ONLINE DISPUTE RESOLUTION “A CURE FOR JUSITCE DELAYED AND JUSTICE DENIED”- THE PROBLEM OF INDIA
Author: Nishant Jain, IV year of B.A.,LL.B.(Hons.) from Prestige Institute of Management and Research, Department of Law, Indore.
Co-authors: Ayush Gupta and Gouri Kanungo, III year of B.B.A.,LL.B.(Hons.) from Prestige Institute of Management and Research , Department of Law Indore.
Online Dispute Resolution is that branch of ADR, which utilises the technology to resolve the disputes between the parties. ODR is the combination of all negotiation, arbitration and mediation. In this modern era, ODR is considered as the most effective way to provide justice as it includes “Legal Certainty and Access to Justice for all”.
ODR is often defined as the utilization of Information Technology for carrying out ADR work.[i] ODR comprises the following things mentioned in the picture:-
Under this method not only E- disputes are resolved but also traditional, social and family disputes are also resolved. And in today’s era of digitalisation and technologies have a huge impact on our daily lives and has brought many changes to them. In India, there is a famous quote for the Indian judiciary that “Justice delayed is justice denied”, which clearly states that if Justice is not given at proper time then there is no use of such justice and due to the huge number of pending cases we are not able to provide justice to the people and from this people have started to lose hope from the judiciary. Online Dispute Resolution is one of the effective ways to solve this problem of pending cases in our courtrooms.
PRESENT STATUS OF ODR IN INDIA
Article 21 of our Constitution states that ‘No person shall be deprived of his life and personal liberty except by the procedure by law[ii].’ Even in the famous case of “HussainaraKhatoon v. Home Secretary State of Bihar[iii]” it was held that the right to a speedy trial is the part and parcel of the right to life and liberty.
Indian courts are packed till their mouth with the cases of different fields. Though our judiciary is trying hard to complete these cases. With the change of time the judiciary has also adopted the ODR method. This method has been even supported by many judges and even our current Chief Justice Bobde. During the situation of COVID, this played an important role in providing justice to the people. By this ODR changes came in the following: -
JUDICIAL PREPAREDNESS: - inputting the ground stone of ODR in the Indian Judicial system SC has played an important role. It was upheld that the validity of the video conferencing in taking evidence and recording of witness in State of Maharashtra v. Praful Desai[iv] and quoted that “virtual reality is the actual reality.” The simultaneous movement clearly states that India is in the need of ODR for logical transition.
LEGISLATIVE PREPAREDNESS: - our current legislative framework can be modified for the use of ODR in our daily practice. There are provisions present in our current framework which specially deals with the virtual hearing and about the witness. Section 65 A & B of the Indian Evidence Act, 1872 explains electronic evidence as a shred of valid evidence. Our present framework can continue to work as the bedrock for making a new legislative policy regarding ADR.
POSITIVE ASPECT OF ONLINE DISPUTE RESOLUTION
1. TIME EFFECTIVE: - ODR is both a time effective as well as a convenient form of ADR. In which parties can resolve their disputes from anywhere around the world. It is considered an efficient form of ADR as well.
2. COST EFFECTIVE AND CREATIVE METHOD: - ODR is considered a very creative method of resolution of disputes as generally the court proceedings are very formal and take much time, but this ODR method is very flexible. It’s the best method for those parties who could not afford the high cost of the litigation process. So ODR provides relief in terms of cost as well.
3. EASY ACCESS TO JUSTICE: - ODR provides speedy trials, speedy and easy access to justice as it can be accessed from anywhere in the world. It provides for the speedy disposal of cases as well as ODR may provide an employment opportunity to many arbitrators and advocates.
DEFECTS OF ONLINE DISPUTE RESOLUTION
1. People who are not very familiar with the use of modern technology will be at loss in using ODR.
2. Some language and network issues can also be the big disadvantage in getting the benefit of ODR.
PENDENCY OF CASES IN INDIAN COURTS
Our Indian courts are packed with cases from different sectors. To expedite these cases our Indian Government and Judiciary is taking up major and important reforms to lower down the statistics of the pending cases. But after the data, it's quite difficult to say when the number of cases will be lowered. The list below shows the data of pending cases in the year 2011.
Since Justice is the main aim of Law. And it’s the best time to change the way of providing justice. We all know that disputes are still going to come, but what we can do is that we can change the way of dealing with them. The best way to handle disputes in a cost-effective manner is by using Online Dispute Resolution. We can say that Online Dispute Resolution has a wide scope but in India, we need more of its implications in cases by making people aware of this method.
Globally ODR is witnessed as a boom with the e-commerce sector when Ebay and Paypal started resolving their disputes online. Many countries like the U.S.A, China, Brazil and some European Union Nations have already adopted the ODR mechanism by constituting their separate platforms to resolve disputes arising out of e-commerce transactions.
Millions of disputes have already been dealt with successfully without even filing a single suit in a traditional court of law. It is a proven fact that technology improves with time and technology being the main ingredient of different ODR methods, ODR will certainly come up with new and more desirable techniques.
In today’s time where everyone is adopting the internet more and more in their lives, then why should the court stop itself from using the latest technologies in the matter of cases? Justice is the necessity of the present time and it is also mandated in Article 21 of our Indian Constitution. Everyone should get justice at affordable costs. Our government, we people should ensure that justice is delivered to all those who need it and It can’t be doubted that if the state is encouraging ODR it is thereby assisting in the attainment of a speedier economical and convenient justice system. Thus the sooner ODR is the better it will be for the nation in general and the justice seeker in particular. India needs an effective mechanism through which ODR can be used.
[i]Farah C, Critical analysis of online dispute resolution: optimist, realist and the bewildered, Computer Telecommunications Law Review, 11(4), 123-128. Zondag and Lodder defined online dispute resolution as using the internet for alternative dispute resolution, constructing computer-assisted dispute resolution system by developing generic language to analyse information exchange in conflict discourse, International Review of Law, Computer and Technology, 21(2), 191-205.
[ii] Part 3 Article 21 Constitution of India 1949.
[iii]HussainaraKhatoon v. Home secretary state of Bihar 1979 AIR 1369, 1979 SCR (3) 532.
[iv] State of Maharashtra v. Prafulla Desai (2003)4 SCC 601