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Report No. 189

Alternative Dispute Resolution and Plea Bargaining

Today, it is universally recognized that the Courts may not merely adjudicate in civil disputes but also persuade parties to go for arbitration, conciliation, mediation or Lok Adalats. Courts are no longer mere centres for adjudication of disputes but are also centres for promoting settlement. Court-annexed systems can even compel parties to try these alternative modes. Section 89 of the Code of Civil Procedure, 1908 (as introduced w.e.f. 1.7.2000) is part of such a policy. In the US, more than 90% of civil cases are settled through mediation and do not go for trial. Lawyers who promote mediation are the lawyers most in demand. Mediation centres are now coming up in a big way in India, a start is made in Mumbai, Ahmedabad, Chennai and other places by voluntary groups of lawyers.

Plea bargaining in criminal cases has been recommended by the Law Commission in its 154th Report on Criminal Procedure Code, 1973 and also in 177th Report on 'Law Relating to Arrest' and the Bill, namely, "The Criminal Law (Amendment) Bill, 2003" is pending in Parliament. This means that those accused who confess before Court may plead for reduced sentences. In Bihar Legal Support Society v. The Chief Justice of India & Ors, (AIR 1987 SC 38), the Supreme Court observed:

"the weaker sections of Indian society have been deprived of justice for long long years; they have had no access to justice on account of their poverty, ignorance and illiteracy. The majority of the people of our country are subjected to this denial of 'access to justice' and overtaken by despair and helplessness, they continue to remain victims of an exploitative society where economic power is concentrated in the hands of a few and it is used for perpetuation of domination over large masses of human beings. The strategy of public interest litigation has been evolved by this Court with a view to bringing justice within the easy reach of the poor and disadvantaged sections of the community."

The famous dictum of Justice Brennan of the US Supreme Court may also be recalled:

"Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with, but injustice makes us want to pull things down. When only the rich can enjoy the law, as a doubtful luxury, and the poor who need it most, cannot have it because its expense puts it beyond their reach, the threat to the existence of free democracy is not imaginary but very real, because democracy's very life depends upon making the machinery of justice so effective that every citizen shall believe in the benefit of impartiality and fairness."

The right of access to justice is integral to the rule of law and administration of courts in accordance with the Constitution. It serves as the guiding principle in regard to any measure that affects the administration of justicewhether civil or criminal. The socio-economic realities of our country have thus far impacted every measure of legal reform. It assumes even greater significance when it involves an element of economic and financial reform. With this essential understanding of the basic issue of access to justice, we proceed to examine the central issues that we have posed for consideration in Chapter I (supra).

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