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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)
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“To no man will we deny, to no man will we sell, or delay, justice or right” - Magna Carta – 1215
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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 )
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Adversary / Adjudicatory System:-
Parties fight Judge, a neutral umpire Decision – comparative merit
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Parties’ participation – minimum Technicalities – slow progress
Major drawbacks Parties’ participation – minimum Technicalities – slow progress Expensive Win-lose situation Accumulation of arrears
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Term A.D.R. Developed in USA
Developed in USA A.D.R. – resolution of disputes with assistance of impartial third party
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Common A.D.R. Systems Arbitration Agreement between the parties
Arbitration Agreement between the parties Award by Arbitrator
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Conciliation Agreement between the parties Active role of conciliator No award Mediation Facilitates settlement between the parties themselves
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A.D.R.s Very effective in:- Domestic International Commercial disputes
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A.D.Rs – benefits Low costs and formalities Expeditious Parties’ participation – maximum Result – win - win
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Limitation of A.D.Rs Not workable in all disputes/penal offences Hidden costs Awards challengeable Chances of failure
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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
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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)
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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
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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.)
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High Courts – 726 – Vacancy – 138
Strength of Judges High Courts – 726 – Vacancy – 138 District Courts ( ) – 14,582 – vacancy -2860 Ratio of Judges – Population 12/13 Judges per Million Recommendation – 50 per Million.
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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
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Clearance of backlog – A distant dream
Resort to A.D.R.s – A solution
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Arbitration and Conciliation Act - 1996
Sec. 2 to 43 – Arbitration Sec. 61 to Conciliation
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Contractual – future and present dispute Award :–
Arbitration :– Contractual – future and present dispute Award :– Executable – challengeable – limited ground
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Conciliation Present dispute Invitation by one – accepted
Present dispute Invitation by one – accepted Conciliator’s role – agreement – Enforceable
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Sec. 80 / O. XXVII R. 5B C.P.C. Scope of amicable settlement in suits involving State – Act of public officer – Court to assist
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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
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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 )
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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
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Disputes settled within legal framework through negotiations-II
All cases except non-compoundable offences Pre-litigation disputes Executable decree / no appeal
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Merits of settlement in Lok Adalats
No court fees / no costs Lawyers not essential Speedy / single day disposal Involvement of the parties / simple procedures
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Cases settled in Lok Adalats upto 30.09.2006 :–
2, 02, 93, 952
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Nyaya Panchayet An effective ADR Model bill drafted
An effective ADR Model bill drafted Uniform law in the process
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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
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Aim Reduction of load from conventional courts – the demand of the day
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Conclusion A supplementary system – Not a substitute
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Thank you
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