Dispute Resolution In India Problems & Perspectives

The culture to be developed by legal professionals should be to emphasize

rights as per the rule of law and not to impliedly drive the approaching public

lose (a) focus of their rights on account of time taken to deliver results or (b)

faith in the justice delivery system altogether...

Throughout the world, lawful methods adopted

for dispute resolution are meant not only for

resolution but also to instil and maintain

faith in due process and rule of law as to the

protection of individual rights. The common

man's need to seek justice must be served with a timely remedy through institutions; therefore, strong mechanism

and suitable methods for justice administration ought to

be a high priority for the state.

In India, the process for dispute resolution is laid out

through the establishment of constitutional courts,

constitutional appellate courts of remedy, commissions and tribunals constituted under specified enactments,

subordinate judiciary (district courts, magistrate courts),

consumer fora, formation of judicial enquiry commissions,

appellate fora, revenue/quasi-judicial besides an emphasis

on alternative dispute mechanisms such as mediation

and/or arbitration.

The Constitution of India, Parliament, State Legislatures

are the creators of law on various subjects, while the

Supreme Court of India too, in the past four decades,

exercised its extraordinary constitutional powers to

prescribe laws through judicial precedents on important

topics such as environment, sexual harassment, to

name a few. The prescription of THREE LISTS of various

subjects in the Constitution to frame laws has been best

utilized by Parliament and the states to ensure the rule

of law.

The Supreme Court of India as the highest court of the

country is at the top of the hierarchy for the enforcement

of the rule of law, and the High Court functioning in

each state is also equally a

court of credibility for the rule

of law for each state within

India. The subordinate judiciary

establishment thereafter

flowing downwards to enlarge

the writ of the judicial system

and the rule of law is in

existence in each state in the

country. All this labyrinth of

institutional credibility for the

judiciary is just meant to help

the citizenry seek appropriate

remedy for their disputes or

issues, in the most efficacious

and timely manner, of course

generally with professional

help and aid of learned brethren

known as 'Advocates' so that

the mechanism works for the

betterment of dispute resolution

in the country.

Except the panchayat system

known to villagers, the general

trend of the common man of

rurban India has always been

to seek out the court machinery

as the preferred choice to

resolve disputes. Methods like

mediation and conciliation were

earlier restricted conventions

applicable to specific trade

practice or a village. However,

with the enactment of the Arbitration and Conciliation

Act, 1996, things changed a tad for the better.

In recent times, both rurban Indians as well as the

international trading community which has been dealing

with the Indian judicial system have had a fair share of

discontent in terms of effectiveness and timeliness of the

judicial system in reinforcing the rule of law. There have

been many other limitations that demotivated people

approaching courts and arbitrators. A few of them are as

follows:

• Delay as a tactic used by litigants in almost all

  proceedings;

• Insignificant budgetary allocation of funds for

  improving court infrastructure;

• Judges with caliber, competence, and experience;
• Transparency & apolitical decision making as to

  the appointment of judges (memory is still fresh as

  to the Government of India's decision regarding the

  recommendation of the SC collegium);

• Malaise of corruption creeping into the judiciary;
• Remunerations for judicial officer positions being subpar

  as in comparison to highly

  remunerative private legal

  practice or in-house counsel

  jobs in the private sector.

• No regulation or

  upper cap with respect to senior

  counsel and retired Supreme

  Court or High Court judges'

  professional fee charges.

Our judicial system is currently

stretched to the limit, and the

criminal justice system, too, is

on a roller-coaster ride in terms

of credibility, added up with

the long-overdue police law

reforms despite the Supreme

Court making a case in favor.

India is currently facing a

situation where the debate

is still on as to whether the

Supreme Court should ideally

hear and deal with cases

involving constitutional issues

which involve substantial

questions of law or whether it

should continue to meander

and spend its valuable time

hearing cases and appeals

arising from statutory

appellate mechanism. We are

all aware that the question

is now open as to whether a

National Court of Appeals needs

to be constituted.

Advocates and citizens are part of the very same system

and are like one side of the coin, while the justice

administration system aimed at resolution and the rule

of law are the other side of the coin. Advocates and the

general public who need resolution of their disputes/

cases are the ones who need to change the way in which

they approach the system. Their approach should be

to ensure that the spirit of the rule of law is upheld.

Use of judiciary or any other dispute resolution mechanism to delay any proceeding or to pressurize the adversary

should neither be a motto nor be a means and should

never be encouraged.

We are all aware of the pendency of cases in courts in

India, and there is no statistics as of now as to how

many arbitration awards, while having already been

delivered, are still not settled. Thus, the quality of dispute

resolution in India is at crossroads, and the recent

changes in 2017 and 2018 in the law through Ordinances,

be it for the Arbitration Act, IBC, or the Commercial

Courts Act, are all meant to address the malady of

a very low level of timeliness in providing resolution to

disputes. Still, unless the value system of the approaching

public changes towards the objectives of the institutions

meant for dispute resolution, not much change can be

expected in terms of reduction of pendency of cases/

disputes.

The Arbitration and Conciliation (Amendment) Act, 2015

has brought a ray of hope in the commercial world to

make arbitration the preferred choice for the resolution

of disputes. The specific amendment which is worth

highlighting is the introduction of sub-section 29A(1)

that provides for a time-bound disposal and publication

of award. Under the amended law, the parties may agree

to decide to adopt a fast-track procedure on the basis

of written pleadings, documents, and submissions filed

by the parties without any oral hearing. The Arbitral

Tribunal may call for further information or clarification

from the parties in addition to the pleadings. To expedite

the process and to keep the pressure on the arbitrator and

the parties, the laid down condition with rare exceptions

is that in case the Arbitral Tribunal fails to publish the

award within 12 months as provided under Section 29A(1)

of the Act or extended period of further six months under

Section 29A(3) of the Act, the mandate of the Arbitrator

shall terminate.

In a bid to ensure speedy adjudication of commercial

and business-related disputes in India, the legislature

enacted the Commercial Courts, Commercial Division and

Commercial Appellate Division of High Courts Act, 2015

(Act) in 2015, and further, an Ordinance passed brought

in the international parity required for such commercial

courts aided by the in-depth study of Commercial Courts

of the United Kingdom, the United States of America,

Singapore, France, etc. carried out by the Law Commission

of India. The introduction of the Commercial Courts

Act has made courts once again the preferred forum

for resolving complex disputes. Section 16 of the Act

provides for amendment to the provisions to CPC, in their

application to any suit in respect of a commercial dispute

starting with just '300,000. It prescribes timelines and

procedures, so that cases can be resolved more efficiently

and parties cannot cause/create unwarranted delays in

the process of adjudication.

The Insolvency & Bankruptcy Code (IBC), too, as a

matter of legislative change, has been impactful. It has

introduced completion of the insolvency process within

180 days extendable to a maximum of 270 days. The

Code has attempted to address the need of the hour

for insolvency and bankruptcy of companies, while the

changes as insolvency and bankruptcy of partnerships

and individuals are yet to be notified for implementation.

The upside is that this legislation is time-driven

and the creditors to corporations can make significant

utilization of this law and the institution of National

Company Law Tribunal (NCLT) and National Company

Law Appellate Tribunal (NCLAT) to ensure that the

judicial process efforts move fast in case of bankruptcy

or insolvency. The NCLT is the institution for adjudication

of cases arising out of the Companies Act, 2013 as well

as the IBC.

To sum up, while all recent changes in law have made

the case relevant for dynamic progress and movement for

the resolution of cases/disputes, what is also materially

relevant and most necessary is that professionals

as well as the approaching public who put to use and

move the wheels of the judicial system should work with

the spirit that the system is well recognized to make

things move faster for resolution. The culture to be

developed by legal professionals should be to emphasize

rights as per the rule of law and not to impliedly drive

the approaching public lose (a) focus of their rights on

account of time taken to deliver results or (b) faith in the

justice delivery system altogether. Only then, the other

side of the coin, i.e., judges and arbitrators, will be able

to perform more effectively as executors and interpreters

of laws to ultimately derive the benefits of a fast-paced

judiciary and dispute resolution mechanism. It will be

ideal here to quote Mahatma Gandhi, 'Be the change you

want to see'.

Disclaimer – Views expressed here are purely personal and are not attributable to any organization