About the author
Adv. Abhirami G Nair is the convenor of the LJRF Centre for Alternative Dispute Resolution (ADR).
INTRODUCTION
Conflicts are simply “lis inter partes,” and India’s legal system has embraced an ADR procedure as a substitute for combative litigation. ADR is a voluntary method that has gradually received legal acceptance. In this essay, the implementation of the ADR system in India’s courts is analyzed along with the issues that have arisen.
India is the largest democratic nation with a legal system that prioritizes the idea of the rule of law. A democratic nation that values the rule of law needs to make every effort to quickly resolve the backlog of cases that have been waiting in courts for many years. In his autobiography, Gandhiji emphasized the importance of ADR by stating that a lawyer’s main responsibility is to work towards resolving disputes between parties rather than presenting a case and the litigants for trial before the court. He thinks that if a lawyer can discover the better part of people’s character and enter their hearts, issues may be resolved. Gandhiji used this technique and was successful in resolving over a hundred cases while retaining all of his fees and his soul.1
Disagreements over matters that are personal to him may arise in a person’s life. A vast majority of people erroneously think that appearing in court is the best way to resolve conflicts. Many people have had problems with others, but they have always been able to resolve them amicably without ever needing the help of the courts. Additionally, due to socioeconomic and cultural variables that affect their choices, some people of the society refrain from reaching out to courts to resolve their disputes. As a result, it is necessary to change the public’s image of the court as the primary forum for dispute resolution. It shows that going to court to settle a dispute could be the final resort.
Notwithstanding, it should not be assumed that those who opt not to use the legal system are beyond disputes. The essence of their disputes cannot be said to be unresolvable. However, inferring that they are able to settle the dispute would likewise be incorrect. There have been occasions where these individuals and groups established a committee to hear and resolve their conflicts amicably and economically.
Democratic countries like India, the US, and the UK have found that the conventional court system is difficult and time-consuming. However, alternative dispute resolution (ADR) methods such as Lok-Adalat, mediation, arbitration, and conciliation are quick, less expensive, and offer a number of other advantages. For instance, a decision made through ADR is final, less expensive than litigation, guarantees privacy and security, allows parties to select any person or persons to serve as arbitrators, promotes negotiation, and resolves the dispute amicably by establishing a win-win scenario for all parties.
INDIA’S LAWS, RULES, REGULATIONS, & ADR SYSTEMS
Indian Constitutional Law
Social justice is emphasized in the Indian Constitution’s Articles 14, 22(1), 39A, 44, and 51A. It states that the legal system is required to guarantee that everyone obtains equal justice. All citizens must have access to the justice system. The legal system is sometimes inaccessible to many individuals because of social, economic, and other obstacles. So that everyone has the
opportunity to pursue justice, it is the nation’s duty to pass the necessary laws, programmes, etc. The administration of justice shouldn’t be hindered by any kind of disability.2 “Equal treatment for all people is a core element of justice. To achieve all of these objectives, the State must give Alternative Dispute Resolution (ADR) appropriate consideration.
The Legal Services Authorities Act of 1987
The LSA Act, which was approved by the Parliament in 1987, came into effect on September 11, 1995. The purpose of this legislation is to establish organizations that will offer consistently excellent, cost-free legal aid to India’s underprivileged groups.
Preventing suffering brought on by a lack of resources and opportunity is the major objective of this law. This goal is reflected in the slogan of the Legal Services Authorities, which promises “Access to Justice” for all and plans to set up the Lok Adalat to provide equal chance to everyone, regardless of their social or economic backwardness.
The Arbitration and Conciliation Act 1996 (as amended by the act of 2019 and 2020)
The A&C Act, 1996 is an area of law that is based on the UNCITRAL Arbitration Law and Conciliation Rules, as was mentioned in the introduction. All governments have been requested to take it into consideration by the United Nations General Assembly. The General Assembly recommended that arbitration legislation be made more uniform in order to meet the demands of international business arbitration. The General Assembly has urged the State Parties to implement the arbitration rules and legislation for international commercial disputes and has placed a priority on peaceful resolution of such issues through the resolution mode, such as conciliatory tools. These laws have had a substantial positive impact on the standardized arbitration processes used to settle disputes in international commerce.
The Civil Procedure Code, 1908 (July 2002 amendment)
The first formal structure for contemporary Indian procedural law was introduced with S. 89 of the modified CPC. It strongly emphasizes finding a mutually agreeable solution to problems. The courts must decide and set the terms of any settlement when parties to a lawsuit desire to settle their differences. Inadvertently, it prevents the courts from considering any cases having these traits and forces them to be sent to ADR for compromise solution.3
Supreme Court Legal Services Committee Report, 1996
As a result of this rule, SCLSC has assumed control over the Supreme Court Legal Aid Committee and all of its rights, liabilities, title, assets, and interests. There are in all 18 Rules in it. The functions and powers of the Chairman, Secretary, and SCLSC are described. The terms of the chairman’s and secretary’s employment are also included. A provision about the audit of money is also present. The way meetings are conducted, the qualifications needed to get legal aid, and the process for providing legal services are just a few of the major rules that impact the manner in which the SCLSC works. SCLSC may provide legal services even in the absence of a means test or its result in one of two circumstances: (1) if the case is of major public interest; or (2) if the situation is special and necessitates a hearing to administer justice. However, SCLSC must explain why it granted or denied petitions for legal aid in its records.4
Civil Procedure Alternative Dispute Resolution and Mediation Rules, 2006
The CP – ADR & Mediation Rules, 2006, established by the Bombay High Court, govern the ADR system. There are two halves to it. Process is covered in the first section. It describes how to pick and recognize the proper ADR tools. It also offers guidelines for the parties so they may comprehend the procedure. In Part II, the rules that govern the “Mediation” are discussed. These recommendations were developed under the direction of CPC section 89(2)(d). Part I is titled Civil Procedure – Alternative Dispute Resolution, 2006, while Part II is titled Civil Procedure Mediation Rules, 2006.
NALSA (Lok Adalat) Regulation, 2009
Before, there was no standard procedure for the Lok Adalat’s procedures. Parties and panels from various regions and States are required to adhere to certain rules and customs with regard to the TLSC, DLSA, SLSA, and the HCLSC. As a result, the Supreme Court of India gave the NALSA a directive to create rules that may be consistently applied to Lok Adalats throughout India.5 As a result, the Central Authority created the NALSA (Lok Adalat) Regulations, 2009 in accordance with section 29 of the LSA Act, 1987. It was published in the Indian Gazette on 20.10. 2009. This rule has established a standardized process that may be used to plan and carry out the Lok-Adalat across India. Also, this regulation covers the following topics: the makeup of the Lok Adalat, notice requirements, the allocation of cases to the Lok Adalat, jurisdiction; the holding of the Lok Adalat, the summoning of records, pre-litigation issues, communications between the Parties, confidentiality obligations, awards, the maintenance of panels, the maintenance of records, the compilation of results, and the appearance of lawyers before the Lok Adalat.
Rules for mediation set up by the Supreme Court
The Indian Supreme Court was a pioneer in the development of drafting mediation rules. The Supreme Court appointed a committee and charged it with formulating “ADR and Mediation Rules”,6 according to CPC Section 89(2)(d) of the Code of Civil Procedure. Part-I contains the 2003 ADR Rules, and Part-II contains the 2003 Mediation Rules. The rules were developed by the committee. Based on the instructions given in the aforementioned decision, the Bombay High Court drafted the Civil Procedure – ADR & Mediation Rules, 2006 for use in court proceedings.
The Supreme Court’s ruling in the Afcon case
Judges R.V. Raveendran and J.M. Panchal have considered the broad applicability of Section 89 of the CPC in the matter of Afcon.7 Their Lordships have also studied the law to determine whether the court has the authority, as provided for in Section 89 of the Civil Procedure Code, to refer a matter to arbitration without first obtaining the consent of all parties. The Supreme Court answered this question in the negative. The Supreme Court has also established guidelines for what issues can be referred to ADR and what not.
ADR: FACILITATES PARTICIPATION IN RESOLUTION
The parties to a disagreement are given the opportunity to participate in the resolution of their differences through mediation and other dispute resolution options. It is a flexible and informal method of resolving disputes. It is a procedure where the mediator uses their expertise and experience to assist the parties in de-escalating and resolving their conflict via ongoing counselling. According to Jessica Pearson (1982), there is an introductory session for encouraging open and direct conversation, strengthening strong links, and defining the concerns and their priorities for greater collaboration for the resolution of the contentious matter at hand. Through his dynamic communication abilities and expertise, the professional mediator wins the parties’ trust and confidence, enabling him to handle the problem over the course of several meetings and help create a formal settlement agreement that all sides can agree to. Every mediation gives the parties the impression that they have a stronger participating role to resolve the conflict with the mediator’s trained aid (Ernest E. Uwazie, 2011). The parties feel taken into consideration and not alienated by the mediation’s professional touch. As a result, it might be referred to as “participant justice” (JG Mowatt, 1992).
THE JUSTIFICATION FOR ADAPTING ADR
The ADR method is justified by the idea that society, the State, and the disputant should share equal responsibility for quickly settling the dispute and should try to do so before it undermines the peace of the home, family, society, community, business, and eventually mankind.
According to some academics who are against using ADR tools, if fewer cases get to court, there will be less desire for using the ADR procedure. They also claim that if litigation costs are decreased, the demand for “alternative dispute resolution procedures” will diminish. There are two issues with this reasoning. First of all, as commercialization, business growth, competition, and legal expertise rise, the number of lawsuits will also increase. Second, it will never be simple to settle disagreements amicably through the legal trial system alone. ADR is far superior to the court trial procedure in many ways. Quick case resolution is advantageous. By eliminating the institution of cases in the form of appeals, revisions, and other similar processes, it reduces the cost of litigation. Furthermore, it prevents any potential future confrontation between the parties. According to a different perspective, not all issues may be settled outside of court and all cases must be determined by judges. This group, which supports this viewpoint, ignores the reality that some legal conflicts cannot be resolved by the courts and thus must be resolved outside of the legal system. Injunction litigation serve as the greatest illustration of these problems, which arise when the courts are unable to oversee and regulate how a judgement or order is followed. The Preamble of the Indian Constitution reflects the idea of fairness. It guarantees social, economic, and political fairness in all sectors. Therefore, the purpose of the constitution is to uphold justice. Under Article 39A of the Indian Constitution, the impoverished and weaker sections of society are guaranteed free legal counsel and just justice. The State must preserve equality before the law and a judicial system that advances justice based on equal access for everyone, according to Articles 14 and 22(1). India is a country dedicated to maintaining justice and protecting its residents’ socio-economic and cultural rights. To fulfil this constitutional mandate, prompt problem-solving is necessary. The aim can thus be effectively achieved through the employment of ADR procedures because the courts cannot effectively handle the vast backlog of cases. These are the main justifications for ADR’s implementation in India.
INDIAN ADR AND CHALLENGES
In India, the employment of ADR methods efficiently protects people from difficult legal processes. The old judicial systems have not been able to satisfy the need for prompt justice. ADR methods are more desirable to parties because they give rapid relief, are a cost-effective option, adopt the optimal strategy, and are simple to apply. Nevertheless, there are a few challenges that make ADR enforcement complex.
There are two groups of barriers that may be distinguished. They are difficulties related to people and their inherent limits. Lack of a clearly defined method, inapplicability in non-compoundable cases, connection to other issues, and participation of several parties are only a few examples of the inherent constraint. Contrarily, human-based constraints include competing interests of attorneys and clients, lack of cooperation from the parties, moral considerations, a lack of effective communication between the parties, misunderstandings about ADR systems, the jackpot syndrome, ignorance, and corruption.
USE OF LOK ADALAT IN ADVERSE MANNER
After being referred to Lok Adalat by the courts, matters may get settled without informing the parties. The stakes are significantly raised when an executable award is made without the parties’ consent. Before moving further, the chairman and other panel members must make sure that all parties have been informed of the situation and have given their approval for the Lok-Adalat settlement mechanism. The three fundamental tenets of justice, equality, and fair play are what the foundation of ADR is built upon, and neither the courts nor ADR forums should ever lose sight of this. The settlement conditions must be confirmed by all parties prior to signing the award. If there is no consensus, the panel.
When there is no consensus, the panel should decline to approve the Lok-Adalat award. just when all parties to the dispute have agreed on the same terms does an agreement constitute a settlement, hence in cases where just some of the numerous parties have agreed to the conditions, the award should not be upheld.
When some or all of the parties are unable to make a compromise, the Lok-Adalat is not authorized to make an award.8 The matter returns from the Lok-Adalat to the courts where it was transferred or referred in all instances where a resolution could not be obtained. The LSA Act of 1987’s S.20(5) stipulates the same.9
JUDICIAL PERSPECTIVES ON ADR
The Law Commission of India noted that while there are procedural regulations in place, their proper application or even complete non- observance results in court delays.10
Justice is ensured by the Indian judiciary. The peaceful settlement of conflicts is one of the essential components of society. The Indian judicial system accepts arbitration as a method of resolving disputes. Arbitration rules were included in the Indian Arbitration Act of 1940. The Courts’ primary focus was on overseeing Arbitral Tribunals, and they were particularly interested in figuring out if the arbitrator had overstepped his bounds while making a decision on the issue that had been put before him for arbitration.
It was made plain by the Supreme Court that the flaws needed to be fixed: “An independent and effective judicial system is one of the core components of our Constitution. We believe it is our constitutional duty to make sure the number of cases in the backlog is lowered and efforts are made to speed up case disposition [Brij Mohan Lal v. Union of India & Others (2002-4-scale-433) MAY 6 2002]. The Law Commission of India reports’ research offers light on the elements causing delays and a sizable backlog of cases before the courts. Frequent adjournments at the request of clients and solicitors are the primary contributing factor [Salem Advocate Bar Association, Tamilnadu v. Union of india (UOI), (2005) SCC 344].
Access to justice and a fair trial are both important human rights. In many countries, human rights legislation stipulates that a fair trial must take place within a reasonable amount of time. However, it is a basic right according to Articles 14 and 21 of the Indian Constitution. As a result, it is essential to take into account employing alternative conflict resolution procedures to exercise the human right to access justice. The Supreme Court specifically said in Sundaram Finance Ltd. v. NEPC India Ltd. [AIR 1999 SC 565] that the Arbitration and Conciliation Act, 1996 differs significantly from the Arbitration Act, 1940. The Act of 1996 was passed as a result of certain misinterpretation of the provisions of the Act of 1940. It is more pertinent to turn to the UNCITRAL model law for interpreting the terms of the Arbitration and Conciliation Act, 1996 rather than using the Act of 1940’s provisions.
CONCLUSION
ADR is a framework for organizing and cooperating towards a shared objective of resolving conflicts using strategies and abilities that can be learned and implemented. Mechanisms for alternative dispute resolution exist in addition to and outside of the traditional legal system. The administration of justice in India is under a lot of stress due to the large number of cases that are languishing in the courts for a number of different reasons. The necessity for alternate conflict resolution methods is highlighted by the enormous amount of court proceedings, which has increased significantly in recent years and led to delays and pendency.
REFERENCES:
- 1. M.K. Gandhi, “An Autobiography”, (1959), p.97
- 2. Durga Das Basu, Shorter Constitution of India, Lexis Nexis, Butterworths, Wadhwa, 14th edn., 2009
- 3. Section 89 of the Civil Procedure Code [Amendment July 2002]
- 4. Rule 14 of the SCLSC Regulation, 1996
- 5. Moideen Sevamandir v. A.M. Kutty Hassan, Civil Appeal No. 7282-7285 of 2008
- 6. (2005) 6 SCC 344
- 7. Afcons Infrastructure Ltd. & Anr. v. Cherian Varkey Construction Co. (P) Ltd. & Ors, (2010) 8 SCC 24
- 8. Kishan Rao And Anr. v. Bidar District Legal Services, AIR 2001 Kant 407, by Karnataka High Court
- 9. Ibid
- 10. Law Commission of India, 77th Report on Delay and Arrears in Trial Courts (Nov. 1978).
