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The Latin maxim 'Salus populi est suprema lex' which means the welfare of the public is the supreme law, is one of the well known laws which deals with public interest. To this maxim all other maxims of public policy must yield for the object that "all laws are to promote the general well being of society". In other words, "regard for the public welfare is the highest law".
Constitution of India, Art.39-A: The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
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Hussainara Khatoon v. Home Secretary, State of Bihar AIR 1979 SC 1369. Also See: Abdul Rehman Antulay v. R.S. Nayak & Anrs. AIR 1992 SC 1701;Kartar Singh v. State of Punjab(1994) 3 SCC 569; Sheela Barse v. State of Maharashtra AIR 1986 SC 1773
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2010 SCC 24
ALTERNATIVE DISPUTE RESOLUTION: A NEW JUDICIAL MECHANISM OF MODERN ERA
Aditya Sharma and Manjeet Kumar Sahu
1 B.A LL.B (Hons.) ,College of legal studies, University of Petroleum & Energy Studies, Dehradun ,248007.INDIA
2 B.A LL.B (Hons.) ,College of legal studies, University of Petroleum & Energy Studies, Dehradun ,248007,INDIA
INTRODUCTION
India is a modern state that has accepted the concept of welfare state and determines to secure the welfare of the people. Keeping in mind "Salus populi est suprema lex" which means "Let the welfare of the people be the supreme law", ADR can be termed as a great boon for the administration of justice. The Preamble of our Constitution also reflects justice to be social, economic and political. One of the main functions of law in society is maintenance of law and order and the administration of justice and that's why free legal aid services were incorporated in our legal system by 42nd amendment act, 1976.Administration of Justice involves protection of the innocent, punishment of the guilty and the satisfactory resolution of disputes. Justice is the foundation and object of any civilized society. Any procedure which permits impairment of the constitutional right to go abroad without giving reasonable opportunity to show cause can be consider as unfair and unjust. Justice is the primary goal of any legal system. The concept of legal aid to the indigent has its roots in the well-settled principle of natural justice: 'Audi Alteram Partem'. Constitution of India aims to provide free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic inability.
The duality of law in society as an instrument of social change as well as a means of social control has created confusion about the actual effectiveness of law in society. In India, society is also growing rapidly due to heavy influence of ultra modern scientific, technological and biological development which is not only leading to the development but also imparting the negative consequences to society like increase in the rate of cases (crime, fraud, breach of contract, and various disputes with innovative ideas) example of recent money laundering by ICICI and HDFC bank. Due to duality in law all this instances have posed a number of challenges before judiciary and misuse of law by court officers (lawyers) led to pending in the suits. There is legal maxim "justice delayed is justice denied", requires that legal redress should be timely. Thus, if legal redress available for a party that has suffered some injury is not forthcoming in a timely manner, it is almost effectively the same as having no redress at all. This principle is the basis for the right to a speedy trial and similar rights which are meant to expedite the legal system because it is unfair for the injured party to sustain the injury with little hope for resolution. Therefore, the delay in justice relates to the delay in actual deliverance of justice or passing of the final order into the matter after the round up of the entire proceedings in full conformity of the prescribed procedures in respect thereof.
There are number of cases in which the Supreme Court has repeatedly stated that speedy trial is an integral part of Article 21 of the Constitution. In India, we find that the working of whole of the system is not satisfactory at all. As a result, there is an inordinate delay in the disposal of cases due to highly time consuming procedure. The number of cases in the courts is also increasing day-by-day. The time taken on average case is more than four years. The justice as such is becoming costlier in terms of time and money. Since the citizens are unable to apply costly lubrication to the parts of mechanism attached to the system, their work is delayed and justice goes out of their reach. As per the latest report by the Ministry of Law and Justice, there are 43.2 lakh cases pending in the High Courts and 2.69 crore cases pending in the district courts. It is very astounding that the numbers of pending cases are continuously in the state of accretion.
Moreover, Justice warren Burger, the former CJI of American Supreme Court once rightly stated "The harsh truth is that we may be on our way to a society overrun by hordes of lawyers, hungry as locusts, and bridges of Judges in numbers never before contemplated. The notion that ordinary people want black robed judges, well-dressed lawyers, fine paneled court rooms as the setting to resolve their disputes, is not correct. People with legal problems like people with pain, want relief and they want it as quickly and inexpensively as possible".
This seriousness of pendency, delay in speedy justice and huge flow of money in litigation have resulted in recognition of "Alternative Dispute Resolution" (ADR) Mechanism in India. There is a growing awareness among the masses and people are increasingly using the same for getting their disputes settled outside the court. The traditional means and modes of dispute settlement have seen a renaissance in the form of ADR mechanisms and its growth in the future is guaranteed.
INDIAN JUDICIAL SYSTEM
In order to have a better perspective regarding Alternate Dispute Resolution, one should know about the basics and functionary of Indian Judicial system. The Constitution of India has set up three branches of the State:
1. Impartial Judiciary
2. Accountable Executives, and
3. Democratic Legislature.
At no time in the history of human civilization the need for an independent judiciary has been felt as now, as the judiciary has often to adjudicate on constitutional validity of the laws enacted by the legislature and validity of executive actions.
These are demarcated by their respective areas of jurisdiction. The judiciary is invested with the power to ensure that all organs of the Constitution act within their respective constitutional limits. It is also the sole interpreter of the constitution and the sole arbiter in all constitutional disputes. India follows the adversary system of legal procedure. This means that the judge acts as a neutral arbiter upholding the balance between the contending rivals without actively taking part in the forensic debate in the court.
ALTERNATE DISPUTE RESOLUTION
Alternate dispute resolution is the mechanism in which disputed parties discourage litigation and resolve their dispute by negotiations. Hence, the enterprise of justice will thrive and satisfaction of both the parties without any delay and heavy costs. In 1995 the International Center for Alternative Dispute Resolution (ICADR) was inaugurated by Shri P.V.Narasimha Rao, the Prime Minister of India had observed:
"While reforms in the judicial sector should be undertaken with necessary speed, it does not appear that courts and tribunals will be in a position to hear the entire burden of the justice system. It is incumbent on government to provide a reasonable cost as many modes of settlements of disputes as are necessary to cover the variety of disputes that arise. Litigants should be encouraged to resort to alternative dispute resolution so that the court system proper would be left with a smaller number of important disputes that demand judicial attention."
Under this, Disputes are settled with the assistance of third party, where proceedings are simple and are conducted, by and large, in the manner agreed to by the parties. ADR stimulates to resolve the disputes expeditiously with less expenditure of time and money.
Objective of Alternate Dispute Resolution
With a view to save the litigants from getting indulged in corrupt practices and also for the sake of achieving easier and speedy justice, in the year 2002 section 89 was enforced. With this amendment in the Code of Civil procedure, 1908, it was felt for the first time in the Indian Judicial system that the ADR mechanism has found its legitimate place.
The primary object of ADR movement is avoidance of vexation, expense and delay and promotion of the ideal of "access of justice" for all. ADR system seeks to provide cheap, simple, quick and accessible justice. The object of the alternative dispute resolution process of arbitration is to have expeditious and effective disposal of the disputes through a private forum of parties choice. ADR is a process distinct from normal judicial process. Under this, disputes are settled with the assistance of third party, where proceedings are simple and are conducted, by and large, in the manner agreed to by the parties. ADR stimulates to resolve the disputes expeditiously with less expenditure of time, talent money with the decision making process towards substantial justice, maintaining to confidentiality of subject matter. So, precisely saying, ADR aims at provide justice that not only resolves dispute but also harmonizes the relation of the parties.
The first avenue where the conciliation has been effectively introduced and recognized by law is in the field of 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 Industrial Disputes Act 1947 makes it attractive for disputing parties to settle disputes by negotiation and failing that through conciliation through an officer of the Government, before resorting to litigation. In Rajasthan State Road Transport Corporation v. Krishna Kant, the Supreme Court observed:
"The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute-resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and unencumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to civil courts. Indeed, the powers of the courts and tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute."
Modes of Alternate Dispute Resolution in India
Arbitration - Arbitration is a procedure for settling disputes between the parties, who usually agree to accept the decision of the arbitrator as legally binding. The hearing and determination of a dispute by an impartial referee agreed to by both parties. The arbitrator will make a decision based on the written evidence presented by the parties. The decision is confidential and cannot be made public without an agreement.
Conciliation - In consumer disputes, conciliation is the first stage in the arbitration process and the conciliator is usually a member of the trade association. Both parties were asked to give written details of the complaint, including any evidence, and the conciliator will give an opinion on the best solution. Any decision is not binding and won't prevent parties from taking court action. If you disagree with the opinion offered, you can then proceed to the arbitration stage or consider suing in court. There is usually no charge for conciliation.
Mediation - If you use a mediation scheme, the mediator will help parties to negotiate an acceptable agreement and will act as a go between if you don't want to meet. If both the parties agrees to mediation, both will be asked to give details of the dispute, including copies of any evidence and will be asked to sign a mediation agreement giving a framework for the mediation. The mediator may arrange joint or separate meetings with you and the supplier and will help you to identify the strengths and weaknesses in your case. Mediation can be expensive, but you may be able to get legal aid to help with the costs.
Lok Adalats – A court, which deals with trivial matters low cost of litigation
Negotiation – in this, Two parties resolve their dispute by negotiating their claims and discourage litigation
The 238th Report of Law Commission dated December, 2011 with regard to amending the section 89 of the code provides the clear understanding of the existing process of Alternate Dispute resolution. Section 89 has to be read with Rule 1-A of Order 10 which requires the court to direct the parties to opt for any of the five modes of alternative dispute resolution processes and on their option refer the matter. Though, it is not mandate to draw every matter for the Alternate Dispute Resolution in India.
The Supreme Court of India in Afcons infrastructure and Ors. v. Cherian Verkay Construction and Ors. highlighted the included and excluded category of cases that can/cannot be referred for the ADR Mechanism. Those were:
Cases that cannot be referred for ADR Process are as follows:
Representative suits under Order 1 Rule 8 CPC which involve public interest or interest of numerous persons who are not parties before the court. .
Disputes relating to election to public offices.
Cases involving grant of authority by the section after enquiry, as for example, suits or grant of probate or letters of administration.
Cases involving serious and specific allegations of fraud, fabrication of documents, forgery, impersonation, coercion etc.
Cases requiring protection of sections, as for example, claims against minors, deities and mentally challenged and suits for declaration of title against the Government.
Cases involving prosecution for criminal offences.
Cases that can be referred for ADR process are as follows:
All cases relating to trade, commerce and contracts;
All cases arising from strained relationship, such as matrimonial cases;
All cases where there is a need for continuation of the pre-existing relationship, such as disputes between neighbour and members of societies;
All cases relating to tortuous liability, including motor accident claims; and
All consumer disputes.
Mechanism for the ADR Process
Sometime, it becomes difficult as to when can we exercise ADR process in continuation to the Judicial Procedure. However, the court has summarized the procedure to be adopted by the court under section 89 of the code.
When the pleadings are complete, before framing issues, the court shall fix a preliminary hearing for appearance of parties. The court should acquaint itself with the facts of the case and the nature of the dispute between the parties.
The court should first consider whether the case falls under any of the category of the cases which are required to be tried by courts and not fit to be referred to any ADR processes. If it finds the case falls under any excluded category, it should record a brief order referring to the nature of the case and why it is not fit for reference to ADR processes. It will then proceed with the framing of issues and trial.
In other cases (that is, in cases which can be referred to ADR processes) the court should explain the choice of five ADR processes to the parties to enable them to exercise their option.
The court should first ascertain whether the parties are willing for arbitration. The court should inform the parties that arbitration is an adjudicatory process by a chosen private forum and reference to arbitration will permanently take the suit outside the ambit of the court. The parties should also be informed that the cost of arbitration will have to be borne by them. Only if both parties agree for arbitration, and also agree upon the arbitrator, the matter should be referred to arbitration.
If the parties are not agreeable for arbitration, the court should ascertain whether the parties are agreeable for reference to conciliation which will be governed by the provisions of the AC Act. If all the parties agree for reference to conciliation and agree upon the conciliator/s, the court can refer the matter to conciliation in accordance with section 64 of the AC Act.
If parties are not agreeable for arbitration and conciliation, which is likely to happen in most of the cases for want of consensus, the court should, keeping in view the preferences/options of parties, refer the matter to any one of the other three other ADR processes :
(a) Lok Adalat;
(b) Mediation by a neutral third party facilitator or mediator; and
(c) A Judicial settlement, where a Judge assists the parties to arrive at a settlement.
If the case is simple which may be completed in a single sitting, or cases relating to a matter where the legal principles are clearly settled and there is no personal animosity between the parties (as in the case of motor accident claims), the court may refer the matter to Lok Adalat. In case where the questions are complicated or cases which may require several rounds of negotiations, the court may refer the matter to mediation. Where the facility of mediation is not available or where the parties opt for the guidance of a Judge to arrive at a settlement, the court may refer the matter to another Judge for attempting settlement.
If the reference to the ADR process fails, on receipt of the Report of the ADR Forum, the court shall proceed with hearing of the suit. If there is a settlement, the court shall examine the settlement and make a decree in terms of it, keeping the principles of Order 23 Rule 3 of the Code in mind.
If the settlement includes disputes which are not the subject matter of the suit, the court may direct that the same will be governed by Section 74 of the AC Act (if it is a Conciliation Settlement) or Section 21 of the Legal Services Authorities Act, 1987 (if it is a settlement by a Lok Adalat or by mediation which is a deemed Lok Adalat). This will be necessary as many settlement agreements deal with not only the disputes which are the subject matter of the suit or proceeding in which the reference is made, but also other disputes which are not the subject matter of the suit.
If any term of the settlement is ex facie illegal or unforceable, the court should draw the attention of parties thereto to avoid further litigations and disputes about executability.
Merits:
ADR is mechanism to get justice in low cost
ADR is less time-consuming.
ADR is free from technicalities as in the case of conducting cases in law Courts.
Parties are free to discuss their differences of opinion without any fear of disclosure of this fact before any law courts.
Parties have the feeling that there is no losing or winning side between them but at the same time their grievance is redressed and their relationship is restored.
Justice in all its facets social, economic and political is required to be rendered to the masses of this country without any further loss of time the need of the hour. The new strategy consists in dispute resolution by conciliation, mediation and negotiation. The constitutional promise of securing to all citizens justice, social, economic and political, as promised in the Preamble of the Constitution, cannot be realised unless the three organs of the State i.e., the legislature, the executive and the judiciary join together to find ways and means for providing to the Indian poor equal access to the State's justice system.
Demerits:
ADR programs do not set precedent, refine legal norms, or establish broad community or national standards, nor do they promote a consistent application of legal rules.
ADR programs cannot correct systemic injustice, discrimination, or violations of human rights.
ADR programs do not work well in the context of extreme power imbalance between parties.
ADR settlements do not have any educational, punitive, or deterrent effect on the population.
It is inappropriate to use ADR to resolve multi-party cases in which some of the parties or stakeholders do not participate.
ADR may undermine other judicial reform efforts.
All the mechanism of ADR is appealable in the higher courts, which ultimately defeat the objective of Alternate Dispute Resolution.
CONCLUSION
It was red letter day in the history of the procedural law when section 89 was introduced in the code of civil procedure, 1908. Section 89 emerged with the mechanism of settling dispute outside the purview of the existing court. The idea behind introducing this mechanism was to provide parties a chance to settle dispute on their own so as to reduce burden of the court in trivial matters as well. This mechanism has tried to reduce the long lasting litigation and go for compromise decree in fewer expenses and in a short span of time.
Alternate Dispute Resolution has outwardly counter attack the existing litigation process in India. The rampant delaying in disposition of case in Indian courts is the greatest challenge to the judicial system facing today. Delay in justice led to people taking law farcically, this is entropy in our judicial system. In the chronicles of judiciary reforms and legal justice to citizens, it is well documented that the judiciary should be able to dispose the legal cases efficiently within the apparatus of its functioning through some process innovations. While adjudicating the legal cases in a fair manner assumed primacy of the legal systems, it is now increasingly recognized that the speedy disposal of legal cases is equally important in the legal system that laid down the principle that justice delayed is justice denied. This brings to the fore the need for mechanisms not only for a faster process of adjudication but also for speedy and appropriate action by the concerned parties. The speedy disposal of legal cases is an important element of not only the judicial system but it is also the factor which maintains faith of people in law and justice, otherwise it is human tendency that, person mostly tries to do justice by himself and if he don't able to do that then only he chooses the path of law. So, delay in justice led to losing of faith in law by people, this may also be reason for increasing number of crimes in our society because when person do not get justice from the state then surely he will choose the wrong path and to overcome this problem Indian legislatures and judiciary making efforts to eliminate or reduce this problem by enacting laws like Arbitration, conciliation and mediation act, 1996, by establishing various tribunals and courts for particular causes like green courts, debt tribunal, Administrative tribunals etc. But the main problem arises that high courts and Supreme Court, both have appellate jurisdictions any matter resolved by these sub-ordinate courts or tribunals are appealable and 80-90 percentage (approx.) cases were appealed in high courts and Supreme Court. And if High court or Supreme court found any trivial discrepancy also they start trail and case will last minimum 4-5 years and it will become very difficult for the indigents people to afford costly litigations, court fees, stamps etc. which mandatory for every person. So, to avoid costly litigation and court fees, our legal system encourages people to go for Alternate dispute resolution. Alternative dispute resolution is a weapon to meet this challenge. ADR is the flexible mechanism which abridges the gap between people and justice.
REFERENCES:
F.S. Nariman(1997), "Alternative Dispute Resolution", p.45
Stephen B. Goldberg, Frank E.A. Sander and Nancy H. Rogers(1992), 'Dispute Resolution: Negotiation, Mediation And Other Processes' (2nd Edn.), Little Brown and Co., New York, pp. 3-12
Elizabeth Plapinger and Donna Stienstra(1996), "ADR and Settlements in the Federal District Courts: A Sourcebook For Judges And Lawyers",Federal Judicial Center and CPR Institute for Dispute Resolution, pp. 3-13.
Alternative Dispute Resolution Practitioners' Guide(March, 1998) Technical Publication Series
Pandey, J.N Dr.(2007),' Constitutional law of India',44th Edn., Jain Book Agency,New Delhi
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