Alternative Disputes Resolution Mechanism In India Law

10 Pages


Words: 2862

Date added: 17-06-26


open document save to my library
In Article 21 of the constitution of India, it is been stated in the mandatory tone that no person should be deprived with his life and personal freedom except according to the method established by law. Further, the method mentioned in the Article is not some form of a procedure but it should be "reasonable, fair and just". [1] Thus, the right to speedy trial has been rightly held to be a part of right to life or personal liberty by the Supreme Court of India. [2] The supreme court of India has allowed Article 21 to stretch its arms of scope as much as possible legitimately. [3] The reason for doing all this is very simple, this interpretation done of Article 21 is to redress mental agony, expenses and strain against which the person is proceeded in criminal law has to undergo and which if coupled with delay, may result in putting the accused at disadvantage of impairing his capability to defend himself effectively. Thus the Supreme Court has held the right to speedy trial as the clear appearance of the just, fair and reasonable procedure as enshrined in Article 21. A speedy trial includes within its sweep all its stages including inquiry, trial, revision, appeal etc. Section 89 of CPC is the form of statutory recognition it has received and was prevalent in many parts of the country. Our country can never forget the contribution made by Mr. Justice Thakkar. This system was voluntary and litigants were not forced, hence the system did not carry criticism. The greatest challenge that the judiciary is facing today is the delay in the disposal of cases and prohibitive cost of litigation for the poor as well as middle class of people. The average waiting time, both in the civil as well as criminal subordinate courts, can extend to several years. So there seems the contradiction about fair justice delivered to people after waiting so long. The judiciary in India is already suffering from huge backlogs of cases. In fact as on 31st October 2005, the number of cases pending to be decided before the Supreme Court was 253587003, which makes justice less accessible. It is now universally accredited that 'Justice delayed is Justice denied'. The existing justice system is not able to cope up with the ever-increasing burden of civil and criminal litigation. The delay in the judicial system results in loss of public confidence on the concept of justice. We experienced that litigation merely in the courts are not going to resolve the disputes. Congestion in the courts rooms, lack of manpower and resources in addition with delay, cost and methodology speaks out the need for extra options, approaches and avenues. To quote, Mr. Justice V.R Krishna Iyer "Interminable, time consuming, complex and expensive court procedure impelled jurists to search for an alternate forum less formal, more effective and speedy for resolution of dispute avoiding procedural clap trap led to the Arbitration act." [4] Alternative Dispute Resolution mechanism is a click to that option. The techniques of ADR mechanism have been developed on scientific lines in America, Britain, France, Canada, China, Japan, South Africa, Australia and Singapore. ADR has emerged as a significant movement in these countries, as well as not only helped reduce cost and time taken for resolution of disputes out side court, but also in providing a friendly and voluntarily atmosphere and a less formal and complicated forum for various types of disputes. When the system was tested on small scale prior to introducing it at a large it was been tried in the further described manner. Once the cases were fed in the computer, they were tried to be classified, initially into forty five classifications and later on in sixty classifications. This helped grouping the similar cases according to the date of filing which were otherwise scattered. There were three tracks created as normal, medium and fast track. The case load for fast and medium tracks were fixed and hence the cases kept moving automatically from normal to these medium and fast tracks as the case load was shrinking. Thereafter the cases were allocated to the different benches concerning to their respective subjects and these benches used to worked stretched without much changes for about three to four months. The members of the Bar knew that they had to take their chance. There after the loop of cases tumbled like the house of playing cards as they were heard in large groups. The result was satisfactory as Dr. Abhishek Singhvi wrote in Indian Express in January 1996: "These initiatives dramatically reduced the Supreme Court caseload from approximately 120,000 cases in October 1994 to 28,000 cases in September 1996". The government of India enacted the Legal Services Authority Act, 1987(39 of 1987), Section 20(1), where government empowered the courts to refer a dispute of Lok-Adalat. The Indian Arbitration Act, 1940 was repealed and also the new Arbitration and Conciliation Act, 1996 was brought into force based on the UNCITRAL model with lessened court intervention in the cases. Again the parliament under the Amendment Act of 1999 made the provision available for the resolution of the disputes outside the courts through any of the ADR mechanism under the amended section 89, Criminal Procedure Court. This provision require the Judge to determine the mechanism to which the elements of the cases belongs to. Corresponding changes were also made by adding the ruling of 1A, 1B, and 1C in order X, Criminal Procedure Court and made some required alteration in other provisions also. The primary purpose of the ADR to operate is to avoid anger produced by some annoying irritation, increased cost and delay, an be benchmark of promotion of the ideal of "access of justice" for all. ADR is a process different from normal judiciary system. Under this the dispute are resolved by the assistance of third party. Where proceeding are with simple expenditure of time, money with the decision making process towards the substantial justice, maintaining the privacy of the case. So in precisely it is feasible to say that ADR aims provide justice that also harmonizes the relation of the parties with resolving the disputes. The mechanisms of ADR are as follows: Arbitration, Mediation, Negotiation, Conciliation/Reconciliation, Negotiation, Lokadalat. In India there are varied mechanisms of ADR which exists to resolve the disputes outside the court but the choice of the ADR mechanism largely depends upon the nature of dispute and relation of the parties involved. Arbitration and the Lokadalat are the most commonly used mechanism to resolve the disputes. The arbitration and conciliation act 1996, governs the arbitration procedures in India and the only requirement is there application in letter. Sec 16 of the Act is important and it states that arbitral tribunal can rule on its own jurisdiction, including decisions on objections with respect to the authority of the agreement of arbitration. Arbitration can either be voluntary or mandatory and can either be non binding or binding. Non binding Arbitration becomes closer to mediation.

The following is a brief overview of the Arbitration and conciliation Act,1996:

Section Overview

Section 7 Relates to arbitration agreement. Section 8 When parties should move to court. Section 9 Interim measures. Section 10 No. of arbitrators to be appointed. Section 12 Procedure of appointment of arbitrators. Section 13-14 Challenge of Arbitrator. Section 16-17 Jurisdiction of Arbitrator. Section 18-30 Conduct of Proceedings Section 31 Awards Section 32-33 Correction of Award. Section 34 Recourse Against Reward. Negotiation is intended to resolve the disputes, to produce an agreement upon action plan, to negotiate for the individual or collective advantage, or to bring something positive out of it. Negotiation occurs in government branches, in business, non profit organization and in personal situation like divorce, marriage, fostering and everyday life. The subject is been studied as Negotiation Theory. Those who work in negotiation professionally are called as Negotiators. In the expression of a inner contradiction, the data suggest that the many of the lawyers and judges working in the lower criminal and civil courts, as well as the extra courts like lok adalats' (mediations of ADR)-who resolved large numbers of cases involving serious violence against women, which sometimes also concluded by food deprivation as a means of punishment, physical and mental tortures were also a part, and rape-utilize international human rights principles to a less limit, if required, while dealing with these cases, could also do some informal justice / quasi-legal mechanisms were prevalent for the same types of cases. In the contrast, the non-lawyer agents of ADR in the informal justice mechanisms studied that those who  were not even formally trained for legal decisions, but many of whom had poor literacy skills-were far more ignited towards resolving the cases utilizing principles of ADR, International human rights law and CEDAW in particular. The Sociological dimensions of ADR mechanisms present in India.. The emergence of ADR has been one of the most important steps as a part of managing disputes and reforms in judiciary, and it has also become essence of the time. Advocates, law students, law-concerned and law interpretors, all have started looking disputes resolution in a different and distinguished light and also have come up with many more alternates to the mechanism of litigation. While ADR, vision is controlled by the bench and the Bar and is an internal sector of today's litigation. The need for ADR obviously led to hunt for the other optional mechanisms to the formal courts and to the process of the functional courts, which can result in for cheaper, expeditious and less complex and, also, less stressful dispute resolutions.  As its clear, alternative dispute resolution has been, a vital and vibrant part of our historic past and not a new concept in our country. With no doubt, Lok adalat (peoples' Court) mechanism and the system itself was an innovative and dynamic step in resolving the disputes outside the court and it also been recognized as the contribution of India to the world's judicial system. It also has old, strong and long roots not only in the history which was been recorded but even before the historical era, which actually does not have any proper records. It has been proved to be as the effective and feasible substitute to formal litigation in managing the conflicts. Lok Adalat is the fine, familiar and acceptable forum which has been occupying the important function in settlement of issues. The system has achieved success from the parties involved in specific, distinguished, the social and law related personals, in general. And also helps in evolution of jurisprudence of peace in the larger and broad array of interest of justice and on wider sections of society on the voluntary basis. the Legal Services Authorities Act, 1987, which has constituted the national lagal services behaves as the main and controlling agency for framing down principles and policies for making these legal substitutes available for general crowd under the concerned Act. The operations of Lok adalats at the lower level are looked after by State, district and taluka level agencies, which are formed in the respective States by the legitimate process. Lok adalat settlement is binding on the the parties approached like an order, judgment or award of a "court". The decisions are executable and cannot be appealed further from other courts because these courts are taking the decisions after getting both the parties agreed on it. It comes up with only in one form or stage and final desire is achieved. It is proven cheap, fast, expeditious and simple ADR mechanism, particularly, for illiterate and neglected sections of society. A common man has started looking at legal system as a problem creator instead of taking it as a friend. For a common man law has always created some problems, and he believes it be a huge wheel, which will never let the person get rid of it, once fenced in it. If we are going to a court, we can predict that we either going to for a win-win prospect or going to lose a lots. Whereas, when we opt for any of a ADR's mechanisms with different attitude, we know that we may not be victorious in all concerns, but are not going to loose anything unreasonably. In our country, Arbitration and other mechanisms of ADR are alternatives of formal court for resolving the disputes. However, span time of justice has not yet, successfully, able to prove its true metal. Number of times, experience has proved that the tribunals often get concluded with dead cycles of legislative voyage in the courts, which results in lengthening of the time span of dispute resolution process. People find similarity between Lok adalat and conciliation or mediation; some find it with negotiations and arbitration. And many who find it distinguished from other prospects, has named it as "people's court". It included individuals which are either directly or indirectly getting affected by this mechanism. It is correctly said, participating, accommodating, fairness, expectation, voluntary, transparency, efficiency and lack of absurdness are undoubtedly, all important specifications of this unique Indian System rooted in India's cultural history and environment. Indian socio-economic conditions asks for highly effective, efficient and sensitized legal system, as there are large numbers of consumers of justice (main point of the judicial anatomy) who are either suffering to fill their stomach or they are ignorant and illiterate , and, resultant of which, they are at great disadvantage. The State, therefore, has a duty to ensure that the practice of legal system promotes access to justice on the basis of equal opportunities provided. Alternative dispute resolution is, a neat, system working out as the system of Lok Adalat. And also has provided a significant juristic advancement and also serves as vital tool for easy and quick settlement of conflicts. It has again proved itself to be a significant and feasible national imperative, and most suited for the larger and higher sections of the society as well as in Indian system. Law and system of Indian judiciary are not like antiques pieces to be brought seen, cleaned, admired and kept back at the shelf from where it was lifted, but it is actually like a huge tree which has its long roots in the history of the country and puts out new sprouts and occasionally comes up with loopholes. It is totally a new and dynamic concept with the purpose of harmonious adjustment, and also to settle the arising disputes out of human relations by cutting social hurdles and problems and it must, therefore, getting changed with changing sociological and economic conditions. The system of Lok Adalat can no longer be called an experiment in our country and our society has been informally practicing it from long back, but it is an effective, pioneering and appealing alternative mode of settling disputes which is accepted widely as a viable, budgetary, efficient, informal and speedy form of resolution of conflicts. It is a hybrid or mixture of other mechanism of ADR like negotiation, arbitration and mediation. The true basis of settlement of disputes by the Lok adalat is the principle of mutual consent for approaching Lok adalat, acceptance of conciliation voluntarily and with the coordination of councilors and mediators. It is a participative, promising and potential mechanism of ADR. It focuses on the principles of creating awareness amongst the people to the effect that their own interest, really, lies in accepting the process which is, friendly, fast, consensual and peaceful while settling the disputes. We can hereby conclude with a sound but an imperative beware, that we should be always mindful that "Yesterday is not ours to recover, but tomorrow is ours to win or lose", and, hence, let's get together to unite and strengthen our bench and bar trustful and unique collaboration and make partnership, concerned, cooperated by both, more creative and collective as well as cohesive endeavors in introducing, promoting, and fostering the concept and philosophy of this significant institution of ADR mechanism. So to strengthen our new and futuristic democratic values, rule of law and there by accept the command, "Justice shall never be rationed". So let's therefore take some meaningful steps to modernise and promote access to justice, to every common man and also to strengthen the Constitution of India.
Read full document← View the full, formatted essay now!
Is it not the essay you were looking for?Get a custom essay exampleAny topic, any type available
We use cookies to give you the best experience possible. By continuing we'll assume you're on board with our cookie policy. That's Fine