Remedies Outside The Court System In India: Past And Present
“The administration of justice through culture is an appropriation of culture that exploits Indigenous knowledge and spirituality in order to meet the government’s bureaucratic policy and goals.”
Abstract: Peace is sine quo non for development of the nation. Conflict is a fact of life. It is not good or bad. However, what is important is how we manage or negotiate it. Negotiation techniques are often central to the process of resolving conflict and as a basic technique these have been around for thousands of years. Alternative Dispute Resolution (ADR) refers to a variety of streamlined resolution techniques designed to resolve issues efficiently when the conventional negotiation fails. ADRs is alternative to existing formal legal system which lessens the burden of cases in law Courts. To get out of this maze of litigation, courts and lawyers’ chambers, most of the countries encourage alternative methods of dispute resolution. India being one of the antique civilization, has a long tradition and history of such methods being practiced in the society at grass roots level, mainly called as panchayats. Panchayat system was widely in use in India for resolution of disputes – both commercial and non-commercial.
There is presence of Indigenous methods of disputes resolution in present India also, which must not take us to the conclusion that they are similar to existing ADR. Though Panchayat system appears to be based on similar process of dispute resolution to that of ADR; Panchayat was most efficient mechanism which stood as part of Human civilization in the Orient (India). The later one, unlike ADRs (modern), involves community participation, and operates in friendly environment. The main object of dispute resolution by Panchayat is community good and not the interest of parties, it is the concept of Dharma, Custom, Charitrathat abides Panchas(Adjudicators) and they are not wholly free to arrive at the conclusion at their whim.
After Independence we altogether adopted alien philosophy and system of justice administration and still imitate Anglo-Saxon methods of dispute resolution. At this juncture we are in confused state of mind to choose either of the one, because common-law had its deeproots in India, undoing what happened in almost 400 hundreds of Indian history is myth. However, adopting and blind appraisal of alien philosophy will take us from bad to worse. In light of these observations the author wishes to conduct impartial research so as to arrive at appropriate reconciliatory solutions.
In relation to disputes involving in rural and semi-rural India, there appear to be three emerging modes of alternative resolution processes. One mode involves Western-based paradigms such as negotiation, conciliation, arbitration and mediation. A second mode involves Indigenous paradigms, which call for the rejuvenation and reclamation of ways in which disputes may be resolved according to the culture and custom of the Indigenous party involved. Due to the diversity and distinctiveness of aboriginal peoples across the continent, Indigenous methods of dispute resolution are not easily summarized into categories. Rather, they are reflective of the Indigenous teachings from which they come and therefore may be different from one aboriginal nation to another. A third mode is a combination of the two paradigms.
All three modes, however, share similar challenges. Whether using an Indigenous paradigm, a Western one or a combination of the two, issues of power, cultural differences, language barriers and the effects and impacts of colonialism need to be addressed. This paper examines several of these common challenges. It examines differing worldviews in relation to dispute settlement and conceptualizes the Indigenous paradigms and Western paradigms based upon these worldview differences. Very importantly understanding of all these paradigms, their merits and demerits are to be analyzed and assessed. Undue importance to one, whether it may be by reason of ignorance or otherwise will have serious adverse impact over society. This paper tries to lay more emphasis on Indigenous dispute resolution system in ancient India as well as their continuance till today. In particular, it will try to find out new ways in which Indigenous and Western ADR paradigms may work cooperatively together while simultaneously protecting and respecting worldview and cultural differences.
2. Concept of Alternate Dispute Resolution System: Brief History
A: In Olden Days
Before formation of law Courts in India, people were settling the matters of dispute by themselves by mediation. The mediation was normally headed by a person of higher status and respectable among the village people and such mediation was called in olden days “Panchayat”.
Such panchyat may be village Panchayat, Caste Panchayat, and Guild Panchayat which act as informal mechanism of dispute resolution. The Pancha is the person of integrity, quality and character who will be deemed to be unbiased by people of the locality, called Village headman (Sarpanch) and he was assisted by some people of same character or cadre from several castes in the locality. The dispute between individuals and families will be heard by the Panchayat and decision given by the Panchayat will be accepted by the disputants. The main end of such redressal by panchayat was the welfare of the disputants and of the society at large. Similarly in case of dispute between two villages, it will be settled by Body of Mediator consists of person acceptable to both villages and the decision of such mediation will be accepted by peopleboth villages. The disputes in olden days seldom reached law Courts. They were even settling the complicated civil disputes, criminal matters, family disputes etc. Such type of dispute resolution maintained the friendly relationship between the disputants even after resolution of their disputes. ADR techniques have also been largely based on co-existential justice. “This form of justice has . . . always been part of African and Asian traditions where conciliatory solutions were seen to be to the advantage of all and often as a sine qua non for survival”.
Let us take ADRs in its ordinary contextual form and discus about its origin and development. Alternative Dispute Resolution (ADR, sometimes also called “Appropriate Dispute Resolution”) is a general term, used to define a set of approaches and techniques aimed at resolving disputes in a non-confrontational way. It covers a broad spectrum of approaches, from party-to-party engagement in negotiations as the most direct way to reach a mutually accepted resolution, to arbitration and adjudication at the other end, where an external party imposes a solution. Somewhere along the axis of ADR approaches between these two extremes lies “mediation,” a process by which a third party aids the disputants to reach a mutually agreed solution. The term "alternative dispute resolution" or "ADR" is often used to describe a wide variety of dispute resolution mechanisms that are short of, or alternative to, full-scale court processes. The term can refer to everything from facilitated settlement negotiations in which disputants are encouraged to negotiate directly with each other prior to some other legal process, to arbitration systems or mini-trials that look and feel very much like a courtroom process. Processes designed to manage community tension or facilitate community development issues can also be included within the rubric of ADR. ADR systems may be generally categorized asnegotiation, conciliation, mediation, or arbitration systems.
B. ADR in Modern Era
Modern ADRs originated in the USA in a drive to find alternatives to the traditional legal system, felt to be adversarial, costly, unpredictable, rigid, over-professionalized, damaging to relationships, and limited to narrow rights-based remedies as opposed to creative problem solving. The American origins of the concept are not surprising, given certain features of litigation in that system, such as: trials of civil actions by a jury, lawyers' contingency fees, lack of application in full of the rule "the loser pays the costs". Beginning in the late nineteenth century, creative efforts to develop the use of arbitration and mediation emerged in response to the disruptive conflicts between labor and management. In 1898, Congress followed initiatives that began a few years earlier in Massachusetts and New York and authorized mediation for collective bargaining disputes. In the ensuing years, special mediation agencies, such as the Board of Mediation and Conciliation for Railway Labor, (1913) (renamed the National Mediation Board in 1943), and the Federal Mediation and Conciliation Service (1947) were formed and funded to carry out the mediation of collective bargaining disputes. Additional State Labor Mediation services followed.
The 1913 New lands Act and later legislation reflected the belief that stable industrial peace could be achieved through the settlement of collective bargaining disputes; settlement in turn could be advanced through conciliation, mediation, and voluntary arbitration85. The well- organized ADRs movement in the United States was launched in the 1970s, beginning as a social movement to resolve community-wide civil rights disputes through mediation, and as a legal movement to address increased delay and expense in litigation arising from an overcrowded court system. Ever since, the legal ADR movement in the United States has grown rapidly, and has evolved from experimentation to institutionalization with the support of the American Bar Association, academics, courts, the U.S. Congress and state governments. For example, in response to the 1990 Civil Justice Reform Act requiring all U.S. federal district courts to develop a plan to reduce cost and delay in civil litigation, most district courts have authorized or established some form of ADR. Innovations in ADR models, expansion of government-mandated, court-based ADR in state and federal systems, and increased interest in ADR by disputants has made the United States the richest source of experience in court connected ADR.
Around 1970’s the situation in US was not totally different from other developed and developing countries of the world it had suffered all short of defects for the reason of adopting English system of justice administration. Edward Bennet Williams, as appeared in U.S. News and World Report of September 21, 1970,
“The Legal System isn’t working. It is like scarecrow in the field that doesn’t sacre the Crows anymore because it is too beaten and tattered-and the crows are sitting on the arms and cawing their contemptuous definance”.
In the same manner Earn Warren in his Speech at Johns Hopkins University as Reported in San
Francisco Examiner and Chronicle of Nov. 15, 1970,
“The greatest weakness of our judicial system is that it has become clogged and does not function in a fluent fashion resulting in prompt determination of guilt or innocence of those charged with crime”.
Considering the delay in resolving the dispute Abraham Lincon has once said: “Discourage litigation. Persuade your neighbors to compromise whenever you can point outto them how the nominal winner is often a real loser, in fees, expenses, and waste of time”.
In the same vein Judge Learned Hand commented, “I must say that as a litigant, I should dread a law suit beyond almost anything else short of sickness and of death”. These all the cautionswere rightly perused by Judicial and political thinker of US and gave way to their Home madepractices of ADRs.As most countries of the world were constantly in lack of efficient justice dispensingsystem, quickly turn their face towards ADRs, as a result of which within short period ADRsrecognized not only at the domestic level but also at the international level. Furthermoredevelopments in economic field i.e. trade commerce throughout the world is greatly in need ofmechanism of speedy disposal of their cases, as matter of inevitability commercial worldaccepted this new development. ADRs proved efficient and timely in corporate sector as result ofdeveloping countries like India get attracted to ADRs.
ADRs today fall into two broad categories: court-annexed options and community-based dispute resolution mechanisms. Court-annexed ADR includes mediation/conciliation—the classic method where a neutral third party assists disputants in reaching a mutually acceptable solution—as well as variations of early neutral evaluation, a summary jury trial, a mini-trial, and other techniques. Supporters argue that such methods decrease the cost and time of litigation, improving access to justice and reducing court backlog, while at the same time preserving important social relationships for disputants.
Community-based ADR is often designed to be independent of a formal court system that may be biased, expensive, distant, or otherwise inaccessible to a population. New initiatives sometimes build on traditional models of popular justice that relied on elders, religious leaders, or other community figures to help resolve conflict. India embraced Lok-Adalat village-level people’s courts in the 1980s, where trained mediators sought to resolve common problems that in an earlier period may have gone to the Panchayat, a council of village or caste elders.
Mandatory process of ADRs requires the parties to negotiate, conciliate, mediate or arbitrate, prior to court action. ADR processes may also be required as part of prior contractual agreement between parties. Whereas, in voluntary process, submission of dispute to the ADRS depends entirely on the will of the parties.
3. Challenges before three emerging modes of alternative resolution processes:
While setting out the scope of the research author made it clear that this paper is dealing with three important dispute mechanism (i) Common Law Courts (ii) Mediation, Arbitration and Conciliation (USA type) (iii) Indigenous Modes of Dispute resolution. Let us have look at the challenges that are faced by these three processes.
3. (i) (a): Present Legal System had its origins in the dominant philosophy of Britain of those days. It is based on the notion of an Austinian state, where a single monarch or a power had all the power which was indivisible. All powers devolved from top down. That was the structure of the modern nation state that the British were familiar with. So there was centralization of legislative authority and executive authority. Seeing a region with multiple states was itself a shock to them having come from a unitary one. On top of it to have multiple legal systems, where different castes and religions had their own institutions was quite alien to them. So one of the things they tried to bring is certainty and uniformity in the law; certainty and uniformity in the judicial and legal institutions they created. That homogenization itself was a major shock to Indians. The judicial system is one part of the legal system. A legal system would involve all the laws, norms, standards that are laid down to determine what is right or wrong, correct or incorrect. It would also involve all that goes to enforce the legality: that is the Courts, police, jails etc.
3. (i) (b): It was profoundly disturbing to the Indian masses that they set up these specialized Courts manned by people trained in law with so called independent judges. That itself was a cultural shock for the people of India, because till that time, if you look at the existing dispute resolution systems, typically at the village level, one had the Panchayat system. Panchas would be notables who would be known locally. They were not appointed by state as we understand today. By the British yardstick they would not be ‘independent’ as they would be members of the community. The idea of an independent judge comes from Anglo-Saxon jurisprudence and it requires that the judge’s mind is a tabula rasa, a clean slate, with respect to the dispute and he only allows his mind to register that which is ‘relevant’ to the dispute. The medium by which the judge appreciates facts or the evidence is through the two lawyers representing either side. What they bring into the Court largely determines the final outcome. So who should be allowed to address the Court; complex rules of evidence concerning who could step into the witness box; what matters can be addressed and so on, became very important. For example, unless one’s own eyes or ears had seen or heard the transaction, one could not testify and one could testify only with regard to that particular transaction. Whereas in the panchayat, which was held in the open, anybody who had even fringe knowledge could speak. They did not have to go through this filter of ‘is this relevant, are you worthy’. Therefore you had a sense of participation and anybody could speak. With the new system however, one had a judge who was not known to the parties, which was seen as virtue in the English system but was alien to Indians; it goes without saying that the language of the Court was English and one had to hire a lawyer and so on. The new Courts had very strict rules of relevancy. Many of these continue till today. Thus new Courts with their very specialized rules of evidence which were manned by very technical judges, and where you would have to place your full faith in the vakeel, who alone would be the voice that would speak in the Court, made the system inaccessible to Indians. Thus, in all these area: the choice of the judge, who could testify, regarding what they could testify, the location of the Court and so on, all these things were alien and the process alienating. In the old panchayat, even if you were not of the ‘high caste’, you could sit or stand up. Further Judgment today’s Courts is in ‘Yes’ or ‘No’ form, whereas, the panchayats always negotiated, with no clear winner or loser. Panchayats were willing to find a mid-ground so that all could save face. People were used to that system, where you would not lose everything but some form of justice would be done. So that you did not have a win-lose but a win-win situation. In Panchayat system the solution gave a lot of discretion to the decision makers to decide what would best serve the ends of justice. So long as their decision was not out of sync with vyavahara as practiced, they had a whole range of flexibility. In contrast, for the British, the ‘certainty of law’, that it was fixed before the dispute came into being, was seen as a major virtue.
3. (i) (c):The administration of Criminal Justice was not also well founded in India, the police can oppress with impunity. During British rule the visit of a police darogah (officer) to a native villager is a calamity. If a robbery is committed, the poor are afraid to complain; if anyone is wanted as a witness, he is taken for several days from his labor and treated as a prisoner; if a criminal, or suspected criminal, is arrested, he is at once presumed to be guilty, and is very probably tortured to confess... The insecurity of property induces all who can afford it, to hire watchman, in fact, bludgeon men, of their own; and these, whenever occasion requires, are of course used as agents of any amount of violence and oppression... The people sink under the weight of fear, and their natural cowardice is increased by a sense of hopelessness of resistance. Justice is to a large extent, practically denied them; the land-holders and the police are chief powers they know; and they are hunted by both, till they surrender themselves to servility, to despair.Even after 65 years of Independence Justice Administration of justice in India never satisfied the aspiration of people, this is because wrong selection of foreign made legal structure, application of discontent laws, discarding indigenous system of justice administration.
3.(ii): Mediation, Arbitration and Conciliation (USA Type or Modern ADRs):
Especially after independence great interest has been shown by policy makers to adopt USA type ADRs in this country for this purpose before Independence Arbitration Act, 1940 was passed. Once again this law is consolidated in the year 1996. Apart from this Lok-Adalats were placed by Legal Services Authority’s Act, 1987, but unfortunately nothing considerable was achieved by these modern ADRs in India. There are several reasons for such failure,
Though mediation is considered to be very important basis for settlement of dispute, this mediation (modern) in ADRs system is quite different from aspiration of the people, old panchayat system uses as mediation as its tool but it quite different from modern Mediation in this that, (a) there was community participation in ancient Mediation, henceforth their decision gains popular support to which every member of that community feel obliged. (b) Pancha or Mediator acts for the benefit of the whole society not for the benefit of the parties (c) Dharma that abides mediator and parties in all the time and in all cases, parties as well as mediator were not at liberty to arrive decision against lofty ideals of dharma.
The process of conciliation (modern) is not all together free from drawbacks, conciliator acts more or less like Court, The Arbitration and Conciliation Act, 1996 Sec 67 describes the role of a conciliator. Sub Sec (1) states that he shall assist parties in an independent and impartial manner. Sub Sec (2) states that he shall be guided by principles of objectivity, fairness and justice, giving consideration, among other things, to the rights and obligations of the parties, the usages of the trade concerned, and the circumstances surrounding the dispute, including any previous business practices between the parties. Sub Sec (3) states that he shall take into account “the circumstances of the case, the wishes the parties may express, including a request for oral statements”. Subsection (4) is important and permits the ‘conciliator’ to make proposals for a settlement. It states as follows: “Section 67(4). The conciliator may, at any stage of the conciliation proceeding, make proposals for a settlement ofthe dispute. Such proposals need not be in writing and need not be accompanied by a statement of the reasons therefore.” Section 69 states that the conciliator may invite parties to meet him. Sec. 70 deals with disclosure by the conciliator of information given to him by one party, to the other party. Sec. 71 deals with cooperation of parties with the conciliator, sec. 72 deals with suggestions being submitted to the conciliator by each party for the purpose of settlement. Finally, Sec. 73, which is important, states that the conciliator can formulate terms of a possible settlement if he feels there exist elements of a settlement. He is also entitled to ‘reformulate the terms’ after receiving the observations of the parties. Subsection (1) of sec. 73 reads thus: “Sec. 73(1) settlement agreement. (1) When it appears to the Conciliator that there exist elements of a settlement which may be acceptable to the parties, he shall formulate the terms of a possible settlement and submit them to the parties for their observations. After receiving the observations of the parties, the Conciliator may reformulate the terms of a possible settlement in the light of such observations.”
These all provision signifies that conciliator not only act as a facilitator to the settlement but he is having statutory authority to,
(a) to take surrounding facts and existing local usage and customs into consideration,
(b) make proposals for the settlement,
(c) formulate terms of a possible settlement,
(d) Reformulates the terms, these all power distinguishes conciliator from mediator but generally unlike arbitrator, conciliator does not have decision making power. The difference lies in the fact that the ‘conciliator’ can make proposals for settlement, ‘formulate’ or ‘reformulate’ the terms of a possible settlement while a ‘mediator’ would not do so but would merely facilitate a settlement between the parties. However, in India Family Courts Act-1984 confers decision making on the presiding officer of the Court who is called as conciliator. For the failure of this mechanism there are several reasons,
(a) Lack of proper personnel, inadequate training and low status enjoyed by conciliation officer and too frequent transfer.
(b) Undue emphasis on legal and formal requirements.
(c) Considerable delay in conclusion of conciliation proceedings.
(d) Lack of adjudicating authority with conciliator.
(e) Failure of conciliation had much impact as failure leads to reference of dispute to Labour Courts and Tribunals.
(f) Failure to magnetize people as there are little differences in environ of Courts and Conciliation Board(s). Same is the case with arbitration in India.
In comparison to Arbitration and Conciliation Lok-Adalts proved to efficient mechanism of dispute resolution however, cases from Law Courts get transferred to Lok-Adalat not because it is very efficient but to get rid of procedural harassment in courts. . Presently it is evident that Lok-adalat is not safety value against the drawbacks of Ordinary Courts, as people were also felt dissatisfied with the working of Lok-Adalats, to common man Lok-Adalat is no different than Court except some procedural relaxation, in fact when the case is long pending Lok-Adalat will be last resort at least to weak party (economically) to get relief (form being litigant).
Litigant is mere spectator here though there is absence of Procedural Law, it is still not open to him, opinion of Lawyer and the Judges consider being monolith he feels uneasy to say actually what he want. The study points out that in Lok-Adalats, justice has fallen victim to the desire for the speedy resolution. Instead of trying genuine compromise, in some cases Lok-Adalats try to force an adjudicatory decision upon unwilling litigants. The right to fair hearing, which is one of the basic principles of natural justice, is denied to the people. Many sitting and retired judges while participating in Lok-Adalats as members, tend to conduct the Lok-Adalats like courts, by hearing parties and by imposing their views as to what is just and equitable on the parties. Sometimes they get carried away and proceed to pass order on merits even though there is no consensus or settlement. The presiding officers should resist from the practice of making adjudicatory decisions in the Lok-Adalats.
3. (iii): Problems with Indigenous Dispute Resolution Mechanisms:
Though 70% cases in rural India till today were redressed by Indigenous methods of dispute resolution, they are not altogether free from fit-falls. Indigenous methods were not having any statutory support impact of this is that even though parties arrived at particular settlement before mediators, afterword either of the party may violate such settlement and with view to harass other party through litigation may approach law Courts and deny justice to one of the party, delayed judgments of courts creates conducive environment to breach settlement arrived before village mediators.
Political interference, personality cults of Mediator were also having adverse impact over the efficiency of Indigenous Dispute Resolution Mechanisms. More importantly changing notion of justice, shift from duty bound society to right oriented society, blind imitation of western ideologies like Justice, liberty and equality. Were also important reasons for diminishing the efficacy of Indigenous Mechanisms, because in a colonial country like India all social science like sociology, political science, economics, more importantly jurisprudence were nothing but glorification of western thought. Now situation is such that we have youths Indians in Origin but Englishman in taste and way of living, accordingly to our mind set it is Court system seems to be very appropriate mechanism of dispute resolution, but the reality is something different.
Modern ADRs brought several problems such as power imbalances, cultural differences and language barriers, modern Court system in colonized country like India were transplanted by Colonizers, we mean to say that Court system of justice administration was imposed as matter of convenience to them, not because it best serves the purpose. Such implantation leads to several cultural and other social problems.
Amongst such problems power imbalance is one of the notable problem, due to impact of 350 years colonization and imitation of western thought through education system we have created sufficient number of Indian Europeans who’s thoughts are highly irrelevant being influenced by ideologies which they learnt. Most unfortunately these so called learned happens to be ruler and policy makers for this country. Power in the such hands without understanding what the society or cultural ethos of the community needs, imitates the western thought, example for such imitation is our Constitution, Plea Bargaining, Public Interest Litigation, Courts, ADRs etc., this power imbalance demoralizes ideologies of indigenous communities which forms majority in India.
Another important short coming of Law Courts and ADRs in India is cultural discontent, elsewhere in this article authors described as to how language of Court and Court procedure, inevitability of being represented by the lawyer, it may be called as system dominated by black robs. In which people of this country especially countryside people whose cultural ethos still believes in traditional methods of dispute settlement.
While it is increasingly recognized and acknowledged that cultural differences are largely responsible for many of the shortcomings of formal dispute resolution processes within aboriginal contexts, it is still largely undefined and unclear as to how exactly ADR processes, whether aboriginal or western, will have to overcome these cultural challenges. Accordingly while choosing any method of dispute resolution or while implanting any alien system in any society detailed study of that society its cultural ethos, pros and cons of that system must be assessed independent dominant ideologies under which we live, it equally applies to ADRs.
***Miss Kavita S. B and Mr. Shivaraj S.H
# Lee (2005:310)
# Wilie, ‘Bengal as a Field of Missions’, p.286; 1854
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