One of the prime questions facing Indian judiciary today is, ‘Why is the faith in judiciary shaking?’ ‘is justice itself at trial?’ A core reason is inaccessibility to justice. Even well educated citizens, who are aware of their rights and remedies in case of their infringement, shy away from the system due to the complex maze of procedure, indulge in under the table dealings to speed up matters thus feeding the monster of corruption. Article39-A of the Constitution provides for ensuring equal access to justice but the poor, and the middle class forming the largest chunk of our society who cannot afford to pay such middle agents suffer the most, sometimes even take the law in their own hands; the last resort in front of an inaccessible, bureaucratic system.
Lacunae in the formal court system are evident- congestion in court rooms, lack of manpower and resources, delay, cost, et al. The huge backlog of cases only makes justice less accessible. As per the present statistics, 53,229 cases are pending before the SC as on September 30, 2009, an aggregate of 40,18,914 cases pending before the HCs and 2,71,20,108 cases in the subordinate courts as on June 30,2009. (Ref. Statement by Anil Xavier an IMI Certified Mediator. Currently the President of the Indian Institute of Arbitration & Mediation). A remedy to Adversarial litigation is ADR Alternative Dispute Resolution (ADR) which is processes and techniques of resolving disputes that fall outside of the formal litigations. It works both at pre litigation stage and for solving pending disputes.
FORMAL SYSTEM Versus
Puts Parties In Conflicting Positions
Delay, Money Consumed
Parties Themselves Involved
multiple disputes can be resolved
Offers Flexibility Of Procedure
Saves Time And Money
HISTORY- ADR is not a modern revolution in India; it existed in form of panchayats headed by village elders, mainly because an amount of trust was reposed in this panchayats and before the forces of communism came into force due to which the system suffered a setback.
LEGISLATION- Provisions for ADR are already present in certain legislations like- ID Act, 1947, the Hindu Marriage Act, 1955. In the case of Hussainara Khatoon v. Home Secretary, State of Bihar, SC held that “right to speedy trial is a fundamental right implicit in the guarantee of life and personal liberty enshrined in Article 21 of Indian Constitution”
The ADR enactments are- the Arbitration and Conciliation Act, 1996, the incorporation of S.89 in the Civil Procedure Code. S.89 provided for settlement of disputes outside Court, through arbitration, conciliation, Lok Adalat, or mediation. The 1996 act complied with international norms and superseded the obsolete 1940 act. It is 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. It also for the first time gave statutory recognition to “mediation”.
“Alternative Dispute Resolution and Mediation Rules, 2003”, rules were framed on request of SC in Salem Bar Association vs. Union of India (2005) 6 SCC 344, they lay down that the Court has to give guidance to parties to choose appropriate mode of ADR, namely;
(i) It will be to the advantage of the parties, so far as time and expense are concerned, to opt for ADR rather than seek a trial (ii) Where there is no relation between the parties to seek reference of the matter to arbitration (iii) Where there is a relations between the parties, to seek reference of the matter to conciliation or mediation (iv) Where parties are interested in a final settlement to seek reference of the matter to judicial settlement including Lok Adalat.
This sheds light on efficacy of each mode depending on circumstances.
RURAL SCENARIO- Two pillars of ADR in rural India are the LokNyayalayas and GramNyayalayas. The GramNyayalayas act 2009 advocates establishment of gramnyayalayas for the purposes of providing access to justice to the citizens at their doorsteps.
ADR can be with filing of a lawsuit wherein judge resolves disputes between parties this includes lokadalats or it could be by way of free standing like in commercial arbitration.
NEGOTIATION- Voluntary participation and direct discussion between parties no intervention of their party.
MEDIATION- a third party i.e. mediator tries to facilitate the resolution but he cannot impose it, parties are to decide according to their terms. The biggest advantage of mediation is that the entire process is strictly confidential. Full-time Mediation Centers have been established in various High Courts as well as District Courts. Institutions like the International Mediation Institute (IMI) have made efforts in putting up high competency standards for mediators throughout the world.
CONCILIATION: In this case, parties submit to the advice of a conciliator, who talks to the parties separately and try resolving their disputes. Unlike arbitration, conciliation does not require the existence of any prior agreement. In mediation the third party has a more active role as he gives compromise solutions whereas in conciliation, he has to bring parties in the right frame of mind to settle differences.
COLLABORATIVE LAW: The attorneys try to facilitate process of resolution in accordance with the terms of the contract mentioned specifically. The resolution reached cannot be imposed on the parties by the attorneys.
ARBITRATION: Arbitration requires the prior existence of an arbitration agreement or an arbitration clause in the contract. Awards are binding on the parties and are considered as a decree of the courts.
LOK ADALATS- Provide speedy and inexpensive justice in both rural and urban areas. The object of the Legal Services Authority Act, 1987 was to organize LokAdalats for providing free and competent legal services to the weaker sections of the society, for providing compulsory pre-litigation mechanism for conciliations and settlement of cases relating to PUS.
ODR- A line of thought is ADR should get backing of IT as Online Dispute Resolution, its use will help to resolve e-commerce and web site contracts disputes permitting access to justice in an online business environment.
Some other forms of ADR are accord and satisfaction (contract act), collective bargaining (ID act), Ombudsman (can hear complaints in relation to matters involving maladministration by PSUs, two types in India: 'Lok Pal' (central level) 'Lok Ayukta' (state levels.)).
EFFICACY- Issues with efficacy of ADR are lack of adequate training, lack of a neutral space, case management issues, retired judges appointed as arbitrators for whom it is at times difficult to break the mold of traditional practices. Mediation and conciliation are the most suited for rural areas but in urban areas especially in commercial disputes, a legal framework is favored making arbitration the better choice. However traditional system has to be relied on in case of constitutional law and criminal law.
REMEDIES- For ADR to work pre-requisites are
Concluding with words of Gandhi: “I had learnt the true picture of law. I had learnt to find out the better side of human nature and to enter men's heart. I realized that the true function of a lawyer was to unite partie riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromise of hundreds of cases. I lost nothing thereby-not even money-certainly not my soul.” It is so ironical today when at every step of formal procedural justice the question asked is, “How many gandhis (referring to notes) are you willing to spare?”
# Write up of Hon’ble Justice S.B.Sinha, Judge Supreme Court of India
# Praveen Dalal’s blog on ‘Online dispute resolution’
# Law quotes and case laws from the internet
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