Justice Delivery System and ADR

I. Introduction

It is an uncontroversial fact that our country is suffering from an acute problem of population explosion. This in turn has given rise to diverse problems including those of disputes, differences and conflict. Even our judiciary is suffering from the docket explosion of pending cases. To solve the problem of delayed Justice ADR mechanism has been developed in response thereof.² Any dispute is just like cancer. If it is resolved sooner, it is better for all the parties concerned. If it is not resolved at the beginning, it grows at the very fast rate and with time, it becomes very difficult to resolve it³.As new issue emerges and conflicting situations flourish . In this way one dispute leads to another and new complexities arise thereby leading to multiplicity of proceedings. Therefore, it is always better to resolve it at the moment it rears its head. Therefore, it is necessary that the procedure of resolving it must be agreeable by both the parties.⁴

II. Need of ADR system

The formal courts worldwide have been playing an important role in the justice delivery system from a long Time. But it is experienced that sometimes litigation becomes endless exercise. Some concerns have been shown by all concerned with the justice dispensing system over the costs, delays and congestion in the courts. The justice delivery institutions in this country are confronted with grave and serious crisis mainly because of delays in resolutions of civil disputes and disposal of criminal cases. Disputes resolutions through legal proceedings in the courts have become excessively procedural and adversarial in nature, thereby resulting in undue delays, unfairness in litigation and huge pendency of cases has serious implications upon the trust and credibility which the society has in the judicial system.

Due to poverty, illiteracy and other associated reasons people are deprived of justice mainly because of two reasons. Either they are hesitant to go to the Courts as they are dreaded by the complicated legal procedure of law and its mandates or they are not in a position to afford the lawyer’s fees and the court fees which is necessary to initiate a legal procedure in the court in most of the developing countries.⁵

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-binding⁶

Meaning of ADR

ADR is a mechanism of dispute resolution that is non-adversarial, i.e. working together cooperati-vely to reach the best resolution for everyone.⁷ ADR can be instrumental in reducing the burden of litigation on courts, while delivering a well-rounded and satisfying experience for the parties involved. It provides the opportunity to "expand the pie" through creative, collaborative bargaini-ng, and fulfill the interests driving their demands.

III. Types of ADR

Arbitration:

The dispute is submitted to an arbitral tribunal which makes a decision (an "award") on the dispute that is mostly binding on the parties. It is less formal than a trial, and the rules of evidence are often relaxed. Generally, there is no right to appeal an arbitrator's decision. Except for some interim measures, there is very little scope for judicial intervention in the arbitration process.

Arbitration means any arbitration whether or not administered by permanent arbitral institution.⁸

Conciliation:

A non-binding procedure in which an impartial third party, the conciliator, assists the parties to a dispute in reaching a mutually satisfactory agreed settlement of the dispute. Conciliation is a less formal form of arbitration. The parties are free to accept or reject the recommendations of the conciliator. However, if both parties accept the settlement document drawn by the conciliator, it shall be final and binding on both.⁹

Mediation:

In mediation, an impartial person called a "mediator" helps the parties try to reach a mutually acceptable resolution of the dispute. The mediator does not decide the dispute but helps the parties communicate so they can try to settle the dispute themselves. Mediation leaves control of the outcome with the parties.¹⁰

Negotiation:

A non-binding procedure in which discussions between the parties are initiated without the intervention of any third party with the object of arriving at a negotiated settlement to the dispute. It is the most common method of alternative dispute resolution. Negotiation occurs in business, non-profit organizations, and government branches, legal proceedings, among nations and in personal situations such as marriage, divorce, parenting, and everyday life.

It is a non-binding process involving direct interaction of the disputing parties wherein a party offers a negotiated settlement drawn on an objective evaluation of both parties. Communication is the key to resolve disputes. So this method becomes vital. Objectivity and willingness to reach at and accept a negotiated settlement on the part of both the parties are indispensable needs of a successful negotiation ¹¹

IV. Advantages of ADRs

• The resolution of disputes takes place usually in private – helping maintain confident-iality.
• It is more viable, economic, and efficient.
• Procedural flexibility saves valuable time and money and absence of stress of a conventional trial.
• This often results in creative solutions, sustainable outcomes, greater satisfaction, and improved relationships.
• The possibility of ensuring that specialized expertise is available on the tribunal in the person of the arbitrator, mediator, conciliator or neutral adviser.
• Further, it offers greater direct control over the outcome. Personal relationships may also suffer less.

V. ADR in India

The Legal Services Authorities Act was passed in 1987 to encourage out-of-court settlements, and the new Arbitration and Conciliation Act was enacted in 1996.

Procedure for plea-bargaining was included in the Code of Criminal Procedure in 2005. {Plea-bargaining is best described as a "pre-trial negotiation between the accused and the prosecution during which the accused agrees to plead guilty in exchange for certain concessions by the prosecution."}

Lok- Adalat or "people's court" comprises an informal setting which facilitates negotiations in the presence of a judicial officer wherein cases are dispensed without undue emphasis on legal technicalities. The order of the Lok-Adalat is final and binding on the parties, and is not appealable in a court of law.

Way Forward

ADR has proven successful in clearing the backlog of cases in various levels of the judiciary – Lok Adalats alone have disposed more than 50 lakh cases every year on average in the last three years. But there seems to be a lack of awareness about the availability of these mechanisms. The National and State Legal Services Authorities should disseminate more information regarding these, so they become the first option explored by potential litigants.

JUDICIARY VERSUS ADR

The Judiciary is playing a significant role in providing justice to the under-privileged, indigent and helpless individuals through public interest litigation. The legal aid network is taking firm roots and legal services functionaries are actively. Engaged in fulfilling the constitutional promise of equality before the law, The provision of legal aid to eligible persons, the speedy settlement of their legal disputes by counseling and conciliation and failing that by Lok Adalats rank high on the agenda of legal services functionaries, as high as running legal education awareness programs. Of course, we have miles to go before we can claim that the realm of equal justice for all has become a reality.

Dr. A. S. Anand, a former Chief Justice of India, has wished that the next century would not be a century of litigation, but a century of negotiation, conciliation and arbitration. This dream has to be.¹² Fulfilled for settling disputes both pending in courts as well as at pre-limitative stage, Where there is a huge pendency of cases, the only panacea is establishment of more and more permanent Lok Adalats where the expertise of the judicial officers both in service and retired could be effectively utilized in resolution of matters by conciliation. A large number of consumers in our country feel handicapped in getting justice due to poverty, illiteracy, social backwardness and also geographical barriers.¹³

Factors responsible for delay in Judicial Proceedings¹⁴

1. Poor judge to people ratio

2. Frequent adjournments due to inexplicable reasons

3. Unethical lawyers

4. Fraudulent litigations

5. Overburdened system

6. Poor infrastructure

7. Delay on part of Investigative Agencies

8. Incompetent Judges

Why ADR?

• High pendency of cases in regular courts
• Empowerment
• To ensure the faith of common man in justice delivery system
• Under Article 21,:Right to speedy and fair trial
• Inexpensive Justice
• Prevents reliance on informal means of justice delivery system.

Delay of cases in Civil Courts

The judiciary faces a large backlog of cases which in the end results in denial of real access to the courts on account of delay that takes place in many cases in dispensation of justice. And also increasing multiplication of laws and creation of new rights has led to rising number of new cases escalating the burden of the existing courts by leaps and bounds¹⁵ The problem of delay in the disposal of cases pending in law courts is not a new incident. The courts have been struggling with it since a long time. The Supreme Court made it clear that this state of affairs must be addressed "An independent and efficient judicial system is one of the basic structures of our constitution. It is our constitutional obligation to ensure that the backlog of cases is decreased and efforts are made to increase the disposal of cases."¹⁶

The Covid-19 pandemic has impacted virtually every aspect of socio-economic-political setup in India and quite obviously Judiciary hasn’t been immune to it. By and large, the courts have not worked with a full caseload since March 2020.¹⁷

As a result, when the lockdown of March 2020 was declared, there were 3.68 crore cases across all levels; which have already shot up to 4.42 crore¹⁸.These delays and inefficiencies arising from the heavy dockets in Indian courts have long been a matter of concern and complements the saying that justice delayed is justice denied.¹⁹

Pendency of cases²⁰

Current pending cases

VI. Conclusion

Alternative Dispute Resolution mechanism provides scientifically developed techniques to Indian judiciary which helps in reducing the burden on the courts. No doubt there are plenty of cases pending in Indian courts due to lack of resources including human resources and infrastructure. According to the National Judicial Data Grid, there are about 73 lakh cases pending across the country. Although, various steps have been taken towards the improvement of the system such as speeding up the judicial process, the establishment of new courts and increasing the number of judges, etc, Besides this, in 1999 the union government amended Section 89 of Civil procedure Code 1908 and mandated the courts to try out the possibilities of resolving the pending disputes through arbitration or mediation or Lok Adalat which is known as ADR system. Although the aforementioned steps have been taken, the problem still continues. So, ADR is the need of time. It is a boon to the judicial system. It is expected that in the near future mediation and other ADR systems will play a big role in fixing the justice delivery system and making it more efficient by solving the arrears of pending cases which the judiciary is overburdened with at present. It is a well-known fact that there are plenty of cases pending in Indian courts due to lack of resources including human resources and infrastructure.

VII. Suggestions

Awareness can be brought by holding seminars, webinars and workshops. ADR achievement programs have to be organized so that the mindset of lawyers, parties in conflict and judges can be changed.

Training of ADR practitioners should be held by the universities, colleges and institutes. Training of ADR should be made a part of university curriculum.

Judicial officers must be trained to identify the cases which can be solved outside the courts. ADR mechanisms should be made more viable because inflow of cases cannot be stopped as the doors of judiciary are not closed but the outflow can be increased by providing other means of dispute resolution.

Mediation centers can be setup in districts and tehsil areas which will help the citizens to resolve their disputes quickly and without going for litigation process which is a time taking process.

Not everyone can afford litigation as it is an expensive process so ADR methods should be taken to panchayat and nyaya-panchayat levels (rural areas).

The conclusion arrived at in ADR should be made biding upon the parties which is not the case at present and the parties are allowed to appeal in the court if they wish.

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