ACCESS TO JUSTICE THROUGH ALTERNATIVE DISPUTE RESOLUTION
Justice is the concept of moral rightness based on ethics, rationality, law, natural law, fairness, religion and/or equity. Justice is the result of the fair and proper administration of law. It is the quality of being just; in conformity to truth and reality in expressing opinions and in conduct; honesty; fidelity; impartiality or just treatment; fair representation of facts respecting merit or demerit. It also can refer to a person duly commissioned to hold court sessions, to try and decide controversies and administer justice.
Access to Justice means different things to different people. In its narrowest sense, it represents only the formal ability to appear in court. Broadly speaking, it engages the wider social context of our court system, and the systemic barriers faced by different members of the community.
The concept of Alternative Dispute Resolution (ADR) mechanism is capable of providing a substitute to the conventional methods of resolving disputes. ADR offers to resolve all type of matters including civil, commercial, industrial and family etc., where people are not being able to start any type of negotiation and reach the settlement. Generally, ADR uses neutral third party who helps the parties to communicate, discuss the differences and resolve the dispute. It is a method which enables individuals and group to maintain co-operation, social order and provides opportunity to reduce hostility.
CONVENTIONAL METHODS OF DISPUTE RESOLUTION
The conventional method of access to justice is the recourse to formal adjudication mechanisms as provided by the State, i.e. approaching the courts. The present model of legal system in India is of British import. Initially confined to the four presidencies, the system started expanding with the inclusion of Indian states in the British Empire. Since the primary concern of the Colonial masters was draining the economic resources of the country to Britain, little thought was given to developing a sui generis legal model which could suit the need of Indian society. The community justice system as well as inquisitorial litigation model as prevalent in India prior to the advent of British was alien to the English legal system. Thus, the legal system based on common law was imposed on India. A consequence of such imposition was that the bodies of justice administration which earlier existed in India were thrown in cold oblivion and their place was taken by the court type adjudication of disputes.
This model of litigation is also known as the adversarial model of litigation. In this model, the State acts an uninterested umpire of the dispute between the private parties. If it is a criminal case, then the proceedings are launched by the State, whereas in civil cases the onus of initiating the proceedings is on the private individuals. It is a known fact that multitude of cases that reach the courts are of civil nature. Thus, for a breach of contract or deprivation of a right, which would have happened due to the State‘s fault, still the proceedings are to be launched by the private individuals. It is pertinent to mention that in British period, no fundamental rights were recognized and thus if any violation of fundamental rights took place, still the State was not liable.
However, with the Constitution of India coming into force, the fundamental policy choice of the nation changed. The people of India, through their representatives in Constituent Assembly, resolved to secure for all its citizens Justice- social, economic and political. Apart from this solemn affirmation in the preamble, Article 14 of the Constitution makes it incumbent on the State not to deny to any person equality before law or equal protection of law. Thus, the State is under a duty to ensure that every person is given equal protection of laws and breach of this duty will be a violation of the mandate in Article 14. In addition, Article 256 casts a duty on the State governments to ensure compliance with every law made by the Parliament and every existing law.
So, under the Constitution, a strict duty is cast on the State to ensure that there is a compliance with every law. Violation of a private right is undoubtedly a breach of law and as such if such a breach occurs, the presumption is that the State has failed in its duty of ensuring compliance with every law and giving equal protection of laws to every person. Thus, it should be incumbent on the State to initiate proceedings against the faulting party and follow the principle of restitutio in integrum.
Thus, as per the Constitutional scheme, adversarial model, wherein the Courts perform the role of an arbiter and are not interested in ascertaining truth, has been discarded and impliedly an inquisitorial model has been chosen. Under this model, the Court itself, with help of the officers appointed for this purpose, undertakes investigation, determines which issues are to be taken up during the proceedings and the judge has substantial discretion in doing away with the procedural technicalities. However, the aforementioned constitutional scheme has not seen the light of the day in practical working. The colonial hang-over is still haunting our legal system insomuch so that we are still following the adversarial model of litigation. Following this alien model has led to a lot of problems.
ALTERNATIVE METHODS OF DISPUTE RESOLUTION
While the traditional dispute resolution method or litigation refers to the proceedings before an appropriate court of law according to the established, the alternative methods are more flexible and party-centric and include negotiation, mediation, conciliation and arbitration. The need to evolve alternative mechanisms to reduce the burden of the Courts and provide speedy access to justice along with the revival and strengthening of traditional systems of dispute resolution prompted the introduction of ‘Section 89’ in the Code of Civil Procedure, 1908 and ultimately, the Arbitration and Conciliation Act, 1996. The former opened the passage of statutory reference to ADR, either by the Courts or the parties themselves.
SOME OF THE METHODS OF ALTERNATIVE DISPUTE RESOLUTION ARE:
It is an adjudicatory process in the nature of adversarial proceedings wherein parties submit their disputes to a neutral third party (arbitrator) for a decision. The proceedings, similar to litigation are however, faster, cheaper, confidential and more flexible in procedure and application of rules of evidence. The parties have the independence to chalk out the same in the agreement to arbitration. The said agreement which must necessarily precede arbitration, should be a valid one as per the Indian Contract Act, 1872. The parties to an arbitration agreement must have the capacity to enter into a contract in terms of Sections 11 and 12 of the said Act. Arbitral decisions are final and binding on the parties with very limited scope of objecting to them.
Conciliation is a form of arbitration but it is less formal in nature. It is the process of facilitating amicable resolution between the parties, whereby the parties to the dispute use conciliator who meets with the parties separately to settle their dispute. Conciliator meet separately to lower the tension between parties, improving communication, interpreting issue to bring about a negotiated settlement. There is no need of prior agreement and cannot be forced on party who is not intending for conciliation. It is different from arbitration in that way.
· The party initiating conciliation shall send to the other party a written invitation to conciliate under this part, briefly identifying the subject of the dispute.
· Conciliation proceedings shall commence when the other party accepts in writing the invitation to conciliate.
· If the other rejects the invitation, there will be no conciliation proceedings.
Above provision clearly states conciliation agreement should be an extemporary agreement entered into after the dispute has but not before. Parties are also permitted to engage in conciliation process even while the arbitral proceedings are on(section 30).
It is a voluntary, disputant-cantered, non-binding method of dispute resolution wherein a neutral and credible third party facilitates a settlement between the parties. It is a confidential and structured process where the mediator uses special communication, negotiation and social skills to assist the disputants in arriving at a mutually acceptable solution themselves. The parties thereto must be willing to iron out the creases in their relation by a little outside help as the focus in mediation is on the future. It is ideal where the emphasis of the parties is on building relationships, rather than ascertaining the party at fault for what has already transpired. The outcome of a successful mediation is a settlement agreement, and not a decision. The objective of mediation is not to evaluate guilt or innocence but to promote understanding, focus the parties on their interests, and encourage them to reach their own agreement.
Negotiation is one of the alternatives to formal dispute resolution mechanisms. In negotiation, one can settle the disputes by discussing it with the opposing parties or discussion can take place through the representatives of the parties to the dispute. The parties to a dispute can, on their own motion start a process of negotiations through correspondence or through one or two mediators with a view to finding a mutually acceptable solution of the problems. Negotiation, by definition, excludes the participation of an authority that has the obligation or the right to apply a particular rule to the issue in dispute. Negotiations are often dependent on the bargaining power of the parties. Often extraneous terms such as maintaining good relations with the opposing party results in compromising legal rights. The advantage of negotiations is that time is saved and thus time count goes in favour of the process of negotiation.
5. Lok Adalat
Lok Adalat is defined as a forum where voluntary effort aimed at bringing about settlement of disputes between the parties is made through conciliatory and pervasive efforts. The Legal Services Authority Act, 1987 provides for setting up of Lok Adalat’s. Lok Adalat’s are thus an extended form of conciliation wherein the parties are assisted by the judges and are basically meant to avoid the inordinate delays in the formal adjudication mechanisms and to clear the backlog of arrears of cases. One of the lacunae in the present form of Lok Adalat’s is that a case can be taken to Lok Adalat only when the petitioner/ claimant wants the same, thus it takes a form of conciliatory approach. Moreover, in Lok Adalat’s there is no restitutio integrum. As mentioned above, conciliations are against the Constitutional mandate.
The Ombudsman is a public sector institution, preferably established by the legislative branch of government, to supervise the administrative activity of the executive branch. The traditional ombudsman has the power to investigate complaints from persons that the administrative activities of the government are being conducted in an illegal or unfair manner, make findings whether or not there has been wrong doing based on the results of the investigations, and make recommendations for improvement if improper administrative conduct is found. Typically, the ombudsman has no power to make decisions that are binding on the government. Rather, ombudsman uses persuasions to attempt to obtain implementation of the recommendations made for change in administrative conduct. In addition, the ombudsman may also have the authority to recommend changes in laws and regulations. In addition, the ombudsman can use publicity to highlight problematic administrative activity through the medium of annual, and sometime special, reports to the legislature.
A few ombudsmen are authorized to engage in Alternative Dispute Resolution during the investigation, for example the Saskatchewan Ombudsman, South Africa Public Protector, Human Rights ombudsmen etc. Unfortunately, in India, the experience does not seem to be encouraging. At Centre, the office of ombudsman known as Lok pal is still to see the light of the day. The office of ombudsman, known and called Lokayukta has started functioning in some states but is still in nascent phase with no real teeth being given to the said office. The efficacy of the office of ombudsman is still to be seen in India. Since India has no explored this option in the real sense, it will be too early to comment on its constitutionality. However, if the ombudsman functions as an authority under the inquisitorial system, it can prove to be fruitful.
7. Nyaya Panchayat
Nyaya Panchayats in India are an attempt to bring justice nearer to the people. It is an extension of the panchayat systems prevalent in India before the British regime. Since Article 50 of the Constitution directs the state to take steps to separate the judiciary from the executive, Nyaya panchayats can be seen as a fulfilment of this directive. Nyaya Panchayat usually covers an area covering 7 to 10 villages and a population of over 14,000 to 15,000. It is an elected body which is elected by the Gram Panchayat which on its turn is also an elected body. The essential features of the adjudication procedure of Nyaya Panchayats are:
a) simplicity of procedures and flexibility of functioning
b) principles of natural justice to be followed in the proceedings and no other technical procedural laws are followed;
c) laws of the limitation and evidence are not binding;
d) complaints may be made orally or in writing;
e) No legal representation is allowed, although in some civil matter parties may be represented by an agent.
At the stage of reaching a decision, parties are asked to absent themselves; panchayats confer among themselves and arrive at a decision, which is pronounced in open court. A judgment is written which, after being readout in open court is signed by the parties signifying the communication of judgment to them. Witnesses, if any, are examined on oath or solemn affirmation. Depersonalization of power appears to arise from the observed psychological fact that readiness of an individual to submit to authority is increased by awareness of similar submission by others, and decreased by awareness their resistance. Thus, the non-submission by the majority of the people to the decision of Nyaya Panchayat will reduce the tendency of submission of others as well. Then there will be no depersonalized power as well. Thus, there is violation of Article 14 of the Constitution of India, because there is no protection of laws because this arbitrariness of Nyaya Panchayats. Thus, Supreme Court in E P Royappa v State of Tamil Nadu was right in stating ―equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a Republic, while the other, to the whim and caprice of an absolute monarch.
IMPORTANCE OF ADR IN INDIA
To deal with the situation of pendency of cases in courts of India, ADR plays a significant role in India by its diverse techniques. Alternative Dispute Resolution mechanism provides scientifically developed techniques to Indian judiciary which helps in reducing the burden on the courts. ADR provides various modes of settlement including, arbitration, conciliation, mediation, negotiation and Lok Adalat. Here, negotiation means self-counselling between the parties to resolve their dispute but it doesn’t have any statutory recognition in India.
ADR is also founded on such fundamental rights, article 14 and 21 which deals with equality before law and right to life and personal liberty respectively. ADR’s motive is to provide social-economic and political justice and maintain integrity in the society enshrined in the preamble. ADR also strive to achieve equal justice and free legal aid provided under article 39-A relating to Directive Principle of State Policy (DPSP).
ADVANTAGES OF ALTERNATIVE DISPUTE RESOLUTION
· Less time consuming: people resolve their dispute in short period as compared to courts
· Cost effective method: it saves lot of money if one undergoes in litigation process.
· It is free from technicalities of courts; here informal ways are applied in resolving dispute.
· People are free to express themselves without any fear of court of law. They can reveal the true facts without disclosing it to any court.
· Efficient way: there are always chances of restoring relationship back as parties discuss their issues together on the same platform.
· It prevents further conflict and maintains good relationship between the parties.
· It preserves the best interest of the parties.
ADR – ACCESS TO JUSTICE
Justice in all its facets – social, economic and political – must be rendered to the masses of a country. This Act enshrines dispute resolution through conciliation, mediation and negotiation. The constitutional promise of securing for all citizens social, economic and political justice, as promised in the preamble to the Constitution, cannot be realized unless the three organs of the state – legislature, executive and judiciary – join together to and ways and means for providing the poor with equal access to the justice system. The Constitution through Art. 14 guarantees equality before law and equal protection of laws. Article 39A mandates the state to secure that operation of the legal system promotes justice on a basis of equal opportunity, and ensures that the same is not denied to any citizen by reason of economic or other disabilities. Equal opportunity mandates access to justice. It is not sufficient that law treats all persons equally, irrespective of the prevalent inequalities. Rather, the law must function in such a way that all people have access to justice in spite of economic disparities.
The expression ‘access to justice’ focuses on the following two basic purposes of a legal system:
1) The system must be equally accessible to all; and
2) It must lead to results that are individually and socially just.
The poor, as already stated, are ignorant of court procedures and terrified and confused when faced with judicial machinery. Thus, most citizens are not in a position to enforce their rights, whether constitutional or other legal rights, which in effect generates inequality.
Article 39A obligates the state to provide free legal aid, through suitable legislation or schemes or any other way, to promote justice on the basis of equal opportunity. It puts stress upon legal justice.
Article 39A makes it clear that the social objective of equal justice and free legal aid have to be implemented by suitable legislation or by formulating schemes for free legal aid. Although Art. 39A was introduced by the 44thAmendment of the Indian Constitution in 1976, its objective of providing access to justice could never have been fulfilled but for the majestic role played by the Supreme Court in the public interest litigation movement. This has enabled a public-spirited person to move the court to remedy any wrong affecting public.
In the light of above discussion, it can be concluded that the British systems of court adjudication as well as the present methods of alternative dispute resolution have not been effective in India. There are several lacunas in the formal adjudication mechanism which unfortunately is completely alien to the ailments of the Indian society. The legal culture of India has been different from the British culture and as such the British legal system adopted in India has created several new problems. On the other hand, the present alternative methods of access to justice are also not catering to the needs of the people. Arbitration is, undoubtedly, a good method of access to justice. But being based on the UNCITRAL model, it does not specifically deal with the problems faced by the Indians. Another lacuna is that it is based on the adversarial model of litigation which results in delay and high costs.
Conciliation and mediation are against the constitutional mandate. Similarly, the present mode of working of Lok-Adalats and Nyaya Panchayats has given way to justice being termed as the advantage of the stronger. There is a much felt need for developing an alternative model of access to justice. Under this model, the judiciary, instead of being a spectator, is involved in the ascertainment of justice and is pro-active. Thus, the model that is suggested is an inquisitorial model wherein the judiciary is given the function of investigation and execution also. Not only this, judiciary should be made accountable for any lapse of duty on their part.
Under the constitution, it is the State ‘s duty to enforce compliance with every law and also to provide equal protection of law. Thus, the Constitution requires a more pro-active role of the state in justice administration. It is high time that the State realizes that the Constitution has envisaged a far bigger role for the State in the Indian Society than what it is being played by it presently. We do not need an alternative method of access to justice, what we need is that the Constitution be enforced in its true spirit. For this an inquisitorial method of access to justice has to be followed.
Llyod Law College, Noida