Mediation In Criminal Disputes In India

This article was authored by Aviral Srivastava, Sameeksha Tripathi and Yash Kedia from ICFAI, Dehradun.

INTRODUCTION:-

Unlike the writs and petition filed in the court, alternative dispute resolution (ADR) is the kind of out court settlement which is qualitatively distinct from the proper judicial trials. The number of cases and the judges holding the case are the number which really seems to be very irrational. Recently, Many steps has been taken to find out the solution related to the speedy justice to the the public and the aims to reduce the burden of the court. Many people in sake of getting justice from the justice system of the country wander here and there. Recently, as per the news article, 60000 lawyers and 65000 paralegal volunteers are working at taluka district level to provide free legal aid and speedy justice for needy. Legal Service Authorities Act, 1987 stated that institution under Legal State Authority aims to ensure speedy justice to reduce the burden on the courts. The preference to ADR is because of less expenditure, less wastage of time, and the confidentiality that is being maintained in this process of ADRs. Some ADRs gains applicability and are given legal sanctity from the court of law but some are not. If we talk about Indian Contract Act,1872 , to check the sanctity of out court settlement/ADRs there we’ll be having the applicability, Section 28, i.e. agreements in restraint of legal proceedings void, Exception 1, i.e. saving of contract to refer to arbitration disputes that may arises. Here we have seen that the applicability of ADRs according to the law.

Constitutional Provisions For ADRs:-

• Article 39-A of the Constitution of India provides that the State shall secure that the operation of the legal system promotes justice, on the basis of equal opportunity and shall in particular, provide free legal aid, by suitable legislations or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
• Article 14 also makes it obligatory for the State to ensure equality before law and a legal system which promotes justice on the basis of equal opportunity to all.

Thus, in totality the main of Indian Justice System is to mobilise the justice as like door to door service, it must be approached by each and every citizen of the country.

Now, furthur we’ll be classifying the types of ADRs used in Indian Justice System.

1. Arbitration
2. Negotiation
3. Conciliation
4. Mediation

• ARBITRATION:- As discussed in previous paragraph, arbitration got the legal sanctity by the court to act as the out court settlement which is being recognised by the court. Arbitration includes resolving disputes by the the third party and both the parties are bind to follow the same.
• NEGOTIATION:-In the process of negotiation, the attorneys of each party work together to drag the dispute on the path of settlement.
• CONCILIATION:-This method is nearly same as the process of mediation. Here the conciliator settle the disputes of the party.
• MEDIATION:-The process of mediation includes resolving of disputes by the third party by working on the that particular dispute for resolving them.

WHAT IS MEDIATION?

Mediation is a sort of settlement effort which utilizes the service of an impartial or the third party, commonly known as the mediator in that process, to reach at the final report of final result of the dispute that has taken place in between the parties. Mediation, in most of the cases encourages the parties for the settlement and by the consent of the parties with the help of the mediator.

HISTORICAL BACKGROUND AND ROLE OF LOK ADALAT:-

The process of mediation or other ADR processes is not the all of sudden contribution towards the jurisprudence of the country, rather it is having some historical background. This process of ADR has obviously emerged specially from rural India where the people had been observed approaching the Lok Adalats or commonly known as the Nyaya Panchayats. It is also known as the People’s Court. The main function of Lok Adalat is to compromise between the parties. Generally, Lok Adalat is presided by the the retired judge or social activist of the members of the legal profession. The order passed by the panchayat on each matter is binding upon the disputing parties as they shoud have to abide by the order of the panchayat. In case, if the matter is not resolved in the panchayat or lokadalat then the matter goes to court. Hence we can say that the lok adalat plays the vital role in resolving the disputes of the parties and enhancing the role of the process of ADRs with less expenditure of time as well money.

We know, alike arbitration, mediation has not got the legal sanctity. The law recognise mediation as it consider the arbitration for resolving the disputes between the parties. But then also, with the passage of time the people stated approaching the mediation. The various provision, nowadays started provided by the by government itself. Several Mediation Centre has been setup by the government to provide easy and reliable approach towards the justice through ADR. Here, the panel of authors are going to provide the rule books and the written provisions of THE UTTAR PREDESH CIVIL PROCEDURE MEDIATION RULES, 2009. (This rulebook has been taken from from certain source).

XIX. THE UTTAR PRADESH CIVIL PROCEDURE MEDIATION RULES, 2009 Notification No. 1253VII-Nyaya-2-2009-31 G-08, Dated 13th August, 2009.

 

In exercise of the rule making power conferred under Part X of the Code of Civil Procedure, 1908 and Clause (d) of sub-section (2) of Sec. 89 of the said Code, and all other powers enabling it in this behalf, the High Court of Judicature at Allahabad makes the following Rules:

1. Short title and commencement:-

(1) These rules may be called the Uttar Pradesh Civil Procedure Mediation Rules. 2009.

(2) They shall come into force from the date of their publication in the Official Gazette.

2. Extent: –

These Rules shall apply to all Court annexed mediation with regard to any suit or other proceeding filed/pending in any Court subordinate to the High Court of Judicature at Allahabad. The mediation in respect of any suit or other proceeding may be referred to the Mediation and Conciliation Centre set up in the District. Upon such a reference being made to the Mediation and Conciliation Centre, these rules will apply.

3. Appointment of mediator from the panel under Rule 4 by agreement of the parties:-

(a) Parties to a suit may all agree on the name of the sole mediator for mediating between them.

(b) Where, there are two sets of parties and are unable to agree on a sole mediator, each set of parties shall nominate a mediator.

(c) Where there are more than two sets of parties having diverse interests, each set shall nominate a person on its behalf and the said nominees shall select the sole mediator and failing unanimity in that behalf, the Court shall appoint a sole mediator.

4. Panel of mediators:-

(a)(i) The District and Sessions Judge in each District shall, for the purpose of appointing mediator to mediate between parties in suits or other proceedings, prepare a panel of mediators, within a period of sixty days of the commencement of these Rules, after obtaining the approval, of the High Court to the names included in the panel, and shall publish the approved list of mediators on their respective Notice Board with copy of each Bar Association in the District Courts.

(a)(ii) Copies of the said panels referred to in Clause (a)(i) shall be forwarded to all the outlay Courts subordinate to the District & Sessions Judge concerned and to the Bar Associations attached to each of the outlying Courts.

(b) The consent of the persons whose names are included in the panel shall be obtained before empanelling them on proforma as set out in Schedule 1.

(c) The panel of names shall contain detailed annexure giving details of the qualifications of the mediators and their professional or technical experience in different fields.

(d) The panel of mediator appointed under Clause (a) shall normally be for a period of three years from the date of appointment and further extension if the panel of mediators or any mediator shall be at the discretion of the District & Sessions Judge with the prior approval of the High Court.

(e) The District & Sessions Judge with prior approval of the High Court may in his discretion, from time to time, add or delete any person in the panel of mediator.

 

 

5. Qualifications of persons to be empanelled under Rule 4: –

The following persons shall be treated as qualified and eligible for being enlisted in the panel of mediators under Rule 4, namely:

(a) Retired on superannuation District and Sessions Judges and retired on superannuation Additional District & Sessions Judges of the Uttar Pradesh Higher Judicial Service.

(b) Legal practitioners with at least fifteen years standing at the Bar at the level of the Supreme Court or the High Court; or the District Courts

Experts or other professionals with at least fifteen years standing.

Persons and institutions who/which are themselves experts in the mediation and have been approved & recognized by the High Court.

6. Disqualifications of persons:-

The following persons shall be deemed to be disqualified for being empanelled as mediators:

1. any person who has been adjudged as insolvent or is declared of unsound mind. (ii) or any person against whom criminal charges involving moral turpitude are framed by a criminal court and are pending, or (iii) any person who has been convicted by a criminal court for any offence, involving moral turpitude. (iv) any person against whom disciplinary proceedings or charges relating to moral turpitude have been initiated by the appropriate disciplinary authority, which are pending or have resulted in a punishment.
2. (v) any person who is interested or connected with the subjectmatter of dispute or is related to anyone of the parties or to those who represent them, unless such objection is waived by all the parties in writing.
3. (vi) any legal practitioner who has or is appearing for any of the parties in the suit or in any other suit or proceedings.

(vii) such other categories of persons as may be notified by the High Court.

7. Venue for conducting mediation:-

The mediator shall conduct the mediation at one or other of the following places:

1. Venue of the Lok Adalat or permanent Lok Adalat.
2. Any place identified by the District Judge within the Court precincts for the purpose of conducting mediation.
3. Any place identified by the Bar Association or State Bar Council for the purpose of mediation, within the premises of the Bar Association or State Bar Council, as the case may be.
4. Any other place as may be agreed upon by the parties subject to the approval of the Court.
5. Preference:-

8.Preference

The Court shall, while nominating any person from the panel of mediators referred to in Rule 4, consider his suitability for resolving the particular class of dispute involved in the suit and shall give preference to those who have proven record of successful mediation or who have special qualification or experience in mediation.

9. Duty of mediator to disclose certain facts:-

(a) When a person is approached in connection with his proposed/possible appointment as a mediator, he shall disclose in writing any circumstances likely to give rise to a justifiable doubt as to his independence or impartiality.

 

(b) Every mediator shall, from the time of his appointment and throughout the continuance of the mediation proceedings, without delay, disclose to the parties in writing, about the existence of any of the circumstances referred to in Clause (a).

10. Cancellation of appointment:-

Upon information furnished by the mediator under Rule 9 or upon any other information received from the parties or other persons. if the Court, in which the suit or other proceeding is pending is satisfied, after conducting such inquiry as it deems fit, and after giving a hearing to the mediator, that the said information has raised a justifiable doubt as to the mediator’s independence or impartiality. it shall cancel the appointment by a reasoned order and replace him by another mediator subject to approval of the High Court.

11. Removal or deletion from panel:-

A person whose name is placed in the panel referred to in Rule 4 may be removed or his name be deleted from the said panel, by the Court which empanelled him, if:

i. He resigns or withdraws his name from the panel for any reason;

ii. He is declared insolvent or is declared of unsound mind:

iii. He is a person against whom criminal charges involving moral turpitude are framed by a Criminal Court and are pending:

iv. He is a person who has been convicted by a Criminal Court for any offence; involving moral turpitude;

v. He is a person against whom disciplinary proceedings on charges relating to moral turpitude have been initialed by appropriate disciplinary authority which are pending or have resulted in a punishment;

vi. He exhibits or displays conduct, during the continuance of the mediation proceedings, which is unbecoming of a mediator:

vii. The Court, which empanelled, upon receipt of information, if it is satisfied, that it is not possible or desirable to continue the name of that person in the panel:

Provided that before removing or deleting his name, under Clauses (vi) and (vii), the Court concerned shall hear the mediator whose name is proposed to be removed or deleted from the panel and shall pass a reasoned order which shall be given effect to after its approval by the District & Sessions Judge concerned.

12. Procedure of mediation:-

(a) The parties may agree on the procedure to be followed by the mediator in the conduct of the mediation proceedings.

(b) Where the parties do not agree on any particular procedure to be followed by the mediator: the mediator shall follow the procedure hereinafter mentioned, namely:

i. he shall fix. in consultation with the parties. a time schedule, the dates and the time of each mediation session, where all parties have to be present:

ii. he shall hold the mediation conference in accordance with the provisions of Rule 7:

iii. he may conduct joint or separate meetings with the parties;

1. each party shall, ten days before a session, provide to the mediator a brief memorandum setting forth the issues, which according to it, need to be resolved, and its position in respect to those issues and all information reasonably required for the mediator to understand the issue: such memoranda shall also be mutually exchanged between the parties:
2. each party shall furnish to the mediator, copies of pleadings or documents or such other information as may be required by him in connection with the issues to be resolved : Provided that where the mediator is of the opinion that he should look into any original document, the Court may permit him to look into the original document before such officer of the Court and on such date or time as the Court may fix.

each party shall furnish to the mediator such other information as may be required by him in connection with the issues to be resolved. (c) Where there is more than one mediator, the mediator nominated by each party shall first confer with the party that nominated him and shall thereafter interact with the other mediators, with a view to resolving the disputes.

NOTE:-THE PANALE OF AUTHORS OF THIS ESSAY HAVE NOT PROVIDED THE EXTENDED RULE BOOK AS IT WAS EXCEDEING THE WORD LIMITIS PROVIDED IN THE GUIDENCE BOOK.

 

MEDIATION & CRIMINOLOGY

Criminology, a trend in the phase of globalisation where the urbanisation is taking its track like a bullet. The mindsets are still repudiating the notion of modern mindsets. Today, the criminal cases are rapidly increasing, the Judges and the Courts in the country are not enough to deal with all these cases. Increase in population, sick mindset and many other factors are responsible for all these disputes. Women are not safe, even the newly born daughters of the country are becoming victim of the brutal crime. Each and every field consists of certain people who are indeed responsible for threatening the society who act as a curse for the nation.

Delhi, which is now being termed as the “Rape Capital” of the country saw a massive protest after the famous Nirbhaya rape case in 2012. Despite it, the rape cases against women have risen sharply in the national capital. According to the report of the National Crime Record Bureau, Delhi is reported as the state with the highest crime rate followed by Kerala and Madhya Pradesh. Increase in Statistical data analysis shows that law of the country being rigid and strict only by pronunciation are having very weak effect over the crime rates.

On the daily basis many trials are being done in the Supreme Court, High Courts, and the Lower Courts of the country and its respective Districts, but still the stats of the crime are increasing day by day instead of deteriorating. The wrongdoers are still not afraid of the strict code of conduct laid down to protect the interest of the citizens of the country.

Although, it is true that the words Contradictions, Conflicts and Disputes develop an apprehensive feeling, but looking to the other side of the coin these are the initiator that tells the importance of peace in the society. The thing that helps to maintain peace is the faith in the Judicial system. The seekers of justice come to the court with a lot of expectations with pain and anguish in their hearts as they had faced legal problems and suffered physically as well as psychologically. Their believes in the judicial system prevents them from taking law into their own hands.

The present scenario of the judicial system in India shows inordinate delays, huge pendency of the cases and expensive litigation which give rise to a lot of mental and physical suffering of the litigant and it also becomes very difficult for the poor people to have access to justice. For requisite judicial system the stakeholders have developed Alternative Dispute Resolution (ADR) to provide speedy and cost effective justice. The initial method that come under the category of ADR and that was a very innovative contribution of India to the world jurisprudence was the concept of Lok Adalat (People’s Court) and Mediation. These are practised in the Indian society t the grass root level, known as Panchayats. The concept of Mediation got its importance during the later half of the 20^th Century

Mediation is a voluntary party centred and structured negotiation process which is conducted by neutral third party which has specialized communication skills and negotiation techniques. It is a voluntary process as it is upon the parties that whether they want to settle the dispute through mediation or not, even if the court has ordered to settle the dispute through mediation.

Thus, it will not be wrong to say that Mediation is a kind of process in which parties themselves settle the disputes which is acceptable by themselves. It is a very private process which is confidential in nature. Both the parties have right to withdraw anytime from the mediation proceedings and need not to assign a reason for the withdrawal. It is a party centred process as parties have direct and active participation in the process of mediation for resolution of their dispute.

It is said by the Buddha that “Mediation brings wisdom, lack of Mediation leaves ignorance, know well what leads you forward and what holds you back and choose the path that leads to wisdom”.

The main purpose of mediation is to settle a dispute and give a solution which is acceptable to all the parties and which satisfies the needs, interests and desires of the parties legally. In this process the mediators assist the parties to bring about a resolution to their dispute not by imposing decision but by acting as a facilitator. The mediator has to be impartial and well versed with specialized communication skill and negotiation techniques in order to facilitate the dispute resolution.

On October 06, 2006 Hon’ble Allahabad High Court took initiative to inaugurate Allahabad High Court Mediation and Conciliation Centre (AHCMCC).

Mediation is considered as a very effective process as it facilitates better and effective communication between the parties and also helps to maintain, improve and restore relationship between them. Mediation can bring a win-win situation for the parties whereas in the court. There is a win-lose situation and also gives a final result. It results in speedy, efficient and cost effective resolution of the dispute and also mutually beneficial settlement is reached out in it. Through this, reliable information regarding the case can be gathered and amicable settlement of the case can be arrived at. In case of settlement of case in the court reffered mediation, refund of court fees is permitted as per the rules. Via Mediation the parties can become the partners in the solution rather than partners in the problems. The beauty of settlement through mediation is that it ensures a just solution to the satisfaction of parties and acceptable to all the parties in the dispute.

Mediation had done wonders in many countries namely United States, Canada, UK, Sweden etc. and now it is becoming a very important and effective tool by the litigants of our country, our last one decade or so. This mechanism is acting as a great exchequer in India as it is doing tremendously well. Millions of cases had been disposed of through Lok Adalat across the country. The national Lok Adalats were there in which long pending cases were disposed off amicably. Wiping out tears from the eyes of poor litigants, even if it comes after a long time, gives a sense of relief to the litigant who is in search of nothing other than justice.

Which emphasizing the significance of out of court settlement of disputes and based on his own experience. As an Advocate in South Africa, Mahatma Gandhi remarked, “both were happy with the result and both rose in public estimation. I realised that the functions of a lawyer are to unite parties. The lesson was so indelibly burnt inti me that a large part of my time during the 20 years of my practise as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby, not even money, certainly not my soul”. The judiciary under the guidance of Honourable Supreme Court of India is making all out efforts to ensure that the citizens of the country specially the deprived section of the society, are extended with the benefits of mediation with speedy and equal justice.

Taking the Indian scenario int the picture as to why mediation is required in criminal cases? There are many aspects that can be taken into consideration. State has taken basic steps so that law and justice can be administered properly. To get rid of the pendency of cases, mediation was taken as an effective tool. But if we talk about the criminal cases there is still some doubt upon the application of Mediation. In criminal justice system there are a number of ADR practises such as Victim/Offender Mediation; Family group conferencing, Victim offender panels, Victim assistance programmes, Community crime prevention program, sentencing circles, ex-offender assistance, community service, plea bargaining school programs which are not considered as traditional criminal justice.

Mediation has been adopted in various countries as a means to resolve the criminal disputes. To be specific, Mediation has been consistently applied in juvenile justice programs. Mediation of severely violent crimes is not very usual in India. The emphasis is upon healing and closure in most of the victim-offender Mediation programs. But in cases of severely violent and brutal crimes, victim-offender mediation can not replace punishment.

Mediation is not a flawless process. There have been several criticism against the applicability of ADR in criminal disputes, which provide such ADR technique which are not likely to succeed. The victim-offender Mediation considered to be highly emotionally charged. Further mediation is called as successful when there is a moderate level of conflict. Where offender may feel to be under pressure to reach an agreement, rather that genuinely seeking to repair the harm done.

Other criticism includes that ADR is an appropriate remedy, where the parties have an ongoing relationship, which provides a significant motivation to achieve reconciliation. But this is not usually the case with victim-offender mediations.

Some of the important cases resolved through mediation of criminal disputes are

1. Salem Advocate Bar VS Union of India 2^nd Aug, 2005
2. Dayavati VS Yogesh Kumar Gusain, on 17^th Oct, 2017
3. Smriti Madam Kansagra VS Perry Kansagra, 11^th Dec, 2017

CONCLUSION:-

“A rule isn’t unfair if it applies to everyone.” Today our constitution talks about the Preamble, which describes the provisions of Justice that is provided to each and every individual of the country. But, if we think, whether it’s being provided to each and every individual? The answer is NO. Mediation and other ADRs has played the vital role in providing the justice to each individual of the country. If a person is not able to give much money and incur expenditure in attain justice, the mediation and ADRs have given the way to extend the hands of justice to them also like Lok Adalats or people’s court. Mediation and other ADRs have provided a way for each individual, that if any mishappening or injustice caused with them, they can now approach for the justice and they will get the justice. If they are not satisfied with the judgements of the ADRs or lok adalats, they they can also appeal to the upper courts.

So, the conclusion is if the person cannot approach for justice even in the heinous crime of which they became the victims. Now, one can say that in this modern world no one is denied of justice, and also till some extent, after the ADRs has been generated in this process of justice dispensation system, the justice is not delayed too.