Dispute Resolution

Every society, every community, every culture has some or the other form/s of resolving the disputes faced by their constituents. Often, the longer and more prosperous the lineage, the more refined and varied the mechanisms. India is a country of many cultures and hence several dispute resolution mechanisms (DRMs) have evolved and been customized over time. We had the Gulas, the Kulas, and the Shrenis, DRMs tailor-made for different segments of society. We also had – and still have in several regions – the Panchayats, which exercise social influence within geographical boundaries.
With the advent of British colonization, these varied DRMs by and large gave way to formal Courts of Law based on Anglo-Saxon jurisprudence. Article 21 of the Constitution of India declares in a mandatory tone that no person shall be deprived of his life or his personal liberty except according to procedure established by law. The words “life and liberty” are not to be read narrowly in the sense drearily dictated by dictionaries; they are organic terms to be construed meaningfully.
Further, the procedure mentioned in the Article is not some semblance of a procedure but it should be “reasonable, fair and just”. 1] Thus, the right to speedy trial has been rightly held to be a part of right to life or personal liberty by the Supreme Court of India. [2] The Supreme Court has allowed Article 21 to stretch its arms as wide as it legitimately can. [3] The reason is very simple. This liberal interpretation of Article 21 is to redress that mental agony, expense and strain which a person proceeded against in criminal law[4] has to undergo and which, coupled with delay, may result in impairing the capability or ability of the accused to defend himself effectively.
Thus, the Supreme Court has held the right to speedy trial a manifestation of fair, just and reasonable procedure enshrined in Article 21. A speedy trial encompasses within its sweep all its stages including investigation, inquiry, trial, appeal, revision and re-trial. In other words, everything commencing with an accusation and expiring with the final verdict falls within its ambit. The constitutional philosophy propounded as right to speedy trial has though grown in age by almost two and a half decades, the goal sought to be achieved is yet a far-off peak.
The failures of prosecuting agencies and executive[5] to act and to secure expeditious and speedy trial have persuaded the Supreme Court in devising solutions which go to the extent of almost enacting by judicial verdict bars of limitation beyond which the trial shall not proceed and the arm of law shall lose its hold. [6] The validity or justness of those decisions is not the matter to be decided but the seriousness of delay in the conclusion of criminal and civil matters must be appreciated at the earliest. This seriousness was appreciated and accepted by many[7], including the Constitutional Courts[8], long before.
The same has got recognition from the “legislature” as well in the form of introduction of “Alternative Dispute Resolution” (ADR) Mechanism (ADRM) through various statutes. There is a growing awareness among the masses as well regarding ADR and people are increasingly using the same for getting their disputes settled outside the court. This will also reduce the “backlog problem’ that India is facing. It is now universally accredited that ‘Justice delayed is Justice denied’. The existing justice system is not able to cope up with the ever-increasing burden of civil and criminal litigation.
There is growing awareness that in the majority of cases court action is not an appropriate remedy for seeking justice. We have to formulate effective Alternative Dispute Resolution Mechanisms to ease the present burden of judicial functioning. The backlog of cases is increasing day by day but criticising judiciary for the same is a wrong practice. It must be noted that the backlog is a product of “inadequate judge population ratio” and the lack of basic infrastructure. The government has to play a pro-active role in this direction. Legislative efforts in India Old Law
One of the several benefits of the British rule over India was that we got some very robust laws. Several of these exist till date (after over 60 years of Independence) without any major amendments. However, the flip side was that at the altar of ‘Uniformity’ were sacrificed all the then existing DRMs, which were by and large enabling satisfactory outcomes. What was worse was that the system that replaced them soon started showing its colours – the formal procedures of the Courts of Law not only took their own time but also provided umpteen loop-holes to the ingenious lawyers to stretch that time even further, if that suited their clients? nterests. This had a telling effect on the backlogs in court registries across the nation.
To give an extreme example, the Bombay High Court is currently taking up Final Hearing of Plaints filed in the 80s and 90s. An Appeal from an Order/Judgment in these cases will take roughly another 5 to 7 years from date of filing and a further Appeal to the Supreme Court could take an additional 2 years. Arbitration too has seen its name sullied thanks to the Ad Hoc version adopted by the lawyers drafting their clients? contracts. With no institution to keep a check on their schedule, the Arbitrators become masters unto themselves.
Arbitral hearings, when held, are often as prolix as the court hearings. One can’t blame the Arbitrators for that, as they are usually retired judges and that’s the only way they know how to conduct hearings. By and large, in the initial period, the scheduled hearings are held only to give fresh dates of hearings on some or the other ground ranging from non completion of records to the ill-health of someone connected to the proceedings or related to that someone. This continues till the parties’ patience is found to be wearing thin.
Thereafter, substantive work is done at the arbitral hearings, but they go on for only half a day, i. . , 2 to 3 hours, with considerable time going in recaps and agenda settings for future hearings. There are of course exceptions to this trend, especially amongst arbitrators, who are either newly retired judges, practicing lawyers or those coming from a non-legal background. The parties and their lawyers, due to fear of antagonizing their Arbitrators, refrain from attempting to rein them in. Some lawyers see this as a ‘win-win’ situation between themselves and the Arbitrators as they get to charge for the whole day (plus for the earlier days? preparation) for the hour or so of arbitral hearing on a given day.