Arbitration, Tribunal Adjudication and Alternative Dispute Resolution Chapter Notes | Legal Studies for Class 12 - Humanities/Arts PDF Download

Adversarial and Inquisitorial Systems

Adversarial System:

• Parties develop their case theories and gather evidence.
• Lawyers actively assist parties in presenting evidence.
• Judge's role is passive, deciding based on presented evidence.
• Common in countries like the UK, U.S, Australia, and India.

Inquisitorial System:

• Judge takes a central role in dispensing justice.
• Judge determines facts, issues in dispute, and evidence presentation.
• Less reliance on cross-examination; more common in civil law countries.

Advantages of Adversarial System:

• Use of cross-examination to test witness credibility.
• Parties may accept results better with control over the process.

Disadvantages of Adversarial System:

• Cost burden on parties leading to discrimination.
• Procedural formalities like cross-examination can prolong trials.
• Judges play a less active role in truth-finding.

Peter Murphy in his book, Practical Guide to Evidence recounts an instructive example. A frustrated judge in an English (adversarial) court finally asked a barrister after witnesses had produced conflicting accounts, 'Am I never to hear the truth?' 'No, my lord, merely the evidence', replied counsel.

Advantages of Inquisitorial System:

• Judges' active role prevents delays.
• Preserves equality between parties.

Disadvantages of Inquisitorial System:

• Judges may lose neutrality acting as investigators.
• Lack of incentive for judges in proper fact finding.

Introduction to Alternative Dispute Resolution

Meaning and Scope

• ADR involves non-adversarial techniques for resolving legal disputes.

• In India, ADR predates the modern adversarial judicial system influenced by British colonial rule.
• Historically, India had various native ADR methods like Kula, Shreni, and Puga.
• These methods focused on interest-based negotiations with neutral third parties.

Ancient ADR Practices:

• Outside India, ADR was similar to Roman Law's Compromysm (compromise).
• Arbitration was prevalent in civil law on the continent and was respected by the Greeks.
• English law had a varied view on arbitration over time.

Modern ADR:

• Modern ADR methods are diverse and sophisticated.
• These methods are faster, informal, and cost-effective compared to traditional judicial processes.
• Parties can choose the time, place, and procedure for dispute resolution.

Benefits of ADR

• Speedier, informal, and cheaper than traditional court procedures.
• Parties can select experts with relevant legal and technical expertise.
• Reduces delays and pendency in court cases.
• Addresses issues like inadequate courts, increasing litigation, rising costs, and delays.

Conclusion: ADR is a successful alternative to court trials, reviving faith in justice delivery mechanisms.

Types of Alternative Dispute Resolution (ADR)

1. Arbitration

Meaning: Arbitration is a method where disputes are resolved outside traditional courts. It involves a selected person making a decision rather than a judge.

Process of Arbitration: Parties can choose arbitration through an agreement or court referral. They select an arbitrator, and the process is confidential, protecting business secrets and reputations.

• Arbitral Award: The decision made by an arbitrator, binding on the involved parties. It can be enforced like a court judgment.
• Interim Measures: Arbitrators can grant temporary relief to preserve rights during proceedings.

Types of Arbitration:

• Domestic Arbitration: Involving Indian parties and rules.
• Foreign Arbitration: Conducted outside India with enforcement in India.
• Ad-hoc Arbitration: Governed by parties without a formal institution.
• Institutional Arbitration: Parties choose an institution to progress the arbitration.
• Statutory Arbitration: Mandated by specific laws.
• International Commercial Arbitration: Involving at least one party from a country other than India.

An overview of the laws on arbitration

The Arbitration and Conciliation Act of 1996 is the relevant legislation that governs the process of arbitration in India. The statute provides for an elaborate codified recognition of the concept of arbitration, which has largely been influenced by significant movements of judicial reforms and conflict management across the world. In this regard, a special reference must be made to an international convention entitled, United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration, 1985. After the birth of this international treaty, the United Nations General Assembly, recommended that all countries must give due consideration to the said Model law, in-order to bring uniformity in the law and practice of international arbitration. The Indian Arbitration and Conciliation Act of 1996 is similarly modelled on the UNCITRAL model law.

2. Administrative Tribunals 

• 42nd Amendment Act, 1976: Added Articles 323-A and 323-B to the Indian Constitution.
• Empowerment: Parliament can establish tribunals for specific disputes.
• Range of Disputes:
  • Service conditions of government officers
  • Collection and enforcement of taxes
  • Industrial and labor disputes
  • Matters concerning land reforms
  • Election disputes
  • Ceiling on urban property
  • Production, procurement, supply, and distribution of essential goods
• Impact: Led to the rise of tribunalization in the Indian judiciary system.
• Administrative Tribunals Act, 1985: Established Central Administrative Tribunal (CAT) and State Administrative Tribunals.
• Role of CAT: Adjudicates on service matters of covered employees.
• Appeals: Orders can be appealed before the Division bench of the relevant High Court.
• Procedural Flexibility: Tribunals are flexible, enhancing efficiency.
• Objective: Provide swift and cost-effective justice, especially in government-related disputes.
• Comparison: Tribunals do not replace courts but complement their role.
• Legal Context: Decisions of tribunals can be reviewed by High Court Division benches.
• Global Context: Similar tribunals exist in EU and US legal systems.

Mediation and Conciliation

Mediation: Meaning and Types

• Mediation is an Alternative Dispute Resolution (ADR) method where a neutral third party helps parties reach a voluntary agreement.
• It's a flexible, informal, and less formal process compared to arbitration or litigation.
• Mediation is relatively inexpensive, fast, and confidential, similar to arbitration.
• The outcome of mediation isn't binding like arbitration, but agreements can become legally binding if included in a contract.

Types of Mediation

• Evaluative Mediation: Involves the mediator evaluating the case and suggesting a fair settlement.
• Facilitative Mediation: Mediator facilitates the conversation without giving opinions on the case's merits.
• Transformative Mediation: Focuses on empowerment and recognition shifts through communication and decision-making.
• Mediation with Arbitration: Begins as mediation but can turn into arbitration if mediation fails.
• Online Mediation: Uses online technology to facilitate mediation despite geographic or other barriers.

Process of Mediation

• The neutral third party facilitating the process of mediation is known as a mediator.
• Mediation does not follow a uniform set of rules.
• Successful mediation depends on the willingness of parties to participate and the skills of the mediator.
• - Mediation can be triggered in three ways:
  • Pre-litigation mediation (parties agree to resolve claims without formal judicial proceedings).
  • Court referrals (parties agree to mediate at the beginning of court proceedings).
  • Mediation after formal court proceedings or post-trial.
• Mediation is suitable for various disputes like contractual, relationship-based, and consumer disputes.
• Mediation allows parties to discuss and settle issues, leading to lasting peace.
• The Supreme Court of India limits the scope of mediation in certain types of cases.

Conciliation: Meaning

• Conciliation is similar to mediation but involves a neutral third party helping parties resolve disputes.
• A key difference is that a conciliator may suggest solutions to resolve claims and disputes.

Laws on Mediation and Conciliation

• Mediation and conciliation are governed by Section 89 of the Civil Procedure Code, 1908.
• Section 89 deals with court-referred mediation, while pre-litigation mediation is not yet regulated in India.
• Conciliation is referenced in Section 89, Civil Procedure Code, and further detailed in the Arbitration & Conciliation Act, 1996.
• The Industrial Disputes Act, 1947, also supports conciliation for resolving labor disputes.

Lok Adalat

• Definition: Lok Adalat, also known as People's Court, is an indigenous Indian innovation in legal practice.
• Historical Context: Lok Adalat draws on ancient traditions where disputes were resolved at the village level by bodies like 'panchayats' through arbitration.
• Objective: The primary aim of Lok Adalat is to provide an alternative to traditional litigation by encouraging mediation, negotiation, and arbitration.
• Composition: A Lok Adalat typically comprises a judicial officer (chairman), a lawyer, and a social worker.
• Jurisdiction: Lok Adalats have the authority to settle both pending court cases and pre-litigation disputes, including civil and non-compoundable criminal matters.
• Key Features: Participation, accommodation, fairness, voluntariness, neighbourliness, transparency, efficiency, and lack of animosity are central to Lok Adalat proceedings.

Benefits:

• No court fees are required, and if a case is settled in Lok Adalat, any fees paid in regular court proceedings are refunded.
• Procedural laws are not strictly applied, allowing direct interactions between disputing parties and judges.
• Decisions made by Lok Adalat are binding and can be enforced through legal processes.

Notable Fact: The first Lok Adalat was convened on March 14, 1982, in Junagarh, Gujarat, marking the beginning of a successful approach to dispute resolution.

An overview of laws on Lok Adalat 

• The Legal Services Authorities Act of 1987, enacted in accordance with Article 39-A of the Indian Constitution, empowers Lok Adalats for dispute resolution.
• The Act establishes legal services authorities to provide free legal aid and competent services to marginalized sections of society.
• In 2002, amendments introduced permanent Lok Adalats for public utility services.

National Legal Services Authority (NALSA):

• NALSA, formed under the Legal Services Authorities Act, frames policies for legal services and oversees the effective implementation of legal aid schemes.
• It ensures the provision of legal aid, speedy justice, and financial support for legal aid programs and initiatives.

State Legal Services Authorities and District Legal Services Authorities: These authorities, established at state and district levels, respectively, aim to extend legal aid services to all sections of society.

Ombudsman

Meaning and Role

• An ombudsman, originating from the Swedish, Danish, and Norwegian term "Ombudsman," is fundamentally a "representative."
• Irrespective of being appointed by a legislative body, the executive branch, or an organization, the primary responsibilities of an ombudsman involve investigating complaints and striving to resolve them through recommendations, both binding and non-binding, or mediation.
• Ombudsmen also focus on uncovering systemic issues that may lead to inadequate services or violations of people's rights.
• At the national level, most ombudsmen possess extensive authority to address the entire public sector, occasionally including aspects of the private sector such as contracted service providers.
• Additional remedies are contingent on the laws of the respective country, often involving financial compensation.

Ombudsman in India:

• The Government of India has appointed several ombudsmen, sometimes referred to as Chief Vigilance Officers (CVO), to handle grievances and complaints from individuals within the banking, insurance, and other sectors served by both private and public entities.
• For instance, the Central Vigilance Commission (CVC) was established based on the recommendations of the Santhanam Committee (1962-1964). The CVC acts as the foremost vigilance body, independent of any executive influence, overseeing all vigilance operations within the Central Government and offering guidance to various authorities within Central Government organizations on planning, executing, reviewing, and enhancing their vigilance activities.

Advantages of an Ombudsman:

• One of the primary advantages of an ombudsman is their ability to investigate complaints from an external standpoint, thereby avoiding the inherent conflicts of interest associated with self-regulation.
• However, the effectiveness of the ombudsman system heavily relies on selecting a suitable individual for the role and obtaining cooperation from at least some competent officials within the state's administrative framework.

Lokpal and Lokayukta

Meaning and Origin:

• A Lokpal, meaning "caretaker of people," serves as an ombudsman in India.
• Lokayukta, appointed by the people, functions as a similar anti-corruption ombudsman organization in Indian states.

Legislation:

• The Lokpal and Lokayukta Act, 2013, formally recognized the institutions of Lokpal and Lokayukta.
• The Act targets combating bribery and corruption among public servants, encompassing individuals both within and outside India.

Scope and Coverage:

• The Act includes current and former Prime Ministers of India but excludes matters related to specific domains like international relations and security.
• It extends its purview to former and current Union Ministers and Members of Parliament.
• Bureaucracy under scrutiny involves officials from Group 'A', 'B', 'C', or 'D' categories, as per the Prevention of Corruption Act, 1988.

Composition of Lokpal:

• The Lokpal comprises a Chairperson with judicial or anti-corruption expertise, along with a specified number of Judicial Members.

Powers and Functions:

• Lokpal exercises extensive powers akin to supervisory, inquiry, and investigative authorities, comparable to police and the Central Vigilance Commission.
• It maintains an inquiry and prosecution wing to address corruption charges under the Prevention of Corruption Act, 1988.
• Lokpal may suggest the establishment of special courts for cases under the aforementioned Act.

Lokayukta Establishment:

• The Lokayukta system at the state level, mandated by the Lokpal and Lokayuktas Act, 2013, aims to handle corruption complaints against public officials.
• All states must set up Lokayuktas within a year of the Act's commencement.
• Several states, like Delhi, Karnataka, and Kerala, had pre-existing Lokayukta structures before the Act came into force.