Alternative Dispute Resolution (ADR)
SUBMITTED BY:
K SRUTHI
(190401427039)
BBA LLB (2019- 2024)
UNDER THE SUPERVISION OF:
PROFESSOR: VISHAL BABASAHEB RANAWARE
ALLIANCE SCHOOL OF LAW
ALLIANCE UNIVERSITY, BANGALORE
CRITICAL STUDY ON PLE BARGAINING RESOLUTION IN CRIMINAL
JURISPRUDENCE
ABSTRACT:
Alternative Dispute Resolution (ADR) refers to the process of dispute resolution and denotes
the idea of making the system of delivering justice friendly to disputed parties and ensuring
quick resolution of cases. This system's popularity is growing by the day due to its simplicity.
In this regard, this approach has the potential to protect people from harassment. This
approach is followed by the majority of statutory legislation, including the principal
procedural law for civil matters. Other major statutes, such as the Code of Criminal
Procedure, should increasingly incorporate the ADR system, preferably plea bargaining. ADR
can be a feasible alternative for settling conflicts between victims and perpetrators. This
overview looks at the theoretical problems that underpin current ADR appeals in the criminal
justice system. Given the current situation in India, it is clear that the Criminal Justice System
in India requires urgent reform and a system to expedite the resolution of cases. This research
paper will analyse the Alternative Dispute Resolution (ADR) in criminal litigation in India
and do a comparative study with other countries. It will also discuss Plea Bargaining as a
form of ADR.
Keywords: Plea Bargaining, ADR, Criminal Trials, Courts, Criminal law
1. INTRODUCTION:
Is India getting the justice it needs? India has one of the oldest constitutions in the world and
yet 4.5 crore cases are pending in courts all over India. About 5 crore people have not
received the justice they deserve. This can be because of various reasons and one of the main
reasons is that India doesn’t have a good ratio of judges to cases. Alternate Dispute resolution
is what we need to resolve criminal cases.
Alternative conflict resolution approaches to aid in a variety of ways, including ensuring that
victims receive justice on time and saving time for the courts. There are a variety of ADR
conflict resolution procedures available, and disputants will choose the one that is most
suitable for them. Arbitration, conciliation, negotiation, and mediation are the other
procedures. Lokpal and lokayukt have been established for swift justice, and Lok Adalat
(people's courts) have been established at various levels. Article 21 of the Indian Constitution
guarantees citizens the right to a speedy trial: preservation of life and personal liberty; no
individual shall be deprived of his or her life or personal liberty unless in accordance with
legal procedures.
1.1. SCOPE AND OBJECTIVES:
The scope of this research paper is to analyze the Alternative Dispute Resolution (ADR) in
criminal litigation in India and do a comparative study with other countries. It will also
discuss Plea Bargaining as a form of ADR.
1.2. RESEARCH METHODOLOGY:
The Research Methodology used in this Research paper is a purely doctrinal form of
research. The doctrinal research approach has been adopted and is a compilation of the
primary sources such as legislation, acts, case laws and secondary sources such as literary
sources, course materials, articles, reviews, books and e-databases has been given special
importance.
1.3. LITERATURE REVIEW:
1. Maggie T. Grace, ‘Criminal Alternative Dispute Resolution: Restoring Justice,
Respecting Responsibility, and Renewing Public Norms’, Vermont Law Review,
(2012) Vol. 34:563, pp: 563- 595.
This article examines the theoretical problems that underpin current criminal justice ADR
requests. The author argues that restorative justice reveals how ADR can address the realities
of social foundations of crime while respecting deeply held commitments to personal
responsibility and public norms, drawing on philosophical literature on free will and
responsibility as well as leading work on transitional justice.
2. Md. Alamin, ‘Introducing Alternative Dispute Resolution in Criminal Litigation: An
Overview’, Journal of Research in Humanities and Social Science, (2015) Volume 3 ~
Issue 11 pp: 68-82.
In this article the author discusses the criminal justice system stresses the role of the state in
resolving offences in order to maintain peace and protect the lives and property of its citizens,
it is referred to as the justice system. Despite its opposition to alternative dispute resolution
in criminal cases, it has played an important role in reducing the case backlog.
3. Pradeep Kumar Bharadwaj, Dr. Chintala Lakshmana Rao, ‘Alternative Dispute
Resolution in Criminal Justice System: Need of the Hour?’ Turkish Journal of
Computer and Mathematics Education, (2021) Vol.12 No. 7, pp: 1289 – 1294.
In this article, the author discusses ADR in the context of criminal cases that are pending
before various courts, as well as the referral of certain classes of criminal cases for mediation
and conciliation, which can assist in the disposition of cases that are either compromised by
the parties themselves or that would result in acquittal due to lacunae or a lack of
incriminating evidence against them.
4. Laurence M. Newell, ‘Role for ADR in the Criminal Justice System?’ Australian
Institute of Criminology.
The author suggests that alternative dispute resolution (ADR) is a more suitable manner of
settling disagreements and a strategy that requires help from the official criminal court system
to work. It reflects a movement from retributive justice to restorative justice—a shift from
retributive justice to restorative justice for those who confess their fault. He notes that
restorative justice is a procedure in which all parties involved in a criminal offence get
together to decide how to cope with the aftermath of the crime and its long-term
consequences.
5. Anoop Kumar & Udai Pratap Singh. ‘ADR in Criminal Justice System in the
Backdrop of Global Pandemic’, White Black Legal.
In this paper. The authors study the efficiency of ADR on criminal justice systems of the
world and its implications for India. Special emphasis has been provided on the need for
ADR during the global pandemic. They state that when compared to that of the US, the
position of plea bargaining in India is praiseworthy as it prevents its application in heinous
and serious crimes like manslaughter.
1.4. RESEARCH PROBLEM:
Through plea bargaining, the punishment of the offender reduces. This may increase the
violence or criminal activates in the country. This system benefits the offender, and it may
create a scenario where we go back to the system of a panchayat. A system that did not
provide justice and was influenced heavily by local politics.
1.5. RESEARCH QUESTIONS:
1. Whether ‘plea bargaining’ as a form of ADR has diminished the function of legal
proceedings and has it privatized disputes at the cost of public interest and justice?
2. Whether plea bargaining is a globally accepted method of ADR in Criminal Cases
1.6. HYPOTHESIS:
Because of the benefits that ADR methods provide, their use has increased significantly in the
Indian Criminal judicial system.
2. NEED OF ADR IN CRIMINAL JURISPRUDENCE
It was during the period spanning 1970s to 1980s, that a range of non-traditional dispute
resolution processes evolved under the label of ADR, with objectives of restructuring dockets
and harmonious resolution of disputes. In the Roscoe Pound Conference, held in 1976, titled
“Perspectives on Justice in the Future”, the potential procedural alternatives to adjudication 1.
Restorative Justice and Alternative Dispute Resolution The use of ADR processes in the
criminal justice system has been seen as a shift towards restorative justice, in the sense that
the restorative justice movement aims to instil a feeling of responsibility in the offender
toward the victim and the community. Restorative justice is seen as more 'victim-centred —
in fact, the idea arose primarily from victim advocacy groups who thought that regular
criminal justice systems excluded and disempowered victims.2
The birth of Criminal ADR procedures can be traced to earlier “informal justice” programs.
There are various models of criminal ADR programs running throughout the globe. Some of
these are as follows:
(a) Programs for Victim-Offender Mediation (VOM): Victim-offender reconciliation
programs (VORP) or victim compensation programs are other terms for VOM. Its main
purpose is to encourage direct dialogue between the victim and the perpetrator. Victims who
take part in VOM have the chance to ask questions, discuss the emotional pain caused by the
crime and its aftermath, and seek redress3.
(b) Dispute Resolution Programs in the Community (CDRP): CDRP offers the benefit of
resolving small disputes that have clogged criminal dockets because they have not been
resolved by courts. Every year, nearly 10,000 people in Michigan seek resolution through
CDRP rather than going to a court or magistrate4.
1
Maggie T. Grace, Criminal Alternative Dispute Resolution: Restoring Justice, Respecting Responsibility, and
Renewing Public Norms (December 17, 2009), p. 564, Vermont Law Review, Vol. 34, 2010. Available at SSRN:
http://ssrn.com/abstract=1524762 (last visited 20th November 2021).
2
Melissa Lewis & Les McCrimmon, The Role of ADR Processes in the Criminal Justice System: A View from
Australia, available at http://www.doj.gov.za/alraesa/conferences/papers/ent_s3_mccrimmon. pdf (last visited
12th November 202`).
3
John R. Gehm “Victim-Offender Mediation Programs: An Exploration of Practice and Theoretical Frameworks”,
Western Criminology Review 1 (1)
4
Anoop Kumar, Applicability of ADR in Criminal Cases, Manupatra, available at
http://www.mightylaws.in/430/applicability-adr-criminal-cases (last visited 20th Novenmber, 2021)
(c) Panels of Victims and Offenders (VOP): The mechanism of VOP was developed as a
result of movements highlighting victims' rights in the previous two decades, as well as a
campaign against drunk driving. Convicted drunk drivers are given the opportunity to
understand the human cost of drunk driving on victims and survivors through VOP5.
(d) Community Crime Prevention Programs: These programs include a plethora of activities,
including media anti-drug campaigns, silent observer programs, and neighbourhood dispute
resolution programs6.
(e) Mediation Service for Private Complaints (PCMS): The PCMS is a private citizen-to-
private citizen mediation system that provides an alternative to the regular court procedure
for resolving criminal misdemeanour issues. The Hamilton County Municipal Court's
Administrative Rule 9.02 has given PCMS permission to operate7.
There are also alternative mechanisms such as sentencing circles, ex-offender support,
community service, educational programmes, and speciality courts in addition to the above-
mentioned programmes. In certain countries, the progressive adoption of such programmes
indicates a move away from deterrence and toward restitution as a method of criminal justice.
In a nutshell, they demonstrate the use of restorative justice.
3. PLEA BARGAINING A FORM OF ADR IN CRIMINAL LAW
Plea Bargaining8 is a term used to describe pre-trial bargaining between the accused and the
prosecution in which the accused offers to plead guilty in exchange for specific concessions
from the prosecution. It's a deal in which the defendant agrees to plead guilty to a lower
charge in exchange for the prosecution dropping more serious accusations. The goal of 'Plea
Bargaining' is to decrease the danger of either side receiving unfavourable orders. Another
5
4 RESTORATIVE JUSTICE ONLINE: Victim Offender Panels, http://www.restorativejustice.org/
universityclassroom/01introduction/tutorial-introduction-to-restorative-justice/processes/panels (last visited
1st November, 2021).
6
Prevention: Community Programs – The History Of Community Crime Prevention, Chicago Areas Project,
Political Mobilization, Evaluations Of Community Crime Prevention Programs,
http://law.jrank.org/pages/1739/Prevention-Community-Programs.html#ixzz0kxrprMHD (last visited 3rd
November 2021)
7
MEDIATION OF CRIMINAL MISDEMEANOR DISPUTES, http://www.hamilton-co.org/MunicipalCourt/
mediation/mediation_of_criminal.htm (last visited 3rd November, 2021).
8
Sec.265A of the Criminal Procedure code (Amendment act), 2005
reason for establishing the Plea Bargaining concept is that most criminal courts are
overburdened and so unable to resolve cases on their merits. A criminal trial can last years,
whereas guilty pleas can be made in minutes. To put it another way, a plea bargain is an
agreement made by the prosecutor to persuade the defendant to enter a guilty plea. Plea
bargaining is a type of alternative dispute resolution (ADR) in criminal law. It does not,
however, work in the same way as arbitration or mediation. It merely relieves both the
accused and the victim of their burdens. As an ADR, it is used in a variety of settings.
Plea-bargaining as an ADR mechanism has advantages for patients, such as the ability to
obtain repayment without trouble. The victim will save money and time by avoiding the
lengthy judicial process. It is a boon to the accused since it allows him or her to avoid the
lengthy legal process, gets half-penalty in the case of minimum punishment, and be placed on
probation or admonition. It ensures justice in the sense that there is no bias in favour of his
judgment, that the accuser’s admission cannot be utilized for any other purpose than plea-
bargaining, that it is considerably less expensive and time-consuming, and so on.
3.1. Comparative Study of Plea Bargaining in Different Courtiers
Plea Bargaining in the United States
Plea bargaining is very common in the United States; 9 the great majority of criminal cases are
settled by a plea bargain rather than a trial. They've also been more common, rising from 84
per cent of federal cases in 1984 to 94 per cent in 2001. Plea bargains must be approved by
the court and the rules vary depending on the state and jurisdiction.
Plea Bargaining in the United Kingdom
Nearly a quarter of all merger deals in the United Kingdom exhibit indicators of unusual
share trading activity immediately before the announcement. Insider activity appears to be at
an all-time high in the United Kingdom. This is not a victimless crime: it deprives
shareholders of revenues and can lead to the collapse of otherwise viable deals, damaging
value and potentially jeopardizing jobs. Plea bargaining is permitted only if the prosecutor
and defence agree that the defendant will plead to some charges and the prosecutor will drop
the others.
9
Md. Alamin, ‘ Introducing Alternative Dispute Resolution in Criminal Litigation: An Overview’, Journal of
Research in Humanities and Social Science, Volume 3 ~ Issue 11 (2015) pp: 68-82 ISSN(Online) : 2321-9467
Canada's Plea Bargaining
In Canada, it appears that around 90% of criminal cases are handled by guilty pleas; many of
these pleas are the direct result of successful plea talks between Crown and defence counsel.
The Crown and the accused effectively define the nature of the charge(s) that will be laid
when a plea deal is adopted. Because the form and amount of punishments are essentially
determined by the accusations presented against the accused, it is evident that the parties to a
successful plea bargain have de facto power over the sentence imposed by the trial judge.
India’s Plea Bargaining
The Mali math Committee conducted a review of the court system in order to create a system
to manage the backlog of cases in the Indian judicial system, and a series of
recommendations were made with the goal of reducing litigation and ensuring that justice is
made accessible to the people at the lowest cost of time and money. 10 The Central
Government took steps to formally introduce the ADR mechanism into the criminal justice
system by amending the National Legal Services Authority Act, 1987, allowing for the
establishment of "Permanent Lok Adalats" and the introduction of the concept of "plea
bargaining" in India through the Criminal Law (Amendment) Act, 2005, which is codified in
Chapter 21 A11.
Plea-bargaining as ADR provides benefits to victims such as easy compensation, avoid long
drawn-out judicial processes, and saves time and money; and benefits to the accused such as
avoiding long-drawn-out judicial processes, he/she will receive half punishment in case of
minimum punishment, may be released on probation or admonition, no appeal lies against the
judgment in his favour, and the accused's admission cannot be used for any other purpose
except for plea-bargaining, less time and money consuming etc.12
3.2. Criticism Of Plea Bargaining As ADR
10
Maggie T. Grace, ‘ Criminal Alternative Dispute Resolution: Restoring Justice, Respecting Responsibility, and
Renewing Public Norms’, Vermont Law Review, Vermont Law Review, (2012) Vol. 34:563, pp 563- 595,
11
Code of Criminal Procedure, 1973.
12
Plea- bargaining as an ADR mechanism in criminal cases, https:// https://www.iilsindia.com//blogs/plea-
bargaining-as-an-adr-mechanism-in-criminal-cases/
The mechanism's most serious flaw is that it privatizes public harm. ADR has been criticized
for pushing it as a perfect alternative for judgments, as it is considered to diminish the
function of legal proceedings and privatize conflicts at the expense of public interest and
justice. This critique is especially relevant in criminal situations, which are considered
offences against society as a whole. Allowing a private agreement in this situation is thus
seen as undermining social interests. The use of coercion and corruption in plea bargaining is
a close second. As previously stated, the judiciary has referred to the risk of coercion in
numerous situations, emphasizing the need of ensuring that the choice to enter into a plea
bargain is voluntary.
4. ADR MECHANISM IN CRIMINAL TRIAL
The concept of an alternative dispute resolution (ADR) mechanism in criminal cases arose
from a desperate need to provide a simple and accessible remedy to poor criminals who are
guilty of motor vehicle accidents and other petty criminal cases, as well as some civil
disputes such as matrimonial matters, debt recovery, and other civil disputes, in order to save
them from inordinate delay, high litigation costs, and rigid procedure. The Legal Services
Authorities Act of 1987 gave legal status to such conciliatory efforts, dubbed Lok Adalat, and
the award it issued was given the status of a civil court order. Lok Adalats are now taking on
a new dimension in order to help the lower sectors of society deal with their legal woes. It
offers litigants a statutory venue to settle their issues through negotiated settlements in front
of Lok Adalat judges. In order to decongest the courts, the Legal Services Authorities Act,
1987 was amended in 2002 to provide for the establishment of a permanent Lok Adalat for
the settlement of disputes connected to public utility services using an ADR procedure.
Because of the benefits that ADR methods provide, their use has increased significantly in the
Indian judicial system. It allows for a quick trial; it is a private procedure, and it is a cost-
effective method of resolving disputes. As a result, it overcomes the majority of the problems
that litigation poses as a means of resolving disputes. 13 The Mali math Committee conducted
a review of the judicial system in order to control the backlog of litigation in the Indian
courts. In its report, the Committee suggested that a plea bargaining mechanism be
implemented in the Indian Criminal Justice System to allow better case disposition, decrease
13
Pradeep Kumar Bharadwaj, Dr. Chintala Lakshmana Rao, ‘ Alternative Dispute Resolution in Criminal Justice
System: Need of the Hour?’, Turkish Journal of Computer and Mathematics Education, (2021) Vol.12 No. 7, pp:
1289 – 1294
the strain on the courts, and ensure that individuals have access to justice at the lowest
possible cost in terms of time and money. As a result, ADR processes were legally brought
into the criminal justice system by the Criminal Law (Amendment) Act, 2005, which
amended Chapter XXI A of the Code of Criminal Procedure, 1973, to include the notion of
"plea bargaining."
Certain essential measures must be made by the state in order for the rule of law and justice
to be properly administered. In terms of the image of pendency in civil proceedings, it may be
addressed through the various alternatives available, such as ADR methods. However, there is
substantial scepticism about the use of ADR in criminal justice.
4.1. Applicability of ADR in the criminal Justice
The use of ADR in the criminal justice system cannot be justified solely on the basis of
reducing the number of cases pending in the courts. It must be considered on the basis of
actual justice being served and the parties' satisfaction. Conflict will continue to rise unless
the offender is willing to make amends for his actions or learns a lesson to avoid future
confrontations. Furthermore, the COVID-19 pandemics resulted in a statewide lockdown,
making the situation very unpredictable as well as causing significant market volatility
globally, resulting in commercial demands on individuals perhaps leading to an unneeded
increase in disputes. If everyone starts filing their disputes in the courts, the judicial system
would become overburdened. As a result, mediation, arbitration, or conciliation becomes the
most effective and efficient option in these situations. These are the methods that lawyers or
parties to a dispute could employ to reduce the bad consequences of the situation we're in.
Furthermore, it will make the parties' lives easier by saving them time and money.
5. CONCLUSION AND RECOMMENDATIONS
The Indian Criminal Jurisprudence has progressed from not recognising the concept of
Alternative Dispute Resolution in criminal matters to including the concept of plea
bargaining in the CrPC and forming guidelines to recognise the mutually agreed settlement
by the parties to a dispute in cases that are not of a serious nature and have no societal impact.
Alternative Dispute Resolution (ADR) is an exception to typical court procedures that should
be used more frequently and completely. As a result, such out-of-court agreements are critical
for reducing the courts' excessive workload, and they should also become the 'new normal.'
BIBLIOGRAPHY
Secondary Resources
Journal Articles
1. Maggie T. Grace, ‘Criminal Alternative Dispute Resolution: Restoring Justice,
Respecting Responsibility, and Renewing Public Norms’, Vermont Law Review,
Vermont Law Review, (2012) Vol. 34:563, pp 563- 595,
https://lawreview.vermontlaw.edu/wp-content/uploads/2012/02/grace.pdf
2. Md. Alamin, ‘Introducing Alternative Dispute Resolution in Criminal Litigation: An
Overview’, Journal of Research in Humanities and Social Science, Volume 3 ~ Issue
11 (2015) pp: 68-82 ISSN(Online): 2321-9467
https://www.questjournals.org/jrhss/papers/vol3-issue11/I3116882.pdf
3. Pradeep Kumar Bharadwaj, Dr Chintala Lakshmana Rao, ‘ Alternative Dispute
Resolution in Criminal Justice System: Need of the Hour?’, Turkish Journal of
Computer and Mathematics Education, (2021) Vol.12 No. 7, pp: 1289 – 1294
file:///C:/Users/admin/Downloads/2841-Article Text-5363-1-10-20210417 (1).pdf
Websites:
1. Plea- bargaining as an ADR mechanism in criminal cases,
https://www.iilsindia.com//blogs/plea-bargaining-as-an-adr-mechanism-in-criminal-
cases/
2. The Legal Info, Plea Bargaining under Crpc India |Concept, Meaning, Procedure,
https://thelegalinfo.com/2021/10/16/plea-bargaining-under-crpc-india/
3. Lawcutor, The Role Of Alternative Dispute Resolution In Criminal Trials In India,
https://lawcutor.com/2020/10/03/the-role-of-alternative-dispute-resolution-in-
criminal-trials-in-india/
4. Maggie T. Grace, Criminal Alternative Dispute Resolution: Restoring Justice,
Respecting Responsibility, and Renewing Public Norms (December 17, 2009), p. 564,
Vermont Law Review, Vol. 34, 2010. Available at SSRN:
http://ssrn.com/abstract=1524762 (last visited 20th November 2021).
5. Melissa Lewis & Les McCrimmon, The Role of ADR Processes in the Criminal
Justice System: A View from Australia, available at
http://www.doj.gov.za/alraesa/conferences/papers/ent_s3_mccrimmon. pdf (last
visited 12th November 202`).
6. John R. Gehm “Victim-Offender Mediation Programs: An Exploration of Practice
and Theoretical Frameworks”, Western Criminology Review 1 (1)
7. Anoop Kumar, Applicability of ADR in Criminal Cases, Manupatra, available at
http://www.mightylaws.in/430/applicability-adr-criminal-cases (last visited 20th
November 2021)
8. RESTORATIVE JUSTICE ONLINE: Victim Offender Panels,
http://www.restorativejustice.org/ universityclassroom/01introduction/tutorial-
introduction-to-restorative-justice/processes/panels (last visited 1st November, 2021).
9. Prevention: Community Programs – The History Of Community Crime Prevention,
Chicago Areas Project, Political Mobilization, Evaluations Of Community Crime
Prevention Programs, http://law.jrank.org/pages/1739/Prevention-Community-
Programs.html#ixzz0kxrprMHD (last visited 3rd November 2021)
10. MEDIATION OF CRIMINAL MISDEMEANOR DISPUTES, http://www.hamilton-
co.org/MunicipalCourt/ mediation/mediation_of_criminal.htm (last visited 3rd
November 2021).
