Posted in ADR

Exploring the scope of Alternate Dispute Resolution in India

It is the spirit and not the form of law that keeps the justice alive.”

    –      LJ Earl Warren

Alternative Dispute Resolution is alternate machinery devised to solve issues through an unconventional platform. ADR brings forth a new mechanism to resolve various litigation issues where the disputed parties are unable to take a coherent decision.

Historically, the origin of ADR in India finds its root in the Constitution of India. It is a quest to achieve the “Constitutional Goal” of achieving Complete Justice. It was based on Articles 14 and 21 i.e equality before law, right to life and personal liberty respectively and also takes into consideration the concept of equal justice and free Legal aid from Directive Principle of State under Article 39-A of the Constitution.

The main governing Acts of ADR are Arbitration and Conciliation Act, 1996, Legal Services Authorities Act, 1987 and Section 89 of the Civil Procedure Code.

The main motive of ADR is to create a fair and compatible alternative to our traditional judicial system. It can be seen as a fast track way of delivering justice. There are various ADR techniques mainly:

  1. Arbitration
    In this process chosen persons by parties involved hear and determine their issues and come to a fair resolution without being biased and without unnecessary delay and expense.
  2. Conciliation
    An amicable settlement is facilitated between parties in this process. No prior agreement is needed.
  3. Mediation
    This technique is made to assist two or more parties in an agreement. The parties themselves determine the terms of the agreement, the mediator just facilitates in reaching that goal in an appropriate manner.

ADR has now become the need of the hour.

“Judiciary is an important institution… but the judicial system has collapsed. A big movement is needed to improve it,”

-Prashant Bhushan

The Indian Judicial system is under a lot of stress now because of several reasons but the most persistence one is the huge stack of pending cases. The number of cases being filed has shown tremendous increase in past years and the resultant is the delay of justice. Therefore, ADR has become the call of the hour to help the Indian Judiciary in sustenance.

The resolution was adopted in this context. An excerpt from the conference held in New Delhi on 4th Dec 1993 presided by the then CJI says:”

“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 the number of disputes lent themselves to the resolution by alternative modes such as arbitration, mediation and negotiation. They emphasized the desirability of the 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 current scenario has become grave as the judicial system struggles to breathe. The standoff between the government and Collegium system is only accelerating the collapse of the legal system.

The Apex court is finding it hard to meet ends. Around 60 to 70 matters are heard on Mondays and Fridays by every bench and the long list for other days are not completed by the end of the day.

The condition of High Courts is no better. There are more than 50% vacancies in High Courts which imply that each judge is carrying the workload of two judges. The outcome of all this is delay in justice deliverance. The cases are adjourned repeatedly, the date of next hearing comes after months and meanwhile the people have to bear all the expenses.

The data on pendency of cases is frighteningly high:
Supreme Court: 62, 657 cases
High Courts: 38, 70, 373 cases

It will take a long time to eliminate this backlog. There is sense of dissatisfaction and disappointment that can be addressed with a mechanism that ADR promises to provide.

ADR mechanism has various advantages that are helping in its growth exponentially. It is affordable and easily available to people belonging to every strata of society, especially the poor people who cannot afford the litigation expenses. It is a much less time consuming process unlike the traditional system which takes years to deliver justice. It is free from all the technicalities of the normal court and doesn’t require any expert knowledge. Moreover the feeling of losing is not there; hence all the parties go as winners in ADR.

ADR has now become a gratifying system. In many countries the ADR mechanism has made their prior law governing bodies passive.

Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser- in fees and in expenses, and a waste of time.”

Abraham Lincoln



ABOUT THE AUTHOR

prerna-deep

Prerna Deep is currently a first-year student at Campus Law Centre, University of Delhi.  She has completed English Honours from Miranda House, DU. Literature gave this forever bibliophile the wings to follow her heart and Law gave her the strength to believe that she too can change the world. She considers receiving an award for her essay on ‘Women and Law in India’ from Mr Ram Jethmalani a treasure. When not writing she’s probably binge-watching sitcoms.  She believes nothing describes her best than Virginia Woolf’s words:
“I have a deeply hidden and inarticulate desire for something beyond the daily life.”

Posted in Critical Analysis, Debatable topics, Sexual Assault

Whammy of Mediation and Negotiation in Sexual Assault cases

This article has been written by Yuvina Goyal. Yuvina is currently pursuing BA LLB(Hons.) from National University of Juridical Sciences(NUJS), Kolkata, West Bengal.

 

 

Beyond the shadow of doubt, it can be hooted that, non-traditional dispute resolution processes, like Alternative Dispute Resolution, are being widely accepted and are doing a stupendous job in resolving personal, commercial and civil disputes. In recent years, similar processes have been adapted and applied in a criminal justice context as part of an overall package of criminal justice reforms. Now the debate is, whether such ‘outside the court settlements’ can or should be applied in a criminal justice context. This raises normative questions as to the role of the justice system, sociological questions as to the nature of criminal offending and the relationship between the individual, the community and the state, and descriptive questions as to the adequacy of particular justice practices.

Undeterred by the  above arguments, in some of the cases involving rape or other sexual abuse or assault of the victim, the courts have ordered compromise between the parties by stressing on the need to enhance the role of mediation processes in criminal justice system in order to have an alternative to the time consuming expensive conventional court system. The human sentiments and social elements are taken into consideration while making such decisions. It may well be that participants in these types of disputes, also, opportunistically go for the process of mediation because of the promise of privacy and confidentiality.  These compromises are alleged to be justified on the grounds of Right to live with human (woman) dignity.

In this regard, I would moot, having criminal cases in hand, embroiling alleged commission of offences and not merely a civil wrong or a breach, it is pertinent to note that such offences are committed against the society as a whole. Here, not only the victim’s body and privacy and autonomy are barged, but the spirit of the society is besmirched and tampered. So, how can a few individuals go for ‘outside the court settlement’ and step back from the criminal prosecution.

Doesn’t such settlements, for instance, an agreement by a victim to marry one of the offenders who have previously gang-raped and assaulted her;   shake one’s conscious and minds and urge us to resort to the roads seeking justice? Some might say that this is more evidence of the coming of age of mediation in India, while others will cringe at how pragmatism has hijacked what was once a pure and principled process. But, the legal position stands as under:

Sexual assault is a crime against the body of a woman which is her own temple. These are offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasise, is the richest jewel one can conceive of in life. No one would allow it to be extinguished. When a human frame is defiled, the “purest treasure”, is lost. Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; Any kind of liberal approach or thought of mediation in this regard is thoroughly and completely sans legal permissibility.”[1]

Thus, a compromise entered into between the parties cannot be construed as a leading factor based on which lesser punishment can be awarded. Rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. What the Indian experience demonstrates is that, ADR programs must be adapted to the needs of particular communities. But, while adapting them in the criminal jurisprudence, caution of greatest possible degree must be observed while keeping in mind its impact on the society. This is particularly relevant to a consideration of whether mediation is appropriate for cases involving offences such as sexual assault or rape. Therefore, in the interest of justice the cases of sexual assault cannot be resorted to ADR as the compromise or settlement may be against her honour which matters the most.

[1] State of M.P. v. Madanlal,  2015 SCC OnLine SC 579, (decided on 01.07.2015).