GOVERNMENT OF INDIA LAW COMMISSION OF INDIA

Need for Justice-dispens tion t!rou"! ADR etc#

Report No. 222

Apri$ %&&'

LAW COMMISSION OF INDIA (RE)ORT NO# %%%*

Need for Justice-dispens tion t!rou"! ADR etc#

For+ rded to t!e ,nion Minister for L + nd Justice- Ministr. of L + nd Justice- Go/ern0ent of Indi 1. Dr# Justice AR# L 2s!0 n n- C! ir0 nL + Co00ission of Indi - on t!e 3&t! d . of Apri$%&&'#

T!e 45t! L + Co00ission + s constituted for period of t!ree .e rs fro0 4st Septe01er- %&&6 1. Order No# A#78&4%949%&&6-Ad0n#III (LA* d ted t!e 46t! Octo1er- %&&6- issued 1. t!e Go/ern0ent of

Indi - Ministr. of L + nd Justice- Dep rt0ent of Le" $ Aff irs- Ne+ De$!i# T!e L + Co00ission consists of t!e C! ir0 n- t!e Me01er-Secret r.- one fu$$-ti0e Me01er nd se/en p rt-ti0e Me01ers# C! ir0 n :on;1$e Dr# Justice AR# L 2s!0 n n Me01er-Secret r. Dr# <r !0 A# A"r + $ Fu$$-ti0e Me01er )rof# Dr# T !ir M !0ood ) rt-ti0e Me01ers Dr# (Mrs#* De/inder =u0 ri R !e> Dr# =# N# C! ndr se2! r n )i$$ i Prof. (Mrs.) Lakshmi Jambholkar S0t# =irti Sin"! S!ri Justice I# Ven2 t n r . n S!ri O#)# S! r0 Dr# (Mrs#* S!. 0$! ) ppu T!e L + Co00ission is $oc ted in ILI <ui$din"%nd F$oor- <! "+ n D s Ro dNe+ De$!i-44& &&4
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L + Co00ission St ff Me01er-Secret r. Dr. Brahm A. Agrawal Rese rc! St ff S!ri Sus!i$ =u0 r Officer Ms# ) + n S! r0 Shri J. . S!la"a# Rao S!ri A# =# ,p d!. . Dr# V# =# Sin"! Ad/iser Dr# R# S# S!rinet Ad0inistr ti/e St ff S!ri Sus!i$ =u0 r Officer S!ri D# C!oud!ur. S!ri S# =# < su S0t# R >ni S! r0 ? Joint Secret r.@ L + ? Joint Secret r.@ L +

? Addition $ L + Officer $ A%%itio#al Law &ffi'er ? Deput. L + Officer ? Assist nt Le" $ ? Superintendent (Le" $*

? ,nder Secret r. ? Section Officer ? Assist nt Li1r r. @ Infor0 tion Officer

T!e teAt of t!is Report is / i$ 1$e on t!e Internet t? !ttp?99+++#$ +co00issionofindi #nic#in

Go/ern0ent of Indi L + Co00ission of Indi

T!e teAt in t!is docu0ent (eAc$udin" t!e Go/ern0ent Lo"o* 0 . 1e reproduced free of c! r"e in n. for0 t or 0ediu0 pro/ided t! t it is reproduced ccur te$. nd not used in 0is$e din" conteAt# T!e 0 teri $ 0ust 1e c2no+$ed"ed s Go/ern0ent cop.ri"!t nd t!e tit$e of t!e docu0ent specified#

An. enCuiries re$ tin" to t!is Report s!ou$d 1e ddressed to t!e Me01er-Secret r. nd sent eit!er 1. post to t!e L + Co00ission of Indi - %nd F$oorILI <ui$din"- <! "+ n D s Ro d- Ne+ De$!i-44&&&4Indi or 1. e0 i$ to $ci-d$ Dnic#in

Dr. Justice AR. Lakshmanan (Former Judge, Supreme Court of India), Chairman, Law Commission of India

ILI Building (IInd Floor) Bhagwandas Road, New De hi ! ""# ##" Tel. !"!!" #$$%&&'( Fa). !"!! * #$$%$(+&

,.-. .o. +($)/!(&/#00'"LC (LS) ,ear ,r. Bhardwa2 Ji,

$0th 1pril, #00

Su32e4t5 .eed for Justi4e"dispensation through 1,R et4. I am forwarding herewith the ###nd Report of the Law Commission of India on the a3o6e su32e4t. The Law Commission has alread7 gi6en 6aried re4ommendations in its earlier reports on the su32e4t of 2udi4ial reforms, whi4h is a su32e4t 6er7 dear to m7 heart. The present Report is in the 4ontinuum of those reports. The present Report has drawn on m7 two"6olume 3oo8 titled Voice of Justice, and re"emphasi9es and reaffirms that there is an urgent need for 2usti4e"dispensation through 1,R me4hanisms. The 1,R mo6ement needs to 3e 4arried forward with greater speed. Besides, man7 other suggestions, whi4h ma7 now 3e 4alled ha48ne7ed, need a fresh loo8. :ith warm regards, ;ours sin4erel7, (,r 1R. La8shmanan) ,r. <.R. Bhardwa2, =nion >inister for Law and Justi4e, ?o6ernment of India, Shastri Bhawan, .ew ,elhi * !!0 00!.

Need for Justice-dispens tion t!rou"! ADR etc#

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I# "." reads(

)RO)OSITIONS 'ne of the terms of reference of the "&th Law Commission of India

)*o kee+ under re,iew the s-stem of .udicia administration to ensure that it is res+onsi,e to the reasona/ e demands of the time and in +articu ar to secure(0 1i2 3 imination of de a-s, s+eed- c earance of arrears and reduction in costs so as to secure 4uick and economica dis+osa of cases without affectin5 the cardina +rinci+ e that decision shou d /e .ust and fair. 6im+ ification of +rocedure to reduce and e iminate technica ities and de,ices for de a- so that it o+erates not as an end in itse f /ut as a means of achie,in5 .ustice. Im+ro,ement of standards of a administration of .ustice.7 concerned with the

1ii2

1iii2

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*he +resent Re+ort is in the continuum of the Law Commission8s

,arious ear ier re+orts on the su/.ect of .udicia administration. ".3 9an is not made for aw, /ut the aw is for man. Law is a re5u ator of

human conduct. No aw works smooth - un ess the interaction /etween the two is ,o untar-. An act is .ustified /- aw, on - if it is warranted, ,a idated and made / ame ess /- aw. ".4 *he Indian Constitution 5uarantees .ustice to a . A Indian citi:ens

are 5uaranteed e4ua ri5hts of ife and +ersona i/ert-, /esides man- other fundamenta ri5hts. *here are ,arious other e5a ri5hts conferred /different socia we fare e5is ations, such as, Contract La/our 1Re5u ation
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and A/o ition2 Act ";%#, 34ua Remuneration Act ";%$, 9inimum <a5es Act ";4&. =ut, these ri5hts are of no a,ai if an indi,idua has no means to 5et them enforced. Ru e of aw en,isa5es that a men are e4ua /efore aw. A ha,e e4ua ri5hts, /ut, unfortunate -, a cannot en.o- the ri5hts e4ua -. 3nforcement of the ri5hts has to /e throu5h courts, /ut the .udicia +rocedure is ,er- com+ e>, cost - and di ator- +uttin5 the +oor +ersons at a distance. ".5 *he Constitution of India throu5h artic e "4 5uarantees e4ua it-

/efore the aw and the e4ua +rotection of the aws. Artic e 3;A of the Constitution mandates the 6tate to secure that the o+eration of the e5a s-stem +romotes .ustice on a /asis of e4ua o++ortunit-, and ensure that the same is not denied to an- citi:en /- reason of economic or other disa/i ities. 34ua o++ortunit- must /e afforded for access to .ustice. It is not sufficient that the aw treats a +ersons e4ua -, irres+ecti,e of the +re,a ent ine4ua ities. =ut the aw must function in such a wa- that a the +eo+ e ha,e access to .ustice in s+ite of economic dis+arities. *he e>+ression )access to .ustice7 focuses on the fo owin5 two /asic +ur+oses of the e5a s-stem( ". *he s-stem must /e e4ua - accessi/ e to a . 2. It must ead to resu ts that are indi,idua - and socia - .ust. ".$ *raditiona conce+t of ?access to .ustice? as understood /- common

man is access to courts of aw. @or a common man a court is the + ace where .ustice is meted out to himAher. =ut the courts ha,e /ecome inaccessi/ e due to ,arious /arriers such as +o,ert-, socia and +o itica /ackwardness, i iterac-, i5norance, +rocedura forma ities and the ike.

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*o 5et .ustice throu5h courts one has to 5o throu5h the com+ e> and

cost - +rocedures in,o ,ed in iti5ation. 'ne has to /ear the costs of iti5ation, inc udin5 court fee and, of course, the aw-er8s fee. A +oor iti5ant who is /are - a/ e to feed himse f wi not /e a/ e to afford .ustice or o/tain e5a redressa for a wron5 done to him, throu5h courts. @urther a ar5e +art of the +o+u ation in India is i iterate and i,e in a/.ect +o,ert-. *herefore, the- are tota - i5norant a/out the court0+rocedures, are terrified and confused when faced with the .udicia machiner-. *hus, most of the citi:ens of India are not in a +osition to enforce their ri5hts, constitutiona or e5a , which in effect 5enerates ine4ua it-. ".& It is one of the most im+ortant duties of a we fare state to +ro,ide and non0.udicia dis+ute0reso ution mechanisms to which a

.udicia

citi:ens ha,e e4ua access for reso ution of their e5a dis+utes and enforcement of their fundamenta and e5a ri5hts. Bo,ert-, i5norance or socia ine4ua ities shou d not /ecome /arriers to it. *he Maneka Gandhi" +rinci+ e, as enunciated /- the Indian 6u+reme Court, that fundamenta ri5hts do not constitute se+arate is ands unto themse ,es /ut constitute a continent ushered in what Crishna I-er, J. terms the .uris+rudence of access to .ustice. De said( ?<e shou d e>+and the .uris+rudence of Access to Justice as an inte5ra +art of 6ocia Justice and e>amine the constitutiona ism of court0fee e,- as a facet of human ri5hts hi5h i5hted in our NationEs Constitution. If the 6tate itse f shou d tra,est- this /asic +rinci+ e, in the teeth of Artic es "4 and 3;A, where an indi5ent widow is in,o ,ed, a second ook at its +o ic- is o,erdue. *he Court must 5i,e the /enefit of dou/t a5ainst e,- of a +rice to enter the tem+ e of .ustice unti one da- the who e issue of the ,a idit- of +rofit0makin5
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1";%&2 " 6CC 24&

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throu5h sa e of ci,i .ustice, dis5uised as court0fee is fu - re,iewed /- this Court?.2 ".; Artic e 3;A, as noted a/o,e, +ro,ides for e4ua .ustice and free e5a

aid. *he said artic e o/ i5ates the 6tate to in +articu ar +ro,ide free e5a aid, /- suita/ e e5is ation or schemes or in an- other wa-, to +romote .ustice on the /asis of e4ua o++ortunit-. Artic e 3;A +uts stress u+on e5a .ustice. *he directi,e re4uires the 6tate to +ro,ide free e5a aid to deser,in5 +eo+ e so that .ustice is not denied to an-one mere - /ecause of economic disa/i it-. *he 6u+reme Court in Sheela Barse v. State of Maharashtra3 has em+hasi:ed that e5a assistance to a +oor or indi5ent accused arrested and +ut in .eo+ard- of his ife or +ersona i/ert- is a constitutiona im+erati,e mandated not on - /- artic e 3;A /ut a so /- artic es "4 and 2" of the Constitution. In the a/sence of e5a assistance, in.ustice ma- resu t. 3,eract of in.ustice corrodes the foundation of democrac- and ru e of aw. Artic e 3;A makes it c ear that the socia o/.ecti,e of e4ua .ustice and free e5a aid has to /e im+ emented /- suita/ e e5is ation or /- formu atin5 schemes for free e5a aid. "."# *hou5h Artic e 3;A was introduced in the Constitution in ";%$, its o/.ecti,e of +ro,idin5 access to .ustice cou d ne,er ha,e /een fu fi ed /ut for the ma.estic ro e + a-ed /- the 6u+reme Court in FBu/ ic Interest Liti5ation 9o,ement8. *his is a mo,ement where/- an- +u/ ic0s+irited +erson can mo,e the Court for remed-in5 an- wron5 affectin5 the +u/ ic. *his is a si5nificant ste+ /- the 6u+reme Court in 5i,in5 access to .ustice to the +eo+ e /e on5in5 to the owest strata of societ-. @urther, it was on throu5h cases fi ed in +u/ ic interest that the 6u+reme Court was a/ e to
2 3

State of Haryana v. Darshana Devi, AIR ";%; 6C &55 AIR ";&3 6C 3%&

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encoura5e e5a aid ser,ice to +oor and indi5ent +ersons. *hrou5h +u/ ic interest iti5ation the courts are a/ e to dea with +oor +eo+ e sufferin5 from in.ustice and e>+ oitation, such as, /onded a/our, da its, women, chi dren, +h-sica - cha en5ed, menta - cha en5ed and so on. "."" *he Lok Ada ats, N-a-a Bancha-ats, Le5a 6er,ices Authorities are a so +art of the cam+ai5n to take .ustice to the +eo+ e and ensure that a +eo+ e ha,e e4ua access to .ustice in s+ite of ,arious /arriers, ike socia and economic /ackwardness. "."2 *he Judiciar- is + a-in5 a si5nificant ro e in +ro,idin5 .ustice to the under0+ri,i e5ed, indi5ent and he + ess indi,idua s throu5h +u/ ic interest iti5ation. *he e5a aid network is takin5 firm roots and e5a ser,ices functionaries are acti,e - en5a5ed in fu fi in5 the constitutiona +romise of e4ua it- /efore the aw. *he +ro,ision of e5a aid to e i5i/ e +ersons, the s+eed- sett ement of their e5a dis+utes /- counse in5 and conci iation and fai in5 that /- Lok Ada ats rank hi5h on the a5enda of e5a ser,ices functionaries, as hi5h as runnin5 e5a education awareness +ro5rammes. 'f course, we ha,e mi es to 5o /efore we can c aim that the rea m of e4ua .ustice for a has /ecome a rea it-. Dr. A. 6. Anand, a former Chief Justice of India, has wished that the ne>t centur- wou d not /e a centur- of iti5ation, /ut a centur- of ne5otiation, conci iation and ar/itration. *his dream has to /e fu fi ed for sett in5 dis+utes /oth +endin5 in courts as we as at +re0 iti5ati,e sta5e. <here there is a hu5e +endenc- of cases, the on +anacea is esta/ ishment of more and more +ermanent Lok Ada ats where the e>+ertise of the .udicia officers /oth in ser,ice and retired cou d /e effecti,e - uti i:ed in reso ution of matters /- conci iation. A ar5e num/er

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of consumers in our countr- fee handica++ed in 5ettin5 .ustice due to +o,ert-, i iterac-, socia /ackwardness and a so 5eo5ra+hica /arriers. "."3 3ar ier, in India, dis+utes were sett ed /- a counci of ,i a5e e ders, known as a Bancha-at. *his was an acce+ted method of conf ict reso ution. 6ince the Vedic times, India has /een hera ded as a +ioneer in the achie,ement of the socia 5oa of s+eed- and effecti,e .ustice throu5h informa /ut cu minatin5 reso ution s-stems. ADR methods are not new to India and ha,e /een in e>istence in some form or the other in the da-s /efore the modern .ustice de i,er- s-stem was introduced /- the co onia =ritish ru ers. *here were ,arious t-+es of ar/itra /odies., which ed to the emer5ence of the ce e/rated Bancha-ati Ra. s-stem in India, es+ecia - in the rura oca es. *he decisions of the Bancha-at were acce+ted and treated as /indin5. In ";&2, in Juna5arh in the 6tate of Gu.arat, a forum for A ternati,e Dis+ute Reso ution was created in the form of Lok Ada at 1Beo+ eEs Court2. Cee+in5 in ,iew the usefu ness of Lok Ada ats, the Go,ernment of India a so set u+ in ";&# a Committee under the chairmanshi+ of 9r. B. N. =ha5wati, a former Chief Justice of India, and ater, the Bar iament enacted the Le5a 6er,ices Authorities Act, ";&% in ,iew of the mandate of artic e 3;A of the Constitution. *he Le5a 6er,ices Authorities Act, ";&% im+ emented in its true s+irit has created +o+u aritfor and uti it- of Lok Ada ats for s+eed- reso ution of dis+utes. "."4 *he +hi oso+h- /ehind settin5 u+ of +ermanent and continuous Lok Ada ats is that in our countr-, the iti5ant +u/ ic has not so far /een +ro,ided an- statutor- forum for counse in5 and as such, these Lok Ada ats ma- take u+on themse ,es the ro e of counse ors as we as conci iators. 3>+eriment of Lok Ada at as an ADR mode has come to /e acce+ted in
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India as a ,ia/ e, economic, efficient and informa one. *he +ro,isions re atin5 to Lok Ada at are contained in sections "; to 22 of the Le5a 6er,ices Authorities Act ";&%. !.!( Se4tion ##B of the Legal Ser6i4es 1uthorities 14t, ! %', as amended in #00#, ena3les esta3lishment of permanent Lo8 1dalats and its su3"se4tion (!) reads as follows5 B.otwithstanding an7thing 4ontained in se4tion ! , the Central 1uthorit7 or, as the 4ase ma7 3e, e6er7 State 1uthorit7 shall, 37 notifi4ation, esta3lish Aermanent Lo8 1dalats at su4h pla4es and for e)er4ising su4h 2urisdi4tion in respe4t of one or more pu3li4 utilit7 ser6i4es and for su4h areas as ma7 3e spe4ified in the notifi4ation.C "."$ Bermanent and continuous Lok Ada ats esta/ ished in e,er- District Court8s Com+ e> +ro,ide a statutor- forum to the iti5ants where the- ma5o themse ,es /efore iti5ation and courts ma- a so refer to them, +endin5 cases, for counse in5 and conci iation. *hese +ermanent and continuous Lok Ada ats wou d certain - /e in a /etter +osition to tr- conci iatorsett ements in more com+ icated cases arisin5 out of matrimonia , and ord0 tenant, +ro+ert- and commercia dis+utes, etc., where re+eated sittin5s are re4uired for +ersuadin5 and moti,atin5 the +arties to sett e their dis+utes in an atmos+here of 5i,e and take. "."% *he dis+osa of e5a dis+utes at +re0 iti5ati,e sta5e /- the +ermanent and continuous Lok Ada ats +ro,ides e>+ense0free .ustice to the citi:ens of this countr-. It a so sa,es courts from additiona and a,oida/ e /urden of +ett- cases, ena/ in5 them to di,ert their court0time to more contentious and o d matters.

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"."& *he +hi oso+h- of +ermanent and continuous Lok Ada ats s+routs from the seeds of com+assion and concern for the +oor and downtrodden in the countr- and deser,es su++ort from a of us to make it 5row as a tree 5i,in5 fruit, fra5rance and shade to a . !.! The Statement of -32e4ts and Reasons appended to the Bill

pre4eding the Legal ser6i4es 1uthorities (1mendment) 14t #00# points out that the s7stem of Lo8 1dalat, whi4h is an inno6ati6e me4hanism for alternate dispute resolution, has pro6ed effe4ti6e for resol6ing disputes in a spirit of 4on4iliation outside the 4ourts. !.#0 The ,elhi Legal Ser6i4es 1uthorit7 has set up permanent Lo8

1dalats in ?o6ernment 3odies/departments and ' >1CT permanent Lo8 1dalats ha6e 3een fun4tioning regularl7 in ,elhi.& Similarl7, permanent Lo8 1dalats ha6e also 3een set up in some other States. But, there is a need to esta3lish more permanent Lo8 1dalats throughout the 4ountr7.

".2" <e firm - /e ie,e that the e5a iterac- and e5a awareness are the +rinci+a means to achie,e the o/.ecti,e of e4ua it- /efore the aw for the citi:ens of our countr-. A efforts shou d /e made to achie,e the o/.ect of the Le5a ser,ices Authorities Act and make the e5a aid +ro5rammes meanin5fu and +ur+osefu . ".22 Le5a aid without e5a iterac- is ess meanin5fu and +ur+osefu . 6o, it wou d /e hi5h - usefu if some im+ortant e5a to+ics are inc uded as com+u sor- su/.ects from +rimar- education sta5e itse f. 6uch e5a
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education wou d ena/ e the +eo+ e to sett e se,era of their dis+utes outside the courts at the 5rass roots e,e without seekin5 he + from e5a e>+erts who are 5enera - e>+ensi,e. ".23 It is hi5h time that fora for the +oor and need- +eo+ e for redressa of their 5rie,ances s+eedi - are created. As we a know, de a- in dis+osa of cases in aw courts, for whate,er reason it ma- /e, has rea - defeated the +ur+ose for which the +eo+ e a++roach the courts for redressa . It is said that .ustice de a-ed is .ustice denied. 6o, we wi ha,e to find out a ,ia media to render socia .ustice to the +oor and need- who want their 5rie,ances redressed throu5h aw courts. ".24 It is heartenin5 to note that the Bar iament has ,er- recent - enacted the Gram N-a-a a-as Act 2##&. Justice to the +oor at their doorste+ as the common man8s dream is sou5ht to /e achie,ed throu5h the settin5 u+ of Gram N-a-a a-as which wi tra,e from + ace to + ace to /rin5 to the +eo+ e of rura areas s+eed-, afforda/ e and su/stantia .ustice. Alter#ati(e Disp!te Resol!tio# (ADR) i# mo%er# )#%ia ".25 *he first a,enue where the conci iation has /een effecti,e introduced and reco5ni:ed /- aw is in the fie d of a/our aw, name -, Industria Dis+utes Act ";4%. Conci iation has /een statutori - reco5ni:ed as an effecti,e method of dis+ute reso ution in re ation to dis+utes /etween workers and the mana5ement. *he +ro,ision in the Industria Dis+utes Act ";4% makes it attracti,e for dis+utin5 +arties to sett e dis+utes /ne5otiation and fai in5 that throu5h conci iation throu5h an officer of the Go,ernment, /efore resortin5 to iti5ation.

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".2$ In Rajasthan State Road Transport Corporation v. Krishna Kant5 the 6u+reme Court o/ser,ed(

)*he +o ic- of aw emer5in5 from Industria Dis+utes Act and its sister enactments is to +ro,ide an a ternati,e dis+ute0reso ution mechanism to the workmen, a mechanism which is s+eed-, ine>+ensi,e, informa and unencum/ered /- the + ethora of +rocedura aws and a++ea s u+on a++ea s and re,isions a++ ica/ e to ci,i courts. Indeed, the +owers of the courts and tri/una s under the Industria Dis+utes Act are far more e>tensi,e in the sense that thecan 5rant such re ief as the- think a++ro+riate in the circumstances for +uttin5 an end to an industria dis+ute.7

".2% *he on - fie d where the courts in India ha,e reco5ni:ed ADR is in the fie d of ar/itration. *he ar/itration was ori5ina - 5o,erned /- the +ro,isions contained in different enactments, inc udin5 those in the Code of Ci,i BrocedureH the first Indian Ar/itration Act was enacted in "&;;, which was re+ aced /- the Ar/itration Act ";4#. *he courts were ,er- much concerned o,er the su+er,ision of Ar/itra *ri/una and the- were ,erkeen to see whether the ar/itrator has e>ceeded his .urisdiction whi e decidin5 the issue which was referred to him for ar/itration.

".2& *here was much de a- in sett ement of dis+utes /etween +arties in aw courts, which +re,ented in,estment of mone- in India /- other countries. India has undertaken ma.or reforms in its ar/itration aw in the recent -ears as +art of economic reforms initia - in ";;". *he Ar/itration
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and Conci iation Act of ";;$ was thus enacted /- the Bar iament /rin5in5 in su/stantia reforms in ar/itration, re5ardin5 domestic and internationa dis+utes. ".2; *he decision of the 6u+reme Court in Konkan Rail!ay Corpn. "td. v. M#S. Meh$l Constr$ction Co.% summari:es the e,o ,ement of the Ar/itration I Conci iation Act ";;$ and the main +ro,isions of the Act thus(

)4. At the outset, it must /e /orne in mind that +rior to the ";;$ Act, the Ar/itration Act of ";4#, which was in force in India +ro,ided for domestic ar/itration and no +ro,ision was there to dea with the forei5n awards. 6o far as the @orei5n Awards are concerned, the same were /ein5 dea t with /- the Ar/itration 1Brotoco and Con,ention2 Act, ";3%, and the @orei5n Awards 1Reco5nition and 3nforcement2 Act, ";$". *he increasin5 5rowth of 5 o/a trade and the de a- in dis+osa of cases in Courts under the norma s-stem in se,era countries made it im+erati,e to ha,e the +erce+tion of an a ternati,e Dis+ute Reso ution 6-stem, more +articu ar -, in the matter of commercia dis+utes. <hen the entire wor d was mo,in5 in fa,our of a s+eed- reso ution of commercia dis+utes, the Jnited Nations Commission on Internationa *rade Law wa- /ack in ";&5 ado+ted the JNCI*RAL 9ode Law of Internationa Commercia Ar/itration and since then num/er of countries ha,e 5i,en reco5nition to that 9ode in their res+ecti,e e5is ati,e s-stem. <ith the said JNCI*RAL 9ode Law in ,iew the +resent Ar/itration and Conci iation Act of ";;$ has /een enacted in India re+ acin5 the Indian Ar/itration Act, ";4#, which was the +rinci+a e5is ation on Ar/itration in the countr- that had /een enacted durin5 the =ritish Ru e. *he Ar/itration Act of ";;$ +ro,ides not on - for domestic ar/itration /ut s+reads its swee+ to Internationa Commercia Ar/itration too. *he Indian aw re atin5 to the enforcement of @orei5n Ar/itration Awards +ro,ides for 5reater autonom- in the ar/itra +rocess and imits .udicia inter,ention to a narrower circumference than under the +re,ious aw. *o attract the confidence of Internationa
$

2### 1$2 6CAL3 %"

";

9ercanti e communit- and the 5rowin5 ,o ume of IndiaEs trade and commercia re ationshi+ with the rest of the wor d after the new i/era isation +o ic- of the Go,ernment, Indian Bar iament was +ersuaded to enact the Ar/itration and Conci iation Act of ";;$ in JNCI*RAL mode and, therefore, in inter+retin5 an- +ro,isions of the ";;$ Act Courts must not i5nore the o/.ects and +ur+ose of the enactment of ";;$. A /are com+arison of different +ro,isions of the Ar/itration Act of ";4# with the +ro,isions of the Ar/itration and Conci iation Act ";;$ wou d une4ui,oca - indicate that ";;$ Act imits inter,ention of Court with an ar/itra +rocess to the minimum and it is certain - not the e5is ati,e intent that each and e,er- order +assed /- an authorit- under the Act wou d /e a su/.ect matter of .udicia scrutin- of a Court of Law. Jnder the new aw the 5rounds on which an award of an Ar/itrator cou d /e cha en5ed /efore the Court ha,e /een se,ere - cut down and such cha en5e is now +ermitted on the /asis of in,a idit- of the a5reement, want of .urisdiction on the +art of the ar/itrator or want of +ro+er notice to a +art- of the a++ointment of the ar/itrator or of ar/itra +roceedin5s. *he +owers of the ar/itrator ha,e /een am+ ified /- insertion of s+ecific +ro,isions of se,era matters. '/structi,e tactics ado+ted /the +arties in ar/itration +roceedin5s are sou5ht to /e thwarted /- an e>+ress +ro,ision inasmuch as if a +art- knowin5 - kee+s si ent and then sudden - raises a +rocedura o/.ection wi not /e a owed to do so. *he ro e of institutions in +romotin5 and or5anisin5 ar/itration has /een reco5nised. *he +ower to nominate ar/itrators has /een 5i,en to the Chief Justice or to an institution or +erson desi5nated /him. *he time imit for makin5 awards has /een de eted. *he e>istin5 +ro,isions in ";4# Act re atin5 to ar/itration throu5h inter,ention of Court, when there is no suit +endin5 or /- order of the court when there is a suit +endin5, ha,e /een remo,ed. *he im+ortance of transnationa commercia ar/itration has /een reco5nised and it has /een s+ecifica - +ro,ided that e,en where the ar/itration is he d in India, the +arties to the contract wou d /e free to desi5nate the aw a++ ica/ e to the su/stance of the dis+ute. Jnder the new aw un ess the a5reement +ro,ides otherwise, the ar/itrators are re4uired to 5i,e reasons for the award. *he award itse f has now /een ,ested with status of a decree, inasmuch as the award itse f is made e>ecuta/ e as a decree and it wi no on5er /e necessar- to a++ - to the court for a decree in terms of the award. A these aim at achie,in5 the so e o/.ect to reso ,e the dis+ute as e>+editious - as +ossi/ e with the

2#

minimum inter,ention of a Court of Law so that the trade and commerce is not affected on account of iti5ations /efore a court. <hen Jnited Nations esta/ ished the Commission on Internationa *rade Law it is on account of the fact that the Genera Assem/ reco5nised that dis+arities in nationa aws 5o,ernin5 internationa trade created o/stac es to the f ow of trade. *he Genera Assem/ re5arded the Commission on Internationa *rade Law as a medium which cou d + a- a more acti,e ro e in reducin5 or remo,in5 the o/stac es. 6uch Commission, therefore, was 5i,en a mandate for +ro5ressi,e harmoni:ation and unification of the aw of Internationa *rade. <ith that o/.ecti,e when JNCI*RAL 9ode has /een +re+ared and the Bar iament in our countr- enacted the Ar/itration and Conci iation Act of ";;$ ado+tin5 JNCI*RAL 9ode , it wou d /e a++ro+riate to /ear the said o/.ecti,e in mind whi e inter+retin5 an- +ro,ision of the Act. *he 6tatement of '/.ects and Reasons of the Act c ear - enunciates that the main o/.ecti,e of the e5is ation was to minimise the su+er,isor- ro e of Courts in the ar/itra +rocess.7

".3# *he @ami - Courts Act ";&4 was enacted to +ro,ide for the esta/ ishment of @ami - Courts with a ,iew to +romote conci iation in, and secure s+eed- sett ement of, dis+utes re atin5 to marria5e and fami - affairs. 6ection 5 of the @ami - Courts Act +ro,ides ena/ in5 +ro,ision for the Go,ernment to re4uire the association of 6ocia <e fare 'r5anisations to he + a @ami - Court to arri,e at a sett ement. 6ection $ of the Act +ro,ides for a++ointment of +ermanent counse ors to effect sett ement in fami matters. @urther, 6ection ; of the Act im+oses an o/ i5ation on the @ami Court to make efforts for sett ement /efore takin5 e,idence in the case. *o this e>tent the ADR has 5ot much reco5nition in the mater of sett ement of fami - dis+utes. 6imi ar +ro,ision is contained in 'rder KKKIIA CBC which dea s with fami - matters. Accordin5 to section 4142 1a2 of the Act, in se ectin5 +ersons for a++ointment as Jud5es for @ami - Courts, e,er2"

endea,our sha /e made to ensure that +ersons committed to the need to +rotect and +reser,e the institution of marria5e and to +romote the we fare of chi dren and 4ua ified /- reason of their e>+erience and e>+ertise to +romote the sett ement of dis+utes /- conci iation and counse in5 are se ected. ".3" Another ri5ht and we come ste+ taken was the enactment of the Consumer Brotection Act ";&$ for the sett ement of consumers8 dis+utes. *he Act +ro,ides effecti,e, ine>+ensi,e, sim+ e and s+eed- redressa of consumers8 5rie,ances, which the ci,i courts are not a/ e to +ro,ide. *his Act is another e>am+ e of ADR for the effecti,e ad.udication of consumers8 dis+utes. *he Act +ro,ides for three0tier fora, that is, District @orum, 6tate Commission and the Nationa Commission for redressa of 5rie,ances of consumers. Lar5e num/ers of consumers are a++roachin5 these fora to seek 4uick redressa of their 5rie,ances. *here has a so /een a s+urt in socia action iti5ation on /eha f of consumers /- Consumer Acti,ists, Lo untarConsumer 'r5anisations and other 6ocia Action Grou+s. ".32 Ad,anta5es of ADR( "2 22 32 42 It is ess e>+ensi,e. It is ess time0consumin5. It is free from technica ities as in the case of conductin5 cases in aw Courts. Barties are free to discuss their differences of o+inion without an- fear of disc osure of this fact /efore an- aw courts.

22

52

Barties ha,e the fee in5 that there is no osin5 or winnin5 side /etween them /ut at the same time their 5rie,ance is redressed and their re ationshi+ is restored.

".33 Justice in a its facets ! socia , economic and +o itica ! is re4uired to /e rendered to the masses of this countr- without an- further oss of time ! the need of the hour. *he new strate5- consists in dis+ute0reso ution /conci iation, mediation and ne5otiation. *he constitutiona +romise of securin5 to a citi:ens .ustice, socia , economic and +o itica , as +romised in the Bream/ e of the Constitution, cannot /e rea ised un ess the three or5ans of the 6tate, i.e., the e5is ature, the e>ecuti,e and the .udiciar- .oin to5ether to find wa-s and means for +ro,idin5 to the Indian +oor e4ua access to the 6tate8s .ustice s-stem. !.$& In Sitanna v. Marivada Viranna', the Ari67 Coun4il affirmed the de4ision of the Aan4ha7at in a famil7 dispute. Sir John :allis, J. stated the law in the following words5 BReferen4e to a 6illage Aan4ha7at is the time"honoured method of de4iding disputes of this 8ind, and has these ad6antages, that it is 4omparati6el7 eas7 for the pan4ha7atdars to as4ertain the true fa4ts, and that, as in this 4ase, it a6oids protra4ted litigation whi4h, as o3ser6ed 37 one of the witnesses, might ha6e pro6ed ruinous to the estate. Loo8ing at the e6iden4e as a whole their Lordships see no reason for dou3ting that the award was a fair and honest settlement of a dou3tful 4laim 3ased 3oth on legal and moral grounds, and are therefore of opinion that there is no grounds for interfering with it.C !.$( There is lot of fle)i3ilit7 in the use of 1,R methods. The fle)i3ilit7 is a6aila3le in the pro4edure as well as the wa7 solutions
%

AIR ";34 BC "#5

23

are found to the dispute. The solutions 4an 3e pro3lem"spe4ifi4. The rigidit7 of pre4edent as used in ad6ersarial method of dispute" resolution will not 4ome in the wa7 of finding solutions to the disputes in a 4reati6e wa7. !.$+ If the 1,R method is su44essful, it 3rings a3out a satisfa4tor7 solution to the dispute and the parties will not onl7 3e satisfied, the ill"will that would ha6e e)isted 3etween them will also end. 1,R methods, espe4iall7 mediation and 4on4iliation not onl7 address the dispute, the7 also address the emotions underl7ing the dispute. In fa4t, for 1,R to 3e su44essful, first the emotions and ego e)isting 3etween the parties will ha6e to 3e addressed. -n4e the emotions and ego are effe4ti6el7 addressed, resol6ing the dispute 3e4omes 6er7 eas7. This reDuires wisdom and s8ill of 4ounselling on the part of the >ediator or Con4iliator. !.$' The 1,R method is parti4ipator7 and there is s4ope for the parties to the dispute to parti4ipate in the solution"finding pro4ess. 1s a result, the7 honour the solution with 4ommitment. 13o6e all, the 1,R methods are 4heaper and afforda3le 37 the poor also. 1s of now, there are some a3errations when it 4omes to the e)penses in4urred in ar3itration. In 4ourse of time, when there is good num3er of Dualit7 ar3itrators, the e)penses of ar3itration will also de4rease. The promotion of institutional ar3itration will go a long wa7 in impro6ing the Dualit7 of 1,R ser6i4es and ma8ing them reall7 4heaper.

24

!.$% The de6elopment of 1,R methods will pro6ide a44ess to man7 litigants. It helps in redu4ing the enormous wor8"load that is put on the Judi4iar7. This will go a long wa7 in impro6ing not onl7 the a44ess to 2usti4e, 3ut e6en the Dualit7 of 2usti4e. !.$ :e ha6e dis4ussed a3o6e a3out ar3itration, whi4h is a

pro4ess of dispute"resolution 3etween the parties through the ar3itration tri3unal appointed 37 the parties to the dispute or 37 the Chief Justi4e or a designate of the Chief Justi4e under se4tion !! of the 1r3itration and Con4iliation 14t ! depending on their 4on6enien4e. !.&0 Ad hoc ar3itration is ar3itration agreed to and arranged 37 the parties themsel6es without re4ourse to an ar3itral institution. In ad hoc ar3itration, if the parties are not a3le to agree as to who will 3e the ar3itrator or one of the parties is relu4tant to 4ooperate in appointing the ar3itrator, the other part7 will ha6e to in6o8e se4tion !! of the 1r3itration and Con4iliation 14t ! designate will appoint the ar3itrator. + whereunder the Chief Justi4e of a <igh Court or the Supreme Court or their In 4ase of domesti4 ar3itration, it will 3e the Chief Justi4e of a <igh Court or his designate. In 4ase of international 4ommer4ial ar3itration, it will 3e the Chief Justi4e of India or his designate. In ad hoc ar3itration, the fee of the ar3itrator will ha6e to 3e agreed to 37 the parties and the ar3itrator. The present Indian e)perien4e is that the fee of the ar3itrator is Duite high in ad hoc ar3itration. +. The parties ha6e the option to go for ad hoc ar3itration or institutional ar3itration

25

!.&! Institutional ar3itration is an ar3itration administered 37 an ar3itral institution. The parties ma7 stipulate in the ar3itration agreement to refer an ar3itral dispute 3etween them for resolution to a parti4ular institution. The Indian institutions in4lude the Indian Coun4il of 1r3itration and the International Centre for 1lternati6e ,ispute Resolution. International institutions in4lude the International Court of 1r3itration, the London Court of International 1r3itration and the 1meri4an 1r3itration 1sso4iation. 1ll these institutions ha6e rules e)pressl7 formulated for 4ondu4ting ar3itration. These rules are formulated on the 3asis of e)perien4e and hen4e, the7 address all possi3le situations that ma7 arise in the 4ourse of ar3itration. ".42 *he fo owin5 ad,anta5es accrue in the case of institutiona ar/itration in com+arison with ad hoc ar/itration( !. In ad hoc ar3itration, pro4edures will ha6e to 3e agreed to 37 the parties and the ar3itrator. This needs 4ooperation 3etween the parties. :hen a dispute is in e)isten4e, it is diffi4ult to e)pe4t su4h 4ooperation. In institutional ar3itration, the rules are alread7 there. There is no need to worr7 a3out formulating rules or spend time on ma8ing rules. #. In ad hoc ar3itration, infrastru4ture fa4ilities for 4ondu4ting ar3itration is a pro3lem, so there is temptation to hire fa4ilities of e)pensi6e hotels. In the pro4ess, ar3itration 4osts in4rease. ?etting trained

2$

staff is diffi4ult. Li3rar7 fa4ilities are another pro3lem. In institutional ar3itration, the ar3itral institution will ha6e infrastru4ture fa4ilities for 4ondu4t of ar3itrationE the7 will ha6e trained se4retarial and administrati6e staff. There will also 3e li3rar7 fa4ilities. There will 3e professionalism in 4ondu4ting ar3itration. The 4osts of ar3itration also are 4heaper in institutional ar3itration. $. In institutional ar3itration, the institution will maintain a panel of ar3itrators along with their profiles. spe4iali9ed ar3itrators. &. The parties 4an 4hoose from the panel. It also pro6ides for :hile in ad hoc ar3itration, these ad6antages are not a6aila3le. In institutional ar3itration, man7 ar3itral institutions ha6e an e)perien4ed 4ommittee to s4rutini9e the ar3itral awards. Before the award is finali9ed and gi6en to the parties, it is s4rutini9ed 37 the e)perien4ed panel. So the possi3ilit7 of the 4ourt setting aside the award is minimum. This fa4ilit7 is not a6aila3le in ad hoc ar3itration. <en4e, there is higher ris8 of 4ourt" interferen4e. (. In institutional ar3itration, the ar3itratorFs fee is fi)ed 37 the ar3itral institution. The parties 8now 3eforehand what the 4ost of ar3itration will 3e. In ad hoc ar3itration, the ar3itratorFs fee is negotiated and agreed to. The Indian e)perien4e shows that it is Duite e)pensi6e. +. In institutional ar3itration, the ar3itrators are go6erned 37 the rules of the institution and the7 ma7 3e remo6ed
2%

from the panel for not 4ondu4ting the ar3itration properl7, whereas in ad hoc ar3itration, there is no su4h fear. '. In 4ase, for an7 reason, the ar3itrator 3e4omes in4apa3le of 4ontinuing as ar3itrator in institutional ar3itration, it will not ta8e mu4h time to find su3stitutes. :hen a su3stitute is found, the pro4edure for ar3itration remains the same. The pro4eedings 4an 4ontinue from where the7 were stopped, whereas these fa4ilities are not a6aila3le in ad hoc ar3itration. %. In institutional ar3itration, as the se4retarial and administrati6e staff is su32e4t to the dis4ipline of the institution, it is eas7 to maintain 4onfidentialit7 of the pro4eedings. In ad hoc ar3itration, it is diffi4ult to e)pe4t professionalism from the se4retarial staff. !.&$ In Food Corporation of India v. Joginderpal Mohinderpal%, the Supreme Court o3ser6ed5 B:e should ma8e the law of ar3itration simple, less te4hni4al and more responsi3le to the a4tual realities of the situations, 3ut must 3e responsi6e to the 4anons of 2usti4e and fair pla7 and ma8e the ar3itrator adhere to su4h pro4ess and norms whi4h will 4reate 4onfiden4e, not onl7 37 doing 2usti4e 3etween the parties, 3ut 37 4reating sense that 2usti4e appears to ha6e 3een done.C

&

1";&;2 2 6CC 34%

2&

!.&& The o32e4t of the alternati6e dispute resolution pro4ess of ar3itration is to ha6e e)peditious and effe4ti6e disposal of the disputes through a pri6ate forum of partiesG 4hoi4e. !.&( Fa6ouring institutional ar3itration to sa6e ar3itration from the ar3itration 4ost, the Supreme Court has re4entl7 in Union of India v. M/S. Singh Builders Syndicate ! o3ser6ed5 B:hen the ar3itration is 37 a Tri3unal 4onsisting of ser6ing offi4ers, the 4ost of ar3itration is 6er7 low. -n the other hand, the 4ost of ar3itration 4an 3e high if the 1r3itral Tri3unal 4onsists of retired Judge/s. :hen a retired Judge is appointed as 1r3itrator in pla4e of ser6ing offi4ers, the go6ernment is for4ed to 3ear the high 4ost of 1r3itration 37 wa7 of pri6ate ar3itratorFs fee e6en though it had not 4onsented for the appointment of su4h non"te4hni4al non" ser6ing persons as 1r3itrator/s. There is no dou3t a pre6alent opinion that the 4ost of ar3itration 3e4omes 6er7 high in man7 4ases where retired Judge/s are 1r3itrators. The large num3er of sittings and 4harging of 6er7 high fees per sitting, with se6eral add"ons, without an7 4eiling, ha6e man7 a time resulted in the 4ost of ar3itration approa4hing or e6en e)4eeding the amount in6ol6ed in the dispute or the amount of the award. :hen an ar3itrator is appointed 37 a 4ourt without indi4ating fees, either 3oth parties or at least one part7 is at a disad6antage. Firstl7, the parties feel 4onstrained to agree to whate6er fees is suggested 37 the 1r3itrator, e6en if it is high or 3e7ond their 4apa4it7. Se4ondl7, if a high fee is 4laimed 37 the 1r3itrator and one part7 agrees to pa7 su4h fee, the other part7, who is ena3le to afford su4h fee or relu4tant to pa7 su4h high fee, is put to an em3arrassing position. <e will not 3e in a position to e)press his reser6ation or o32e4tion to the high fee, owing to an apprehension that refusal 37 him to agree for the fee suggested 37 the ar3itrator, ma7 pre2udi4e his 4ase or 4reate a 3ias in fa6our of the other part7 who readil7 agreed to pa7 the high fee. It is ne4essar7 to find an urgent solution for
; "#

&nion of 'ndia v. M#S. Sin(h B$ilders Syndicate, 2##; 142 6CAL3 4;" I/id.

2;

this pro3lem to sa6e ar3itration from the ar3itration 4ost. Institutional ar3itration has pro6ided a solution as the 1r3itratorsF fees is not fi)ed 37 the 1r3itrators themsel6es on 4ase to 4ase 3asis, 3ut is go6erned 37 a uniform rate pres4ri3ed 37 the institution under whose aegis the 1r3itration is held. 1nother solution is for the 4ourt to fi) the fees at the time of appointing the ar3itrator, with the 4onsent of parties, if ne4essar7 in 4onsultation with the ar3itrator 4on4erned. Third is for the retired Judges offering to ser6e as 1r3itrators, to indi4ate their fee stru4ture to the Registr7 of the respe4ti6e <igh Court so that the parties will ha6e the 4hoi4e of sele4ting an 1r3itrator whose fees are in their HrangeF ha6ing regard to the sta8es in6ol6ed. :hat is found to 3e o32e4tiona3le is parties 3eing for4ed to go to an ar3itrator appointed 37 the 4ourt and then 3eing for4ed to agree for a fee fi)ed 37 su4h 1r3itrator. It is unfortunate that dela7s, high 4ost, freDuent and sometimes unwarranted 2udi4ial interruptions at different stages are seriousl7 hampering the growth of ar3itration as an effe4ti6e dispute resolution pro4ess. ,ela7 and high 4ost are two areas where the 1r3itrators 37 self regulation 4an 3ring a3out mar8ed impro6ementC. !.&+ Se4tion % pro6iding for settlement of disputes outside the Court was inserted in CAC in ! (1mendment) Bill ! and 3rought into for4e with effe4t from 0!.0'.#00#. The H.otes on ClausesF of the CAC stated with regard to this pro6ision thus5 BClause ' pro6ides for the settlement of disputes outside the 4ourt. The pro6isions of Clause ' are 3ased on the re4ommendations made 37 Law Commission of India and >alimath Committee. It was suggested 37 Law Commission of India that the Court ma7 reDuire attendan4e of an7 part7 to the suit or pro4eedings to appear in person with a 6iew to arri6ing at an ami4a3le settlement of dispute 3etween the parties and ma8e an attempt to settle the dispute 3etween the parties ami4a3l7. >alimath Committee re4ommended to ma8e it o3ligator7 for the 4ourt to refer the dispute, after issues are framed, for settlement either 37 wa7 of ar3itration,
3#

4on4iliation, mediation, 2udi4ial settlement or through Lo8 1dalat. It is onl7 when the parties fail to get their disputes settled through an7 of the alternate dispute resolution method that the suit 4ould pro4eed further. In 6iew of the a3o6e, 4lause ' see8s to insert a new se4tion % in the Code in order to pro6ide for alternate dispute resolution.C

!.&' Se4tion %

has 3een introdu4ed for the first time for

settlement of disputes outside the Court, with the a6owed o32e4ti6e of pro6iding speed7 2usti4e5 !. of " (a) (3) (4) (d) #. 1r3itration, Con4iliation, Judi4ial settlement in4luding settlement through Lo8 >ediation. :here the parties fail to get their disputes settled It is now made o3ligator7 for the Court to refer the dispute after issues are framed for settlement either 37 wa7

1dalat, or

through an7 of the alternati6e dispute resolution methods, the suit 4ould pro4eed further in the Court in whi4h it was filed. $. &. The pro4edure to 3e followed in matters referred for Clause (d) of su3"se4tion (#) of se4tion % empowers different modes of settlement is spelt out in su3"se4tion (#). the ?o6ernment and the <igh Courts to ma8e rules to 3e followed in mediation pro4eedings to effe4t the 4ompromise 3etween the parties.

3"

!.&% In Sale" Advocate Bar Association v. Union of India , the Supreme Court re2e4ted the 4hallenge to the 4onstitutional 6alidit7 of the amendment made in CAC and too8 note of the Reports of the Committee headed 37 >. Jagannadha Rao, J., a former Supreme Court Judge and Chairman of the Law Commission of India, in4luding the one dealing with >odel 1lternati6e ,ispute Resolution and >ediation Rules. !.& :e should endea6our to inspire parties to settle their

disputes outside the Court 37 more and more utili9ing se4tion % CAC. It is a 6er7 3enefi4ial pro6ision.

!.(0 1 new se4tion !+ has 3een inserted in the Court"fees 14t !%'0 37 the CAC (1mendment) 14t ! , whi4h reads as follows5 B:here the Court refers the parties to the suit to an7 one of the mode of settlement of dispute referred to in se4tion % of the Code of Ci6il Aro4edure, ! 0%, the plaintiff shall 3e entitled to a 4ertifi4ate from the Court authorising him to re4ei6e 3a48 from the 4olle4tor, the full amount of the fee paid in respe4t of su4h plaint.C

!.(! :here a matter referred to a Lo8 1dalat in terms of se4tion % (#) CAC read with se4tion #0(!) of the Legal Ser6i4es 1uthorities 14t is settled, the refund of the 4ourt"fee is go6erned
""

AIR 2##3 6C "&; and 12##52 $ 6CC 344

32

37 se4tion !+ of the Court"fees 14t read with se4tion #! of the Legal Ser6i4es 1uthorities 14t and the plaintiff is entitled to the refund of the whole of the 4ourt"fee paid on the plaint.!# !.(# 1 Lo8 1dalat award is on a par with a de4ree on 4ompromise, final, unappeala3le, 3inding and eDui6alent to an e)e4uta3le de4ree, and ends the litigation 3etween the parties.!$ !.($ Au3li4 4onfiden4e in the Judi4iar7 is the need of the hour more than e6er 3efore. The Judi4iar7 has a spe4ial role to pla7 in the tas8 of a4hie6ing so4io"e4onomi4 goals enshrined in the Constitution. :hile maintaining their aloofness and independen4e, the Judges ha6e to 3e aware of the so4ial 4hanges in the tas8 of a4hie6ing so4io"e4onomi4 2usti4e for the people. !.(& So4rates said that four things impro6e a great Judge5 (a) To hear 4ourteousl7E (3) To answer wisel7E (4) To 4onsider so3erl7E and (d) To de4ide impartiall7. !.(( The 2udges of the su3ordinate 2udi4iar7, whi4h 4an 3e termed as the root of our 2udi4ial s7stem, must 3e a3le to inspire 4onfiden4e in themsel6es and do 2usti4e to the so4iet7. It is rightl7 said that 2udi4ial offi4ers dis4harge di6ine fun4tions though the7 are not di6ine themsel6es. @6er7 2udi4ial offi4er of the su3ordinate
"2 "3

Vas$devan V. ). v. State of Kerala, AIR 2##4 Cera a 43 *. T. Tho+as v. Tho+as ,o-, 12##52 $ 6CC 4%&

33

2udi4iar7 has to lead a dis4iplined life. The 2udges of all 4adres should stri4tl7 o3ser6e pun4tualit7 in 4ourt. Integrit7 is an essential Dualit7 of a 2udi4ial offi4er. 1 2udi4ial offi4er must follow the standards of integrit7, moralit7 and 3eha6iour. The mem3ers of the 2udi4iar7 should pronoun4e 2udgments within the stipulated time. Judges must de4ide 4ases without fear or fa6our, affe4tion or ill will, or the feeling of a friend or foe. The7 must wor8 6er7 hard, 3e 6er7 honest and 4ourteous to the litigants, witnesses and the mem3ers of the Bar and dis4harge their 2udi4ial fun4tions with all humilit7 at their 4ommand. The7 should not spea8 out their 6erdi4t, unless the7 propose to pronoun4e it in open 4ourt then and there. Judges should 4ulti6ate the art of writing 2udgments, whi4h is a 4reati6e pro4ess. The language should 3e plain, pre4ise and pointed. Long senten4es lose their pun4h. :ords should 3e 4hosen with apt pre4ision. The fa4ts should 3e stated pre4isel7, the issues written 4learl7, the e6iden4e should 3e dis4ussed thread3are, ratio4ination should 3e logi4al and should follow in a seDuen4e from one point to another and then a 4ase 3e de4ided. In the present times, 2udi4ial edu4ation and training too is a must, whi4h ma7 3e 4alled an effe4ti6e and rather indispensa3le means to enhan4e fair administration of 2usti4e. @du4ation enhan4es 8nowledge and sensiti6it7, whereas training re6ol6es round s8ills, attitude and professionalism. The two reinfor4e ea4h other in 2udi4ial performan4e. That is wh7 there ha6e 4ome into e)isten4e the .ational Judi4ial 14adem7 at Bhopal and other 2udi4ial a4ademies or training dire4torates at the State le6el. ,r 1. A. J. 13dul Ialam, a former Aresident of India, has 3een supporti6e of

34

mediation and 4on4iliation as 1,R me4hanisms and emphasi9ed the need for their training in order that the7 are persons of impe44a3le integrit7 and a3ilit7 to persuade and 4reate 4on6i4tion among parties.

!.(+ The issue of under"trials detained in 6arious prisons in the 4ountr7 has 3een a matter of 4on4ern. The Central ?o6ernment reali9ing the plight of under"trials and to ensure 2usti4e to 4ommon man, made allo4ation of Rs.(0#. 0 4rores for 4reation of !'$& 4ourts named as BFast Tra48 CourtsC all o6er the 4ountr7. The s4heme was for a period of fi6e 7ears, whi4h after inter6ention of the Supreme Court has 3een 4ontinued for another fi6e 7ears, that is, until $!st >ar4h #0!0 with a pro6ision of Rs.(0 4rores. ".5% A successfu .udicia s-stem is a ha mark of an- de,e o+ed ci,i i:ation. *he fai ure of crimina .ustice s-stem in /rin5in5 crimina conduct under ti5ht contro is ,iewed as eadin5 to the /reakdown of the +u/ ic order and disa++earance of an im+ortant condition of human freedom. *he crime0contro im+ ies order - and efficient method for arrestin5, +rosecutin5, con,ictin5 and +unishin5 the 5ui t- and for deterrin5 crime /- others. *he +rotection of indi,idua ri5hts is necessar- to 5uard the accused a5ainst ar/itrar- e>ercise of +owers /the 6tate. Lon5 de a- in courts causes 5reat hardshi+ not on - to the accused /ut e,en to the ,ictim and the 6tate. *he accused, who is not out on /ai , ma- sit in .ai for num/er of months or e,en -ears awaitin5 conc usion of the tria . *hus, effort is re4uired to /e made to im+ro,e the

35

methods of in,esti5ation and +rosecution. 9ore +rofessiona ism needs to /e infused in them. *he 6tate Go,ernment shou d create a s+ecia win5 in the Bo ice De+artment so e - for the +ur+ose of in,esti5ation and attendin5 to court0work, and the +rosecutin5 a5enc- shou d /e inde+endent. ".5& A +rosecutor occu+ies a uni4ue +osition in the crimina .ustice s-stem. In Hitendra Vishn$ Thak$r v. State of Maharashtra./, the 6u+reme Court o/ser,ed that a +u/ ic +rosecutor is an im+ortant officer of the 6tate Go,ernment and is a++ointed /- the 6tate under the Code of Crimina Brocedure. De is not a +art of the in,esti5atin5 a5enc-. De is an inde+endent statutor- authorit-. *he success of a tria de+ends main - on effecti,e +rosecution, which is +ossi/ e on - throu5h we 04ua ified, trained, fair and dedicated +rosecutors. It 5oes without sa-in5 that inte5rit- and im+artia it- of the +u/ ic +rosecutor is essentia in the administration of .ustice. It is essentia that efforts are made to im+ro,e the 4ua it- of the mana5ement of +rosecution in order to secure fair, .ust and e>+editious conc usion of tria s. ".5; In crimina matters a so, sett ement is reco5ni:ed /- the Code of Crimina Brocedure in that its section 32# +ro,ides for com+oundin5 of offences mentioned therein. Law*ers ".$# Law-ers, as the 5enera +u/ ic e>+ects, shou d /e thorou5h +rofessiona s, +ersons of inte5rit- and com+etence, who can u+ho d the
"4

AIR ";;4 6C 2$23

3$

cause of .ustice. Law-ers must /e men or women of su/stance ha,in5 fu sense of their socia res+onsi/i ities as socia technicians and architects of the .usticin5 +rocess. *he- must ha,e a 5ras+ of the end ess tradition and must /e aware of the 5reatness of their task. *he- must ha,e necessar- humi it-, /ein5 ser,ants of .ustice and the conscience of the communit-. !.+! The 6ulnera3le se4tions of the so4iet7 who are marginali9ed ha6e to 3e dealt with sensiti6el7 and with 4are. Being powerless, poor and ignorant, the7 need assistan4e for empowerment with 8nowledge and 4apa4it7 to uphold their own rights as 3eing integral part of the so4iet7. Legal litera47 4ampaign, paralegal training programmes, mo3ili9ation of pu3li4 opinion against in2usti4e and e)ploitation, out"of"4ourt settlement of disputes, legal ad6i4e, et4. are some of the wa7s through whi4h the poor and the underpri6ileged 4an 3e made to reali9e their rights and also learn a3out their own importan4e in shaping and re2u6enating this great nation. !.+# Sin4e the lower 2udi4iar7 does the 3ul8 of 2udi4ial wor8, it needs to 3e strengthened. .ot onl7 the infrastru4ture of the lower 4ourts needs to 3e impro6ed, 3ut also the ser6i4e 4onditions of the 2udi4ial offi4ers need to 3e re6amped. >ore 4ourts needs to 3e 4reated, so that 2usti4e is ta8en to the doorsteps of the people. The re4ent 4reation 37 the =nion ?o6ernment of Fast Tra48 Court at the distri4t le6el, to dispose of old 4ases, is a step in the right dire4tion.

3%

!.+$ In our 4ountr7, the ratio 3etween the population and the 2udges is unrealisti4. Therefore, the Judi4iar7 is una3le to 4ope up with the flood of litigation. <en4e, the num3er of 2udges needs to 3e in4reased in proportion to the population. India has fewer than !( 2udges per million people, a figure that 4ompares 6er7 poorl7 with 4ountries, su4h as Canada (a3out '( per million) and the =S (!0& per million). In #00#, the Supreme Court had dire4ted the =nion ?o6ernment that the 2udge"population ratio 3e raised to (0 per million in a phased manner.!( !.+& -ur antedilu6ian laws either need to 3e deleted or re2u6enated. The pro4edure laws should 3e pruned and streamlined. The right to appeal on 3oth the 4i6il and the 4riminal sides needs to 3e restri4ted. !.+( The wor8 4ulture of the 4ourts should 3e impro6ed. The relationship 3etween the Bar and the Ben4h should 3e 4ordial. Stri8es and ad2ournments onl7 dela7 disposal of 4ases. !.++ The Dualit7 of legislation needs to 3e impro6ed. Aoorl7 drafted laws en4ourage litigation. If the law is 4lear, 4han4es of litigation are less. !.+' :ith a 6iew to a6oid inordinate dela7 in furnishing 4ertified 4opies of 2udgments and final orders, et4., 4opies should 3e ta8en and authenti4ated immediatel7 after their pronoun4ement and preser6ed in the 4op7ing se4tion, for the purposes of issuing 4ertified
"5

The Hind$, #$.#;.2##%

3&

4opies, whene6er ne4essar7. Suffi4ient num3er of Jero) ma4hines for that purpose 3e made a6aila3le. !.+% Judi4ial reform is the 4on4ern not onl7 of the Judi4iar7, 3ut it is the responsi3ilit7 of the @)e4uti6e, of the Legislature, of the Bar and of the people also. It is not a one"time remed7, 3ut an on"going pro4ess. The7 must stop 3laming ea4h other, for the mali4e. The7 must unite, to pre6ent and 4ontrol the litigation"epidemi4. !.+ :ith the ad6ent of the 1,R, there is a new a6enue for the

people to settle their disputes. >ore and more 1,R 4entres should 3e 4reated for settling disputes out"of"4ourt as is 3eing done in man7 other 4ountries. 1,R methods will reall7 a4hie6e the goal of rendering so4ial 2usti4e to the people, whi4h reall7 is the goal of the su44essful 2udi4ial s7stem. !.'0 Te4hnolog7 has a role to pla7 in diminishing do48ets. Computers should 3e introdu4ed in 4ourts with a faster speed. This fa4ilitates dissemination of information, 4reation of data, up8eep of the 2udi4ial re4ords and 3etters 2udi4ial deli6er7 s7stem. The .ational @"Courts Aro2e4t laun4hed 37 the Aresident on 0 .0'.#00' needs fillip.

3;

II# #.!

RECOMMENDATIONS :e are aware that the propositions 4ontained in the pre4eding

Chapter are not new. .e6ertheless, we feel that the7 need to 3e re" emphasi9ed and reaffirmed. There is an urgent need for 2usti4e" dispensation through 1,R me4hanisms. The 1,R mo6ement needs to 3e 4arried forward with greater speed. Besides, man7 other suggestions, whi4h ma7 now 3e 4alled ha48ne7ed, need a fresh loo8.

4#

#.#

:e re4ommend a44ordingl7.

(,r Justi4e 1R. La8shmanan) Chairman

(Arof. ,r Tahir >ahmood) >em3er

(,r Brahm 1. 1grawal) >em3er"Se4retar7

4"