Author: Neharika Krishnan, Student at Student, BVIMR, Dept Of Law, New Delhi
INTRODUCTION
This article aims to shine light on the future prospects that are unfolding as a consequence of the current scenario. Evolution is the feature of a robust system that is categorized by its ability to deal with extraordinary circumstances. Evolution evident in the Justice delivery system this year has opened doors to reforms that were much needed and novel Coronavirus was the instigating factor that effectuated those ideas to actions.
OVERVIEW
Extraordinary times call for extraordinary measures. We saw a need that needed to be filled, and we stepped in to help. This laudable quote by Bennet Wilson is pertinent to the current condition of the Indian Justice System. Technology since its inception has been gelling with each and every field thereby effectuating a revolution in institutions. Justice system is one such institution that has evolved and is conducting adversarial tasks through the use of technology. With the onset of novel Coronavirus, use of technology is no more an option or specialist task but a need and means of all operations. Pendency in justice delivery system is an extensively discussed and scrutinized facet, wherein attempts have been made to provide solutions by adoption of Alternate Dispute Redressal system that has gained momentum in India although at a slow pace and scope. This espoused system, same as litigation, has undertaken technology as its helping hand and reaping positive results thereby striking a conversation among the legal fraternity to enhance its operations.
ALTERNATIVE DISPUTE RESOLUTION IN INDIA
Alternative Dispute Resolution (ADR) mechanism is capable of providing a substitute to the conventional methods of resolving disputes. ADR offers to resolve all type of matters including civil, commercial, industrial and family etc., where people are not being able to start any type of negotiation and reach the settlement. Generally, ADR uses neutral third party who helps the parties to communicate, discuss the differences and resolve the dispute. It is a method which enables individuals and group to maintain co-operation, social order and provides opportunity to reduce hostility. Alternative Dispute Resolution mechanism provides scientifically developed techniques to Indian judiciary which helps in reducing the burden on the courts. ADR provides various modes of settlement including, arbitration, conciliation, mediation, negotiation and lok Adalat. Here, negotiation means self-counselling between the parties to resolve their dispute but it doesn’t have any statutory recognition in India. In India, courts can refer disputes which are capable of being settled between parties to alternate dispute resolution (Code of Civil Procedure 1908, sec. 89). The Supreme Court has been encouraging parties to take up pre-litigation mediation to settle their dispute before resorting to court proceedings. In Afcons Infrastructure v. Cherian Varkey Construction (2010)[1], the Supreme Court emphasised the importance of mediation, especially in commercial matters, and observed that this type of Alternative Dispute Resolution (ADR) is ideal for parties faced with complex issues that they are willing to resolve through negotiations. ADR is deemed beneficial in light of its success rate but still lags behind in terms of its awareness and preference in the legal fraternity to its exercise. The system suffers with the same complexities as the court i.e. lack of uniform system, awareness and most importantly innovation.
PLATFORM FOR ODR MECHANISM
This status quo is unsustainable especially with the onset of Covid-19 scenario. The imposition of lockdown, institutional limitations, unprecedented conditions have drastically stirred up a change in the system. Prior covid-19, the judiciary lacked in handling backlogs, inventory issues etc and now with inaccessibility to courts and failure to practise basic court proceeding is apparent of prospective instability and hardships. The only option in such uncertain times is to drown i.e exacerbate the situation or to innovate. The government and the Judiciary have chosen the latter and working vigorously to achieve the same. Courts, ADR and alike mechanisms are being adopted with technology as its basis. ODR is the biproduct of these unprecedented times. Even during the nation-wide lockdown, courts were kept accessible, albeit to a limited extent, through e-filings and virtual hearings. And now it is steadily moving towards adopting a futuristic vision of virtual courts, where certain categories of cases will be resolved entirely online.[2]E-courts, wherein e-filling, testimonies through video conferencing, online database for documentation, is an ongoing system that has upscaled with proceeding conducted through video conferencing as an attempt to follow SOP and follow social distancing concurrently continuing operations. ODR is the system for the foreseeable future. Various disputes in the field of business, employment, banking etc are bound to emerge post-pandemic that is going to burden the courts with more backlogs and without a statutory plan and support it is likely to maim the judiciary at its roots. These cases deem fit to be resolved under ADR mechanism thereto reducing burden on the courts and provide an efficient interface to the citizens to resolve disputes and not leave them hanging with no remedy. To put this vision of virtual justice in a conducive environment requires drastic, coordinated and innovative changes in the policy.
- Strengthen ADR system
ADR mechanism promises to resolving disputes without taking recourse to conventional court system. Promoting ADR functions by providing a uniform system, required inventory and majorly the awareness of its associated benefits and cogency is imperative to resolve foreseeable disputes. To make ADR mechanisms alluring and effective simultaneously requires changes in cost, functioning and outcome of the system. Firstly, cost of arbitration, mediation etc should be lowered as in cases where the fee for recruiting professional doesn’t surpass the dispute consideration. Secondly, the system should be designed in a manner so as to increase the success rate by satisfying both parties and reducing chances of further deliberation or taking recourse of conventional court system. Italian opt-out system[3] is an exemplary system where in any dispute must first be addressed through mandatory preliminary mediation, subsequently can opt-out of the process under two circumstances i.e if satisfied then no sanction and if not satisfied then go for litigation or else can continue mediation and reach a settlement or no settlement. This process in its entirety can resolve disputes and prevent opting of conventional method if done efficiently and in interest of both parties. ADR system provide a beneficial angle for both parties as opposed to court where in the coin would land on either side, it’s a win or lose situation.
- Introduce ODR in mainstream dispute redressal system
The United Nations Commission on International Trade Law ODR Working Group defines ODR as “ […] a mechanism for resolving disputes facilitated through the use of electronic communications and other information and communication technology[4]. ODR has numerous benefits that can take the Indian Justice System to new heights if practiced religiously and with soul and support of the legal fraternity and Government. ODR is cost effective, access to justice is wide and fast-tracking justice is practically achievable. ODR can take two forms- Court- annexed ODR and through private entities. Either of the two has their pros and cons, that expands the scope of dispute redressal whereby parties can choose to reach settlement using any of the two option as per their convenience. This not only guarantees and uplifts the right of citizens of access to justice but ensures efficient justice.
CONCLUSION
It is in these difficult times that one learns to either get up or give up. The constant efforts of the Judiciary and Indian Govt is exemplary of the former. The policy, attitudinal and functional changes that can be effectuated now will reap long-term benefits to the Indian Justice System and establish a robust system that will inculcate all the features of an ideal justice system centred to citizen welfare and solution-driven.
FOOTNOTES
[1] Afcons Infrastructure v. Cherian Varkey Construction 2010 SCC 24 (2010) 8
[2] Deepika Kinhal and others, ‘Virtual Courts in India: A Strategy Paper’ (n 8), Murali Krishnan, ‘Filing of cases in SC will undergo radical change: Justice DY Chandrachud’ (Hindustan Times, 3 May 2020) accessed 9 July 2020
[3] Federica Maiorana, ‘Mediation in Italy, how does it differ?’ (London school of mediation, 6 Feb 2019) < www.londonschoolofmediation.com/story/2019/02/06/mediation-in-italy-how-does-it-differ-/107/> accessed 29 August 2020
[4] United Nations Commission on International Trade Law, ‘UNCITRAL Technical Notes on Online Dispute Resolution’ (2017) vii accessed 06 May 2020