I. INTRODUCTION

It is now widely acknowledged that ‘Justice delayed is Justice denied’. It is of common knowledge that existing justice system is not able to cope up with the ever-increasing burden of civil and criminal litigation. There is growing awareness that in the bulk of cases court action is not an appropriate recourse for seeking justice. We have no other choice but to immediately device effective Alternative Dispute Resolution Mechanisms to ease the present burden of judicial functioning. The primary object of Alternative Dispute Resolution Mechanism is to provide cheap, simple, quick and effective remedy. The Arbitration and Conciliation Act, 1996 laid down the minimum standards, which are required for an effective Alternative Dispute Resolution Mechanism. Further, the recent amendments of the Code of Civil Procedure, 1908 will give a boost to ADR. Sec. 89 (1) of CPC now deals with the settlement of disputes outside the court. All these efforts are aimed at securing the valuable right to speedy trial, as guaranteed under Art.21 of the Constitution of India, to the litigants[1].

II. RIGHT TO SPEEDY TRIAL

Art.21 confers a Fundamental Right on every person not to be deprived of his life or liberty, except according to procedure established by law. Such procedure is not some semblance of a procedure but the procedure should be “reasonable, fair and just”, and therefrom flows the right to speedy trial[2]. It is the Constitutional obligation of the state to dispense speedy justice, more so in the field of criminal law and paucity of funds or resources is no defence to denial of right to justice emanating from Articles 14, 19 and 21, and the Preamble of the Constitution as also from the Directive Principles of State Policy. These principles can also be aptly applied to civil proceedings. The anxiety of the Apex Court about quick dispensation of justice is further reflected in Brij Mohan Lal Vs Union of India[3] where the court upheld the constitutional validity of the “Fast Track Courts Scheme”. The Court observed that priority shall be given by the Fast Track Courts for disposal of those sessions cases which are pending for the longest period of time, and/or those involving under trials. Similar shall be the approach for civil cases i.e. old cases shall be given priority.[4] Thus, the intention of the Supreme Court is to minimise the backlog of cases so that justice can be rendered in its most desirable form. Sometimes, even petty matters found a scrutiny of the Supreme Court that can easily and conveniently be solved taking recourse of ADR methods.


III. THE BACKLOG PROBLEM

The backlog of cases is increasing day by day but criticising judiciary for the same is a wrong practice. It must be noted that the backlog is a product of “inadequate judge population ratio” and the lack of basic infrastructure. The government is not very keen in increasing and improving either. It has, however, been wise enough to amend the existing provisions of C.P.C, 1908 to take care of the requirements of ADR in India. The CPC has been amended with effect from 1st July 2002 to make ADR an integral part of the judicial process. The newly inserted section 89 (1) in the CPC deals with the settlement of disputes outside the court in order to bring down the arrears of cases before the courts. In terms of new section 89 of CPC, where it appears to the court that there exist elements, which may be acceptable to the parties, the court may formulate the terms of a possible settlement and refer the same for arbitration, conciliation, mediation or judicial settlement. While upholding the validity of the CPC amendments in Salem Advocate Bar Association Vs UOI[5], the Supreme Court had directed the constitution of an expert committee to formulate the manner in which sec.89 and other provisions introduced in CPC have to be in operation. It has also directed to devise a model case management formula as well as rules and regulations, which should be followed while taking recourse to alternative dispute redressal referred to in Sec.89 of CPC[6]. Thus, ADR has been recognised and approved as a “legislative and judicial method” of managing the backlog of cases.

IV. CONCLUSION


The management and maintaining of a welfare state is no doubt the task of the three sovereign organs of the Constitution and speedy disposal of cases is also one of the tasks on their agenda. The same, however, cannot see the light of the day unless citizens also “participate” in that movement. The citizens can help in the achievements of these benign objectives by restraining themselves while invoking jurisdictions of the “traditional courts” where the matter in dispute can be conveniently and economically taken care of by ADR mechanisms. We need “private initiatives” for not only establishment of ADR facilities in India but equally a “liberal use” of the same by the citizens and netizens[7]. It must be noted that an ADR mechanism cannot be effective unless it is amalgamated and merged with the information technology. The benefits of online dispute resolution mechanism are far more and convincing enough to switch to that method. All that is needed is initiatives of private persons and institutions for the facilitation of their maximum and proper use[8].


© Praveen Dalal. All rights reserved with the author.
* Arbitrator,Consultant and Advocate, Delhi High Court
Contact at:  pd37@rediffmail.com/  perry4law@yahoo.com
Telephone No: 9899169611.

[1] Shruti Gupta, “ Speedy justice through ADR mechanism”, (Published in DLT-04)
[2] Hussainara Khatoon (1) Vs Home Secretary, State of Bihar [(1980)1SCC 81]
[3] (2002) 5 SCC 1
[4] Direction No. 8
[5] Writ Petition No.496 of 2002 decided on 25.10.2002
[6] New Law of Arbitration and Conciliation: Recent Elucidation and Interpretation by the Supreme Court; [(2002) 4 Comp.LJ 220]
[7] The citizens can avail the benefits of ADR in real space whereas the netizens can take the benefit of the same in cyber space through online dispute resolution mechanisms.
[8] The recent introduction of "Facilitation Center” by Mr. Naavi is a good step in right direction. I hope and wish that the same will be a grand success and will help in the reduction of backlog of cases.