ALTERNATIVE DISPUTE RESOLUTION IN INDIA

India is the world’s largest democracy with a population of around 140 billion and unexplainable diversities among people with respect to their culture, language, beliefs, lifestyle, habits and so on. Because of these vast diversities within a single country, there can be many instances of opinion differences and issues among the people, between the people and government and also between governments of national and regional levels. In such a society there are great possibilities of many crimes, corruption and several unconstitutional and unlawful activities. Indian culture is deeply rooted in the principle of unity in diversity which is reflected in the philosophy of our Constitution. So, to do justice to this principle we have to effectively tackle such problems that can become a severe threat at any time. In order to solve these issues our Constitution itself provided a solution in the form of an independent and impartial judiciary as a powerful organ of the government. However, the 75 years of experience after independence clearly shows that even the judiciary suffers from various challenges in settling disputes. It is in this context that alternative dispute settlement mechanisms came into the picture.

INDIAN JUDICIARY AND DISPUTE SETTLEMENT

India follows a middle path between British Parliamentary sovereignty and American Judicial supremacy. Indian judiciary is independent and impartial in nature, single and integrated in structure enjoying enormous powers through original, appellate, and advisory jurisdictions and having discretionary powers also through its writ jurisdiction, judicial review and judicial activism. Indian Judiciary can even take action on the grounds of court contempt which again adds to its powers. Thus the judiciary can act effectively as an important organ of the government to protect the Constitution and provide justice to the citizens by settling all criminal and civil disputes. But the judiciary is also not free from challenges like other organs of the government.

CHALLENGES FACED BY THE JUDICIAL SYSTEM AND THE NEED FOR ALTERNATIVE DISPUTE RESOLUTION MECHANISM

The challenges faced by the Judiciary paved the way for the emergence of alternative systems for dispute resolution. The following factors can cause inefficiency of the judiciary:-

• There is a high pendency of cases in various courts. According to data, more than 50 million cases are pending before various Indian courts. This is a grave concern because ‘Justice Delayed is Justice Denied’. According to the NITI Aayog strategy paper, more than 324 years are required to clear the backlog of cases in Indian courts.

• The number of Judges per million population and the working hours of courts especially the higher courts is very low in India as compared to developed countries. Also, the infrastructure of the courts especially the lower judiciary is not sufficient to handle the burden of these many cases.

• There are some cases which require the use of technology for trials. But our judiciary especially the lower ones are poorly equipped with such technologies. This creates challenges in the functioning of the system.

• There are complex procedural laws in our judicial system for all cases which make it inefficient and cause delays in the disposal of cases. There are many such disputes which can be solved easily without complicated procedures.

• The language used in the courts is mostly English, especially in the higher courts. This may create difficulties for some parties due to understanding issues. If both the parties of the case are from similar backgrounds then the use of their local language is advisable for an efficient trial.

• There are even criticisms against the judiciary on various grounds like the accountability of judges, method of appointment of judges, intervention in the domains of executive and legislature etc.

Therefore, the Alternative Dispute Settlement mechanism is instrumental in overcoming these challenges and reducing the burden of the judiciary.

ALTERNATIVE DISPUTE RESOLUTION IN INDIA

ADR refers to the resolution of disputes through other methods without the formal intervention of courts or any judicial trials. Alternative Dispute Resolution is less time-consuming and can produce quick results in a very cost-effective manner. This can be used in all matters including civil, commercial, industrial, family and so on. This includes both judicial and non-judicial methods. Judicial methods include institutions like Lok Adalat, Gram Nyayalaya, family courts and tribunals. These are bodies consisting of judges created to reduce the burden of courts by providing jurisdictions over disputes which are small in nature or those which can be solved without proper judicial intervention by courts. Such methods are now very relevant in India. But this again proved to be insufficient when considering the challenges of the judiciary and the nature of some cases. Here comes the importance of Alternative Dispute Resolutions through non-judicial methods. However, such methods are not popularly used in India as compared to judicial methods due to various reasons. There are many popular methods for non-judicial settlement of disputes. like:-

(Image credits : The Times of India)

• Negotiation:- In this method of dispute resolution the parties themselves bargain to arrive at a mutually agreed settlement. No third party is included in this process.

• Conciliation:- Here a neutral third party called a conciliator facilitates negotiation between the parties in dispute. The conciliators meet the parties separately to lower the tensions and to improve communication between them. The conciliator may give an award in case of the failure of the parties to arrive at a mutually agreed settlement and in some cases the award may be legally binding.

• Arbitration:- Arbitration is a more formal method as compared to conciliation. In this method, a neutral third party called the arbitrator chosen by the parties themselves resolves the disputes between parties by giving an award on its own which is final and binding and not bound by any procedural laws.

• Mediation:- It facilitates dispute resolution by facilitating negotiation between the parties in the presence or mediation of a neutral third party called the mediator. Here the mediator does not give an award on its own.

Major Provisions Regarding Alternative Dispute Resolution in India

In India, several provisions in the Constitution support the ADR including some Fundamental Rights like that of Article 14 and Article 21 regarding the Right to equality and the Right to life and personal liberty respectively. Alternative Dispute Resolution can provide social, economic and political justice and can play a major role in maintaining unity and integrity in society by fulfilling several values in the Preamble. It also helps to do justice to the requirements in Article 39A of Directive Principles of State Policy by providing equal justice and free legal aid to the people. There are provisions in Section 89 of the Civil Procedure Code, 1908 which allows the parties to settle the disputes outside the court and the court can formulate terms of the settlement and can refer for Arbitration, Conciliation, Mediation or Lok Adalat. Later other legislations like the Arbitration and Conciliation Acts, 1996 were made in this regard to promote ADR. The Legal Services Authority Act, of 1987 also contains several measures in support of ADR.

Recent developments in Alternative Dispute Resolution in India

Recently some major developments occurred in Alternative Dispute Resolution. The crisis created by COVID- 19 throughout the world also had a great impact here. It led to the rise in commercial conflicts due to many reasons like failure to fulfil contractual obligations. During this crisis period, the judiciary couldn't function to its full capacity which caused the pendency of many cases making the situation worse. These extraordinary situations influenced the parties to go for Alternative Dispute Resolutions. At this time virtual hearing began to be used widely in Alternative Dispute Resolution.

To make some changes to the Arbitration and Conciliation Acts of 1996, India made the Arbitration and Conciliation Amendment Act 2019 and inserted Part 1A under the Act for the constitution of the Arbitration Council of India (ACI). In 2021 India again amended the Arbitration and Conciliation Act and provided changes in the form of sections 34(2) (b) and 36(3). This provided that awards of arbitration can be challenged in court and the court can stay it if it is against the public policy of India or if the award was affected by corruption. It also substituted Section 43(j) of the Act and deleted the 8th schedule to allow the parties to appoint the arbitrator of their choice regardless of their qualifications.

In 2002 Parliament brought an amendment to Section 89 of the Civil Procedure Code which brought different Alternative Dispute Resolution mechanisms. In Salem, in Advocate Bar Assn.(I) v. Union of India case, section 89 was challenged and in this case, the Supreme Court observed that the availability of provisions of ADR in foreign countries has been very successful. The Court also ordered the formulation of rules with regard to mediation and other ADRs. It led to the formation of the Mediation Rules of India in 2003. Mediation in India is administered by the Mediation Rules of 2003. India also passed several laws which can also promote mediation like The Companies Act, 2013, The Commercial Courts Act of 2015, The Consumer Protection Act of 2019 etc.

Mediation Act of 2023

There are several provisions for mediation in India. But there is no standalone legislation as yet. By considering this India introduced the Mediation Act of 2023 to promote and facilitate institutional mediation. This allows people to try and settle civil or commercial disputes through mediation before approaching the judiciary except for some serious offences of fraud, some criminal offences, environmental matters reserved for the National Green Tribunal, and matters relating to competition, telecom, securities and electricity law and land acquisition etc. There are also provisions for the court to refer cases for mediation. The act provides for the establishment of a Mediation Council of India to control the process and manage institutions and service providers of mediation. A new concept of community mediation was also introduced to settle disputes affecting peace, harmony and unity in any area. The act also makes online mediation an acceptable and cost-effective process. It also provides provisions for the proper enforcement of the mediated settlements. The act is a good step towards the fulfilment of the objectives of the Singapore Convention on Mediation.

Significance of Alternative Dispute Resolution Mechanism

By considering the wide range of disputes in India and the consequent challenges as a democratic country, India must settle such disputes speedily and effectively. Alternative Dispute Resolution helps in this regard.

Through ADR people can try to settle disputes by themselves or with the help of a third party before going directly to court. This can reduce the burden on Indian Courts that are already overburdened with many pending cases. It would also facilitate the quick and effective resolution of disputes without any traditional court procedures. It can offer the required technological and infrastructural requirements lacked by courts for the settlement of some disputes for which such requirements are necessary. This also helps to overcome the language barriers to an extent by using languages comfortable for both the disputants. Also, this collaborative approach between the disputants helps to maintain a good relationship between them. It can also boost the economy with more efficiency and less time consumption. Avoiding delays in the standard process through the courts can bring positive changes in our business environment and can elevate India to the top of the Ease of Doing Business rankings. This can also bring a worldwide image for India as a dispute-friendly country. This will make India a most preferred destination for foreign investment in the long run. The economy will also benefit from the availability of new employment opportunities, reduction of financial losses and infrastructural development. ADR can promote peace, law and security in the society through consensus among the communities.

Some possible Problems

Alternative Dispute Resolution also faces some challenges. Even though it is an accepted means of dispute resolution, still there are several unanswered questions regarding the enforcement of the decisions or awards of this process. Also, there is limited clarity when it comes to challenging these decisions because how far the courts can interfere when it is needed is also problematic as there are differences of views regarding this. The scope of Alternative Dispute Resolution in the government sector is limited according to existing provisions. In a country like India, the government is the biggest litigant. So without properly involving the government this will become inefficient and cannot significantly reduce the burden on the judiciary. It is also an important fact that there are long lists of disputes that cannot be solved through alternative ways. This hampers the overall objective.

WAY FORWARD

Alternative Dispute Resolution comprises processes that offer a simplified delivery of justice without any complications or much procedures created by the judicial system. India was a country that always followed the traditional democratic system for dispute resolutions through the Judiciary. But with time due to the emergence of several challenges, India started considering the scope of having wider provisions for Alternative Dispute Resolution. Even though this is a great step there are still many more challenges to overcome.

India should focus on providing more institutional support for ADR like setting up well-equipped and accessible mediation centres from local to national levels. There should also be efforts from the government to provide comprehensive training for mediators, lawyers, judges and all other concerned people in this sector to ensure the availability of skilled professionals for efficient dispute resolution. There can be other effective steps like the inclusion of such topics in educational curricula in schools, colleges, law studies etc that can make people aware of its importance. The National and State Legal Services Authorities can also take effective steps in creating awareness regarding ADR so that people can be influenced to consider the possibility of ADR for their dispute resolution before approaching the court.

India is the most populated country in the world. There are varieties of disputes occurring day by day in India. This is inevitable in a most populated and diverse country like India. The judiciary and Constitutional means have many limitations and are not alone sufficient to find timely and effective solutions for all disputes. So, ADR has great scope in India. If India can utilize the ADR properly through effective steps, we can soon fulfil our aspiration of becoming an international mediation hub in the near future itself.

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BY : SAIKRISHNAN JS

saikrishnanjayababu@gmail.com