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India was governed by ‘medley of conflicting laws and systems of administration of justice’ before the British rulers enacted the Charter Act, 1833. The codification of laws was the beginning of legal and judicial reforms in India. During the debate on the Charter Bill, 1833, Macaulay observed: “I believe that no country ever stood so much in need of a Code of law as India, and I believe also that there never was a country in which the want might be so easily supplied. Our principle is simply this, - uniformity when you can have it; diversity when you must have it; in all cases, certainty.” The new Codes brought about a perceptible change and uniformity in the administration of justice in India. The influence of English, after the fall of Muslim rule in India, made a massive structure of Indian law and jurisprudence resembling the height and symmetry and grandeur of the Common law of England. The ‘adversarial system’ of justice was introduced in India, where two opposite parties are pitched against each other, both given level playing field and opportunity to present their case before the judge. The system served well during the British rule because it was conceived and nurtured for governing India with the help of police and magistracy.
After dawn of freedom in India, powerful voices were raised for providing speedy, inexpensive and substantial justice, which suit the genius of Indian people. The resolve of the people of India is enshrined in Art. 39-A of the Constitution of India to secure that the operation of the legal system promotes justice on the basis of equal opportunity and that no citizen is denied access to justice on account of financial or other disability. The Law Commission headed by Shri M.C. Setalvad, after thorough survey of the legal and judicial system, gave the Fourteenth Report. The Report is very comprehensive and deals in great details the areas where reforms were needed and also pointed out that litigation has increased manifold and costs of litigation have increased frustrating common man's efforts to have access to justice.
The litigation is likely to increase in future on account of the awareness of their rights on the part of the citizens, enactment of numerous laws creating new rights and obligations, industrial development in the country and increase in trade and commerce and emergence of socio-economic measure, legislative and administrative, touching the lives of citizens at all levels. It is necessary to assess the requirement of reforms in legal and judicial system. The starting point of improvement in the present system must be to identify the core values, which should underlie a legal and judicial system. It is a matter of some satisfaction that Indian legal and judicial system stands on a strong edifice. The network of judicial courts throughout the country exists where people can have their disputes adjudicated. However, the problem of delay in disposal of cases poses a challenge to the system.
In 1989, the Government of India, on the advice of the Chief Justice of India, constituted a Committee under the Chairmanship of Justice Malimath, Chief Justice of Kerala High Court.
The other members of this Committee were Dr. Justice A.S. Anand, Chief Justice of Madras High Court (as his Lordship then was) and Mr. Justice P.D. Desai, then Chief Justice of Calcutta High Court. The terms of reference of the Committee were, inter alia, to suggest ways and means, “to reduce and control arrears in the High Courts and subordinate Courts.” The Malimath Committee submitted its comprehensive Report in August, 1990. It identified causes of accumulation of arrears like:
- Litigation explosion;
- Increased legislative activity;
- Accumulation of First Appeals;
- Continuation of ordinary civil jurisdiction in some High Courts;
- Inadequate number of Judges;
- Appeals against orders of quasi-judicial forums going to High Courts;
- Unnecessary numbers of revisions and appeals;
- Lack of Modern Infrastructure in the High Courts;
- Unnecessary adjournments;
- Indiscriminate use of writ jurisdiction in High Courts;
- Lack of facilities to monitor, track and bunch cases for hearing in courts;
- Changing pattern of litigation and lack of strategies to deal with new litigation with new techniques;
- Social awareness in the masses.
The Committee recommended the introduction of Conciliation procedure in writ matters and setting up of Neighbourhood Justice Centres with statutory status. The function of such centers should be confined to resolving disputes by reconciliation. The Committee also favoured the machinery of Conciliation Courts for resolving disputes arising under the Rent Act. The Report of Malimath Committee became the basis of finding solutions of the problems of arrears during the Law Ministers’ meetings which took place in 1992-93 at Bangalore, Pondicherry, Pachmarhi and Calcutta.
A joint Conference of Chief Ministers of the States and Chief Justices of High Courts was held on 4th December, 1993 at New Delhi under the Chairmanship of the then Prime Minister of India and presided over by the Chief Justice of India. It adopted the following resolution:
‘The Chief Ministers and Chief Justices were of the opinion that Courts were not in a position to bear the entire burden of justice system and that a number of disputes lent themselves to resolution by alternative modes such as arbitration, mediation and negotiation. They emphasised the desirability of disputants taking advantage of alternative dispute resolution which provided procedural flexibility, saved valuable time and money and avoided the stress of a conventional trial”.
The Chief Ministers and Chief Justices were unanimously of the view that judicial infrastructure needs to be modernized immediately at all levels in the Courts. Judicial Academies be established to train judges and reorient judicial manpower with latest techniques prevalent in other parts of the World
The experience of the Supreme Court of India has shown that with proper case management and infrastructural support, the arrears can be wiped off without compromising the quality of justice. The uniform classification of cases according to the subject matter, and also the filing, listing, allocation tasks in the registry was accomplished in 1994 resulting in steep fall in the arrears of the Supreme Court.
The problem of delay injustice and backlog of cases has again come up for consideration in the Conference of the Chief Ministers and the Chief Justices of High Courts held on 18th September, 2004 in New Delhi. The Hon'ble Chief Justice of India Mr. Justice R.C. Lahoti, during the course of his address, observed that :-
‘The philosophy of Alternate Dispute Resolution systems is well-stated by Abraham Lincoln: “discourage litigation, persuade your neighbours to compromise whenever you can. Point out to them how the normal winner is often a loser in fees, expense, cost and time.” Litigation does not always lead to a satisfactory result. It is expensive in terms of time and money. A case won or lost in court of law does not change the mindset of the litigants who continue to be adversaries and go on fighting in appeals after appeals. Alternate Dispute Resolution systems enable the change in mental approach of the parties ............ A Conference on ADR systems is being held in Mumbai on 20th November this year where, leading experts in the world on ADR system would be available for launching the movement on a large scale’.
In a developing country like India with major economic reforms under way within the frame-work of rule of law, strategies for swifter resolution of disputes for lessening the burden on the Courts and to provide means for expeditious resolution of disputes, there is no better option but to strive to develop alternative modes of dispute resolution by establishing facilities for providing settlement of disputes through arbitration, conciliation, mediation, negotiation, etc.
The Government of India also took initiative in the matter. It repealed the old Arbitration Act, 1940 and introduced new and effective arbitration system by enacting the Arbitration and Conciliation Act, 1996. It came into force on 22nd August, 1996. It is based on the United Nations Commission on International Trade Law (UNCITRAL) model law on International Commercial Arbitration. The objectives of this Act are to make provision for an arbitral procedure which is fair, efficient and capable of meeting the needs of the specific arbitration; and to permit an arbitral tribunal to use mediation, conciliation or other procedures during the arbitral proceedings to encourage settlement of disputes.
At the initiative of some of the leading legal luminaries, an International Centre for Alternative Dispute Resolution was established at New Delhi to effectively implement the provisions of the Arbitration and Conciliation Act, 1996 and to achieve its objectives. The Centre has its Regional Centres at Hyderabad and Bangalore. More Regional Centres are proposed to be opened in other States. It is expected that this institution will open new channels of dispute resolution, will provide necessary relief to the litigants and will help the courts in reducing arrears. It will also train the manpower required for conciliation and mediation work.
There is now a growing shift the world over to Mediation/ Conciliation which unlike arbitration and court trials does not involve a determination of issues by a third party. A Mediator/Conciliator is a neutral third party appointed with the mutual consent of the disputants to facilitate a negotiated settlement of the dispute. Today Mediation/Conciliation is the most rapidly growing form of ADR. It is being actively utilised in almost every conceivable type of dispute resolution and comes in various forms. The process has also been effectively adapted for multiple party dispute resolution with tremendous success. On average the success rates of mediation processes range from 80% to 85%.
Under the Arbitration and Conciliation Act, 1996 a Settlement Agreement arrived at among the disputants has the same status and effect as if it is an arbitral award on agreed terms and it is final and binding on them. These alternative dispute resolution methods are not new to India and have been in existence in some form or the other in the olden days. It is only now that there is world-wide acceptance and statutory recognition for such procedures to facilitate early settlement of disputes on agreed terms.
One distinct advantage of ADR over traditional court proceedings is its procedural flexibility. It can be conducted in any manner to which the parties agree. It may be as casual as a discussion around a conference table or as structured as a private court trial. Also unlike the courts, the parties have the freedom to choose the applicable law, a neutral party to act as Arbitrator/Conciliator in their dispute, on such days and places convenient to them and also fix the fees payable to the neutral party. ADR being a private process offers confidentiality which is generally not available in court proceedings. While a court procedure results in a win-lose situation for the disputants, in an ADR process such as Mediation or Conciliation, it is a win-win situation for the disputants because the solution to the dispute emerges with the consent of the parties. Lastly, as compared to court procedures, considerable time and money is saved in ADR procedures.
India cannot by any means grapple with problems of delays unless Indian courts and members of the Bar as well as the litigants realize that the problem is their own and each one of them has a commitment to prepare an efficient and fast track justice system.
The future litigation in the 21st Century will need active intervention of the judges, mediators, conciliators and arbitrators to achieve speedy disposal of pending cases and reduce expenditure.
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