INTRODUCTION

“Justice delayed is justice denied” is one of the most common phrases that comes to mind when the Indian Judicial system is referred to. It indicates that failing to uphold the ideal of prompt justice is equivalent to completely denying the existence of justice. The rule of law and the right of access to justice is protected by Part III of the Indian Constitution, and for it to be strengthened, speedy justice is necessary.1 Speedy justice, however, seems like a distant dream for a country like India, with a backlog of pending cases and an appalling judgepopulation ratio. Realising their role in this backlog and due to an apprehension of spending their entire life in and out of courts, people hesitate to approach the courts to seek justice. Justice S.A. Bobde, the former Chief Justice of India stressed the value of mandatory prelitigation mediation arguing that it not only saves the time of the parties in dispute, but also eliminates the waste of valuable judicial time. 2 However, till date, there is no existence of a separate Statute which governs the process of mediation. The Mediation Bill is currently pending before the Standing Parliamentary Committee of the Rajya Sabha, which if enforced would be India’s rulebook for the process of Mediation. Currently, the process of Mediation in India is promulgated under the Arbitration and Conciliation Act, 1996 and the Code of Civil Procedure, 1908. Section 30 of the Arbitration and Conciliation Act states that “an Arbitral Tribunal may use mediation to encourage settlement of disputes”3 , while Section 89 of the Code of Civil Procedure states that, “courts may refer the parties for mediation if it appears that there exists an element of settlement.”4 The Code however, only deals with civil matters and removes criminal matters from the ambit of mediation. Moreover, both the statutes use the word “may” which only confers a discretionary and not mandatory colour on the provisions. A few questions that arise with regard to the purview of mediation are:

• i. Does the Mediation Bill aim to follow in the footsteps of the Arbitration and Conciliation Act and the Code of Civil Procedure by only subjecting civil matters to mediation, or does it aim to widen the scope of mediation?
• ii. Considering the abundance of Criminal matters that are pending before courts, will speedy justice be delivered by settling these matters through an out of court mediation settlement?
• iii. If criminal matters are allowed to be mediated, will all criminal matters be fit to be settled through mediation? These questions raise moral and ethical dilemmas which the paper attempts to answer.

1 INDIA CONST. Part III, 1985.
2 PTI, CJI Bobde bats for law containing compulsory ‘pre-litigation’ mediation, THE WEEK, Feb. 8, 2020, https://www.theweek.in/news/india/2020/02/08/cji-bobde-bats-for-law-containing-compulsory-pre-litigationmediation.html.
3 The Arbitration and Conciliation Act, 1996, § 30, No. 26, Acts of Parliament, 1996 (India).

PROVISIONS UNDER THE MEDIATION BILL, 2021

The Mediation Bill, 2021 is presently pending before the Standing Parliamentary committee of the Rajya Sabha. The objective of the Bill is to promote and facilitate mediation, especially institutional mediation, for resolution of disputes, commercial or otherwise, enforce mediated settlement agreements, provide for a body for registration of mediators, to encourage community mediation and to make online mediation as acceptable and a cost effective process. Section 7 of the Bill lays down that the First Schedule contains an indicative list of disputes or matters that are not fit for mediation which includes disputes involving prosecution for criminal offences. However, this does not completely rule out the possibility of mediating criminal cases. Section 7 of the bill also contains a proviso which states that if it is deemed appropriate by the court, it shall refer disputes relating to compoundable or matrimonial offences connected with or arising out of civil proceedings between the parties to mediation. When the complainant, who would be considered the victim in criminal cases enters into a bona fide agreement and consents to drop charges against the accused, the offence is considered to be compoundable. According to section 320 of the Code of Criminal Procedure, there are two categories of compoundable offences: those for which the permission of the court is not necessary such as adultery, defamation, and criminal trespass etc. and those for which the court’s permission is necessary such as theft, criminal breach of trust, assault on a woman, etc. Non-compoundable offences, on the other hand are ones that are serious and heinous in nature and for which the criminal cannot be permitted to go free without punishment. The Bill, therefore does not permit for out of court settlement via mediation in heinous offences. However, there exists a very thin line between an offence which would or would not be grave in nature as even some compoundable offences are serious, yet they can and have been subjected to mediation even before the Mediation Bill was introduced.
4 The Code of Civil Procedure, 1908, § 89, No. 5, Acts of Parliament, 1908 (India).
5 The Mediation Bill, 2021, Bill No. XLIII of 2021 (India).
6 The Mediation Bill, 2021, § 7, Bill No. XLIII of 2021 (India).
7 Id.
8 The Code of Criminal Procedure, 1973, § 320, No. 2, Acts of Parliament, 1974 (India)

MEDIATION IN CASES OF DOMESTIC VIOLENCE

Section 498A of the Indian Penal Code deals with matters related to domestic violence and lays down that if the husband or the relative of the husband of a woman subjects such woman to cruelty, he or she shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.9 The offence of domestic violence is thus, a noncompoundable offence. Being grave and serious in nature, the offender cannot get away scot free after having committed this offence. It is an offence which falls into the category of “disputes or matters that are not fit for mediation” under the Mediation Bill. However, in India courts have referred the parties to mediation in resolving matrimonial disputes even in cases of domestic violence. There exist two schools of thought when it comes to mediation of domestic violence cases. On the one hand, mediation has a place in resolving domestic violence conflicts and would be advantageous to the parties and the family structure. While, on the other hand, mediation is not the best course of action for handling domestic violence cases. In Mohd. Mushtaq Ahmad v. State, the wife filed for divorce and registered an FIR under Section 498A IPC against the husband after disagreements developed between the two of them following the birth of a girl child.10 Under Section 89 CPC, the Karnataka High Court ordered the parties to mediate their dispute. The wife decided to revoke the FIR after the dispute was amicably resolved through mediation. According to the court’s ruling, “The court may cancel the criminal proceedings or the FIR or complaint in appropriate instances in order to fulfil the goals of justice.” 11 In this case, it can be seen that a family that was on the verge of falling apart and most likely, would have fallen apart if the matter had proceeded to court was brought back together, after having resolved all their disputes through mediation. Thus, mediation helped the parties in preserving their present and future relationship as compared to the adversarial system. However, on the other hand, it can be argued that after the husband subjected his wife to cruelty either mental or physical, settling of the dispute through mediation was an easy way out for the husband. After having directed the matter to mediation, the husband was no longer seen as the perpetrator or accused, but as a party whose interests would also be taken into consideration to arrive at a possible solution that would be beneficial to the wife as well as to him. By settling the dispute without making the husband face the repercussions of an actual crime committed by him, justice cannot be said to have been served. Even if it is argued that the greater objective of reconciliation of the husband and wife was achieved, there cannot be any guarantee that the husband would not subject his wife to mental or physical cruelty or violence in the future. Thus, the “future relationship” between the parties cannot be guaranteed to have been preserved. In Gurudath K. v. State of Karnataka, the court held that Section 320 CrPC would not be a bar to the exercise of power of quashing of an FIR or criminal complaint in respect to such offences. 12 It was further held that even if the offences are non-compoundable if they relate to matrimonial disputes and the court is satisfied that the parties have resolved the matter amicably, the court can permit the offences to be compounded after determining that the wife was not the subject of any threats or pressure. In this case, the precedent set by the Court was altogether changing the nature of the offence by “permitting the offence to be compounded” that too on the discretion of the court. The seriousness of the offence of domestic violence cannot be undermined by courts and the reason that the offence is denoted in the Penal Code as a non-bailable and non-compoundable offence which is punishable with up to 3 years of imprisonment reiterates the gravity of the offence. While the Mediation Bill does not permit the conversion of offences from non-compoundable to compoundable, Section 7 of the bill is liable to be misused in a similar manner. Discretionary powers are rested upon the court to determine whether the matrimonial offences arising out of civil proceedings between the parties must be referred to mediation. Therefore, incidents of violence arising out of custody of children are matters that would be referred to mediation. However, the courts must not turn a blind eye and refer all matters of domestic violence to mediation in the name of speedy justice. The Supreme Court’s decision in Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd. clarified that, “even when a case is referred to a mediator, the court retains its control and jurisdiction over the matter and the mediation settlement will have to be placed before the court for recording the settlement and disposal.” 13 This demonstrates the Court’s attempts to prevent mediation from being conducted arbitrarily.
9 The Indian Penal Code, 1860, § 498A.
10 Mohd. Mushtaq Ahmad v. State, (2015) 3 AIR Kant R 363.
11 Id.

RESTORATIVE AND RETRIBUTIVE JUSTICE

In the Indian society, as in most societies across the world, when a particular crime is committed, it is considered to have been committed against the society as a whole. Thus, India follows the method of retributive justice which essentially refers to the renovation of justice through the unilateral imposition of punishment. 14 Whereas restorative justice refers to the renovation of justice through a bilateral procedure that reaffirms a shared value-consensus. 15 However, with mediation being used as a method to settle disputes such as domestic violence cases, it can be said that India is taking steps towards the restorative form of justice. The main contention that arises in this regard is whether other non-compoundable offences like domestic violence can be subjected to mediation. The settlements of disputes via mediation in criminal offences is primarily known as Victim Offender Mediation which is achieved by adopting the restorative justice model. The process allows the victims to meet with the offender in the presence of a neutral third party, talk about the impact of the crime and develop a restitution plan that is not based on punishment.16 The mission of VictimOffender Mediation is to support and aid victims while holding offenders accountable and making them fully understand the consequences of their actions.17 The process is dialoguebased and places a strong emphasis on victim empowerment, offender accountability, and loss restitution. In Sweden, victim offender mediation started way back in the 1980s and has continued to gain popularity. In countries like the US, felony mediation is fairly common to address backlogged cases. These mediations have not only successfully resulted in a settlement, but in an increasing number of victim-offender programmes, survivors and victims of gravely violent crimes, such as murder and sexual assault, discover that confronting their offender in a secure environment with a mediator’s help restores their sense of safety and control.18 Examples of this include occasions where parents of children who have been murdered have taken part in Victim Offender Mediation and stated their sense of relief after meeting the offender and sharing their grief.19 A mediated dialogue session in a situation of extreme violence, such a sniper shooting, was found to be very helpful to the victims, offenders, and community members or family members.20 The High Court of South Africa introduced restorative justice principles in the sentencing process in the case of The state vs. Joyce Malileke and others.21 The accused was found guilty of murder. A young person who broke into her house was the victim. Due to the accused’s unemployment, her four minor children and the fact that her main source of income was a child grant, the sentencing of the accused offered unique challenges.22 Moreover, her husband was on administrative leave from the police at the time of his passing, she was a widow and was not eligible for a pension. On the one hand, she committed a heinous crime which included a brutal assault on a young offender who was restrained before the assault and was unable to defend or protect himself. According to the court, there was no indication that the crime may be repeated because the accused was a first-time offender. There was proof that she felt apologetic about the victim’s death. It was held, “She is clearly not a person against whom society needs to be protected.” Just because a person has committed an offence for the first time and regrets the commission of the offence, the offender cannot be given a chance to get away with a heinous crime such as this. In a mediation between the offender and the victim/ parents of the victim, it is not impossible for the offender to pretend that he/ she was apologetic about the crime committed by him/ her. In India, an attempt to achieve victim-offender mediation was observed in the case of Saraswati Singh v. Shailesh Singh in which the maintainability of nine FIRs and a criminal case relating to cheating, criminal breach of trust, forgery, criminal intimidation, assault and robbery were challenged.23 The parties were surprisingly referred to mediation by the court, however, the mediation failed. The Supreme Court then directed the parties to proceed to the High Court for quashing of the cases. It was held by the Supreme Court that “settlements between the criminal and the victim are not enforceable in cases involving major offences like murder, rape, dacoity, etc., as well as other offences of mental depravity under the IPC or offences of moral turpitude under specific statutes like the POCA or POCSO.” 24 While not impossible to bring the parties to mediation in matters of heinous crimes such as rape and murder, it is ethically and morally wrong. The very idea behind mediation is to bring conflicting parties both of whom think the other party is in the wrong, to the table and work out the best possible solution to the dispute. However, in the offences of rape and murder, it is clear that one of the parties is in the wrong. Moreover, one of the most important role of the mediator is to play the role of an impartial and neutral third party who cannot support or favour any one side. In heinous cases, however, the neutral position of the mediator would most definitely be compromised. If the position is not compromised, and he acts as a neutral third person, the victim may feel like he/she is in an hostile environment and may be exposed to further trauma. The mindset and psychological pattern and behaviour of the criminal must be carefully examined and the victim should not be expected to understand that pattern. Moreover, it is wrong to assume that the victim would be fine sitting in the same room as the offender, and at the same time express his/ her emotions about the incident.
12 Gurudath K. v. State of Karnataka, Cr. Petition No. 7258/ 2014, (Karnataka HC).
13 Afcons Infrastructure Ltd. v. Cherian Verkay Construction Co. (P) Ltd., (2010) 8 SCC 24.
14 Michael Wenzel, et al., Retributive and Restorative Justice, 32 L. & HUM. BEHAV. 375, 375-276 (2008).

CONCLUSION

It can be argued that mediation is a great approach to settle a number of disputes and that it may also have been and continue to be used successfully to resolve domestic violence disputes. However, the criteria for determining the matters that can be referred to mediation requires a significant change. Differentiating cases into compoundable and noncompoundable categories is not an effective benchmark for referring them to mediation. Before mediation can begin, each case must pass a thorough screening. Cases involving significant domestic violence abuse should not be referred to mediation. In any victimoffender mediation scenario, there is a chance that the victim may not have equal negotiating power and thus be easily swayed to the wants and advantages of the accused, which, if it does, negates the entire effort. Moreover, even if the offender is ultimately subjected to punishment through the adversarial system, pre-litigation mediation would only cause further trauma and harm to the victim as they would have to interact with the very person who committed a criminal wrong against them. While speedy justice is of the essence especially in a country like India, arbitrary referral of criminal cases to mediation is not the solution. It is imperative to understand that the legal and political atmosphere as well as the overall developmental scenario of India cannot be compared with that of countries like the US, Sweden and South Africa. Thus, the need of the hour is to develop stronger mechanisms to ensure that courts do not exercise wide and unchecked discretionary powers by referring cases that are not fit for mediation to mediation.
15 Id.
16 Burt Galaway, Crime Victim and Offender Mediation as a Social Work Strategy, 62 SOC. SERV. REV. 668-683 (1988).
17 Id.
18 Bhavya Sriram, et al., Towards a Restorative Criminal Justice System: Victim Offender Mediation, 1 NSLR 16 (2005).
19 Id.
20 Id.
21 State v. Joyce Malileke & Ors., Case no. CC 83/04, 13/06/06 (Northern Circuit, Transvaal Provincial Division HC).
22 Id.
23 Saraswati Singh v. Shailesh Singh, (2018) 5 SCC 370.
24 Id.