From UPSC perspective, the following things are important :
Prelims level : Section 498A
Mains level : Paper 2-Mediation Bill 2021
The Mediation Bill, 2021 was introduced in Parliament in December 2021. It seeks to ‘promote mediation (including online), and provide for enforcement of settlement agreements resulting from mediation’.
Need to popularise mediation
- The Chief Justice of India (CJI), N.V. Ramana, had said that mediation should be made mandatory as a first step in dispute resolution and that a law should be framed in this regard.
- He emphasised the point that a movement needs to be launched to popularise mediation as it was a cheaper and faster dispute resolution mechanism.
- He said that courts should be the last resort for dispute resolution; therefore, one should explore the options of alternate dispute resolution.
- The Tamil Nadu Mediation and Conciliation Centre, an initiative of the Madras High Court and India’s first court-annexed facility with a mediation centre in every district, has significantly reduced the pendency of referred cases.
Which laws in India allow mediation?
- Mediation finds legitimacy in some specific laws such as:
- The Code of Civil Procedure, 1908, the Arbitration and Conciliation Act, 1996,
- The Companies Act, 2013,
- The Commercial Courts Act, 2015,
- The Consumer Protection Act, 2019,
- However, there is no standalone legislation as yet.
How the provisions of Mediation Bill 2021 will help in improving the law and order situation
- The bill seeks to promote mediation (including online), and provide for enforcement of settlement agreements resulting from mediation’.
- In case of civil or commercial disputes, a person must try to settle the dispute by mediation before approaching a court or tribunal.
- Improving the law and order situation: There are certain provisions in the Bill which may help in improving the law and order situation in a locality and/or encourage compounding of criminal offences.
- First, Section 7 of the Bill says that courts will be competent to refer any dispute to mediation relating to compoundable offences or matrimonial offences connected with or arising out of civil proceedings between the parties.
- Second, Section 44 of the Bill provides for ‘any dispute likely to affect peace, harmony and tranquillity amongst the residents or families of any area or locality, to be settled through community mediation.
- Third, the provisions of the Act shall not have the overriding effect, inter alia, on the Maintenance and Welfare of Parents and Senior Citizen Act, 2007 and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
- Promote friendliness: Section 320 in the Code Of Criminal Procedure (CrPC) provides for the compounding of certain criminal offences which shall have the effect of acquittal of the accused.
- Here, the policy of the law is to promote friendliness between the parties so that peace between them is restored.
- Relieving the pressure on the police: Many criminal offences are a result of the fact that civil or commercial disputes could not be resolved amicably and in time.
- The police at times take minor cases lightly or reduce the seriousness of crime by converting a cognisable offence into a non-cognisable one.
- Therefore, the proposed law of mediation, that has the mechanism of not only preventing the breakdown of law and order through community intervention but also the competence to smoothen the route to compounding of certain criminal offences, may ultimately relieve some of the pressure on the police also.
Some laws are left out of the scope of Mediation Bill 2021
- Law to prevent sexual harassment of women at workplace: The law to prevent the sexual harassment of women at the workplace has probably been kept out of its scope so that an internal or local complaint committee is able to take up conciliation and close the case locally without involving a third party and detailed procedure.
- Law on welfare of parents and senior citizens: The law on the maintenance and the welfare of parents and senior citizens has also been kept out of its scope as offences under it are cognisable offences.
- The Supreme Court’s view: The Supreme Court of India has held that if there is a composition of an offence during investigation, the parties can either approach the court or the police.
- Increasing the compoundable offences: The number of offences that can be compounded may also be increased — particularly property offences.
- Keeping in view the recommendations of the Law Commission in its 243rd report, Section 498A of the Indian Penal Code, relating to cruelty by the husband or his relatives, can also be made compoundable.
- It may have far-reaching consequences in resolving matrimonial disputes.
Consider the question “What are the provisions of the Mediation Bill 2021 that could help relieve some of the pressure on law enforcement agencies?”
Though the proposed law primarily intends to resolve civil and commercial disputes through mediation, it has ample scope to relieve some of the pressure on law enforcement agencies.
Back2Basics: What is a Compoundable and Non Compoundable offence in India
- Compoundable offences are those offences where, the complainant (one who has filed the case, i.e. the victim), enter into a compromise, and agrees to have the charges dropped against the accused.
- However, such a compromise should be a “Bonafide,” and not for any consideration to which the complainant is not entitled to.
- Compoundable offences are less serious criminal offences and are of two different types mentioned in tables in Section 320 of the Criminal Procedure Code, as follows:
- Court permission is not required: These are the offences, compounding of which do not require prior permission of the court.
- Court permission is required: These are the offences, compounding of which require prior permission of the court.