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Must You Really Go To Court?: A Case For Alternative Dispute Resolution

06/07/2016 7:46 AM IST | Updated 15/07/2016 8:27 AM IST
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"If I were asked to mention the greatest drawback of the administration of justice in India today, I would say that it is delay... Our cases drag over a length of time which makes eternity intelligible. The law may or may not be an ass, but in India, it is certainly a snail... Justice has to be blind but I see no reason why it should be lame." -- Nani Palkhivala

As a law student, one of the first and foremost aspects of the Indian justice system that one becomes privy to is the colossal backlog of cases. In our quest to provide a free and fair trial to all parties, it takes months, often years, to deliver a judgement. "Justice delayed is justice denied" is fast becoming a harsh reality of the Indian justice system. While independence of the judiciary and the rule of law are the cornerstones of a democratic society, efficiency in adjudication must be given equal importance.

The primary issues plaguing our system are the inadequate number of courts and judges in comparison to the quantum of litigation. As of this moment, there are more than two crore cases pending across district courts in India, two-thirds of which are criminal in nature. Ten percent of these cases have been pending for over 10 years, and at the current rate of disposal, it is expected to take the district courts 10 years to clear the backlog. As a law student observing proceedings in all levels of the judiciary, the method of alternative dispute resolution (ADR) seems to me a shining beacon of light. It is our chance to overcome this obstacle and ensure quick access to justice.

How ADR works

Alternative dispute resolution consists of methods like negotiation, mediation, arbitration and conciliation, any of which may be used to achieve an out-of-court settlement. While negotiation involves the parties solving their disputes face-to-face without outside intervention, mediation and arbitration involve the assistance of a third-party. A mediator facilitates an agreement by bouncing non-binding solutions off of parties, while an arbitrator functions more in the nature of a judge and delivers binding but appealable awards.

Alternative dispute resolution consists of methods like negotiation, mediation, arbitration and conciliation, any of which may be used to achieve an out-of-court settlement.

These methods of ADR are instrumental in reducing the burden of litigation on courts, while delivering a well-rounded and satisfying experience for the parties involved. It provides them the opportunity to "expand the pie" through creative, collaborative bargaining, and fulfil the interests driving their demands. Further, it offers greater flexibility, confidentiality and a direct control over the outcome. Personal relationships may also suffer less. An oft-cited example for this proposition is one of a landlord wanting to increase the rent, and a tenant unable to afford it. Upon tactful negotiation, the tenant discovers that the interest behind the landlord's demand is tuition money for his son's mathematics class. A mutually satisfactory solution is arrived at when the tenant offers to take tuitions in exchange for the rent remaining constant. Thus, ADR can help the parties save time, energy and money that would otherwise have been needlessly expended on litigation.

History of ADR in India

The Indian system has introduced several reforms over the years to encourage ADR in civil as well as criminal disputes. The reform process started in 1966 when the then Chief Justice of India A.H. Ahmedi invited the Institute for the Study and Development of Legal Systems, USA, to participate in a national assessment of the backlog in civil courts. Studies were made of the causes of delay in the civil jurisdiction in our country. It was recommended by the Law Commission that the court may require the attendance of the parties to the suit or proceeding with a view to arrive at an amicable settlement of the dispute. The Justice Malimath Committee recommended making it obligatory for the court to refer the dispute for settlement either by way of arbitration, conciliation, mediation or judicial settlement through Lok-Adalats. It is only when the parties failed to get their disputes settled through any of the alternative dispute resolution methods that the suit could proceed further.

The first nationwide simultaneous Lok-Adalat... succeeded in disposing of 35.1 lakh cases in eight hours, setting a world record.

The Legal Services Authorities Act was passed in 1987 to encourage out-of-court settlements, and the new Arbitration and Conciliation Act was enacted in 1996. The legislature also amended Section 89 of the Code of Civil Procedure in 1999, w.e.f. 2002, envisaging mediation as one of the modes of settlement of disputes. This was done in tune with the recommendations of the Law Commission of India and the Justice Malimath Committee, to promote alternative methods of dispute resolution. A permanent Mediation Centre was established at Tis Hazari court complex in October 2005 and in the Karkardooma court complex in May 2006, followed by centres in Rohini, Dwarka, Saket and Patiala House court complexes.

Lok-Adalats

A concept similar to that of a Nyaya-Panchayat has been introduced in modern India in the form of a Lok-Adalat, i.e. a "people's court". It comprises an informal setting which facilitates negotiations in the presence of a judicial officer wherein cases are dispensed without undue emphasis on legal technicalities. The order of the Lok-Adalat is final and binding on the parties, and is not appealable in a court of law.

Lok-Adalat camps were first started in Junagarh, Gujarat in March 1982 and have now been extended throughout the country. They have delivered heartening results in motor accident claim cases, matrimonial/family disputes, labour disputes and matters relating to public services such as telephone, electricity, bank recovery cases etc. In November 2013 when the Indian judiciary was battling a pendency of three crore cases, then Chief Justice of India P. Sathasivam inaugurated the first nationwide simultaneous Lok-Adalat. This initiative succeeded in disposing of 35.1 lakh cases in eight hours, setting a world record. Since then, pending cases have been taken up by nationwide Lok-Adalats at regular intervals in a bid to reconcile differences between the parties without burdening the judiciary. Permanent Lok-Adalats (PLAs) have also been established all over the country.

Plea-bargaining in the Indian system

Alternative dispute resolution mechanisms have also found their way into the criminal justice system, following in the footsteps of countries like the Unites States, which encourages plea-bargaining. Plea-bargaining is best described as a "pre-trial negotiation between the accused and the prosecution during which the accused agrees to plead guilty in exchange for certain concessions by the prosecution."

It is the duty of citizens to protect the judiciary from the burden of unnecessary litigation... and approaching the court only as a final resort.

For the longest time, our judiciary was hesitant to adopt plea bargaining, and voiced strong reservations. In the cases of Kasim Bhai Sheikh v. State of Gujarat (1980), Kachhia Patel Shantilal Koderlal v. State of Gujarat & Anr (1980) and State of Uttar Pradesh v. Chandrika (2000), it was held that the "practice of plea-bargaining is unconstitutional, illegal and would tend to encourage corruption, collusion and pollute the pure fount of justice." The Law Commission of India recommended time and again in its 142nd, 154th and 177th reports that concessional treatment of offences is an absolute must in an over-loaded judicial and prison system like ours. Finally, chapter XXIA was included in the Code of Criminal Procedure in 2005, introducing the procedure for plea-bargaining.

However, every coin does have two sides. Critics of plea-bargaining argue that it has altered the classical understanding of justice by encouraging criminality among the rich, undermining the credibility of our criminal justice system and perpetuating monopoly capitalism. However, proponents urge that plea-bargaining has only been introduced for petty offences which burden the system with unnecessary litigation and can very well be settled outside. A report of the National Crime Records Bureau also highlights the positive impact of this measure; in 2014 alone, more than 35,000 cases under the Indian Penal Code were disposed by plea-bargaining.

Concluding thoughts

ADR has proven successful in clearing the backlog of cases in various levels of the judiciary, but there seems to be a lack of awareness about the availability of these mechanisms. The National and State Legal Services Authorities must disseminate more information regarding these, so they become the first option explored by potential litigants. While it is the duty of the judiciary to ensure justice for one and all, it is the duty of citizens to protect it from the burden of unnecessary litigation by resolving minor disputes among themselves and approaching the court only as a final resort.

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