There has been a lot of criticism regarding our justice delivery system due to staggering pendency of court cases. There is no denying of the fact that unreasonable and inordinate delay occur in disposal of cases.
To deal with the situation, there is urgent need to increase the strength of trial judges and magistrates, particularly in subordinate courts. In December 1993 in the conference of Chief Justices and Chief Ministers, the idea of disposal of cases through ADR (alternative dispute resolution) was mooted. With the passage of time, the ADR mechanism has now come to the statute book to avail the same by the parties in preference to taking resort to rigours of a conventional trial by law courts and tribunals.
The principles of equity, good conscience and natural justice are the guiding considerations which work uppermost in the mind of the conciliator, arbitrator and mediator in settlement of disputes in preference to adhering to procedural technicalities involved in different cases according to the procedure laid down in law and to take resort to the golden principles of compromise and conciliation. This is the main thrust of the ADR system. That apart, cases are now resolved through the instrumentality of lok Adalat which is a constitutional mandate under Article-39 (A) of the constitution under the provisions of legal Services Authorities Act-1987. By this method, quite a good number of cases are now settled throughout the country in a spirit of conciliation, with a sense of appeasement and rapprochement between the parties.
It is gratifying that insertion of new provision under Section-89 of the Civil Procedure Code (Amendment) in 2002 has given statutory recognition to the ADR method of settlement of cases / disputes by a way of arbitration, conciliation and mediation, including settlement through lok Adalat. So far as the arbitration proceeding is concerned, the award given by the arbitrator should be a speaking order which is the decision of the private judge chosen by the private parties. Without intervention of the court, the parties may also agree to refer their dispute to an Arbitral Tribunal for quick resolution without filing a regular suit in the court. The parties would have more control over the decision-making process through this method than might be possible in a trial before the court. The tribunal may consist of a sole arbitrator or a panel of arbitrators chosen by the parties. If the parties have differences of opinion on the selection of arbitrators, the Chief Justice on a request shall appoint them. The arbitrator would decide according to the principles of equity and good conscience. On a consideration of the claim statement, statement in defense, evidence adduced by the parties together with expert opinion, if any, and on hearing the arguments, the tribunal shall make an award with findings on each of the issues by giving reasons in support of it. The award is final and binding on the parties and persons claiming under them respectively. The award shall be enforced under the provisions of the Civil Procedure Court in the same manner as if it is a decree passed by the court.
Recourse to arbitration of disputes outside the court is highly advisable to reduce the pendency in civil cases where rights of the parties are involved. The arbitrators and conciliators are not bound by the provisions of Code of Civil Procedure and Indian Evidence Act and they are guided by principles objectivity, fairness and natural justice. The conciliator after receiving the suggestions from the parties formulate the terms of reference for a possible settlement and call the parties for observations and then after hearing the parties, the conciliator may reformulate the terms of settlement and if the parties agree to it, the written settlement agreement is signed which shall be final and binding on the parties. The conciliator under Section - 75 and 81 of the Arbitration and Conciliation Act-1996 is required to keep confidentiality on all matters of the conciliation proceeding.
It is heartening to note that now under the provisions of Section-22 of the legal Services Authorities (Amendment) Act-2002, permanent lok Adalats have been established who are settling cases involving public utility services like (i) Transport service for the carriage of passengers or goods by air, road or sea, (ii) Postal, telegraph or telephone service, (iii) Supply of electricity and water to the public by any establishment, (iv) System of public conservancy or sanitation, (v) Service in hospital or dispensary and (vi) Insurance service and any other service which the Central or State Government may in the public interest declare to be a public utility service.
Every award of the Permanent lok Adalat shall be deemed to be a decree of a civil court which may be transferred to the civil court having jurisdiction for execution of the decree/order. The award of lok Adalat shall not be called into question in any suit, case, application or in execution proceeding. Fact remains that the lok Adalats have gained popularity in the country. Most of the litigants feel that their cases can be disposed of expeditiously by such Adalats. The emphasis in the Act is on effecting a compromise and amicable settlement of the dispute in order to prevent wastage of time and money on prolonged litigation.
For early settlement of criminal cases in large numbers, there is recourse to “plea bargaining method” in USA and England which has been adopted in India by inclusion of this method in chapter-XXIA of Code of Criminal Procedure-1973. However, no tangible results have been achieved in this regard so far, which of course, require change of attitude of the offender facing the criminal charge. This also needs the intervention of the trial court and the prison officer to persuade the accused for a plea of guilty to get a lesser punishment if he is willing to pay reasonable compensation to the victim of the crime. There is also “negotiated justice” adopted in Italy for conclusion of criminal cases early. There is also “conditional abetment of prosecution” to control huge pendency of criminal cases by Czech Republic. These are all ADR methods adopted for disposal of cases in preference to taking resort to traditional law courts. However, the ADR does not supplant the existing adjudicative machinery but it supplements the law courts. The ADR method for settlement of disputes has kindled a new hope which has added a new dimension, another projectile to the majesty of the legal system.
Before parting, it is significant to quote the words of Abraham lincon which he said more than a century ago. “Discourage litigation, persuade your neighbours, if you can point out to them that the nominal winner is often a real loser, in fees, expenses and waste of time. As a peace maker, a lawyer has a superior opportunity of being good persons”.
The successful implementation of any scheme or system of dispensation of justice depends largely on the cooperation of all those who are involved and concerned with it. Judicial process is a team work. The parties, witnesses, experts, lawyers, police officers, the executive, court staff and presiding officers of the courts are inseparable members of the team. Default in the journey of litigation by any one of them shall result in the delay of disposal of cases or even miscarriage of justice. What is essential is to create awareness among the people to extend their whole-hearted cooperation to the judicial process.
(Das is a former Special Judge, CBI, M- 9437022723)