|
- By Sunil Singh
Today
when about more than two and half crores (As per the Ministry of
Law and Justice press release 48,838 cases are pending in
Supreme Court, 38,82,074 cases pending in high Court and
2,52,40,185 are pending in subordinate courts as on 31.1.2008)
of case pending in our courts, that means at least five crore
people are directly involved in litigation that about 4 percent
of our population, and we have only 12,500 judges at lower court
level and about 647 judges at various High Court and 26 judges
in Supreme Court of India. Our Justice Administration system is
“adversarial” in nature in which there are two parties and they
are on face to face with each other in the Court, and we have
seen that its not the legal issues which are involved in most of
the cases put before us rather its ego which come in between and
it ultimately ends in blood amongst the litigants, and hatretism.
It is also observed that our
courts have very limited time for example 10:00 AM to 5:00 PM we
are in Court but during that time we have to manage out time for
various things like signing of files, and day to day orders,
meetings, compliances of directions of higher courts, and other
miscellaneous work, which a judge has to see.
What is justice, in layman’s term
its something which a aggrieved person deserves and it has been
encroached upon by another, and now our conventional system of
justice needs overhauling and need to develop a new approach,
the alternative dispute resolution is an steps towards that end,
and in India we have yet not developed a full fledged system,
the time has come that as a judge we need to take initiative at
the court of first instance, which plays the most important role
in the justice delivery system, as the seed of justice is sowed
over there, because the case takes off from there and we lack a
strong system at that which can be easily rectified, the Shetty
Commission envisages 50 judges per million we have only 10.5
judges per million, the judges really are over burdened with
work, and due to this the work is hotched potched and become out
of control, which can be easily managed by systematic approach
and firstly by enhancing the number of judges, not that we
should right now recruit all the judges at one go, but in a
phased manner, the Hon’ble Supreme Court has pronounced in its
judgment that the living conditions of the judges at lower level
should be improvised and they deserve better living standard and
all states and Centre should take initiative because we
implement laws which are passed by both Parliament and State
legislature, and its joint liability of both the state and
Centre to make budgetary allocation to fulfill the need of the
courts. I am sure the Presiding officer of the court will be
able to work with more efficiency if his basic needs are taken
care properly.
Judge’s work is divine work and
the justice is done by god and we are doing delegated work of
God so, as a judge we should never forget that our judgments
have direct impact on the society, and public have lots of
expectations from us, and we should try to come up to their
expectations.
Today we have seen that everyone
take resort to strikes, road blocks, and other modes of
disobedience, this situation has not arisen over night, rather
it’s a consistent development, people are slowly losing their
faith in judicial system also, as they end up getting justice at
a very later stage, which is too late, as justice delayed is
justice denied. Today the public at large gave lost faith in
government and police deptt; their FIRs are not getting
registered, which is a settled law, law is social engineering,
and the role of judges is the important in this whole episode,
and law is governed by two rules, firstly equality before law,
and no one is above law.
The Legal Services Authorities
Act, 1987 has also been amended from time to time to endorse use
of ADR methods. Section89 of the Code of Civil Procedure as
amended in 2002 has introduced conciliation, mediation and
pre-trial settlement methodologies for effective resolution of
disputes. Mediation, Conciliation, Negotiation, Mini-Trial,
Consumer Forums, Lok Adalats and Banking Ombudsman have already
been accepted and recognized as effective Alternative dispute
resolution methodologies.
Alternative dispute resolution
has greatly expanded over the last several years to include many
areas in addition to the traditional commercial dispute in the
form of arbitration; mediation has become an important first
step in the dispute resolution process. Arbitrators and
mediators have an important role in resolving disputes.
Mediators act as neutrals to reconcile the parties’ differences
before proceeding to arbitration or litigation. Arbitrators act
as neutral third parties to hear the evidence and decide the
case. Arbitration can be binding or non-binding.
What is ADR? In simple terms it
is Alternate Dispute Resolution the conventional Courts use
formal system of redressal applying various rules of law, as we
have erstwhile mentioned that our system is adversial. The
concept of Conflict Management through Alternative Dispute
Resolution (ADR) has introduced a new mechanism of dispute
resolution that is non adversarial. A dispute is basically ‘lis
inter parties’ and the justice dispensation system in India has
found an alternative to Adversarial litigation in the form of
ADR Mechanism in which two parties contest their case and one
party wins and the other party looses, but in case of alternate
dispute resolution (Section 89 – Code of Civil Procedure), which
can be categorized in four broad heads which are-
1.
arbitration;
2.
mediation;
3.
conciliation;
4.
judicial settlement
including settlement through Lok Adalat.
It is win – win situation and no party wins
no party looses, today the need of time is that we resort to non
conventional systems as well, we should not forget that its not
something new to us, we had for ages, like panchayats etc, it
was self sufficient, every village has panchayat and it was a
powerful authority for redressing the disputes. The best part of
ADR is that since both parties come face to face and they work
out the modalities and reach to an amicable solution, there is
no likelihood of winning or losing the case, i.e. it’s a win –
win situation and thereafter no appeal, and thus it reduces the
burden of appellant courts as well, the arbitration and
conciliation Act, 1996 provides for Arbitration and the award
given by the arbitrator is deemed to be a decree. It was step
towards the ADR. The labor legislation has already incorporated
conciliation and mediation system in their enactments, to have
an amicable solution in case of tussle between the labor and the
management. The conventional courts are already overburdened
with loads of cases, and at least a sizable number of cases can
be disposed off by way of ADR. The CPC envisages for use of ADR
in section 89 in amended section as mandatory for court to refer
the dispute after the issues are framed for settlement of
disputes outside the Court (Clause 7 of the CPC Amendment
(Bill), 1999). The Law Commission of India in its 129th
Report recommended for the Alternate modes of Dispute Redressal
to be obligatory on the courts after framing of issues. It is
only after the parties fail to get their disputes settled
through any one of the alternate dispute resolution methods that
the suit shall proceed further in the court where it was filed.
The purpose of this special provision seems
to help the litigant to settle his dispute outside the Court
instead of going through elaborate process in the court trial.
This is a special procedure for settling the dispute outside the
courts by a simpler and quicker method. The litigants on the
institution of the suit or proceedings may request the Court to
refer the disputes and if the court feels that there exist any
element of settlement which may be acceptable to the parties; it
may refer them to any of the forums abovementioned at any stage
of the proceedings. In fact new rules in Order X were inserted
in consequence to the insertion of the sub section (1) of
section 89. These new rules namely 1A, 1B and 1C have been
inserted by the Amending Act. The settlement can be made by
adopting any of the modes specified in the section 89 of the CPC
inserted by the Amendment Act. As per the Rule 1A the parties to
the suit are given an option for settlement of the dispute
outside court. When the parties have exercised their option it
shall fix the date of appearance before such person as may be
opted by the parties. As per the Rule 1-B the parties are
required to appear before such forum opted by them. Rule 1C
provides for the Presiding Officer of the Forum to refer the
matter again to the Court in case he feels that in the interest
of justice he should not proceed with the matter.
On the basis of above analysis it is apparent
that the ADR is the best and most effective solution to reduce
the Himalayan pendency in various courts of our country. It is
not to forget that the ADR is more effective as it is an
amicable solution and both parties are in win – win position and
brings about harmonious relationship between both the parties
unlike in the conventional courts, thus it is permanent solution
to any dispute, as it don’t lead to appeal or revision, and
hence reducing the burden of appellate courts as well and also
it saves valuable time and energy of the courts which can be
utilized erstwhile in other matters pending before court and it
renders justice on time (Justice delayed is justice denied, but
ADR saves time and timely judgment is possible). As a judge it
is our duty as envisaged by the new CPC to encourage the ADR, in
civil maters in the interest of justice. Despite many advantages
of using Alternative dispute resolution mechanisms, our society
has been reluctant to give it its due recognition. The
predominant reason being that a litigation ridden society is
generally unable to explore consensual dialogue or arrive at an
amicable solution. The ADR practitioner therefore acts like a
healer of conflicts rather than a combatant. It is similar to
the Panchayat system we have in our villages. The resolution of
disputes is so effective and widely accepted that Courts (In
sitanna v. Viranna; AIR 1934 SC 105, the Privy Council
affirmed the decision of the Panchayat and Sir John Wallis
observed that the reference to a village panchayat is the time-honoured
method of deciding disputes) have more often recognized them. It
avoids protracted litigation and is based on the ground
realities verified in person by the adjudicators and the award
is fair and honest settlement of doubtful claims based on legal
and moral grounds.
***
|