The Necessity, Scope & Dire Need for Implementation of Alternative Dispute Resolution (ADR) practices in India
“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses and waste of time.”
These seemingly prophetic words were
uttered by Abraham Lincoln far before anyone could foresee the pitfalls of an
adversarial judicial system beset with inefficiency, apathy and indecision.
Although the words may have been uttered in a different context, nowhere are
they more relevant than in the current scenario where India finds itself in the
unenviable position of being the paragon of judicial backlog
and ineffectiveness.
The
Problem
There are over 31.5 million pending
cases[1] in
India today, nearly 27 million of which are pending in District and subordinate
Courts. These lower Courts are thronged by poor litigants who end up bearing
the brunt of this unforgiving Sisyphean system. The acute vacancy of judicial
positions[2]
and a propensity for mindless litigation by governmental agencies simply serves
to feed a terminally ailing system suffering from the judicial equivalent of
Hirshsprung’s disease.
The
Proverbial Band-Aid
Various ways may be
resorted to, to mitigate the shortcomings, such as, increasing
the strength of the judiciary by filling up existing vacancies, keeping Courts
open for 365 days, reform of judicial appointments, and setting up of
committees to counter stalling tactics in Court and more disturbingly, there
have also been calls for non-acceptance of ‘flippant’ cases[3],
which is a disconcerting proposition, as it presumes to entrust unbridled
discretionary powers in the hands of individuals not immune to allure of
venality.
The measures suggested
above are cosmetic at best as they do not address the core issues of how the
judicial procedures and systems, put in place to ensure equity, have been
exploited by vested interests to such an extent that has given rise to a
perception that our judicial system, in the absence of reform, is no longer viewed
as a reliable vehicle for justice.
Filing of a Court case is
often used as a threat to extort people into submitting to illegal demands. The
ubiquity of colloquial quips in India like “zindagi bhar Court ke chakkar kaat
te rahoge” (you will spend your life in
the corridors of the Court), “andha kanoon” (justice is blind) and the very popular “tareeq pe tareeq mili,
lekin insaaf nahi mila” (we only got
dates, we never got justice) is testament to the collective disillusionment
that has crept into the minds of the people as to the futility of something as
basic as a hope for justice.
The Cure
In spite of the first Indian
Arbitration Act being enacted as far back as 1899[4], the
importance of Alternative Dispute Resolution methods like Arbitration,
Mediation, Conciliation and Negotiation have only recently been endorsed as a
constructive and efficient system to facilitate the consensual and voluntary
resolution of disputes. There have been several developments which have
underlined how our attitudes towards conflict resolution hinge upon the
emphasis on ADR methods of conflict resolution.
(i)
Section
89 of the Code of Civil Procedure, which was amended in 1999 and came into
effect from 01/07/2002, with the purpose of
empowering the Courts to refer disputes for settlement and conciliation,
was introduced to foster mutual settlements not contingent on the involvement
of the Courts.
(ii)
The
Law Commission in its 129th Report dated 8/8/1988, highlighted the
importance of consensual and amicable settlement of disputes and recommended
the institution of Conciliation Courts all over the country.
(iii) The Malimath Committee[5] which
was entrusted with the suggestion of reforms of the Criminal Justice System, in
March, 2003, recommended introduction of Conciliation procedure in writ matters
and also resolving disputes under the Rent Control Act.
(iv) The Arbitration and Conciliation Act,
1996 was amended in 2015[6]
with an aim to fast track the arbitration process and address the legitimate
concerns relating to the credibility and neutrality of arbitrators.
Conclusion
Herbert Read once said “I can imagine no society which does not embody some
method of arbitration”. Our society has been conditioned by our
adversarial judicial system to look at dispute resolution through the myopic
lens of adversaries. India has a rich history of devising intricate systems
based on mutual understanding to arrive at amicable resolution of disputes. The
core tenets of ADR are but a reflection of these ancient principles and the
future of our judicial administration hinges heavily upon the enabling
environment provided to methods of Alternative Dispute Resolution.
[1]https://timesofindia.indiatimes.com/india/46-of-three-crore-pending-cases-filed-by-centre-states/articleshow/59261258.cms
[3] http://bit.ly/2CUaRbc
[4]
http://lawcommissionofindia.nic.in/reports/report238.pdf
[5]
http://mha.nic.in/sites/upload_files/mha/files/pdf/criminal_justice_system.pdf
[6]
http://pib.nic.in/newsite/PrintRelease.aspx?relid=126356
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