By Oyshee Gupta (CNLU Patna ) & Suhaas Arora (RGNUL, Patiala)
This piece discusses the dispute resolution mechanism that is known as Lok Adalats. Instituted under the Legal Services Authorities Act of 1987, Lok Adalats beckon the bright future of alternate dispute resolutions in India.The institution has attracted sufficient support for its emphasis on accountability and its litigant-friendly approach. This also draws attention to the need for decongestion of the justice system so as to make it more accessible as well as conducive to speedy delivery of justice.
Any conflict is like cancer. The sooner it is resolved, the better it is for the parties involved and the society in general. The conflict grows at an exponential rate if it is not resolved at the very first stage. One dispute leads to another and it is thus better to resolve it the very moment it arises. The method to achieve this goal must be agreed upon by both the parties involved. The state of uncertainty and indecisiveness should be as brief as possible.
The Constitution of India has defined and declared ”to secure to all the citizens of India , Justice-social, economic and political; liberty; equality and fraternity” as the common goal for its citizens. The eternal value of constitutionalism lies in the Rule of Law, which has three facets : Rule by Law, Rule under Law and Rule according to Law.[i]
Alternate dispute Resolution(ADR) originated in the USA as an endeavour to find alternatives to the traditional legal system that was regarded as adversarial, costly, unpredictable, rigid, over-professionalized, damaging to relationships, and limited to narrow rights-based remedies as opposed to creative problem solving. The American origins of the concept are not surprising, given certain features of litigation in that system, such as: trials of civil actions by a jury, lawyers’ contingency fees, lack of application in full of the rule ” the loser pays the costs”.[ii]
Need for Alternative Dispute Resolution
In the legal system as it operates in India, any wrong is regarded as a matter of course.[iii]The objective of ADR is to check litigation explosion, make the justice system less expensive and easily accessible to the illiterate and indigent.[iv] The focus is to avoid feuds and develop a harmonious relationship between the disputing parties by settling the dispute through process of arbitration, mediation, negotiation and the likes. The ADR system can never be a complete alternative to the conventional system of dispute resolution. For example, settling of criminal disputes can never be done through the ADR mechanism. There is no substitute for Court decisions in criminal law. Moreover, it is necessary for both the parties to be genuinely interested in solving the dispute peacefully.
The Courts of law are confronted with four main problems which are as follows :
- i) The number of Courts and judges in all grades is alarmingly low.
- ii) Increase in the number of cases owing to the various State and Central acts
iii) The costs involved in prosecuting or defending a case. The Court fee, the lawyer’s fee and the incidental charges amounts to quite a large sum.
iv)The process is very cumbersome and time-consuming because of the huge number of already pending cases.
Kinds Of ADR
A wide range of dispute prevention and resolution procedures exist in India that allow the participants to develop a fair, cost-effective, and private forum to resolve disputes. All ADR mechanisms available in the country can be broadly discussed at two levels: [v]
1) Those which are applicable throughout the country &
2) Those which are available at the state / UT level to deal with specific problems arising under their jurisdiction.
The following are models for ADR as prototypes for use in dispute- redressal exist on national level:
- Tribunals, commissions, boards, etc.
- Lok Adalats
- Nyaya Panchayats
- Fast Track Courts
Article 323-B was added to the Constitution to authorize the legislature to establish tribunal, commissions, district boards, etc., for the adjudication or trial of any disputes, complaints or offenses with respect to any matters.[vi]
Lok Adalat or the People’s Courts, decide the dispute with utmost expedition to arrive at a compromise or settlement on the basis of principles of justice, equity, fair play and other legal principles. When the Lok Adalat is not able to arrive at a compromise or settlement, the record of the case is returned to the Court, which initially referred the case to the Lok Adalats. The Lok Adalat is presided over by a sitting or retired judicial officer as the chairman, with two other members, usually a lawyer and a social worker.[vii]
In villages, the administration is carried out by a Panchayat headed by village headman that decides petty civil, criminal and revenue cases. The respectable members of the village community form the Panchayat, where for those who prefer it, disputes are resolved by a process of conciliation and mediation.
Settlement of disputes by arbitration has been practiced in India from the distant past and the legal literature tells us of the ancient system of arbitration for resolving disputes concerning the family, or the trade or a social group[viii]. The Constitution of India also mandates it as a Directive Principle of State Policy that the State should encourage settlement of international disputes by arbitration.[ix]
There is not a lot of difference between mediation and conciliation. Mediation is one of the methods by which conciliation is achieved. Conciliation is essentially a consensual process.[x] Under Part III of the Arbitration and Conciliation Act, 1996, Section 61 to 81 provides for method of conciliation of disputes arising out of legal relationship, whether contractual or not.[xi]
In certain informal disputes, a third party ombudsperson is appointed by the organisation to investigate complaints within the institution and prevent disputes or facilitate their resolution. The Ombudsperson may use various ADR mechanisms in the process of resolving disputes.[xii]
The Swedish legislature first created the position of ombudsperson in the early 1800s; the literal translation of ombudsperson is “an investigator of citizen complaints.” This official was considered to be a person of “known legal ability and outstanding integrity” and was chosen by the Swedish parliament to serve a four-year term. [xiii]
FAST TRACK COURTS
The Eleventh Finance Commission recommended a scheme for creation of 1734 Fast Track Courts (FTCs) in the country for speedy disposal of the pending cases. The Ministry of Finance sanctioned an amount of Rs. 502.90 crores as “special problem and upgradation grant” for judicial administration. The scheme was for a period of 5 years. The Finance Commission Division (FCD), Ministry of Finance released funds directly to the State Governments under the scheme of Fast Track Courts. It is the primary responsibility of the State Governments to establish these Courts in consultation with the concerned High Courts. [xiv]
A total of 1,734 such Courts are expected to be set-up by the Government of India under this wholly centrally-funded scheme. Fast track Courts are meant to expeditiously clear the colossal scale of pendency in the district and subordinate Courts under a time-bound programme.
ORIGIN OF LOK ADALATS
The concept of Lok Adalats originated in India during the British Rule to curb the voice of the people. Now, however this concept has been rejuvenated. It has become very popular amongst litigants. Studies have showed that it is one of the most efficient and important ADR mechanisms and most suited to the Indian environment, culture and societal interests. Camps of Lok Adalats were initially established in Gujarat in March 1982 and now have been extended throughout the country.[xvi]
The Lok Adalat originated owing to the failure of the Indian legal system to provide fast, effective, and affordable justice. The evolution of this movement was a part of the strategy to relieve the heavy burden on the Courts with cases pending disposal.
Lok Adalats are a blend of all three forms of traditional ADR: arbitration, mediation, and conciliation. They use conciliation, with elements of arbitration given that decisions are typically binding, and are an illustration of legal decentralization as conflicts are returned to communities from whence they originated for local settlement.[xvii]
CONSTITUTIONAL DIRECTIVES AND LEGISLATION
The advent of Legal Services Authorities Act, 1987 gave a statutory status to Lok Adalats, pursuant to the constitutional mandate in Article 39-A[xviii] of the Constitution of India. The Legal service Authorities Act was enacted to constitute legal services authorities to provide free and competent legal services to the weaker sections of the society and to organize Lok Adalats to secure that the operation of the legal system promotes justice on the basis of equal opportunity. The settlement of disputes by the Panchayats or tribal heads was prevalent since ancient times. When statutory recognition was given to Lok Adalat, it was specifically provided that the award passed by the Lok Adalat will have the force of decree of a court which can be executed as a civil court decree.
The Act is a legislative attempt to decongest the Courts and to ensure the decentralization of justice.[xix]
Since 1985, Lok Adalats have been exclusively organized for settlement of motor third party claims, following the initiative of former Chief Justice of India, Shri. P. N. Bhagwati. The endeavour received a positive response, since both the claimant as well as the Insurance Company could derive benefits. The increasing number of cases in the Motor Accident Claim Tribunal (MACT) and the backlog of pending cases pressed the insurer and the judicial system to think about a quick disposal oriented system such as Lok Adalats/Conciliatory forums. Lok Adalat has become a Dispute Management Institution. It is an informal system of dispute resolution, devoid of the procedural wrangles of regular trial. Since the Legal Services Authorities (Amendment) Act 1994 , the Lok Adalat settlement is no longer a voluntary concept. By this Act Lok Adalat has got statutory character and has been legally recognized. Certain salient features of the Act are enumerated below:-[xx]
Section 19– Central, State, District and Taluk Legal Services Authority has beencreatedwho are responsible for organizing Lok Adalats at such intervals and place.
Conciliators for Lok Adalat comprise the following: -A sitting or retired judicial officer. other persons of repute as may be prescribed by the State Government in consultation with the Chief Justice of High Court.
Section 20: Cases can be referred for consideration of Lok Adalat as under:-
By consent of both the parties to the disputes;
One of the parties makes an application for reference;
Where the Court is satisfied that the matter is an appropriate one to be taken cognizance of by the Lok Adalat;
Compromise settlement shall be guided by the principles of justice, equity, fair play and other legal principles;
Where no compromise has been arrived at through conciliation, the matter shall be returned to the concerned court for disposal in accordance with Law.
ORGANISATION AND STRUCTURE OF LOK ADALATS
Lok Adalats may be organized at such intervals and places and for exercising such jurisdiction and for such areas as State Authority or District Authority or the Supreme Court Legal Services Committee or every High Court Legal Services Committee or, as the case may require.[xxi]
Every Lok Adalat constituted for an area shall consist of such number of serving or retired judicial officers; and any other person.[xxii]
Lok Adalat has the jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of any case pending before; or any matter which is falling within the jurisdiction of, and is not brought before, any court for which the Lok Adalat is organized.[xxiii]
(a)Any case pending before any court
(b)Any case not brought before any court.
Permanent Lok Adalat
In 2002, Parliament brought about certain amendments to the Legal Services Authorities Act, 1987. The said amendment introduced Chapter VI-A. According to the amendment, the Central or State Authorities may establish by notification, Permanent Lok Adalats for determining issues in connection to Public Utility Services.
Public Utility Services include:
- Transport service,
- Postal, telegraph or telephone services,
- Supply of power, light and water to public,
(4) System of public conservancy or sanitation,
(5) Insurance services and such other services as notified by the Central or State Governments.
PERMANENT LOK ADALAT’s have the same powers that are vested on the Lok-Adalats, mentioned under Section 22(1) of the Act.
PROCEDURE FOLLOWED IN A LOK ADALAT
The Lok Adalat is usually presided over by a sitting or retired judicial official as the chairman with two other members, a lawyer and a social worker. It has been observed through experience that cases involving monetary disputes are easily settled through Lok Adalats. Therefore, most motor road accident disputes are brought to Lok Adalats. The primary condition of the Lok Adalat is that both parties in dispute should consent to the settlement. It is necessary that the parties involved in the dispute are whole-heartedly involved in the justice dispensing system and do abide by the decision given by the Lok Adalat.
There is no court fee. If the case is already filed in the regular court, the fee paid will be refunded if the dispute is settled at the Lok Adalat. The procedural laws and the Evidence Act are not strictly followed while assessing the merits of the claim presented to the Lok Adalat. The decision of the court is binding on the parties to the dispute and its order is capable of execution through legal process. No appeal lies against the decision of the court. [xxiv]
Lok Adalat is very effective in the settlement of money claims. Disputes like partition suits, damages and matrimonial cases can also be easily settled before Lok Adalat as the scope for compromise through an approach of give and take is high in these cases. [xxv] Lok Adalat is indeed a boon to the litigant public, where they can get their disputes settled fast and free of cost.
CASES SUITED FOR LOK ADALAT
Lok Adalats have the competence to deal with the following cases[xxvi]:
- Compoundable civil, revenue and criminal cases.
- Motor accident cases
- Partition Claims
- Matrimonial and family disputes
- Bonded Labour disputes
- Land acquisition disputes
- Bank’s unpaid loan cases
- Arrears of retirement benefits cases
- Cases which are not under the jurisdiction of any Court.
POWERS OF THE LOK ADALATS
The Powers bestowed on Lok Adalats are as follows:
- i) It has the power of the Civil Court, under the Code of Civil Procedure, 1908, while trying a suit, in respect of the following matters:- [xxvii]
- Power to summon and enforce the attendance of any witness and to examine him/her on oath. b) Power to enforce the discovery and production of any document.
- c) Power to receive evidence on affidavits,
- d) Power for requisitioning of any public record or document or copy thereof or from any court.
- e) Such other matters as may be prescribed.
- ii) Every Lok Adalat shall have the power to specify its own procedure for the determination of any dispute coming before it.[xxviii]
iii) All proceedings before a Lok Adalat shall be deemed to be judicial proceedings within the meaning of Sections 193, 219 and 228 of IPC.[xxix]
- iv) Every Lok Adalat shall be deemed to be a Civil Court for the purpose of Sec 195 and Chapter XXVI of Cr.P.C.[xxx]
FINALITY OF THE LOK ADALAT AWARD
During the Lok Adalat, the parties agree to abide by the decision of the judge at the Lok Adalat. However, it has been seen that the same order is challenged on several grounds. In one of the recent cases, the Supreme Court of India has once again laid to rest all such doubts. In unequivocal terms, the Court held that the award of the Lok Adalat is as good as the decree of the Court. The award passed by the Lok Adalat is the decision of the Court itself though arrived at by the simpler method of conciliation instead of the process of arguments in court.[xxxi]
CONSENT OF PARTIES
The most important factor to be considered while deciding the cases at the Lok Adalat is the consent of both the parties. It cannot be forced on any party that the matter has to be decided by the Lok Adalat. [xxxii] However, once the parties agree that the matter has to be decided by the Lok Adalat, then any party cannot walk away from the decision of the Lok Adalat. In several instances, the Supreme Court has held that if there was no consent, the award of the Lok Adalat is not executable and also if the parties fail to agree to get the dispute resolved through Lok Adalat, the regular litigation process remains open for the contesting parties.
The Supreme Court has also held that compromise is always bilateral and means mutual adjustment. Settlement is termination of legal proceedings by mutual consent. If no compromise can be arrived at, then no order can be passed by the Lok Adalat.
The special conditions prevailing in the Indian society require a highly sensitized legal service which is efficacious for the poor and the down-trodden. The Lok Adalat mechanism is no more an experiment in the country, it is in fact, a full-proven success that needs to increase its domain and bring under its realm the several aspects that have been excluded till date.
Lok Adalats can be viewed as an instrument to social change as well. As said by Prof.Menon,”Lok Adalat has the potential for social reconstruction and legal mobilization for social change. It can influence the style of administration of justice and the role of the lawyer and judge in it. It can take law closer to the life of the people and reduce disparity between law in books and law in action.”[xxxiii]
The need for Lok Adalats is aggravated by the huge population of India that creates an unmanageable burden on the Judiciary system.
To increase the efficiency of the system of Lok Adalats, it is crucial for the public, the lawyers, the executive and the Judiciary to work in harmony and coordination. The people should be made aware of the advantages of the Lok Adalats.
The main challenge that lies in the path of the success of Judiciary is the involvement of the masses.
In the existing situation, the resort to Lok Adalats has enabled amicable dispute settlement. The success of Lok Adalats should indeed be measured by the overall atmosphere generated in the country, not by the number and nature of Lok Adalat held, cases settled or compensation awarded.
- Jitendra N. Bhatt,ROUND TABLE JUSTICE THROUGH LOK ADALAT (PEOPLES’ COURT)-A VIBRANT ADR IN INDIA, (2002) 1 SCC (Jour) 11, available at http://kelsa.nic.in/lokadalat.htm
- R.Madhava Menon,Lok Adalat: People Program for Speedy Justice,Indian Bar Review, Vol 132 (2),1996
- A.Khan,Lok Adalat, 1st Edition (2006), APH Corporation
- Legal Services Authorities Act, 1987;
- Page 11,Indian Council of Arbitration, Vol. XXXXX No. 3, Arbitration & Conciliation Law , Oct. – Dec. 2001
- Fali S.Nariman, INDIA’S LEGAL SYSTEM:CAN IT BE SAVED?, Penguin Books, Delhi(2006)
- Subhash Chandra Gupta, OMBUDSMAN : AN INDIAN PERSPECTIVE ,1995 MANAK PUBLICATIONS
- Prabha Bhargava,Lok Adalat Justice at Door Steps INA Shree Publishers (2006) (Reprint)
Edited by Raghavi Viswanath
[i] http://www.iimahd.ernet.in/publications/data/2005-11-01anurag.pdf accessed on 30th September,2013 at 20:15 (IST)
[ii] http://www.fdrindia.org/publications/AlternativeDisputeResolution_PR.pdf accessed on 30th September on 20:30 (IST)
[iii] Page 131,Fali S.Nariman, INDIA’S LEGAL SYSTEM:CAN IT BE SAVED?, Penguin Books, Delhi(2006)
[iv] Page 17, S.A.Khan, Lok Adalat,1st Edition (2006), APH Publishing Corporation
[v] http://www.ide.go.jp/English/Publish/Download/Als/pdf/16.pdf,accessed on 3rd October,2013 at 21:45 (IST)
[vi] 42nd Amendment to the Constitution,1976
[vii] www.ide.go.jp/English/Publish/Download/Als/pdf/16.pdf accessed on 4th Oct,2013 at 23:10 (IST)
[viii] www.ide.go.jp/English/Publish/Download/Als/pdf/16.pdf accessed on 4th Oct,2013 at 23:23 (IST)
[ix] Constitution of India, Article 51(d)
[x] www.ide.go.jp/English/Publish/Download/Als/pdf/16.pdf accessed on 4th Oct,2013 at 23:37 (IST)
[xi] Page 11,Indian Council of Arbitration, Vol. XXXXX No. 3, Arbitration & Conciliation Law , Oct. – Dec. 2001
[xii] http://www.fdrindia.org/publications/AlternativeDisputeResolution_PR.pdf accessed on 5th Oct,2013 at 18.45 (IST)
[xiii] http://legal-dictionary.thefreedictionary.com/ombudsmanaccessed on 5th Oct,2013 at 18:50(IST)
[xvi] http://www.academia.edu/3296008/Lok_Adalat_System_in_India accessed on 11th October,2013 at 00:10 (IST)
[xvii] http://www.adrcentre.in/images/pdfs/LOK_ADALAT_FINAL_PAPER.pdf accessed on 11th Oct,2013 at 00.33 (IST)
[xviii] The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
[xxi] Legal Services Authorities Act, 1987; Section 19(1)
[xxii] Legal Services Authorities Act,1987;Section 19 (2)
[xxiii] Legal Services Authorities Act,1987; Section 19 (5)
[xxvi] http://www.academia.edu/3296008/Lok_Adalat_System_in_India accessed on 14th Oct,2013 at 23:12 (IST)
[xxvii] http://www.academia.edu/3296008/Lok_Adalat_System_in_India accessed on 15th Oct,2013 at 21:45 (IST)
[xxviii] http://ihra.co.in/upload/index.php?mod=article&cat=Activities&article=8accessed on 15th Oct,2013 at 22:05 (IST)
[xxix] http://ihra.co.in/upload/index.php?mod=article&cat=Activities&article=8 accessed on 15th Oct,2013 at 22:07 (IST)
[xxx] http://ihra.co.in/upload/index.php?mod=article&cat=Activities&article=8 accessed on 15th Oct,2013 at 22:10 (IST)
[xxxiii] Page 134, N.R.Madhava Menon,Lok Adalat: People Program for Speedy Justice,Indian Bar Review, Vol 132 (2),1996