NECESSITY AND SCOPE OF ALTERNATIVE DISPUTE RESOLUTION IN INDIA

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.