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ALTERNATE DISPUTE RESOLUTION IN INDIA

Today when about more than two and half crores (As per the Ministry of Law and
Justice press release 48,838 cases are pending in Supreme Court, 38,82,074 cases pending in
high Court and 2,52,40,185 are pending in subordinate courts as on 31.1.2008) of case
pending in our courts, that means at least five crore people are directly involved in litigation
that about 4 percent of our population, and we have only 12,500 judges at lower court level
and about 647 judges at various High Court and 26 judges in Supreme Court of India. Our
Justice Administration system is adversarial in nature in which there are two parties and
they are on face to face with each other in the Court, and we have seen that its not the legal
issues which are involved in most of the cases put before us rather its ego which come in
between and it ultimately ends in blood amongst the litigants, and hatretism.
It is also observed that our courts have very limited time for example 10:00 AM to
5:00 PM we are in Court but during that time we have to manage out time for various things
like signing of files, and day to day orders, meetings, compliances of directions of higher
courts, and other miscellaneous work, which a judge has to see.
What is justice, in laymans term its something which a aggrieved person deserves
and it has been encroached upon by another, and now our conventional system of justice
needs overhauling and need to develop a new approach, the alternative dispute resolution is
an steps towards that end, and in India we have yet not developed a full fledged system, the
time has come that as a judge we need to take initiative at the court of first instance, which
plays the most important role in the justice delivery system, as the seed of justice is sowed
over there, because the case takes off from there and we lack a strong system at that which
can be easily rectified, the Shetty Commission envisages 50 judges per million we have only
10.5 judges per million, the judges really are over burdened with work, and due to this the
work is hotched potched and become out of control, which can be easily managed by
systematic approach and firstly by enhancing the number of judges, not that we should right
now recruit all the judges at one go, but in a phased manner, the Honble Supreme Court has
pronounced in its judgment that the living conditions of the judges at lower level should be
improvised and they deserve better living standard and all states and Centre should take
initiative because we implement laws which are passed by both Parliament and State
legislature, and its joint liability of both the state and Centre to make budgetary allocation to
fulfill the need of the courts. I am sure the Presiding officer of the court will be able to work
with more efficiency if his basic needs are taken care properly.
Judges work is divine work and the justice is done by god and we are doing
delegated work of God so, as a judge we should never forget that our judgments have direct
impact on the society, and public have lots of expectations from us, and we should try to
come up to their expectations.
Today we have seen that everyone take resort to strikes, road blocks, and other modes
of disobedience, this situation has not arisen over night, rather its a consistent development,
people are slowly losing their faith in judicial system also, as they end up getting justice at a
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very later stage, which is too late, as justice delayed is justice denied. Today the public at
large gave lost faith in government and police deptt; their FIRs are not getting registered,
which is a settled law, law is social engineering, and the role of judges is the important in this
whole episode, and law is governed by two rules, firstly equality before law, and no one is
above law.
The Legal Services Authorities Act, 1987 has also been amended from time to time to
endorse use of ADR methods. Section89 of the Code of Civil Procedure as amended in 2002
has introduced conciliation, mediation and pre-trial settlement methodologies for effective
resolution of disputes. Mediation, Conciliation, Negotiation, Mini-Trial, Consumer Forums,
Lok Adalats and Banking Ombudsman have already been accepted and recognized as
effective Alternative dispute resolution methodologies.
Alternative dispute resolution has greatly expanded over the last several years to
include many areas in addition to the traditional commercial dispute in the form of
arbitration; mediation has become an important first step in the dispute resolution process.
Arbitrators and mediators have an important role in resolving disputes. Mediators act as
neutrals to reconcile the parties differences before proceeding to arbitration or litigation.
Arbitrators act as neutral third parties to hear the evidence and decide the case. Arbitration
can be binding or non-binding.
What is ADR? In simple terms it is Alternate Dispute Resolution the conventional
Courts use formal system of redressal applying various rules of law, as we have erstwhile
mentioned that our system is adversial. The concept of Conflict Management through
Alternative Dispute Resolution (ADR) has introduced a new mechanism of dispute resolution
that is non adversarial. A dispute is basically lis inter parties and the justice dispensation
system in India has found an alternative to Adversarial litigation in the form of ADR
Mechanism in which two parties contest their case and one party wins and the other party
looses, but in case of alternate dispute resolution (Section 89 Code of Civil Procedure),
which can be categorized in four broad heads which are-
1. arbitration;
2. mediation;
3. conciliation;
4. judicial settlement including settlement through Lok Adalat.
It is win win situation and no party wins no party looses, today the need of time is
that we resort to non conventional systems as well, we should not forget that its not
something new to us, we had for ages, like panchayats etc, it was self sufficient, every village
has panchayat and it was a powerful authority for redressing the disputes. The best part of
ADR is that since both parties come face to face and they work out the modalities and reach
to an amicable solution, there is no likelihood of winning or losing the case, i.e. its a win
win situation and thereafter no appeal, and thus it reduces the burden of appellant courts as
well, the arbitration and conciliation Act, 1996 provides for Arbitration and the award given
by the arbitrator is deemed to be a decree. It was step towards the ADR. The labor legislation
has already incorporated conciliation and mediation system in their enactments, to have an
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amicable solution in case of tussle between the labor and the management. The conventional
courts are already overburdened with loads of cases, and at least a sizable number of cases
can be disposed off by way of ADR. The CPC envisages for use of ADR in section 89 in
amended section as mandatory for court to refer the dispute after the issues are framed for
settlement of disputes outside the Court (Clause 7 of the CPC Amendment (Bill), 1999). The
Law Commission of India in its 129
th
Report recommended for the Alternate modes of
Dispute Redressal to be obligatory on the courts after framing of issues. It is only after the
parties fail to get their disputes settled through any one of the alternate dispute resolution
methods that the suit shall proceed further in the court where it was filed.
The purpose of this special provision seems to help the litigant to settle his dispute
outside the Court instead of going through elaborate process in the court trial. This is a
special procedure for settling the dispute outside the courts by a simpler and quicker method.
The litigants on the institution of the suit or proceedings may request the Court to refer the
disputes and if the court feels that there exist any element of settlement which may be
acceptable to the parties; it may refer them to any of the forums abovementioned at any stage
of the proceedings. In fact new rules in Order X were inserted in consequence to the insertion
of the sub section (1) of section 89. These new rules namely 1A, 1B and 1C have been
inserted by the Amending Act. The settlement can be made by adopting any of the modes
specified in the section 89 of the CPC inserted by the Amendment Act. As per the Rule 1A
the parties to the suit are given an option for settlement of the dispute outside court. When the
parties have exercised their option it shall fix the date of appearance before such person as
may be opted by the parties. As per the Rule 1-B the parties are required to appear before
such forum opted by them. Rule 1C provides for the Presiding Officer of the Forum to refer
the matter again to the Court in case he feels that in the interest of justice he should not
proceed with the matter.
On the basis of above analysis it is apparent that the ADR is the best and most
effective solution to reduce the Himalayan pendency in various courts of our country. It is not
to forget that the ADR is more effective as it is an amicable solution and both parties are in
win win position and brings about harmonious relationship between both the parties unlike
in the conventional courts, thus it is permanent solution to any dispute, as it dont lead to
appeal or revision, and hence reducing the burden of appellate courts as well and also it saves
valuable time and energy of the courts which can be utilized erstwhile in other matters
pending before court and it renders justice on time (Justice delayed is justice denied, but
ADR saves time and timely judgment is possible). As a judge it is our duty as envisaged by
the new CPC to encourage the ADR, in civil maters in the interest of justice. Despite many
advantages of using Alternative dispute resolution mechanisms, our society has been
reluctant to give it its due recognition. The predominant reason being that a litigation ridden
society is generally unable to explore consensual dialogue or arrive at an amicable solution.
The ADR practitioner therefore acts like a healer of conflicts rather than a combatant. It is
similar to the Panchayat system we have in our villages. The resolution of disputes is so
effective and widely accepted that Courts (In sitanna v. Viranna; AIR 1934 SC 105, the Privy
Council affirmed the decision of the Panchayat and Sir John Wallis observed that the
reference to a village panchayat is the time-honoured method of deciding disputes) have more
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often recognized them. It avoids protracted litigation and is based on the ground realities
verified in person by the adjudicators and the award is fair and honest settlement of doubtful
claims based on legal and moral grounds.