ALTERNATE DISPUTE REDRESSAL A D R

ALTERNATE DISPUTE REDRESSAL ( A. D. R. ) T. Mookherjee ADDITIONAL DISTRICT & SESSIONS JUDGE NORTH 24 PARGANAS And EX-OFFICIO CHAIRMAN TALUK LEGAL SERVICES COMMITTEE BARASAT (SADAR)

“To no man will we deny, to no man will we sell, or delay, justice or right” - Magna Carta – 1215

Access to Justice · Basic human rights · Dispensation of Justice - A major function of the State · Justice-delivered – Judicial institutions Method – Adversary/adjudicatory ( Anglo-Saxon Jurisprudence )

Adversary / Adjudicatory System: - ·Parties fight ·Judge, a neutral umpire Decision – comparative merit

Major drawbacks ·Parties’ participation – minimum ·Technicalities – slow progress Expensive ·Win-lose situation Accumulation of arrears

Term A. D. R. Developed in USA q A. D. R. – resolution of disputes with assistance of impartial third party

Common A. D. R. Systems ·Arbitration ·Agreement between the parties Award by Arbitrator

Conciliation Agreement between the parties Active role of conciliator No award Mediation Facilitates settlement between the parties themselves

A. D. R. s q. Very effective in: - ·Domestic ·International ·Commercial disputes

A. D. Rs – benefits ·Low costs and formalities Expeditious ·Parties’ participation – maximum Result – win - win

Limitation of A. D. Rs ·Not workable in all disputes/penal offences ·Hidden costs ·Awards challengeable Chances of failure

Indian Scenario ·Ancient India – Disputes/Civil disputes-settled locally-system simple Institutional delivery system/Adversary system introduced by British Rulers

Constitutional Commitment ·Right to fair and speedy justice - fundamental right (Art. 21) Equal justice – free legal aid (Art. 39 A)

Dimension of the problem ·Cases pending - end of 2005 ·High Courts (Civ. And Crl. ) – 35, 21, 283 Average institution and disposal per year 14, 000 – 12, 000

District Courts ·Cases pending - end of 2005 – 2, 56, 54, 251 ·Average institution per year – 1, 60, 000 (Approx. ) Average disposal per year - 1, 50, 000 (Approx. )

Strength of Judges High Courts – 726 – Vacancy – 138 District Courts (30. 06) – 14, 582 – vacancy -2860 Ratio of Judges – Population 12/13 Judges per Million Recommendation – 50 per Million.

Expenditure India – 0. 2% of G. N. P. U. K. – 4. 3% of G. N. P. U. S. A – 1. 4% of G. N. P. Singapore – 1. 20 % of G. N. P. Half of the expenditure raised from judiciary itself

Clearance of backlog – A distant dream Resort to A. D. R. s – A solution

Arbitration and Conciliation Act - 1996 ·Sec. 2 to 43 – Arbitration Sec. 61 to 81 - Conciliation

¨Arbitration : – §Contractual – future and present dispute q. Award : – · Executable – challengeable – limited ground

Conciliation ·Present dispute ·Invitation by one – accepted ·Conciliator’s role – agreement – ·Enforceable

Sec. 80 / O. XXVII R. 5 B C. P. C. Scope of amicable settlement in suits involving State – Act of public officer – Court to assist

Sec. 89 C. P. C. Duty of the Court Element of settlement – formulation of terms of settlement – reference to arbitration / conciliation / Judicial settlement including settlement through Lok Adalat / Mediation. Ø (2003) 1 S. C. C. , 49 Ø (2005) 6 S. C. C. , 344

Lok Adalat ·Best performing A. D. R. system ·Introduced by Legal Services Authorities Act, 1987 ·Periodical Lok Adalats – all disputes ·Permanent Lok Adalat – Public utility Services only ( Not yet established in all states )

Disputes settled within legal framework through negotiations ·Active role by Lok Adalat Judges Organized Authority by State Authority/District o Supreme Court L. S. Committee/High Court L. S. Committee/Taluk L. S. Committee

Disputes settled within legal framework through negotiations-II All cases except compoundable offences non- ·Pre-litigation disputes q Executable decree / no appeal

Merits of settlement in Lok Adalats ·No court fees / no costs ·Lawyers not essential ·Speedy / single day disposal ·Involvement of the parties / simple procedures

¨Cases settled in Lok Adalats upto 30. 09. 2006 : – 2, 02, 93, 952

Nyaya Panchayet ·An effective ADR ·Model bill drafted Uniform law in the process

Role of Executive Officers ·Sec. 80 C. P. C. / Order 27 Rule 5 B C. P. C. ·Members of different committees under L. S. A. Act In-house mechanism in all governmental departments

Aim Reduction of load from conventional courts – the demand of the day

Conclusion A supplementary system – Not a substitute

Thank you