ADR MECHANISM AND ITS IMPACT ON TRADITIONAL JUSTICE DELIVERY SYSTEM
Kabir Jaiswal[1] & Astutya Prakhar[2]
Indian judiciary is considered to be one of the oldest institutions of justice. Since the foundation of the Supreme Court on 28 January 1950, it has pursued justice for the innocents and reprimanded the one proven guilty. At present, the Indian judiciary is confronted with some critical questions. The principal is ‘case pendency’. A sum of 3.3 Crore lawsuits is standing before the judiciary[3], 2.84 of which are listed before the lower courts, 43 lakhs before the high courts and 57,987 before the Apex Court, as per India Today’s report. In a meeting with India Today, the former Chief Justice of India, Dipak Mishra, showed his worries asserting that a significant number of under-trials rot away in prisons across the nation because they don’t get bail and many even end up wasting more than the sentence they had been sentenced.
ADR framework, in India, is not a new thought. It has been in tradition since the time immemorial when there used to be an old man from the family who had the right to make judgments after discussing it with the other individuals who used to be part of the conflict. Then there was the village structure of panchayats who agreed in favor of their community’s social and religious function. Alternate conflict settlement is a process outside the regular court to settle conflicts. It has been adopted under section 89 of the Code of Civil Procedure (CPC)[4]. The main objective is to handle and swiftly solve disputes at a reasonable cost. It is a cooperative form of conflict settlement because it has a very minimal adversarial influence on enterprise and people’s relationships. Individuals who choose for litigation are at a massive disadvantage because the proceedings last for years and cost you lump-sum. It often causes frustration and anger with the court system and portrays a negative image of the justice delivery system. This was summed in a common expression, ‘justice delayed is justice denied’[5].
The principles of natural justice and the rule of law should be able to provide complete justice within a civilized community. The rule of law is the theory, philosophy or interpretation applied to the relevant facts. The rule of law is an authoritative construct that prompts a win-lose situation. However, when implemented along with the ideals of natural justice, as in the process of ADR, this results in a win-win situation, which develops more individual’s contentment. Hence, ADR’s approach is rising in popularity in a circumstance whereby legal action is inducing immense distress.
ADR seems to have several advantages affixed to it, and there could be no greater than saving your time and resources and your effort and energy down the tube. It confidentially settles one’s conflict, and its rulings are legally enforceable. The person appointed by the participants is a third party representative and shall be chosen with the approval of all sides. The place for settling the disagreement may also be agreed upon following the parties comfort. Lawsuits are a time-consuming ordeal, and costly. Fees must be rendered to lawyers, legal teams, court staff and other miscellaneous expenses. ADR is accelerated whereas lawsuits take an unusually long time to settle the case. ADR thus promotes the continuity of the relationship’s equilibrium. ADR provides greater leverage and swift settlement of different types of conflicts when contrasted with litigation. Throughout this era where India is witnessing the proliferation of lawsuits, where more than 10 crore individuals are awaiting relief, the ADR model is needed to provide justice to all prospective complainants.
The judge assigned to settle the issue is an unbiased individual, and seldom grants the sides the right to self-determination. Throughout the process justice is safeguarded. And when the approach of good governance is enforced properly, it could guarantee minimal corruption. It would also lay the groundwork for communities and disadvantaged segments of society to be heard in the process, such as the scheduled tribe and scheduled caste, as well as individuals below the poverty threshold.
We deduce that ADR is a voluntary method in which sides can bargain and come to a consensus ad idem. It is prompt and even-handed. It is non-confrontational since no winners or losers are observable. It is a protected procedure. It often produces a negative perception of the individual as we pass on to our concern, although it may not be so. Females are far more susceptible to the assassination of character as that detrimentally affects their lives. ADR helps the parties concerned in the conflict to resolve this by keeping the matter constrained. ADR is a cooperative system because it promotes open dialog between the sides. It is a profound method, as sides seek the peace of mind and help to restore connections and strengthen them. ADR contributes to improvement over the long term. Therefore, we find that the ADR approach is more reasonable, virtuous and rational.
The ADR process influences the conventional legal system often in a negative fashion. ADR is far more favorable and it appears to be preferred by people before litigation. ADR enables one to reach a consensus that is in the interests of both sides, and people prefer to settle their disagreements through this method as it is easier to negotiate than to be on the brink of the total loss. Senior advocates demand them for immense amounts regardless of realizing their condition and their circumstance. Throughout the judicial system it can be observed that lower and disadvantaged classes are being abused due to excessive stress on the court to settle the pending lawsuits. In the case of B.Sunitha v. State of Telangana [6], the claimant filed a case to get damages for the loss of her husband. She received compensation. For this very purpose she hired a lawyer and paid him 10 lakh rupees for his service. The lawyer subsequently compelled the appellant to sign a cheque of 3 lakhs of rupees and 16 percent of the sum. The cheque bounced and a case was filed by him. The prosecutor claimed he had employed certain other senior lawyers for the numerous cases and therefore need to pay them. The court concluded that this debt is not enforceable by law. Charges of undue influence were maintained, as a fiduciary agreement exists between the lawyer and his client. This was stated that the justice system should be inexpensive and accessible.
Further courts are unable to give the time needed to each case due to the current percentage of proceedings in a day and will continue to adjourn the cases to a future date. It affects people’s business and puts them under existential anguish, too. There’s no wonder discovering media coverage of people attempting suicide as their case has not been resolved and the tremendous debt has left them broke, having no survival means, they give up on life. In reality, it is discovered that individuals are suffering extreme depression either because they are a subject of being unable to afford a lawsuit due to the high cost and media coverage of private matters, or because their dispute has been unresolved for decades and fair treatment in the administration of justice has not yet reached their threshold.
ADR, whose concept that originated in the U.S.A., is becoming the necessity of the era. ADR could be seen receiving confidence from the individuals. The businesses in particular tend to use the ADR approach to settle disputes perhaps to prevent prolonged judicial proceedings. This is also a smooth process, and because of that people from the lower segments of society would find it easier to settle their conflicts lawfully. Discourage litigation. Encourage your colleagues wherever and whenever you can, to negotiate. Figure out how sometimes the perceived champion is the actual loser-in fines, costs, and time. An advocate has a better potential to be a principled man, as a peace-maker.
Abraham Lincoln’s words in furtherance of the ADR pathway glorifies its significance.
“Quarrel not at all. No man resolved to make the most of himself can spare time for personal contention. Still, less can afford to take all the consequences, including the vitiating of his temper and loss of self-control. Yield larger things to which you show no more than equal right, and yield lesser ones, though your own. Better give your path to a dog than be bitten by him in consenting for the right. Even killing the dog would not cure the bite.”[7]
[1] VI Semester, B.A.Ll.B(Hons.), National University of Study and Research in Law, Ranchi.
[2] II Semester, B.A.Ll.B(Hons.), National University of Study and Research in Law, Ranchi.
[3] According To National Judicial Data Grid (Njdg) [Available Here].
[4] Section 89, The Code of Civil Procedu
re, 1909.
re, 1909.
[5] Martin Luther King, Jr., used the Phrase in the form “Justice too Long Delayed is Justice Denied.”
[6] Criminal Appeal No. 2068 Of 2017 (Arising Out of Special Leave Petition (Crl.) No.10700 Of 2015).