Justice deferred and the immediate need of the hour
Mounting court arrears, excessive delays in the administration of justice and litigation expenses have the potential to erode public confidence and trust in the judiciary, which is the pillar of our democracy. The need to get away from the notion that court is the only place to settle disputes has led to the exploration of the possibility of creating a mechanism for dispute resolution that would be flexible and save valuable time and money. In its 14th Report, India's Law Commission recommended that ways and means be devised to ensure that justice is simple, speedy, cheap, effective and substantial. In its 7th Report Law Commission of India observed that the Indian community is not sufficiently sophisticated to recognize the technical and lengthy processes that the courts follow. The quest for a simple, fast, flexible and usable dispute resolution framework led to the adoption of frameworks for 'Alternative Dispute Resolution.' Alternative Dispute Resolution (ADR) is known as an alternative to Courts of Law's regular dispute resolution. Traditionally, the disputes are settled by Courts in any region. Alternatively, the disputes can also be settled with third parties help.
Third Party assistance means an independent third person as selected by the contestants, acting impartially and within the scope and parameters of the legislation. Aid from third parties may take the form of mediation, conciliation, and arbitration. In the end, this ADR system acts as a supplement to the regular court mechanism. Calling Alternate Dispute Resolution as 'Additional Dispute Resolution.
Disputes such as family disputes, commercial disputes, lawsuits for car accidents, disputes with neighbors and many other types of civil and minor criminal proceedings, which represent a large percentage of ongoing litigation, can be resolved more satisfactorily by ADR than by trial. It has been said very rightly that an efficient judicial system demands that outcomes not only be obtained, but that they be attained rapidly. Clear mounting backlog of cases and rendering litigation affordable to ordinary people are needed. Indian legislature has made many efforts to tackle these problems of delays and backlog of cases by making and improving ADR laws in India.
Section 89 of the Civil Procedure Code
ADR has been successful to the extent that more than 90 per cent of cases are settled out of court in some countries like the United States. There is a legal requirement that the parties to the suit must indicate the form of ADR that they would like to resort to while the suit trial is pendent. Similar provisions have been introduced by adding to the Code of Civil Procedure a New Section 89 and Rules 1-A, 1-B, & 1-C in order X, which provide for the compulsory settlement of disputes by ADR.
ADR 's formal recognition not only as a 'alternative' tool, but as an actual process used by the courts has never been more clear than it is through Section 89 of the Civil Procedure Code. The object of bringing Section 89 into the body of the Code has thus been set out in the subject-matter clause with a view to enforcing the 129th Law Commission of India 's report and to making the conciliation scheme successful, it is proposed that it be made compulsory for the Court to refer the dispute after the issues have been settled, either by arbitration , conciliation, mediation, judicial settlement or with the help of Lok Adalat.
Section 89 of the CPC is a new rule, and while arbitration or conciliation has been in effect as a way of resolving disputes, the burden on the courts has not necessarily been reduced. In Salem Advocate Bar Association, T.N. Vs. Union of India , the Supreme Court of India had observed that modalities had to be formulated for the manner in which section 89 of the CPC was formulated and, in this respect, Other provisions introduced by way of modifications may have to be in force. The Supreme Court set up a committee to ensure that the amendments made are effective and result in a faster dispensation of justice.
Section 89 of the CPC was inserted to try and see that the court itself does not necessarily need to decide all the cases which are filed in court. Taking into account the delays of the law and the limited number of judges available, it has now become imperative to have recourse to the ADR mechanism in order to bring an early end to the litigation between the parties. The ADR mechanism provided for in section 89 of the CPC is arbitration or conciliation or judicial settlement including settlement by Lok Adalat or mediation.
As can be seen from Section 89 of the CPC, when it stipulates that the court is to formulate terms of settlement, its first part uses the word shall. In the later part of Section 89 of the CPC the use of the word may be that where it appears to the court that there is an element of a settlement that may be acceptable to the parties, They shall, at the court's instance, have their minds applied so as to opt for one or the other of the four ADR methods mentioned in the Section and, if the parties do not agree, the court shall refer them to one or the other of those methods. In other words, C They shall, at the court's instance, have their minds applied so as to opt for one or the other of the four ADR methods mentioned in the Section and, if the parties do not agree, the court shall refer them to one or the other of those methods. In other words, CPC section 89 is a provision in law to facilitate the introduction of annexed ADR by the court. CPC section 89 is a provision in law to facilitate the introduction of annexed ADR by the court.