Pendency of Cases a Bar on Right to Access of Justice

7/25/2019 Pendency of Cases a Bar on Right to Access of Justice

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ARTICLE

Pendency of Cases: A Bar On Right to Access of Justice

Shubham Singh*

Shobhan Srivastava**

INTRODUCTION

The term access to justice cannot be defined precisely as it has a very wide scope. The scope of

this phrase is intertwined with justice. Therefore On its turn, the definition of justice depends

on the contet it is being used. !or every society the term has a different significance. The

notion of justice evo"es the cognition of the rule of law, of the resolution of conflicts, of

institutions that ma"e law and of those who enforce it. #t epresses fairness and the implicit

recognition of the principle of e$uality.%&owever, a concept common to all definitions of justice

is its intrinsic neus with the dispute resolution because the primary goal of a dispute resolution

mechanism is to do justice. The dispute resolution mechanism chosen by a society reflects the

concept of justice in that society'. (udiciary plays the major role in this therefore for securing

right of access to justice in a society there needs to be a proper balance between the speed and

efficiency of justice dispensation mechanisms. )endency of cases in courts puts bar on this

mechanism and hence prohibits ccess to (ustice in society. &ence time has come to thin" the

strategies to clear judicial arrears and to guard right to access to justice by efficient and effective

resolution of disputes.Time has come for ustothin" solutions to reduce the pendency of cases in

various courts in the country.The model of judiciary followed in #ndia was designed during

%+-s. uring that period, only a small section of the population relied on /nglish modelled

1Rawl, J., A Theory of Justice, Cambridge, Cambridge University press, dition 1!!",

at 11

#$nternational Journal of %umanities and &ocial &cience $nvention,Access to 'ustice(

a critical analysis of alternate dispute resolution mechanisms in $ndia )olume #

$ssue * ++.-.


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courts for justice. research paper by )0S 1egislative 0esearch2places the current pendency of

cases as of 2th September '% at 2' 3illion cases pending in various courts in #ndia, of which

'+ 3illion cases are in lower courts and 4.' billion cases are in &igh 5ourts and 66 cases are

pending in Supreme 5ourt. pproimately 78 of these cases are pending before courts for over

% years and '48 are pending for over 6 years. Statistics also shows that )endency has increased

by %4+8 in the Supreme 5ourt, 628 in &igh 5ourts and 298 in subordinate courts in the last %

years. The reasons given by the :overnment for this increase include increase in institution of

fresh cases, inade$uate number of judges and vacancies, inade$uate physical infrastructure and

staff and fre$uent adjournments.4lternative ispute 0esolution is the answer to this need of our

#ndian Society. 0 includes dispute resolution processes and techni$ues that act as a means for

disagreeing parties to come to an agreement short of litigation. #t is a collective term for the ways

that parties can settle disputes, with or without the help of a third party.0 has gained

widespread acceptance among both the general public and the legal profession in recent years. #n

fact, some courts now re$uire some parties to resort to 0 of some type, usually mediation,

before permitting the parties- cases to be tried./.g. ;ediation in matrimonial disputes. The rising

popularity of 0 can be eplained by the decreasing caseload of traditional courts, the

perception that 0 imposes fewer costs than litigation, a preference for confidentiality, and the

desire of some parties to have greater control over the selection of the individual or individuals

who will decide their dispute.6 healthy democracy should have proper mechanisms to settle

disputes between citi


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pronouncements. #n order to cater to both these sections of the population, an effective

combination of both conventional and alternate dispute resolution mechanisms need to be

employed. This could be made possible by strengthening the eisting 0 mechanisms, as well

as by find new 0 mechanisms, to wor" supplemental to the conventional dispute resolution

mechanism of courts.

5O=>/=T#O=1 ;/T&OS O! 55/SS TO (?ST#5/

The conventional method of access to justice is the recourse to formal adjudication mechanisms

as provided by the State, i.e. approaching the courts. The present legal system in #ndia is based

on 3ritish legal system. #nitially it was confined to the four presidency towns of 3ritish ruled

#ndia, the system started epanding with the inclusion of #ndian states in the 3ritish /mpire.

Since the primary concern of the 5olonial masters was draining the economic resources of thecountry to 3ritain, thought it was tried to develop a sui generis legal model which could suit the

need of #ndian society9.The community justice system as well as in$uisitorial litigation model as

prevalent in #ndia prior to the advent of 3ritish was alien to the /nglish legal system. Thus the

legal system based on common law was imposed on #ndia. conse$uence of such imposition

was that the bodies of justice administration which earlier eisted in #ndia were thrown in cold

oblivion and their place was ta"en by the court type adjudication of disputes. This model of

litigation is also "nown as the adversarial model of litigation. #n this model, the State acts an

uninterested umpire of the dispute between the private parties. #f it is a criminal case, then the

proceedings are launched by the State, whereas in civil cases the onus of initiating the

proceedings is on the private individuals. #t is a "nown fact that multitude of cases that reach the

courts are of civil nature. Thus for a breach of contract or deprivation of a right, which would

have happened due to the States fault, still the proceedings are to be launched by the private

individuals. #t is pertinent to mention that in 3ritish period, no fundamental rights were

recogni


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ssembly, resolved to secure for all its citiecutive powers


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delay is due to the etended role of advocates in the litigation process. espite being officers of

the 5ourt, they do not have any accountability towards epedient disposal of cases. Similarly

there is no accountability of the judges to dispose of cases as early as possible.The cost of

litigation in #ndia is very high. This is also a repercussion of the adoption of adversarial model of

litigation. Since the court cases drag on for years, the costs increases manifolds.

1T/0=T#>/ #S)?T/ 0/SO1?T#O= ;/T&OS

/$uality is the basis of all modern systems of jurisprudence and administration of justice in so

far as a person is unable to obtain access to a court of law for having his wrongs redressed or for

defending himself against a criminal charge, justice becomes une$ual and laws which are meant

for his protection have no meaning and to that etent fail in their purpose. 7lternative dispute

resolution encompasses arbitration, mediation, conciliation, and other methods short of formal

litigation for resolving disputes. lternative dispute resolution offers several advantages over a

lawsuit. #t is less adversarial and in some cases can be faster and less epensive. #t can also

reduce court wor"loads. !or these reasons its use is being promoted by court reformers in many

developing and transition economies.%Bhen we adopt a model of alternative dispute resolution,

we have to see that there is a parity of power between the parties to the dispute. Thus a good

dispute resolution method should be such which minimi


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Supporters argue that such methods decrease the cost and time of litigation, improving access to

justice and reducing court bac"log, while at the same time preserving important social

relationships for disputants. Some definitions of 0 also include commercial arbitrationC

private adversarial proceedings in which a neutral third party issues a binding decision.0 is

generally classified into at least four typesC negotiation, mediation, collaborative law, and

arbitration.lternative ispute 0esolution is of two historic types. !irst, methods for resolving

disputes outside of the official judicial mechanisms. Second, informal methods attached to or

pendant to official judicial mechanisms. There are in addition free@standing and or independent

methods, such as mediation programs and ombudsman offices within organi


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0 can increasingly be conducted online, which is "nown as online dispute resolution EO0,

which is mostly a bu


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the parties. Bhen wool contract arbitration was conducted by senior guild officials, the arbitrator

combined a seasoned epert on the subject matter with a socially dominant individual whose

patronage, good will and opinion were important.

)rivate judges and summary jury trials are cost@ and time@saving processes that have had limitedpenetration due to the alternatives becoming more robust and accepted.

lternative dispute resolution in #ndia is not new and it was in eistence even under the previous

rbitration ct, %74. The rbitration and 5onciliation ct, %779 has been enacted to

accommodate the harmonisation mandates of ?=5#T01 ;odel. To streamline the #ndian legal

system the traditional civil law "nown as 5ode of 5ivil )rocedure, E5)5F %7+ has also been

amended and section +7 has been introduced. Section +7 E%F of 5)5 provides an option for the

settlement of disputes outside the court. #t provides that where it appears to the court that thereeist elements, which may be acceptable to the parties, the court may formulate the terms of a

possible settlement and refer the same for arbitration, conciliation, mediation or judicial

settlement.

ue to etremely slow judicial process, there has been a big thrust on lternate ispute

0esolution mechanisms in #ndia. Bhile rbitration and 5onciliation ct, %779 is a fairly

standard western approach towards 0, the 1o"dalat system constituted under =ational

1egal Services uthority ct, %7+A is a uni$uely #ndian approach.

Ar"itration

The process of arbitration can start only if there eists a valid rbitration greement between the

parties prior to the emergence of the dispute. s per Section A, such an agreement must be in

writing. The contract regarding which the dispute eists, must either contain an arbitration clause

or must refer to a separate document signed by the parties containing the arbitration agreement.

The eistence of an arbitration agreement can also be inferred by written correspondence such as

letters, tele, or telegrams which provide a record of the agreement. n echange of statement of

claim and defense in which eistence of an arbitration agreement is alleged by one party and not

denied by other is also considered as valid written arbitration agreement.

ny party to the dispute can start the process of appointing arbitrator and if the other party does

not cooperate, the party can approach the office of 5hief (ustice for appointment of an arbitrator.


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There are only two grounds upon which a party can challenge the appointment of an arbitrator H

reasonable doubt in the impartiality of the arbitrator and the lac" of proper $ualification of the

arbitrator as re$uired by the arbitration agreement. sole arbitrator or a panel of arbitrators so

appointed constitute the rbitration Tribunal.

/cept for some interim measures, there is very little scope for judicial intervention in the

arbitration process. The arbitration tribunal has jurisdiction over its own jurisdiction. Thus, if a

party wants to challenge the jurisdiction of the arbitration tribunal, it can do so only before the

tribunal itself. #f the tribunal rejects the re$uest, there is little the party can do ecept to approach

a court after the tribunal ma"es an award. Section 24 provides certain grounds upon which a

party can appeal to the principal civil court of original jurisdiction for setting aside the award.

The period for filing an appeal for setting aside an award is over, or if such an appeal is rejected,the award is binding on the parties and is considered as a decree of the court.

CONCILIATION

5onciliation is a less formal form of arbitration. This process does not re$uire an eistence of

any prior agreement. ny party can re$uest the other party to appoint a conciliator. One

conciliator is preferred but two or three are also allowed. #n case of multiple conciliators, allmust act jointly. #f a party rejects an offer to conciliate, there can be no conciliation.

)arties may submit statements to the conciliator describing the general nature of the dispute and

the points at issue. /ach party sends a copy of the statement to the other. The conciliator may

re$uest further details, may as" to meet the parties, or communicate with the parties orally or in

writing. )arties may even submit suggestions for the settlement of the dispute to the conciliator.

Bhen it appears to the conciliator that elements of settlement eist, he may draw up the terms of

settlement and send it to the parties for their acceptance. #f both the parties sign the settlement

document, it shall be final and binding on both.

=ote that in ?S, this process is similar to ;ediation. &owever, in #ndia, ;ediation is different

from 5onciliation and is a completely informal type of 0 mechanism.


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LO# ADALAT

/tymologically, 1o"dalat means Gpeople-s courtG. #ndia has had a long history of resolving

disputes through the mediation of village elders. The current system of 1o"dalats is an

improvement on that and is based on :andhian principles. This is a non@adversarial system,

whereby moc" courts Ecalled 1o"dalatsF are held by the State uthority, istrict uthority,

Supreme 5ourt 1egal Services 5ommittee, &igh 5ourt 1egal Services 5ommittee, or Talu"

1egal Services 5ommittee, periodically for eercising such jurisdiction as they thin"s fit. These

are usually presided by retired judge, social activists, or members of legal profession. #t does not

have jurisdiction on matters related to non@compoundable offences.

Bhile in regular suits, the plaintiff is re$uired to pay the prescribed court fee, in 1o"dalat, there

is no court fee and no rigid procedural re$uirement Ei.e. no need to follow process given by

I#ndianJ 5ivil )rocedure 5ode or #ndian /vidence ctF, which ma"es the process very fast.

)arties can directly interact with the judge, which is not possible in regular courts.

5ases that are pending in regular courts can be transferred to a 1o"dalat if both the parties

agree. case can also be transferred to a 1o"dalat if one party applies to the court and the court

sees some chance of settlement after giving an opportunity of being heard to the other party.

The focus in 1o"dalats is on compromise. Bhen no compromise is reached, the matter goes

bac" to the court. &owever, if a compromise is reached, an award is made and is binding on the

parties. #t is enforced as a decree of a civil court. n important aspect is that the award is final

and cannot be appealed, not even under rticle ''9 of the 5onstitution of #ndia Iwhich

empowers the litigants to file Brit )etition before &igh 5ourtsJ because it is a judgment by

consent.

ll proceedings of a 1o"dalat are deemed to be judicial proceedings and every 1o"dalat is

deemed to be a 5ivil 5ourt.

Per$anent Lo%Ada&at for 'u"&ic uti&ity ser(ices

#n order to get over the major drawbac" in the eisting scheme of organi


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the parties are advised to see" remedy in a court of law, which causes unnecessary delay in

dispensation of justice, 5hapter ># was introduced in the 1egal Services uthorities ct, %7+A,

by ct =o.2AD'' with effect from %%@9@'' providing for a )ermanent 1o"dalat to deal

with pre@litigation, conciliation and settlement of disputes relating to )ublic ?tility Services, as

defined uDsec.'' of the 1egal Services uthorities ct, %7+A, at pre@litigation stage itself,

which would result in reducing the wor" load of the regular courts to a great etent. )ermanent

1o"dalat for )ublic ?tility Services, &yderabad, #ndia

The 1o"dalat is presided over by a sitting or retired judicial officer as the chairman, with two

other members, usually a lawyer and a social wor"er. There is no court fee. #f the case is already

filed in the regular court, the fee paid will be refunded if the dispute is settled at the 1o"dalat.

The procedural laws, and the /vidence ct are not strictly followed while assessing the merits of

the claim by the 1o"dalat.

;ain condition of the 1o"dalat is that both parties in dispute should agree for settlement. The

decision of the 1o"dalat is binding on the parties to the dispute and its order is capable of

eecution through legal process. =o appeal lies against the order of the 1o"dalat.

1o"dalat is very effective in settlement of money claims. isputes li"e partition suits, damages

and matrimonial cases can also be easily settled before 1o"dalat as the scope for compromise

through an approach of give and ta"e is high in these cases.1o"dalat is a boon to the litigantpublic, where they can get their disputes settled fast and free of cost.

CONCLU!ION

healthydemocracy should have proper mechanisms to settle disputes between citi


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strengthening the eisting0 mechanisms, as well as by find new 0 mechanisms, to

wor"supplemental to the conventional dispute resolution mechanism of courts. !orthis the 1egal

Service uthorities, which are giving the legal support to 0mechanisms in #ndia need to be

strengthened. 1egal Service uthorities shouldalso move beyond the eisting unwritten

boundaries drawn by collectivebargaining strength of lawyers and should thin" of more effective

mechanisms forresolution of disputes, li"e online dispute resolution platforms, tapping

resourcesoutside legal profession for dispute resolution li"e establishing dispute resolutioncells

in law schools so that law students graduate out with proper training indispute resolution

processes and philosophy, coordinating dispute resolutionstrategies around various sectors

involving persons "nowledgeable in therespective sectorEfor eample, establishing monitoring

and researching onspecialised dispute resolution mechanisms in medical institutions,

necessarilyinvolving medical professionals along legal professionals, would enable

theinstitutions to settle most of the issues arising in medical institutions through themechanism

without need to ta"e the dispute to conventional courts. F, utilising theresources identified

through =ational (udicial Talent Search process for disputeresolution, so that the resources can

ma"e sufficient earning through an effectivecombination of conventional and non@conventional

dispute resolution methods,without compromising their integrity.

Documents

Pendency of Cases a Bar on Right to Access of Justice