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Alternative Dispute Resolution in Criminal Cases

Humans are always been concerned about getting the justice without any conflict and destruction. other than litigation ADR (Alternative Dispute Resolution) is a technique for settling the disputes by Mediation, Negotiation, Arbitration and Conciliation.

There is no intervention of the courts. In these kind of method there is a third party which settles the disputes unbiasedly. These kinds of methods are getting more popular because access to the formal legal system is more expensive and time consuming as compare to ADR method.

ADR (Alternative Dispute Resolution) in India

Indian's courts are overflowing with unresolved cases, pending cases are increasing rapidly. It makes bulk of burden on the Indian's courts. But this issue is being solved by the method of ADR, this method may be beneficial for the Indian courts and it deal with the burden of the pending cases, it allows for a peaceful resolution of a dispute which is acceptable by the parties. article 14 and 21 which deals with the equality before the law and the right to life and personal liberty, are also the foundation of the ADR in India.

The purpose of ADR is to achieve the justice with the integrity of the society and this justice can be political, economical and social. There are at least four different forms of ADR are Negotiation, Mediation, Arbitration and Collaborative Law.

Need of ADR in Criminal cases

There is a theory " justice delay is justice denied " many of the people heard about this theory. There are total pending cases in district and subordinate courts were pegged at over 5 crore, approximately 59,867 criminal cases are pending in supreme court and out of 5 crore 4.3 crore cases, i.e. more than 85%, are pending cases in district and sub ordinary courts.

The pendency of cases before the judiciary has become a challenge for the judicial system of our country. The criminal jurisprudence is quite different from the ADR mechanism, as in the case of a criminal dispute, penal provision is sought after to place a benchmark.

In the case of ADR, some kind of settlement that may not result into court proceeding is sought after. Justice Ventachaliah said that Judiciary should adopt the new tools and Technology that will speed up process and mitigate delays. It means there is strong need of ADR in criminal cases to reduce the burden of the courts.

A review of the judicial system by the Malimath committee to reduce the burden of the cases on the Indian's courts. The committee recommended in it's report that the Indian criminal justice mechanism should introduce a plea negotiating system to reduce some load on the courts and to ensure that the justice is provided to the citizens of the India at least cost and save the time and money of the parties. The Law Commission of India in its 142nd report suggested reform, which included implementation of plea bargaining in India.

Further, to reduce the delay in disposing criminal cases, the 154th Report of the Law Commission recommended the introduction of 'plea bargaining' as an alternative method to deal with huge arrears of criminal cases, which found a support in Malimath Committee Report.

Plea Bargaining
ADR mechanism is used for the settlement of the civil matters and commercial disputes. Due to the variation of the violation of law in criminal cases and civil cases so this method is not used for the criminal justice. There is some other method used for the criminal justice, known as Plea bargaining.

Plea Bargaining is a pre-trial negotiation between the accused and the prosecution where the accused agrees to plead guilty in exchange for certain concessions by the prosecution. It is a kind of bargain where a defendant pleads guilty to a lesser charge and the prosecutors in return drop more serious charges.

This plea bargaining process is not used for serious and heinous crimes. For example a person do murder then this case is handle by the courts only. The crimes where punishment is life imprisonment and the death sentence of the person then this method is not used to seek justice.

In India this method is inculcated in the Indian Criminal Justice System by seeing the burden and the long lasting cases on the courts. The criminal law (Amendment) act 2005 which received the assent of the president of India on 11.1.2006 introduced a new chapter XXI-A with the heading plea- bargaining.

Section 265A to 265L, Chapter XXIA of the Criminal Procedure Code deals with the concept of Plea Bargaining. Plea Bargaining is an alternative method which should be introduced to deal with huge arrears of criminal cases in Indian courts.

Cases which allowed by the plea bargaining process are:

  1. Where the maximum punishment is imprisonment for 7 years;
  2. Where the offenses don't affect the socio-economic condition of the country;
  3. When the offenses are not committed against a woman or a child below 14 are excluded
Under the NDA government, a committee was constituted which was headed by the former Chief Justice of the Karnataka and Kerala High Courts, Justice V.S.Malimath to see the issue of increasing number of criminal cases. The Malimath Committee recommended for the plea bargaining system in India.

The committee said that this method would reduce the burden of the courts. The Malimath Committee pointed out the success of plea bargaining system in the USA to show the importance of Plea Bargaining in India.

The Criminal Law (Amendment) Bill, 2003 was introduced in the parliament and finally it enforceable Indian law on July 5, 2006. It sought to amend the Indian Penal Code 1860 (IPC), the Code of Criminal Procedure, 1973 (CRPC) and the Indian Evidence Act, 1892 to improve upon the existing Criminal Justice System in the country.

There are three types of plea bargaining:
  1. Sentence Bargaining: The main motive of this kind of Bargaining is to get a lesser sentence. The defendant agrees to plead guilty to the stated charge and in return, he bargains for a lighter sentence.
  2. Charge Bargaining: In this kind of bargaining, the defendant agrees to plead guilty to a lesser charge in consideration of dismissing greater charges. This bargaining happens for getting less severe charges.
  3. Fact Bargaining: This kind of bargaining occurs when a defendant agrees to stipulate to certain facts in order to prevent other facts from being introduced into evidence.

Advantages of Plea Bargaining
  1. Plea Bargaining allows a person to plead guilty or no contest in exchange for a reduction in the number of charges or the seriousness of the offenses. This results in recording less serious offenses on the official court records of an accused. This can be good for the accused when he is convicted in the future.
  2. The longer case is, the more publicity accused has to face. Plea Bargaining is a good mechanism to avoid publicity of the parties. The parties who are not able to face these kinds of unnecessary stigmatization because of fear of losing reputation.
  3. Plea bargaining allows a person to plead guilty without hiring a lawyer. But If they waited to go to trial, they would have to find and hire a lawyer, and in that process, they have to spend at least some time working with the lawyer to prepare for trial and pay the lawyer. It helps the parties to seek justice on time without wastage of time and money of the parties. Even many cases take lots of time around 8 to 10 years in the litigation process.
  4. The plea bargaining is beneficial for both the prosecution and the defender because there is no risk of complete loss at trial. It helps the attorneys to defend their clients in an easy way because both the parties possess bargaining power. This is how the long-standing disputes can be resolved. It helps to reduce the unnecessary burden on the courts.

Disadvantages of Plea Bargaining
  1. The provisions of Plea Bargaining do not provide for an independent judicial authority to evaluate plea-bargaining applications. This is one of the glaring reasons for its criticism.
  2. The reasons given for the introduction of plea-bargaining are the tremendous overcrowding of jails, high rates of acquittal, torture undergone by under trial prisoners, etc. But the main factor behind all these reasons is a delay in the trial process. In India, the reason behind the delay in trials is many.
  3. The prosecutor and defendant may agree to a plea bargain, but a judge can void that agreement. Usually, a judge is not follow a plea bargain. They can impose longer sentences or decide that no sentence should be imposed.
Alternative conflict resolution mechanism are highly important and helpful in the legal field because it helps the parties to seek justice on time with less amount of money and it reduce the overburden cases issue on the courts. Plea bargaining is the process for criminal justice is less time. If there are some disadvantages of plea bargaining then there are some advantages also. With the passage of time the society and Indian courts need and felt that the plea bargaining process should be there. But if "justice delay , justice deny" then "justice hurried , justice buried".

End Notes:

Written By: Dipansha Agrawal
Email id: [email protected], Ph no:+918630879846

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