This article has been written by Namrata Kandankovi, student of Symbiosis Law School, Pune. The author of this article has discussed the existence of Lok Adalats in India, their working, changes which are needed to be brought for further improvement, working of Pune District Legal Services Authority and essential aspects of the same.
The Indian judiciary is one of the oldest judicial systems. With the passage of time, the system has become inefficient to deal with pending cases. Indian courts are clogged with long unsettled cases, hence analyzing such a situation calls for improvement in order to come up with a better alternative, as hundreds of cases are still pending and this calls for grave attention. Considering the Indian scenario it can be said that ADR plays a significant role by its diverse techniques, in overcoming the problem of pendency of cases . It can be further said that ADR– Alternate Dispute Mechanism provides a convenient way of resolving disputes. It offers to resolve matters including that of civil, commercial, industrial and family etc . Modes of Settlement under ADR include:
- Negotiation, and
- Lok Adalat.
Understanding ADR Mechanism in India
ADR in its simple terms can be defined as a process which differs from that of judicial determination, and this process basically involves an impartial person assisting those in dispute in order to resolve the matter between them. Put in a precise way, ADR can be said to be an “assisted” or “appropriate” dispute resolution. In certain cases, ADR can even include approaches which enable parties to manage their disputes amongst themselves without outside aid or support. It can further be said that ADR provides a cost-effective, relevant, fair and timely means of resolving the disputes involved.
Certain Important Provisions related to ADR
- Section 89 of Civil Procedure Code provides a provision which lays down that if it appears for the court that there exists some element of settlement of issues between the parties, then it may order settlement of issues outside the court and it can be by the way of – Arbitration, Mediation, Conciliation or Lok Adalat.
- Article 39 of the Constitution relating to Directive Principles of State Policy, which provides that the state shall secure the operation of a legal system which provides equal opportunities and in addition, it shall also make free-legal aid available to the person by the way of suitable legislation or schemes, this even ensures opportunities for securing justice and not to deny it to any person based on their economic or financial disabilities .
- Article 14 and 21 of the Indian Constitution deals with equality before law, right to life and personal liberty respectively, taking into account the ADR motive it can be said that it tries to provide socio-economic and political justice and also maintain integrity in the society.
- Arbitration and Conciliation Act, 1996 the various Acts under this deal with alternate dispute resolution.
- The Legal Services Authority Act, 1987 the rules framed under this Act prove to be of great use while dealing with the Alternate Dispute Resolution.
Various Aspects of ADR Mechanism
- Arbitration- For the process of arbitration to be successful, there should be an arbitration agreement between the parties. In this technique, parties refer their dispute to one or more other parties who are known as the ‘arbitrators’. Henceforth, the decision of arbitrators is bound on parties and their decision is called ‘award’. The very prime object of arbitration can be said to achieve fair and bonafide settlement of issue outside the court.
The intricacies of the arbitration proceedings in the current day scenario vary with the arbitration agreement. For instance, there could be a timeline which ought to be followed by the parties, and this timeline might be stipulated by the agreement and hence to be followed. Further Section 8 of Arbitration and Conciliation Act, 1996 provides that if one of the parties refers the case to the Court by the way of a suit, then the other would have the right to apply for the Court in order to refer the matter to arbitration. The application must include a certified copy of the arbitration agreement and if the Courts are satisfied with it, the matter will be referred to arbitration.
- Mediation- Mediation can be termed as one of the ADR processes where a neutral third party mediates between two other parties in dispute. This process can be said to be party centred and also, the mediator cannot impose his views and cannot make his/her own decisions. In short, it can be said that the mediator just acts as a facilitator for the parties to reach an agreement. The mediation process works in 4 different stages:
- Opening statement
- Joint session
- Separate session and
It is the best possible outcome which both parties in a dispute come up with or have in minds. It provides for a suitable situation as each party thinks about what its most favourable scenario looks like.
For a successful negotiation, the result always lies in the intermediate stage, mediator after considering both the parties comes out with the most likely outcome. Here the result is not always in the intermediate stage but a little bit swayed towards either of the parties involved in the mediation depending on negotiation situation.
In the worst possible outcome, a party has in their mind for what could happen during negotiation.
- Conciliation- Conciliation can be defined as something that is less formal in nature when compared to other ADR processes. Conciliation can be defined as a process which is used for facilitating an amicable relationship between the parties who are at differences. The prime purpose of the conciliator would be to lower the tension between the parties and improve communication between them .
- Lok Adalat- Lok Adalat is popularly known as ‘People’s Court’ and is presided over by a sitting or retired judicial officer, social activists or members of legal profession as the chairman. National Legal Service Authority(NALSA) along with other Legal Services Institutions conducts Lok Adalats at regular intervals for the exercise such jurisdiction. Any case pending in regular court or any dispute which has not been brought before any court of law can be referred to Lok Adalat .
- Negotiation- Negotiation can again be stated as something which makes the process more party-centred and further allows the parties to take control of the situation themselves. This adds to the smooth functioning of the system. There are various essentials of negotiation which play a significant role in its working which are mentioned as under:
- It is a communication process.
- It resolves conflicts.
- It is a voluntary exercise.
- It is a non-binding process.
Identifying Issues and Challenges in ADR
The concept of ADR has gained legal recognition in the contemporary world over a period of time. But at the same time, bringing the focus on India it can be said that the concept of ADR has been prevalent in India’s ancient history. Finding its roots in ancient India, the concept of ADR can be traced back to Panchayats. The working of Panchayats proves to be an example of an out of the court resolution. It can even be said that the practice is still prevalent in villages in India.
Various Challenges posed by the ADR methods
- Expensive and high-end service– It is to be understood that this process is a costly affair, as a very few are specialized in it who are competent enough to arbitrate on various issues. And hence, the process ends up to be an expensive and high-end service.
- Too flexible in nature– ADR is too flexible in nature and there is no guarantee in its proceedings. There is no set procedure which is required to be followed while finding solutions through ADR. When this is compared to the system followed by the courts, the latter, that is approaching a court becomes more reliable to a common man.
- Principle of Arbitrability of subject matter– The Indian Law mainly recognizes Arbitration by the way of ADR, which further makes the matter very much subjective. Most matters which have specific legislation to its name are left out due to the non-arbitrability of its subject matter.
- Intervention of Courts– The very purpose of ADR methods is to avoid going to courts, however, the intervention by courts is inevitable, intervention by the courts is universal and hence observed throughout the world . A number of matters also reach the highest court. India follows the same system and a large number of arbitration matters are filed in the lower courts .
- Autonomy of parties may be put to stake– Arbitration involves creation of a contract between the parties. It can be said that the autonomy of the parties in the process is not unbridled, but at the same time in certain cases, there can be no 100% assurance given to the parties regarding the same.
- Cultural Norms– It can be said to be a sad reality that most of the arbitrators do not understand how matters regarding ADR are resolved in various parts of India, and adding to this point, hardly any of them have proper understanding of traditions and cultures in India and as a result of this they fail to understand the perspective in the issue at hand.
- Adequate Human Resources– Lawyers in India are often not trained in the practice and law of arbitration, as there is a tendency among them to fight the matters in the court in a more productive way and as a result of this, there exists a backlash in the arbitration proceedings. It is not enough to enact a progressive law on arbitration, it should also be made sure that there are professionally trained individuals to carry out the working of the same .
Critical Evaluation of System of Permanent Lok Adalat and PDLSA
For the purpose of better understanding of the concept and working of the permanent lok adalats, this article attempts to break down the concept into smaller fragments and further elucidates the individual fragments in the forthcoming segment as mentioned below.
Permanent Lok Adalat
The chief motive behind setting up of Lok Adalat was to lessen the burden of the courts; It was on March 14, 1982, at Junagadh in Gujarat that the first Lok Adalat was held. Lok Adalats have witnessed success in settlement of many cases such as family disputes related to labour, bank recovery, etc. When a statutory status was provided to Lok Adalats, it was mentioned in the case that, whenever a Lok Adalat passes an award or a compromise, it would be held equivalent to the decree of a court, executable as a decree of a civil court.
Features of Permanent Lok Adalat
Unlike any other courts or tribunals, permanent lok adalats works on a regular basis for permanent dispute resolution. However, the Legal Services Authorities Act was amended in the year 2002 and Chapter 6 pertaining to Permanent Lok Adalats was inserted, which further came up with other required changes in order to be in line with the changing notions of society.
Presiding officer in Permanent Lok Adalat
In order to be the Chairman of the Permanent Lok Adalat, one must be either a District Judge or an Additional District Judge or has held a judicial office higher in rank than that of a District Judge. Two other persons having adequate experience in public utility services are also appointed by the government.
Jurisdiction of Permanent Lok Adalat
The jurisdiction of PLA can be invoked only in the pre-litigation stage and this has to be done by making an application to PLA for settlement of issues. Once, the jurisdiction has been invoked, the parties cannot take a recourse before a court of law. However, the jurisdiction of Permanent Lok Adalats does not relate to any non-compoundable offence or where the value of the property in dispute exceeds ten lakhs. Permanent Lok Adalats cannot take cognizance of a matter which is already sub-judice in a court of law .
Order for Producing Evidence
The Lok Adalat can direct the parties to produce the evidence other than the documents if the case before it requires the same while conducting a conciliation proceeding. In addition to this, it must also follow the principles of fair play, natural justice and equity, further, it should not be bound by the Code of Civil Procedure, 1908 and The Indian Evidence Act, 1872.
The award passed by PDA
When the parties reach an agreement on the settlement of the dispute, they are required to sign the settlement agreement and the permanent lok adalat then passes an award in terms thereof and must furnish a copy of the agreement to each of the parties concerned. Where the parties fail to reach a settlement or if the dispute does not relate to any offence, the matter is decided based upon the merits of the case.
Residuary Jurisdiction of PDA
Permanent Lok Adalats have a residuary jurisdiction, in addition to the jurisdiction enjoyed by the Lok-Adalats, to decide the dispute by virtue of Section 22 of Arbitration and Conciliation Act , even if the parties have failed to resolve the dispute after conciliation. Permanent Lok Adalats cannot take cognizance of a matter which is already sub-judice in a court of law .
Pune District Legal Service Authority (PDLSA)
In India, lawyers have been the strongest group to promote the development and progress of socio-political struggle which exits in the country. Individually and collectively, they have been the force behind India’s biggest political and social victories.
Objects of PDLSA
- To critically analyse the need for legal aid.
- To study the role of legal service authority, courts and law schools.
- To critically analyse the legal aid work in the court properly.
- To make a recommendation.
There are various steps being taken up by the PDLSA for the collective welfare of the society and by the way of that, ensuring the loopholes in the contemporary world being covered by the way of legal aid, and certain significant measures taken up by the PDLSA which have worked out in its advantage can be listed as under:
Free Legal Aid for Senior Citizens in Pune– In recent times senior citizens have increasingly become victims of harassment in domestic disputes. PDSLA decided to provide senior citizens with lawyers who can assist them in civil, domestic or criminal cases.
- The senior citizen will not have to pay even a single penny, as the authority would do the same depending on how genuine the case, is after going through the merits of the same.
- PDSLA will pay lawyers 1,200 per hearing in order to fight these cases.
- In addition to all this, lastly, it should also be noted that senior citizens are even exempted from paying the court fee stamp duty.
Legal aid on wheels for Pune city, by PDSLA- On the 23rd of June 2016, the PDSLA launched Mobile Legal Services-cum-Lok Adalat scheme where a van would be ferried across various areas in Pune district as part of its “Justice at your doorstep” campaign. There is a dire need for such initiatives to take place, as a humongous section of the population lacks basic legal knowledge and hence, they are apprehensive about approaching legal service centres. The Lok Adalat van comprises of lawyers, social activists, teachers, judicial officers, law students etc. and they would be beneficial for such people as they would be getting justice at their doorsteps.
Suggestions to Improve the current system of Lok Adalat
- Clear and Distinct Definitions for Various ADR Processes– The government must strive to come up with succinct, lucid and intuitive definitions and explanation for the various ADR processes, as there exists confusion regarding the various processes. It should also attempt to rectify the confusion related to what ADR constitutes.
- Distinct Legal Framework for Laws Pertaining to Arbitration, Mediation, Conciliation– The government must come up with clear, distinct statutes that would provide a framework which can further be identified with the specific ADR processes. This would in turn greatly help the practitioners in structuring the mediation process on a more solid footing and a strong underlying legal principle.
- Improve Success Rate of Court-Mandated Mediation– The government must incentivise parties to seek mediation in order to resolve disputes by being more accommodative to the concerns. The government must make efforts to take the concerned stakeholders in confidence and work out a roadmap which would ensure statutes specific to mediation in an unbiased manner.
- Penalize Litigation Culture– The government must try and discourage the parties who are willing to opt for the litigation process by making the litigation process more expensive than ADR. This would prompt parties to approach ADR institutes as the first mode or step of conflict resolution. This would also reduce the burden on the courts as well .
- Include ADR Concepts to Make Law School Curriculum more holistically– The government must recognize that most legal practitioners build their foundations in law schools, the curriculum of which is largely focused on training students for litigation-oriented practice. Students aren’t conditioned to recognize which cases are appropriate for immediate settlement through ADR methods such as mediation and which cases are suitable for litigation. So this gap which exists in laws schools regarding the education of students should be bridged.
- What exactly are Permanent Lok Adalats?
The courts establish national legal service authority and also state legal service authority for speedy disposal of disputes of cases which are pertaining to public utility services, and after being dealt with, these are not recorded in the court of law, by way of compromise and these are called the permanent Lok Adalats.
- What type of matters are adjudicated upon in Permanent Lok Adalats?
A Lok Adalat has the jurisdiction to settle, by way of effecting a compromise between the parties, any matter which may be pending before any court, as well as disputes which have not yet been formally instituted in any court of law. These may include civil, domestic or even criminal cases, where the parties have grievances and in need of legal aid.
- Who are the Judicial Officers presiding over a Permanent Lok Adalats?
The PDA comprises of Chairman who must be either a District Judge or an Additional District Judge or has held a judicial office higher in rank than that of a District Judge. Two other persons having adequate experience in public utility services are also appointed by the government.
- What is the law mandating the conduction of the Permanent Lok Adalats?
Legal Services Authority Act, 1987 gives the statutory status to Lok Adalats, which is pursuant to the constitutional mandate in Article 39-A of the constitution of India, which contains various provisions for the settlement of issues/disputes through Lok Adalats.
- What is the difference between an actual Court and a Permanent Lok Adalats? Are they any different?
Permanent Lok Adalats are fast track courts where cases are disposed of by the means of settlement between the parties, for speedy disposal and to reduce the burden on courts.
The courts, on the other hand, follow the litigation process of dealing with the cases which include procedures like that of filing of a suit by the parties and so on.
- What is the one most important thing to learn about the NALSA Act, PDLSA & Permanent Lok Adalats?
One most important thing about NALSA Act, PDLSA and PDA are that there is a grave need in the current days for such activities to come up and intervene in the matters of dispute resolution as there is already existing burden on the courts which is to be lessened. Going through the working of these Acts, it can be said that they have been successful in delivering to the parties what they actually need.
- What do you think is the significance of the Permanent Lok Adalats in India?
The concept of Lok Adalat has been a success in practice. Lok Adalats play a very important role to advance and strengthen “equal access to justice”, the heart of the Constitution of India, and try to make it a reality. This Indian contribution to the world of ADR jurisprudence needs to be taken full advantage of. Hence, the idea of Lok Adalat has to be upheld.
- What do you have to say about the functioning of the Permanent Lok Adalats Do you have any suggestions for its improvement, if any?
The functioning of Lok Adalat till date has been advantageous to the parties in India, and hence, it can be said that their functioning is of help to the public at large. At the same time there is even scope for improvement in the way it functions, as there can be a distinct legal framework for it, and maintaining a track of a success rate of it for further improvement and also penalizing litigation culture would work in its favour.
- Should law students pay visits Permanent Lok Adalats, why?
Yes, it is indeed very essential for law students to visit Lok Adalats, as there is need for law students to have the appropriate knowledge about the working of Lok Adalats as it would come in handy for them in their professional carriers and would also act as an added advantage to the society, in solving the legal disputes in a more grounded manner.
- Anubhav Pandey, All you need to know about Alternative Dispute Resolution (ADR), Ipleaders – Intelligent legal solutions(May 9, 2017) https://blog.ipleaders.in/adr-alternative-dispute-resolution/.
- Vinay Vaish, Partner, Vaish Associates Advocates, Alternate Dispute Resolution (ADR) In India, Vaish Associates Advocates(11 December 2017) http://www.mondaq.com/india/x/654324/court+procedure/Alternate+Dispute+Resolution+ADR+In+India.
- S.Chaitanya Shashank, Kaushalya T. Madhavan, KIIT School Of Law, ADR in India: Legislations and Practices, Academike – Articles on legal issues(January 7, 2015) https://www.lawctopus.com/academike/arbitration-adr-in-india/.
- Henry J. Brown, Arthur L. Marriott, ADR Principles and Practice, 205-06 (2d ed. 1911)
- Dr Anil Kumar Singh, ADR Mechanism in India: Achievements and Challenges, Indian Journal of Research(8 August 2016) https://www.worldwidejournals.com/paripex/recent_issues_pdf/2016/August/August_2016_1471096198__42.pdf.
- Hooters of America v. Phillips, U.S. 4th Circuit Court of Appeals, CA-96-3360-4-22, April 8, (1999)
- Konkan Railway Corporation v. Mehul Construction Co., 2000 (7) SCC 201
- Rebecca Furtado, Permanent Lok Adalats- A Critical Study, Ipleaders – Intelligent legal solutions(September 21, 2016) https://blog.ipleaders.in/permanent-lok-adalats-critical-study/.
- P.T. Thomas v. Thomas Job, AIR 2005 SC 3575, See Also Vijaykumar Shrikrushna Chowbe v. Priya S. Dhanokar, “Lok Adalat – A strategic Forum For Speedy and Equitable Justice”.
- United India Insurance Co. Ltd. v. Ajay Sinha, AIR 2008 SC 2398
- Christopher W. Moore, The Mediation Process: Practical Strategies for Resolving Conflict, (2d ed. 2012)
- Jacqueline M. Nolan-Haley, Alternative Dispute Resolution in a Nutshell 230-43(3d ed. 2000).