What is Alternative Dispute Resolution System?
Alternative Dispute Resolution (ADR) is a term generally used to refer to informal dispute resolution processes in which the parties meet with a professional, third party, who helps the parties to resolve their dispute in a way that is less formal and often more consensual than is done in the courts. While the most common forms of ADA are mediation and arbitration, there are many other forms: judicial settlement conferences, fact-finding, ombudsmen, special masters. Though often voluntary, ADA is sometimes mandated by the courts, which require that disputants try mediation before they take their case to court.
ADR in India is not new and it was in existence even under the previous Arbitration Act, 1940. The Arbitration and Conciliation Act, 1996 (ACA) has been enacted to accommodate the harmonization mandates of United Nations Commission on International Trade Law (UNCITRAL) Model. To streamline the Indian legal system, the traditional civil law known as the Code of Civil Procedure, (CPC) 1908 has also been amended and Section 89 has been introduced. Section 89 (1) of CPC provides an option for the settlement of disputes outside the court. It provides that where it appears to the court that there exist elements, which may be acceptable to the parties, the court may formulate the terms of a possible settlement and refer the same for arbitration, conciliation, mediation or judicial settlement.
Due to extremely slow judicial process, there has been a big thrust on ADA mechanisms in India. While ACA is a fairly standard western approach towards ADA, the Lok Adalat system constituted under the National Legal Services Authority Act, 1987 is a uniquely Indian approach.
a) To cover international and domestic arbitration comprehensively.
b) To minimize the role of courts and treat arbitral award as a decree of court.
c) To introduce the concept of conciliation.
d) To provide speedy and alternative solution to the dispute.
Arbitration – It is one of the cardinal mechanisms in alternative dispute machinery, whereby the dispute is submitted to one or more arbitrators, who are duly appointed by both the parties. The process of arbitration can start only if there exists a valid arbitration agreement between the parties prior to the emergence of the dispute. As per Section 7, such an agreement must be in writing. The contract regarding which the dispute exists must either contain an arbitration clause or must refer to a separate document signed by the parties containing the arbitration agreement. The existence of an arbitration agreement can also be inferred by written correspondence such as letters, telex, or telegrams which provide a record of the agreement. An exchange of statement of claim and defence in which existence of an arbitration agreement is alleged by one party and not denied by the other is also considered as valid written arbitration agreement.
Any party to the dispute can start the process of appointing an arbitrator and if the other party does not cooperate, the party can approach the office of the Chief Justice for appointment of an arbitrator. There are only two grounds upon which a party can challenge the appointment of an arbitrator reasonable doubt in the impartiality of the arbitrator and lack of proper qualification of the arbitrator as required by the arbitration agreement. A sole arbitrator or a panel of arbitrators so appointed constitutes the arbitration tribunal.
Except for some interim measures, there is very little scope for judicial intervention in the arbitration process. The arbitration tribunal has jurisdiction over its own jurisdiction. Thus, if a party wants to challenge the jurisdiction of the arbitration tribunal, it can do so only before the tribunal itself. If the tribunal rejects the request, there is little the party can do except to approach a court after the tribunal makes an award. Section 34 provides certain grounds upon which a party can appeal to the principal civil court of original jurisdiction for setting aside the award. Once the period for filing an appeal for setting aside an award is over, or if such an appeal is rejected, the award is binding on the parties and is considered as a decree of the court.
The tribunal can give its verdict in the form of “arbitral award”, which is legally binding on disputed parties. Arbitration is very common in business transactions, but unknown to many that it is the oldest method of resolving disputes, which had been enshrined since ancient history.
Mediation – Is a non-binding process in which a third party called “mediator” helps the disputed parties to reach a settlement.
Mediation is the technical term in international law which signifies the interposition by a neutral and friendly state between two states at war or on the eve of war with each other, of its good offices to restore or to preserve peace. The mediation is a process, facilitation, an empowerment. The core value of mediation is that the process provides the parties with an opportunity to negotiate, converse and explore options aided by a neutral third party, the mediator, to exhaustively determine if a settlement is possible. It is a process of empowerment of the parties to control their destiny in their dispute.
Thus, mediation is necessarily a process of negotiation by which the participant together with the assistance of a neutral person attempts to resolve the dispute. The third party mediator makes effort by negotiations with the participants to systematically identify and isolate disputed issues in order to develop options consider alternatives and to reach a congenital agreement that will accommodate their needs and rights. The third party mediator lacks authority to decide but only facilitate to create congenial environment to enable the party to resolve their dispute amicably themselves.
Mediation provides a forum for principled negotiations. These negotiations may at times become frustrating and troubling, but with the mediators help the parties keep moving forward. Principled negotiations stimulate exploration of settlement alternatives and an opportunity to evaluate those alternatives, weighing them against the likely outcome of going to trial and viewing proposals through the lenses of reality. Mediation compared to litigation, trial and appeal is a veritable bullet train to certainty and finality. If the dispute settles at the mediation, it settles on a basis acceptable to the parties; the spectre of trial is removed; and the threat of being tied up on appeal is eliminated.
I would conclude by saying that mediation is extremely relevant to the justice delivery in India since it not only brings an end to the litigation pending before the Courts but it also has cascading effects of bringing an end to bad-blood between the parties and making them useful members of the Society.
Conciliation – This mechanism is also non-binding on the parties. It is a process by which a third party called “conciliator” meets disputed parties separately in order to resolve their differences. He neither gives verdict nor makes any award. Conciliation is a less formal form of arbitration. This process does not require existence of any prior agreement. Any party can request the other party to appoint a conciliator. One conciliator is preferred but two or three are also allowed. In case of multiple conciliators, all must act jointly. If a party rejects an offer to conciliate, there can be no conciliation.
Parties may submit statements to the conciliator describing the general nature of the dispute and the points at issue. Each party sends a copy of the statement to the other. The conciliator may request further details, may ask to meet the parties, or communicate with the parties orally or in writing. Parties may even submit suggestions for the settlement of the dispute to the conciliator.
When it appears to the conciliator that elements of settlement exist, he may draw up the terms of settlement and send it to the parties for their acceptance. If both the parties sign the settlement document, it shall be final and binding on both.
Lok Adalat – It is also called “peoples court”. It was established by the Government under the Legal Services Authorities Act, 1987 to facilitate inexpensive and prompt settlement of pending suits by conciliation and compromise. This forum is very effective in settlement of money claims, partition suits and matrimonial cases. India has had a long history of resolving disputes through the mediation of village elders. These are usually presided over by a retired judge, social activists, or members of the legal profession. It does not have jurisdiction on matters related to non-compoundable offences.
There is no court fee and no rigid procedural requirement (i.e. no need to follow process given by the Civil Procedure Code or the Evidence Act), which makes the process very fast. Parties can directly interact with the judge, which is not possible in regular courts.
The focus in Lok Adalats is on compromise. When no compromise is reached, the matter goes back to the court. However, if a compromise is reached, an award is made and is binding on the parties. It is enforced as a decree of a civil court. An important aspect is that the award is final and cannot be appealed against, not even under Article 226 of the Constitution, because it is a judgement by consent. All proceedings of a Lok Adalat are deemed to be judicial proceedings and every Lok Adalat is deemed to be a civil court.
Ombudsman – it is an external agency appointed by the government to probe into administrative lapses. It is a mechanism by which an aggrieved party can claim relief against abuse of discretionary power by government authority. Sweden was the first country to adopt this institution in 1809 followed by Finland, Denmark, Norway, New Zealand, Australia and the Scandinavian countries. The Government of India has designated several ombudsmen (sometimes called Chief Vigilance Officer or CVO) for redressal of grievances and complaints from individuals in banking, insurance and other sectors being serviced by both private and public bodies and corporations. The CVC (Central Vigilance Commission) was set-up on the recommendations of Santhanam Committee (196264).
In India, Ombudsman is called Lokpal or Lokayukta. An Administrative Reforms Commission (ARC) was set up on 5 January, 1966 under the chairmanship of Morarji Desai. It recommended two-tier machinery: Lokpal at the Centre (Parliamentary commissioner as in New Zealand) and one Lokayukta each at the State level for redressal of peoples grievances. However, the jurisdiction of the Lokpal is not extended to judiciary like in New Zealand. The Central Government introduced the first Lokpal Bill and Lokpal and Lokayuktas Bill in 1968. The new Bill is under discussion.
The Lokayukta institution has come into existence in different years, in different States in India. Orissa is the first state to present a Bill on establishment of Lokayukta in 1970. However, Maharashtra is the first state to have established the institution in 1972. Thereafter, this institution was established in different States in different years. The structure of the Lokayukta is not uniform across all the states. Some states have Upa-Lokayukta under Lokayukta and in some states the Lokayukta does not have suo motu powers of starting an enquiry.
Negotiation – It is a non-binding process of resolving disputes, by which parties to a dispute interact with one another and try to work out a settlement without the intervention of a third party. The importance of negotiation in concise can be aptly put in the words of former US President John F. Kennedy “Let us negotiate with fear but let us not fear to negotiate”. It is the process whereby interested parties resolve disputes, agree upon courses of action, bargain for individual or collective advantage, and/or attempt to craft outcomes which serve their mutual interests. It is usually regarded as a form of ADA. Given this definition, one can see negotiation occurring in almost all walks of life, from parenting to the courtroom.
Practitioners and researchers began to develop win-win approaches to negotiation. This approach, referred to as principled negotiation, is also sometimes called mutual gains bargaining.
Collaborative Law – It is a voluntary dispute resolution process by which parties to a dispute are represented by their own lawyers, to facilitate discussion in accordance with an agreement. It has been an effective mechanism in the context of divorce and family law. Collaborative law is practised internationally in countries like the USA, UK and the list goes on with the inclusion of countries such as France, Germany, Austria, Australia, Scotland, Switzerland and Hong Kong. In collaborative law or collaborative divorce, each party has an attorney who facilitates the resolution process within specifically contracted terms. The parties reach an agreement with the support of the attorneys (who are trained in the process) and mutually-agreed experts. No one imposes resolution on the parties. However, the process is a formalized process that is part of the litigation and the court system. Rather than being an alternative resolution methodology it is a litigation variant that happens to rely on ADA like attitudes and processes.
Because justice is not executed speedily men persuade themselves that there is no such thing as justice. Sharing the same sentiments, Chief Justice Bhagwati said in his speech on Law Day, “I am pained to observe that the judicial system in the country is on the verge of collapse. These are strong words I am using but it is with considerable anguish that I say so. Our judicial system is creeking under the weight of errors.”
The disputants want a decision and that too as quickly as possible. As the problem of overburdened Courts has been faced all over the world, new solutions were searched. Various Tribunals were the answer to the search. All over the globe the recent trend is to shift from litigation towards Alternative Dispute Resolution. It is a very practical suggestion, which if implemented, can reduce the workload of Civil Courts by half. Thus, it becomes the bounden duty of the Bar to take this onerous task of implementing ADR on itself so as to get matters settled without going into the labyrinth of judicial procedures and technicalities. The Bar should be supported by the Bench in this herculean task so that no one is denied justice because of delay.
It is important here to mention the statement made by John F. Kennedy in this respect: “Let us never negotiate out of fear but let us never fear to negotiate.”
• Bawa, Siddhartha. 2006. Law of Arbitration and Conciliation. Delhi: New Era law Publications.
• Singh, Avtar. 2007, Law of Arbitration and Conciliation, Lucknow: Eastern Book Company.
• Tripathi, S.C. 2005. The Arbitration and Conciliation Act, 1996 with Alternative Means of Settlement of Disputes. Delhi: Central Law Publication.
© Chawla Publications (P) Ltd.
These days we are having many discourses on human rights. On December 10th every year we celebrate and commemorate these rights very meticulously. The General Assembly of the United Nations Organisation passed a resolution 217-A (III) on 10th December, 1948 known as the Universal Declaration of Human Rights (UDHR). The heart of UDHR articles, as given in Articles (1) and (2), is that:
“human beings are born free and equal in dignity and rights, and that they are endowed with reason and conscience and should act towards one another in a spirit of brotherhood,” and “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Human Rights are rights that all persons have simply because they are human beings; because they are persons. Human rights are those natural rights which are inherent in our nature precisely as ‘human’ and without which we cannot live as human beings. Hence to understand human rights one ought to understand what ‘human person’ and ‘human life’ are all about; the nature of human personality and the dignity of human life need to be adequately assessed in order to comprehend human rights adequately.
The meaning that we ordinarily give to the concept of human rights goes beyond the description given in the “Protection of Human Rights Act, 1993” in India by which the National Human Rights Commission (NHRC) was constituted. Explaining the phrase “human rights”, paragraph 2(d) says:
“Human rights mean the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenant and enforceable by courts in India.”
As clear from this definition, the Act is talking of the human in human rights in an individual sense, not in a collective, communitarian or relational category. The anthropological understanding of the human here is in an isolated individual category. But today we talk of a relational anthropology. An authentic and adequate understanding of the human is in a corporate, relational and communitarian character. Here we have to go beyond our definition of a person as a ‘rational being’ and re-define a human being as a “rational and relational being-with” (a ratio- relational being-with). I am not just a person but a person-with. My very entity is embedded in a socio-relational, corporate, and communitarian character of interdependency. In the otherness of the other I find my identity (Buber). Only an integral view of human rights that takes into consideration of both individuals and groups, including the rights of humanity as such, can provide a dynamic future to the human rights discourse. A realization of the complexity of the human rights debate can take us to a holistic and integral approach to human rights.
The concept of ‘right’ too is not free from ambiguities. Trying to clarify the concept in the judicial context, Wesley Newcomb Hohfeld, an eminent jurist, talks of four things, viz. claims, liberties, powers, and immunities. Thus one can talk of ‘claim rights’, ‘liberty rights’, ‘power rights’, and ‘immunity rights’. They are described and thus considered as legal advantages. These four legal advantages are juxtaposed with ‘opposites’ and ‘correlates’ (which he calls ‘legal disadvantages’). Thus he expanded and generated eight fundamental conceptions of ‘right’.
The rights that humans have could be put in the categories of positive rights and moral rights. A positive right belongs to the realm of what is, and moral right belongs to the category of what ought to be. In an authentic humanisation process the positive should continuously strive to the moral.
Human rights are moral rights. “Moral” indicates that they are based on a valid moral principle. To call a principle “moral”, in turn, is to indicate that certain requirements for action are obligatory. Hence human rights are rights, which imply obligatory requirements for action. Besides moral rights, there are legal rights, prudential and intellectual rights. The difference among these rights is based on the different justifying criteria for these rights. For example legal rights are based on statutes and other laws.
Earlier philosophers called these rights “Natural rights”, meaning that they are rights derived from the nature of the individual, and existing for one’s welfare. They differ from civil rights, which are derived from society or the state, and are intended for a social or a civil purpose. The right to vote, the right to hold a public office, are examples of social or civil rights. A natural right neither proceeds from nor is primarily designed for a civil end, and so it cannot be annulled, even by the State. For example right to life and the right to liberty are so sacred to an individual, so necessary to one’s existence and welfare, that even the State may not rightfully kill an innocent person, nor punish an innocent one to prison. There are people who argue that a State does not have the right for capital punishment even of guilty people. A natural right neither proceeds from nor is primarily designed for a civil end, and so it cannot be annulled, even by the state.
Though natural rights are all equally valid, they differ with respect to their basis, their urgency, or importance. We may distinguish three principal types of Natural Rights.
The first type is exemplified in an individual’s right to live. The object of this right, life, is intrinsically good, i.e., good for its own sake, an end in itself. It is an end to which even the civil society and/or the state is a means. Since life is good intrinsically, the right to life is also valid intrinsically.
Among the natural rights of the second category are the right to enjoy personal freedom, the right to marry, right to education, the right to own consumption-goods such as food and clothing. The objects of these rights are not ends in themselves, but means to human welfare. It is an indispensable means to reasonable life in the majority of persons. Right to education may belong to this category; social association might belong to this category. One could say that the right to the HIV/aids infected for care and protection belongs to the second category of the natural rights. Of course, as far as they have a right to live, as any person in a society, they too have the right of the first category. Hence there life too is to be protected and saved. Their life too is an end in itself.
There is a third class of natural rights. Private ownership of land belongs to this category. It is also a means to human welfare. It is not directly necessary for every individual, like food is necessary for living.
Public Interest Litigation (PIL) is very helpful for those who find it very difficult to have access to justice because of poverty, technicalities of law, rule of locus standi or for some other reason. There is constant change in the approach of judiciary in regard to the main concerns of the PIL jurisdiction and its causes and consequences. In the earlier years of PIL jurisdiction, the main concern was the problem of the poor. In the later period, the focus changed to developmental concerns of the upper and middle classes. This change in judicial attitude has been conditioned by social and political priorities. The emergence of PIL in the 1970’s, at a time when socialism and collectivism were dominant political ideologies, was a certain rejection and appreciation of limitation of laissez faire common law jurisprudence which strictly followed the rule of locus standi. The elevation of Justice Krishna lyer in 1974 to the Supreme Court reinforced the tendency towards people-oriented judicial action. For Justice Krishna lyer, law is meant for the people, not people for the law K.M. SHARMA : JUDICIAL UNIVERSE OF MR. JUSTICE KRISHNA, (1981) 4 SCC (JOUR.) 30. The activist approach of judiciary in enforcing human rights through PIL jurisdiction can be seen in two phases, which are influenced by the dominant political and social ideology of the respective period. First, the era of socialism, which started from lifting of emergency lasting till the process of liberalization began and second, economic liberalization era, which began in 1990 with P.V. Narsimha Rao Government coming to the power.
During this period the Indian courts, especially the Supreme Court, were primarily concerned with the problems of the poor and the downtrodden through the PIL jurisdiction. A large number of laws relating to legal aid, abolition of bonded labour system, oppression of Dalit and debt relief to the poor were passed during this period.
In three Hussainara Khatoon cases (1980) I SCC 81; (1980) 1 SCC 98 : (1980) 1 SCC 108, the court took up the problems of the poor under trial prisoners and gave elaborate directions so that the poor under trial prisoners may be released on bail with comparative ease. In Rudul Shah v. State of Bihar, AIR 1983 SC 1086 the Supreme Court directed the state to give specific compensation to the petitioner against petitioner’s illegal detention. In Sunil Batra v. Delhi Administration, (1980) 3 SCC 488 the court treated a letter, written by a prisoner complaining about brutal attack and assault by head warden on a fellow prisoner, as a writ petition on the ground of class standing. The court issued elaborate instructions for safeguarding the rights of prisoners and for the improvement of jail administration.
In People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235 the Supreme Court gave attention to the problems of the weaker and unorganized sections of labour, who in India are one of the vulnerable sections of society. The Supreme Court entertained a petition from a public-oriented organization on the behalf of labourers belonging to socially and economically weaker sections of society, employed in the construction work of various projects connected with Asian Games in 1982.
In Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 a public-spirited organization alleged that in some stone quarries of Faridabad, labourers lived under inhuman conditions and many of them were bonded labour. The court ordered compliance of welfare legislations and released the bonded labour, after verifying the allegations through a commission appointed by it.
A large number of homeless people, especially in big cities, illegally squat on public lands and pavements. Because of the magnitude of the problem and near impossibility of these homeless people to acquire any alternative place of residence, the S.C. in Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545 was called upon to decide against the eviction ordered by the Bombay Municipal Corporation, which according to the petitioners was violative of many provisions of the Constitution. The court upheld the constitutionality of the impugned Section but at the same time held that even to evict pavement and slum dwellers the requirement of the rules of natural justice must not be dispensed with.
The aforementioned cases analyse and effectively portray the significance of PIL in India, which continued to remain so in the latter period but different issues received central attention of the judiciary like environment and economic development. The reason for this was the change in the dominant social and political ideology to a free market economy, which led to the creation of a new class of consumers and investors, i.e., middle class. Subsequently, by addressing the issues of environmental and economic development, the courts were invariably addressing the issues of this middle class and also the upper class.
After economic liberalisation in 1991 the emphasis of PIL jurisdiction shifted from the problems of the poor to development, environmental and other concerns of the market and middle classes. In the new dispensation, the problems of the poor were attended only if the space left after satisfying developmental concerns, especially where the concerns of the poor were juxtaposed with development concerns and these development concerns are invariably expressed as concerns encompassing the interests of all.
Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751 is a case which clearly demonstrates the balancing of interests when there is a conflict between the interests of forest dwelling tribes and rural farmers, though in this case the apparent focus was on developmental and ecological issues. The petitioner insisted that the project was launched without proper planning, without proper understanding of environmental implications and thus violated rights under Article 21 of the Constitution. But the court was not impressed by any of the arguments and it appeared that development was the court’s priority area. The court described the purpose of this project in these words:
“The population of India which is now one billion is expected to reach a figure between 1.5 billion and 1.8 billion in the year 2050, which would necessitate the need of 2788 billion cubic meter of water annually to be above stress zone3. To feed increasing population more food grain is required and effort has to be made to provide safe drinking water. Darns play a vital role in providing irrigation for food security, domestic and industrial water supply, hydroelectric power and keeping flood water back. On full development, the Narmada has a potential of irrigating 6 million hectares of land and generating 3000 MW of power.”
In MC. Mehta v. Union of India, AIR 1997 SC 734 also known as the Taj Trapezium case, the Supreme Court took the laudable initiative to protect Taj Mahal from pollution. The court emphasized the importance of the Taj as one of the wonders of the world and ordered to switch over to natural gas as an alternative fuel for reducing pollution.
In M.C. Mehta v. Union of India, a Delhi stone crushing case, the Supreme Court ordered the closure of stone quarries in and around Delhi within three months to prevent air pollution and the Haryana government was asked to allot alternative sites in a new crushing zone.
Though these cases are very pertinent from the environmental point of view, these cases are silent regarding the problems of those who are rendered unemployed due to closure of quarries and industries. The cases suggested that the main concern of Indian judiciary in enforcing the human rights through PIL jurisdiction had been tilted toward the environmental and developmental concerns, which is predominantly the concern of the middle class and the other capitalists, and moreover this developmental and environmental concern is ostensibly shown as the concern for all including the poor and the downtrodden sections of society. Therefore, the judicial ideology is coincided or influenced by the predominant social and political ideology.
The Preamble of our Constitution encapsulates the basic objective of the Constitution to build a new socio-economic order where there will be social, economic and political justice for everyone and equality of status and opportunity for all. Till the advent of PIL, access to justice for the downtrodden and under-privileged was illusionary due to their poverty, ignorance and illiteracy. Therefore, the Supreme Court realized that it was necessary to depart from the traditional rule of locus standi to broaden access to justice. It did this by providing accessibility to the legal system where a legal wrong or a legal injury is caused to a person or to a class of persons, who by reason of their poverty or disability or socially or economically disadvantaged position, cannot approach the court for relief. In such cases any member of the public or social action group or interest group or a concerned citizen, acting bona fide, can move an application in a high court or the Supreme Court, seeking judicial redress for the legal wrong or injury caused to them. This judicial creativity led to the establishment of PIL jurisdiction in the aftermath of emergency. After 1990, during the era of economic liberalization, the main concern of the judiciary shifted towards developmental and environmental concerns with change in the dominant political and social ideology of free market economy and emergence of the new middle class. Though the judiciary continued to address the problems of the poor, its central concern shifted towards the developmental and environmental problems which were mainly the concerns of the middle and upper classes. Thus we see a shift in the judicial approach.
© Chawla Publications (P) Ltd.