Brain Booster Articles
THE CONCEPT OF ADR AND ITS REQUIREMENT IN A NEW WORLD
Author: Parth Sharma, III year of B.A.,LL.B. from S.S.Jain Subodh Law College, Jaipur
We live in a world where there is the rule of law. For a very long time, we have been following laws that are framed by our parliament and courts. The current population of India is approx. 1.33 billion and that is equivalent to 17.7 % of the world population. It is not possible if there are so many people living together and there are no disputes between them. To solve those disputes courts were formed and from then judges, lawyers and all the other people involved have been working hard to ensure that grievances are solved and people could get the justice that they strive for. But at the end of the day, we are humans only not computers. Even after all those working hours and hard work, the cases remain pending for a very long time and the biggest reason behind it is the workload that has been on top of our courts. According to National Judicial Data Grid, there are more than 3.7 million pending cases before high courts, district courts and taluka courts. More than 6, 60,000 cases have remained pending for over 20 years and over 1, 30,000 cases have remained pending over 30 years. [i]
Overall these years the pending cases kept increasing to a greater degree. Due to the vacancy in the seats of judges and many other reasons the workload kept increasing for the judges and the pile of the pending cases kept growing. That is why alternative dispute resolution came into light. Alternative dispute resolution consists of mediation, arbitration, reconciliation, negotiations and Lok Adalats. When it was introduced in our system it gave a light that it will not be expensive, it will be quick and will deliver justice in time with no court fee. The presence of lawyers is not even mandatory in the proceedings. ADR came as a saviour of the people with disputes from infamous slow and expensive litigation. India is a developing country and many of its parts are growing rapidly with new cases every day. But to reduce the hassle of litigation, conflict, violence and physical fights ADR proves to be a necessary substitute. A conflict is simply like cancer. The sooner it is resolved the better for the parties and the society.
HISTORY OF ADR
The use of alternative dispute resolution is not something very novel. If we look back at times when there were village councils, we can contemplate that society has been using these methods for resolving their disputes by using these methods. Obtaining justice has shown the social consciousness of the people and legal history indicates that humans have been trying to make the procedure simple, cheap and convenient. There used to be village councils and other kinds of groups which dealt with different kinds of family disputes and disputes relating to trade and property. Most of these cases were resolved in these councils and in very few cases the courts were bothered. In many villages, these practices are still being followed and the elders of the village give their final decision after which the parties never approach the court. [ii]
Vedic age was a time when people did not have a settled life and had to continuously move to find food and shelter. Around 2600 BC in the Indus valley, the first Indian civilization came into existence. It straddled modern India and Pakistan. The people gradually started farming and pottery. With time they became a big farming society which had bronze tools and wheat and barley. Goats and sheep were raised like cattle. Many believe that these people were Dravidians and they later had to shift to south India due to the arrival of Aryans who had advanced military technology. The arrival of Aryans resulted in tribal settlements along the rivers and laid foundations of tribal settlements. With all that, it’s natural that trade flourished and many towns become the centres of trade due to which many disputes arose frequently. Being a developed civilization Aryans had a shrewd political system. They had clans called kulas, parishads, srenis which had men to adjudicate on these disputes.
India was also ruled by Chandragupta Maurya who overthrew the rule of Alexander and established the Maurya dynasty. Alexander’s empire was divided and Seleucus took over. He tried to take the empire back but his attempts were crushed by the Maurya’s. After Chandragupta, his son Bindusar took over the control and after him, the great Ashoka took over the empire. He even conquered Kalinga (Orissa). But after his death, the Maurya dynasty couldn’t sustain itself and collapsed. During their period the king had the responsibility to adjudicate on grave concerns and for other matters, courts were formed by the citizens and there were village panchayats for other petty matters in which the Hindu law was mostly used in civil matters. It shows the traces of the use of alternative dispute resolution in the Maurya dynasty.
Under the Gupta Empire India had a golden time, they had their judicial system. As like Mauryas, the king was the highest authority. Village councils were at the lowest level to adjudicate the cases which appeared and if the parties remained unsatisfied then they approached the king.
The Mughal Empire saw changes under the rule of Akbar. Early kings did not do many things for justice administration as much as Akbar did. There were sets of codes and only certain principals were blindly followed. Regional law, secular court and political courts were established under the regime of Akbar. Brahmins were appointed to adjudicate on the cases regarding the Hindu law. The village council was set up to solve cases by the way of arbitration and village courts were well structured and were functioning efficiently.
With the colonization of India by the British East India Company judicial administration saw many changes. The ADR system was heavily promoted because it was found to be very politically correct and convenient. There were many laws enacted under English arbitration act 1889 but they created a lot of blunders and were home to a lot of defects. But with the passing of the Arbitration Act, 1940 the system became comprehensive. It was followed till 1996.[iii]
ADR IN INDIA POST INDEPENDENCE
India attained its independence on 15th August 1947 and the panchayats were being used to settle disputes for a very long time. They are still very common. 1982 was the year when Lok Adalats were introduced for the resolution of disputes. Junagarh, Gujarat became the first place which held a Lok Adalat on 14th March 1982. The system of Lok Adalat received the statutory status on November 9, 1995, by the enforcement of the legal authorities act. Before this act came into existence the Lok Adalat was functioning voluntarily without anybody to back its decisions. Bringing new reforms the arbitration act 1996 was passed and it replaced the arbitration act of 1940.
ISSUES REGARDING THE ALTERNATIVE DISPUTE RESOLUTION
As it is quite apparent by now that the roots of ADR are quite strong in India. But even though we have acts which deal with ADR and empowers it, there are still a lot of problems in the ADR mechanism. The parties of the dispute are not to be compelled to choose the ADR method unless they specify their intention in the agreement. And in many cases, the award that is given by the arbitrator or the mediator gets challenged in the upper courts. The arbitrators and mediators are accused of being partial and immature in their ways of dealing with the cases. One of the biggest issues with the ADR is the lack of precedent value. The awards are not enforceable against the will of the parties and often the awards gest challenged. In some cases, people have been to such an extent that they openly say that the ADR has lost its core values and its basic structure. If we look at the figures now we can easily see that the due to the ambiguities of the arbitration and conciliation act, 1996 it has failed to create awareness and perform the purpose for which it was enacted. People use these ambiguities for their favour whenever they get an award against their will and challenge that reward in the courts because they are not compelled to follow the rewards. Thus, duplicative litigation becomes inevitable due to challenges to jurisdiction enforcement rendering the dispute settlement mechanism commercially unviable. In India, although there is a distinct shift toward favouring arbitration as the preferred mechanism for dispute settlement, arbitration has been largely ineffective compared to the legislative intent.[iv]
Numerous factors contribute to this dilemma. The most obvious is the conventional thinking of Indians. Being a developing country, though the USA has a declared India as a developed country, Indians are still ignorant toward the ADR remedies. The Arbitration and conciliation act, 1996 still needs a lot of improvement in its mechanisms. The laws must be made stricter so that more people could establish their faith in the ADR system. The courts still interfere in the proceedings of the ADR. This intervention should be minimized and the scope of challenging the award in courts should be narrowed. Only with these developments, India can store the faith of the public in the ADR mechanism and with the provision of mandatory arbitration, we can establish a robust system which will not only reduce the burden of cases from the courts but will also encourage the upcoming law students to be a part of this system and enhance their negotiating skills.
[i]Murali Krishnan, ‘Pendency of cases’, Hindustan Times, 2020
[ii]Dr. ShraddhakaraSupakar,’ Law of Procedure and Justice in Ancient India’, Deep & Deep Publication
[iii]Chapter II, ‘Historical background of ADR system in India’, https://shodhganga.inflibnet.ac.in/bitstream/10603/10373/8/08_chapter%202.pdf
[iv]Madonna Jephi, ‘Addressing the issues about ADR’, (Law times journal, JAN 12, 2019)