1|Page
Chapter:-I
INTRODUCTION Alternative Dispute Resolution ("ADR") refers to any means of settling disputes outside of the courtroom. ADR typically includes early neutral evaluation, negotiation, conciliation, mediation, and arbitration. As burgeoning court queues, rising costs of litigation, and time delays continue to plague litigants, more states have begun experimenting with ADR programs. Some of these programs are voluntary; others are mandatory. ADR is a term used to describe several different methods of resolving legal disputes without going to court. The rising cost of litigation is making traditional lawsuits impractical for many individuals and businesses. At the same time, civil courts face backlogged dockets, resulting in delays of a year or more for private parties to have their cases heard by a jury. The ADR movement in the United States was launched in the 1970s, beginning as a social movement to resolve community-wide civil rights disputes through mediation, and as a legal movement to address increased delay and expense in litigation arising from an overcrowded court system Arbitration is a process of judging and settling of disputes by a person not acting as a an judge appointed by law, but by a person or a group of person jointly accepted by the parties in disputes as having the authority to examine the dispute and give judgment. The arbitrator appointed may have a legal background, but this is not an essential requirement for acting as an arbitrator. Such arbitration judgment, generally called awards, are limited to decision involving monetary matters and meeting of contractual, commercial and social obligations. The concept of Lok Adalat is an innovative Indian contribution to the world jurisprudence. Lok Adalat means peoples’ court. India as a long a long tradition and history of such methods practiced in the society at grass root level. These are called Panchayat and legally it’s called arbitration. In Lok Adalat justice is dispensed. Legal aid is essential to guaranteeing equal access to justice for all, as provided for by Article 6.3 of the European Convention on Human Rights regarding criminal law cases. Especially for
2|Page
citizens who do not have sufficient financial means, the provision of legal aid to clients by governments will increase the likelihood, within court proceedings, of being assisted by legal professionals for free (or at a lower cost) cost) or of receiving financial aid.1 Legal aid is required in many forms and at various stages, for obtaining guidance, for resolving disputes in Courts, tribunals or other authorities. It has manifold facets. The explosion in population, the vast changes brought brou ght about abou t by scientific, s cientific, technological and other developments, and the all round enlarged field of human activity reflected in modern society, and the consequent increase in litigation in Courts and other forums demand that the service of competent persons with expertise in law is required in many stages and at different forums or levels and should be made available.
1
en.wikipedia.org, on 17/11/14 at 12:58pm.
2|Page
citizens who do not have sufficient financial means, the provision of legal aid to clients by governments will increase the likelihood, within court proceedings, of being assisted by legal professionals for free (or at a lower cost) cost) or of receiving financial aid.1 Legal aid is required in many forms and at various stages, for obtaining guidance, for resolving disputes in Courts, tribunals or other authorities. It has manifold facets. The explosion in population, the vast changes brought brou ght about abou t by scientific, s cientific, technological and other developments, and the all round enlarged field of human activity reflected in modern society, and the consequent increase in litigation in Courts and other forums demand that the service of competent persons with expertise in law is required in many stages and at different forums or levels and should be made available.
1
en.wikipedia.org, on 17/11/14 at 12:58pm.
3|Page
Chapter: II
ALTERNATIVE DISPUTE RESOLUTION INTRODUCTION Alternative dispute resolution (ADR) (also known as external dispute resolution in some countries, such as Australia includes includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. It litigation. It is a collective term for the ways that parties can settle disputes, with (or without) the help of a third party. Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties' p arties' cases to be tried (indeed the European the European Mediation Directive (2008) expressly contemplates so-called "compulsory" mediation; this means that attendance is compulsory, not that settlement must be reached through mediation). The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of o f the individual or individuals who will decide their dispute. Some of the senior judiciary in certain jurisdictions (of which England and Wales is one) are strongly in favour of this (ADR) use of mediation to settle disputes. 2Alternative Dispute Resolutions ("ADR") are alternative methods that; an independent, objective and impartial third party provides the parties of the legal dispute to reach an agreement about the dispute by bringing them together and communicating with each other. Dispute resolution in Turkey is a fundamental duty of State. For any dispute arising from a legal relationship between the concerned parties, application to the state courts is the initial and essential judicial remedy. Alternative Dispute Resolution ("ADR") refers to any means of settling disputes outside of the courtroom. ADR typically includes early neutral evaluation, negotiation, conciliation, mediation, 2
en.wikipedia.org, on 27/9/14 at 09:28pm.
4|Page
and arbitration. As burgeoning court queues, rising costs of litigation, and time delays continue to plague litigants, more states have begun experimenting with ADR programs. Some of these programs are voluntary; others are mandatory.3
WHAT IS ALTERNATIVE DISPUTE RESOLUTION (ADR)? ADR is a term used to describe several different methods of resolving legal disputes without going to court. The rising cost of litigation is making traditional lawsuits impractical for many individuals and businesses. At the same time, civil courts face backlogged dockets, resulting in delays of a year or more for private parties to have their cases heard by a jury. New types of proceedings have been developed in response, and they are proving beneficial, saving time and money for everyone involved. These include arbitration, mediation, and additional kinds of ADR designed for specific cases and subject matters. The basic goals of ADR include: 1. To create a speedier and more efficient forum in which to resolve civil disputes; 2. To lower the costs of the arbitration process, which continue to rise under the present system; 3. To reduce overcrowding in the public courts; 4. To allow the parties involved in the dispute greater control over the resolution process; 5. To provide a more confidential forum of debate; 6. And, to allow the mediator and the parties involved to work more closely together toward a satisfactory resolution. Obviously, this list is not all – inclusive, but it provides a basic framework of what exactly alternative dispute resolution seeks to accomplish.4
The term can refer to everything from facilitated settlement negotiations in which disputants are encouraged to negotiate directly with each other prior to some other legal process, to arbitration systems or minitrials that look and feel very much like a courtroom process. Processes designed 3
www.law.cornell.edu, on 27/9/14 at 09:33pm. www.adamsmith.org, on 27/9/14 at 10:48pm.
4
5|Page
to manage community tension or facilitate community development issues can also be included within the rubric of ADR. ADR systems may be generally categorized as negotiation, conciliation/mediation, or arbitration systems. Negotiation systems create a structure to encourage and facilitate direct negotiation between parties to a dispute, without the intervention of a third party. Mediation and conciliation systems are very similar in that they interject a third party between the disputants, either to mediate a specific dispute or to reconcile their relationship. Mediators and conciliators may simply facilitate communication, or may help direct and structure a settlement, but they do not have the authority to decide or rule on a settlement. Arbitration programs may be either binding or non-binding. Binding arbitration produces a third party decision that the disputants must follow even if they disagree with the result, much like a judicial decision. Non-binding arbitration produces a third party decision that the parties may reject.5
KEY FEATURE OF ALTERNATIVE DISPUTE RESOLUTION APPROCHES Alternative Dispute Resolution comprises various approaches for resolving disputes in a nonconfrontational way, ranging from negotiation between the two parties, a multiparty negotiation, through mediation, consensus building, to arbitration and adjudication The report introduces the key skills required, with particular attention to their important role in the process of negotiation and mediation, with examples of their application in national and international water conflicts. Conflict is endemic to human society, among individuals and groups, and it is important to manage it. We find stories in the Bible, in the Islamic culture, among Native Americans, First Nations in Canada, and many other traditions that describe processes that have been used from the earliest times to find peaceful solutions to various disputes, and much can be learned from the past. In recent decades, the various conflict resolution approaches have become a widely accepted field both of academic study and of practice, with official and/or legislative functions in many countries. In international relations, they plays an increasing role in containing, managing and resolving potential sources of conflict. The report reviews its complex development. While 5
www.hg.org, on 27/9/14 at 09:35.
6|Page
conflict can be dangerous, it also carries the possibility of producing creative cooperation in a win – win solution. The key to this is for participants to engage as joint problem solvers, seeking to resolve the dispute, and to try and “enlarge the pie” rather than acting as adversaries andaggravating the situation. Alternative Dispute Resolution is of two historic types. First, methods for resolving disputes outside of the official judicial mechanisms. Second, informal methods attached to or pendant to official judicial mechanisms. There are in addition freestanding and or independent methods, such as mediation programs and ombudsman offices within organizations. The methods are similar, whether or not they are pendant, and generally use similar tool or skill sets, which are basically sub-sets of the skills of negotiation. For example, freeform negotiation is merely the use of the tools without any process. Negotiation within a labor arbitration setting is the use of the tools within a highly formalized and controlled setting.6 A mediator can play a valuable role in this process, facilitate a negotiation process which has come to a dead end, helping the parties concerned to focus on their essential interests rather than defend (or attack) fixed positions. The principles and procedures of consensus building are dealt with in some detail. The report outlines the principles of negotiation, based on interests and needs of the parties, the use of proper communication, and maintenance of a working relationship as an essential component for reaching a durable agreement. It lists and considers the essential skills needed by negotiators and mediators, and points the different cultural expectations (national, regional, religious, or professional) and the psychological aspects that affect perceptions and communications. It outlines a range of strategies for and approaches to mediation, and the ethical problems that may arise. ADR traditions vary somewhat by country and culture. There are significant common elements which justify a main topic, and each country or region's difference should be delegated to sub-pages.
HISTORICAL BACKGROUND Dispute resolution outside of courts is not new; societies world-over have long used non-judicial, indigenous methods to resolve conflicts. What is new is the extensive promotion and
6
www.tpsgc-pwgc.gc.ca, on 27/9/2014 at 09:45pm.
7|Page
proliferation of ADR models, wider use of court-connected ADR, and the increasing use of ADR as a tool to realize goals broader than the settlement of specific disputes. The ADR movement in the United States was launched in the 1970s, beginning as a social movement to resolve community-wide civil rights disputes through mediation, and as a legal movement to address increased delay and expense in litigation arising from an overcrowded court system. Ever since, the legal ADR movement in the United States has grown rapidly, and has evolved from experimentation to institutionalization with the support of the American Bar Association, academics, courts, the U.S. Congress and state governments. For example, in response to the 1990 Civil Justice Reform Act requiring all U.S. federal district courts to develop a plan to reduce cost and delay in civil litigation, most district courts have authorized or established some form of ADR. Innovations in ADR models, expansion of government-mandated, court-based ADR in state and federal systems, and increased interest in ADR by disputants has made the United States the richest source of experience in court connected ADR. While the courtconnected ADR movement flourished in the U.S. legal community, other ADR advocates saw the use of ADR methods outside the court system as a means to generate solutions to complex problems that would better meet the needs of disputants and their communities, reduce reliance on the legal system, strengthen local civic institutions, preserve disputants' relationships, and teach alternatives to violence or litigation for dispute settlement. In 1976, the San Francisco Community Boards program was established to further such goals. This experiment has spawned a variety of community-based ADR projects, such as school based peer mediation programs and neighborhood justice centers. In the 1980s, demand for ADR in the commercial sector began to grow as part of an effort to find more efficient and effective alternatives to litigation. Since this time, the use of private arbitration, mediation and other forms of ADR in the business setting has risen dramatically, accompanied by an explosion in the number of private firms offering ADR Services. The move from experimentation to institutionalization in the ADR field has also affected U.S. administrative rule-making and federal litigation practice. Laws now in place authorize and encourage agencies to use negotiation and other forms of ADR in rulemaking, public consultation, and administrative dispute resolution. Internationally, the ADR movement has also taken off in both developed and developing countries. ADR models may be straightforward imports of processes found in the United States or hybrid experiments mixing ADR models with elements of traditional dispute resolution. ADR processes are being implemented to
8|Page
meet a wide range of social, legal, commercial, and political goals. In the developing world, a number of countries are engaging in the ADR experiment, including Argentina, Bangladesh, Bolivia, Colombia, Ecuador, the Philippines, South Africa, Sri Lanka, Ukraine, and Uruguay.7
TYPES OF ALTERNATIVE DISPUTE RESOLUTION The main types of ADR that deal with consumer disputes are conciliation, arbitration or mediation and are usually provided by trade associations. If you wish to use one of these schemes, you should ask the suppliers whether they are members of a trade association and, if so, contact the trade association to find out whether it has a conciliation and/or arbitration service. Some trade associations are part of the Trading Standards Institute Consumer Codes Approval Scheme (CCAS). Any traders who are part of this scheme agree to provide good standards of service and must provide ADR for disputes between consumers and traders.
CONCILITION
In consumer disputes, conciliation is the first stage in the arbitration process and the conciliator is usually a member of the trade association. Both you and the supplier will be asked to give written details of the complaint, including any evidence, and the conciliator will give an opinion on the best solution. Any decision is not binding and won't prevent you from taking court action. If you disagree with the opinion offered, you can then proceed to the arbitration stage or consider suing in court. There is usually no charge for conciliation. In conciliation, the resolution of the dispute by the parties themselves is the essential point. In opposition to the mediation method, conciliation is based on right and rightfulness and the history of the dispute is taken into consideration. At the same time, conciliation method is less flexible than mediation method and is mostly based on provisions of law. NEGOTIATION
Negotiation is a type of ADR which is generally referred to initially in case of a dispute and it covers all methods of ADR. This type of ADR aims for the parties to settle the dispute between 7
Legal-dictionary.thefreedictionary.com, on 27/9/14 at 09:37pm.
9|Page
the same by negotiating and deliberating with each other with the attendance of their attorneys if needed, without intervention of any third party. Negotiation is a kind of ADR method that each party tries to obtain a benefit for themselves at the end of the process by persuading the other party to act in the way the former desires. ARBITRATION
While arbitrations are technically voluntary, many people agree to participate in arbitrations before a dispute even arises.
For example, many formal contracts require that any dispute
arising out of the contract be arbitrated. In an arbitration, the parties agree to have their case heard by an impartial person, the arbitrator, who issues a final and binding decision. Typically, an arbitration case is heard much faster than a court case would be heard and is less expensive than a formal litigation. It is the process of refering a dispute to an impartial intermediar y chosen by the parties who agree in advance to abide by the arbitrator’s award that is issued after a hearing at which all parties have the opportunity to be heard. Arbitration resembles traditional civil litigation in that a neutral intermediary hears the disputants’ arguments and imposes a final and binding decision that is enforceable by the courts. One difference is that in arbitration the disputants elect to settle anyfuture disputes by arbitration before a dispute actually arises, whereas with civil litigation the judicial system is generally chosen by a disgruntled party after a dispute has materialized. Another difference is that the disputants to an arbitration select the intermediary who will serve as arbitrator, whereas parties to civil litigation have little to no control over who will preside as the judge in judicial proceedings.Arbitration is a procedure for settling disputes in which both you and the supplier usually agree to accept the decision of the arbitrator as legally binding. This means you cannot take court action, except to enforce the award if the supplier doesn't pay. The arbitrator will usually be a member of the Chartered Institute of Arbitrators and often acts independently of the trade association. The arbitrator will make a decision based on the written evidence presented by you and the supplier. The decision is confidential and cannot be made public without the supplier's agreement. You will have to pay a registration fee which may be refunded if you are successful. Some contracts for services and delivery notes include an arbitration clause stating that you will refer any dispute to arbitration. Although this is binding once you have signed the agreement, if the total cost is below the small
10 | P a g e
claims limit (£10,000), you cannot be forced to arbitrate unless you gave your agreement after the dispute arose.
MEDIATION
In mediation, an independent mediator works with the parties to come to a resolution. Mediators are trained professionals who are able to help the parties communicate and accept a fair resolution of their dispute. A mediator does not have the authority to impose a solution on the parties. If the mediation is successful then the parties will sign a legally enforceable mediation agreement to which they each agree to abide. If the mediation is ultimately unsuccessful then the parties will fail to reach an agreement and can take their dispute to court. Mediation is a rapidly growing ADR technique. It consists of assisted negotiations in which the disputants agree to enlistthe help of a neutral intermediary, whose job it is to facilitate a voluntary, mutually acceptable settlement. A mediator’s primary function is to identify issues, explore possible bases for agreement, discuss the consequences of reaching impasse, and encourage each party to accommodate the interests of other parties through negotiation. However, unlike arbitrators, mediators lack the power to impose a decision on the parties if they fail to reach an agreement on their own. Although some jurisdictions have enacted statutes that govern mediation, most mediation proceedings are voluntary for both parties. Accordingly, a mediator’s influence is limited by the autonomy of the parties and their willingness to negotiate in good faith. Thus, a mediator can go no further than the parties themselves are willing to go. Since agreements reached by mediation bear the parties’ own imprint, however, many observers feel that they are more likely to be adhered to than decisions imposed by an arbitrator or court. Disputants who participate in mediation without representation of legal counsel are also more likely to adhere to settlements when the alternative is to pursue civil litigation, where attorney’s fees consume a significant portion of any monetary award granted to the parties. MINITRIALS
A minitrial is a process by which the attorneys for the parties present a brief version of the case to a panel, often comprised of the clients themselves and a neutral intermediary who chairs the process. Expert witnesses (and less frequently, lay witnesses) may be used in presenting the case.
11 | P a g e
After the presentation, the clients, normally top management representatives who by now are more aware of the strengths and weaknesses of their positions, attempt to negotiate a settlement of the dispute. If a negotiated settlement is not reached, the parties may allow the intermediary to mediate the dispute or render a non-binding advisory opinion regarding the likely outcome of the case were it to be tried in civil court. Minitrials are often effective because they usually result in bringing top management officials together to negotiate the legal issues underlying a dispute. Early in the negotiation process, upper management is sometimes pre-occupied by the business side of a dispute. Minitrials tend to shift management's focus to the outstanding legal issues. Minitrials also allow businesses to share information with each other and with their attorneys, providing a forum for initial face-to-face negotiations. Management also generally prefers the time-saving, abb reviated nature of minitrials over the more time-consuming and costly civil-litigation alternative. Minitrials expedite negotiations as well, by making them more realistic. Once the parties have seen their case play out in court, even in truncated fashion, the parties are less likely to posture over less relevant or meaningless issues.
ADVANTAGES & DISADVANTAGES OF ALTERNATIVE DISPUTE RESOLUTION There are many advantages, and some disadvantages, to using Alternative Dispute Resolution. Advantages include the fact that it usually takes far less time to reach a final resolution than if the matter were to go to trial. Usually (but not always), it costs significantly less money, as well. Furthermore, in the case of arbitration the parties have far more flexibility in choosing what rules will be applied to their dispute (they can choose to apply relevant industry standards, domestic law, the law of a foreign country, a unique set of rules used by the arbitration service, or even religious law, in some cases.). The parties can also have their dispute arbitrated or mediated by a person who is an expert in the relevant field. In an ordinary trial involving complicated and technical issues that are not understood by many people outside a relevant industry, a great deal of time has to be spent
12 | P a g e
educating the judge and jury, just so they can make an informed decision. This large time investment often translates into a great deal of money being spent. Both sides might have to call expert witnesses, who may charge very large fees for their time. If an arbitrator has a background in the relevant field, however, far less time needs to be spent on this, and the parties can get to the actual issues of the case much sooner. There are some disadvantages, as well. Generally, arbitrators can only resolve disputes that involve money. They cannot issue orders requiring one party to do something, or refrain from doing something (also known as injunctions). They cannot change title to property, either. Also, some of the safeguards designed to protect parties in court may not be present in ADR. These might include the liberal discovery rules used in U.S. courts, which make it relatively easy to get evidence from the other party in a lawsuit. Also, there is very limited opportunity for judicial review of an arbitrator's decision. While a large arbitration service could, if it so chose, have some kind of process for internal appeals, the decision is usually final and binding, and can only be reviewed by a court in limited cases. This generally happens when the original arbitration agreement is found to be invalid. Because both parties must voluntarily agree to arbitration, if the consent of one party is obtained by fraud or force, it will not be enforced. Also, if the decision of the arbitrator is patently unfair, it will not be enforced. This is a difficult standard to meet. The fact that the arbitrator made a decision that the court would not have made is not, by itself, a basis to overturn the decision. A court might also overturn an arbitrator's decision if it decided issues that were not within the scope of the arbitration agreement.8
CONCLUSION Alternative Dispute Resolution ("ADR") refers to any means of settling disputes outside of the courtroom. ADR typically includes early neutral evaluation, negotiation, conciliation, mediation, and arbitration. As burgeoning court queues, rising costs of litigation, and time delays continue
8
www.lorman.com, on 27/9/14 at 10:04pm.
13 | P a g e
to plague litigants, more states have begun experimenting with ADR programs. Some of these programs are voluntary; others are mandatory. A wide variety of processes, practices, and techniques fall within the definition of "alternative dispute resolution." Arbitration and mediation are the best known and most frequently used types of ADR, but not the only ones. Minitrials, early neutral evaluations, and summary jury trials are less well-known forms of ADR. Many of these ADR techniques have little in common except that negotiation plays a prominent role in each. Parties to ADR procedures generally agree that a negotiated settlement is worth pursuing before investing time and money in full blown civil litigation. The procedures and techniques discussed above are the most commonly employed methods of ADR. Negotiation plays an important role in each method, either primarily or secondarily. However, there are countless other ADR methods, many of which modify or combine the above methods. For example, it is not uncommon for disputants to begin negotiations with early neutral evaluation and then move to nonbinding mediation. If mediation fails, the parties may proceed with binding arbitration. The goal with each type of ADR is for the parties to find the most effective way of resolving their dispute without resorting to litigation. The process has been criticized as a waste of time by some legal observers who believe that the same time could be spent pursuing the claims in civil court, where negotiation also plays a prominent role and litigants are protected by a panoply of formal rights, procedures, and rules. But many participants in unsuccessful ADR proceedings believe it is useful to determine that their disputes are not amenable to a negotiated settlement before commencing a lawsuit. Despite its success over the past three decades, ADR is not the appropriate choice for all disputants or all legal disputes. Many individuals and entities still resist ADR because it lacks the substantive, procedural, and evidentiary protections available in formal civil litigation. For example, parties to ADR typically waive their rights to object to evidence that might be deemed inadmissible under the rules of court. Hearsay evidence is a common example of evidence that is considered by the parties and intermediaries in ADR forums but that is generally excluded from civil trials. If a disputant believes that he or she would be sacrificing too many rights and
14 | P a g e
protections by waiving the formalities of civil litigation, ADR will not be the appropriate method of dispute resolution.
15 | P a g e
Chapter: III
ARBITRATION :- A CASE STUDY INTRODUCTION Arbitration, often called alternative dispute resolution is a means of settling a dispute between parties instead of one of the parties filing a civil lawsuit. Several benefits of arbitration are that it is often alot less expensive than filing suit and the matter is often resolved much sooner than going to court. Civil suits must find a slot on the court's calendar, depending on the jurisdiction this can be anywhere from six to eighteen months or longer. Courts in different national systems vary with respect to how interventionist they are in the arbitral process. In recent decades, as India has entered the ranks of the world’s major trading nations, the role of its judiciary in the matter of arbitration has increasingly been the subject of debate, as a result of a number of controversial decisions given by the courts. Arbitration can only take place if both parties have agreed to it. In the case of future disputes arising under a contract, the parties insert an arbitration clause in the relevant contract. An existing dispute can be referred to arbitration by means of a submission agreement between the parties. In contrast to mediation, a party cannot unilaterally withdraw from arbitration. Under the WIPO Arbitration Rules, the parties can select a sole arbitrator together. If they choose to have a three-member arbitral tribunal, each party appoints one of the arbitrators; those two persons then agree on the presiding arbitrator. Alternatively, the Center can suggest potential arbitrators with relevant expertise or directly appoint members of the arbitral tribunal. The Center maintains an extensive roster of arbitrators ranging from seasoned dispute-resolution generalists to highly specialized practitioners and experts covering the entire legal and technical spectrum of intellectual property.9
9
www.wipo.in, on 16/11/14 at 10:00pm.
16 | P a g e
SCOPE & OBJECT OF THE ARBITRATION AND CONCILATION ACT, 1996. The Arbitration and Conciliation Act, 1996 enacted in 1996 is an Act to consolidate and amend the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards. Copy of the Act is annexed as Annexure-I. The Act is based on the Model Law adopted by the United Nations Commission on International Trade Law (UNCITRAL) in 1985. The o bjects and basis of the said Act is to speedy disposal with least court intervention. Some of the objects, as mentioned in the Statement of Objects and Reasons for the Arbitration and Conciliation Bill, 1995 are as follows: i) to comprehensively cover international and co mmercial arbitration and conciliation as also domestic arbitration and conciliation; ii) to make provision for an arbitral procedure which is fair, efficient and capable of meeting the needs of the specific arbitration; iii) to provide that the arbitral tribunal gives reasons for its arbitral award; iv) to ensure that the arbitral tribunal remains within the limits of its jurisdiction; v) tominimise the supervisory role of courts in the arbitral process; vi) to permit an arbitral tribunal to use mediation, con ciliation or other procedures during the arbitral proceedings to encourage settlement of disputes; vii) to provide that every final arbitral award is enforced in the same manner as if it were a decree of the court; viii) to provide that a settlement agreement reached by the parties as a result ofconciliation proceedings will have the same status and effect as an arbitral award on agreed terms on the substance of the dispute rendered by an arbitral tribunal; andix) to provide that, for purposes of enforcement of foreign awards, every arbitral award made in a country to which one of the two International Conventions relating to foreign arbitral awards to which India is a party applies, will be treated as a foreign award.” The Supreme Court in the case of ONGC v. Saw Pipes Ltd.,10examined the scope and ambit of jurisdiction of the Court under section 34 of the Act. It was held that if the award is (a) contrary to the substantive provision of law, or (b) the 10
(2003) 5 SCC705
17 | P a g e
provisions of the Act, or (c) against the terms of thecontract, it would be patently illegal which could be interfered u/s 34. Supreme Court further held that phrase “public policy of India” use in Section 34 is required to be given a wider meaning and stated that the concept of public policy connotes some matter which concerns public good and the public interest. The award which is on face of it, patently in violation of statutory provisions cannot be said to be in public interest.
Scheme of the Act: The Act is a composite piece of legislation. It provides for domestic arbitration; international commercial arbitration; enforcement of foreign award and conciliation (the latter being based on the UNCITRAL Conciliation Rules of 1980). The more significant provisions of the Act are to be found in Part I and Part II thereof. Part I contains the provisions for domestic and international commercial arbitration in India. All arbitration conducted in India would be governed by Part I, irrespective of the nationalities of the parties. Part II provides for enforcement of foreign awards. Part I is more comprehensive and contains extensive provisions based on the Model Law. It provides inter alia for arbitrability of disputes; non-intervention by courts; composition of the arbitral tribunal; jurisdiction of arbitral tribunal; conduct of the arbitration proceedings; recourse against arbitral awards and enforcement. Part II on the other hand, is largely restricted to enforcement of foreign awards governed by the New York Convention or the Geneva Convention. Part II is thus, (by its very nature) not a complete code. This led to judicial innovation by the Supreme Court in the case of Bhatia International v. Bulk Trading,11 Indian courts jurisdiction was invoked by a party seeking interim measures of protection. Hence the Court was faced with a situation that there was no propriovigorelegal provision under which it could grant interim measure of protection. Creatively interpreting the Act, the Supreme Court held that the “general provisions” of Part I would apply also to offshore arbitrations, unless the parties expressly or impliedly exclude applicability of the same. Hence by judicial innovation, the Supreme Court extended applicability of the general provisions of Part I to off-shore arbitrations as well.
11
(2002) 4 SCC 105 (‘Bhatia’).
18 | P a g e
It may be stated that this was premised on the assumption that the Indian Court would otherwise have jurisdiction in relation to the matter (in the international sense). This became clear in a subsequent
decision
of
the
Supreme
Court
in
ShreejeeTraco
(I)
Pvt.
Ltd.
v.
PaperlineInternational Inc.12the Court’s assistance was sought for appointing an arbitrator in an offshore arbitration. The power of appointment by court exists under Section 11 of Part I of the Act. The Court declined to exercise jurisdiction. It found that the arbitration was to be conducted in New York and that the law governing the arbitration proceedings would be the law of seat of the arbitration. Hence, the extension of Part I provisions to foreign arbitrations sanctified by Bhatia.13
ARBITRATION Arbitration, a form of alternative dispute resolution (ADR), is a technique for the resolution of disputes outside the courts. The parties to a dispute refer it to arbitration by one or more persons (the "arbitrators", "arbiters" or "arbitral tribunal"), and agree to be bound by the arbitration decision (the "award"). A third party reviews the evidence in the case and imposes a decision that is legally binding on both sides and enforceable in the courts. Arbitration is a process of judging and settling of disputes by a person not acting as a an judge appointed by law, but by a person or a group of person jointly accepted by the parties in disputes as having the authority to examine the dispute and give judgments. The arbitrator appointed may have a legal background, but this is not an essential requirement for acting as an arbitrator. Such arbitration judgement, generally called awards, are limited to decision involving monetary matters and meeting of contractual, commercial and social obligations. Arbitrators are not expected to give punishments such as jail sentence. The process of arbitration is employed to facilitate settlement of disputes without incurring the cost and time of formal legal process. Arbitration is now used by individuals, groups, companies and nations.
12
(2003) 9 SCC 79. https://ipba.org, on 16/11/14 at 05:32pm.
13
19 | P a g e
Arbitration is adjudicatory, as opposed to advisory, because of the fact that the arbitrator (usually a retired judge or attorney) renders a decision at the end of an arbitration hearing, and that decision is final and binding, subject only to a very limited court review. Arbitration is sometimes referred to as "non-binding" if the parties agree to make it so, but that is really a misnomer. Think of arbitration as a binding, adjudicator y process. Other forms of ADR include mediation (a form of settlement negotiation facilitated by a neutral third party) and non-binding resolution by experts. Arbitration is often used for the resolution of commercial disputes, particularly in the context of international commercial transactions. In certain countries such as the United States, arbitration is also frequently employed in consumer and employment matters, where arbitration may be mandated by the terms of employment or commercial contracts. Arbitration can be either voluntary or mandatory (although mandatory arbitration can only come from a statute or from a contract that is voluntarily entered into, where the parties agree to hold all existing or future disputes to arbitration, without necessarily knowing, specifically, what disputes will ever occur) and can be either binding or non-binding. Non-binding arbitration is similar to mediation in that a decision can not be imposed on the parties. However, the principal distinction is that whereas a mediator will try to help the parties find a middle ground on which to compromise, the (non-binding) arbitrator remains totally removed from the settlement process and will only give a determination of liability and, if appropriate, an indication of the quantum of damages payable. By one definition arbitration is binding and so non-binding arbitration is technically not arbitration.14
ADVANTAGES AND DISADVANTAGES Parties often seek to resolve disputes through arbitration because of a number of perceived potential advantages over judicial proceedings:
In contrast to litigation, where one cannot "choose the judge",arbitration allows the parties to choose their own tribunal. This is especially useful when the subject matter of
14
en.wikipedia.org, on 2/10/14 at 09:53pm.
20 | P a g e
the dispute is highly technical: arbitrators with an appropriate degree of expertise (for example, quantity surveying expertise, in the case of a construction dispute, or expertise in commercial property law, in the case of a real estate dispute) can be chosen.
Arbitration is often faster than litigation in court
Arbitration can be cheaper and more flexible for businessesArbitral proceedings and an arbitral award are generally non-public, and can be made confidential.
In arbitral
proceedings the language of arbitration may be chosen, whereas in judicial proceedings the official language of the country of the competent court will be automatically applied
Because of the provisions of the New York Convention 1958, arbitration awards are generally easier to enforce in other nations than court judgments
In most legal systems there are very limited avenues for appeal of an arbitral award, which is sometimes an advantage because it limits the duration of the dispute and any associated liability
Some of the disadvantages include:
Arbitration may be subject to pressures from powerful law firms representing the stronger and wealthier party.
Arbitration agreements are sometimes contained in ancillary agreements, or in small print in other agreements, and consumers and employees often do not know in advance that they have agreed to mandatory binding pre-dispute arbitration by purchasing a product or taking a job
If the arbitration is mandatory and binding, the parties waive their rights to access the courts and to have a judge or jury decide the case
In some arbitration agreements, the parties are required to pay for the arbitrators, which adds an additional layer of legal cost that can be prohibitive, especially in small consumer disputes. In some arbitration agreements and systems, the recovery of attorneys' fees is unavailable, making it difficult or impossible for consumers or employees to get legal representation; however most arbitration codes and agreements provide for the same relief that could be granted in court
If the arbitrator or the arbitration forum depends on the corporation for repeat business, there may be an inherent incentive to rule against the consumer or employee
21 | P a g e
There are very limited avenues for appeal, which means that an erroneous decision cannot be easily overturned
Although usually thought to be speedier, when there are multiple arbitrators on the panel, juggling their schedules for hearing dates in long cases can lead to delays
In some legal systems, arbitral awards have fewer enforcement options than judgments; although in the United States arbitration awards are enforced in the same manner as court judgments and have the same effect
Arbitrators are generally unable to enforce interlocutory measures against a part y, making it easier for a party to take steps to avoid enforcement of member or a small group of members in arbitration due to increasing legal fees, without explaining to the members the adverse consequences of an unfavorable ruling
Rule of applicable law is not necessarily binding on the arbitrators, although they cannot disregard the law. Discovery may be more limited in arbitration or entirely nonex istent.,
The potential to generate billings by attorneys may be less than pursuing the dispute through trial
Unlike court judgments, arbitration awards themselves are not directly enforceable. A party seeking to enforce an arbitration award must resort to judicial remedies, called an action to "confirm" an award
Although grounds for attacking an arbitration award in court are limited, efforts to confirm the award can be fiercely fought, thus necessitating huge legal expenses that negate the perceived economic incentive to arbitrate the dispute in the first place.
KIND OF ARBITRATION (1) Ad-hoc Arbitration: When a dispute or difference arises between the parties in courseof commercial transaction and the same could not be settled friendly by negotiation inform to conciliation or mediation, in such case ad-hoc arbitration may be sought by theconflicting parties. This arbitration is agreed to get justice for the balance of the un-settled part of the dispute only. (2) Institutional Arbitration: This kind of arbitration there is prior agreement between the parties that in case of future differences or disputes arising between the parties duringtheir commercial
22 | P a g e
transactions, such differences or disputes will be settled by arbitrationas per clause provide in the agreement. (3) Statutory Arbitration: It is mandatory arbitration which is imposed on the parties byoperation of law. In such a case the parties have no option as such but to abide by the lawof land. It is apparent that statutory arbitration differs from the above 2 types of arbitration because (i) The consent of parties is not necessary; (ii) It is compulsoryArbitration; (iii) It is binding on the Parties as the law of land; For Example: Section 31of the North Eastern Hill University Acts, 1973, Section 24,31 and 32 of the Defence of India Act, 1971 and Section 43(c) of The Indian Trusts Act, 1882 are the statutory provision, which deal with statutory arbitration. Therefore, all disputes referred to "Disputes-Settlement-Trust", shall be decided through "Arbitral Tribunals" under Statutory Arbitration. (4) Domestic or International Arbitration: Arbitration which occurs in India and have allthe parties within India is termed as Domestic Arbitration. An Arbitration in which any party belongs to other than India and the dispute is to be settled in India is termed asInternational Arbitration. (5) Foreign Arbitration: When arbitration proceedings are conducted in a place outsideIndia and the Award is required to be enforced in India, it is termed as ForeignArbitration.
ARBITRATION AGREEMENT The foundation of arbitration is the arbitration agreement between the parties to submit to arbitration all disputes which have arisen or which may arise between them. Thus, the provision of arbitration can be made at the time of entering the contract itself. It is also possible to refer a dispute to arbitration after the dispute has arisen. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. The agreement must be in writing and must be signed by both parties. “Arbitration agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.15
15
Section 7(1), the Arbitration and Conciliation Act1996.
23 | P a g e
An arbitration agreement is a written contract in which two or more parties agree to settle a dispute outside of court. The arbitration agreement is ordinarily a clause in a larger contract. The dispute may be about the performance of a specific contract, a claim of unfair or illegal treatment in the workplace, a faulty product, among other various issues. People are free to agree to use arbitration concerning anything that they could otherwise resolve through legal proceedings. Arbitration agreements are generally divided into two types:
Agreements which provide that, if a dispute should arise, it will be resolved by arbitration. These will generally be normal contracts, but they contain an arbitration clause
Agreements which are signed after a dispute has arisen, agreeing that the dispute should be resolved by arbitration (sometimes called a "submission agreement")
The former is the far more prevalent type of arbitration agreement. Sometimes, legal significance attaches to the type of arbitration agreement. For example, in certain Commonwealth countries, it is possible to provide that each party should bear their own costs in a conventional arbitration clause, but not in a submission agreement. In Oil and Natural Gas Corporation vs. Saw Pipes,16 the
Court
added
an
additional
ground
of
“patent
illegality”,
thereby
considerablywidening the scope of judicial review on the merits of the decision. In Saw Pipes case the court accepted that the scheme of Section 34 which dealt with setting aside the domestic arbitral award and Section 48 which dealt with enforcement of foreign award were not identical. The court also accepted that in foreign arbitration, the award would be subject to being set aside or suspended by the competent authority under the relevant law of that country whereas in domestic arbitration MN the only recourse is to Section 34. The Supreme Court observed: “ But in a case where the judgment and decree is challenged before the Appellate Courtor the Court exercising revisional jurisdiction, the jurisdiction of such Court would be wider. Therefore, in a case where the validity of award is challenged there is no necessity of giving a narrower meaning to the term 'public policy of India'. On the contrary, wider meaning is required to be given so that the 'patently illegal award' passed by the arbitral tribunal could be set aside. 16
(2003) 5 SCC 705
24 | P a g e
……….. Similarly, if the award is patently against the statutory provisions of substantivelaw which is in force in India or is passed without giving an opportunity of hearing to theparties as provided under Section 24 or without giving any reason in a case where parties have not agreed that no reasons are to be recorded, it would be against thestatutory provisions. In all such cases, the award is required to be set aside on theground of 'patent illegality'.”
ARBITRAL AWARD An arbitration award (or arbitral award) is a determination on the merits by an arbitration tribunal in an arbitration, and is analogous to a judgment in a court of law. It is referred to as an 'award' even where all of the claimant's claims fail (and thus no money needs to be paid by either party), or the award is of a non-monetary nature. One of the most common forms of dispute resolution is arbitration. Through the arbitration process, an arbitrator listens to the disputes between two or more parties. Depending on the specific kind of arbitration, there may or may not be lawyers involved. There may be expert witnesses and even a presentation of physical evidence in many arbitration disputes. After hearing each party present their side of the dispute, the arbitrator then renders her decision, called an arbitration award. A contract, written and signed long before a dispute arose, will usually dictate the specifics of the arbitration proceeding. For example, it will state whether lawyers can be present and, most importantly, whether the final decision of the arbitrator will be binding. In most cases, the award will hold firm, just like the decision of a courtroom judge. In the alternative, if the contract specifies that the decision is not binding, then the parties do not have to comply with the arbitrator’s decision. In most cases, the arbitrator has about 30 days to reach her decision on the issues in dispute. As mentioned before, the decision is called the arbitration award. The award can be financial or it
25 | P a g e
can be a matter of halting some form of labor practice, adding some form of employment incentive, or another form of non-financial award.17 An arbitral award or arbitration award refers to a decision made by an arbitration tribunal in an arbitration proceeding. An arbitral award is analogous to a judgment in a court of law. An arbitral award can be of a non-monetary nature where the entire claimant's claims fail and no money needs to be paid by either party. An arbitration award can be made for payment of a sum of money, declaration upon any matter to be determined in the arbitration proceedings, injunctive relief, specific performance of a contract and for rectification, setting aside or cancellation of a d eed or other document. 18
POWERS AND DUTIES OF ARBITRATORS (1) Arbitrators shall have the duty to appoint a time and place of hearing at a convenient location in the state of Montana and provide reasonable notice to the manufacturer and consumer of such time and place, to conduct fair and impartial hearings, to take all necessary actions to avoid delay in the disposition of proceedings, to maintain order and to render a final decision no later than 60 days after the department has accepted a request for arbitration. The decision must comply with Title 61, chapter 4, part 5 and Title 27, chapter 5, MCA. The arbitrators shall have all powers necessary to meet these ends including, but not limited to, the following: (a)to consider any and all evidence offered by the parties which the panel deems necessary to an understanding and determination of the dispute; (b)to request the department to issue subpoenas to compel the attendance of witnesses and the production of documents, papers and records relevant to the dispute; (c) to request the department to forward a copy of all written testimony and documentary evidence to an independent technical expert certified by the national institute of automotive
17
http://jamsadr.com, on 16/11/14 at 05:pm. definitions.uslegal.com, on 16/11/2014 at 05:56pm.
18
26 | P a g e
excellence, to consult with the technical expert as necessary and to request the technical expert to sit as a nonvoting member of the arbitration panel during presentation of oral testimony; (d)to regulate the course of the hearings and the conduct of the parties and their counsel therein; (e)to hold conferences for simplification of the issues or for other purposes; (f)to schedule vehicle inspections, if deemed necessary, at such facility as the arbitrators determine; (g)to continue the arbitration hearing to a subsequent date if a party requests a continuance before hearing, or at the initial hearing or if the panel determines that additional information is necessary in order for the panel to render a fair and accurate decision. A continuance shall be held within five days of the initial hearing; (h)to reopen the hearing at will or upon motion of either party for good cause shown at any time before the decision is rendered; and (i)to permit a deposition to be taken of a witness who cannot be subpoenaed or is unable to attend the hearing upon the application of a party and for use as evidence, in the manner and upon the terms designated by the arbitrators. (2) Arbitrators shall maintain their impartiality throughout the course of the arbitration proceedings. (3) An arbitrator shall not be assigned to an arbitration panel if he or she has any relationship to either party to the dispute to be decided by that panel. (4) There shall be no direct communication between the parties and the arbitrators other than at the oral hearing. Any other oral or written communications between the parties and the arbitrators shall be channeled through the department for transmittal to the appropriate individual(s). Any such prohibited contact shall be reported by the arbitrators to the department and noted in the case record.19 In State of Orissa v. B.N. Agarwalla, 20 the supreme courtobserved 19
www.mtrule.org, 16/11/14 at 06:02pm.
27 | P a g e
that a person deprived of the use of money to which he is legitimately entitlked has a right to be compensated for the deprvation, call it by any name. it may be called interest, compensation or damages. This basic consideration is as valid for the period the disputes is pending before the arbitrator as it is for the period prior to the arbitrator entering upon the reference. This is the principle of section 34, Civil Procedure Code and there is no reason or principle to hold otherwise in the case of arbitrator.21
CONCILIATION Conciliation is an alternative out-of-court dispute resolution instrument. Conciliation is an alternative dispute resolution (ADR) process whereby the parties to a dispute use a conciliator, who meets with the parties separately in an attempt to resolve their differences. They do this by lowering tensions, improving communications, interpreting issues, providing technical assistance, exploring potential solutions and bringing about a negotiated settlement. Like mediation, conciliation is a voluntary, flexible, confidential, and interest based process. The parties seek to reach an amicable dispute settlement with the assistance o f the conciliator, who acts as a neutral third party. The main difference between conciliation and mediation proceedings is that, at some point during the conciliation, the conciliator will be asked by the parties to provide them with a non binding settlement proposal. A mediator, by contrast, will in most cases and as a matter of principle, refrain from making such a proposal. Conciliation is a voluntary proceeding, where the parties involved are free to agree and attempt to resolve their dispute by conciliation. The process is flexible, allowing parties to define the time, structure and content of the conciliation proceedings. These proceedings are rarely public. They are interest-based, as the conciliator will when proposing a settlement, not only take into account the parties' legal positions, but also their; commercial, financial and / or personal interests.
20
AIR 1997 SC 925. Sukumar Ray, Alternative Dispute Resolution, Eastern Law House, ed.2012, at p. 46.
21
28 | P a g e
Like in mediation proceedings, the ultimate decision to agree on the settlement remains with the parties.Conciliation differs from arbitration in that the conciliation process, in and of itself, has no legal standing, and the conciliator usually has no authority to seek evidence or call witnesses, usually writes no decision, and makes no award. Conciliation differs from mediation in that the main goal is to conciliate, most of the time by seeking concessions. In mediation, the mediator tries to guide the discussion in a way that optimizes parties' needs, takes feelings into account and reframes representations. In conciliation the parties seldom, if ever, actually face each other across the table in the presence of the conciliator.
WHAT IS CONCILIATION The terms conciliation and mediation are interchangeable in the Indian context. Conciliation is a voluntary process whereby the conciliator, a trained and qualified neutral, facilitates negotiations between disputing parties and assists them in understanding their conflicts at issue and their interests in order to arrive at a mutually acceptable agreement. Conciliation involves discussions among the parties and the conciliator with an aim to explore sustainable an d equitable resolutions by targeting the existent issues involved in the dispute and creating options for a settlement that are acceptable to all parties. The conciliator does not decide for the parties, but strives to support them in generating options in order to find a solution that is compatible to both parties. The process is risk free and not binding on the parties till they arrive at and sign the agreement. Once a solution is reached between the disputing parties before a conciliator, the agreement had the effect of an arbitration award and is legally tenable in any court in the country. Most commercial disputes, in which it is not essential that there should be a binding and enforceable decision, are amenable to conciliation. Conciliation may be particularly suitable where the parties in dispute wish to safeguard and maintain their commercial relationships. The following types of disputes are usually conducive for mediation: commercial, financial, family, real estate, employment, intellectual property, insolvency, insurance, service, partnerships, environmental and product liability. Apart from commercial transactions, the
29 | P a g e
mechanism of Conciliation is also adopted for settling various types of disputes such as labour disputes, service matters, antitrust matters, consumer protection, taxation, excise etc.22
HISTORICAL CONCILIATION Historical conciliation is an applied conflict resolution approach that utilizes historical narratives to positively transform relations between societies in conflicts. Historical conciliation can utilize many
different
methodologies,
including
mediation,
sustained
dialogue, apologies,
acknowledgement, support of public commemoration activities, and public diplomacy. Historical conciliation is not an excavation of objective facts. The point of facilitating historical questions is not to discover all the facts in regard to who was right or wrong. Rather, the objective is to discover the complexity, ambiguity, and emotions surrounding both dominant and non-dominant cultural and individual narratives of history. It is also not a rewriting of history. The goal is not to create a combined narrative that everyone agrees upon. Instead, the aim is to create room for critical thinking and more inclusive understanding of the past and conceptions of “the other.”
ADVANTAGES OF CONCILIATION
Conciliation offers a more flexible alternative to arbitration as well as litigation, for resolution of disputes in the widest range of contractual relationships, as it is an entirely voluntary process.
In conciliation proceedings, the parties are free to withdraw from conciliation, without prejudice to their legal position, at any stage of the proceedings.
The matter is settled at the threshold of the dispute, avoiding protracted litigation efforts at the courts. As conciliation can be scheduled at an early stage in the dispute, a settlement can be reached much more quickly than in litigation.
22
Parties are directly engaged in negotiating a settlement.
www.dispute-resolution-hamburg.com, on 17/11/14 at 03:10pm.
30 | P a g e
The conciliator, as a neutral third party, can view the dispute objectively and can assist the parties in exploring alternatives which they might not h ave considered on their own.
Parties generally save money by cutting back on unproductive costs such as traveling to court, legal costs of retaining counsels and litigation and staff time.
Conciliators may be carefully chosen by the parties for their knowledge and experience.
Conciliation enhances the likelihood of the parties continuing their amicable business relationship during and after the proceedings.
Creative solutions to special needs of the parties c an become a part of the settlement.
Confidentiality is maintained throughout the proceedings with respect to information exchanged, the offers and counter offers of solutions made and the settlement arrived at. Also, information disclosed at a conciliation meeting may not be divulged as evidence in any arbitral, judicial or other proceeding
The conciliation prize is a reward gained by the conciliator on a successfully resolved dispute. 23
CASE STUDY: JagdishChandervs Ramesh Chander&Ors on 26 April, 2007 CASE NO.: Appeal (civil) 4467 of 2002
PETITIONER: JagdishChander v.
RESPONDENT: Ramesh Chander&Ors
DATE OF JUDGMENT: 26/04/2007 BENCH: H K Sema& R V Raveendran
FACT OF THIS CASE: 23
www.ficci-arbitration.com, on 17/11/14 at 03:07pm.
31 | P a g e
This appeal by special leave is against the order dated 10.7.2001 passed by the Designate of Chief Justice of the High Court of Delhi, allowing Arbitration Application No.284 of 1997 filed under section 11 (5) and (6) of the Arbitration and Conciliation Act, 1996 ('the Act' for short). The appellant and first respondent entered into a Partnership as per deed dated 9.1.1964 to carry on the business under the name and style of 'Empire Art Industries'. Clause 16 of the said Deed relates to settlement of disputes. The said clause is extracted below : "16) If during the continuance of the partnership or at any time afterwards any dispute touching the partnership arises between the partners, the same shall be mutually decided by the partners or shall be referred for arbitration if the parties so determine." The first respondent filed the application for appointment of an Arbitrator to decide the disputes in regard to dissolution of the said partnership firm and for rendition of accounts. In the said application, the first Respondent arrayed the appellant herein as the first respondent. Respondents 2 to 6 herein were also impleaded as respondents alleging that the two partners entered into an arrangement/agreement with Respondents 2 to 6 in the year 1974 under which Respondents 2 to 6 were to supervise the business of the firm and pay to each of the two partners, a fixed sum, which was increased periodically. According to first Respondent, the arrangement worked satisfactorily for several years, but for some years, the entire amount was being received by the appellant and he was not paying the first Respondent's half share. The appellant resisted the petition, inter alia, on the ground that the partnership had come to an end in the year 1979 and the accounts were all settled. He also contended that the partnership deed did not contain any agreement to refer disputes to arbitration. It was specifically contended that clause 16 of the Deed of Partnership was not an arbitration agreement. The appellant has challenged the said order appointing the Arbitrator. It is submitted that the power under section 11 of the Act, to appoint an Arbitrator, can be exercised only if there is a valid arbitration agreement between the parties, and that as there is no arbitration agreement between the parties, the Arbitrator could not have been appointed. ISSUES:
32 | P a g e
whether clause 16 of the Deed of Partnership dated 9.1.1964 is an 'arbitration agreement' within the meaning of section 7 of the Act. RATIO:
The existence of an arbitration agreement as defined under section 7 of the Act is a condition precedent for exercise of power to appoint an Arbitrator/Arbitral Tribunal, under section 11 of the Act by the Chief Justice or his Designate. It is not permissible to appoint an Arbitrator to adjudicate the disputes between the parties, in the absence of an arbitration agreement or mutual consent. The designate of the Chief Justice of Delhi could not have appointed the Arbitrator in the absence of an arbitration agreement. JUDGEMENT:
The appeal is therefore allowed, the order appointing an Arbitrator is set aside and the application by the first respondent under section 11 of the Act is rejected. Parties to bear their respective costs.
CONCLUSION India has in place a modern, an efficient Arbitration Act. There have been some decisions which are not in tune with the letter or spirit of the Act. Hopefully, these would be addressed by the judiciary in the near future and continuing popularity of arbitrations would be served by a truly efficient ADR mechanism. Arbitration is a proceeding in which a dispute is resolved by an impartial adjudicator whose decision the parties to the dispute have agreed, or legislation has decreed, will be final and binding. Arbitration is adjudicatory, as opposed to advisory, because of the fact that the arbitrator (usually a retired judge or attorney) renders a decision at the end of an arbitration hearing, and that decision is final and binding, subject only to a very limited court review. Arbitration is sometimes referred to as "non-binding" if the parties agree to make it so, but that is really a misnomer. Think of arbitration as a binding, adjudicatory process. Conciliation differs from arbitration in that the conciliation process, in and of itself, has no legal standing, and the
33 | P a g e
conciliator usually has no authority to seek ev idence or call witnesses, usually writes no decision, and makes no award.Conciliation is a voluntary proceeding, where the parties involved are free to agree and attempt to resolve their dispute by conciliation. The process is flexible, allowing parties to define the time, structure and content of the conciliation proceedings. These proceedings are rarely public. They are interest-based, as the conciliator will when proposing a settlement, not only take into account the parties' legal positions, but also their; commercial, financial and / or personal interests.
34 | P a g e
Chapter:-IV
LOK ADALAT AND ITS IMPORTANCE: A PRATICAL CASE STUDY INTRODUCTION Lok Adalat is one of the components of ADR systems. It is an Indian contribution to the world jurisprudence of ADR. Lok Adalat (people’s courts), established by the government settles dispute by the principles of justice, equity and fair play, which are the guiding factors for decisions based on compromises to be arrived at before such Adalats. Lok Adalat, as the name suggest means People’s Court. ‘Lok’ stands for People and the word ‘Adalat’ means Court. Lok Adalat is a special kind of people’s court in which disputes solved by direct talks between the litigants. The members of legal profession, college students, social organisations, charitable and philanthropic institutions and other similar organisations may be associated
with
Lok
Adalat.
Salient
features
of
this
dispute
resolutions
are
participation,accomadation,fairness,expectations,voluntariness,neighbourliness,transparency and lack of animosity.Lok Adalat after studying the case, try to solve the simple differences which otherwise are likely to leave for reaching consequences through mutual understanding and compromise. ADR has been an integral part of our historical past. Like the zero, the concept of Lok Adalat (Peoples' Court) is an innovative Indian contribution to the world jurisprudence. The institution of Lok Adalat in India, as the very name suggests, means, People's Court. "Lok" stands for "people" and the vernacular meaning of the term "Adalat" is the court. India has a long tradition and history of such methods being practiced in the society at grass roots level. These are called panchayat and in the legal terminology, these are called arbitration. These are widely used in India for resolution of disputes ?both commercial and non-commercial. Other alternative methods being used are Lok Adalat (People's Court), where justice is dispensed summarily without too much emphasis on legal technicalities. It has been proved to be a very effective alternative to litigation.
35 | P a g e
The ancient concept of settlement of dispute through mediation, negotiation or through arbitral process known as "Peoples' Court verdict" or decision of "Nyaya-Panch" is conceptualized and institutionalized in the philosophy of Lok Adalat. Some people equate Lok Adalat to conciliation or mediation, some treat it with negotiations and arbitration. Those who find it different from all these, call it "Peoples' Court". It involves people who are directly or indirectly affected by dispute resolution. The concept of Lok Adalats was pushed back into oblivion in last few centuries before independence and particularly during the British regime. Now, this concept has, once again, been rejuvenated. It has, once again, become very popular and familiar amongst litigants. This is the system which has deep roots in Indian legal history and its close allegiance to the culture and perception of justice in Indian ethos. Experience has shown that it is one of the very efficient and important ADRs and most suited to the Indian environment, culture and societal interests.24 The camps of Lok Adalats were initially started in the state of Gujarat in 1982. The first Lok Adalat was organized on 14th March 1982 at Junagarh. Maharashtra commenced the Lok Nyayalaya in 1984. The movement has now subsequently spread to the entire country. The reason to create such camps was only the pending cases and to give relief to the litigants who were in a queue to get justice. Lok Adalat is the only institutionalized mechanism of dispute resolution in which the parties do not have to bear any expenses. There is no court fee in Lok Adalat. If the case is already filed in the regular court, the fee paid is refunded in the manner provided under the Court Fees Act if the dispute is settled at the Lok Adalat. This kind of refund is an incentive given to parties to negotiate for settlement. Lok Adalat is a boon to the litigant public,
where
they
can
get
their
disputes
settled
fast
and
free
of
cost.
MEANING OF LOK ADALAT Lok Adalat (people’s courts), established by the government settles dispute through conciliation and compromise. The First Lok Adalat was held in Chennai in 1986. Lok Adalat accepts the cases which could be settled by conciliation and compromise, and pending in the regular courts 24
www.legalserviceindia.com, on 16/11/14 at 06:20pm.
36 | P a g e
within their jurisdiction. The Lok Adalat is presided over by a sitting or retired judicial officer as the chairman, with two other members, usually a lawyer and a social worker. There is no court fee. If the case is already filed in the regular court, the fee paid will be refunded if the dispute is settled at the Lok Adalat. The procedural laws, and the Evidence Act are not strictly followed while assessing the merits of the claim by the Lok Adalat. Main condition of the Lok Adalat is that both parties in dispute should agree for settlement. The decision of the Lok Adalat is binding on the parties to the dispute and its order is capable of execution through legal process. No appeal lies against the order of the Lok Adalat. Lok Adalat is very effective in settlement of money claims. Disputes like partition suits, damages and matrimonial cases can also be easily settled before Lok Adalat as the scope for compromise through an approach of give and take is high in these cases. Lok Adalat is a boon to the litigant public, where they can get their disputes settled fast and free of cost. The expression ‘Lok Adalat’ refers to a summary procedure for disposal of cases pending in various courts through the process of arbitration and settlement between the parties at the instance of the institution called Lok Adalat. Thus the expression Lok Adalat can be used in the following two senses: 1. The process by which the cases pending in various courts are settled with the consent of the parties in a summary way. 2. The institution which take initiative for arriving at a settlement of the case. By virtue of Sec.19 of the Legal Services Authorities Act, 1987, every state authority, district authority, Supreme Court Legal Services Committee or High Court Legal Services Committee or the Thaluk Legal Service Committee may organize Lok Adalats for settlement of cases pending in courts. The Lok Adalat is presided over by a sitting or retired judicial officer as a chairman, with two other members, usually a lawyer and a social worker. There is no Court Fee. If the case is already filed in the regular court the fee paid will be refunded if the dispute is settled at the Lok Adalat. The procedural laws, and the Evidence Act are not strictly followed while assessing the merits of the claim by the Lok Adalat. Main condition of the Lok Adalat is that both parties in dispute should agree for settlement. The decision of Lok Adalat is binding on the parties to the
37 | P a g e
disputes and its order is capable of execution through legal process. No appeal lies against the order of the Lok Adalat.
EVOLUTION The evolution of this movement was a part of the strategy to relieve heavy burden on the Courts with pending cases and to give relief to the litigants who were in a queue to get justice. The first Lok Adalat was held on March 14, 1982 at Junagarh in Gujarat the land of Mahatma Gandhi. Lok Adalats have been very successful in settlement of motor accident claim cases, matrimonial/family disputes, labourdisputes, and disputes relating to public services such as telephone, electricity, bank recovery cases and so on. Ancient concept of settlement of dispute through mediation, negotiation or through arbitral process
known
as
‘People’s
court
verdict’
or
decision
of
‘Nyaya-Panch’
is
conceptualisedinstutionalised in the philosophy of Lok Adalat. The concept of Lok Adalat was pushed back into oblivion in last few centuries before independence and particularly during British
regime.
Now this concept has been rejuvenated and became more popular amongst litigants. Camps of Lok Adalat were initially started in Gujarat in March 1982, and now it has been extended throughout the country. The evolution of this movement was a part of the strategy to relieve heavy burden on the Courts with pending cases and to give relief to the litigants who were in the queue to get justice. And the Legal Services Authorities Act 1987 gave a statutory status to Lok Adalats pursuant to the Constitutional mandate in Art. 39-A of the Constitution of India, contains various provisions for settlements of dispute through Lok Adalat.25
ORGANISATION OF LOK ADALAT (1) Every State Authority or District Authority or the Supreme Court Legal Services Committee or every High Court Legal Services Committee or, as the case may be, Taluk Legal Services
25
monthlyarticle.blogspot.in, on 16/11/14 at 06:29pm.
38 | P a g e
Committee may organise Lok Adalats at such intervals and places and for exercising such jurisdiction and for such areas as it thinks fit. (2) Every Lok Adalat organised for an area shall consist of such number of – (a) serving or retired judicial officers; and(b) other persons,of the area as may be specified by the State Authority or the District Authority or the Supreme Court Legal Services Committee or the High Court Legal Services Committee, or as the case may be, the Taluk Legal Services Committee, organising such Lok Adalats. (3) The experience and qualifications of other persons referred to in clause (b) of sub-section (2) for Lok Adalats organised by the Supreme Court Legal Services Committee shall be such as may be prescribed by the Central Government in consultation with the Chief Justice of India. (4) The experience and qualifications of other persons referred to in clause (b) of sub-section (2) for Lok Adalats other than referred to in sub-section (3) shall be such as may be prescribed by the State Government in consultation with the Chief Justice of the High Court. (5) A Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of -(i) any case pending before; or (ii) any matter which is falling within the jurisdiction of, and is not brought before, any court for which the Lok Adalat is organised: Provided that the Lok Adalat shall have no jurisdiction in respect of any case or matter relating to an offence not compoundable under any law.26
JURISDICTION OF LOK ADALAT The Lok Adalat has no jurisdiction in respect of any case or matter regarding an offence not compoundable under any law. It is impermissible for the Lok Adalat to enter into any determination or to arrive at a compromise settlement in relation to a case or matter regarding an offence which is a non compoundable one i.e. offence punishable.27 The Lok Adalat is not empowered to issue direction upon an investigating officer to do a particular ting in a particular
26
Section 19, the Legal Service Authorities Act 1987. Section 326, 397, 302, 307, the Indian Penal Code.
27
39 | P a g e
manner to file report on the basis that the complaint was made on a misunderstanding or mistake of fact.28 Lok Adalat have no adjudicatory function and they are not meant for pressuring the people and bringimg pressure on the public officials. The Lok Adalat has no jurisdiction to award less than contractual rate of interest affecting the interest of the Bank as well as the interest of the society by adopting the approach of “flexible and pragmatism” keeping their eyes revetted on the disposal figures of the cases and on the encomiums to be received in print media and from interest group.29 Lok Adalat has no adjudicatory or judicial function. Its function purely related to conciliation.30
COGNIZANCE OF CASES BY LOK ADALAT A Lok Adalat may take cognizance of cases, as per Section 20 of the Legal Services Authority Act where: (I) (a) the parties thereof agree; or (b) one of the parties thereof makes an application to the court for referring the case to the Lok Adalat for settlement and if such court is prima facie satisfied that there are chances of such settlement; or (II) the court is satisfied that the matter is an appropriate one to be taken cognizance of by the Lok Adalat, the court shall refer the case to the Lok Adalat : Provided that no case shall be referred to the Lok Adalat by such court except after giving a reasonable opportunity of being heard to the parties.31
WHY LOK ADALAT? The Constitution of India is the fundamental law of the land. Part IV of the Constitution deals with Directive Principles of State Policy. By virtue of Art.39-A the State is under a positive duty to secure that the operation of the legal system promotes justice on the basis of equal opportunity. The State shall also provide free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. 28
State of Kerala v. Eruakulam District Legal Sservice, AIR 2008 Ker 70. Union Bank of India, Bhavnagar v. M/s. Narendra Plastics, Bhavnagar, AIR 1992 Guj 67. 30 Sukumar Ray, Alternative Dispute Resolution, Eastern Law House, ed.2012, at p. 90. 31 Section 20, Legal Services Authorities Act 1987. 29
40 | P a g e
By virtue of Article: 21, “no person shall be deprived of his life or personal liberty except according to procedure established by law”. In HussainnaraKhatoon v. Home Secratery, State of Bihar,32 , the Supreme Court held that “right to speedy trial” is a fundamental right guaranteed under Art: 21 of the Constitution. Justice delayed is justice denied. Speedy trial was held to be the essence of criminal justice. In Suk Das v. Union Territory of Arunachal pradesh33, the Supreme Court held that failure to provide free legal aid to an accused at the cost of the State unless refused by the accused would vitiate the trial. He need not apply for the same. Free legal aid is at the State cost is a fundamental right of an accused person under Art.21 of the Constitution. A combined reading of Art.21 as interpreted by the Supreme Court of India and Art.39-A of the Constitution establish beyond doubt that speedy trial, free legal aid and equal opportunities for securing justice are fundamental rights of citizen of India and a Constitutional mandate which state has to follow in governance of this country. In order to ensure these rights more effectively, the Parliament enacted the Legal Services Authorities Act, 1987 to organise Lok Adalat to secure that the operation of the legal system promotes justice on a basis of equal opportunity.
COMPOSITION The secretary of the high court legal services committee organising the Lok Adalat shall constitute benches of the Lok Adalat. Each bench shall comprise of two or three of the following:1. a sitting or retired judge of the high court. 2. a serving or retired judicial officer. 3. a member of the legal profession. 4. a social worker. The secretary of the district authority organising the Lok Adalat shall constitute benches of the Lok Adalat. Each bench shall comprise of two or three of the following:1. a sitting or retired judicial officer. 2. a member of the legal profession. 32
AIR 1979 SC 1360 1986 5 SCC 401
33
41 | P a g e
3. a social worker. The chairman of the taluk legal services committee organising the Lok Adalat shall constitute benches of the Lok Adalat. Each bench shall comprise of two or three of the following:1. a sitting or retired judicial officer. 2. a member of the legal profession. 3. a social worker. Jurisdiction Both civil and criminal cases which are pending before the courts can be brought before the Lok Adalat for settlement and award. However the Lok Adalat shall have no jurisdiction in respect of any case or matter relating to an offence not compoundable under any law.A case pending in a court may be referred to Lok Adalat on an agreement between parties or on an application made by one of the parties to the court for referring the case to Lok Adalat for settlement. So also the court can suomoto refer a pending case to Lok Adalat.
When cases are referred to a Lok Adalat, it shall make sincere efforts to bring about a conciliatory settlement in every case put before it without bringing about any kind of coercion, threat or undue influence, allurement of misrepresentation. Every Lok Adalat shall, while determining any reference before it, act with at most expedition to arrive at a compromise of settlement between the parties and shall be guided by the principles of justice, equity, fair and other legal principles.
PROCEDURE OF LOK ADALAT The procedure followed at a Lok Adalat is very simple and shorn of almost all legal formalism and rituals. The Lok Adalat is presided over by a sitting or retired judicial officer as the chairman, with two other members, usually a lawyer and a social worker. It is revealed by experience that in Lok Adalat it is easier to settle money claims since in most such cases the quantum alone may be in dispute. Thus the motor accident compensation claim cases are brought before the Lok Adalat and a number of cases were disposed of in each Lok Adalat. One important condition is that both parties in dispute should agree for settlement through Lok Adalat and abide by its decision. A Lok Adalat has the jurisdiction to settle, by way of effecting compromise between the parties, any matter which may be pending before any court, as well as matters at pre-litigative stage i.e. disputes which have not yet been formally instituted in any
42 | P a g e
court of law. Such matters may be civil or criminal in nature, but any matter relating to an offence not compoundable under any law cannot be decided by the Lok Adalat even if the parties involved therein agree to settle the same. Lok Adalat can take cognizance of matters involving not only those persons who are entitled to avail free legal services but of all other persons also, be they women, men, or children and even institutions. Anyone, or more of the parties to a dispute can move an application to the court where their matter may be pending, or even at prelitigative stage, for such matter being taken up in the Lok Adalat bench constituted for the purpose shall attempt to resolve the dispute by helping the parties to arrive at an amicable solution and once it is successful in doing so, the award passed by it shall be final which has as much force as a decree of a civil court obtained after due contest. Finality of Lok Adalat award: One issue which raises head often is the finality of the award of the Lok Adalat. During the Lok Adalat, the parties agree to abide by the decision of the judge at the Lok Adalat. However, it is often seen that later, the same order is challenged on several grounds. In one of the recent decisions, the supreme court of India has once again laid to rest all such doubts. In unequivocal terms, the court has held that award of the Lok Adalat is as good as the decree of a court. The award of the Lok Adalat is fictionally deemed to be decrees of court and therefore the courts have all the powers in relation thereto as it has in relation to a decree passed by itself. This includes the powers to extend time in appropriate cases. The award passed by the Lok Adalat is the decision of the court itself though arrived at by the simpler method of conciliation instead of the process of arguments in court. Consent of parties: The most important factor to be considered while deciding the cases at the Lok Adalat is the consent of both the parties. It can not be forced on any party that the matter has to be decided by the Lok Adalat. However, once the parties agree that the matter has to be decided by the Lok Adalat, then any party cannot walk away from the decision of the Lok Adalat. In several instances, the supreme court has held that if there was no consent the award of the Lok Adalat is not executable and also if the parties fail to agree to get the dispute resolved through Lok Adalat, the regular litigation process remains open for all contesting parties. The Supreme Court has also held that compromise implies some element of accommodation
on
each
side;
it
is
not
apt
to
describe
it
as
total
surrender.
A compromise is always bilateral and means mutual adjustment. Settlement is termination of legal proceedings by mutual consent. If no compromise or settlement is or could be arrived at, no order can be passed by the Lok Adalat.
43 | P a g e
POWER OF LOK ADALAT Lok Adalat has the same powers as those vested in a civil court under the code of civil procedure, 1908 while trying a suit in respect of the following matters, namelya) the summoning and enforcing the attendance of any witness and examining him on oath, b) the discovery and production of any document, c) the reception of evidence on affidavits, d) the requisitioning of any public record or document or copy of such record or document from any court or office ande) Such other matters as may be prescribed. Every Lok Adalat shall have the requisite powers to specify its own procedures for the determination of any dispute coming before it. In ShashiPrateek v. CharanSingh Verma,34 the Allahabad High court observed: The remedy to move for recalling the order/award ontained on the basis of playing fraud and misrepresentation upon the petitioner and upon the Lok Adalat, cannot be foreclosed, for simple reason that no court or tribunal can be regarded as powerless to recall its own order if it is convicnced that the order was obtained through fraud or misrepresentation of such a high degree or dimension as would affect the very basis of claim.35
AWARD OF LOK ADALAT The Legal Service Authorities Act does not contemplate nor require an adjucatory judicial determination, but non-adjudicatory determination based on a compromise or settle, arrived at by the parties, with guidance and assistance from Lok Adalat. The “award” of Lok Adalat does not mean any independent verdict or opinion arrived at by any decision-making process. The making of the award is merely an administrative act of incorporating the terms of settlement or compromise agreed by parties in the presence of the Lok Adalat, in the form of an executable order under the signature and seal of the Lok Adalat.36
34
AIR 2009 All 109. Sukumar Ray, Alternative Dispute Resolution, Eastern Law House, ed.2012, at p. 117. 36 Sukumar Ray, Alternative Dispute Resolution, Eastern Law House, ed.2012, at p. 91. 35
44 | P a g e
Where no compromise or settlement is signed by the parties and the order of the Lok Adalat does not refer to any settlement, but directs the respondent to either make payment if it agrees to the order, or approach the High Court for disposal of appeal on merits, if it does not agree, is not award of the Lok Adalat. Where an award is made by the Lok Adalat in terms of a settlement arrived at between the parties, it becomes final and binding on the parties to the settlement and becomes executable like a decree of a civil court. No appeal lies it to any court. If any party wants to challenge the award based on settlement, it can done only by filing a petition under Article 226 and 227 of the constitution. But this can be done on very limited grounds.37 In Dinesh Kumar v. Blbir Singh,38 the court can go into the legality of the order/orders passed by the Lok Adalat or the permanent Lok Adalat if they are against the letter and spirit of the Legal Service Authorities Act 1987.
ADVANTAGES OF LOK ADALAT The benefits that litigants derive through Lok Adalat are many, 1. There is no court fee and even if the case is already filed in the regular court, the fee paid will be refunded if the dispute is settled at the Lok Adalat. 2. There is no strict application of the procedural laws and the Evidence Act while assessing the merits of the claim by the Lok Adalat. The parties to the disputes though represented by their Advocate can interact with the Lok Adalat judge directly and explain their stands in the dispute and the reasons therefore, which is not possible in a regular court of law. 3. Disputes can be brought before the Lok Adalat directly instead of going to a regular court first and then to the Lok Adalat. 4. The decision of Lok Adalat is binding on the parties to the dispute and its order is capable of execution through legal process. No appeal lies against the order of the Lok Adalat whereas in regular courts of law there is always a scope to appeal to the higher forum on the decision of the trial court, which cause delay in the settlement of dispute finally. The reason being that in a regular court, decision is that of the court but in Lok Adalat it is mutual settlement and hence no 37
State of Punjab v. Jalour Singh, AIR 2008 SC 1209. AIR 2008 HP 59.
38
45 | P a g e
case for appeal will arise. In every respect the scheme of Lok Adalat is a boon to the litigant public, where they can get their disputes settled fast and free of cost. 5. Last but not the least, faster and inexpensive remedy with legal status. The scheme also helped the overburdened court to alleviate the burden of arrears of cases and as the award becomes final and binding upon both the parties, no appeal is filed in the Appellate Court and, as such, the burden of the Appellate Court in hierarchy is also reduced. The scheme is not only helpful to the parties but also to the overburdened courts to achieve the constitutional goal of speedy disposal of the cases.
PERMENENT LOK ADALAT During the last few years Lok Adalat has been found to be a successful tool of alternate disputeresolution in India. It is most popular and effective because of its innovative nature and inexpensive style. The system received wide acceptance not only from the litigants, but from the public and legal functionaries in general. In India, during the last few years Lok Adalat has been functioning continuously and permanently in every district centre. In talukcentres also sittings of Lok Adalats have been held successfully. Several thousands of pending cases and disputes which had not reached law courts have been settled through Lok Adalats. The Legal Service Authorities Act, 1987 provides for the conduct of Lok Adalats. Lok Adalats can deal with pending cases which are referred to it for determination. Lok Adalats are organised at regular intervals. The Legal Services Authorities Act has been amended in 2002 with the object of establishing Permanent Lok Adalats. Sec. 22 B of the Act provides for the establishment of the Permanent Lok Adalats. The Central Authority or every State Authority shall, by notification, establish Permanent Lok Adalats. Every Lok Adalat established for an area shall consist of the following persons: 1. A person who is, or has been a District Judge or Additional District Judge or has been held judicial office higher in rank than that of a District Judge. He shall be the Chairman of the Permanent Lok Adalat.
46 | P a g e
2. Two persons having adequate experience in public utility service. They are to be nominated by the Central or State government on the recommendation of the Central or the State authority. The major defect of the mechanism of Lok Adalat is that it cannot take a decision, if one of the parties, is not willing for a settlement, though the case involves an element of settlement. The adamant attitude shown by one among the parties will render the entire process futile. Even if all the members of the Lok Adalat are of the opinion that the case is a fit one for settlement, under the present set-up, they cannot take a decision unless all the parties consent. Any party to a dispute may, before the dispute is brought before any court, make an application to the Permanent Lok Adalat for the settlement of the dispute. The Permanent Lok Adalat shall not have jurisdiction in respect of any matter relating to an offence not compoundable under any law. It shall not have jurisdiction in the matter where the value of the property in dispute which exceeds rupees ten lacks. After an application is made to the Permanent Lok Adalat a party to that application shall not invoke jurisdiction of any court in the same dispute. When an application is made to the Permanent Lok Adalat, it shall direct each party to file written statement stating the facts and nature of dispute. After filing of written statement the Permanent Lok Adalat shall conduct conciliation proceedings. The Permanent Lok Adalat shall assist the parties to reach an amicable settlement of dispute. If a settlement is arrived at, in the conciliation proceedings, the Permanent Lok Adalat shall formulate a settlement agreement and obtain signature on the settlement agreement and pass an award in terms of that agreement. A copy of the award shall furnish to each of the parties to the dispute. If the parties failed to reach an agreement, the Permanent Lok Adalat shall decide the dispute. The award of the Permanent Lok Adalat shall be final and binding on all the parties thereon and on persons claiming under them. Every award shall be deemed to be a decree of a Civil Court. The Permanent Lok Adalat shall transmit any award made by it to a civil court having local jurisdiction to execute the same.
47 | P a g e
LOK ADALAT CASE:-Dinesh Kumar vsBalbir Singh And Ors. on 12 September, 2007 Equivalent citations: AIR 2008 HP 59, 2008 I ShimLC 54
PETITIONER- Dinesh Kumar Vs. RESPONDENT- Balbir Singh AndOrs.
DATE OF JUDGEMENT:- 12/9/2008. Author: R Sharma Bench: R Sharma
FACTS
A challenge has been laid to the order dated 19.4.2003 passed by the Permanent Lok Adalat, Kangra at Dharamshala in MACP No. 10-G/2002. . The brief facts necessary for the adjudication of this petition are that the petitioner was driving his tempo bearing No. HP-20-5587 on 13.11.2001 and was proceeding from Kaloha to Pragpur. Bus bearing registration No. HP-553486 (M/s. Sayal Bus Service) came from Pragpur side and dashed against the tempo resulting in grievous injuries to the petitioner. The accident took place around 10.30 A.M. He was firstly taken to hospital at Dehra (District Kangra) and thereafter underwent treatment in Bharaj Nursing Home, Jallandhar Road, Hoshiarpur. He remained indoor patient in Bharaj Nursing Home with effect from 13.11.2001 to 17.11.2001 and also underwent surgical operation costing Rs. 80,000/-. He filed a petition before the Motor Accident Claims Tribunal-1, Kangra at Dharamshala in the month of January, 2002 claiming the compensation for the grievous injuries received in the accident resulting in fracture of right Tibia and many other injuries. He had claimed in all Rs. 3 lakhs towards compensation. Respondents No. 1 and 2 had filed detailed reply to the claim petition and had admitted that the bus was insured with New India Insurance Company Limited, Branch Office Dev Pal Chowk,
48 | P a g e
Hamirpur i.e. respondent No. 3. The respondent No. 3 had also filed separate reply and in preliminary objection it has denied that the bus bearing No. HP-55-3486 was insured with it. The objection was also taken with regard to the validity of the driving licence of the petitioner besides the objections of invalid certificate of registration. The learned Motor Accident Claims Tribunal issued notices to the respondents on 28.2.2002. The Motor Accident Claims Tribunal, Kangra at Dharamshala has passed the following o rder on 19.2.2003: ISSUE
*Whether any case is referred to a Lok Adalat under Sub-section (1) or where a reference has been made to it under Sub-section (2), the Lok Adalat shall proceed to dispose of the case or matter and arrive at a compromise or settlement between the parties? *Whether Section 20 postulates the cases of which the Lok Adalat can take cognizance? RATIO
This Court is of the view that despite expression used in Sub-section (2) of Section 21 of the Act that no appeal shall lie to any Court against the award and the expression used like original suit, application or execution proceedings as mentioned in Sub-section (4) of Section 22(E) will not include the writ jurisdiction. Thus the contention of Mr. B.M. Chauhan with regard to the maintainability and the adjudication of the writ petition by this Court is untenable and rejected. The Court has also to ensure that the provisions of the Legal Services Authorities Act, 1987 are implemented in letter and spirit. The manner in which the jurisdiction has been exercised by the Permanent Lok Adalat is against the very ver y spirit of the Act. In case P.T. case P.T. Thomas v. Thomas Job , cited by Mr. B.M. Chauhan, Advocate will not apply in the present case since the order passed by the Permanent Lok Adalat is without jurisdiction. JUDGEMENT
The writ petition is allowed. the Permanent Lok Adalat is set aside. The matter is remanded back to the learned Motor Moto r Accident Claims Tribunal, Kangra at Dharamshala with the directions to decide the same on its own merits within a period of three months from the date of receipt of record alongwith copy of this judgment In view of the facts and circumstances of the case and
49 | P a g e
the manner in which the matter has been compromised by the functionary of respondent No. 3company, a costs of Rs. 11,000/- is imposed upon the Divisional Manager of the New India Assurance Company Limited on whose statement the matter was compromised. The respondent No. 3 will ensure that the cost is recovered from the Divisional Manager. To avoid further delay the parties are directed to appear before the learned Motor Accident Claims Tribunal, Kangra at Dharamshala on 13.10.2007.
CONCLUSION Lok Adalats play a very important role to advance and strengthen “equal access to justice”, the heart of the Constitution the Constitution of India, a reality. This Indian contribution to world ADR jurisprudence needs to be taken full advantage of. Maximum number of Lok Adalats need to be organized to achieve the Gandhian Principle of Gram Swaraj and “access to justice for all”. Lok Adalat lends itself to easy settlement of money claims; there is scope for other disputes as well. Partition suits damages and matrimonial cases can be easily settled before Lok Adalat as the scope for compromise through an approach of give and take is high in these cases. In Lok Adalat justice is dispensed summarily without too much emphasis on legal technicalities. It has to be a very effective alternative to litigation. Lok Adalat is a boon to the litigant public, where they can get their dispute settled faster and a nd at free of cost. Experience has shown that it’s one of the efficient and important ADR and most suited to the Indian environment, culture and social interests. Objective of Lok Adalat is to settle the disputes wh ich are pending before the courts, by negotiations, conciliation and by adopting persuasive common sense and human approach to the problems of the disputants. The large population o f India and the illiterate masses have found the regular dispensation of justice through regular courts very cumbersome and ineffective. The special condition prevailing in the Indian society and due to economic structure, highly sensitized legal service is required which is efficacious for the poor and the ignorant masses. The Lok Adalat movement is no more an experiment experiment in India. It’s now a success and needs to be replicated in certain matters. It properly, thoughtfully, and wisely constituted, Lok Adalats can become an additional arm of existing judicial institution, and moreover, if the process of accumulation of arrears is reversed and there is less burdening, its qualitative performance can improve.
50 | P a g e
Chapter:- V
LEGAL AID CLINIC INTRODUCTION The provision of legal aid to the poor and the disadvantaged exists in all civilised countries, often guided by charitable and philanthropic concerns. In a democratic set-up, the philosophy of legal aid has acquired a new meaning, with an emphasis on the concept of equality of all human beings, increasingly drawn from the universal principles of human rights. Free legal aid to the poor and an d marginalised members of society is now viewed as a tool to empower emp ower them to use the power of the law to advance their rights and interests as citizens, and as economic actors. Such a paradigm shift in the concept of legal aid gains greater importance when India is viewed as a growing economic power. Parliament enacted the Legal Services Authorities Act, 1987 in order to give effect to Article 39A of the Constitution to extend free legal aid, to ensure that the legal system promotes justice on the basis of equal opportunity. (November 9 is observed as National Legal Services Day, to commemorate the enactment of the legislation.) Those entitled to free legal services are members of the Scheduled Castes and the Scheduled Tribes, women, children, persons with disability, victims of ethnic violence, industrial workmen, persons in custody, and those whose income does not exceed a level set by the government (currently it is Rs.1 lakh a year in most States). The Act empowers legal services authorities at the district, State and national levels, and the different committees (legal services institutions) to organise Lok Adalats to resolve pending and prelitigation disputes. It provides for permanent Lok Adalats to settle disputes involving public utility services. Under the Act, “legal services” have a meaning that includes rendering of service in the conduct of any court-annexed proceedings or proceedings before any authority, tribunal and so on, and giving advice on legal matters. Promoting legal literacy and conducting legal awareness programmes are functions of legal services institutions. An act to constitute legal services authorities to provide free and competent legal service to the weaker sections of the society to ensure that opportunities for securing justice are not denied to
51 | P a g e
any citizens by reason of economic or other disabilities, and to organize Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity. A legal clinic or law clinic is a nonprofit law practice serving the public interest. Legal clinics originated as a method of practical teaching of law school students, but today they encompass also free legal aid with no academic links. In the academic context, these law school clinics provide hands-on experience to law school students and services to various (typically indigent) clients. Academic Clinics are usually directed by clinical professors.[1] Many legal clinics offer pro bono work in one or more particular areas, providing free legal services to clients. The remainder of this article will discuss clinical legal education.39 In this ways both categories of people spend most of their lives overlooking a lot of facts, intentionally or unintentionally, that a lot of wrongs are being done against them. Other people, or the Government or whoever may be is infringing their rights. But the wronged ones are not very eager to protest against the wrong doer. Even some times they are not knowledgeable enough that a wrong is being done against them.If they do not know that a wrong is being done, it is a different scenario. But if they know about the fact, they are still not standing against it. As because, it may cause a lot of problem in their field of profession and might have to face a bigger loss. In this way they are actually ABATING THE WRONG. So, for both the categories of people it is necessary to make them understand what sort of wrongs they actually are facing and the abatement is also causing a greater harm to the society and it can hamper the well being of their own next generation. The Legal Aid Clinic has been working to secur e “justice for and to protect the rights of the needy.40
WHAT IS LEGAL AID Under Section 2(1)(c) of the Legal Services Authorities Act, 1987 (hereinafter referred to as ‘the said Act’), “Legal Service” includes the rendering of any service in the conduct of any case or other legal proceeding before any court or other authority or tribunal and the giving of advice on any legal matter; To provide free and competent legal services to the weaker section of the
39
en.wikipedia.org, on 17/11/14 at 12:49pm. law.ku.edu, on 17/11/14 at 12:05pm.
40
52 | P a g e
society was the basic object of enacting the aforesaid Act. Justice - social, economic and political, is our constitutional pledge enshrined in the preamble of our Constitution. The incorporation of Article 39-A in the Directive Principles of State Policy in the year 1976, enjoined upon the State to ensure justice on the basis of equal opportunity by providing free legal aid. The assumption of our legal system is that all citizens have equal access to means of legal redress. Access to inexpensive and expeditious justice is a basic human right. But, in practice, legal services of all kinds have gone to the highest bidders. Wealthy persons and large corporations receive the highest quality advice. There should be a system of administration of justice of which the poorest are able to take advantage. Equal access to the law for the rich and the poor alike is essential for the maintenance of the rule of law. It is, therefore, essential to provide adequate legal advice and representation to all those, threatened as to their life, liberty, property or reputation, who are not able to pay for it. Legal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial. This article describes the development of legal aid and its principles, primarily as known in Europe, the British Commonwealth, India and the United States. A number of delivery models for legal aid have emerged, including duty lawyers, community legal clinics and the payment of lawyers to deal with cases for individuals who are entitled to legal aid. Legal aid is required in many forms and at various stages, for obtaining guidance, for resolving disputes in Courts, tribunals or other authorities. It has manifold facets. The explosion in population, the vast changes brought about by scientific, technological and other developments, and the all round enlarged field of human activity reflected in modern society, and the consequent increase in litigation in Courts and other forums demand that the service of
53 | P a g e
competent persons with expertise in law is required in many stages and at different forums or levels and should be made available.41 Free legal aid undoubtedly is beneficial to poor people and has been instituted with the noble purpose. Yet it has become a good ground for breeding corruption. Free legal aid for a fee is common practice. Once a lawyer is engaged through legal aid, obviously the party or his men would come to the lawyer for consultation and it is then that they are asked to fish out some money, which they naturally cannot refuse. One factor that largely contributes to this is that the meager remuneration (less than Rs. 200/-) paid to the lawyers by Legal Aid Committee is a paltry and sometimes even does not meet the incidental expenses, what to speak of compensating the labour put in by the lawyer. Beyond that, the greed to pocket some easy money out of the helplessness of the victims is always there. But what speaks worst about the system is the fact that entrustment of cases under the scheme has become a case of distribution of largess amongst the favorites just as our Governments are notorious for distribution of licenses. The distribution is guided by many factors but largely other than by reason and the capacity to deliver the goods. In the circumstances, expectedly, the quality of aid is compromised to the determent of the beneficiary and, of course, Justice. The whole purpose is, thus, defeated.
CONCEPT OF LEGAL AID Legislative History - The right to assignment of counsel at Government expenses was emphasized in the 14th Law Commission Report. Thereafter, in 1969, the Law Commission again strongly recommended that the right of the accused to representation at the cost of Government should be placed on statutory footing in relation to trials for serious offences and as a first step in this direction, the Commission proposed that such a right should be available in all trials before the Court of Session. In order to achieve the objective enshrined in Article 39-A of the Constitution, Government had, with the object of providing free legal aid, by a Resolution appointed a Committee for implementing Legal Aid Scheme to monitor and implement Legal Aid Programmes on a uniform basis in all States and Union Territories. The said Committee evolved a model scheme which 41
http://www.businessdictionary.com, on 17/11/14 at 01:00pm.
54 | P a g e
was accordingly implemented by the Government. But on review, certain deficiencies were found and it was considered desirable to constitute statutory legal authorities at National, State and district levels so as to provide effective monitoring of Legal Aid Programmes. For the disposal of large number of cases expeditiously and without much cost Lok Adalats have been constituted and they have been functioning as a voluntary and conciliatory agency without any statutory backing for its decisions. In order to provide for the composition of statutory legal authorities and to provide statutory backing to Lok Adalats and its awards the Legal Services Authorities Bill, 1987, was introduced in the Lok Sabha on 24th August 1987. Article 39-A of the Constitution provides that the State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. With the object of providing free legal aid, Government had, by Resolution, appointed the “Committee for Implementing Legal Aid Schemes” (CILAS) under the Chairmanship of Mr. Justice P.N. Bhagwati (as he then was) to monitor and implement Legal Aid Programmes on a uniform basis in all the States and Union territories CILAS evolved a model scheme for Legal Aid Programme applicable throughout the country by which several Legal Aid and Advice Boards have been set up in the States and Union territories, cilas in funded wholly by grants from the central Government. Object of the enactment of the said Act - In our democratic set-up, all laws are made for all men - common or uncommon. By common man, in common parlance, we understand a man on the street. A man who may not have any status, office, post or rank in society. He is only a human being, an ordinary citizen with expectations of a just and human order. He may be a Tom, Dick or Harry, Ram, Rahim or Shyam. The Expression includes a cobbler, sweeper, baker, butcher, a priest, or a soldier. A person of whatever name and nomenclature known in the society. A legal system and its effectiveness has to be gauged or measured by the extent of its usefulness to the common man. The failure of law for common man is due to no change of hear or outlook of other fellow beings who are privileged and have a better status in the society. There has been no emotional integration between haves in the society and have nots. The society cannot be
55 | P a g e
improved by laws. Social reforms are done not by laws but by leaders in the society who are virtuous, wise and of high moral character. Before making the laws or along with them, no attempts have to be made on behalf of the State of their agencies to spread moral education to encourage science with spirituality. The spirituality and science alone can rule the world including the government based on democracy in the absence of any effort in proper direction, the common man is deprived of the benefit of the laws enacted for him which do not reach him due to inefficient bureaucracy and mal-administration.42
PERSONS WHO ARE ENTITLED TO GET FREE LEGAL AID UNDER THE LEGAL SERVICE AUTHORITY, 1987 Criteria for giving legal service are prescribed under the Section 12 of the said Act. Every person who has to file or defend a case shall be entitled to legal services under this Act if that person is – a. a member of a Scheduled Caste of Scheduled Tribe; b. a victim of trafficking in human beings or beggar as referred to in Article 23 of the Constitution; c. a women or a child; d. a person with disability as defined in Clause (i) of Section 2 of the person with Disabilities (Equal Opportunities, Protection of Rights and Full Participation)’ Act, 1995 . e. a person under circumstances to the underserved want such as being victim of mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or an industrial workman; or in custody, including custody in a protective home within the meaning of clause (g) of Section 2 of the Immoral Traffic (prevention) Act, 1956 (104 of 1956), or in a juvenile home within the meaning of clause (j) of Section 2 of the Juvenile Justice Act, 1986 (53 of 1986), or in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of Section 2 of the Mental Health Act, 1987 (14 of 1987); or in receipt of annual income less than rupees nine thousand or such other higher amount as may be prescribed by the State Government, if the case is before a court other than the supreme Court, and less than rupees twelve thousand or such other higher amount as may be [prescribed by the Central Government, if the case is before the Supreme Court.
42
www.legalserviceindia.com, on 17/11/14 on 01:19pm.
56 | P a g e
Also, there are factors for disentitlement from getting legal aid - As per rules, the following persons are not entitled to the legal aid unless the Chairman of the Committee approves it a s a special case-(1) Proceedings wholly or partly in respect of defamation or malicious prosecution or any incidental proceedings thereto; (2) A person charged with contempt of court proceeding or any incidental proceedings thereto; (3) A person charged with perjury; (4) Proceedings relating to any election. (5) Proceedings in respect of offences where the fine imposed is not more than Rs. 50/- (6) Proceedings in respect of economic offences and offences against social laws, such as, the protection of Civil Rights Act, 1955, and the Immoral Traffic (Prevention) Act, 1956 unless in shc cases the aid is sought by the victim : The legal aid is also denied where the person seeking the legal services - (1) is concerned with the proceedings only in a representative or official capacity; or (2) if a formal party to the proceedings, not materially concerned in the outcome of the proceedings and his interests are not likely to be prejudiced on account of the absence of proper representation. In the above two circumstances even Chairman cannot sanction legal aid as a special case.
CONSTITUTIONAL PROVISION RELATING TO LEGAL AID Legal aid a constitutional right - Articles 21 and 39-A of the Constitution are as under:“21. Protection of life and personal liberty – No person shall be deprived of his life or personal liberty except according to procedure established by law. “39A. Equal justice and free legal aid The state shall secure that the operation of the legal system promotes Justice on a basis, of equal opportunity, and shall in particular, provide free legal, aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing Justice are not denied to any citizen by reason of economic or other disabilities”. Article 21 is a fundamental right conferred under Part III of the Constitution. Whereas Article 39-A is one of the directive principles of the State Policy under Part IV of the Constitution. It has been held by the Constitution Bench of Supreme Court in Chandra Bhawan Boarding and Lodging, Bangalore V. – State of Mysore,
43
that “While rights conferred under Part III are
fundamental, the directives given under part IV are fundamental in the governance of the 43
AIR 1970 SC 2042.
57 | P a g e
country. There is no conflict on the whole between the provisions contained in Part III and Part IV. They are complementary and supplementary to each other. The Supreme Court in HussainaraKathoon vs.. Home Secretary, State of Bihar ,44 had called upon the Government to frame appropriate scheme for providing legal aid to the poor. The following observations were made by the Supreme Court: “We may also take this opportunity of impressing upon the Government of India as also the State Governments, the urgent necessity of introducing a dynamic and comprehensive legal service programme with a view to reaching justice to the common man. Today, unfortunately, in our country the poor are priced out of the judicial system with the result that they are losing faith in the capacity of our legal system to being about changes in their life conditions and to deliver justice to them. The poor in their contact with legal system have always been on the wring side of the law. They have always come across ‘law for the poor’ rather than ‘law of the poor’. The law is regarded by them as something mysterious and forbidding-always taking something away from them and not as a positive and constructive social device for changing the socio-economic order and improving their life conditions by conferring rights and benefits on them. The result is that the legal system has lost its credibility for the weaker sections of the community. It is, therefore, necessary that we should inject equal justice into legality and that can be done only by dynamic and activist scheme of legal services.” In Abdul Hassan Vs. Delhi Vidyut Board ,45 the Delhi High Court observed that “it is emphasized in Article 39A that the legal system should be able to deliver justice expeditiously on the basis of equal opportunity and provide free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reasons of economic or other disabilities. It was in this context that the parliament enacted Legal Services Authority Act, 1987. One of the aims of the Act is to organize Lok Adalat to secure that the operation of legal system promotes justice on the basis of an equal opportunity. The provisions of the Act, based on indigenous concept are meant to supplement the court system. They will go a long way in resolving the 0dispute at almost no cost
44 45
AIR 1979 SC 1369: 1980 [1] SC 98: 1979 [3] SCR 532: 1979 Cri LJ 1045 : 1980 SCC [Cr] 40. AIR 1999 Del 88: 1999 (77) DLT 640 : 1999 (2) AD (Del) 105.
58 | P a g e
to the litigants and with minimum delay. The Act is a legislative attempt to decongest the courts of heavy burden of cases.” The Hon’ble Apex Court found and observed in the case of State of Haryana v. Smt. Darshana Devi,46 no State, it seems, has , as yet, framed rules to give effect to the benignant provision of legal aid to the poor in Order XXXIII Rule 9-A, Civil Procedure Code, although several years have passed since the enactment. Parliament is stultified and the people are frustrated. Even after a law has been enacted for the benefit of the poor, the State does not bring into force by willful default in fulfilling the condition sine qua non. It is public duty of each great branch of Government to obey the rule of law and uphold the tryst with the Constitution by making rules to effectuate legislation meant to help the poor.
IMPORTANCE OF LEGAL AID The importance of Legal Aid and Awareness Campaigns as a mechanism for social progress is something that has been repeatedly stressed upon by the Government of India. In the backdrop of Poverty and Inequality, Legal Aid is an effective way towards attainment of the ideals of ‘Social, Economic and Political’ Justice that are enshrined in our Constitution under the Directive Principles of State Policy. The Legal Aid Implementation Committee of the Government of India formed out of the constructive suggestions of the Bhagwati Committee on Jurisdicare of 1977 had envisaged the setting up of legal aid dispensation clinic in the various state – run law schools. Thirty years hence we stand in a situation where the West Bengal National University of Juridical Sciences can state that they have indeed met with the suggestions of this committee by way of its own Legal Aid Clinic. The establishment of the National Law Universities in the various parts of the country has opened the gateway to work towards this cause in a greater way. Through a mutually beneficial process of exchange, awareness is spread amongst the masses about their legal rights and duties, and how to go about seeking the same, and students of law get exposed to the various problems associated with the ‘real world’, thereby gaining practical knowledge on the subject. The entire purpose of setting nation wide collegiate clinics is to acclimatize several thousand law 46
AIR 1979 SC 855 : 1979 [2] SCC 236: 1979 [3] SCR 184.
59 | P a g e
students of the nation to the problems faced by the masses ignorant about their rights and remedies under the law. The aim is indeed a noble one but there difficulties which still need to be addressed. The WBNUJS Legal Aid Cell is one successful beacon while there many more colleges where such beacons need to be lighted, many thousands whose legal dilemmas need to be efficiently addressed. In the recently concluded ‘Intra-State Conference on Legal Networking in West Bengal’, held at The West Bengal National University of Juridical Sciences(WBNUJS), Prof. B.B. Pande, retired Faculty Advisor of the Legal Aid Society at The Delhi University Faculty of Law, which was the birthplace of the legal awareness campaigns in Law Universities, highlighted the importance of a systematic approach tempered with the right intention, and identified WBNUJS as having the most functional Legal Aid C linic in India.47
LEGAL AID CASE:-SheelaBarsevs State Of Maharashtra on 15 February, 1983 SUPREME COURT OF INDIA Equivalent citations: 1983 AIR 378, 1983 SCR (2) 337 P PETITIONER: SHEELA BARSE Vs. RESPONDENT: STATE OF MAHARASHTRA DATE OF JUDGMENT15/02/1983 Author: P Bhagwati Bench: Bhagwati
47
www.nujs.edu, on 17/11/14 at 02:38pm.
60 | P a g e
FACTS
LegalAid to the poor-Importance of legalaid to the poor explained-Directions given to Prison authorities and police on providing Legalaid to the poor prisoners. The petitioner, a journalist, in her letter addressed to this Court stated that Five out of fifteen women prisoners interviewed by her in the Bombay Central Jail alleged that they had been assaulted by the police in the police lock up and two of them in particular alleged that they had been assaulted and tortured in the lock up. Treating the letter as a writ petition the Court issued notices to all concerned to show cause why the writ petition should not be allowed In the meanwhile the Director of the College of Social Workcustodians. It is also possible that he or the members of his family may have other problems where legal assistance is required but by reason of his being incarcerate. it may be difficult if not impossible for him or the members of his family to obtain proper legal advice or aid. It is therefore essential that legal assistance must be made available to prisoners in jails whether they be under-trials or convicted prisoners. 338 The Inspector General of Prisons in Maharashtra should issue a circular to all Superintendents of Jails in Maharashtra requiring them to send to the LegalAid Committee of each district in which the jail is situated. ISSUES
*Whether the Police officer (accused) has violated the provisions of the Article 14, 21 &39 A of the Constitution of India? RATIO
section 54 of the Code of Criminal Procedure 1973 to be medically examined. We are aware that section 54 of the Code of Criminal Procedure 1973 undoubtedly provides for examination of an arrested person by a medical practitioner at the request of the arrested person and it is a right conferred on the arrested person. But very often the arrested person is not aware of this right and on account of his ignorance, he is unable to exercise this right even though he may have been tortured or malterated by the police in police lock up. JUDGEMENT
The writ petition will stand disposed of in terms of this order.
61 | P a g e
CONCLUSION An act to constitute legal services authorities to provide free and competent legal service to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizens by reason of economic or other disabilities, and to organize Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity. India is a developing country. The development in the industrial sector is very much appreciable, but still this progress in the field of industrialization, marketing, finance, etc. cannot hide the indispensable drawbacks of our society like population explosion and illiteracy. These drawbacks, coupled with environmental and social hinges results in increase in poverty and lack of food for people. Legal aid is required in many forms and at various stages, for obtaining guidance, for resolving disputes in Courts, tribunals or other authorities. It has manifold facets. The explosion in population, the vast changes brought about by scientific, technological and other developments, and the all round enlarged field of human activity reflected in modern society, and the consequent increase in litigation in Courts and other forums demand that the service of competent persons with expertise in law is required in many stages and at different forums or levels and should be made available.
62 | P a g e
Chapter:- VI
CONCLUSION Alternative Dispute Resolution ("ADR") refers to any means of settling disputes outside of the courtroom. ADR typically includes early neutral evaluation, negotiation, conciliation, mediation, and arbitration. As burgeoning court queues, rising costs of litigation, and time delays continue to plague litigants, more states have begun experimenting with ADR programs. Some of these programs are voluntary; others are mandatory.Many individuals and entities still resist ADR because it lacks the substantive, procedural, and evidentiary protections available in formal civil litigation. For example, parties to ADR typically waive their rights to object to evidence that might be deemed inadmissible under the rules of court. Hearsay evidence is a common example of evidence that is considered by the parties and intermediaries in ADR forums but that is generally excluded from civil trials. If a disputant believes that he or she would be sacrificing too many rights and protections by waiving the formalities of civil litigation, ADR will not be the appropriate method of dispute resolution. An arbitration agreement is a written contract in which two or more parties agree to settle a dispute outside of court. The arbitration agreement is ordinarily a clause in a larger contract. The dispute may be about the performance of a specific contract, a claim of unfair or illegal treatment in the workplace, a faulty product, among other various issues. People are free to agree to use arbitration concerning anything that they could otherwise resolve through legal proceedings. Conciliation is a voluntary proceeding, where the parties involved are free to agree and attempt to resolve their dispute by conciliation. The process is flexible, allowing parties to define the time, structure and content of the conciliation proceedings. These proceedings are rarely public. They are interest-based, as the conciliator will when proposing a settlement, not only take into account the parties' legal positions, but also their; commercial, financial and / or personal interests. Lok Adalat, as the name suggest means People’s Court. ‘Lok’ stands for People and the word ‘Adalat’ means Court. Lok Adalat is a special kind of people’s court in which disputes solved by
