This article was authored by Vishnu Mangalvedkar from NLSIU, Bangalore and Ananya Hasan Satish from School of Law, Christ.

Abstract

Displeasure reported by victims with the current functioning of the judicial system is on the rise. Continued increase in the rates of crimes and backsliding of criminals to their old ventures has been a constant threat to victims. The concept of restorative justice has declined in the recent ages. The idea of seeing crime as an act against the state rather than an act primarily against the victim has caused further re-victimisation by the state. One might argue that imprisonment will lead to a sense of satisfaction for the victim, however, incarceration alone does nothing to actively advocate victim’s rights. Further, another key area of concern bothering all of us is the rate at which justice is rendered in India. Conflicts which can be dismissed with dialogue have been taken to court, resulting in a staggering number of pending cases. The derivative social costs which arise out of both the problems to the victim and the expenses on state machinery has been thoroughly neglected. Since criminal law essentially involves three parties, the mediation model suggested provides for two types of mediation. The first model prevails between the victim and the offender to bring about the concepts of restorative justice. This model is highly suggested to acquisitive crimes and not to crimes arising out of passion. When this model of mediation fails, or is declined by a certain victim, the second model of mediation, which is settlement driven, between the state and the accused, comes to picture.

Introduction

The idea behind punishing a criminal varies from deterrence to rehabilitation to incapacitation. The underlying principle in each of these cases is to prevent the individual in question from committing more crimes in the future. However, it is imperative to understand and recognise the effect a crime has on the victim, and design models of criminal justice around this fact. Apology and remorse in the sphere of criminal justice should be taken into serious consideration, as it is the victim who is most severely affected by the crime. The criminal justice system functions like an industry, with efficient plea bargaining and maximisation of punishment in each case.

The two abovementioned aspects play a minute role, if any, in criminal procedure. Criminal procedure can broaden its scope and go beyond the narrow procedural values of accuracy, procedural fairness and efficiency.^[1] If the response from the society is punishment and retribution, as opposed to reintegration and pardon, much of the goals of restorative and correctional processes are unlikely to succeed. Successful correction, as supported by empirical data, begins with the accused acknowledging the offense in question, and expressing willingness to be held accountable for the offense committed, and to take necessary measures to correct the wrong inflicted.^[2] However, the retributive and restorative justice models seek to incorporate these, as well as other victim-centric facets, in order to provide greater satisfaction to the victim, who has suffered the most injury.

Restorative Justice

Restorative justice is a model through which all entities affected by a particular injustice caused are given an opportunity to discuss the effects of the injustice, and potential solutions to right the wrong. Empowerment, dialogue, negotiation and agreement form the foundation of a restorative justice model.^[3] Each stakeholder, assumed to be the victim, the offender, and the community, is given an opportunity to both deal with the aftermath as well as implications of the offence. The key value in this model is that more satisfaction is derived out of responding to hurt with healing. The end goal is to satisfy all participants, either through a restitution offered by the offender to the victim or by taking steps to prevent the former from causing future harm,^[4] and the outcome is not measured by comparison to like cases. The significance of the process, the notion of stakeholders and the relatively wide spectrum of outcomes available are three central elements in such models.^[5] Restorative justice aims to shift the focus of criminal justice and procedure away from the traditional theory that it is only a concern of the offender and the state, towards a more inclusive framework that involves the victim and society as major stakeholders as well.^[6] One of the methods encompassed by the wide scope of restorative justice programmes is victim-offender mediation. The adoption of the word ‘mediation’ over ‘reconciliation’, or ‘reparation’ is to lay emphasis upon the fact that the most important element is the process which facilitates interaction between offender and the victim. If the name given to the programme stated the outcome intended, the parties are not empowered to choose the outcome they desire.^[7]

Mediation is generally a structured, voluntary and stakeholder-specific negotiation process, in which the stakeholders are assisted by a neutral third-party, the mediator, in reaching an amicable solution to the dispute.^[8] In criminal justice mediation, the main role of the mediator is facilitative in nature, and not formulative or manipulative. The role of the mediator in a facilitative capacity extends to establishing a channel of communication between the parties in conflict, and ensuring uninterrupted dialogue as well as discussion.^[9] This is most appropriate, since the end goal is to be fair to both the parties.

Victim offender mediation

Victim offender mediation is different from other forms of civil mediation, since in a civil mediation, it is assumed that both parties have contributed, in part, to the dispute in question, and the aspiration is to find an acceptable settlement. In the former, it is an unstated fact that one party is in the wrong, and recognises the existence of a moral imbalance.^[10] Victim offender mediation encompasses in its scope, a wide range of commendable goals – reformation of convicts, respite of the emotional as well as material suffering of the victim, and a modification of the archaic practice of sentencing.^[11] The mediator in this case facilitates the process of achieving a fair result by first allowing the stakeholders to discuss both emotional as well as informational needs, and following that, to address the victim’s losses, which will lead to a formulation of a restitution plan acceptable to both parties, which could include repayment, working for the victim’s charity of choice, and so on.^[12] Mediation can in no way evolve into an alternative to or a soft escape from punishment. While the outcome of the same might influence judicial sentencing, it should not entirely preempt the process.^[13]

There are two basic problems that arise with this form of mediation. First, there is no defined relationship this model has with the remainder of the criminal justice system. This problem comes to the spotlight during the determination of the stage of proceeding in which to include the mediation with the victim and the offender. Early mediation could negatively interfere with the due process of law as it is, and mediation in between could be seen as a form of exploitation of the victim in order to mitigate the sentence of the offender. Second, the broad innate appeal that it has, in terms of potentially providing solutions to multiple problems of the existing criminal justice system, cannot be translated into practical application, since no single instrument can claim to fulfil such diverse aims.^[14] There is sufficient empirical evidence to state that the more closely personal the offence is, either with respect to emotional impact or pre-existing relationships, as in the case of offences against the person, victims are less likely to participate in mediation, or reach consensus, in case of participation.^[15] Further, if victim offender mediation replaced the traditional criminal justice system in case of severe crimes like rape or murder, the needs of the community at large, whose rights are also violated , might be left unsatisfied especially if the victims are too apt to forgive the offenders post mediation.^[16] A potential solution the second dilemma is offered in the next section of this essay.

Advocates of restorative justice model argue that the present-day criminal justice system tends to create more suffering and crime that it deters, and is, in any case, too expensive to sustain. Restorative dialogue is at least as important as reaching an agreement, because this conversation enables the victim to express emotions, find answers and explain the repercussions of the crime on her life. Further, the offender can also express remorse, answer questions, and explain the motivation behind, and the ramifications of the commission of the crime.^[17] Therefore, this group is working towards incorporating some alternative to victim offender mediation in the case of most criminal matters. However, the use of this form of mediation either in addition to, or as a substitute for sentencing is still disputed. This is largely because laying emphasis on the aspect of “conflict resolution” in case of murder, rape or other heinous crimes seems grossly insufficient, especially when the crime is perpetrated by a stranger. It is argued that the victim would not be willing to “reconcile” her relationship with the accused, or to “resolve” a conflict that she did not voluntarily participate in. However, it is important to note that a relationship is inevitably established between the victim and the offender by virtue of mere commission of the crime, irrespective of how involuntary the victim’s participation in the events was, and mediation can facilitate the resolution of this relationship.^[18]

Plea Bargaining: Origin and Procedure

The second model of mediation proposed can be found through Plea Bargaining. Plea bargaining is more similar to settlement driven mediation over a dialogue driven model of mediation. At times, it can be very tough for the victim or their family to undergo dialogue driven mediations in the case of crimes of passion. The reluctance of the victims shall ensure that the first model proposed, i.e., victim offender mediation through restorative justice, does not succeed. During these times, the process of mediation should move from the victim to the state. State should also be given due recognition as the subordinate victim. Thus, the second mechanism suggested shall occur between the accused and the state in terms of plea bargaining which will attempt at reducing the social costs of moving to trial.

The concept of plea bargaining has evolved since the beginning of civilisation. The concept of crime in India was reduced to an act which is sinful. The Dharmashastras and Smritis introduced the concept of plea bargaining as a means to erase off the sin thus bringing self-purification.^[19] Confession was given paramount importance and that act of self-awareness was decisive for self-purification. The concepts of plea bargaining also came to light under Manu’s Dictum.^[20] Manu in his work not only stresses the importance of providing speedy justice but also emphasises on the concept of Dhanda which means punishment. He also believed that Dhanda may be reduced when one becomes aware of his mistakes. ^[21]

Chanakya, the advisor to king Chandragupta Maurya and the author of the world renowned Arthashastra also had a few comments on criminal jurisprudence. Chanakya on the other hand can be called the forerunner of victim rights and plea-bargaining. He emphasised on the important concept of human agency in plea bargaining, wherein even the offender is given the due respect he deserves^[22]. The apex court in the case of State of Madhya Pradesh v. Bala^[23] when deciding the matter related to sentencing observed that:

“even in time of Koutilya the need for awarding just punishment was recognised. According to Koutilya whoever imposes severe punishments becomes repulsive to people, while he who awards mild punishments becomes contemptible. When deserved punishment is given it endows the subjects with spiritual good, material wellbeing and pleasers of the senses. This philosophy is woven into our Statute and our jurisprudence and it is the duty of those who administer the law to bear this in mind”

Plea bargaining cannot be defined as one thing in the present day. Different jurisdictions have different meanings for plea bargaining. In simple terms, plea bargaining may be equated to active negotiation whereby the offender agrees to his actions to ensure a lesser sentence^[24]. The most comprehensive definition to plea bargaining could be found in the Black’s Law Dictionary^[25] which defines it as follows:

“The process whereby the accused and the prosecutor in criminal case work out a mutually satisfactory disposition of the case Subject to the Court approval. It usually involves the accused pleading guilty to a lesser offence or to only one or some of the courts of a multi-count indictment in return for a lighter than that possible for the graver charge.”

In India, criminal procedural law has seen certain problems such as excessive delay, unaffordable costs, hostile witnesses, etc. This resonates with the ideas found in ancient Hindu jurisprudence which observes that a delay in providing judgement is undistinguishable to refutation of justice.^[26] Criminal Law Reforms brought about in the year 2005 were mindful about such issues and henceforth encouraged the concept of plea bargaining in India.^[27] Chapter XXIA having sections related to plea bargaining was introduced to the code through the amendment act of 2005 which came into force on 5^th July, 2006. Sec 265 A of the Cr.P.C. allows plea-bargaining only to offences that are penalized by imprisonment below seven years.

The code further makes it mandatory for the trial court to conduct in camera examinations as to whether or not the application for plea-bargaining was filed voluntarily by the offender or not. Plea-bargaining then moves to the state of negotiation wherein the prosecutors or the complainants usually strong arm the accused into submission. The court generally disregards compensation which was agreed upon by the parties during negotiations. After plea-bargaining, there are sufficient provisions to either release the accused under Section 360 of the Act or under certain provisions of The Probation of Offenders Act, 1958. When minimum imprisonment is explicitly mentioned, the offenders time may be reduced to just half the minimum penalty. Though provisions for plea bargaining are made available to the accused, India has seen very low instances of such pleas. This is the result of multiple obstacles people tend to face during the process of plea bargaining.

Mediation as a Tool for Plea Bargaining

This is the result of multiple obstacles people tend to face during the process of plea bargaining. After understanding the meaning of Plea-bargaining, it can be termed as an alternate dispute mechanism in the criminal justice system. Plea bargaining can be compared to a form of settlement driven dispute resolution mechanism. It is nothing but negotiation to reach a settlement between the prosecutor and the accused. Just like any other negotiation proceedings, plea bargaining will see the light of success only when both the parties are incentivised to settle. There are certain implicit problems with the current model of plea bargaining which disincentives plea bargaining and thus making it a less attractive option, the problems faced include:

Information Asymmetry:

Information Asymmetry, also known as information failure follows when any party to the operation has greater quantifiable knowledge when compared to the other^[28]. Negotiation to the most efficient extent can occur only when both the parties sitting to negotiate have equal information about the other parties. Often, the prosecutor tends to strong arm the accused due to more knowledge regarding material facts and issues. This will lead to the innocent accused who might be risk averse to strike a deal with the prosecutor.

Lack of Unbiased Third Party:

Though Section 265 of the Cr.P.C. mandates and makes it the courts duty to ensure there exists no coercion and the existence of mere mutual satisfaction between both the prosecutor or the complainant and the offender or the accused, yet there are no hard and fast rules laid down either by the statutes or through precedence which would ensure transparency of such negotiations^[29]. The settlement would thus be favourable to one party more than the other due to lack of institutions to govern the fairness of the settlement from an unbiased standpoint.

Back to Retribution:

The entire model of plea bargaining is very similar to the concept of retributive justice. It considers the state to be one of the victims, thus the penalty the accused has to provide to the state comes in the form of imprisonment. Plea bargaining on the other hand has turned the entire criminal into a bureaucratic operation. Blumberg compares it to the assembly line fashion.^[30] The accused are often processed like products in an assembly line fashion. Even defence lawyers tend to force or persuade the accused to plead guilty to lessen their work load.

Introduction of the concept of mediation in plea bargaining by bringing in a neutral third party who is willing to provide assistance and help the disputing parties reach a mutually agreeable solution^[31] shall reduce most of the problems currently faced by plea bargaining. The existence of an unbiased mediator will factor into account the problem of information asymmetry as it shall motivate the parties to reveal all information out of trust. Further, the appointment of a mediator will also ensure transparency in the entirety as the mediator will have nothing to gain or lose through the proceedings. The mediator can also guide the defendant through the process and thus remove the bureaucratic approach brought about by human agencies involved in the procedure.

 

There are certain other generic problems which may arise during the negotiation proceedings which will solved by appropriating mediation as a tool to bring in effective settlement. “Mediation” in settlement context is referred to as the neutral assistance provided to two or more interacting parties. The interaction between two or more parties who may either be disputants or negotiators would not go well without a neutral third party who is willing to provide assistance. The concept of mediation has lengthy historic roots and can be considered an ancient form of conflict resolution^[32].

Though mediation has time and again been criticised due to the lack of mediator’s powers to enforce agreements, the powers of mediation could be understood as facilitating plea bargaining settlements by removing certain obstacles faced during the negotiation proceedings which can be seen under:

For strategic reasons the parties to a settlement may not be agreeable to show their cards in the negotiations for settlement. This makes it very difficult to both the sides to determine the strong points of each other’s case and in the process gauge the realistic settlement prospects. This problem can be carefully eliminated through mediation as the mediator shall be allowed to meet the parties at hand separately thus keeping the information provided by each party confidential. Thus the mediators removes the impediment to transparent communication^[33].

Both the parties of the settlement will be reluctant to agree to sit for a settlement as it may symbolise weakness to the other party, thus hardening the stance of settlement terms. For example, if the accused makes the first offer for a plea bargain, it will be assumed that he is afraid of losing due to lack of a solid defence, on the other hand, if the prosecutor suggests plea bargaining, he will be looked at as being weak. This barrier shall be solved by a mediator as his proposal for settlement may be arising from the opposing party or the mediator himself. Hence, neither party will be portraying a signal of weakness.

If the opposite parties adapt the method of step wise negotiations, they obviously start off with their ‘dream model’ and in due course fall back from it after rounds of bargaining until the point of convergence of ideas. Both the parties shall be reluctant to diverge from more than a couple of steps from their ‘dream model’ which would be their ideal opening stance. This action arises out of fear of exposing their weak points. During negotiations, the parties may stick to its dream model to ensure they receive the biggest piece of the pie. On the other hand, with the presence of a mediator, the parties make their dream proposition directly to the mediator. However, the mediator is not duty bound to divulge the dream proposition of one of the parties to the other unless specifically insisted. This ensures a shorter root of the step wise method of mediation thus making the settlement more realistic^[34].

At times, the intentions of the lawyer will be at variance to that of a client. A lawyer from a big corporation may persuade the accused to settle the case rather than perusing it in trial since he would be aware of the risks involved. The lawyer due to his nature of being risk averse will always have the fear of losing the case and thus reputation at the back of his head. The accused on the other hand may have difference in opinion. The cost of agency can be reduced by the mediation process. The mediator by including the accused in mediation meetings will ensure the accused is made aware of his rights. The assembly line type of processing the accused by both the prosecution and the defendant attorneys shall be reduced with such intervention by a neutral mediator.^[35]

Conclusion

Criminal Jurisprudence and other alternate dispute mechanisms were often seen as entities far from each other. While the former was considered to be a rigid aspect of law which mainly focused on statutory provisions or penal provisions, the latter attempted to convert law into something more informal wherein the true meaning of Justice could be tapped into. The common attitude of society as a whole was to show no mercy to the offender. This as we have seen, proved to be more detrimental to the entire civilisation. The incarceration of the accused practically brought about no other benefit to the victim apart from acting as a deterrent.

Increased social costs of the state by spending on trials, the delay in providing justice, etc. has been witnessed lately. Though Indian jails lack the capacity to hold more than 2.56 lakh prisoners, more than five lakh prisoners rot incarcerated. The state governments spend approximately fifty-five rupees per prisoner every day, bringing in the accumulated annual expenses to more than three hundred and sixty-one crores^[36] has led to people losing faith in the system of Criminal Justice. Nani Palkhivala’s observation truly summarises the current state of India’s criminal jurisprudence, “Justice in common parlance is considered as blind but in India it is lame too and hobbles on crutches”.^[37]

In recent times, with change in attitude and development of alternate forms of dispute resolutions, both the abovementioned problems can be slowly but steadily eradicated. The recommendations made through the course of this essay ensures that the classical criminal law approach of retributive justice shall be converted to restorative justice by the implementation of Victim-offender mediation which shall not only reduce the burden on the courts but also ensure the victims gaining closure. The victims through this process will be the direct beneficiaries of the settlement proceedings.

Further, when the aforementioned model fails, the latter model recommended ensures that the state can make added attempts through the process of enhanced plea bargaining. Mediation has a huge role to play in the success of plea bargaining. Marrying of settlement and negotiation procedure along with mediation will be the only effective step which would ensure free and fair plea bargaining within the country. As rightfully pointed by a plethora of law commissions report, active use of plea bargaining would as a consequence eliminate the burden on the courts.

Despite certain drawbacks in the model recommended, it is essential to keep in mind the benefits gained out of the system. When implementing such a model, the right balance should be struck between economic ex ante concepts such as efficiency, opportunity costs, etc. and the legal ex post concepts such as Justice, Equity and Good conscience. Only this will lead to the betterment of India and its judiciary.

1. Stephanos Bibas & Richard A Bierschbach, Integrating Remorse and Apology into Criminal Procedure, 114 The Yale Law Journal 85–148 (2004). ↑
2. John O. Haley, Comment On Using Criminal Punishment To Serve Both Victim And Social Needs, 72 Law And Contemporary Problems 219–225 (2009). ↑
3. Andrew Ashworth, Responsibilities, Rights And Restorative Justice, 42 The British Journal of Criminology 578–595 (2002). ↑
4. Ashworth, supra note 3 at 578. ↑
5. Ashworth, supra note 3 at 578. ↑
6. Ashworth, supra note 3 at 578. ↑
7. Martin Wright, The Court As Last Resort: Victim-Sensitive, Community-Based Responses To Crime, 42 The British Journal of Criminology 654–667 (2002). ↑
8. https://www.sci.gov.in/pdf/mediation/MT%20MANUAL%20OF%20INDIA.pdf (last visited on 28 December, 2018). ↑
9. Kyle C Beardsley et al., Mediation Style and Crisis Outcomes, 50 The Journal Of Conflict Resolution 58–86 (2006). ↑
10. http://restorativejustice.org/10fulltext/vanness18.pdf (last visited on 28 December, 2018). ↑
11. Judith Rumgay, Review of Crime and Accountability: Victim/offender Mediation in Practice by T. F. Marshall and S. Merry, 31 The British Journal of Criminology 309–310 (1991). ↑
12. Mark S Umbreit, Crime Victims and Offenders in Mediation: An Emerging Area of Social Work Practice, 38 Social Work 69–73 (1993). ↑
13. Bibas and Bierschbach, supra note 1. ↑
14. Tony Marshall & Susan Merry, Crime and Accountability: Victim/offender Mediation in Practice ↑
15. Rumgay, supra note 11 at 310. ↑
16. Erin Ann O’Hara & Maria Mayo Robbins, Using Criminal Punishment To Serve Both Victim And Social Needs, 72 Law and Contemporary Problems 199–217 ↑
17. Marshall and Merry, supra note 14. ↑
18. Bibas and Biershchbach, supra note 13 at 96. ↑
19. Hrudayaballava Das, Introduction of the Concept of Plea Bargaining in Criminal Administration of Justice, Criminal Law Journal 120 (1990). ↑
20. M Y Iqbal, Concept of Plea Bargaining, 9 Nyaya Deepa 50 (2008). ↑
21. Verma Tripathi R Chander, Manu Smriti, verse 239 manu smriti 370. ↑
22. Chandrasekaran Pravin, Koutilya : Politics, Ethics and Statecraft, Harvard Kennedy School 17–29 (2006). ↑
23. AIR 2005 SC 3567. ↑
24. Malcolm Feeley, Plea Bargaining And The Structure Of The Criminal Process, 7 The Justice System Journal ↑
25. 8th edition, 1190 (2004). ↑
26. Sharma S D, Administration of Justice in Ancient India, 191 (1998). ↑
27. The Criminal Law (Amendment) Act, 2005 (Act 2 of 2006). ↑
28. Douglass C North, Institutions, 5 The Journal of Economic Perspectives 97–112 (1991), http://www.jstor.org/stable/1942704 (last visited Dec 16, 2018). ↑
29. Jenia lontcheva Turner, A Report on Scholarship and Criminal Justice Reform, SMU Dedman School of Law Legal Studies Research , https://ssrn.com/abstract=2930521 (last visited Dec 26, 2018). ↑
30. Gabriela Aceves, An analysis of plea bargaining, CSUSB ScholarWorks 9. ↑
31. James A Wall, John B Stark & Rhetta L. Standifer, Mediation:A Current Review and Theory Development, 45 The Journal of Conflict Resolution 370–372, https://www.jstor.org/stable/3176150 (last visited Nov 13, 2018). ↑
32. Id. ↑
33. Jennifer Gerarda Brown & Ian Ayres, Economic Rationales for Mediation, 80 Virginia Law Review (1994). ↑
34. Richard Posner, Mediation as an Aid to Settlement, Economic Analysis of Law 772–774. ↑
35. Id. ↑
36. http://www.prisonstudies.org/country/india (last visited Dec 28, 2018). ↑
37. K V K Santhy, Plea Bargaining in US and Indian Criminal Law Confessions for concessions, 7 NALSAR Law Review (2013). ↑