Excellent study material for all civil services aspirants - begin learning - Kar ke dikhayenge!
SHARE:
Dispute redressal mechanisms in India
1.0 Introduction
"I had learnt the true practice of law. I had learnt to find out the better side of human nature, and to enter men's hearts. I realized that the true function of a lawyer was to unite parties given as under. The lesson was so indelibly burnt unto me that the large part of my time, during the twenty years of my practice as a lawyer, was occupied in bringing about private compromises of hundreds of cases. I lost nothing, thereby not even money, certainly not my soul."
Mahatma Gandhi
The most common forms of Alternate dispute redressals (ADR) in India are arbitration, mediation, conciliation, Lok Adalats and Nyay Panchayats. The scope of alternative dispute redressal mechanisms should be explored for delivering real and speedy justice. First and foremost advantage of Arbitration is that it can be used any time, even when a case is pending before a court of law.
2.0 PENDENCY OF THE INDIAN JUDICIAL SYSTEM
The Supreme Court and the various High Courts in India form a single integrated independent judiciary with distinct separation of original and appellate jurisdictions. The subordinate courts below the High courts represent the first tier of the entire judicial structure. As a general rule, civil cases are dealt with one set of hierarchy of courts known as civil courts and criminal cases by another known as criminal courts. This structure owes its origin to the advent of the British rule in India.
As of the total number of matters pending in the Supreme Court was around 60,000 and out of these, 1200 matters were pending for more than 10 years!
In the next three decades - as a conservative judicial estimate predicts - case pendency may register a five-fold increase to touch the figure of 15 crore but the judge strength will go up only four times to settle at 75,000.
The Union Law Minister, in his reply to a question in Lok Sabha, spoke about the reasons for increase in pendency. These include:
- Increase in institution of fresh cases
- Inadequate number of judges and vacancies
- Inadequate physical infrastructure and staff and
- Frequent adjournments.
The high courts and lower courts are overburdened and have to tackle with voluminous pending and fresh litigation arising everyday. Indeed high courts and various state governments, who have the power to appoint judicial officers, are very slow in taking steps to fill the vacancies in trial courts on time.
These delays are perennial (lasting an indefinitely long time) because of the loopholes in the procedural laws, viz., Code of Criminal Procedure, Code of Civil Procedure and the Indian Evidence Act. In criminal cases, conviction rate is also very dismal, which has shaken the faith of people in the judicial system.
In-spite of the constitutional guarantees, judicial decisions and the reports by various high-powered committees, the concept of speedy justice has remained an elusive goal. The backlog in the disposal of cases has always remained a big problem, which is not conducive to meet the challenges of globalisation, liberalisation of economy and achievement of welfare state ideals.
Over the past few years, some measures have been taken by the government to facilitate expeditious disposal of cases. These include schemes for computerisation, infrastructural augmentation, promotion of Alternate Dispute Resolution mechanisms,Fast Track Courts,permanenet Lok Adalats etc.
A dispute is basically 'lis inter partes' - a Latin term that means a legal suit between parties. In the adversarial litigation system, two parties contest their case and one party wins and the other party loses. The justice dispensation system in India has found an alternative to adversarial litigation in the form of ADR Mechanism (alternate dispute resolution) as per Section 89 - Code of Civil Procedure, which can be categorized in four broad heads which are:
- Arbitration
- Mediation
- Conciliation and
- Judicial settlement including settlement through Lok Adalat.
3.0 MEDIATION
"Mediation as an alternative dispute resolution mechanism can help in reducing the pendency of cases in the courts...Without this (alternate dispute mechanism) the entire legal system - the legal infrastructure that we have is going to have problems."
Mediation is a voluntary, party-centered and structured negotiation process where a neutral third party assists the parties in amicably resolving their dispute by using specialized communication and negotiation techniques. In mediation, the parties retain the right to decide for themselves whether to settle a dispute and the terms of any settlement. Even though the mediator facilitates their communications and negotiations, the parties always retain control over the outcome of the dispute.
3.1 Types of Mediation
COURT- REFERRED MEDIATION: It applies to cases pending in Courts and which the Court would refer for mediation under Sec. 89 of the Code of Civil Procedure, 1908.
PRIVATE MEDIATION: In private mediation, qualified mediators offer their services on a private, fee-for-service basis to the Court, to members of the public, to members of the commercial sector and also to the governmental sector to resolve disputes through mediation.Private mediation can be used in connection with disputes pending in Court and pre-litigation disputes.
3.2 Advantages of Mediation/Conciliation
The parties have control over the mediation in terms of
- its scope (i.e., the terms of reference or issues can be limited or expanded during thecourse of the proceedings) and
- its outcome ( i.e., the right to decide whether to settle or not and the terms of settlement.)
Mediation is participative. Parties get an opportunity to present their case in their own words and to directly participate in the negotiation.
The process is voluntary and any party can opt out of it at any stage if he feels that it is not helping him. The self-determining nature of mediation ensures compliance with the settlement reached.
The procedure is speedy, efficient and economical.
The procedure is simple and flexible. It can be modified to suit the demands of each case. Flexible scheduling allows parties to carry on with their day-to-day activities. The process is conducted in an informal, cordial and conducive environment and is a completely fair process. The mediator is impartial, neutral and independent. The mediator ensures that pre-existing unequal relationships, if any, between the parties, do not affect the negotiation.
The process is confidential. The process facilitates better and effective communication between the parties which is crucial for a creative and meaningful negotiation. Mediation helps to maintain/ improve/ restore relationships between the parties.
Mediation always takes into account the long term and underlyinginterests of the parties at each stage of the dispute resolution process - in examining alternatives, in generating and evaluating options and finally, in settling the dispute with focus on the present and the future and not on the past. This provides an opportunity to the parties to comprehensively resolve all their differences.
In mediation the focus is on resolving the dispute in a Mutually Beneficial Settlement. A mediation settlement often leads to the settling of related/connected case between the parties.
Mediation allows creativity in dispute resolution. Parties can accept creative and non conventional remedies which satisfy their underlying and long term interests, even ignoring their legal entitlements or liabilities. When the parties themselves sign the terms of settlement, satisfying their underlying needs interests, there will be compliance.
Mediation promotes finality. The disputes are put to rest fully and finally, as there is no scope for any appeal or revision and further litigation. Reund of court fees is permitted as per rules in the case of settlement in a court referred mediation.
4.0 Arbitration
Arbitration is a well-established form of ADR and the one that most closely mirrors court adjudication. Arbitration remains the preferable means of determining a wide range of disputes, involving technical and commercial issues. The major variables in arbitration are the degree of informality in the proceedings and the extent of appeal rights, compared to court adjudication.
Prior to the enactment of the Arbitration & Conciliation Act, 1996, the law of arbitration was governed by
- The Arbitration Act of 1940,
- The Arbitration (Protocol and Convention) Act 1937 and
- The Foreign Awards (Recognition and Enforcement) Act 1961.
In 1985, the United Nations Commission on Trade Law (UNCITRAL) adopted the UNCITRAL Model Law on International Commercial Arbitration. Taking into account UNCITRAL Model Law and Rules, the Parliament enacted the Arbitration and Conciliation Act, 1996. The Act made a significant change in the law relating to domestic arbitration.
By section 85 of the new Act, the aforesaid three acts have been repeasles. The Act, apart from updating the law of arbitration has provided statutory frame-work for conciliation. Arbitration and conciliation, under the new legislation are independent and autonomous procedures, which derive support from the courts, though they do not require constant supervision and control from courts.
4.1 Advantages of Arbitration
Arbitration is increasingly being recognised as the most effective method of solving commercial disputes, especially those of an international dimension. Costly, time-consuming business disputes cost a lot. Hence more and more companies are turning to the Indian Council of Arbitration. It can achieve equitable solutions more quickly than litigation, and at less cost; it allows parties to adopt whatever procedure they choose for the resolution of differences; it enables parties to decide where disputes shall be heard.
With a sophisticated and well placed legal system, India is also a party to the New York Convention (on enforcement of arbitration awards) allowing arbitral awards to be enforced by the Courts in almost any country around the world.
4.2 Legal framework for Arbitration in India
India has a comprehensive, contemporary and progressive legal framework to support international arbitration that is on a par with that of the world's leading arbitration institutions. Party autonomy and maximum judicial support with minimum judicial intervention are the abiding features of the new Arbitration and Conciliation Act, 1996, which provides for maximum judicial support of arbitration and minimal intervention.
Maximum court support: The courts in India offer full support and encouragement for arbitration. At the request of a party:
- They stop a court case from being carried on in breach of an arbitration agreement
- They enforce foreign arbitral awards made in New York Convention countries
- They enforce awards made in international arbitrations taking place in India
- They issue a wide range of interim measures of protection, including:
- preservation and interim custody of the subject matter of the dispute
- interim injunctions to preserve the status quo
- appointment of receiver
- securing the amount in dispute
- securing costs of the arbitration
- They issue processes to compel witnesses to attend arbitral proceedings
Minimum Court Interference: Indian courts do not review the merits of an award in an arbitration, unless it is at the request of a party and only under restricted grounds of challenge laid down in the Arbitration Act. A foreign award may also only be reviewed according to a similarly limited set of criteria.
Arbitration in India offers parties to a dispute the advantages of
- Quality trained arbitrators
- Speed of resolution
- A lower cost base
- Internationally enforceable decrees
5.0 LOK ADALATS
The concept of Lok Adalat is an innovative Indian contribution to the world jurisprudence. The introduction of Lok Adalats added a new chapter to the justice dispensation system of this country and succeeded in providing a supplementary forum to the victims for satisfactory settlement of their disputes. This system is based on Gandhian principles. It is one of the components of ADR systems.
The Legal Service Authorities Act, 1987 provides for the conduct of Lok Adalats. Lok Adalats can deal with pending cases which are referred to it for determination. Lok Adalats are organised at regular intervals. The Legal Services Authorities Act has been amended in 2002 with the object of establishing Permanent Lok Adalats.
Sec. 22 B of the Act provides for the establishment of the Permanent Lok Adalats. The Central Authority or every State Authority shall, by notification, establish Permanent Lok Adalats.
Every Lok Adalat established for an area shall consist of the following persons:
- A person who is, or has been a District Judge or Additional District Judge or has been held judicial office higher in rank than that of a District Judge. He shall be the Chairman of the Permanent Lok Adalat.
- Two persons having adequate experience in public utility service. They are to be nominated by the Central or State government on the recommendation of the Central or the State authority.
Any party to a dispute may, before the dispute is brought before any court, make an application to the Permanent Lok Adalat for the settlement of the dispute. The Permanent Lok Adalat shall not have jurisdiction in respect of any matter relating to an offence not compoundable under any law. It shall not have jurisdiction in the matter where the value of the property in dispute which exceeds rupees ten lacks. After an application is made to the Permanent Lok Adalat a party to that application shall not invoke jurisdiction of any court in the same dispute.
When an application is made to the Permanent Lok Adalat, it shall direct each party to file written statement stating the facts and nature of dispute. After filing of written statement the Permanent Lok Adalat shall conduct conciliation proceedings. The Permanent Lok Adalat shall assist the parties to reach an amicable settlement of dispute. If a settlement is arrived at, in the conciliation proceedings, the Permanent Lok Adalat shall formulate a settlement agreement and obtain signature on the settlement agreement and pass an award in terms of that agreement. A copy of the award shall furnish to each of the parties to the dispute. If the parties failed to reach an agreement, the Permanent Lok Adalat shall decide the dispute. The award of the Permanent Lok Adalat shall be final and binding on all the parties thereon and on persons claiming under them. Every award shall be deemed to be a decree of a Civil Court. The Permanent Lok Adalat shall transmit any award made by it to a civil court having local jurisdiction to execute the same.
5.1 Scope and Object
The advent of Legal Services Authorities Act, 1987 gave a statutory status to Lok Adalats, pursuant to the constitutional mandate in Article 39-A of the Constitution of India, contains various provisions for settlement of disputes through Lok Adalat.
Cases suitable for Lok Adalat: Lok Adalats have competence to deal with a number of cases like:
- Compoundable civil, revenue and criminal cases.
- Motor accident compensation claims cases
- Partition Claims
- Damages Cases
- Matrimonial and family disputes
- Mutation of lands case
- Land Pattas cases
- Bonded Labour cases
- Land acquisition disputes
- Bank's unpaid loan cases
- Arrears of retirement benefits cases
- Family Court cases
- Cases which are not sub-judice
As Justice Ramaswamy said: "Resolving disputes through Lok Adalat not only minimizes litigation expenditure, it saves valuable time of the parties and their witnesses and also facilitates inexpensive and prompt remedy appropriately to the satisfaction of both the parties".
PERMANENT LOK ADALAT: In 2002, the Parliament brought about certain amendments to the Legal Services Authorities Act, 1987. The said amendment introduced Chapter VI-A with the caption PRE LITIGATION CONCILIATION AND SETTLEMENT. Section 22-B envisages establishment of "PERMANENT LOK ADALATS (PLA)" at different places for considering the cases in respect of Public Utility Services (PUS). The Central or State Authorities may establish by notification, Permanent Lok Adalats at any Permanent Lok Adalats, for determining issues in connection to Public Utility Services.
Public Utility Services include:
- Transport services
- Postal, telegraph or telephone services
- Supply of power, light and water to public
- System of public conservancy or sanitation, and
- Insurance services and such other services as notified by the Central or State Governments.
PERMANENT LOK ADALATs have the same powers that are vested on the Lok-Adalats. Any PLA has to be established by the National Legal Services Authority (NALSA) or the State Legal Services Authorities. It shall have three members - the Chairman, who is or has been a District Judge or an Additional District Judge or has held a judicial office higher in rank than that of a District Judge and two other members having adequate experience in public utility service.
Such persons shall be appointed by the State or the Central Authority, as the case may be, upon nomination by the respective Governments. But at the same time, such nomination shall be on the recommendation of the Central or the State Authority.
As of June, 2013, the National Lok Adalat organised throughout the country had "effectively wiped out" a record 28.26 lakh cases pending in various courts.
6.0 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
The Consumer Protection Act, 1986 is a benevolent social legislation that lays down the rights of the consumers and provides for promotion and protection of the rights of the consumers. The first and the only Act of its kind in India, it has enabled ordinary consumers to secure less expensive and often speedy redressal of their grievances. By spelling out the rights and remedies of the consumers in a market so far dominated by organized manufacturers and traders of goods and providers of various types of services, the Act makes the dictum, caveat emptor ('buyer beware') a thing of the past.
The remedy under the Consumer Protection Act is an alternative in addition to that already available to the aggrieved persons/consumers by way of civil suit. In the complaint/appeal/petition submitted under the Act, a consumer is not required to pay any court fees but only a nominal fee. Consumer Forum proceedings are summary in nature. The endeavor is made to grant relief to the aggrieved consumer as quickly as in the quickest possible, keeping in mind the provisions of the Act which lay down time schedule for disposal of cases. If a consumer is not satisfied by the decision of a District Forum, he can appeal to the State Commission. Against the order of the State Commission a consumer can come to the National Commission.
COMMENTS