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

Dispensation of Justice - A major function of the State 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

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

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

Common A.D.R. Systems Arbitration Agreement between the parties   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   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

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

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

Dimension of the problem Cases pending - end of 2005 High Courts (Civ. And Crl.) – 35,21,283  Average institution and disposal per year 14,00,000 – 12,00,000

District Courts Cases pending - end of 2005 – 2,56,54,251   Cases pending - end of 2005 – 2,56,54,251 Average institution per year – 1,60,00,000 (Approx.)  Average disposal per year - 1,50,00,000 (Approx.)

 High Courts – 726 – Vacancy – 138 Strength of Judges    High Courts – 726 – Vacancy – 138  District Courts (30.06.06) – 14,582 – vacancy -2860 Ratio of Judges – Population  12/13 Judges per Million  Recommendation – 50 per Million.

Half of the expenditure raised from judiciary itself  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

Contractual – future and present dispute Award :– Arbitration :– Contractual – future and present dispute   Award :– Executable – challengeable – limited ground

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

Sec. 80 / O. XXVII R. 5B 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.   (2003) 1 S.C.C., 49 (2005) 6 S.C.C. , 344

Lok Adalat ( Not yet established in all states ) 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 by State Authority/District Authority 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 non-compoundable offences   Pre-litigation disputes 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   An effective ADR Model bill drafted  Uniform law in the process

Role of Executive Officers Sec. 80 C.P.C./ Order 27 Rule 5B 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