1.
NECESSITY
OF ADR:
In a
rapidly developing society human needs are bound to multiply resulting into
conflict of interests. People become more conscious about their individual
rights and litigation becomes an inevitable part of their life due to rising
incidence of disputes among them. The problem is further compounded when there
is lack of discipline in the litigation process an judicial mechanism finds it
difficult to cope up with the enormous caseload. Particularly, in a modern
technologically and economically well advanced society, litigation is a primary
means of resolving disputes.
Justice
delivery institutions in most of the developing countries in the world are
currently confronted with serious crises, mainly on account of delay in the
resolution of the disputes particularly the delay in disposal of the commercial
and other civil matters. We must admit that this situation has eroded public
trust and public confidence in the justice delivery institutions
As we
all know that Justice delayed is justice
denied and at the same time justice hurried will make the justice buried. So
we will have to find out a via media between these two to render social justice
to the poor and needy who wants to seek their grievance redressed through Law
Court. So here the need for ADR arises, and the beginning of the modern ADR
movement is from United States of America.
As Chief Justice Warren Burger of the U.S. Supreme Court once observed
on noticing the increase of cases from 2000 to about 5000 in the US Supreme
Court between 1963 to 1982 made the following remarks: –
“We are moving
towards a time when it will be impossible for the courts to cope up with the
dockets. If something is not done, the result will be a production of line of
justice that none of us would want to see.”
So The
rationale behind the adoption of a system of ADR is undoubtedly the need to
find a method of circumventing and eventually effacing the tremendous problems
which beset the litigative system. These problems can be broadly classified
into:
(1)
delay;
(2)
expense;
(3)
rigidity of procedures; and
(4) a
reduction in the participatory role of parties.
1. Delay
Delay and backlog go hand
in hand. The typical life span of a civil litigation depicts a morose picture
of the litigative system of India. The Parliamentary Standing Committee on Home
Affairs found that as of 2001, there were 21 High Courts in the country and
35.4 lakh cases pending. The position in the subordinate courts was even more
alarming, as there was a backlog of 2 crore cases for as long as 25 to 30
years. The result of this tremendous backlog is an inordinate delay in the
disposal of matters, spanning a period of 15-20 years.
Delay in the judicial
system of a country results inevitably in a loss of public confidence in the
concept of justice. It has a corrosive effect on the canons of public interest,
which enunciate the maxim: 'justice delayed is justice denied'. Consequently,
it acts as a deterrent to those who have been legally wronged, as they stay
away from the Courts, fearful of the time that would have to be spent on
litigation.
2. Expense
Justice Brennan of the U.S.
Supreme Court has stated: "Nothing rankles more in the human heart than a
brooding sense of injustice...when only the rich enjoy the law as a luxury and
the poor who need it the most cannot have it because its expenses put it beyond
their reach."
The expenses that
ordinarily have to be incurred by the litigant, such as court fees, lawyers
fees etc., exclude the poor from the purview of judicial remedy, whereas it is
they who are in the greatest need of it. The multiplicity of procedures and the
inordinate delay adds to the burgeoning cost of litigation.
3. Rigidity of Procedures
The functioning of courts
is governed by a prescribed set of procedures brought about either by statute
or custom. Over a period of time, these procedures have attained a substantial
amount of rigidity. While the rigidity of procedures does subserve the object
of dispensing even handed justice, this objective is fulfilled at a pyrrhic
cost.
In perpetuating such rigid
procedures, we forego the possibility of amicable settlement, which can only be
achieved through a moderate amount of flexibility. Further, apart from adding
to the delay of the litigative system, rigid procedures are responsible for the
apprehension of ordinary persons who shy away from courts, fearful of the
sacrosanct procedures of which they know nothing.
4. Participatory Role of Parties
The adversarial system
often results in the marginalization of litigants, whose participation in
judicial proceedings is extinguished. Bereft of legal advice, litigants who
appear before the court in person are often seen giving vent to their emotions,
opinions, perceptions and interests, none of which are of any significance in a
court of law.
Simple justice therefore
demands a system of redressal of disputes, where the emotions, opinions,
perceptions and interests of the litigant are taken into consideration, while
moving toward an amicable settlement.
SCOPE
OF ADR IN INDIA
CONCEPT
OF ALTERNATIVE DISPUTE RESOLUTION IN OLDEN DAYS IN INDIA
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 respect
among the village people and such mediation was called in olden days
“Panchayath”.
ALTERNATIVE
DISPUTE RESOLUTION IN MORDERN INDIA
1. Labour law:-
The first avenue where the conciliation has
been effectively introduced and recognized by law was in Labour law, namely
Industrial Disputes Act, 1947. Conciliation has been statutorily recognized as
an effective method of dispute resolution in relation to disputes between
workers and the management. The provision in the I.D. Act makes it attractive for
disputing parties to settle disputes by negotiation and failing that through
conciliation by an officer of the Government, before resorting to litigation.
Several provisions in the Act get the scene for conciliation to be more
successful.
a)
The conciliation is by an Officer of the
Labour Department in the Government.
b)
The parties may not go on strike or
declare a lock out during the period of conciliation.
c)
The conciliation officer shall make all
effort to settle the dispute by conciliation (Section 12(2)).
d)
The agreement reached in the process of
conciliation shall be certified by the Conciliation Officer as fair settlement
(Section 12(3)).
e)
Such settlement shall bind all the other
trade Union that are party to the dispute and are invited to participate in the
conciliation but prefer to stay away from the conciliation process (Section
18(3)).
f)
The settlement is a self-executing
document and breach of the settlement condition by the Management is a ground
for recovery of the due under simplified summary procedure (Sec.33 C).
All parties to an industrial
dispute who have had the misfortune of going through litigation knew that it is
a tedious process and one which could go well beyond the life time of some of
the beneficiaries. It is this factor that has contributed greatly to the
success of conciliation in industrial relations.
2. The Arbitration and Conciliation Act
1996
There was much delay in
settlement of disputes between the parties in law Courts which prevented
investment of money in India by other countries. Further there was no provision
in the Indian Arbitration Act 1940 to resolve a dispute between an Indian and a
non-Indian as the law-relating contract between the parties were different
which caused difficulties to refer such matter for arbitration. In order to
avoid such a difficulty, India has undertaken major reforms in its arbitration
law in the recent year as part of economic reforms initially in 1991.
Simultaneously many steps have been taken to bring judicial reforms in the
country, the thrust being on the minimization of Courts intervention in the
arbitration process by adoption of the United Nations Commission on
International Trade Law (UNCITRAL). With this in mind, the Government has given
birth to a new legislation called “The Arbitration and Conciliation Act 1996”.
3. Family Law:
The other area where Alternate
Dispute Resolution recognized in India is in family law.
a.
Section 5 of the Family Court Act
provides provision for the Government to require the association of Social
Welfare Organisation to hold the family Court to arrive at a settlement.
b.
Section 6 of the Act provides for
appointment of permanent counsellors to effect settlement in the family
matters. Further
c.
Section 9 of the Act imposes an
obligation on the Court to make effort for settlement before taking evidence in
the case. In fact the practice in family Court shows that most of the cases are
filed on sudden impulse between the members of the family, spouse and they are
being settled in the conciliation itself.
To this extent
the alternate dispute resolution has got much recognition in the matter of
settlement of family disputes. Similar provision has been made in Order XXXII A
of C.P.C. which deals with family matters.
4.
Code
of Civil Procedure.
By amendment of the Code of Civil
Procedure in the year 2002, Sec.89 has been included in the code, which gives
importance to mediation, conciliation and arbitration. This section casts an
obligation on the part of the Court to refer the matter for settlement either
before the Lok Adalat or other methods enumerated in that section itself.
5. Legal Services Authority Act:
The other legislation, which has
given more emphasis on the alternate dispute resolution, is the Legal Services Authority Act 1985.
Though settlements were effected by conducting Lok Nyayalayas prior to this
Act, the same has not been given any statutory recognition. Matters settled in
the Nyayalayas earlier were made decree by the Court in which the case was
filed on the basis of settlement arrived at between the parties. But under the
new Act, a settlement arrived at in the Lok Adalats has been given the force of
a decree which can be executed through Court as if it is a decree passed by a
Competent Court.
Further provision has been made
in the Act for settling pre-litigation cases through such adalats. Power has
been given to the Lok Adalaths constituted under the Act, to decide the dispute
referred to them, to effect settlement by mediation and if settlement is
arrived at between parties to draw a decree on the basis of compromise and the
same will be signed by the members of the Adalath which consist of a judicial
Officer working or retired, a lawyer and a person of social welfare association
preferably women and a copy of the same will be given to the parties free of
costs. This has really reduced delay in getting copy of the decree by the
parties. Lok Adalaths have acquired wide acceptance among the public as the
results are quick, less expensive and no appeal will lie against the award
passed in a Lok Adalath.
No comments:
Post a Comment