ALTERNATIVES OF LITIGATION IN INDIA

This article has been written by Pragya Srivastava, a student of Banasthali Vidyapith.

The argument is an art, passion which is developed by our surroundings.  It is an appeal towards the reason sprinkled with emotions and intelligence. Arguments are made before a person where one tries to justify its self with this skill. The new trend has now changed this art very minutely where one tries to justify its reason with a cup full of intelligence and manipulation, the art to be known as Litigation. Litigation is an act where a dispute comes before the court and the litigators have to argue in a way that their argument becomes the reason for the act and sprinkles the convincing emotion of the authority. Litigation is the gambling of words where unexpected statements are drawn, but while playing it the victory goes in someone else’s basket which indicates how the litigants give their words on the case by predicting the nature of the case but the judgment goes in the opponent’s basket. Alternative Dispute Resolution (ADR) is an alternate instrument used to resolve various issues of the parties. It is machinery that helps to solve the disputes outside the court with the motive that the issue will not further ruin anyone’s life. ADR can be signified as the spirit of the law which makes justice to live freely and fairly. The mechanism of Alternative Dispute Resolution is an age-old method it has been prevalent in India from the Vedic times. While going deep into the Stone Age the alternative methods it throws light on Bhradarnayaka Upanishad which includes techniques like the Puga, the Sreni, the Kula. These alternative methods sum up to be Panchayats which deals with matters relating to the contract, marriage, criminal, etc. The era of Muslim rule had pieces of alternatives to resolve the disputes which are present in the Hedaya of Islamic Rules. The method progressed in the country when the East India Company came into being. The remains of the regulations made by the British are still in force in Civil Procedure Code 1859.

Alternative Dispute Resolution (ADR) encloses efficient techniques that are helpful to deliver speedy justice to the parties in dispute, it is cheap than the trials in the court. They are extrajudicial in nature. ADR has its roots from the Constitution of India, the expression given by Prof. Dicey claims the Rule of Law which is embodied in Article 14 of the Constitution. The article states that everyone is equal before the law which becomes the Basic Feature of the Constitution; it cannot be destroyed even by the amendments made under Article 368 of the Constitution. Article 14 empowers the man’s right to access justice from a justifiable forum. Article 21 of the Constitution states that “no person shall be deprived of his life and personal liberty except the procedure established by law”. This Article empowers the right to free legal aid with the intention to give speedy trials to the individuals, it had been supported by Article 39A which declares equal justice and legal aid of the Directive Principles Of State Policy.

The modes of Alternative Dispute Resolution (ADR) are:-

• Arbitration
• Mediation
• Conciliation
• Negotiation

Arbitration

Arbitration is a legal method to resolve a dispute outside the court, wherein the parties in dispute refer to an arbitrator and by whose decision the party agrees. It is helpful in commercial matters. The process involved here is that it is on the party where they opt to have a separate arbitration agreement or there is a term arbitration clause that clearly states the dispute would be resolved by the arbitrator. The arbitrator has to be an unbiased body independent from all such elements where he/she is entitled to resolve a dispute in an impartial manner. The Arbitration in India is governed by The Arbitration and Conciliation Act, 1996. The cases involved in arbitration are –

Guru Nanak Foundation vs. Rattan Singh and Sons

It was held by Justice DA Desai that time-consuming, complicated, and expensive courts have compelled the jurist to have a forum for such cases where the party in dispute gets a speedy trial. Thus, the Arbitration Act 1940 was introduced to govern such cases.

Purushottam S/o TulsiramBadwaik vs. Anil &Ors.

The bench of justice Arun Mishra and UU Lalit of Supreme Court observed that agreement of Arbitration made after the enforcement of 1996 act and if the case has to be governed by the 1940 Indian Arbitration Act it would be invalid.

Mediation

Mediation is a concept to resolve the dispute outside the court where compromise is a major task. The difference between Arbitration and Mediation is the binding of the object, in arbitration the dispute is resolved by some rules and regulation which binds the party but in mediation compromise is drawn between the parties for which they are not bound. Section 30(1) of the arbitration and conciliation act 1996 encourages the party to opt for mediation proceedings. Examples in the Indian legal system for mediation are Gram Panchayat and Nyay Panchayat. A neutral third body is appointed to resolve the dispute between two parties. The case of Babri Masjid is also been driven into mediation.

Afcons Infra Ltd vs. M/S CherianVarkey Construction (2010)

Supreme Court held that the mediation technique should be used in cases of contract, consumer disputes, and tortious liability as well.

B.S Krishnamurthy vs. B.S Nagraj

It was held that the process of mediation should be used in family court to resolve the matters of divorce, custody, maintenance, etc. The intention behind it is to settle the matrimonial disputes through a compromise made between the parties.

Negotiation

Negotiation is a method in which no third party is involved to sort the issues or disputes between the parties. It does not have statutory recognition in India. There are no fixed rules to resolve the dispute. The parties keep before their arguments and issues involved which can also be said as self-counseling. It is a method of redressal in which after negotiating the issue they reach to sign an agreement for their cause of action and solve their issues.

Conciliation

Conciliation is a method of ADR where an independent third body is appointed as a conciliator to listen to the issues of the parties, to identify the kind of dispute, and the developer options. It is done face to face so that the dispute comes before the party. According to the nature of the dispute sometimes conciliator acts as a messenger and talk to the party separately and like offer them proposals.

Conclusion

Alternative Dispute Resolution (ADR) is an important method as it delivers justice to the people very fast than the trials in the court. It is cheap and affordable as compared to undergoing the process of litigation. This helps people to speak out their problems without any fear of court. Thus, it should be encouraged