Mediation in Criminal Disputes in India

Abstract: Mediation has proved to be extremely advantageous in resolving civil disputes.

Though its application in criminal law is limited, as of now. Empirical studies have shown the
incapability of using harsh punishment in reducing crime. Also, punishment is not always what
the victim wishes to seek. Mediation has the ability to fill this aperture between the appropriate
remedy and victims’ needs. There exist some challenges but they can be dealt with through an
indomitable will to improvise the criminal legal system and ameliorate the sufferings of the
parties. But lack of legal sanctity impedes the escalation of mediation in criminal law. There
exists a legal vacuum as far as legal authority backing the application of penal mediation is
concerned. Neither the Legal Services Authority Act nor the Mediation and Conciliation Rules,
2014 provides for penal mediation. Resultantly, penal mediation in India still remains in an
apocryphal state. Therefore, for penal mediation also perspicuous and compendious rules need
to be drafted just like its counterpart in civil law. It is indubitably true that mediation as a
dispute resolution alternative possess immense potential in redressing criminal compoundable
matters as has been recognised and acknowledged by various other countries like Germany,
USA, Romania, etc.

I. Introduction

When the classic litigation process failed to unencumber the Indian courts from dealing with
the plethora of civil suits being filed daily, a need to resort to some other method to redress
disputes among people was felt. The courts were being flooded with myriads of cases as a result
of more litigious citizens. The people started knocking the doors of court of law more often
than the judiciary could bear. The courts started witnessing matters where a person would bring
a law suit against another for recovering a sum as gigantic as 2000 bucks. As a result of such
paltry and frivolous matters, the pendency was increasing each day. The regular litigation
process would take it years to administer justice. During this course when the judiciary was
going through such trying circumstances, alternative ways to redress disputes were formally
inducted. The parties were encouraged to resolve matters amicably among themselves. Though
it shall not be construed as if this was the advent of mediation. Such alternative ways of
redressing disputes were age old methods of resolving disputes among folks world-over, across
various societies and communities. In fact, the formal justice system of courts was a latter
development. While inducting ADR in the legal arena, US Supreme Court Chief Justice has

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once observed that ‘adversarial processes are tearing the country apart’. The preferment and
proliferation of mediation over the years in resolving civil disputes is overwhelming. The
predisposition of the parties as well as that of courts to resolve disputes through mediation,
itself indicates its success in the legal landscape. On the other hand, there still exists a void as
far as using mediation as an alternative to redress criminal disputes is concerned. At a time
when the country is facing a tortuous backlog of criminal cases, what is needed is a judicial
approach that is crisp and poignant rather than meandering and of dubious relevance. Such
pendency and recommission of offences by the offenders indicate that there exists a Gordian
knot. The predicament lies at the very core of resolving criminal matters i.e. it is mendaciously
believed that punishment as a remedy, is sought by victims in all cases. It is to be realised that
punishment is not the apposite relief for the victim. Prof. Marty Price has effulgently articulated
it as- “In our mainstream criminal justice system, punishment is the "bone" that the system
throws to victims, while offering little else. Victims, their advocates and others would do better
to let go of their demands for more prisons and more punishment. Those demands are not
serving the needs of victims or society. They are instead helping to perpetuate a system of
retributive justice that is failing us all.”1

So, what is to be seen is whether mediation can successfully be enforced and implemented in
criminal disputes in India by overcoming the challenges posed by the critics and lack of legal
sanctity.

II. Dealing with Critics

The debate over the application of mediation to resolve litigations pertaining to criminal
matters has been going on incessantly for a long period of time. Many people saw the
introduction of mediation as a means to resolve civil disputes with sceptical eyes. But as the
facts have it, mediation has turned out to be a benediction for the civil law suits. The parties
now prefer to mediate and resolve their private matters than going before a court owing to the
very ostensible benefits of mediation which are, inter alia, cost effective, time saving, re-

1
Punishment-What's in it for the Victim? A Restorative Justice Discussion for Crime Victims and their
Advocates by Marty Price J.D., Kaleidoscope of Justice Vol. 5, No.1, 1997

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establishment of positive relationship, no imposition of settlement, win-win position for both
parties and maintenance of confidentiality.

Owen Fiss in his seminal article Against Settlement has contended that mediation leads to unfair
outcome due to the presence of imbalance of power between the parties. He believes that
mediation is simply a process by which parties try to anticipate the outcome of the case and
considering this anticipation as the base material come to a settlement with the help of a neutral
third party of their choice. He argues that parties to mediation very often have unequal financial
resources. The presence of such unequal financial resources leads to unfair bargaining power.
He further elucidates as to how such disparity in resources affects the mediation. Firstly, the
poorer party is unable to analyse or amass information and is thus unable to anticipate the
outcome. Secondly, the settlement might be affected by the factor of urgency. If a party needs
damages immediately, he might get ready to settle the dispute at a consideration lower than
what he might get had he gone for litigation and waited for the judgement. Thirdly, the other
party might take undue advantage of the indigency of the poorer party by reducing the
mediation offer. As a result, the party with deeper pockets might successfully tilt the outcome
of mediation in his own favour.

Fiss has reasoned his arguments by making an assumption that the parties try to anticipate the
outcome of litigation in mediation. In fact, contrary to litigation the parties try to reach to a
settlement without making use of statutory provisions. Therefore, in the absence of knowledge
of such legal provisions, the parties to mediation are neither capable to anticipate the outcome
of the litigation nor do they intend to do the same. The assumption, thus, made by him doesn’t,
conceptually, hold water. Also, no conflict could be traced in his second contention pertaining
to urgency. The party wished to get damages immediately and through mediation got the same.
He himself admits that in order to seek damages through conventional litigation system the
party might have to wait even after needing it immediately. As is often said justice delayed is
justice denied. What’s the benefit of getting slightly higher consideration which could not be
supplied by the system when it was needed? The third contention is a case very specific and
involves too many qualifications like the other party would reduce the settlement offer in
contemplation of the fact that it would cause damage to the other indigent party. Moreover, one
major flaw in this argument is that it assumes the absence of this vice of imbalance of power
in the traditional litigation system. In fact the traditional litigation system is more grievously
infected by this vice. For instance, the adversarial system of justice is profoundly affected by

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this vice because of the active role of lawyers. As a result, the parties with bottomless purses
would be in a position to engage a better lawyer.

Another criticism that mediation is often subjected to is that the outcome of penal mediation
manifests peace rather than justice. Owen Fiss stated this challenge as “While peace between
the parties could be achieved, society was left without a remedy.”2 The focus of the judicial
system is to apply well settled principles of law to resolve the disputes between the parties. On
the basis of these statutory provisions disputes are adjudicated. Whereas mediation doesn’t
involve the application of these legal provisions. It is argued that criminal mediation is a threat
to public justice. Since offences under criminal law are not wrongs against a private individual
rather, they are deemed to be committed against the society at large. Resultantly, in a criminal
matter the accused is prosecuted by the state on behalf of the entire society.

Indeed, the wrongs of criminal nature are, today, believed to be committed against the society
but such a belief is a continuation of the change that came with the Norman invasion of Britain
in 12th century. Prior to it, law had viewed crime as a conflict to be dealt with between the
individual victim and the offender. It was only under William- the Conqueror that crime began
to be conceptualized as breach of king’s peace.3 In addition, it is quintessential for a person to
have acted upon his own free will in order to be held culpable or responsible for the act. It
seems fallacious to assume that all the acts committed by an offender are done under his own
free will. It is unassailable that very often such offending acts are done under the influence of
external factors. According to Immanuel Kant, responsibility presupposes free will liberated
from “foreign [determining] causes”.4 It seems prejudiced to establish culpability on the
substratum of conditions beyond an individual’s control. Furthermore, the said challenge is
legitimate to the extent until state’s obligation to uphold public norms does not puts a crimp in
an individual’s discretion. Our constitution has laid down certain ideas for an ideal society
which are justice, liberty, equality and fraternity. A person should have the liberty to exercise
his/her legal right granted by the legislature in whichever way he wants provided it does not
fall foul of constitutional morality. One must have the right to choose the course of resolving
his disputes. The feasibility, suitability and adequacy of the path to be taken is should be for
the parties to judge. Justice needs to be administered and not imposed. Therefore, it would be
erroneous to mention that mediation promotes peace rather than justice. In fact, mediation is

2
Against Settlement by Owen M. Fiss, 93 Yale L.J. 1073 (1984) at 1085
3
Mary Ellen Reimund, Mediation in Criminal Justice: A Restorative Approach, 46 Idaho B. J. 22, 22 (2003)
4
Maggie T. Grace Criminal ADR quoted Immanuel Kant Fundamental Principles of Metaphysic of Morals, 63
(1785)

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nothing but peaceful administration of justice. Furthermore, mediation is not an alternative of
justice but an alternative procedure of administering justice.

Mediation is also disparaged as critics believe that it has deprived the courts to perform its
social function. A court while adjudicating upholds the basic tenets upon which the entire
jurisprudence is established like the rule of law, supremacy of law, etc. Settlement, by
removing disputes from public forums, deprived courts, as reactive institutions, of the chance
to create justice, educate society and fulfil government’s social duty5.

The above argument is developed on the assumption that mediation has the capability to
deprive the court to perform its social function. It, thus, concomitantly indicates that mediation
has substituted or replaced the courts in doing so. Whereas, mediation actually enables the
courts to perform its social function even more efficiently by allowing it to focus on cases
which demands its attention and time.

Settlement has eliminated the “Publicity Principle” at the centre of democratic public morality
by merely publicizing- if at all- the terms of the settlement without professing how it was
reached, reasserting public norms, or recognizing underlying moral responsibility.6 It is argued
that mediation fails to mention the rules, regulations, norms or provisions on the basis of which
the settlement is reached.

III. Legality and Binding Effect of Mediation in Criminal Disputes

Section 89 of the Code of Civil Procedure provides for mediation as one of the Alternate
Dispute Resolution processes for settling the issues between the parties in an efficacious and
expeditious manner in respect of pending matters. The situation is much settled as far as the
application of mediation is concerned in civil disputes. What needs to be looked into is the
legality corroborating the validity of the application of mediation as an alternative way of
resolving criminal disputes.

In K.N. Govindan Kutty Menon vs. C.D. Shaji7 it was held that normally criminal cases are not
considered fit to be referred for ADR process. But under the Legal Services Authorities Act,

5
Id. at 1085
6
Settlements and the Erosion of Public Realm by David Luban, 83 GEO. L.J. 2619, 2648 (1995); see also
Justice Trumps Peace: The enduring relevance of Owen Fiss’ Against Settlement, RUTGERS CONFLICT
RESOL. L.J. at 20
7
(2012) 2 SCC 51

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1987, criminal cases for compoundable nature can be referred for Lok Adalat as though it is a
criminal court constituted for that purpose. With respect to the binding effect of the order, it
was further observed by the Hon’ble Supreme Court that the order so passed by the court,
which initially referred the matter to Lok Adalat, shall have the effect of decree in the eyes of
law. It shall be, needless to mention, capable of being executed.

There exists no bone of contention as far as settlement in Lok Adalat is concerned. However,
what needs to be flagged is that the Legal Services Authority Act, 1987 applies only with
respect to a Lok Adalat and does not provide for mediation as a form of ADR. In what can be
termed as the locus classicus concerning mediation- Afcons Infrastructure Limited and
Another vs. Cherian Varkey Constructions Company Pvt. Ltd. takes on exactly this
challenge. The Hon’ble Supreme Court trotted out the categories of cases that are normally
considered to be “suitable” and “unsuitable” for ADR process having regard to their nature.

“The following categories of cases are normally considered to be not suitable for ADR process
having regard to their nature:
(i) Representative suits under Order 1 Rule 8 CPC which involve public interest or
interest of numerous persons who are not parties before the court. (In fact, even a
compromise in such a suit is a difficult process requiring notice to the persons
interested in the suit, before its acceptance).
(ii) Disputes relating to election to public offices (as contrasted from disputes between
two groups trying to get control over the management of societies, clubs,
association, etc.).
(iii) Cases involving grant of authority by the court after enquiry, as for example, suits
for grant of probate or letters of administration.
(iv) Cases involving serious and specific allegations of fraud, fabrication of documents,
forgery, impersonation, coercion, etc.
(v) Cases requiring protection of courts, as for example, claims against minors, deities
and mentally challenged and suits for declaration of title against the Government.
(vi) Cases involving prosecution for criminal offences.

28. All other suits and cases of civil nature in particular the following categories of cases
(whether pending in civil courts or other special tribunals/forums) are normally suitable for
ADR processes:

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 (i) All cases relating to trade, commerce and contracts.
(ii) All cases arising from strained or soured relationships.
(iii) All cases where there is a need for continuation of the pre-existing relationship in spite
of the disputes.
(iv) All cases relating to tortious liability.
(v) All consumer disputes.

The above enumeration of “suitable” and “unsuitable” categorisation of cases is not intended
to be exhaustive or rigid. They are illustrative, which can be subjected to just exceptions or
additions by the court/tribunal exercising its jurisdiction/discretion in referring a dispute/case
to an ADR process.”8

While reading the abovementioned observations of the Hon’ble Supreme Court it might be
perceived that recourse to mediation in matters involving criminal disputes is generally
disfavoured. However, such proscription, it appears, was not meant to be an absolute one. The
last paragraph of the judgement is suggestive of this fact. Taking into account the dynamic
nature of the society, the Hon’ble Supreme Court considered it wise to keep the legal system
likewise. Resultantly, the list was not kept exhaustive or inflexible. Moreover, since the
question of legal validity of referring the criminal offences of compoundable nature to
mediation never really arose in Afcons Infrastructure (supra), thus the observations of the court
do not seem to be binding in their nature and do not constitute its ratio. Furthermore, the
possibility of carving out an exception in a certain category of criminal cases is not completely
ruled out. The examples are not far to seek. Courts have been increasingly referring cases u/s
138 of Negotiable Instruments Act (Dishonour of Cheque), 406 and 498A of Indian Penal Code
(Criminal Breach of Trust and Cruelty against Women respectively) to mediation. Such a
practice also bears the official mark of approval by the Hon’ble Supreme Court. Concerning
the subject of referral of cases to mediation and the binding effect of mediation settlement in
criminal cases, a contrary belief was opined in Sreelal v. Murali Menon & Anr9 whereby the
court held that in case of a default in mediation settlement the court shall proceed with the
criminal trial. The court observed that, though, criminal compoundable cases can be referred
to Lok Adalat under Legal Services Authority Act but reference of such cases to mediation

8
Afcons Infrastructure Ltd. & Another vs. Cherian Varkey Constructions Company Pvt. Ltd. 2010 (8) SCC 24
NOTE: For the sake of brevity, the sub-categories of cases mentioned as “suitable” and “unsuitable” for ADR
by the Hon’ble Supreme Court has not been mentioned.
9
Crl. MC. No. 1864/2014

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cannot be done in absence of a specific legal authority to that effect. The Hon’ble court was of
the view that if the mediation settlement takes place, the accused shall be acquitted and if not,
then the case must be adjudicated in the court on its merits.

Since the Legal Services Authority Act and Section 89 of the Code of Civil Procedure are
incompatible to the referral of criminal compoundable cases to mediation, the legal sanctity of
it must be looked elsewhere.

In Delhi, mediation is governed by “Mediation and Conciliation Rules, 2004”. The Hon'ble
High Court of Delhi has made certain modifications in Rule-1 to the following effect:

“The Rules will apply to all mediation and conciliation connected with any suit or other
proceeding pending in the High Court of Delhi or in any court subordinate to the High Court
of Delhi. The mediation in respect of any suit or proceeding pending before the High Court of
Delhi or any other Court or Tribunal…”

The expression “other proceeding” is normally construed to justify and legalise the referral of
criminal compoundable cases to mediation. Though the fact that is fought shy of is that these
rules were formulated in exercise and pursuance of powers under the Code of Civil Procedure,
1908. Therefore, such an assumption is fallacious and erroneous. The preamble of the
‘Mediation and Conciliation Rules, 2004’ ostensibly corroborates the same- “In exercise of the
rule making power under Part X of the Code of Civil Procedure, 1908 (5 of 1908) and clause
(d) of sub-section (2) of Section 89 of the said Code and all other powers enabling it in this
behalf, the High Court of Delhi hereby makes the following Rules...”.

So, presently there exists a gap between the use and application of mediation in criminal
compoundable cases and the legal authority backing such use. This gap needs to be filled for
speedy and qualitative disposal of criminal disputes. Separate rules need to be drafted (possibly
u/s 477 of the Code of Criminal Procedure, 1973) for referral of criminal compoundable cases
to mediation clarifying the role of the mediators, the effect and legal standing of mediation
settlement and the enforcement mechanism. A compendium legislation (unlike the hurried
amendment in Commercial Courts Act Section 12(a)) needs to be drafted for making optimum
utilisation of mediation in criminal compoundable cases.

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 IV. Status of Criminal Mediation in Other Parts of the World

Concurrently, about 80 countries and international organizations of the world have made
mediation laws and established mediation service centres to support and encourage the use of
mediation as an alternative to resolve disputes with a view of catering to the requirements of
people on one hand and curbing the devastating effects brought about by the operation of
system of litigation on the other hand. The capability of mediation as an ADR process has been
realised and acknowledged by several countries across the globe. Some of them are performing
outstandingly well at exploiting such potential while others are exploring the same. A brief
account of some countries that have adopted mediation with regard to criminal matters are as
follows:

USA: From the onset of 1970’s, USA saw two trends emerging, one was the increasing
punitiveness towards offenders while the other was a simultaneous increase in the development
of alternatives to traditional approaches of crime prevention. Mediation has been used in the
criminal setting since the 1970s and today there are over 300 such programs in the US.10 In
2006, the American Bar Association’s (ABA) Criminal Justice Section established the ADR
and Restorative Justice Committee which began a project on Mediation in Criminal Matters. It
is an effort to study and promote mediation in criminal law.11 According to a national survey
conducted by the U.S. Department of Justice, about a third of the mediations take place prior
to any formal finding of guilt, but over half take place after.12 The mediators are trained on
average 31 hours, and undergo an apprenticeship period with an experienced co-mediator for
on average of four cases. As of now, penal mediation is largely focused on juveniles and less
serious crimes. Debates for a Uniform Mediation Act are raging in USA.

Germany: In Germany, Victim Offender Mediation (VOM) was inducted in juvenile penal law
in 1994. According to a study done by VOM- Research Group in University of Tubingen in
more than 80% of the cases both parties agreed to a resolution. Furthermore, one third of all
victims of severe violent crimes accept VOM. The first pilot project in penal mediation began
in 1984 with juveniles. In 1999 the German government implemented the first law officiating
the Victim-Offender Mediation as part of the penal procedure. Today, the procedure of VOM

10
Mark S. Umbreit, Robert Coates, Betty Vos. Victim-Offender Mediation: Three Decades of Practice and
Research, 22 Conflict Resolution Q. 279, 270-81 (2004).
11
Jack Hanna, Mediation in Criminal Matters, 15 Dispute Resolution Mag. 4, 5 (2008).
12
Hanna (Supra) at 7

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remains uniform in all the states in Germany. Also, the reach and scope of VOM is expected
to widen.

Slovakia: Mediation in criminal matters, carried out in accordance with Act no. 550/2003 Coll.
about Probation and Mediation Officers is a legally permitted form of dealing with crimes
which aims to settle or at least temper a dispute caused by a criminal offence being committed
and then remove or mitigate its unwanted effects. Mediation is not used to determine the guilt
or innocence of the accused party, however. Mediation in criminal proceedings is mainly used
when criminal charges have been conditionally dropped and/or parties have reached an accord.
In accordance with Act no. 550/2003 Coll. about Probation and Mediation Officers, mediation
in criminal matters may only be carried out by a probation and mediation officer who has the
status of a court official and carries out their activities as a state employee. This act does not
use the term ‘mediator ‘. Act no. 420/2004 Coll. on Mediation states that to be qualified to
carry out mediation and to be eligible for entry to the register of mediators, a person is legally
obliged not only to have a second level university degree but also to have completed an
accredited training course and passed a specialist exam in mediation at an educational
institution which is authorized to offer such an accredited educational programme.

Czech Republic: Here, mediation in penal cases is governed by the Act No. 257/2000 Coll., on
Probation and Mediation Service. There exists no compulsory mediation in Czech law. The
mediation is carried out in penal cases with an aim of integration of offenders, participation of
victims and protection of society. Mediation services are performed in a traditional way. The
state has developed Probation and Mediation Service (PMS) agency which is directed by
Ministry of Justice. Its employees directly promote the development of restorative justice.
Penal mediation is linked with penal procedure and its results are regarded in penal judgements.

The aim of reducing the use of imprisonment is tied to developments in many countries that
seek to effect an overall shift in criminal justice thinking, away from a purely retributive
strategy of inflicting punishment for breaches of the law, towards a rehabilitative, reintegrative
approach (Austria, Belgium, Croatia, France, Hungary, Ireland, Italy, the Netherlands,
Northern Ireland, Portugal, Romania, Scotland, Slovenia, Spain).13

13
See for instance Cavadino/Dignan 2006; 2007

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 V. Conclusion

Taking into account the present dilapidated state of the litigation system, it is needless to
mention that it is unable to cater to the ever-increasing demands of justice. The pendency of
cases, also, does not seem to decline owing to the insufficient number of judges, and lack of
apposite infrastructure. The traditional court system involves myriads of complexities that
makes the process more cumbersome, for instance- recording evidence and submission of
statements consumes a lot of time. Furthermore, such heavy backlog of cases with unnecessary
intricacies grossly affects the qualitative aspect of justice administered. Though as far as civil
disputes are concerned, mediation has turned out to be a benison and its benefits have started
percolating in the society. On the contrary, Indian legal system has been averse to the idea of
adopting mediation in criminal disputes (particularly criminal compoundable disputes). It is an
indubitable fact that just like every other thing even criminal mediation is not immaculate or
perfect. It most certainly has some limitations but it is equally definite that the pros of criminal
mediation heavily outcast the cons. So, these limitations should be taken as challenges by all
the actors (parties, lawyers and community) in the legal system. The parties need to decide if
they wish to determine as to ‘Who is Right’ or ‘What is Right’. It is for the lawyers to
understand that a dispute is a problem which needs to be solved and not contested. Resultantly,
many a times the interests of victims are sacrificed in a spate of deciding cases as per law.
Empirical studies over the past decades have repeatedly shown the limited usefulness of harsh
punishment in reducing crime. These traditional approaches have essentially concentrated on
the use of harsh punishment of offenders as a measure of deterrence. Such an approach has
failed drastically to insure the non-repetition or deterrence of crimes. Whereas, penal
mediation, on the other hand, focuses on reparation of the harm caused by the offenders to the
society and reintegrating them into the society as more responsible citizens. Unfortunately, in
India, there exists a legal vacuum as far as the authority sanctioning the use of mediation in
criminal compoundable cases is concerned. There is no ironclad statutory provision or
precedent which ostensibly enables such mediation. It is extremely difficult for mediation to
proliferate with an apocryphal status. Countries like Canada, Romania, Germany, etc have
already inculcated criminal mediation in their legal system and have started bearing the fruits
of the same. Thus, in order to exploit the potential of mediation of rendering justice speedily
and qualitatively, a lucid and comprehensible legislation needs to be articulated governing
criminal matters.

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