceeding seven years or offences committed against a woman or a child below the age of 14 years.

Plea bargaining does not apply to juvenile or Child as defined in sub-clause (k) of section 2 of the Juvenile Justice (Care and Protection of Children) Act 2000. Section 256 L of the CrPC provides that:

1. An accused may file the application in the court where the offence is pending trial.
2. The court will consider the application and issue notice to the Investigating office, Public Prosecutor, Victim, if any and complainant whenever necessary. Legal aid may also be ordered to be provided to the accused.
3. The court will have an in camera or Private discussion with the applicant, his lawyer to determine the voluntariness of the applicant,It is desirable that all the parties concerned should try to arrive at a settlement and court may facilitate in arriving at an amicable settlement.
4. If the Court is satisfied that the Plea Bargain meets all the legal requirements including the voluntariness of all the parties concerned, he will accept it and pass an order disposing of the case in terms of the settlement which is required to be signed by all concerned.If an amicable settlement is not arrived at then the case back for trail from the sage it was left.

2.4 Disposal of the Case by the Court

Section 256 E of the CrPC lays down the procedure for the disposal of an application of plea bargaining. The punishment that may be awarded on the acceptance of Plea Bargaining application depends on the nature of the offence and no definite answer can be given. But the options are:

• Being put on probation under the Probation of Offenders Act, 1958,
• Fine or a compensatory amount.
• Period of custody already undergone.
• Custody upto a maximum of one-fourth (1/4) or one-half (1/2) the period of imprisonment provided by law, as the case may be.

An applicant will be entitled to set off the period of detention undergone against the sentence of imprisonment.18 The judgment will be deliver by the court which shall be final.19 The plea bargaining procedure is confidential in nature.20

The Supreme Court of India has in the past quite vociferously expressed its displeasure at the concept of plea bargaining.21 It was observed that this practice intrudes on society’s interest by opposing society’s decision expressed through pre-determined legislative fixation of minimum sentences and by subtly subverting the mandate of the law.22 However, now that plea bargaining has legal sanction in India after the 2005 Amendment Act and is not just a borrowed concept, it is hoped that the judicial attitude towards plea bargaining will undergo a sea change.23 The Gujarat High Court in State of Gujarat v Natwar Harchandji Thakor24 recognized the utility of plea bargaining and stated 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.

2.5 advantages and disadvantages

The institution of plea bargaining has can be identified with following advantages and disadvantages:25

Advantages:

1.Plea Bargaining is time saving and will help in cutting short the delay, backlogs of cases and speedy disposal of criminal cases

2. Quicker compensation for victims of such crimes as per settlement arrived at.

3. Benefit to the accused from the point of view of reform, time and money.

Disadvantages:

1. A violation of the principles of justice and the legalization of crime.

2. Disregard and contempt for the criminal justice system.

3. Presence of an element of coercion as an accused might choose to plead guilty in order to avoid a lengthy trial, whereas an actual trial could actually result in a lesser charge or acquittal.

3.  SUMMARY

India is a nation which epitomises a subtle mix of the modern and the ancient. The preservation of the best of both is what Indians are best at. Keeping in mind the same spirit of India, the common Indian of today should get the best of all the dispute resolution mechanisms in India. The motive behind any legislation, amendment or new introduction has and always been the welfare of the ordinary citizen of the country. With the advent of the alternate dispute resolution, there is new avenue for the people to settle their disputes. There is an urgent need for justice dispensation through ADR mechanisms. The ADR movement needs to be carried forward with greater speed. This will considerably reduce the load on the courts apart from providing instant justice at the door-step, without substantial cost being involved. If they are successfully given effect then it will really achieve the goal of rendering social justice to the parties to the dispute and marching toward a smooth resolution of commercial dispute in modern liberalization era.

While systems of Alternative Dispute Resolution might have their merits, it is evident that they might not apply to all kinds of situations and discretion would have to be exercised by a judge as to whether a civil dispute could be referred to mediation or a criminal trial to be referred to plea bargaining keeping in mind the nature of the dispute, willingness of the parties to settle etc. As stated in the opening part of this lecture, it is time for students of law to begin questioning the deficiencies in our judicial system. Mediation Training Manual of India drafted by Mediation and Conciliation Project Committee of Supreme Court of India has come up with the detailed mechanism of ADR. Mandatory mediation through courts has now a legal sanction. Court-Annexed Mediation and Conciliation Centre are now functioning in various courts in India and the courts have started referring cases to such centres. ADR services, under the control, guidance and supervision of the court have more authenticity and smooth acceptance. It would ensure the feeling that mediation is complementary and not competitive with the court system. Supreme Court of India through its judicial pronouncement has paved the wave of ADR mechanism and at the same time interpreted the legislative provisions in the manner that are conducive to the object of the legislations relating to the ADR mechanism.

Web Resources:

i. http://adrr.com/

ii. http://www.uncitral.org/

iii. http://lexarbitri.blogspot.in/

iv. http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2300&context=facpu b

v. http://www.lawctopus.com/academike/arbitration-adr-in-india/

vi.http://www.academia.edu/4371674/ORIGIN_OF_ALTERNATIVE_DISPUTE_RESOLUTION_SYSTEM_IN_INDIA

vii. http://www.mha.nic.in/hindi/sites/upload_files/mhahindi/files/pdf/criminal_justice_syste m.pdf

viii.http://www.mondaq.com/india/x/273094/trials+appeals+compensation/Plea+Bargaining+An+Overview

ix. http://lawcommissionofindia.nic.in/adr_conf/adr_index.htm>