AUTHORED BY: NIMISHA AGRAWAL
MANIPAL UNIVERSITY JAIPUR
The concept of justice delivery system has recently undergone a sea-change to cope up with the demands of the society. One of the aims of our Constitution is to provide justice at the door-step and that too, within a permissible time-frame. The term Alternative Dispute Resolution refers to procedure for settling disputes by means other than litigation e.g. by arbitration, mediation, mini trials. Such procedures, which are usually less costly and more expeditious an increasingly being used in commercial and labor disputes, divorce actions, in resolving motor vehicle and medical malpractice, tax-claims and in other disputes that would likely otherwise involve court litigation. A step towards implementation of the forum for Alternative Dispute Resolution (ADR) is a milestone to achieve the social justice underlying our Constitutional pledge; the wind of this change is blowing throughout the world. The Study of the landscape of dispute resolution suggests that there are some typical conditions that define the goals of the parties in selecting a particular set of dispute resolution system. These conditions are often subjective to the background of the parties, the nature of the dispute, preferences in terms of their relationships involved, time, expense and finality of the decision rendered by the forum. Parties do not resort to any dispute resolution method for fun but for results; for effective resolution of their disputes to enable them to get on with their lives and business. Therefore, an effective dispute resolution method is one that produces results, not just a well-conducted or well flavored proceeding or formula.
ALTERNATIVE DISPUTE RESOLUTION (ADR): A BOON TO ACHIEVE SPEEDY JUSTICE
Indian judiciary is one of the oldest judicial systems, a world-renowned fact but nowadays it is also well-known fact that the judicial system of India is becoming inefficient to deal with pending cases, Indian courts are clogged with long unsettled cases. The scenario is that even after setting up more and more fast track courts that already settled millions of cases the problem is far from being solved as pending cases are still piling up. The Arbitration and Conciliation Act of 1996 marked an epoch in the struggle to find an alternative to the traditional adversarial system of litigation in India. It brought up a new idea of negotiated settlements and consensual disputes resolution, as a means of confronting the insuperable impediments posed by the dilapidated and antiquated civil justice system. The continued development of dispute resolutions relies upon an improved understanding of the meaning, history, evolution, goals, kinds, accessibility and effectiveness of ADR processes and interventions. The objective of this paper is to highlight the vivacity of alternative dispute resolution in accomplishing the ideals of institutional efficiency. The paper covers about the meaning, history, evolution of ADR, and types of ADR in India. The research methodology adopted for this paper is doctrinal and secondary sources of information like books, articles, and websites.
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ALTERNATIVE DISPUTE RESOLUTION MILESTONE TO SPEEDY JUSTICE:
The formal courts worldwide are playing I fundamental and leading role in justice delivery system for a very long time. But it is experienced that sometimes litigation becomes endless exercise. Litigation in the courts has become lengthy, costly and formal and does not give the parties control over the outcome. There is need to find the ways to come out of these problems. It is a fundamental right of every citizen to get speedy justice, which also is the basic requisite of good judicial administration. The need of today is for some effective measures consistent with demands of justice, equity and fairplay, to speed up the disposal of cases and clear up the mounting arrears of cases. Alterative Disputes Resolution (ADR) system has developed as an alternative to the funnel dispute resolution mechanism. The term can refer to everything from facilitated settlement negotiations in which disputants are encouraged to negotiate directly with each other prior to some other legal process, to arbitration systems or mini trials that look and feel very much like a courtroom process. These procedures include negotiation, conciliation, mediation and arbitration. The main aim of these fora is to settle the dispute in such a manner that the mutual relations of the disputants remain virtually the same as these had been before the commencement of such dispute. There has been tremendous movement towards the resolution of the disputes through alternative forum of arbitration. Non adjudicatory methods of conflict resolution are also available and must be used. These mechanisms are negotiation, mediation and conciliation which are being used successfully in Lok Adalats. The application ADR to the legal dispute resolution process is not intended to replace or supplant the need for public adjudication and pronouncements on the critical issues, but to complement and preserve the judicial system. These alternatives may serve to relieve some of the pressures currently obstructing the performance of contemporary court systems. The usage of ADR has gained recognition nationally and internationally. This thesis discusses conceptual framework of ADR and development of ADR in India.
HISTORY OF ADR IN INDIA:
In India there is a long history of ADR, it is the mode and method of settling the disputes and the differences between the parties apart from the court of laws. Dispute resolution outside the courts is not new, from long times societies world-over has used non-judicial, indigenous methods to resolve conflicts. Tough documentations is scant, it is believed that nearly every community, country, and culture has a lengthy history of using various methods of informal disputes resolution. Procedural features are shared with many of these ancient methods with the process that has coalesced in the form of contemporary mediation. Though the history is very vast, in this paper I will cover the history of ADR in India from Vedic times, under Muslim Rule, and under British Rule.
ADR during Vedic Times:
During this stage the disputes were used to be redressed by Panchayats, which consisted of old and efficient people, as they were considered to be experienced and well eligible to provide justice to the aggrieved parties. As these people were the judge of the Panchayat, so they were known as PANCHS.
In the Brhadranayaka Upanishad the sage Yajnavalkya referred to various types of arbitral bodies. Namely: (i) The Puga, (ii) The Sreni and (iii) The Kula
(i) The Puga: A board of persons who belonged to different sects and tribes but lived in the same locality.
(ii) The Sreni: Assemblies of tradesmen and artisans belonging to different tribes but connected in some way with each other
(iii) The Kula: Kin group was subjected to revision by the sreni which, in turn, could be revised by the puga.
From the decision of the Puga appeal was maintainable to Pradvivaca and finally to the sovereign and the prince.
It is important to note that the families in the ancient India were usually very large and when any dispute or disagreement used to arise between any members of the family, it was usually settled by its elders. If they failed to bring about any compromise, the sreni or the guild courts used to intervene. Srenis became prominent feature of commercial life in ancient India from 500BC. They were well organized and had their own executives committees of four or five members.
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ADR during Muslim Rule:
The Muslim law came to India through Islam where the origin of Islam was in Arab. All the laws of Muslim were in Quaran. The Muslim rule in India saw the incorporation of the principles of Muslim law in the Indian culture. Imam Abu Hanifa and his discipline Abu Yusuf and Imam Mohammad in their commentary systematically compiled the Muslim law. The commentary was named as “Hidayah”. During Muslim rule, all Muslims were governed by the Islamic laws, it contained an act known as “Sharaiht Act” which was codified for all kinds of Muslim practices and any disputes raised were to be settled by the provisions of this act only. Moreover, this act was not applicable to any non-Muslim.
The Hidayah also contained the provisions related to arbitration for the persons having disputes regarding any matter like: marriage, contract, etc., and were used to resolved by the Muslim person only as a Arbitrator and he was called “Hakam” , the arbitration was called as “Tahkeem”. An arbitrator was required to posses the qualities essential for a kazee: an official Judge presiding over a court of law, whose decision was binding on the parties subject to legality and validity of the award. The court has the jurisdiction to enforce such awards given under Shariah though it is not entitled to review the merits of the dispute or the reasoning of the arbitrator.
ADR during British Rule:
The ADR got pace with the coming of East India Company. The East India Company did not repeal or do away with the law relating to arbitration as prevalent in the country at the time when it came into power. By providing regulations in the three towns viz. Calcutta, Bombay and Madras between the years 1772 and 1827 the government gave legislative form to the law of arbitration by regulations like:
(i) Bengal Regulation LVIII of 1781
(ii) Madras, The Regulation of 1861
(iii) Bombay, The Regulation VII of 1872
At starting point these regulations had a lack of clarity and uniformity later a substantial change was made to them. For the Bengal Regulation some changes were made in 1787, 1793 and 1795. During the British period these were the laws regulating the proceedings of arbitration. These remained in force till the Civil Procedure Code 1859 (Act no.7 of 1859), was extended to the presidency towns as well in 1862. The act of 1859 was repealed by the Code of Civil Procedure Act 1877, which was again revised in the year 1882 by the Civil Procedure Code Act 1882 (Act No 14 1882). The provisions relating to arbitration were mutatis mutandis reproduced in sections 506 to 526 of the new Act.
EVOLUTION AND DEVELOPMENT OF ADR IN INDIA:
ADR methods have been recognized and adopted by various countries and they co-exist with litigation harmoniously. Some of the main reason for the development of ADR includes the backlog of cases in courts and the lengthy time taken to resolve disputes. The first arbitration law in India was the Act of 1899 based on English Arbitration Act 1899 which was extended to other parts of British India through section 89, schedule II of the Code of Civil Procedure 1908. Later, Arbitration Act 1940 was enacted which was based on English Arbitration Act 1934, the Act of 1940 was enacted in India to consolidate and amend the law relating to arbitration in India.
In 1937, India became signatory to the Geneva Protocol on Arbitration clauses 1923, and Geneva Convention of 1927 and the Arbitration Act 1937 was enacted in India to give effect to the said conventions. In 1960, India became a signatory to the New York convention on account of which the foreign awards (recognition and enforcement) Act of 1961 was enacted.
According to Black’s law dictionary, “Arbitration in practice is the investigation and determination of a matter or matters of difference between contending parties, by one or more unofficial persons, chosen by the parties. Compulsory arbitration is that which takes place when the consent of one of the parties is enforced by statutory provision. Voluntary arbitration is that which takes place by mutual and free consent of the parties.”
THE ARBITRATION ACT OF 1940:
The Arbitration Act 1940 was enacted in India to consolidate and amend the law relating to arbitration and is made effective from1July 1940. This Act empowered the Indian courts to modify the award, remit award to arbitrators for reconsideration and to set aside the award on specific grounds. The Act repealed the Arbitration Act of 1899 and relevant provisions of CPC, 1908. The Act laid down the framework within which domestic arbitration was concluded in India. The scheme of the Act is to deal with arbitration without the intervention of the courts, to deal with the arbitration with the intervention of the courts where there is no suit pending, to cover arbitration in suits Provisions common to all three kinds of arbitration constitute the remaining proportion of the Act (Chapter IV to VII and the schedules).
THE ARBITRATION AND CONCILIATION ACT OF 1996:
The Arbitration and Conciliation Act, 1996 is an Act to consolidate and amend the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards and to define the law relating to conciliation and for matters connected therewith or incidental thereto. In order to meet the various shortcomings expressed in the 76th report of the Law Commission the Act of 1996 came into force on 22.08.1996. The Act is based on the UNCITRAL Model Law on Internal Commercial Arbitration, 1985 and UNCITRAL Conciliation Rules, 1980.
The objective of the acts were, to comprehensively cover international commercial arbitration and conciliation as also domestic arbitration and conciliation; to minimize the supervisory role of courts in the arbitral process; to provide that every final arbitral award is enforced in the same manner as I f it was a decree of court; to make provisions for an arbitral procedure which is fair, efficient and capable of meeting the needs of specific arbitration ; to provide that arbitral tribunal gives for its arbitral award; to ensure that the arbitral tribunal remains within the limits of its jurisdiction; to permit arbitral tribunal to use mediation, conciliation and other procedures during arbitral proceedings to encourage settlement of disputes.
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THE ARBITRATION AND CONCILIATION ACT 2015:
This act came into force on Oct 2015 with a view to facilitate quick enforcement of contracts, easy recovery of monetary claims reduce the pendency of cases in court hasten the process of dispute resolution through arbitration, so as to encourage foreign investments by projecting India as an investment friendly country having a sound legal framework and ease doing business in India.
Amendment to Section 7:
An arbitration agreement contained through electronic communication shall also be treated as an arbitration agreement in writing.
Amendment to Section9:
Where the court passes an order for any interim measure under subsection. (1) Of S.9 before the commencement of arbitral proceedings, the arbitral proceedings shall be commenced with in a period of 90 days from the date of such order.
Amendment to Section 11:
Appointment of arbitrator shall now be made by Supreme Court or High Court, as the case may be, instead of Chief Justice of India or Chief Justice of High Court.
Appointment to Section 14:
On termination of mandate of an arbitrator, he is to be substituted by another arbitrator.
Amendment to Section 23:
It is a counterclaim or setoff falls within the scope of the arbitration agreement, the respondent, in support of his case, may submit such counterclaim or a set off.
Amendment to Section 24:
The arbitral tribunal shall hold oral hearing for the presentation of evidence or oral arguments on the day to day basis and shall not grant any adjournment without any sufficient cause.
THE ARBITRATION AND CONCILIATION (AMENDMENT) BILL 2018:
The arbitration and conciliation bill 2018 is introduced in Lok Sabha by the Minister of Law and Justice Mr. PP Chaudhary, on July 18, 2018. This Amendment Bill seeks to amend the Arbitration and Conciliation Act 1996. The Act contains provisions to deal with domestic and international arbitration, and defines the law for conducting conciliation proceedings.
KEY FEATURES OF THE BILL:
- Arbitration Council of India: The Bill seeks to establish and independent body called the Arbitration Council of India for the promotion of arbitration, mediation, conciliation and other alternative dispute redressal mechanism.
- Composition of Act: The ACI which is to be established will consist of a Chairperson who is either a judge of Supreme Court, or Judge of High Court, or Chief Justice of High Court, or an eminent person with expert knowledge in conduct of arbitration. And other members will be an eminent arbitration practitioner, an academician with experience in arbitration, and government appointments.
- Appointment of Arbitrators: Under the Bill the Supreme Court and High Court may now designate arbitral institutions, which parties can approach for the appointment of arbitrators. An application for appointment of an arbitrator is required to be disposed of within 30 days.
- Relaxation of Time Limits: Under 1996 Act, arbitral tribunals are required to make their award within a period of 12 months for all arbitration proceedings. The bill proposed to remove this restriction for international commercial arbitrations.
- Completion of Written Submissions: Presently, there are no time limits to fill written submissions before an arbitral tribunal. The Bill requires that the arbitration proceeding should be completed within 6 months of appointment of the arbitrators.
- Confidentiality of Proceeding: The Bill seek to provide all details of arbitration proceedings will be kept confidential except for the details of the arbitral award in certain circumstances and such disclosure will only be made where it is necessary for implementing or enforcing the award.
- Applicability of Arbitration and Conciliation Act, 2015: Bill clarifies that the 2015 Act shall only apply to arbitral proceedings which started on or after Oct 23, 2015.
VARIOUS MODES OF ALTERNATIVE DISPUTE RESOLUTIONS:
When two or more persons agree that a dispute or potential dispute between them shall be decided in a legally binding way by one or more impartial persons in a judicial manner, the agreement arrived after such settlement is called arbitration and the decision when made is called award. It is a method of resolution of disputes outside the court, wherein the parties refer the disputes to one or more persons appointed as an arbitrator. Usually, the arbitration clauses are mentioned in commercial agreement wherein the parties agree to resort to an arbitration process in case of dispute that may arises in future regarding the contract terms and conditions.
Mediation is a process for resolving disputes with the aid of an independent 3rd person that assist the parties in dispute to reach negotiated resolution. 3rd party known as mediator tries to facilitate the resolution process but he cannot impose the resolution and the parties are free to decide according to their convenience and terms. Mediation is the acceptable intervention into a dispute of a third party that has n o authority to make a decision.
It is a process in which a 3rd party assists the parties to resolve their disputes by agreement. In this case, parties submit to the advice of a conciliator who talks to each of them separately and tries to resolve their dispute. The conciliator may do this by expressing an opinion about the merits of the disputes to help the parties to reach the settlement. It is a non binding procedure in which a conciliator assists the parties to a dispute to arrive at mutually satisfactory and agreed settlements. Hence, conciliation is a compromise settlement with the assistance of conciliator.
It is a process by which parties resolve their disputes. They agree upon course of action and bargain for advantage. A non-binding procedure in which discussions between the parties are initiated without the intervention of any third party, with the object to arrive at a negotiated settlement of the dispute. Sometimes, they try to adopt such creative option that serves their mutual interest. Because of its mutual advantage people negotiate in almost all walks of life from home to courtroom.
Generally means ‘the people’s court’. It is not a court in strict sense of term, but it is a forum where voluntary efforts are made to the settlement of disputes between the parties. It is very effective in settlement of money claims. Disputes like partition suits, damages and matrimonial cases can also be easily settled before lok aadalat, as the scope for compromise through an approach of give and take is higher in these cases. In other words, Lok Aadalat is a forum of ADR. This system is based on Gandhian principles. It provides alternative resolution or devise for expedious and inexpensive justice.
- Gram Nyayalayas: It is an alternative form of dispute resolution. The Gram Nyayalayas is the latest in the reforms in the structure of the Indian Judiciary. This system provides speedy justice. The Gram Nyayalayas as a different court was proposed by the 114th Law Commission way back in 1986. Gram Nyayalayas are established generally at headquarters of every Panchayat at intermediate level or a group of contiguous panchayat in a district where there is no panchayat at intermediate level. This model of adjudication will be best suited for rural litigation. The Law Commission observed that such a court would be ideally suited for the village as he nature of disputes coming before such a court would be “simple, uncomplicated and easy of solution’ and that such disputes should not be enmeshed in procedural claptrap.
While the judicial process is largely considered fair, a large backlog of cases to be heard and frequent adjournments results in considerable delays before a case is decided. However, matters of priority and pubic interest are often dealt with expeditiously and interim relief is usually allowed in cases, on merits.
India has a long history of settlement of disputes outside the formal justice delivery system. The concept of parties settling their disputes by reference to a person or persons of their choice or private tribunals was well known to ancient India. Long before the king came to adjudicate on disputes between persons such disputes were quite peacefully decided by the intervention of the kulas, srenis, pugas and such other autonomous bodies. These traditional institutions worked as main means of dispute resolution. Not an alternative. During the British rule the system of dispute resolution was changed and a new formal adversary system of dispute resolution originated. Arbitration was recognised as out of court method of dispute resolution and several provisions were enacted relating to that. The ADR system as is understood in the present scenario is the result of the shortcomings of that formal judicial system. Now the alternative disputes resolution techniques are being used to avoid the costs. Delays and cumbersome procedure of the formal courts. Arbitration plays very important role nowadays because of its speedy decision as of compared to regular counts and it consumes less time and less money .so still many people don’t know about this kind of dispute resolution . There should be awareness should be made. Now there we also heard about online dispute resolution where through modern technology by internet the dispute will be decided .When we add our facts, issues and prayer by both the parties. The decision will be given correctly by the computer .If this comes then still easier to get remedy and less money & time consumes for resolving the dispute. India undoubtedly signifies that Indian judiciary is over burdened with cases with the advent of alternative dispute resolution there is new avenue for the people to get justice and settle the dispute. There is urgent need that the justice dispensation through alternative dispute resolution mechanism. Not many people can afford litigation in India this kind of state of affairs makes common people cynical about judiciary process. The alternative dispute resolution should be promoted because it is free from the technicalities of court, it reduces the burden of the courts and provide instant justice at a door – step without any extra cost being involved. Alternative dispute resolution is relatively new and rapidly changing field which should be carried forward with greater speed.
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On the basis of my research work I furnish the following suggestions:
- The first and foremost step is the creation of awareness and the need for backing towards Alterative Disputes Redressal Mechanisms among the consumers of justice. To increase awareness seminars, workshops can be held.
- The challenge now is to substantially increase awareness about arbitration in India so that efforts being taken to reform are supported by an increase in usage.
- The judiciary plays a significant role and the judiciary should support arbitration in our country.
- Institutionalization of arbitration is the need of the hour it would have to be supported by dedicated bar comprising of professional to conduct arbitration in accounting with the rules.
- Keeping the objective in the mind the scope of judicial interference in arbitration should be minimum. The consequential changes in the law and policy including judicial approach are anticipated.
- Professional bodies such as the Bar Council in the States should conduct refresher courses for lawyers and it would be appropriate if knowledge and awareness in mediation is imparted through such bodies.
- Proper training programmes should be launched for the judges and advocates for speedy disposal of the cases. Intense training is required to be imparted to referral judges so as to enable them to identify the cases which may be considered fit for mediation or to identify cases which would be suitable for taking recourse to a particular form of ADR
- Incentives should be provided to the judges and the advocates who take personal pain in speedy disposal of the cases.
- Formal changes in the syllabus for legal education should be brought about. Alternative dispute resolution should be made a compulsory subject for all law students. Legal education should be so oriented as to train law students in innovative approaches to dispute-resolution.
- There is desirability and necessity of encouraging ADR on a large scale. More and more ADR centers should be created for settling disputes out of court as is being done in many other countries.
- The incentives for adopting the ADR must not be the failure of the formal judicial system, but the positive things that the ADR is able to produce, so that the disputants may willingly resort to ADR.
- It would be best for the legal system if the several methods of dispute resolution could win equal standing, both in practice and professional training. Justice will be better served by a holistic approach which recognizes that there are legal problem of various kinds, for which different methods of resolution are appropriate and effective.
“The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried”
AUTHORED BY: NIMISHA AGRAWAL
MANIPAL UNIVERSITY JAIPUR