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 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 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 129th 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 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.

4 | Page