Alternate Dispute Resolution and Lok Adalats

Alternate Dispute Resolution Mechanism

Alternative Dispute Resolution(ADR) includes dispute resolution processes and techniques  short of litigation like Lok Adalats.

Various Provisions of Alternative Dispute Resolution

• Historical Approach: Panchayats in India are the earliest known Alternative Dispute Resolution mechanism. 
• Constitutional provision: The mechanism finds its basis in the
  • Article 14 (Equality before Law)
  • Directive Principles of State Policy (DPSP) for Equal Justice and Free legal Aid under Article 39A.
• Legal Provisions
  • Gram Nyayalayas Act,2009
  • Legal Services Authorities Act (1987) (established Lok Adalat System)
• Committees
  • Justice Malimath Committee (1989- 90) suggested the need for establishing Alternative Dispute Resolution mechanism 
  • Justice BN Srikrishna Committee

Need of Alternate Dispute Resolution Mechanisms?

• In country like India, where there is huge backlog (3.2 crore) , Alternative Dispute Resolution can play a huge role in making justice available to all
• Right to timely justice is an implicit part of the fundamental Right to Life and liberty. 
• Alternative Dispute Resolution can also be implicitly related to the Directive Principles of State Policy  for Equal Justice and Free legal Aid under Article 39A.
• Judicial proceedings in India not only take time but are also expensive . Alternative Dispute Resolution is way to provide inexpensive justice to people.
• Alternative Dispute Resolution  allows the parties to come up with more creative solutions that a court may not be legally allowed to impose.

Arbitration , Mediation and Conciliation

• Three main types of Alternative Dispute Resolution are
  • Arbitration : Very close to court but instead of Court , there will be some third party to decide issue  . Process of arbitration can start only if there exists a valid arbitration agreement between the parties prior to the emergence of dispute. Both parties agree to abide by decision beforehand .
  • Mediation : Third party is catalyst helping them to  reach at some middle ground.
  • Conciliation : Same like Arbitration in which third party will give verdict but that is not binding .

Important Notes

• Alternative Dispute Resolution processes conform only to civil disputes.
• Mahatma Gandhi Tanta Mukti Abhiyaan : Scheme of Maharashtra to resolve small disputes in villages by way of Arbitration within Village . United Nations has recognised this Scheme for bringing harmony

Lok Adalats

Legal Services Authorities Act, 1987

Hindrances to Access to Justice

1. Poverty of claimant => can’t hire Advocate and can’t afford to attend court proceedings by skipping his daily wages .
2. Delay in disposal of justice as it take decades for case to reach its logical conclusion.

Legal Services Act was enacted to take care of such problems 

To check above hindrance , two things done under Legal Services Authorities Act

• Legal Services Authorities at the National, State and District levels to  provide free & competent legal services to the weaker sections of  society
• Lok Adalats : For faster disposal of Justice (explained below)

Lok Adalat = People’s Court

Overview

• Organiser = The National Legal Service Authority (NALSA) .
•  Idea of Lok Adalat was advocated by Justice P.N. Bhagwati, a former Chief Justice of India.
• It is Non-adversarial system, whereby mock courts (called Lok Adalats) are held by the National (NALSA), State , District Authority etc
• Lok Adalat is
  • presided  by sitting or retired judicial officer as chairman, with two other members, usually lawyer & social worker.
  • There is no Court Fee.
  • procedural laws and the Evidence Act are not strictly followed 
  • Can deal with all Civil Cases – Matrimonial Disputes, Land Disputes,  Property Disputes etc.
• First Lok Adalat was held  in 1982 in Gujarat.
• LEGAL SERVICES AUTHORITY ACT 1987 ,  gave statutory status to Lok Adalat.
• Main condition of the Lok Adalat is that both parties in dispute should agree for settlement. The decision of Lok Adalat is binding on the parties to the disputes and its order is capable of execution through legal process. No appeal lies against the order of the Lok Adalat.

How Lok Adalat is different

• Less expensive & fast
• Focus on compromise. When no compromise is reached, the matter goes back to the court &  if a compromise is reached, an award is made and is binding on the parties.
• Disputing parties plead their case themselves . No advocate or pleader is allowed
• No court fees levied
• Award has same effect as of a Civil Court decree

Limitations of Lok Adalat

• Lok Adalats are not suitable for complex cases  because repeated sittings at short intervals with  same judge are  not possible
• Lack of Confidentiality – Lok Adalat proceedings are held in the open court 
• Lok Adalats are criticized for being in hurry. It should be kept in mind that ‘Justice should not only be done, it must also be seen to be done’
• Article 39 A calls for equal justice . But Lok Adalats don’t provide this.

Therefore Lok Adalats can at most supplement the legal redressal mechanism rather than being an alternative to the formal institution of Judiciary

Other things done for Alternate Dispute Redressal

• Arbitration and Conciliation Act amended
• Justice BN Srikrishna Committee to review Arbitration Mechanism in India which has called for
  • Making Arbitration Promotion Council of India (APCI) to improve quality of arbitration in India
  • Amend National Litigation Policy to declare that PSU Litigations will be solved via Arbitration instead of Courts
• Special Commercial Courts have been made for speedy disposal of Commercial disputes above ₹1 cr

Parliamentary  Privileges & Contempt of House

This issue remains in news like

1. 2019 : Breach of privilege motion was moved against Prime Minister and Defence Minister claiming they had misled Parliament on the Rafale fighter jet deal issue
2. 2017 :  Karnataka assembly Speaker ordered the imprisonment of two journalists for a year based on recommendations of its privilege committees.
3. 2003 : TN  Speaker directed arrest of 5 journalists for publishing articles that were critical of AIADMK government

Meaning of Parliamentary Privilege

• ‘Privilege’ means a special or exceptional right  or  immunity enjoyed by a particular class of persons 
• Idea behind parliamentary privileges is that members who represent the people 
  • Should not be obstructed in any way in the discharge of their parliamentary duties
  • They are able to express their views freely and fearlessly inside the Houses of Parliament   
  • Ensure sovereignty of Parliament .

Collective Privileges

• Right to publish its Reports & Proceedings & also right to prohibit others from publishing same(44 Amendment – Press can publish true report without permission)
• Can hold secret sitting 
• Can make rules to regulate its own procedures
• Right to receive immediate information about arrest, detention etc of its member
• Courts are prohibited to inquire into proceedings of House 
• It can punish members as well as outsiders for breach of privileges

Individual Privileges

• Cannot be arrested during the session and 40 days before the beginning and 40 days after the end of the session . 
• Freedom of Speech in the Parliament . No member is liable  for anything said  in Parliament 
• Exempted from jury service . Can refuse to give evidence and appear as a witness when Parliament is in session .

Breach of Privileges vs Contempt of the house

• Any act or omission which
  • obstructed a House of the Parliament / its Member / its Officer in the performance of their functions or
  • which has tendency to produce result against the dignity , authority and honour of the House
• is treated as Contempt of the House

• Breach of Privilege and Contempt of the House are used interchangeably but may have different implications
  • Contempt of the House has wider implications – It may be a Contempt of the House without specifically committing a Breach of Privilege
  • Example : Disobedience to a legitimate order of House is not a breach of the Privilege but can be a Contempt of the House

Important Cases

• Keshav Singh Case , 1965 : Related to committal to prison of Keshav Singh by the UP Vidhan Sabha for committing a breach of privilege and contempt of the House .  It was held that Judiciary cant interfere in this.

• Searchlight case, 1959 : Supreme Court held that the provisions of Article 194 indicate that Freedom of Speech referred in it is different from the Freedom of Speech and Expression under Article 19(1)(a) and cannot be cut down in any way by law contemplated by clause(2) of Article 19.

Need of Codified Act regarding Privileges

There is need for a law for codifying the privileges, define the limits of penal action for breach of privilege and procedures to be followed.

• Article 105 (Article 194 for LA) : Privileges and immunities of each House of Parliament shall be such as may be defined by Parliament by law, and, until so defined shall be those which are enjoyed by House of Commons of Britain .
• Hence, until now since separate Law is not there, Parliament enjoys same privileges as that of House of Commons .
• Note : expression ‘until so defined’ does not mean an absolute power to not define privileges at all.

Issue :

1. Indian Parliament is not Supreme while British Parliament is. Hence, giving same power to Parliament as that of House of Commons is wrong because
   • Fundamental Rights of Citizens can be curtailed
   • other limitations on Parliament cant be applied
2. Historical reasons : Parliamentary privileges were wrested by Parliament from  King in England. In India, Privileges were granted by People so that their representatives can work without any fear

National Commission to Review the Working of Constitution (NCRWC) , 2nd Administrative Reforms Commission (ARC)& All India Whips  has also recommended that the privileges of legislatures should be defined by law.

Australia passed Parliamentary Privileges Act in 1987, clearly defining privileges, the conditions of their breach and consequent penalties.