States function through different organs and the judiciary is one that is directly responsible for the administration of justice. In commonplace perception judiciary is the tangible delivery point of justice. Resolving disputes is fundamental to the peaceful existence of society. Therefore, effective and efficient systems for determination of disputes become an obvious appendage. The world has experienced that adversarial litigation is not the only means of resolving disputes. Congestion in court rooms, lack of manpower and resources in addition with delay, cost, and procedure speak out the need of better options, approaches and avenues. Alternative Dispute Resolution mechanism is a click to that option.
Speedy disposal of cases is an important issue for all concerned with the proper administration of justice. Alternate Dispute Resolution is a less adversarial alternative to traditional litigation system. These methods can be employed in all those cases that can be litigated, such as disputes relating to insurance, trade, technology, divorce and other family matters etc. Alternate Dispute Resolution is not open to public, all hearings and awards are private and confidential. Common man gets trapped in year long litigation processes, which erodes the very purpose of delivery of justice. Common man with development in the sphere of Alternate Dispute Resolution will be provided with an opportunity to showcase their dispute, as well as reach resolution amicably, in a suitable and congenial atmosphere, without falling deep into the complexities of litigation.
Justice is the foundation and object of any civilized society. The quest for justice has been an ideal which mankind has been aspiring for generations down the line. Preamble to our Constitution reflects such aspiration as “justice-social, economic and political”. Article 39-A of the Constitution provides for ensuring equal access to justice. Administration of Justice involves protection of the innocent, punishment of the guilty and the satisfactory resolution of disputes.
ALTERNATIVE DISPUTE RESOLUTION: An Indian Perspective
Traditional concept of “access to justice” as understood by common man is access to courts of law. For a common man a court is the place where justice is meted out to him/her. But the courts have become inaccessible due to various barriers such as poverty, social and political backwardness, illiteracy, ignorance, procedural formalities and the like.
Further a large part of the population in India is illiterate and live in abject poverty.
Therefore, they are totally ignorant about the court-procedures, are terrified and confused when faced with the judicial machinery. Thus, most of the citizens of India are not in a position to enforce their rights, constitutional or legal, which in effect generates inequality.
It is one of the most important duties of a welfare state to provide judicial and non-judicial dispute-resolution mechanisms to which all citizens have equal access for resolution of their legal disputes and enforcement of their fundamental and legal rights. Poverty, ignorance or social inequalities should not become barriers to it. The Maneka Gandhiprinciple, as enunciated by the Indian Supreme Court, that fundamental rights do not constitute separate islands unto themselves but constitute a continent ushered in what Krishna Iyer, J. terms the jurisprudence of access to justice. He said:
“We should expand the jurisprudence of Access to Justice as an integral part of Social Justice and examine the constitutionalism of court-fee levy as a facet of human rights highlighted in our Nation’s Constitution. If the State itself should travesty this basic principle, in the teeth of Articles 14 and 39A, where an indigent widow is involved, a second look at its policy is overdue. The Court must give the benefit of doubt against levy of a price to enter the temple of justice until one day the whole issue of the validity of profit-making through sale of civil justice, disguised as court-fee is fully reviewed by this Court”.
The Statement of Objects and Reasons appended to the Bill preceding the Legal services Authorities (Amendment) Act 2002 points out that the system of Lok Adalat, which is an innovative mechanism for alternate dispute resolution, has proved effective for resolving disputes in a spirit of conciliation outside the courts.
It is heartening to note that the Parliament has very recently enacted the Gram Nyayalayas Act 2008. Justice to the poor at their doorstep as the common man’s dream is sought to be achieved through the setting up of Gram Nyayalayas which will travel from place to place to bring to the people of rural areas speedy, affordable and substantial justice.
Article 21 of the Constitution of India declares in a mandatory tone that ‘no person shall be deprived of his life or his personal liberty except according to procedure established by law.’ The words “life and liberty” are not to be read narrowly in the sense drearily dictated by dictionaries; they are organic terms to be construed meaningfully. Further, the procedure mentioned in the Article is not some semblance of a procedure but it should be “reasonable, fair and just”. Thus, the Right to Speedy Trial has been rightly held to be a part of Right to Life or Personal Liberty by the Supreme Court of India. The Supreme Court has allowed Article 21 to stretch its arms as wide as it legitimately can. The reason is very simple. This liberal interpretation of Article 21 is to redress that mental agony, expense and strain which a person proceeded against in criminal law has to undergo and which, coupled with delay, may result in impairing the capability or ability of the accused to defend himself effectively. Thus, the Supreme Court has held the Right to Speedy Trial a manifestation of fair, just and reasonable procedure enshrined in Article 21.The Constitutional philosophy propounded as Right to Speedy Trial has though grown in age by almost two and a half decades; the goal sought to be achieved is yet a far-off peak. The failures of prosecuting agencies and executive to act and to secure expeditious and speedy trial have persuaded the Supreme Court in devising solutions which go to the extent of almost enacting by judicial verdict bars of limitation beyond which the trial shall not proceed and the arm of law shall lose its hold. The validity or justness of those decisions is not the matter to be decided but the seriousness of delay in the conclusion of criminal and civil matters must be appreciated at the earliest. This seriousness was appreciated and accepted by many , including the Constitutional Courts , long before. The same has got recognition from the “legislature” as well in the form of introduction of “Alternative Dispute Resolution” (ADR) Mechanism (ADRM) through various statutes.
There is a growing awareness among the masses as well regarding ADR and people are increasingly using the same for getting their disputes settled outside the court. This will also reduce the “backlog problem’ that India is facing. It is now universally accredited that ‘Justice delayed is Justice denied’. The existing justice system is not able to cope up with the ever-increasing burden of civil and criminal litigation. There is growing awareness that in the majority of cases court action is not an appropriate remedy for seeking justice. We have to formulate effective ADR Mechanisms to ease the burden of judicial functioning. The backlog of cases is increasing day by day but criticizing judiciary for the same is a wrong practice. It must be noted that the backlog is a product of “inadequate judge population ratio” and the lack of basic infrastructure. The government has to play a pro-active role in this direction.
The growth of A.D.R in the last few decades on the one hand reflects disenchantment with the formal justice system characterized by delays and on the other an effort to promote a less formal dispute resolution mechanism. This development is not the outcome of any juristic philosophy. Rather it was necessitated by the growth of commercial litigation needing speedy resolution, by the ever increasing volume of court work, by court dockets becoming heavier and by the judge/case ratio becoming imbalanced on account of limited resources.
CAN’T WE STRIVE FOR BETTER ‘ACCESS TO JUSTICE’?
This has been rightly said that: ‘An effective judicial system requires not only that just results be reached but that they be reached swiftly.’ But the currently available infrastructure of courts in India is not adequate to settle the growing litigation within reasonable time. Despite the continual efforts, a common man may sometimes find himself entrapped in litigation for as long as a life time, and sometimes litigation carries on even on to the next generation. In the process, he may dry up his resources, apart from suffering harassment. Thus, there is a chain reaction of litigation process and civil cases may even give rise to criminal cases. Speedy disposal of cases and delivery of quality justice is an enduring agenda for all who are concerned with administration of justice.
In this context, there is an imminent need to supplement the current infrastructure of courts by means of Alternative Dispute Resolution (ADR) mechanisms. Apart from bringing efficiency in working of the judiciary, measures are being taken all over the world for availing ADR systems for resolving pending disputes as well as at pre-litigation stage. Efforts towards ADR have met with considerable success and good results elsewhere in the world, especially in the litigation-heavy United States, where professional teams of mediators and conciliators have productively supplemented the dispute resolution and adjudication process.
In 1995 the International Center for Alternative Dispute Resolution (ICADR) was inaugurated by Shri P.V.Narasimha Rao, the Prime Minister of India had observed:
While reforms in the judicial sector should be undertaken with necessary speed, it does not appear that courts and tribunals will be in a position to hear the entire burden of the justice system. It is incumbent on government to provide a reasonable cost as many modes of settlements of disputes as are necessary to cover the variety of disputes that arise. Litigants should be encouraged to resort to alternative dispute resolution sot hat the court system proper would be left with a smaller number of important disputes that demand judicial attention.
WHAT IS ALTERNATIVE DISPUTE RESOLUTION SYSTEM?
ADR is not a recent phenomenon as the concept of parties settling their disputes themselves or with the help of third party, is very well-known to ancient India. Disputes were peacefully decided by the intervention of Kulas (family assemblies), Srenis (guild so men of similar occupation), Parishad, etc.,
The primary object of ADR movement is avoidance of vexation, expense and delay and promotion of the ideal of “access of justice” for all. ADR system seeks to provide cheap, simple, quick and accessible justice.
There are two different ways to adopt the process of Alternate Dispute Resolution :
I. Alternate Dispute Resolution with filing of a lawsuit: In this case by way of mediation, conciliation etc either the judge or some court officer will make an attempt to resolve the disputes between the parties and reach an amicable settlement. If the positive happens case is dismissed thereby saving the time of the court and expenses of the parties. The very practice has been followed via system of Lok Adalats in India.
II. Alternate Dispute Resolution by way of free standing: This is generally the case of commercial arbitration, where the parties to the dispute agree, not only to have a third party as their arbitrator, but also agrees to what rules shall be binding and whether the decision of the third party will be either binding or advisory in nature.
Alternate Dispute Resolution picked up pace in the country, with the coming of the East India Company, Bengal Resolution Act, 1772 and Bengal Regulation Act, 1781 provided parties to submit the dispute to the arbitrator, appointed after mutual agreement and whose verdict shall be binding on both the parties . The Regulating Act, 1781 mentioned that judges should recommend parties to Alternate Dispute Resolution methods, no award of arbitrator could be set aside unless there are two witnesses to the fact that arbitrator had committed an error . In case of Guru Nanak Foundation v. Rattan & Sons Court observed that, “Interminable, time consuming, complex and expensive court procedures impelled jurists to search for an alternative forum, less formal, more effective and speedy for resolution of disputes avoiding procedure claptrap”.
Alternate Dispute Resolution in India gained importance under Arbitration Act, 1940, while sometime later Arbitration and Conciliation Act, 1996 was passed in consonance with UNCITRAL Model Law of Arbitration, which brought the nation, on an international platform. The need arose as there was no provision in the Indian Arbitration Act, 1940 to resolve a dispute between an Indian and a non Indian; it caused difficulties to refer such matter for arbitration For the sake of convenience and uniformity, most of the countries have based their legislation on UNCITRAL Model Law, as this law gives the binding force to arbitral award and lays down various rights and duties for commercial parties handling disputes. Some important International Conventions on Arbitration are: The Geneva Protocol on Arbitration Clauses, 1923, the Geneva Convention on the Execution of Foreign Award, 1927, the New York Convention of 1958 on the recognition and Enforcement of Foreign Arbitral Award.
The concept of Conciliation was introduced in the statute of Industrial Disputes Act, 1947. The Conciliation is generally conducted by an officer appointed by Government under Industrial Disputes Act, 1947. Industrial Disputes Act, 1947 provides provisions for the parties to settle disputes through Negotiation, Mediation and Conciliation, for example Section 12, Section 18, etc. Alternate Dispute Resolution plays a major role in the family disputes settlement. Section 5 of the Family Court Act, 1984 provides provisions for the association of social welfare organizations to hold Family Courts under control of government. Section 6 of the Act provide for appointment of permanent counselors to enforce settlement decisions in the family matters. Further Section 9 of the Act imposes an obligation on the court to make effort for the settlement before taking evidence in the case. In addition to all provisions referred above, Indian Contract Act, 1872 most importantly gives a mention about Arbitration Agreement as an exception to Section 28 that renders an agreement void if it restrains a legal proceeding. Alternate Dispute Resolution whether sorted for or not can be easily inferred from presence or absence of the ‘Arbitration clause’.
Alternate Dispute Resolution procedures are mostly divided into two segments: Adjudicatory and Non Adjudicatory. In case of adjudicatory process case reaches a stage where decision gets a binding effect, for example in case of arbitration. And the other is non-adjudicatory; it contributes to resolution without adjudication, such as process of Negotiation, Mediation etc
Section 89 was introduced to Civil Procedure Code which formulates four methods to settle disputes outside the court namely, Arbitration, Conciliation, Mediation and Lok Adalats. In case of Advocate Bar Association v. UOI Supreme Court directed the setting up of committee that would look into the implementation of various provisions, including Section 89. Section 89(1) of Civil Procedure Code provides for settlement of disputes outside court. There are certain lacunas in this sections that goes unnoticed, firstly whether reference by court to Alternate Dispute Resolution is discretionary or mandatory, secondly, few details in relation to opinion of expert mediators, conciliators incentives, compensation and much more are less comprehensive and explanatory . Alternate Dispute Resolution received recognition after enactment of Civil Procedure Code, 1859 it provides various related sections as, Section 312-325 lays down the procedure of Arbitration and Section 326-327 provides for Arbitration without courts intervention . It can be mentioned that various methods and processes have been incorporated in Indian legal system to achieve speedy disposal of cases, the concept of Alternative Dispute Resolution is a western approach where as Lok Adalat one of its specie is purely a national concept.
Alternate Dispute Resolution is more of corporate friendly, commercial parties enter into contract with Arbitration Clause. Most of the companies resort to Alternate Dispute Resolution, as it is less complicated, least expensive and most importantly confidential. Litigation takes year’s long time with bundled up procedures which affects the working processes of the companies, causing uncertainties in financial sphere of their commercial sectors. Due to development of trade at an International level it has become difficult for the corporate sector to maintain pace with traditional ways of litigation. Companies are desperate to get the dispute resolved outside court, as it is beneficial to them in all ways.
Resolution can be of great advantage to common man yet the idea doesn’t acclimatize in all the developing countries of the world, as it contradicts with the domestic laws of that country, special care must be taken that the resolution reached, must depend upon honesty, trust, so as not to loosen ties of subsisting relationship and moreover, courts lack command to submit disputes to Alternate Dispute Resolution Methods. Various steps have been taken to make the process of Alternate
Justice warren Burger, the former CJI of American Supreme Court had observed:
“the harsh truth is that we may be on our way to a society overrun by hordes of lawyers, hungry as locusts, and bridges of Judges in numbers never before contemplated. The notion-that ordinary people want black robed judges well-dressed lawyers, fine paneled court rooms as the setting to resolve their disputes, is not correct. People with legal problems like people with pain, want relief and they want it as quickly and inexpensively as possible”.
LEGISLATIVE EFFORTS IN INDIA
In Sitanna v. Viranna, , the Privy Council affirmed the decision of the Panchayat and Sir John Wallis observed that the reference to a village panchayat is the time-honoured method of deciding disputes. It avoids protracted litigation and is based on the ground realities verified in person by the adjudicators and the award is fair and honest settlement of doubtful claims based on legal and moral grounds.
The legislative sensitivity towards providing a speedy and efficacious justice in India is mainly reflected in two enactments. The first one is the Arbitration and Conciliation Act, 1996 and the second one is the incorporation of section 89 in the traditional Civil Procedure Code (CPC).
The adoption of the liberalized economic policy by India in 1991 has paved way for integration of Indian economy with global economy. This resulted in the enactment of the Arbitration and Conciliation Act, 1996 (new Act) by the legislature as India had to comply with well-accepted International norms. It superseded the obsolete and cumbersome Arbitration Act, 1940. The new Act has made radical and uplifting changes in the law of arbitration and has introduced new concepts like conciliation to curb delays and bring about speedier settlement of commercial disputes. The new Act has been codified on the lines of the Model Law on International Commercial Arbitration as adopted by the United Nations Commission on International Trade Law (UNCITRAL). One of the most commendable objects of the new Act is to minimize the role of the courts in the arbitration process. The Arbitration and Conciliation Act, 1996 laid down the minimum standards, which are required for an effective ADRM.
Further, the recent amendments of the CPC will give a boost to ADR. Section 89 (1) of CPC deals with the settlement of disputes outside the court. It provides that where it appears to the court that there exist elements, which may be acceptable to the parties, the court may formulate the terms of a possible settlement and refer the same for arbitration, conciliation, mediation or judicial settlement. While upholding the validity of the CPC amendments in Salem Advocate Bar Association v. U.O.I, the Supreme Court had directed the constitution of an expert committee to formulate the manner in which section 89 and other provisions introduced in CPC have to be brought into operation. The Court also directed to devise a model case management formula as well as rules and regulations, which should be followed while taking recourse to alternative dispute redressal referred to in Section 89 of CPC. All these efforts are aimed at securing the valuable right to speedy trial to the litigants.
ADR was at one point of time considered to be a voluntary act on the apart of the parties which has obtained statutory recognition in terms of CPC Amendment Act, 1999, Arbitration and Conciliation Act, 1996, Legal Services Authorities Act, 1997 and Legal Services Authorities (Amendment) Act, 2002. The access to justice is a human right and fair trial is also a human right. In India, it is a Constitutional obligation in terms of Art.14 and 21. Recourse to ADR as a means to have access to justice may, therefore, have to be considered as a human right problem. Considered in that context the judiciary will have an important role to play.
The Supreme Court of India has also suggested making ADR as ‘a part of a package system designed to meet the needs of the consumers of justice’. The pressure on the judiciary due to large number of pending cases has always been a matter of concern as that being an obvious cause of delay. The culture of establishment of special courts and tribunals has been pointed out by the SC of India in number of cases. The rationale for such an establishment ostensibly was speedy and efficacious disposal of certain types of offences.
Industrial Disputes Act, 1947 provides the provision both for conciliation and arbitration for the purpose of settlement of disputes. In Rajasthan State Road Transport Corporation v. Krishna Kant , the Supreme Court observed: “The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute-resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and unencumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to civil courts. Indeed, the powers of the courts and tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute.”
Section 23(2) of the Hindu Marriage Act, 1955 mandates the duty on the court that before granting relief under this Act, the Court shall in the first instance; make an endeavor to bring about reconciliation between the parties, where it is possible according to nature and circumstances of the case. For the purpose of reconciliation the Court may adjourn the proceeding for a reasonable period and refer the matter to person nominated by court or parties with the direction to report to the court as to the result of the reconciliation. [Section 23(3) of the Act].
The Family Court Act, 1984 was enacted to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matter connected therewith by adopting an approach radically different from the ordinary civil proceedings . Section 9 of the Family Courts Act, 1984 lays down the duty of the family Court to assist and persuade the parties, at first instance, in arriving at a settlement in respect of subject matter. The Family Court has also been conferred with the power to adjourn the proceedings for any reasonable period to enable attempts to be made to effect settlement if there is a reasonable possibility.
Shri M.C.Setalvad, former Attorney General of India has observed: “….equality is the basis of all modern systems of jurisprudence and administration of justice… in so far as a person is unable to obtain access to a court of law for having his wrongs redressed or for defending himself against a criminal charge, justice becomes unequal …Unless some provision is made for assisting the poor men for the payment of Court fees and lawyer’s fees and other incidental costs of litigation, he is denied equality in the opportunity to seek justice.”
AN ANALYSIS ON EVOLUTION OF ADR MECHANISMS IN INDIAN JUDICIARY
ADR was at one point of time considered to be a voluntary act on the apart of the parties which has obtained statutory recognition in terms of CPC Amendment Act, 1999, Arbitration and Conciliation Act, 1996, Legal Services Authorities Act, 1997 and Legal Services Authorities (Amendment) Act, 2002. The Parliament apart from litigants and the general public as also the statutory authorities Like Legal Services Authority have now thrown the ball into the court of the judiciary. What therefore, now is required would be implementation of the Parliamentary object. The access to justice is a human right and fair trial is also a human right. In some countries trial within a reasonable time is a part of the human right legislation. But, in our country, it is a Constitutional obligation in terms of Art.14 and 21. Recourse to ADR as a means to have access to justice may, therefore, have to be considered as a human right problem. Considered in that context the judiciary will have an important role to play.
Even before the existence of Section 89 of the Civil Procedure Code (CPC), there were various provisions that gave the power to the courts to refer disputes to mediation, which sadly have not really been utilized. Such provisions, inter alia, are in the Industrial Disputes Act, the Hindu Marriage Act and the Family Courts Act and also present in a very nascent form via Section 80, Order 32 A and Rule 5 B of Order 27 of the CPC. A trend of this line of thought can also be seen in ONGC Vs. Western Co. of Northern America and ONGC Vs. Saw Pipes Ltd.
Industrial Disputes Act, 1947 provides the provision both for conciliation and arbitration for the purpose of settlement of disputes.
Section 23(2) of the Hindu Marriage Act, 1955 mandates the duty on the court that before granting relief under this Act, the Court shall in the first instance, make an endeavour to bring about a reconciliation between the parties, where it is possible according to nature and circumstances of the case.
For the purpose of reconciliation the Court may adjourn the proceeding for a reasonable period and refer the matter to person nominated by court or parties with the direction to report to the court as to the result of the reconciliation. [section 23(3) of the Act].
The Family Court Act, 1984 was enacted to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matter connected therewith by adopting an approach radically different from that ordinary civil proceedings. [K.A.Abdul Jalees v. T.A.Sahida].Section 9 of the Family Courts Act, 1984 lays down the duty of the family Court to assist and persuade the parties, at first instance, in arriving at a settlement in respect of subject matter.
The Family Court has also been conferred with the power to adjourn the proceedings for any reasonable period to enable attempts to be made to effect settlement if there is a reasonable possibility.
Section 80(1) of Code of Civil Procedure lays down that no suit shall be instituted against government or public officer unless a notice has been delivered at the government office stating the cause of action, name, etc. The object of Section 80 of CPC – the whole object of serving notice u/s 80 is to give the government sufficient warning of the case which is of going to be instituted against it and that the government, if it so wished can settle the claim without litigation or afford restitution without recourse to a court of laws [Ghanshyam Dass v. Domination of India].
The object of s.80 is to give the government the opportunity to consider its or his legal position and if that course if justified to make amends or settle the claim out of court. – [Raghunath Das v. UOI]
Order 23 Rule 3 of CPC is a provision for making a decree on any lawful agreement or compromise between the parties during the pendency of the suit by which claim is satisfied or adjusted. The scheme of Rule 3 of Order 23 proves that if the court is satisfied that a suit has been adjusted wholly or partly by and lawful agreement or compromise, the court shall pass a decree in accordance to that. Order 23, Rule 3 gives mandate to the Court to record a lawful adjustment or compromise and pass a decree in term of such compromise or adjustment.
Order 27 Rule 5B confers a duty on court in suit against the government or a public officer to assist in arriving at a settlement. In a suit where Government or public officer is a party it shall be the duty of the Court to make an endeavour at first instance, where it is possible according to the nature of the case, to assist the parties in arriving at a settlement.
If it appears to the court in any stage of the proceedings that there is a reasonable possibility of a settlement, the court may adjourn the proceeding to enable attempts to be made to effect settlement.
Order 32A of CPC lays down the provision relating to “suits relating to matter concerning the family”. It was felt that ordinary judicial procedure is not ideally suited to the sensitive area of personal relationships. Litigations involving affairs of the family seem to require special approach in view of the serious emotional aspects involved. In this circumstances, the objective of family counseling as a method of achieving the object of preservation of family should be kept in forefront. Therefore, Order 32A seeks to highlight the need for adopting a different approach where matters concerning the family are at issue, including the need for effort to bring about amicable settlement.
The provisions of this Order applies to all proceedings relating to family, like guardianship, custody of minor, maintenance, wills, succession, etc.,
Rule 3 imposes a duty on the Court to make an effort of settlement by way of providing assistance where it is possible to do so. The Court may also adjourns the proceeding if it thinks fir to enable attempt to be made to effect a settlement where there is a reasonable possibility of settlement. In discharge of this duty Court may take assistance of welfare expert who is engaged in promoting the welfare of the family. [Rule 4] The concept of employing ADR has undergone a sea change with the insertion of S.89 of CPC by amendment in 2002. As regards the actual content, s.89 of CPC lays down that where it appears to the court that there exists element of settlement, which may be acceptable to the parties, the Court shall formulate the terms of the settlement and give them to the parties for their comments. On receiving the response from the parties, the Court may formulate the possible settlement and refer it to either:- Arbitration, Conciliation; Judicial Settlement including settlement through Lok Adalats; or Mediation. As per sub-section (2) of Section 89, when a dispute is referred to arbitration and conciliation, the provisions of Arbitration and Conciliation Act will apply. When the
Court refers the dispute of Lok Adalats for settlement by an institution or person, the Legal Services Authorities, Act, 1987 alone shall apply.
Supreme Court started issuing various directions as so as to see that the public sector undertakings of the Central Govt. and their counterparts in the States should not fight their litigation in court by spending money on fees on counsel, court fees, procedural expenses and waiting public time. (see Oil and Natural Gas Commission v. Collector of Central Excise, Oil and Natural Gas Commission v. Collector of Central Excise, and Chief Conservator of Forests v. Collector).
In ONGC v. Collector of Central Excise,[ ONGC I] there was a disputes between the public sector undertaking and GOI involving principles to be examined at the highest governmental level. Court held it should not be brought before the Court wasting public money any time. In ONGC v. Collector of Central Excise, (ONGC II) dispute was between govt. dept and PSU. Report was submitted by cabinet secretary pursuant to SC order indicating that instructions has been issued to all depts. It was held that public undertaking to resolve the disputes amicably by mutual consultation in or through or good offices empowered agencies of govt. or arbitration avoiding litigation. GOI directed to constitute a committee consisting of representatives of different depts. To monitor such disputes and to ensure that no litigation comes to court or tribunal without the Committee’s prior examination and clearance. The order was directed to communicate to every HC for information to all subordinate courts. In Chief Conservator of Forests v. Collector ONGC I AND II were relied on and it was said that state/union govt. must evolve a mechanism for resolving interdepartmental controversies- disputes between dept. of Govt cannot be contested in court.
In Punjab & Sind Bank v. Allahabad Bank, it was held that the direction of the Supreme Court in ONGC III, to the govt. to set up committee to monitor disputes between government departments and public sector undertakings make it clear that the machinery contemplated is only to ensure that no litigation comes to court without the parties having had an opportunity of conciliation before an in-house committee.
In the judgment of the Supreme Court of India in Salem Bar Association vs. Union of India, the Supreme Court has requested prepare model rules for ADR and also draft rules of mediation under section 89(2)(d) of Code of Civil Procedure, 1908. The rule is framed as “Alternative Dispute Resolution and Mediation Rules, 2003”.
Rule 4 of the Alternative Dispute Resolution and Mediation Rules, 2003”, lays down that the Court has to give guidance to parties (when parties are opting for any mode of ADR ) by drawing their attention to the relevant factors which parties will have to take into account, before they exercise their opinion as to the particular mode of settlement, namely;
(i) it will be to the advantage of the parties, so far as time and expense are concerned, to opt for one of these modes of settlement rather than seek a trial on the disputes arising in the suit;
(ii) where there is no relation between the parties which requires to be presented it will be in the interests of the parties to seek reference of the matter to arbitration as envisaged in clause (1) of sub-section (1) of sec.89.
(iii) where there is a relationships between the parties which requires to be preserved, it will be in the interests of the parties to seek reference of the matter to conciliation or mediation, as envisaged in clauses (b) or (d) of sub-section (1) of sec.89.
The Rule also says that Disputes arising in matrimonial, maintenance and child custody matters shall, among others, be treated as cases where a relationship between the parties has to be preserved.
(iv)where parties are interested in a final settlement which may lead to a compromise, it will be in the interests of the parties to seek reference of the matter to judicial settlement including Lok Adalat as envisaged in clause (c) of sub-section(1) of section 89.
According to Rule 8, the provisions of these Rules may be applied to proceedings before the Courts, including Family courts constituted under the Family Courts (66 of 1984), while dealing with matrimonial, and child custody disputes.
DIFFERENT MODES OF JUSTICE DELIVERY MECHANISM OF ADR
The Constitution of India calls upon the state to provide for free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic. India socio-economic conditions warrant highly motivated and sensitized legal service programs as large population of consumers of justice (heart of the judicial anatomy) are either poor or ignorant or illiterate or backward, and as such, at a disadvantageous position. The State, therefore, has a duty of secure that the operation of legal system promotes justice on the basis of equal opportunity. Alternative dispute resolution is, neatly, worked out in the concept of Lok Adalat. It has provided an important juristic technology and vital tool for easy and early settlement of disputes. It has gain proved to be a successful and viable national imperative and incumbency, guest suited for the larger and higher section so the present society of Indian system.
The concept of legal services which includes Lok Adalat is a “revolutionary evolution of resolution of disputes”. Lok Adalats provide speedy and inexpensive justice in both rural and urban areas. They cater the need of weaker sections of society.
The object of the Legal Services Authority Act, 1987 was to constitute legal services authorise is for providing free and competent legal services to the weaker sections of the society; to organise Lok Adalats to ensure that the operations of the legal system promoted justice on a basis of equal opportunity.
Under the Act permanent Lok Adalat is to set up for providing compulsory pre-litigation mechanism for conciliations and settlement of cases relating too public utility services.
The concept of Lok Adalat is no longer an experiment in India, but it is an effective and efficient, pioneering and palliative alternative mode of dispute settlement which is accepted as a viable economic, efficient, informal, expeditious form of resolution of disputes. It is hybrid or admixture of mediation, negotiation, arbitration and participation. The true basis of settlement of disputes by the Lok Adalat is the principle of mutual consent, voluntary acceptance of conciliation with the help of counselors and conciliation. It is a participative, promising and potential ADRM. It revolves round the principle of creating awareness amongst the disputants to the effect that their welfare and interest, really, lies in arriving, at amicable, immediate, consensual and peaceful settlement of the disputes.
Shri M.C.Setalvad,former Attorney General of India has observed: “….equality is the of all modern systems of jurisprudence and administration of justice… in so far as a person is unable to obtain access to a court of law for having his wrongs redressed or for defending himself against a criminal charge, justice becomes unequal …Unless some provision is made for assisting the poor men for the payment of Court fees and lawyer’s fees and other incidental costs of litigation, he is denied equality in the opportunity to seek justice.”
The great advantage of arbitration is that it combines strength with flexibility. Strength because, it yields enforceable decisions and is backed by judicial framework which, in the last resort, can call upon the coercive powers of the state. Flexible because it allows the contestants to choose the procedure which fit nature of the dispute and the business context in which it occurs. Arbitration Act, 1940. Arbitration acknowledged the pivotal role of the partie sin resolving their disputes. But this Act did not fulfil the essential functions of ADR The extent of Judicial Interference under the Act defeated the very purpose of speedy justice. The Act 1996 came into effect to remove few of its difficulties and judicial intervention was limited to some extent. But Arbitration had some ailments: (I) traditional adversarial system is run in a arbitration proceedings; (II) proceedings are delayed as both parties take lot o time presenting their submissions;
(III) the cost of arbitration is much more than the order ADR process, thereby, it does not attract the poor litigants; (IV) participatory role of the parties are neglected as the submissions are mode by the party counsels.
Out of the methods of ADR, mediation and conciliation are the most suited methods for a country like India because by and large people in India at least in the rural areas would like to settle their disputes amicably. But in urban areas case is different where in commercial disputes, litigants want quick disposal of cases, would like the same to be done under a legal framework and with the intervention of professionals and so, these litigants prefer arbitration.
Not many Indians can afford litigation. This kind of state of affairs makes common people, especially rural people, cynical about judicial process.
Panchayati Raj or self-governance at the village level is in revolutionary process in our democratic governance. Along with powers of administration, system of self-government dispute resolution can also be delegated to these institutes. If the object of judicial reform is fair, quick and inexpensive justice to the common people, there can be no better way to pursue the objective than to invoke participatory systems at the grass rootlevel for simpler disputes so that judicial time at higher levels is sought only for hard and complex litigation.
According to Law Commission recommendation a very simple procedure envisaging quick decision, informed by justice, equity and good conscience. The CPC and Evidence Act not to be applied to proceedings before those. In respect of jurisdiction, the Commission preferred criminal jurisdiction covering boundary disputes, tenancies, irrigation disputes, minor property disputes, family disputes, and wage disputes irrespective of pecuniary value of the dispute. It would be wise to avoid to confer criminal jurisdiction of Gram Nyayalayas in the initial stage. In districts, towns and other urban areas where the nature of disputes are quantitatively different form rural areas, the litigations are of money suits, suits on mortgage, succession and inheritance suits, rent and eviction suits, matrimonial disputes. The staggering number if pendency of suits seeks for an alternative.
Few maladies and its ailments: We have already examined in the ”evolution of ADR mechanisms” that initially the ADR mechanisms were tried to be implemented with much emphasis on Statutes by way of inserting the ADR clauses in those statutes. But these process and policy was not of that much success. Thereby, the trend is the imposition of responsibility and duty on
Court and in this process Courts are authorised to give directives for the adoption of ADR mechanisms by the parties and for that purpose Court has to play important role by way of giving guidance, etc. Power is also conferred upon court so that it can intervene in different stages of proceedings.
But these goals cannot be achieved unless requisite infrastructure is provided and institutional frame work is put to place. A judicial impact assessment is carried out in U.K. by preparing a financial memorandum whenever a new Bill is introduced. The Financial memorandum indicates the amount of expenditure that is likely to be incurred as a result of any statute or amendment in the existing statute.
Before bringing in S.89 of the CPC and other Statutes, no assessment was carried out as regards financial implications or the infrastructural requirements to make it effective.
For example:
For meditation, trained mediator will be required and expenses will have to be incurred for their training. Most of our courts do not have adequate space even for their existing work, and thus, it may not be possible to accommodate them to provide for suitable accommodation of the ADR regime all these have to be complied with and this is not too late to make these arrangements.
Mediation/Conciliation/reconciliation is carried out in a matrimonial matter in child custody case. Usually in the Dist. Courts, there is no space available for children to meet his parents. Some meetings are held in the Chambers of the Judges not only at the district level but also at the High Court.
Conciliation is provided for under the Industrial Disputes Act and it takes place in the office of the Conciliation Officer or in the premises of the management which does not give a fair chance to the workmen to negotiate. There should be a neutral space for such mediation or negotiation.
The institutional framework must be brought about at three stages. The first stage is to bring awareness, the second awareness and the third implementation.
Awareness: in view of these holding seminars, workshops, etc. would be imperative. A ADR literacy programme has to be done for mass awareness. Awareness camp should be to change the mindset of all concerned disputants, the lawyers and judges. Our lack of awareness would be tested from the fact that how many of us are aware that in terms of Sec.7(hb) of the Notaries Act, 1952 one of the functions of a notary is to act as an arbitrator, conciliator, if so required.
Acceptance: In this regard training of the ADR practitioners should be made by some University together with other institution. Extensive training would also be necessary to be imparted to those who intend to act as a facilitator, mediators, conciliators.
Industrial dispute Act, 1947 provides for appointment of conciliator who although are ”charged with the duty of mediating in the promoting the settlement of industrial disputes” failed in performing their duties as they do not have requisite training. Similarly matrimonial courts and family courts are unable to effectively settle the dispute as they do not have either the requisite training or the mindset there of. Imparting of training should be made a part of continuing education on different facets of ADR so far as judicial officers and judges are concerned.
Implementation: for this purpose, judicial officers must be trained to identify cases which would be suitable for taking recourse to a particular form of ADR. In the decision of House of Lords in Dunnett V. Railtrack ill, the Court had noticed that: “the encouragement and facilitating of ADR by the court in an aspect of active case management which in turn is an aspect of achieving the overriding objective. The parties have a duty to help the court in furthering that objective and therefore, they have a duty to consider seriously the possibility of ADR procedures being utilized for the purpose of resolving their claim or particular issues within it when encouraged by the court to do so.”
“The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute-resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and unencumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to civil courts. Indeed, the powers of the courts and tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute.”
To this extent the ADR has got much recognition in the matter of settlement of family disputes. Similar provision is contained in Order XXXIIA CPC which deals with family matters. According to section 4(4) (a) of the Act, in selecting persons for appointment as Judges for Family Courts, every endeavour shall be made to ensure that persons committed to the need to protect and preserve the institution of marriage and to promote the welfare of children and qualified by reason of their experience and expertise to promote the settlement of disputes by conciliation and counselling are selected.
Another right and welcome step taken was the enactment of the Consumer Protection Act 1986 for the settlement of consumers’ disputes. The Act provides effective, inexpensive, simple and speedy redressal of consumers’ grievances, which the civil courts are not able to provide. This Act is another example of ADR for the effective adjudication of consumers’ disputes. The Act provides for three-tier fora, that is, District Forum, State Commission and the National Commission for redressal of grievances of consumers. Large numbers of consumers are approaching these fora to seek quick redressal of their grievances. There has also been a spurt in social action litigation on behalf of consumers by Consumer Activists, Voluntary Consumer Organisations and other Social Action Groups.
Justice in all its facets – social, economic and political – is required to be rendered to the masses of this country without any further loss of time – the need of the hour. The new strategy consists in dispute-resolution by conciliation, mediation and negotiation. The constitutional promise of securing to all citizens justice, social, economic and political, as promised in the Preamble of the Constitution, cannot be realised unless the three organs of the State, i.e., the legislature, the executive and the judiciary join together to find ways and means for providing to the Indian poor equal access to the State’s justice system.
There is lot of flexibility in the use of ADR methods. The flexibility is available in the procedure as well as the way solutions are found to the dispute. The solutions can be problem-specific. The rigidity of precedent as used in adversarial method of dispute resolution will not come in the way of finding solutions to the disputes in a creative way.
If the ADR method is successful, it brings about a satisfactory solution to the dispute and the parties will not only be satisfied, the ill-will that would have existed between them will also end. ADR methods, especially mediation and conciliation not only address the dispute, they also address the emotions underlying the dispute. In fact, for ADR to be successful, first the emotions and ego existing between the parties will have to be addressed. Once the emotions and ego are effectively addressed, resolving the dispute becomes very easy.
The ADR method is participatory and there is scope for the parties to the dispute to participate in the solution-finding process. As a result, they honour the solution with commitment. Above all, the ADR methods are cheaper and affordable by the poor also. As of now, there are some aberrations when it comes to the expenses incurred in arbitration. In course of time, when there is good number of quality arbitrators, the expenses of arbitration will also decrease. The promotion of institutional arbitration will go a long way in improving the quality of ADR services and making them really cheaper.
“We should make the law of arbitration simple, less technical and more responsible to the actual realities of the situations, but must be responsive to the canons of justice and fair play and make the arbitrator adhere to such process and norms which will create confidence, not only by doing justice between the parties, but by creating sense that justice appears to have been done.”
The object of the alternative dispute resolution process of arbitration is to have expeditious and effective disposal of the disputes through a private forum of parties’ choice.
Section 89 providing for settlement of disputes outside the Court was inserted in CPC in 1999 and brought into force with effect from 01.07.2002. The ‘Notes on Clauses’ of the CPC (Amendment) Bill 1999 stated with regard to this provision thus:
“Clause 7 provides for the settlement of disputes outside the court. The provisions of Clause 7 are based on the recommendations made by Law Commission of India and Malimath Committee. It was suggested by Law Commission of India that the Court may require attendance of any party to the suit or proceedings to appear in person with a view to arriving at an amicable settlement of dispute between the parties and make an attempt to settle the dispute between the parties amicably. Malimath Committee recommended to make it obligatory for the court to refer the dispute, after issues are framed, for settlement either by way of arbitration, conciliation, mediation, judicial settlement or through Lok Adalat. It is only when the parties fail to get their disputes settled through any of the alternate dispute resolution method that the suit could proceed further. In view of the above, clause 7 seeks to insert a new section 89 in the Code in order to provide for alternate dispute resolution.”
Section 89 has been introduced for the first time for settlement of disputes outside the Court, with the avowed objective of providing speedy justice:
1. It is now made obligatory for the Court to refer the dispute after issues are framed for settlement either by way of -
(a) Arbitration,
(b) Conciliation,
(c) Judicial settlement including settlement through Lok Adalat, or
(d) Mediation.
2. Where the parties fail to get their disputes settled through any of the alternative dispute resolution methods, the suit could proceed further in the Court in which it was filed.
3. The procedure to be followed in matters referred for different modes of settlement is spelt out in sub-section (2).
4. Clause (d) of sub-section (2) of section 89 empowers the Government and the High Courts to make rules to be followed in mediation proceedings to effect the compromise between the parties.
In Salem Advocate Bar Association v. Union of India, the Supreme Court rejected the challenge to the constitutional validity of the amendment made in CPC and took note of the Reports of the Committee headed by M. Jagannadha Rao, J., a former Supreme Court Judge and Chairman of the Law Commission of India, including the one dealing with Model Alternative Dispute Resolution and Mediation Rules.
A new section 16 has been inserted in the Court-fees Act 1870 by the CPC (Amendment) Act 1999, which reads as follows:
“Where the Court refers the parties to the suit to any one of the mode of settlement of dispute referred to in section 89 of the Code of Civil Procedure, 1908, the plaintiff shall be entitled to a certificate from the Court authorising him to receive back from the collector, the full amount of the fee paid in respect of such plaint.”
Where a matter referred to a Lok Adalat in terms of section 89(2) CPC read with section 20(1) of the Legal Services Authorities Act is settled, the refund of the court-fee is governed by section 16 of the Court-fees Act read with section 21 of the Legal Services Authorities Act and the plaintiff is entitled to the refund of the whole of the court-fee paid on the plaint.
Public confidence in the Judiciary is the need of the hour more than ever before. The Judiciary has a special role to play in the task of achieving socio-economic goals enshrined in the Constitution. While maintaining their aloofness and independence, the Judges have to be aware of the social changes in the task of achieving socio-economic justice for the people.
With the advent of the ADR, there is a new avenue for the people to settle their disputes. More and more ADR centres should be created for settling disputes out-of-court as is being done in many other countries. ADR methods will really achieve the goal of rendering social justice to the people, which really is the goal of the successful judicial system.
HOW TO MAKE ADR MECHANISMS MORE VIABLE?
We cannot stop the inflow of cases because the doors of justice cannot be closed. But there is a dire need to increase the outflow either by strengthening (both qualitatively and quantitatively) the capacity of the existing system or by way of finding some additional outlets. In this situation ADR mechanism implementation can be such a drastic step for which three things are required most:
· Mandatory reference to ADRs
· Case management by Judges
· Committed teams of Judges and Lawyers
Equal justice for all is a cardinal principle on which entire system of administration of justice based. It is too deep rooted in the body and spirit of common law as well as civil law jurisprudence that the very meaning which we ascribe to the word “justice” embraces it. We cannot conceive justice which is not fair and equal. Effective access to justice has thus come to be recognized as the most basic requirement, the most basic human right, in modern egalitarian legal system which purports to guarantee and not merely proclaims legal rights to all.
We should aim to achieve earlier and more proportionate resolution of legal problems and disputes by:
· Increasing advice and assistance to help people resolve their disputes earlier and more effectively;
· Increasing the opportunities for people involved in court cases to settle their disputes out of court; and
· Reducing delays in resolving those disputes that need to be decided by the courts.
To implement the noble ideas and to ensure the benefits of ADR to common people, the four essential players (government, bench, bar litigants) are required to coordinate and work as a whole system.
CONCLUDING REMARK
ADR is quicker, cheaper, more user-friendly than courts. It gives people an involvement in the process of resolving their disputes that is not possible in public, formal and adversarial justice system perceived to be dominated by the abstruse procedure and recondite language of law. It offers choice: choice of method, of procedure, of cost, of representation, of location. Because often it is quicker than judicial proceedings, if can ease burdens on the Courts. Because it is cheaper, it can help to curb the upward spiral of legal costs and legal aid expenditure too, which would benefit the parties and the taxpayers.
In this juncture, few things are most required to be done for furtherance of smooth ADR mechanisms. Few of them are:
Creation of awareness and popularizing the methods is the first thing to be done.
NGOs and medias have prominent role to play in this regard.
For Court- annexed mediation and conciliation, necessary personnel and infrastructure shall be needed for which government funding is necessary.
Training programmes on the ADR mechanism are of vital importance. State level judicial academies can assume the role of facilitator or active doer for that purpose.
While the Courts have never tired of providing access to justice for the teeming millions of this country, it would not be incorrect to state that the objective would be impossible to achieve without reform of the justice dispensation mechanism. There are two ways in which such reform can be achieved- through changes at the structural level, and through changes at the operational level. Changes at the structural level challenge the very framework itself and requires an examination of the viability of the alternative frameworks for dispensing justice. It might required an amendment to the Constitution itself or various statutes. On the other hand, changes at the operational level requires one to work within the framework trying to indentify various ways of improving the effectiveness of the legal system.
Needless to say, this will considerably reduce the load on the courts apart from providing instant justice at the door-step, without substantial cost being involved. This is also avoid procedural technicalities and delays and justice will hopefully be based on truth and morality, as per acknowledged considerations of delivering social justice.
As is said in the practical philosophy of law that lawyers are what their cases have made them, so goes the addendum that a legal system is venerated as it has been handled and managed in course of time. Then only a legacy is left for the future to find it sufficiently germane to be accepted as a proposition of inheritance. The law and legal system should appeal the reasons of people, is not a legal principle but a common sense observation of fact. It is this spirit that has led to the evolution of ADR Mechanisms for the dispensation of justice with efficacy and steadfastness!The Constitution of India calls upon the state to provide for free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic inability. India socio-economic conditions warrant highly motivated and sensitized legal service programs as large population of consumers of justice (heart of the judicial anatomy) are either poor or ignorant or illiterate or backward, and as such, at a disadvantageous position. The State, therefore, has a duty of secure that the operation of legal system promotes justice on the basis of equal opportunity.
As per latest available information, 57,179 cases were pending in the Supreme Court of India as on 30.6.11. The number of cases pending in the High Courts were 42, 17,903 as on 30.9.2010. Shri Salman Khurshid, Minister of Law & Justice said that in order to facilitate expeditious disposal of cases in courts, Government has taken a number of measures as mentioned below:
The Government has approved setting up of ‘National Mission for Justice Delivery and Legal Reforms’. The major goals are:
• Increasing access by reducing delays and arrears in the system;
• Enhancing accountability through structural changes and by setting performance standards and capacities.
Enactment of the Gram Nyayalayas Act, 2008 which provides for establishment of Gram Nyayalayas to improve access to justice to marginalised. The current year allocation has been increased from Rs. 40 crore to Rs. 150 crore. So far 151 Gram Nyayalayas have been notified by the states. In order to computerise the justice delivery system Government is implementing e-Courts Project for the District and Subordinate Courts in the country.
The Government has accepted the recommendations of the Thirteenth Finance Commission to provide a grant of Rs. 5000 crore to the States for improving the justice delivery system in the country over a five year period 2010-15. With the help of these grants, the States can, inter-alia, set up morning / evening / shift / special magistrates’ courts, appoints court managers, establish ADR centres and provide training to mediators / conciliators, organise more Lok Adalats to reduce pendency. The grants also provide for training of judicial officers, strengthening of State Judicial Academies, and training of public prosecutors and maintenance of heritage court buildings.
Former Minister of Law and Justice, Veerappa Moily announced the ‘National Litigation Policy’ (NLP) to reduce the average time of pending cases in India. The NLP aims at reducing government litigation in courts. Launching the NLP to make government an “efficient and a responsible” litigant, Moily said, “Monitoring and review mechanism proposed under it would prevent delay or neglect of important cases such as the Bhopal gas tragedy.” The Law Minister had in October 2009 released a vision statement at a two-day conference on National Consultation for Strengthening the Judiciary towards Reducing Pendency and Delays to reduce the backlog of cases. However, some of the suggestions laid out in the vision statement have not been included in the NLP such as introduction of night courts, appointment of judges on a contractual basis and establishment of a National Arrears Grid.
I aware that the propositions contained in the preceding Chapter are not new. Nevertheless, I feel that they need to be reemphasized and reaffirmed. There is an urgent need for justice dispensation through ADR mechanisms. The ADR movement needs to be carried forward with greater speed. Besides, many other suggestions, which may now be called hackneyed, need a fresh look.
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