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Alternate Dispute Resolution – Justice S.S. Sodhi

Years ago, as a struggling young lawyer, trying to get a foothold in the profession, little could I visualize that one day mine would be the privilege and honour to participate in a seminar organized by a foundation named after the one, we looked upon as the  lawyers’ lawyer, who was always so willingly available to us for advice and guidance.  I refer here to Mr. Harbans Lal Sarin  – And he never let us down and the other his son, Ranjit Sarin, whom fate unfortunately took away far   too early, ironically enough within the precincts of the  Supreme Court of India.  If there was a lawyer ever ready and willing to take up a cause and fight for it merely to ensure that right is done, it was Ranjit Sarin. This is what led him to acquire a reputation and esteem far beyond his years.

Besides the large volume of briefs Mr.H.L.Sarin had to contend with in Court, he still found time to author a number of books, which so vividly manifested his intellectual brilliance, and mastery of the subject.  I do not recall any occasion when he was found sitting idle in the bar room.  When not appearing in Court he could invariably be traced to a vacant court-room either preparing some briefs or reading proofs of one of his books.  Mr.Sarin was a living computer where the knowledge of law was concerned.  Fittingly, therefore, we have now this Sarin Foundation with its objectives so relevant to the cause of justice.

When we talk of one who in his day had the largest practice and see today our overburdened Courts, how appropriate it is to turn our thoughts to alternative dispute resolution in the new Millennium.

I make no claim to originality in what I propose to say on the subject, but merely to highlight some issues and ideas by way of introspection for the purpose of carving out the path ahead.

The credibility of the justice delivery system, in any civilized society, is measured by how expeditious it is, its cost effectiveness and most importantly its independence. To this may also be added another, the competence to deal with complex techno economic issues, which   the   emerging   economic  order, with   rapid technological developments is beginning to throw up. On this criteria, while there can be little doubt with regard to the independence of our judiciary, on the other counts, it is, however, a different story.  Delays in Courts are proverbial and what is more, litigation in Court is by no means inexpensive. Delays and the expense in the resolution of civil disputes and disposal of commercial matters confronts us with a serious crisis – A situation that is bound, inevitably, to erode public trust and confidence in our judicial institutions and retard social justice and economic developments.  This crisis cries out for urgent solution. The tragedy is that the causes for this state of affairs are well known as also the remedial steps to be taken but when it comes to it, nothing is done and so the malady persists.  For one, government retains the dubious distinction of being the largest litigant in the country.  It is also at the same time recognized that it is within the competence of Government to settle a significant proportion of such matters out of Court, but this does not happen. Off the record, those concerned, put-forth attribution of motives, apprehension of objection by audit or even inquiry by the C.B.I, as their excuse for letting things be.  If this is indeed so, it cannot  but  reflect adversely upon our system  of governance.

Not only this, take inadequacy of judge strength, which is one of the major causes for the ever-increasing arrears in Courts.  Where on the face of it, there is need to increase the Judge strength, the system has been unable to eliminate delays in appointments even as per the sanctioned strength.  In a recent speech, the Chief Justice of India pointed out that out of a total High Court Judge strength of 608, there were 150 vacancies existing for quite some time, while in the Subordinate Courts, there are over a thousand posts vacant with requests for another 5000 new Courts, pending with various State Governments.

There is then the role of lawyers, who are such an integral and essential part of our judicial system. They seem to have taken to strikes, at any rate in this part of the country, to press home their point, rather than rely upon the real weapon of the Bar, which has always been, reason.  What needs to be asked is do strikes serve the cause of justice?

How aptly, Chief Justice Berger, speaking to the American Bar Association, put it:

“The harsh truth is that we may be on our way to a society overrun by hordes of lawyers, hungry as locusts, and brigades of judges in numbers never before contemplated. The notion – that ordinary people want black-robed judges, well-dressed lawyers and fine-panelled courtrooms as the setting  to resolve their disputes – is not correct. People with legal problems, like people with pain, want relief and they want it as quickly and expensively as possible.”

When such is the state of affairs with the delivery of justice being so slow, expensive and complex, can it be expected to inspire confidence in the value and utility of Court adjudication?  The litigant public is today bewildered and in despair not knowing where to turn to. This is now happening. No wonder, alternative dispute resolution mechanism has now been rendered an imperative necessity.

The attempt to overcome some of the weaknesses in the justice delivery system must not be looked upon by lawyers as a threat but rather as an opportunity to lighten their and their clients’ loads.  As more than a century ago, Abraham Lincoln said ” Discourage litigation. Persuade your neighbours to compromise, whenever you can. Point out to them the nominal winner is often a real loser; in fees, expenses and waste of time.  As a peace maker, the lawyer has a superior opportunity of being a good person”.

The objective of alternative dispute resolution is to resolve disputes of all kinds, outside the traditional legal mechanism of the Court system. Some of the well-known procedures adopted being negotiation, conciliation, mediation and arbitration.   Sometimes a combination of these has been used to settle disputes.  The emphasis in the alternative dispute resolution, which is by design informal and flexible, is on helping the parties to help themselves.

Turning to the institutional mechanism for alternative dispute resolution, there are, no doubt, provisions for conciliation and mediation inbuilt in some existing Statutes, like under section 12 of the Industrial Disputes Act, 1947, Section 23 of the Hindu Marriage Act or Rule 3 of Order 22-A of the Code of Civil Procedure but experience shows that resort to these provisions and the results achieved, bear little resemblance to what law makers had hoped for.

Next we have the new Arbitration Act bringing in significant changes designed   to ensure speedy resolution of disputes. The most notable feature of them being limiting the role of the Court so that parties have the greatest possible freedom to have the matter settled by this forum.

An effective pioneering example in our country is provided by the conciliation Courts in Himachal Pradesh which were set up by the Himachal Pradesh High Court over 15 years ago. There Pre-trial conciliation is insisted upon in all fresh cases.  This experiment has stood the test of time and has been widely welcomed, including by the Law Commission of India, which has, in   fact, recommended it to other States too. There is then the institution of the Lok Adalats, which is now firmly established as a meaningful and functional alternative dispute resolution mechanism.

To give an idea of its value and utility, during the last four years in Punjab alone, over a hundred thousand cases were put up for hearing before Lok Adalats with over 77000 of them being actually disposed off.  The matters dealt with included Motor Accident Claims, Matrimonial Cases as also those relating to Bank Loans.  Some property and landlord  – tenant disputes were also amongst the cases settled.   Here again, the unfortunate feature of it is that where the Government is involved as a litigant, there is reluctance on the part of the officials concerned, to consent to resolution out of  Court, no matter how justified.

There are two other institutions of which, as it happens, I have some personal experience too, namely, Ombudsman and Regulator. In any democracy, where the rule of law prevails, and human dignity is honoured, the institution of Ombudsman   is   looked upon as an indispensable alternative dispute resolution mechanism.

This institution owes its origin to Sweden but has over the years taken root, in some form or the other, in more than 84 countries.  We too took to it by having Lok Pals or Lokayuktas in some States. The role and purpose of these institutions has however, yet to be appreciated and realised.

The core business of an Ombudsman would include basic human rights violations, which arise from the daily interaction of Government with its people with the Ombudsman looking into allegations of improper conduct of the officials, Mal-administration, administrative unfairness and excesses of the bureaucracy. The main feature of the Ombudsman is that he operates in a non adversarial manner and gains moral influence for acceptance of his opinions based upon the integrity of the processes, the intellectual logic of reasons supporting the opinion and above all, his well established good-will. It is time that in our country too this institution was given its due and meaningful role.

Turning to Regulators, there was a time not so long ago, when public utility services like water supply, electricity and telephony were considered natural monopolies, best owned publicly. Private ownership and management or competition in the supply of these services was considered inappropriate and socially undesirable. This attitude has undergone a dramatic change and current wisdom has it that competition is not only possible and feasible in the supply of these services, but is also necessary to reduce costs, protect consumer interests and promote rapid development of these sectors.

To   facilitate this process a competitive environment is essential which, in turn, requires a level playing field, prevention of consolidation of market power, whether in public or private sector, and above all, in building investor confidence and safeguarding consumer interests.  The need to regulate and over-see this process has brought into being the institution of regulators.

We have regulators today not only in Telecommunications but also Electricity, Insurance and Ports, with similar entities likely to come up in other fields too.   Inbuilt in the role assigned to the regulators is a self correcting mechanism which the Courts too need to appreciate as also, of course, the need to avoid delay in dealing with the new and complex techno economic issues, that are likely to arise.

Illustrative of the vital importance of the justice delivery system in this field is the divesture of the telecom giant AT&T by Judge Green of the U.S. into a long Distance and an International Long Distance Company, by taking away the local service provisioning role and allowing the formation of what came to be called baby bells. The major implication of this judgment was the breaking up of the AT&T’s monopoly power and ensuring that the consumer had a choice.  It was this landmark decision that gave rise to competition in the US in the telecom services’ section and also gave birth to the two best known global corporations, besides AT&T, in the long distance segment, namely the MCI and the Sprint.  The US today has more than 600   Long Distance and 700 International Long Distance Providers and their presence is marked by dramatic reduction in tariffs – And as for AST&T’s market share, it no doubt, came down but its volumes steadily increased and today the baby bells are no longer babies.

It will be seen, therefore, that there are alternative dispute resolution mechanisms available that provide us both an opportunity as also a challenge  – A challenge we cannot afford to lose out on.