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Vikram Kumar 0
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This article was authored by Harishankar Raghunath and Shreevatsa Lakhotia from WBNUJS, Kolkata.

The gatekeepers of Indian law have substantially shielded criminal cases from the ingress of mediation. Consequently, the advantages afforded by the concept – the furtherance of restorative justice in the legal system, among others – have been largely unavailable. Since retributivism, on which the current adversarial trial system is based, does not administer complete justice, the inclusion of restorative practices is imperative. Mediation through the Victim Offender Mediation model is the most widespread expression of this form of justice. However, its use is largely limited to certain criminal disputes. Thus, the incorporation of the principles of mediation in plea-bargaining, in addition to the Victim Offender Mediation Model, would serve to further broaden the scope of mediation and justice.

  1. INTRODUCTION

The promulgation of the Arbitration and Conciliation Act, 1996 and the insertion of §89 into the Civil Procedure Code (hereinafter CPC) in 1999, marked crucial stages of evolution in the process of administering justice in India.[1] Although the concept of mediation was recognized in 1947,[2] the later changes familiarized it.[3] Along with other legal developments,[4] they worked to further the practice of mediation to a greater extent.[5] However, this was met with a prolonged inaction on the part of both judges and lawyers to promote and institutionalize it. It was only some years later that the practice of mediation started to gain traction,[6] specifically after the Supreme Court, in the second case of Salem Advocate Bar Association v. Union of India,[7] provided a framework for model rules, guidelines and the establishment of mediation centers.[8]

Today, it is evident that mediation has grown into an important tool of conflict resolution, especially for civil disputes. At the Bangalore Mediation Centre, between 2011 and 2015, 79.85% of the cases referred to mediation were matrimonial disputes and 8.86% were property cases.[9] This surge in popularity experienced by mediation in civil matters has not been replicated in its criminal equivalent, where the growth of mediation is stunted, unsteady and disparate.

While prior to 2015, some courts directed parties to mediation centers, the Supreme Court laid out in Afcons Infrastructure v. Cherian Varkey Construction[10] that criminal cases were unsuitable for mediation. Nonetheless, there are cases – particularly of family disputes where a settlement is possible that are referred to mediation, though they have criminal elements. Moreover, provisions describing compounding of offences have already been incorporated in Indian Law, raising questions regarding the applicability of mediation in the criminal context.

This essay, seeks to analyse whether there exists a legal basis for introducing mediation in India and whether its inclusion is desired. It further suggests incorporating the principles of mediation to the realm of plea bargaining may have a positive effect, thereby enhancing the Indian judicial process.

  1. CAN INDIAN COURTS REFER CRIMINAL CASES TO MEDIATION?

At its core, mediation is a process in which a third party (mediator) aids two conflicting parties, to come to a mutually acceptable solution.[11] In order to achieve this, it is imperative that the mediator is neutral, the process is voluntary, and the information remains confidential. Justice (Retd.) Jagannadha Rao, described mediation as a ‘facilitative process’, where the mediator could not make binding decisions for the parties, but only encourage them to resolve the dispute amicably.[12]

The premise of amicable dispute resolution outside the courtroom was the focus of the 129th Law Commission Report[13] and its recommendations were crystallized into §89 of the CPC. The provision lays down the power of the court to refer a dispute containing elements of an “amicable settlement” to four ADR methods – one of them being mediation.[14] Thus, mediation in civil disputes is statutorily recognized, with the Supreme Court recommending mediation as a viable course of action after the conclusion of the pleadings.[15]

The practice is, however, expressly discouraged in criminal offences with the justification that its nature is such that it is a wrong against the society, rather than a private individual. This perspective on crime is a central feature of the adversarial system in common law followed in India.[16] Such a model does not stress on concepts such as forgiveness or reconciliation, with the result that the needs of some of the stakeholders remain ignored. Thus, the system fails on two fronts – firstly, it does not recognize that some crimes, such as criminal defamation, are essentially private in nature.[17] And secondly that it excludes the victim from the process and undermines the role of apologies and pardons.[18]

The law has attempted to remedy this through §320 of the Criminal Procedure Code (‘CrPc’) that prescribes the “compounding” of certain non-serious crimes like hurting religious sentiments or causing deliberate hurt to an individual.[19] The 41st Law Commission Report recommended the compounding of any crime that “is essentially of private nature and relatively not serious.”[20] The compounding of an offence refers to the ‘forbearance from prosecution’ due to an amicable settlement between the two parties. The victim thus condones the behavior of the offender, who through certain actions exhibits his repentance.[21] The compounding of an offence refers to the Compounding cannot be equated to a non-guilty plea – it indicates that the victim is prepared to forgive the offender, perhaps after receiving a suitable solatium in lieu of initiating proceedings in court.[22]

A strict interpretation of §320 of the CrPc reveals that those offences, not explicitly stated in the section, are non-compoundable.[23] These offences (like murder and rape) are considered serious and the state takes cognizance of such an offence and files the case, with the justification that the society, as well as the private party, has been affected through the offending act. However, the courts have assumed a victim-centric posture to some degree, especially in matrimonial disputes with criminal elements.

Such an approach was first considered in B.S. Joshi. v. State of Haryana.,[24] where the wife had filed a complaint of cruelty under §498-A of the Indian Penal Code (‘IPC’). Though an amicable divorce was agreed to later and jointly pleaded in front of the High Court, it was refused. The Supreme Court upon appeal held that the inherent powers of the High Court under §482[25] of the CrPc was empowered the court to quash the FIR in light of the amicable divorce. While holding that a non-compoundable offence may not be per se compounded, the court was of the opinion that the mutual willingness of the parties to settle their differences amicably in this particular case rendered any subsequent court proceeding contrary to the objective of § 489-A of the IPC. Similarly, in Ashok Sadarangani v. Union of India[26] , it was opined that the subsistence of criminal court proceedings in light of a compromise having been arrived at between the parties is “an exercise in futility”, thus empowering the Supreme Court to quash the FIR in exercise of Article 142 of the Constitution.

The quashing of the FIR on the touchstone of mutual agreement is proof of the evolution of conciliation as a valid factor in Indian criminal jurisprudence. A similar link between the processes of mediation and the compounding of offences was drawn in Sreelal v. Murali Menon,[27] where mediation was prescribed for determining the amount of compensation for compounding the criminal offence registered.

It is evident that the concept bears close parallels to mediation – it requires the explicit consent of both parties, necessitates compromise on one or both sides and stresses upon conciliation. It differs from mediation only in respect of the absence of a neutral third party and drawing up of restitution agreements. Thus, the fundamental percepts of criminal case mediation are present in the law allowing compounding of offences, giving legal validation for the inclusion of mediation in any form in Indian criminal jurisprudence.

  1. THE RISE OF RESTORATIVE JUSTICE

The central question that arises in criminal jurisprudence is – what is the rationale behind the state imposing criminal punishment on individuals?[28] The traditional justification stems from retributivism – that the wrongdoer’s conduct was violative of the morality of the society at large and thus “deserved” a proportional punishment.[29] Since the wrongful act is committed against the society, prosecution is the state’s prerogative. This principle appeared in Britain in the 12th Century, when crime was being considered as “a breach of the King’s Peace”. Thus, for countries like India, it is a colonial inheritance. As a response to this, the concept of restorative justice arose. Restorative justice means that the harm caused by the criminal is “balanced by offering support to the victim and requiring the offender to make amends, with the help of the community if necessary”,[30] as opposed to balancing the harm by inflicting harm on the criminal. Accordingly, criminal justice must address the needs of the victim, the offender and the community.

Scholars have argued that the traditional conception of retributivism, while offering a justification for punishment, does not offer a complete theory of justice.[31] The aim is to punish the wrongdoer’s previous criminal conduct, and thus, the focus is on one individual (or group) in a particular case. After the punishment is awarded, there is no guidance on rehabilitation of the offender – an important object of any legal system. Since the wrongdoer is at the center of the trial and prosecution is handled by the state, the victim is sidelined.[32] The involvement of the injured party is largely limited to that of a witness, making conflict the property of lawyers.[33] Thus, retributive justice fails to account for the needs of both the offender and the victim.

Moreover, there is a failure to address real-world concerns like whether it would be more practical, in a given situation, for the state to cut a deal with the offender instead of pushing for a trial, or how functionaries in the criminal justice system must prioritize their work, given the ever increasing[34] docket of cases.[35] Restorative justice theory offers an answer to many of these questions, which is why countries over the world have started incorporating it in their legal system, focusing on the victim and the community, in addition to the offender.

Barring a few exceptions (the law regarding juveniles for example),[36] the retributive view of justice is the norm in the Indian legal system, forming a major barrier to the inclusion of alternative dispute resolution methods for criminal disputes. Furthermore, criminal law in the country largely excludes victims from the system. While restitution and restoration are unusual, compensation is monetarily insufficient and procedurally inconvenient.[37] Various countries, which are now retributivist, have a rich past of considering criminal matters as disputes between the victim and the offender.[38] In the past, India too contemplated conflict resolution as a participatory and voluntary process.[39] Thus, in a sense, a return to ancient thought is needed, to reconsider the system from a restorative standpoint. A shift in perception regarding criminal justice is imperative, to give importance to the victim, the offender and the community.

The avenues for practicing this form of justice are numerous and diverse. In New Zealand, Family Group Conferences are prevalent and induce the participation of the victim and their family, the wrongdoer and other members of the community affected by the crime and have played a role in reducing recidivism in the country.[40] Other practices include settlement conferences in the US,[41] and Lok Adalats in India.[42]

However, the Victim Offender Mediation (VOM) model is the foremost manner of resolving criminal conflicts through the practice of restorative justice. This model brings the victim and the offender together to talk about the offender’s crime, facilitated by a mediator.[43] The victim relates the injurious effect that the incident had on him/her and the offender, in turn, relates the reason for his conduct and tries to satisfy the victim’s queries.[44]

  1. THE VICTIM-OFFENDER MODEL OF MEDIATION

The fundamental premise of restorative justice, as discussed earlier, is understanding the needs of the victim and factoring in the element of restorative compensation into the criminal justice system.

and broadly seeks to empower the victim and enable the offender to realize the consequences of his actions.[45] This is part of the wider movement across criminal justice systems across the world (including India, to a limited extent) to focus on the victim’s interests as opposed to the state’s.[46] In VOM, a mediator facilitates discourse between the offender and the victim, and aids the formulation of a ‘restorative agreement’ that attempts to resolve the conflict between them. This involves a deep understanding of the requirements of both the victim and the offender, and “humanizes” the criminal process through the involvement of both the concerned parties.

Various countries like the UK, the US, Singapore and Australia have set up successful VOM programmes.[47] Another such country is Germany, where there exists a statutory mechanism for an informal discussion between the counsels for the prosecution and defendant for a confession in exchange for a milder sentence.[48] This process is generally applied whenever it is determined that the ends of justice would be well met through the involvement of the offender and the victim in a private capacity; for example, the area of juvenile justice.[49]

There have also been advocates of the implementation of VOM for hate crimes.[50] Once both parties have expressed their intention to meet each other, the mediator arranges a dialogue with the parties separately before sitting in on a joint session, where the victims describe the physical and mental impact which the offence had on them. In turn, the offender attempts to explain his version of events, and offers answers to the questions posed by the victims. Since it is possible that the society has been impacted to a certain degree by the offence in question, the mediation also aims to stress the societal consequences of the offender’s actions. The advantages afforded by such a system are numerous – the active role played with the victim in describing the impact of the crime offers great satisfaction to the victim in the form of emotional catharsis.

Thus, it does not merely focus on reforming the offender, but also on the empowerment of the victim. The offender’s willingness to tender an apology for his actions itself serves as a form of reparation for the victim.[51] The interactions between the offender and the victim during mediation serve to restore the victim’s dignity and self-respect and helps avoid further re-victimization by the realization that the offender was motivated through factors that might have been out of his/her control, such as a disturbed childhood or struggling dependents. The underlying premise of VOM is the hope that the offender(s) and the victim(s) shall gain a common understanding of each other and that the offender will be able to integrate back into society without the stigma of being a criminal.

While VOM is a valid vehicle for restorative justice, many scholars have raised concerns about its usage in criminal offences. When the offender digs in his heels and refuses to tender an apology or take cognizance of his actions, it can be a harrowing experience for the victim.[52] In a scenario where the victim has faced considerable personal and emotional loss, confronting the offender and reliving the events of the offence may cause him/her considerable mental distress. A crime which is premised on the existence of a power dynamic, such as an abusive marriage, cannot be solved through dialogue which would only serve to emphasize the abusive power dynamic. There is also the possibility that the mediation process is merely being used as a farce by the offender, especially in crimes like stalking. The apology thus tendered might not stem from a bona fide intention of repentance, and may merely be tactical to achieve a certain purpose.[53] The process may also prove harmful to the offender; if a heartfelt apology on the latter’s part is rejected by the victim, it may lead to the offender being at the receiving end of a new harmful event.

VOM also may cause undue interference in the statutorily mandated procedure designed for criminal offences. Since the settlement (or lack thereof) reached in a VOM session has to be referred to a court for approval, the court can take cognizance of the fact that the offender refused mediation, leading to a bias against the offender. This might compel the offender to accept an offer of mediation against his/her wishes, jeopardizing the voluntary nature of mediation.

  1. APPLICABILITY OF MEDIATION IN THE CRIMINAL CONTEXT

While mediation in criminal cases is regarded as an unsuitable recourse and its real-world application might reveal certain drawbacks, it would be imprudent to deny its usability in all criminal disputes. There are records of the mediation’s success in cases of juvenile delinquency and less serious crimes.[54] Judges have referred cases of cheque bounce and matrimonial disputes involving criminal charges to mediation even in India.

The matter appropriateness of mediation in criminal matters hinges on two questions. Firstly, whether mediation can deliver justice in the criminal context (as justice is the fundamental aim of dispute resolution[55]). Secondly, does there exist credible evidence showing that mediation in criminal disputes works better than, or at least no worse than, traditional adjudication.

 

Examining the first question, scholars split the manner of administering justice into two – justice based purely on the law, and justice based on its perceived suitability by the disputants’ and their understanding of the issue.[56] The former is called formal justice, while the latter is referred to as creative justice. Formal justice requires that the case be decided on its merits. It protects the interests of the society at large by, among other things, maintaining consistency in legal rules and articulating common values. However, it has been pointed out that the public, generally, is more concerned with getting reparations for injustices and alleviation of their injuries.[57]

According to Sherrif Elnegahya – a court orders remedies within the confines of the law and has no room for extra judicial remedies like apologies.[58] However, legal systems can overcome these limitations by exercising creative justice, which requires the disputants to arrive at a solution to the conflict through discussion, according to their own values. And such a solution is considered as valid. Mediation is the foremost expression of this form of justice. A person entering a conflict resolution arena normally expect to be treated fairly. Thus, apart from transparency as regards the process, it is important that the parties are heard, acknowledged and not treated poorly. Though much of this depends on the mediator’s training, the nature of mediation is such that these concerns have to be addressed necessarily, since that is the only way of arriving at a mutually agreeable solution. Moreover, mediation promotes the elements of forgiveness and restitution. Thus, if practiced correctly, the practice allays due process concerns and promotes restorative justice.

Studies into the efficacy of VOM programs show that victims registered a higher satisfaction level with the mediation process as opposed to normal court procedure, in addition to losing their apprehensions of being re-victimised in a protracted court process.[59] Additionally, offenders stood at a lower chance of recidivating. It has been posited that mediation can, at least, achieve the same result as traditional adjudication.[60] Even in the case of violent crimes, VOM offers a sense of healing and closure to the victims through dialogue, in addition to a heightened sense of security.[61]

  1. PLEA BARGAINING THROUGH THE LENS OF MEDIATION

Practitioners have applied mediation to different areas in criminal law.[62] While in India it has been used sparingly in mainly matrimonial disputes, foreign jurisdictions show wider application. Its expansion into other fields like hate crimes and rape have also been proposed. In Romania, it has even been applied for resolving heinous offences.[63] One area where the principles of mediation could be implemented to facilitate justice, particularly in India, is that of plea bargaining.

The inclusion of plea bargaining in the Criminal Procedure Code speaks to the legislative intent to include the principles of restorative justice in criminal proceedings through the exchange of official concessions for a defendant’s act of self-confession.”[64] The defendant enters a guilty plea in court in exchange for a lighter sentence, or less unfavorable charges being levied, the non-inclusion of some facts in proceedings.

Plea bargaining as a concept was born out of necessity; the statistical probability of most criminal cases resulting in an acquittal due to the very high standard of proof required and the rapidly burgeoning strain on the courts due to the sheer number of cases filed, coupled with the chance afforded to the guilty to effectively reform.[65] The guilty plea gained popularity in the United States in the latter half of the twentieth century,[66] and was imported to India through its inclusion under chapter XXIA of the CrPC.[67]

The 142nd Law Commission Report, recommended the inclusion of the provision and opined that if properly administered, it could be greatly beneficial to criminal law in India.[68] The Malimath Committee Report, taking cognizance of the burden on the courts to sift through numerous trials, referred to its successful implementation in the United States to back its inclusion in Indian statute. The 2003 Criminal Law Amendment Bill thus gave statutory recognition to plea bargaining. While exempting socio-economic crimes against women and young children, § 265 B of the CrPc mandates that an offender must be aware of such rights, and voluntarily accede to use these rights to his benefit.

The Supreme Court in Kasambhi Abdul v. State of Gujarat (‘Kasambhi’) (1980) bemoaned the application of plea bargaining in an offence like adulteration that affects the society as a whole. It classed the guilty plea submitted by the defendant as a ‘subversion of justice’, and ordered the Magistrate to ignore the plea and proceed with the court proceedings.[69] The Supreme Court affirmed its stand in Madanlal Ram Chandra Daga v. State of Maharashtra, holding that a court may never entertain the prospect of a criminal being handed a lighter sentence in pursuance of a monetary benefit to the complainant.[70]

It is evident from the firm stance of the Supreme Court that restorative justice through the vehicle of plea bargaining did not attain judicial approval from the beginning. The courts did not derive much prospective utility in moving away from the ‘me versus you’ approach of the current adversarial legal system to a victim – oriented settlement method.

Almost three decades later after the Kasambhi case, a distinct shift in the stance of the courts was noted in Rajinder Kumar Sharma v. The State, where the Delhi HC considered the quashing of an FIR of forgery under the IPC. While it held that a person of such a ‘criminal bent of mind’ may not escape punishment, plea bargaining was held as viable alternative for the offender to express his sorrow and seek an avenue to better himself.[71] The Gujarat High Court decision in State Of Gujarat v. Natwar Thakor comes on the heels of the above judgment, where the former takes cognizance of the existing legal stance against plea bargaining, but advocates for a reconsideration of the concept in light of the backlog of criminal cases in courts across the country. Plea bargaining was also contextualized with reference to restorative justice, with the bench remarking that the possibility of the offender reforming should not be neglected.[72] Recent judgments of the courts thus highlight a growing recognition within the judicial fraternity as to the benefits associated with restorative justice.

While the courts have looked at plea bargaining from their perspective, the defendant’s view raises questions regarding due process. The guilty party may be persuaded or pressurized to take a deal, that may not be in his/her interest. The legislative provision under §265-B(4), may not be sufficient to relieve such a plea. It is possible, that an innocent defendant pleads guilty, given the protracted and harrowing trial he/she would face otherwise. It is possible that introducing the basic principles of mediation to plea bargaining will enhance its practice and further the growth of restorative justice in the country.

At first instance, however, the two concepts appear ill-matched. They have different goals – for one the primary aim is to reduce caseload,[73] while the other seeks to facilitate discussion.[74] Furthermore, the inclusion of the victim in the plea-bargaining process, as is done in the case of traditional VOM, might prove antithetical to the process. It would dilute presumption of innocence if the victim is convinced of the accused’s guilt and divulges information to such effect during the mediation, before the trial. In circumstances where the victim is unsure of the offender’s guilt or the degree of culpability (in case the crime was committed by a group), the offender could potentially take advantage of the situation and effect an impasse through non-cooperation or suppression of elemental facts. Even if the victim is excluded from the process, the mediator will encounter certain problems. In plea bargains, arriving at the zone of possible agreement is difficult as forecasting the ultimate decision of the trial is risky. Without the involvement of the victim, the prosecutor’s own interests could override the obligation he might otherwise feel towards the victim. Thus, he might not be inclined to add to an already heavy caseload.[75] Moreover, each offender in plea bargaining has to be treated separately as the facts and circumstances of each case differ, as does the personality of the offender.[76]

As previously discussed, however, the chief function of a mediator, is to facilitate dialogue. From a restorative standpoint, it is also an important requisite of the criminal justice system. Plea bargaining, though an offshoot of restorative justice, not give as much importance to communication. The focus is largely on “cutting a deal” with an offender believed to be guilty, for a lesser sentence. One reason for the lack of communication is that it is not in either parties’ interest to divulge information that might jeopardize their perceived advantage. The offender would not want to reveal that he/she is indeed guilty and the public prosecutor would not reveal the true extent of evidence against the accused, especially if it fell short of the burden of proof.

Thus, introducing a mediation framework to the existing law on plea bargaining will be a step towards resolving this informational asymmetry. Since the mediator would be a neutral third party, he/she would be able to explain the prosecution’s case, and the defendant’s options and probable consequences. This process would require the mediator and the prosecutor to discuss the case, possibly revealing gaps or inconsistencies in prosecution arguments. Thus, the process could likely make the offender more amenable to confiding in him/her. This would also lessen the pressure felt by the offender in a tense plea bargain scenario. Since now mediator has been endowed with the knowledge of the true case (more or less) of both parties, the zone of agreement is easier to reach. An active mediator can effectively steer the dialogue towards such an agreement.

 

If a mediator is present during the process, the state prosecutor would not be the only one directing the bargaining. That role would be split between the two, where the prosecutor would introduce the charges and the deals and the mediator would govern the flow of the plea bargaining. Unfair deals would be difficult to impose. Moreover, if the offender proposes such a deal to the mediator in a private caucus, then the same may be rerouted to the public prosecutor, giving the offender a greater stake in the process.

  1. CONCLUSION

While the practice of Mediation in has taken root, its growth has been gradual. This is, in part, because its application has been limited to civil cases with apparent elements of settlement. Criminal cases have been judicially excluded from this subset. However, the provision of compounding of offences, which has principles similar to those of mediation, indicates the legislative intent to recognize and include stakeholders which are otherwise absent in adjudication. The argument for doing so gains ground, when it is discovered that traditional adjudication subscribes to retributivism, which both in theory and practice, fails to deliver complete justice.

While the most prominent and, arguably, the most effective model for mediation in criminal matters – the Victim Offender Model – can potentially address these issues creatively by helping the participants craft their own solutions and thus their own justice, it is not without disadvantages. This includes the victim potentially having to live through the crime when facing the offender, or the likelihood of the offender subverting justice through an empty apology. Thus, the use of VOM remains largely restricted to certain types of offences. This is not to say that VOM should be disbanded completely; indeed, in some areas, it has proven to be successful. However, a better approach might be to improve an already existing mechanism in criminal law – that of plea bargaining – an idea that has had an unsure standing India. However, a direct application of mediation in this respect, could jeopardize the mechanism, instead of refining it. Thus, the concept of mediation needs to be adapted to plea bargaining. Put another way, the core principles of mediation – presence of a neutral third party, voluntary participation, confidentiality and facilitation of dialogue – need to be integrated. This would not only fix some of the defects of the mechanism, but also widen the scope and application of mediation in the criminal justice system of India.

  1. Anil Xavier, Mediation: Its Origin and Growth in India, 27 Hamline Journal of Law and Public Policy mediation 1-3 (2007) (hereinafter ‘Xavier’). ↑
  2. Industrial Disputes Act, No. 14 of 1947, India Code (1993), vol. 13. ↑
  3. Xavier, supra note 1. ↑
  4. Justice S.U. Khan, Judicial Settlement under Section 89 C.P.C : A neglected Aspect, http://ijtr.nic.in/Article_chairman%20S.89.pdf (last visited Dec. 28, 2018). ↑
  5. Supreme Court, Mediation Training Manual of India, https://www.sci.gov.in/pdf/mediation/MT MANUAL OF INDIA.pdf (last visited Dec 28, 2018) (hereinafter ‘Mediation Training Manual’). ↑
  6. Sriram Panchu, The Road Less Travelled – An Increasingly Attractive Path, 19 Student Bar Review, 30-47 (2007). ↑
  7. Salem Advocate Bar Association v. Union of India (2005) 6 SCC 344, 345. ↑
  8. Alok Prasanna Kumar, Ameen Jauhar & Kritika Vohra, Strengthening Mediation in India https://static1.squarespace.com/static/551ea026e4b0adba21a8f9df/t/596c7b6fbe6594cc7be172e5/1500281733787/26122016_Strengthening Mediation in India_Final Report.pdf (last visited Dec 28, 2018). (hereinafter ‘Vidhi’). ↑
  9. Id. ↑
  10. Afcons Infra. Ltd. & Anr. v. Cherian Varkey Construction, (2010) 8 SCC 24, 25. ↑
  11. SRIRAM PANCHU, Mediation practice and law: the path to successful dispute resolution (2015). ↑
  12. Justice Jagannadha Rao, Concepts of Conciliation and Mediation and their Differences, http://lawcommissionofindia.nic.in/adr_conf/concepts%20med%20rao%201.pdf (last visited Dec. 28, 2018). ↑
  13. Id. ↑
  14. Code of Civil Procedure, No. 5 of 1908. ↑
  15. Afcons Infra. Ltd. & Anr. v. Cherian Varkey Construction, (2010) 8 SCC 24, 25. ↑
  16. Mehak Bajpai, Advancing of Restorative Justice in Criminal Law in India and Germany, 1 Journal of Victimology and Victim Justice 103–112 (2018) (hereinafter ‘Mehak Bajpai’). ↑
  17. Ministry of Law, The Code of Criminal Procedure, http://lawcommissionofindia.nic.in/1-50/Report41.pdf (last visited Dec. 28, 2018) (hereinafter ‘41st Report’). ↑
  18. Stephanos Bibas and Richard A. Bierschbach, Integrating Remorse and Apology into Criminal Procedure, 114 Yale Law Journal, 110-111 (2004). ↑
  19. Code of Criminal Procedure, No.2 of 1974. ↑
  20. 41st Report, supra note 17. ↑
  21. Ministry of Law, Compounding of (IPC) Offences, http://lawcommissionofindia.nic.in/reports/report237.pdf (last visited Dec. 28, 2018). ↑
  22. State of Maharashtra v. Bherulal Dagadulal Jain, (1968) 70 BomLR 694, 695. ↑
  23. B.S. Joshi & Ors. v. State of Haryana & Anr. , (2003) 4 SCC 675, 676. ↑
  24. B.S. Joshi & Ors. v. State of Haryana & Anr. , (2003) 4 SCC 675, 676. ↑
  25. Code of Criminal Procedure, No.2 of 1974. ↑
  26. Ashok Sadarangani and Anr. vs. Union of India & Ors, (2013) 1 SCC (Civ) 298, 322. ↑
  27. Sreelal v. Murali Menon, (2014) 3 KLT 536, 539. ↑
  28. Anthony Duff, The Philosophical Foundations of Criminal Law (2011). ↑
  29. Edward Zalta, (2016), https://plato.stanford.edu/archives/win2016/entries/justice-retributive/ (last visited Dec 28, 2018). ↑
  30. Heinz; Otto. Messmer, Restorative Justice on Trial (2 ed. 1992) (hereinafter ‘Heinz’). ↑
  31. Mehak Bajpai, supra note 16. ↑
  32. Justice Chandrachud, Mediation: Realizing the Potentials, http://lawcommissionofindia.nic.in/adr_conf/chandrachud3.pdf (last visited Dec. 28, 2018). ↑
  33. Nils Christie, Conflict as Property, 17 The British Journal of Criminology1–15 (1977). ↑
  34. Ministry of Law, Expeditious Trial of Criminal cases http://lawcommissionofindia.nic.in/reports/report239.pdf (Last visited Dec. 28, 2018). ↑
  35. Retributive justice in the real world ↑
  36. Mehak Bajpai, supra note 16. ↑
  37. Mehak Bajpai, supra note 16; G.S. Bajpai, Victims in the criminal justice system (1st ed. 1997) ↑
  38. Yubaraj Sangroula, The Scope of Informal Justice Mechanisms in Criminal Justice System, 9 Kathmandu Sch. L. Rev. (2013). ↑
  39. Mediation Training Manual, supra note 5. ↑
  40. Gauri Pillai & Shrikrishna Upadhyay, Juvenile Maturity and Heinous Crimes: A Re-look at at Juvenile Justice in India, 10 NUJS Law Review 75–80 (2017) (hereinafter ‘Pillai’). ↑
  41. Robert L. Gotsfield & Mitch Michkowski, Settlement Conferences Help Resolve Criminal Cases, 29 Justice System Journal 241-243 (2007). ↑
  42. Mediation training manual, supra note 5. ↑
  43. Heinz, supra note 30. ↑
  44. Marty Price, Personalizing Crime, Dispute Resolution Magazine , http://www.vorp.com/articles/justice.html (last visited Dec 28, 2018). ↑
  45. Mehak Bajpai, supra note 16. ↑
  46. Alyssa H. Shenk, Victim-Offender Mediation: The Road to Repairing Hate Crime Injustice, 17 Ohio St. J. Disp. Resol. 185-186 (2001) (hereinafter ‘Alyssa Shenk’). ↑
  47. Vidhi, supra note 8. ↑
  48. Mehak Bajpai, supra note 16. ↑
  49. Pillai, supra note 40. ↑
  50. Alyssa Shenk, supra note 46 ↑
  51. Pillai, supra note 40. ↑
  52. Mehak Bajpai, supra note 16. ↑
  53. Alice Delvigne, Boundaries in Victim-Offender Mediation, International Conference on Restorative Justice, http://www.iirp.edu/pdf/man05/man05_delvigne1.pdf (last visited Dec 28, 2018). ↑
  54. Ilyssa Wellikoff, Victim-Offender Mediation and Violent Crimes: On the Way to Justice, 5 Journal of Conflict Resolution, https://cardozojcr.com/issues/volume-5-1/note-1/ (last visited Dec. 28, 2018). ↑
  55. Sherif Elnegahy, Can Mediation Deliver Justice?, 18 Cardozo Journal of Conflict Resolution 759–803 (2017). (hereinafter ‘Sheriff’). ↑
  56. Sherif, supra note 56. ↑
  57. THANE ROSENBAUM, The Myth of moral justice: Why our Legal system Fails to do what’s Right (2004). ↑
  58. Sherif, supra note 56. ↑
  59. Alyssa Shenk, supra note 46. ↑
  60. Heather Strang & Lawrence W. Sherman, Repairing the Harm: Victims and Restorative Justice, 2003 Utah
    L. Rev. 15, 38 (2004). ↑
  61. Marty Price, Crime and Punishment: Can Mediation produce Restorative Justice for Offenders and Victims?, http://www.vorp.com/articles/crime.html (last visited Dec. 27, 2018). ↑
  62. Hoyle, C. & Walters, M.A., Exploring the everyday world of hate victimization through community mediation, 18 International Review of Victimology, 7-24 (2011). ↑
  63. Constantin Adi Gavrila & Sanda Elena Lungu, Mediation (Romania), Getting the deal through, https://gettingthedealthrough.com/jurisdiction/73/romania/ (last visited Dec. 28, 2018 11 AM). ↑
  64. Albert Alschuler, Plea bargaining and its History, 79 Columbia Law Review 2-4 (1979) (hereinafter ‘Alschuler’). ↑
  65. Madhava Menon, Towards Restorative Justice, The Hindu, https://www.thehindu.com/opinion/lead/towards-restorative-criminal-justice/article8433634.ece (Last visited Dec. 28, 2018). ↑
  66. Alschuler, supra note 68. ↑
  67. Code of Criminal Procedure, No.2 of 1974. ↑
  68. Ministry of Law, Concessional Treatment for Offenders, http://lawcommissionofindia.nic.in/101-169/Report142.pdf (last visited on Dec. 28, 2018) (hereinafter ‘142’). ↑
  69. Abdulrehmanbhai v. State of Gujarat & Anr. , (1980) 3 SCC 120, 121. ↑
  70. Ram Chandra Daga v. State of Maharashtra & Anr., (1968) 3 SCR 34, 35. ↑
  71. Rajinder Kumar Sharma v. The State, (2007) 1 ILR Del 444, 465. ↑
  72. State of Gujarat v. Natwar Thakor, (2005) 1 GLR 709, 710. ↑
  73. 142, supra note 68. ↑
  74. Rathna N. Koman, Balacing the Force in Criminal Mediation, 7 Beijing Law Review, 171-180 (2016). ↑
  75. F. Andrew Hessick III & Reshma Saujani, Plea Bargaining and Convicting the Innocent: The Role of the Prosecutor, the Defense Counsel, and the Judge, 16 BYU J. Pub. L. 189 (2002); Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463, 2470-73 (2004). ↑
  76. Albert W. Alschuler, The Prosecutor’s Role in Plea Bargaining, 36 U. Chi. L. Rev. 50, 53, n. 16 (1968) ↑

 

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Author: Vikram Kumar

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