ADR-A STAND IN BESIDE THE COURTS OF LAW
Author: Sathiyanathan.S, III year of B.A.,LL.B. from Government Law College, Coimbatore
The Indian judiciary is one of the oldest Judiciary in the world. It is an important organ in the functioning of the Government and also the savior and guarantor of rights of the people ensured in the Constitution of India. But in recent years, the Indian judiciary has undergone some challenges which invites great criticisms, which giveschallenges to the efficiency of the Judiciary. Among the challenges faced by the Indian judiciary, the most prominent criticism is the pending cases before the Courts. The Alternative Dispute Resolution (ADR) has become a solution to this issue. It is a method of settling disputes outside the door steps of the court within a limited-time and procedure.
MAJOR CHALLENGES FACED BY INDIAN JUDICIARY
DELAY IN JUSTICE
“Delayed justice is denied justice.”
The Indian Judicial System is one of the oldest legal systems. The Indian Judiciary system follows the “common law system” in Civil Justice Administration and the adversarial system in Criminal Justice Administration. The standard censure placed against the judiciary is delay in justice, moredelay in justice has proven to be the biggest drawback of the judiciary.This makes the layman to question the efficient functionality of thejudicial system and also creates downcast in the litigants. The criticism of delay in justice cannot be made against the judges or any particular body individually. It is an absolute truth that each case needs a reasonable time to analyze the issues prevailing in it. One of the main reasons for the delay of justice is that the institution of cases in the courts far exceeds their disposal. ‘Judges should endeavor to perform all judicial duties, including the delivery of reserved judgments, with reasonable promptness.’
The number of pending cases before the Courts increases day by day, which shows the inadequacy and questions the efficiency of the judicial system. While we look at the numbers, 2.84 crore cases are pending in the subordinate courts, whereas the High Courts and Supreme Court (SC) holds 43 lakh and 57,987 cases, respectively. According to National Judicial Data Grid (NJDG), the five states which account for the highest pendency are
STATES NUMBER OF PENDING CASES
Uttar Pradesh 61.58 Lakhs
Maharashtra 33.22 Lakhs
West Bengal 17.59 Lakhs
Bihar 16.58 Lakhs
Gujarat 16.45 Lakhs
This makes the victims in loose their hopes. As the judiciary is the final hope of the aggrieved, the speedy remedy or a solution must be awarded to them at the earliest possible. Thus it is of utmost importance that the judiciary overcomes these challenges as fast as it do so that the people of India does not hesitate before approaching it. The courts need to ensure that there is no delay injustice as “justice delayed is justice denied”.
ALTERNATIVE DISPUTE RESOLUTION
Alternative Dispute Resolution well known as ADR is a method of settling disputes outside the door step of the Courts. This scientific technique which resolves or settlesdisputes and brings an amicable result without the involvement of judiciary. The ADR with its scientifically proven methods like arbitration, mediation, conciliation and negotiations settle disputes and pulls out the judiciary from the burden of pending cases.
DISPUTES REFERRED TO ARBITRATION
ADR deals with major disputes against the right in personam and civil matters so as. In Afcons Infrastructure Ltd. V. Cheriyan Varkey Construction Company. Pvt. Ltd.,[i]the Supreme Court has enumerated the cases which are suitable to place before the ADR. The Supreme Court normalized the mediation of disputes relating to contracts, trade, commerce, consumer disputes, and even tortious liability. It also includes disputes involving joint ventures, partnership differences, personal injury, product liabilities, professional liability, area of healthcare, real estate securities, etc., falls within the jurisdiction of arbitration. Under Section 8 of the Arbitration and Conciliation Act, 1996, the judicial courts have the authority to command the parties to refer back to arbitration if their contract has an arbitration clause. Disputes regarding IPR matters are also arbitrable in nature, with respect to copyright and trademark infringement which involves passing off claims. While looking at the arbitrability of the matters in terms of dealing with criminal disputes, these offences are against right in rem, which means that this right exist against the whole world at large. The non-arbitrable cases fall within the jurisdiction of Courts. Eventually criminal cases are filed against the state.
In VidyaDrolia v. Durga Trading Corporation[ii], the Supreme Court, in this case, elucidated those allegations of fraud alone are not adequate grounds for courts to deny the parties to the arbitration. It further added that allegations of fraud can be grounds to refuse reference to arbitration, only where the arbitration clause or agreement itself doesn’t exist and if the allegations are made against the state or state institutions, thereby requiring public inquiry.
PERSPECTIVE OF ARBITRATION IN DIFFERENT COUNTRIES
ARBITRATION IN UNITED KINGDOM
The United Kingdom accepts the scientific methods of arbitration within its territory but the English common law has not spoken a much about it as said in the European Laws. London stands as an important arbitration center in settling commercial disputes around the world. The commercial disputes are resolved largely by the institutions of the International Chamber of Commerce (ICC), London Maritime Arbitrators Association and London Court of International Arbitration (LCIA). The arbitration is broadly classified into “subjective arbitration” and “objective arbitration”.The legislation relating to arbitration has been provided under the Arbitration Act, 1996.
ARBITRATION IN UNITED STATES OF AMERICA
The law of arbitration in the United States is governed by the historic Federal Arbitration Act of 1925 (FAA) which extends to the whole state and federal level enacted by Congress. The Act is divided into three chapters. The Chapter 1 deals with the enforcement of awards and arbitration agreements, Chapter 2 deals with the implementation of the New York Convention of 1958 and, Chapter 3 deals with the Panama Conventionof 1990.
ARBITRATION IN SINGAPORE
The Singapore Arbitration hub is one of the best Arbitration centers in the world, which deals with commercial disputes in an absolute expertise manner. According to the International Chambers of Commerce, Singapore has secured the number one seat for arbitration in Asia. The legislations which cover the Singapore Arbitration adopted many provisions from the UNCITRAL Model arbitration law.
HISTORY AND DEVELOPMENT OF ARBITRATION IN INDIA
The term arbitration may be new to India but not the technique or method.The Panchayat system prevailed in the ancient India is a predecessor of ADR and the members of panchayat is known as ‘Panchas’.The orders of panchayat bind all the people within its jurisdiction. The 1st Arbitration Act in India was introduced on 1st July 1899. This Act was founded on the English Arbitration Act, 1889 and the Indian Arbitration Act, 1899 was applicable only to the presidency towns of Bombay, Calcutta, and Madras. The 1889 Act was a bulky and a complex act, there was need for another act with some formal reforms of law. The Arbitration Act of 1940 comes in that place of the 1889 act, but it is a development from the previous act. The Arbitration Act of 1940 has been replaced by the Arbitration and Conciliation Act, 1996 because of two big drawbacks. One is that the rules for filing an arbitral award is different from one High Court to another and the other is that this act has no provision for the appointment of new arbitrator incase of death of the existing Court- appointed arbitrator. In Food Corporation of India V. Joginderpal[iii], the Supreme Court observed in this case that the law of arbitration should be made simple, less technical, and more responsive to the actual reality of the situations and at the same time it should be responsive to the canons of justice and fair play. The arbitrator should adhere to those procedures and rules which create confidence, not only by doing justice between the parties but also create a sense that justice appears to have been done.
The Arbitration and Conciliation Act, 1996 has been adopted in accordance with the UNCITRAL (United Nations Commission on International Trade Law) Model law of arbitration. The Act of 1996 contained amalgamated, strengthened, and amended laws relating to arbitration.
ADR AS A BOONTO INDIAN JUDICIARY
The Indian judiciary in the present day faces the hindrance of delay in justice and pending cases a lot. Lakhs of pending cases before the Courts increases the burden to the judiciary. The Alternative Dispute Resolution, the so-called ADR with its scientifically developed mechanism or technique provides anadditional hand to overcome the hindrance faced. ADR provides various modes of settlement including, arbitration, conciliation, mediation, negotiation and LokAdalat.It provides party autonomy, neutrality and confidentiality of the parties. These peculiar advantages attract lots of people to practise arbitration in case of civil and commercial matters. This decreases the rush in the Courts. Therefore,ADR is considered as a boon not only to the Indian judiciary but also to all.
ADR IN THE INDIAN CONSTITUTION
The ADR has been supported by many provisions of the Constitution of India, ensuring the smooth and effective working of the Alternative Dispute Resolution. The prime motive of ADR is to decrease the burden of pending cases before the Courts. It is a joint step taken by the Judiciary and Legislative to curb on the present situation.
Our Constitution and administrationare highly based on the concept of welfare of the people. In the preamble of our Constitution, it has been clearly specified that justice should be ensured in all social, political and economic facts. Legal justice is a part of social justice. Countries which like to ensure ‘socio economic equality’ should settle disputes rapidly. This can be effectively achieved by applying the mechanisms of Alternative Dispute Resolution.
Alternative Dispute Resolution is seen in the Indian Constitution under Article 14 and 21which deals about equality of law and right to life and personal liberty. Article 21 states that “no person shall be deprived of his life or his personal liberty except according to procedure established by law”. It has been described in HussainaraKhatoon V. Home Secretary[iv], Bihar that the right to speedy trial is also a part of the right to life and personal rights. The Supreme Court allowed Article 21 to expand goals as widely as legally possible. Article 39Aof the Constitution ensures free legal aid and equal justice under the Directive Principles of State Policy (DPSP).
OTHER PROVISIONS RELATING TO ADR
Arbitration or Conciliation proceedings are dealt under the provisions of the Arbitration and Conciliation Act
Lok Adalat is mentioned under Section 20 (1) of the Legal Services Authorities Act 1987.
Judicial Settlement in reference by a court to an institution or a person who shall be considered to be Lok Adalat and comply to all provisions of Legal Service Authorities Act 1987.
The Industrial Dispute Act, 1947 make calls for conciliation as well as arbitration for dispute settlement. In Rajasthan State Road Transport Corporation V. Krishna Kant,[v] the Supreme Court stated that “the policy of law emerging from Industrial Disputes Act, and its sister enactments is to provide an alternative dispute resolution mechanism to the workmen, a mechanism, which is speedy, inexpensive, informal and unencumbered by the plethora of procedural Laws and appeals and revisions applicable to civil courts.” Hence a great deal of legislation such as the Arbitration and Conciliation Act 1996; Section 89 of the CPC; the 1987 Legal Services Authority Act to facilitate justice and speedy trail.
Alternative Dispute Resolution is a fast growing up mechanism, which attracts people because it is not much formal, expensive and time consumer. The big reason for the success of ADR is the natural justice involved in it. In C.B. Gautam V. Union of Indian[vi], it has been observed that the doctrine of natural justice pervades the procedural laws of arbitration. Any award passed with the violation of natural justice can be set aside by the court of law.Hence, these were the reasons for the massive growth of ADR in the past few decades.
[i](2010) 8 SCC 24. http://www.legalservicesindia.com/article/1248/Afcons-infrastructure-and-Ors.-v.--Cherian-Verkay-Construction-and-Ors.html [ii] (2021) 2 SCC 1: 2020 SCC OnLine SC 1018. [iii] 1989 AIR 1263 [iv]1979 AIR 1369, 1979 SCR (3) 532 [v]AIR 1955 SC 1715 [vi](1993) 199 ITR 530 (SC)