JUXTAPOSITION OFADR WITH CRIMINAL JUSTICE SYSTEM: A SHIFT TOWARDS RESTORATIVE JUSTICE
Authors: Kanishk and Kunal Agarwal, IV year of B.Com. L.L.B. (Hons.) from Institute of Law, Nirma University
Introduction
Criminal Jurisprudence, unlike Civil Law, treats the commission of an offence as a crime against the State instead of a crime against the victim. The State takes the responsibility upon itself to try and punish the offender. The Accused finds a prominent place in the Criminal Justice System when compared to the Victim and are entitled to a fair trial for the determination of their guilt or innocence. Moreover, the State believes that punishing the offender will act as a deterrent in society, and the frequency of occurrence of crimes would decrease. Surprisingly enough, the scales of justice from the Victim’s standpoint stand poised as no thought process towards the restoration of the victim is disbursed by the State. It works on the Hypothesis that the punishment given to the offender is the only thing that a Victim would ever want. However, on a contrasting note, it’s the balance, if not more, vis-à-vis the interests of the Accused that is needed by the Victim.
Usually, the current system of Litigation takes a huge toll on the Victim. It takes a large amount of time and resources to conclude a case, and that too without the guarantee of correct deliverance of justice. Also, the customary criminal legal system is more oriented towards the Accused rather than also focusing on the Victim or at least balancing the odds. Punishing an offender doesn’t necessarily restore the loss, nor does it answer their questions also fails to heal their wounds or recover them from their tragedy. Hence, the best way to determine what’s best for the Victim is to include the Victim in the process itself, and what’s the better way than ADR.
ADR: A Tool to Introduce Restorative Justice in Criminal Legal System
ADR is a technique of settling disputes outside the court of law without the active involvement of any outsider. It’s a more collaborative approach that allows the parties to comprehend each other’s position in a better way. Arbitration revolves around adjudicating private disputes providing complete autonomy to the parties involved, whereas in the Criminal Justice System, the State restricts the private autonomy for the prioritization of public good. However, just by assuming the role of a parental guardian of the citizens and without the active participation of the public or the concerned victim in the Criminal Trial, the State can never know what the victim was deprived of and what can be done to restore the damages caused.
Secondly, it has been observed that a shift in the principle of punishment from retributive theory (accused-centric) to restorative justice (victim-centric) leads to the more compassionate and responsible character development of the offender. The concept of Restorative justice is based on the principle of repairing the damage caused by the criminal conduct of the offender and restoring the wellbeing of the affected parties. It includes 3 components, i.e., repair, encounter and transform[1]. In other words, a crime committed by an offender harms and disrupts the well-being of the victim. To restore the instability in the life of a victim and repair the harm caused, justice needs to be delivered. The most practical way of delivering the same is allowing the Victim and Offender to come together, converse, and decide consensually because no person or body in the world can determine exactly what the victim of an offence is going through and what needs to be done to repair the harm caused to them.
Thirdly, letting the parties to an offence encounter each other in a conversation has the potential to bring fundamental transformation in the mindset of the offender and society. Lastly, making amends and inculcation of good behaviour by the offender makes them more acceptable by the society and it gets easier for them to reintegrate into society.
Applicability of ADR Techniques in Criminal Justice System
Talking about the techniques, there have been several ways through which the ADR system has gotten or could get itself involved in the criminal justice system. These model system techniques have been recognized worldwide as they try to apply restorative justice to the victim for a sense of responsibility owed by the offender. Some of those model systems are as follows:
1. Victim Impact Panels: The crucial test in this panel is of the reported change in the attitude of the offender. For example, this panel acknowledges the need for a chance that should be given to drunken drivers to recognize the importance of human life, i.e., it looks whether the offender has become more sincere and sensitive, and how the driving behaviour has been altered after the incident. [2]
2. Victim Offender Mediation Programs: The sole purpose of this mediation program is to make the offender and victim sit face-to-face and to get them to indulge in the conversation to realize the impact of crime and devise a plan to repair that. The victim in this mediation process gets the opportunity to tackle their mental trauma or PTSD after the crime, and also is provided with the opportunity to pose questions towards the offender. [3]
3. Community Dispute Resolutions: This resolution is useful for criminal conflicts which are minor and clogging the judicial process with their proceedings. People look for this alternative to settle their dispute rather than going before a judge or magistrate.[4]
4. Private Complaint Mediation Services: These services are used to handle criminal misdemeanour, as they are punishable by fines and it is not a serious offence as a felony. The PCMS acts as an alternative medium for judicial proceedings.
5. Victim Assistance Programs: In these programs, the government helps the victims to overcome the difficulties suffered by the occurrence of a crime such as emotional distress, physical injury, or pecuniary loss. Fines collected from the offenders are used in helping the victim. [5]
There are other methods or programs available besides the above mentioned techniques. One such popular method used in India is Plea Bargaining, which sometimes is also known as a Plea Deal. Plea Bargaining is defined as the mutual agreement between the prosecutor and defendant. Here the defendant admits its guilt in return for some concessions given by the prosecutor. The Judge is also actively involved in the process while a plea deal is being struck among the parties. Plea Deal creates the certainty of the conviction of the offender. Sections 265A to 265L were added by the government in the Code of Criminal Procedure, 1973 to introduce the concept of Plea Bargaining in our criminal legislation.[6] To state the characteristics of the plea deal, there should be withdrawal of one or more charges of the accused for him to plead guilty for the offence, reduction of charge from serious to less serious, and leniency in the sentencing of the punishment by the judge.
Advantages and Limitations
The advantages of preferring ADR over traditional litigation are that the victims and the concerned parties can be saved from the emotional trauma of the lengthy trial, it’s economically feasible, confidential and flexible. On the other hand, while looking through criticisms, it is said that they belittle the role of the judiciary and its process, as it privatizes the crime whereas the offence of criminal activity is against the society, also there is a chance for coercion and the investigation process could lacklustre because of this.
All in all, the methods of ADR in the criminal justice system are met with limitations mostly such as the use of ADR can only be in moderate criminal offences and not in grievous crime offences. Also, for ADR to come into existence pre-requisite of the dispute is important and in criminal cases, there might not be a possibility of the existing dispute if the parties are stranger to each other for example, in case of theft or robbery, rash, and negligent driving, etc. Therefore, implementation of ADR in the criminal justice system is not as easy as it might look, however, the formation of a proper outline of its applicability in Criminal Law might help us with its usage.
Conclusion
On a concluding note, ADR has experienced significant growth as an out-of-court resolution mechanism. An enormous backlog of cases resulting in an immense delay in clearance of pending cases has eventually eroded the faith of the public in the traditional criminal justice system of our country or even across the world. In light of the financial and infrastructural restraints that the general public faces, the role of ADR in the criminal justice system becomes of paramount importance. Also, it can be observed that Restorative Justice focuses on restoring the welfare of the parties by either reinstating their relationship or repairing the damage caused. Thus, ADR as a dispute resolution mechanism crystallizes on the same principle and thus shall be considered as a perfect tool for maintaining a harmonious relationship between the concerned parties and assisting in the practical applicability of restorative justice in the criminal justice system.
[1]Lesson 1: What Is Restorative Justice? | Restorative Justice
[4]Community Dispute Resolution (CDR) | Beyond Intractability
[5]Victim Assistance | Indian Affairs (bia.gov)
[6]THE CRIMINAL LAW BILL.doc (prsindia.org)