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ADR as an effective tool to Judicial delay

Abstract

The Indian Judicial system is plagued by delays. The cases in India go on for years together which lead to delayed Justice. This paper will try to find solutions to the problem of Judicial Delay the easiest being the use of ADR. This paper will elucidate the importance and use of different types of Dispute resolution methods. Alternative dispute resolution is a crucial tool to unburden the Judiciary and fulfil the constitutional mandate of justice delivery and making it free and readily available. ADR employs diverse techniques to avoid delays, and it is necessary for a country like India. In India, an addition has been made to ADR to include Lok Adalat, which has paved the way for ordinary people to resolve disputes quickly and amicably. This paper will signify the importance of ADR in solving the problems of Judicial delay.

“I realised that the true function of a lawyer was to unite parties… A large part of my time during the 20 years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby – not even money, certainly not my soul.”
-Mahatama Gandhi

Introduction

India has rapidly developed its economy and invited foreign players in the country by providing a conducive environment for trade. However, with trade development, trade results in increased commercial activities, ultimately resulting in disputes between parties involved in the trade. The parties demand quick redressal and complicated legal produce hinder the development of commercial activities. The Indian Judiciary is already reeling with high pendency of cases. The current pace of Industrial development is more than the conventional dispute resolution methods could handle. In India, rapid commercialization has increased the caseload in the already overburdened courts, resulting in commercial disputes’ slow resolution.


One of the major areas where India’s Judicial system has failed is the delivery of Justice expeditiously. Delay in providing Justice reduces the faith of the general public. According to the available data, 64,426 matters were pending in the Supreme Court of India. When we move towards the lower courts, the number only increases. Nevertheless, the Judiciary has come up with solutions to reduce the problem; fast-track courts and the superior court have shown promise. Nevertheless, the most effective method has been the use of Alternate Dispute Resolution (ADR).


Alternate Dispute Resolution means various methods adopted by the parties to resolve disputes amicably without a court trial. The resolution of disputes occurs in a private setting, hence helping maintain confidentiality instead of a trial. It has flexibility, which helps save both time and money and is opposed to rigid court procedures. ADR is a non-adversarial mechanism, meaning working together to get the best possible outcome is possible. ADR can be instrumental in reducing the burden in Indian courts while delivering an all-around and satisfying experience to the parties involved.


ADR is usually categorised into four categories,

  • Arbitration
  • Conciliation
  • Mediation
  • Negotiation
  • Lok Adalat

The Arbitration and Conciliation (Amendment) Act, 2019 regulates the ADR related activities in India. The ADR has the capacity to solve all types of matters, including family, civil, industrial, commercial, and many more. The ADR usually takes the help of third parties to resolve disputes amicably.


ADR employs diverse techniques to avoid delays, and it is necessary for a country like India. In India, an addition has been made to ADR to include Lok Adalat, which has paved the way for ordinary people to resolve disputes quickly and amicably. The ADR process also strives to achieve the goal of Directive Principles of State Policy (DPSP), mentioned in the article 39-A, to achieve equal Justice and provide free legal aid.


In this paper, we will study Judicial delay and how the ADR could resolve the problem with quicker disposal of matters.


1.2 Research Methodology

The research design’s doctrinal model is recommended to approach the prescribed study goals, an intensive literature review on the subject will be implemented, and the topics under study will be thoroughly investigated. Both empirical and descriptive are this doctrinal work adopted for the writing of analysis work. The investigator has attempted to analyse all outlets such as books, journals, and e-resources objectively. In the analysis, e-resources have contributed to accessing the most critical and current site knowledge that has allowed the researcher to examine the topic across different dimensions.

2.1 Judicial Delay

Meaning
When a legal case takes more time to be disposed of than a case, usually, we can say that delay has taken place in simple words. It was said by William E. Gladstone that “Justice delayed is Justice Denied” the statement means that if Justice is not done quickly and within a reasonable time that it is as good as Justice being denied. Judicial delay is a significant problem the Indian Judiciary; it affects the Right mentioned under article 21 of the Indian constitution, the Right to a speedy trial.

i. The Right to a speedy trial

The Right to a speedy trial is universally accepted as a human right. The Indian constitution did not have the Right to the speedy trail since the beginning, but it was added in 1978. Right to speedy trial deals with a quick disposal of cases to make the Judiciary more efficient and trustworthy to the ordinary people.

In Babu Singh v. State of Uttar Pradesh , Krishna Iyer J., while dealing with the bail petition, remarked,

“Our justice system, even in grave cases, suffers from slow motion syndrome, which is lethal to fair trial whatever the ultimate decision. Speedy Justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings.”


In Sheela Barse v. UOI, the Hon’ble Apex Court confirmed that Right to a speedy trial is a fundamental right. Therefore, we can say that the Right to a speedy trial is well established Fundamental Right.


There are many forums of appeals provided in the present legal system. For example, appeal from small causes, the court lies to the District Court on both facts and law, and again the Right of the second appeal lies in the High Court known as Letters of Patent Appeal. Multiple forums of appeals cater to delay in the justice delivery system.


The main reason for Judicial Delay

  • The non-attendance of witnesses.
  • Delay in the delivery of Justice.
  • Failure to examine the witnesses, even after the witnesses attend the proceedings.
  • Continue adjournments.
  • The non-attendance of the Council.

2.2 Disadvantages of Litigation

i. Cost –
The present adversarial system of Litigation is too expensive, and at times the cost exceeds the value of the claim. It is expensive, financially and emotionally both. The cost of Litigation includes the payment of court fees, fees paid for summons and other processes, advocates fees etc. Though the government pays to the judges and provide building and other infrastructure necessary to try cases. However, the fact is that the litigant has to bear the high cost in the Litigation and the most significant expense is to bear the lawyer’s fees.


ii. Delay –
The delay is the most disadvantageous part of the Litigation. If we look at a general proceeding in Civil cases, it takes at least 15-20 years to be decided. In some of the cases, it is the next generation which litigates the dispute. It takes at least a decade in severe criminal cases—the delay result into the physical, mental and financial harassment.


iii. No Parity of power –
There is no parity of power between the wealthier litigant and under resource litigant. Parity of power refers to the balance between the parties. If one party is decadent and other is lacking, there are all chances of the later exploitation. The reason is that the rich person can afford the best lawyer in the country, whereas the poor person will not afford such a lawyer. Secondly, the delay overburdens the expenses of the Litigation. Therefore, the time will come when the poor person would abandon his claim or go out of court settlement.


iv. Uncertainty –
There is no certainty about the Litigation result and how long it will last, which induces incomprehensible fear to litigants.


V. Lack of expertise –
There is a lack of judges’ expertise in the present legal system in commercial and technology disputes matter. This has resulted in wrong decisions and consequential appeals to higher forums. For example – In the matter relating to building the person chosen to decide the matter should generally be an expert in the subject matter of dispute, whereas the judges in the court will seldom have any practical experience of the trade’s technicalities in question. Therefore, they cannot appreciate the matter satisfactorily. Even if experts are called to assist them, their opinion is not binding upon the judges. The Supreme Court of Australia highlighted one advantage of Arbitration as the adaptability and access to expertise as hallmarks of Arbitration. It made a point that the Arbitrator is an expert in the subject-matter appointed by the party to the dispute or the tribunal itself.


Vi. Win lose scenario –
In the present legal system, the Court act as Courts of law and not a court of equity. It leads to a win-lose scenario; there is no mutual acceptable decision.


Vii. No privacy –

Another disadvantage of Litigation is that pleading and document filed in the court become a public document, and any person can access it.


3.1 Alternative Dispute Resolution

The process of dispute resolution amicably without the intervention of a Judicial institution is called Alternative Dispute Resolution. The ADR process is non-adversarial; in ADR, the parties work together to reach an acceptable solution. ADR is a useful instrument to reduce the case burden on conventional Judiciary. Delay in Justice affects the litigants’ interest and undermines the judicial system’s capability in imparting Justice efficiently and effectively.


3.2 History of ADR in India

In India resolution of disputes has existed for a long time but under different names. Since the Vedic period, Indians have used the process of non-confrontation to solve disputes. The practice of solving disputes has continued even in the medieval period. During the Mughal period, there was the provision in Islamic law for Takheem (Arabic for Arbitration) and Hakam (Arabic for Arbitrator). It was mandatory under the Islamic law that the Hakam must be neutral.


The Britisher first gave formal recognition to Arbitration by making a law about it. The progress of using Arbitration as an ADR was used since 1879, and it was also included in CPC in 1908. The Indian legislature constituted the national Legal Services Authority as a Central Authority after enacting The Legal Services Authorities Act, 1987.
The Malinathan committee and the Law Commission, through its 129th report titled “Urban Litigation – Mediation as an alternative to Litigation” in 1988, suggested that all the matters which could be solved using ADR should prefer to use ADR to solve the disputes. The amendment to the Arbitration and Conciliation Act was recently influenced in 2015 to get Indian Arbitration closer to international norms, such as UNCITRAL’s model legislation on international commercial Arbitration.


3.3 Advantages of ADR

Control over the outcome –
In ADR, the parties have complete control over the ADR proceedings’ outcome; they have complete freedom in getting the desired outcome.


Amicable settlement

In Alternative dispute resolution, the disputes are resolved amicably; it helps the parties bury the hatchet and maintain the current relationship while developing a better future.

Lower stakes
In the case of ADR, the stakes are lower because if the parties file a case in court, either the parties will win everything or lose everything. In ADR, the parties can solve the dispute so that both parties have something left.

Privacy and choice of Tribunal
One of the significant Significance of ADR is the Privacy and confidentiality of the proceedings. Some people prefer to resolve their disputes away from the public eye. This is particularly true for marital disputes. Therefore, Arbitration saves family homes and marriages since, with the parties’ consent, the conflict is settled peacefully. In most cases, once matters hit the ordinary civil court, the relationship becomes strained, and the family shatters. Moreover, certain cases require incredibly complex problems, so if at least one member of the tribunal is a specialist in the area, it will be helpful. Although the party choosing the tribunal judge is the Arbitration party, they choose at least one member’s experience in that area. However, in that area, the ordinary court judge may not be an expert, and we should not assume sufficient Justice in that situation.

Neutrality and flexibility
The parties belong to the respective nations; they do not want to litigate in the ordinary court of law but choose Arbitration. Since, in the option of statute, process, and tribunal, Arbitration gives them neutrality. They may select the third country’s rule and practice or appoint an arbitrator belonging to the third country. It gives them trust inequality, and there is power parity between them.

The principle of Natural Justice
The Arbitrator is not bound by the strict procedure of the Civil Procedure Code and law of evidence. However, he has to follow the principle of natural justice. One of the advantages of the alternative dispute resolution is that it avoids the technicality and complexity of the law and focuses on the disputant parties’ problem and tries to resolve it with a simple method or procedure.

Payment of Court Fee
In Alternative Dispute Resolution, there is no need to pay Court fees as it is paid in the ordinary court before the hearing of civil cases. If the court fee is not paid, the court does not entertain the suit. Sometimes, the parties are not in a position to pay the court fee. ADR is the best resort for those kinds of people.

3.4 Important provisions relating to ADR in India

  • Parties have an opportunity Under section 89 of the Civil Procedure Code, 1908, to settle outside the court.
  • Arbitration and Conciliation Act, 1996.
  • Legal Services Act, 1987.
  • Order 23 Rule 3 of the Civil Procedure Code.
  • Order 32-A of the Civil Procedure Code.
  • Section 80 of the Civil Procedure Code.
  • Industrial Dispute Act.
  • Section 320 of the Criminal Procedure Code.
  • Section 9 of the Family Court Act.
  • Interstate water Dispute Act.

Section 89 Civil Procedure Code

Section 89 of the CPC attempts to attempt to resolve disputes between parties while minimizing cost and reducing the courts’ burden. The sole aim of merging the judicial and non-judicial conflict resolution mechanisms is to bring the alternative dispute resolution mechanism to the Indian Judicial System’s core. To ensure quicker and faster Justice, the long-drawn litigation process, the expenses paid by all sides for the same, and small numbers of adjudicators have made Alternative Conflict Resolution an essential feature of the judicial system.
Without the court’s intervention, Section 89 of the Code of Civil Procedure was adopted to view a friendly, peaceful, and reciprocal resolution between the parties. Almost all the cases (90% or more) are settled without courts help in countries worldwide, particularly the few developing ones. Only when there is a failure to find a settlement shall the case/conflict between parties go to trial. Section 89 of the CPC states that,

1. “Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of the settlement and give them to the parties for their observations, and after receiving the observation of the parties, the court may reformulate the terms of a possible settlement and refer the same for
(a) arbitration;
(b) conciliation
(c) judicial settlement including settlement through Lok Adalat; or
(d) mediation.”

2. Where a dispute had been referred-
“(a) for Arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act.


(b) to Lok Adalat, the court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987, and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat;


(c) for judicial settlement, the court shall refer the same to a suitable institution or person, any such institution or person shall be deemed to be a Lok Adalat, and all the provisions of the Legal Services Authority Act, 1987 shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;


(d) for Mediation, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.”
In the case of Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., the legal situation was clarified concerning ADR activities. Arbitration was referred to as a means of ADR being conducted based on a previous arrangement between the parties to settle disputes by Arbitration or by applying/joint memo before the court, which occurs beforehand in the event of no arbitration agreement. The presiding officer’s award, the Arbitrator, is binding as the court’s decree or any settlement concluded during the parties’ arbitration proceedings shall also have the same effect.


3.5 Types of ADR

Arbitration
For the process of Arbitration to exist, an arbitration agreement beforehand, before the dispute, is necessary. In the arbitration procedure, the dispute is referred to as one or more professionals called Arbitrators. The decision of an arbitrator is an unbiased person. The arbitrators’ decision is binding, and in legal terms, it is called an “Award.”

Any party with an arbitration clause in the contract can invoke the provision either for himself or through an agent. The arbitration clause includes all the details beforehand, including the course of action, language to be used, the number of arbitrators to be employed, and the place where arbitration proceedings will occur. Now, with the arbitration arrangement, the dynamics of the proceedings differ. There may be a timetable, for instance, which must be followed. The agreement will stipulate the timetable.

Section 8 of the Arbitration and Conciliation Act, 1996 specifies that if any side mistreats the arbitration clause and brings the suit to civil court instead of proceeding to Arbitration, another party may order the court to bring the dispute to the arbitration tribunal in compliance with the agreement, but not later than the first statement. The application must contain a certified copy of the arbitration agreement, and the case will be referred to Arbitration if the courts are satisfied with it.


Conciliation
A conciliation is a form of ADR that is not specifically formal; it is a process of finding a problem amicably where the parties use a conciliator. The procedure is non-binding, and a conciliator is a third person. In this ADR, the parties are free to either accept or reject the recommendations of the conciliator. According to Section 30 of the Arbitration and Conciliation Act, 1996, the parties are allowed to engage in the Conciliation proceedings even when the arbitration proceedings are ongoing.


Mediation
In Mediation, a neutral person called ‘mediator’ helps the parties reach a mutually acceptable resolution. The mediator does not himself does not give dispute resolution himself but helps the parties to reach a decision. Hence in Mediation, the outcome is in the parties’ hands and not with the mediator. The mediator’s job is to facilitate the conversation between the parties and not give the actual decision.


The various stages of the Mediation are,

  • Opening statements of the mediators and the parties.
  • Joint session of the parties.
  • Separate session if needed.
  • Closing

In case the parties are not able to conclude, the mediator will try out different techniques,

  1. Best Alternative to Negotiate the Agreement (BATNA)
  2. Most Likely Alternative to Negotiated Agreement (MLATNA)
  3. Worst Alternative to Negotiated Agreement (WATNA)

In this way, Mediation tries to help parties avoid Litigation and reach a best-suited decision amicably.


Lok Adalat
This feature is specially established in the Indian Legal System, its roots in the Legal Services Act, 1987. This provision was brought to promote out of court settlements. Lok Adalat is also called people’s court, is an informal setting that helps in negotiation in the presence of a Judicial Officer, but the legal formalities are not present. Lok Adalat’s order is final and is considered a decree of the civil court, and the order is not appealable.


Lok Adalat can be assigned to any lawsuit pending in regular court or any issue that has not been brought before any law court. There are no court costs, and there is a rigid system that makes the process quicker. If any matter is pending before the Lok Adalat court is referred to and eventually settled, the court’s court fee is refunded to the parties when the petition was filed.


The parties consult individually with the judge, which is not possible in regular courts. It depends on whether both sides agree on the long-pending case moving to Lok Adalat in routine court. Only the constitutional conciliators are willing to convince the parties to reach a consensus to resolve the conflict outside the ordinary court at the Lok Adalat. Legal Services Authorities (State or District) will, as the case may be, refer the matter to the Lok Adalat at a pre-litigation point upon receipt of an application by one of the parties, for which notice will then be given to the other party.


Negotiation
Negotiation has been defined as, “any form of direct or indirect communication whereby parties who have opposing interests discuss the form of any joint action they might take to manage and ultimately resolve the dispute between them.”


4.1 Conclusion

Alternative dispute resolution is a crucial tool to unburden the Judiciary and fulfil the constitutional mandate of justice delivery and making it free and readily available. India needs to capitalise on the international experience and prevailing pandemic condition to usher in a revolution in the country’s justice delivery scheme. The Singapore Convention and UNCITRAL can be a guiding light to India’s domestic ADR scheme.

In India, ADR is the cheapest and the most sure-shot way to solve the pendency of cases in the Indian courts. The disputes are solved amicably in ADR; the existing relationship between the parties is maintained. Going to court was the conventional way, but now we need to innovate and keep ourselves updated to solve the

courts’ matters efficiently.

The effective use of ADR would reduce the burden on courts and would enable the Judicial officers to focus on the crucial case which cannot be resolved by ADR. The Lok Adalat has specifically proven itself to reach all society people and helped parties resolve their disputes. There is a lack of awareness about ADR; we need to explain to the people the cost of Litigation and how ADR could reduce that cost.

Many a time, Lawyers discourage litigants from using ADRs since it affects their revenue, but if we increased awareness about ADR, People might opt from ADRs against the lawyers’ suggestion. The National and State Legal Services Authorities should disseminate more information regarding these, so they become the first option explored by potential litigants. ADRs are the future of dispute resolution, and we should accept them with open arms.


5.1 References

Reports

Government of India law commission of India, Need for Justice-dispensation through ADR, etc., Report No. 222, April 2009.

Government of India law Commission of India, Report no. 228.

Justice Malimath Committee Report.

Reddy, B.P.Jeevan, “Law Commission of India 176th Report on the Arbitration And Conciliation (Amendment) Bill, 2001”, 12th September 2001, available at: http//:lawcommissionofindia. nic.inarb.pdf.

Books

Hazra, Kumar Arnab, The law and Economics of Dispute Resolution in India, Bookwell, New Delhi, 2003.

Jain, Ashok K., Constitutional Law of India ( Part II), Second edition, Ascent Publication, Delhi, 2009.

Kwatra, G K, Arbitration and alternative dispute resolution : How to settle business disputes, Lexis Nexis, New Delhi, 2004.

Rao, P.C & Sheffield William, Alternative Dispute Resolution : What it is and how it works, First edition, Universal Law Publishing Co. Pvt. Ltd., Delhi, 1997.

Roberts, Simon, and Palmer, Michael, Dispute Processes: ADR and the Primary Forms of Decision-Making, Second edition, Cambridge University Press, 2005.

Russell on Arbitration, Sweet & Maxwell, twenty-first edition, London, 1997.

Singh, Dr. Avtar, Law of Arbitration and Conciliation, eighth edition, Eastern Book Company, 2007.

Sharma. R. A, Hand Book of Arbitration in Construction Contracts based on Arbitration & Conciliation Act, 1996, First edition, Om Law Book House, 1997.

Articles

Agarwal, Anurag k., Role of Alternative Dispute Resolution methods in the development of society: Lok Adalat” in India, available at www.napsipag.org/pdf/Lok_Adalat.pdf .

Allen, Franklin, Comparing Legal and Alternative Institutions in Finance and Commerce, available at http://ssrn.com/abstract=1136168.

Dalal, Praveen, The Culture of ADR in India, available at www.odr.info/THE%20CULTURE%20OF%20ADR%20IN%20INDIA.doc.

Gupta, Sayantan, Alternative Criminal Dispute Resolution System: An evolving interface in India available at http://ssrn.com/abstract=1461375

Raju, Dr. K. D Alternate Dispute Resolution System: A prudent Mechanism of Speedy Redress in India, available at: http://ssrn.com/abstract=1080602.

Websites
http://www.lady4justice.com/2-2-8_litigation.cfm.
http://www.hg.org/articles/article_1530.html.
http://cyberlawsinindia.blogspot.com/2010/03/perry4law-launched-onlinedispute.html.
https://www.cia.gov/library/publications/the-world-factbook/geos/in.html.

AUTHOR:

Amogh Kane (1st Year BA.LLB), Maharatstra National Law University, Nagpur.