LOK ADALAT ADR-BA LLB, Lecture notes of Law of Torts

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REPORT ON LOKADALAT

SUBMITTED BY:

GOVIND V P

Roll No: 36

th

SEM BA LL. B

Reg No: 47317551037

TABLE OF CONTENTS

• TABLE OF CASES
• PART 1 - GENERAL PART - INTRODUCTION....................................................................................... - ALTERNATE DISPUTEVRESOLUTION - CONCEPT OF ADR
  • ADVANTAGES OF ADR
  • DISADVANTAGES OF ADR.....................................................................
  • TYPES OF ADR
• PART 2 - STRUCTURAAL FRAMEWORK OF LOKADALAT............... - LOKADALAT INTRODUCTION.................................................................................... 13. - ADVANTAGES OF LOKADALAT - DISADVANTAGES OF LOKADALAT - PERMANENT LOKADALAT - RELATED CASES
• PART 3- REPORT ON LECTURE SERIES
  • INTRODUCTION......................................................................................
  • REPORT
• CONCLUSION.................................................................................................

PART-I GENERAL PART

INTRODUCTION Today’s world has become globalised and commercial with the advent of technology. People can now contact each other and settle business deals and disputes when they are sitting at the opposite ends of the world. Most people no longer have the time to go and file papers at the courts and then wait long periods for a hearing. We are rapidly approaching a stage where litigation is being replaced with alternative dispute resolution (ADR), due to the inefficiencies and drawbacks of litigation. India hasn’t quite reached a stage where litigation has been completely displaced by ADR methods, but the legal system is beginning to see the benefits of ADR. Alternative Dispute Resolution (ADR) refers to an array of methods for resolving legal disputes without resorting to the court system. ADR plays a pivotal role in the American legal process, but it is often overshadowed by Hollywood’s glamorous portrayal of jury trials. One might imagine that all legal disputes are battled out in large courtrooms filled with jurors and spectators. In reality, about five percent of civil cases ever make it to trial. In some states, that rate has reached as low as 0.2 percent. The same is true of criminal cases, with only 10 percent reaching trial. The other 90 to 99.8 percent of legal disputes are resolved through some form of ADR. ADR methods have gained substantial traction over the past 30 years. They are increasingly popular with clients, attorneys, and judges alike. There are four primary reasons for their rise in popularity. First, ADR increases court efficiency. The general public has never been more litigious. Court dockets are bursting at their seams, and there are only so many judges available to handle the ever-increasing caseload. As a result, many judges now issue court orders requiring the parties to engage in some form of ADR before allowing a case to proceed to trial. Second, ADR is less costly than trial. Trial is by far the most expensive stage of litigation. It often involves the additional expense of expert witnesses, who can charge over $1000.00 per hour for their services. In addition, most plaintiff’s attorneys charge a contingency fee that significantly increases if the case reaches the trial stage. Attorneys often spend well over half of their billable hours in trial or in trial reparation1. At the end the day, clients are generally happy to avoid these trial-related expenses.

Third, ADR is generally less risky than trial. At trial, a judge or a jury decides the

case, which may lead to unintended outcomes.Jury trials, in particular, are known

to be a bit of a “coin toss”—sometimes literally. In Kentucky, a man was

convicted of murder when the jury flipped a coin after reaching a stalemate in

deliberations.Of course, when the judge discovered the true nature of the

conviction, he ordered a new trial. Still, the point is well taken—trial offers no

These kinds of inefficiencies are shared reasons among many countries, which is why ADR is being explored. The courts also have too many pending cases and these cases keep going on for many years which is a tremendous burden to the courts. These reasons prompted the Indian Government to enact Section 89 of the Code of Civil Procedure, 1908 and replace the earlier Arbitration Act,1940 with The Arbitration and Conciliation Act 1996, in accordance with the mandates of the United Nations Commission on International Trade Law (UNCITRAL).

ADVANTAGES OF ADR

• It is less expensive.
• It is less time consuming.
• It is free from the technicalities that are present in the court system.
• The parties are free to differ in their opinion and can discuss their opinions with each other, without any fear of disclosure of this fact before the courts.
• There is no feeling of enmity between the parties as there is no winning and losing side. They also get their grievances redressed and their relationship remains as it was before, therefore, they can conduct future business deals with each other.
• ADR is more suitable for multi party disputes, as all the parties can put forward their opinions at the same place and in one go, rather than going to court again and again. Also, it provides for a wider perspective of the dispute.
• The parties often have the choice of the ADR method to be used. They sometimes also have the choice to select the individuals or bodies who will settle the dispute.
• The process is also very flexible, according to what suits the parties.
• The parties also have the option of being confidential. The ADR system also enables the parties to put focus on practical solutions.
• A wider range of issues are considered and shared future interests of the parties are protected.
• ADR system also allows for risk management. 4 ibid

DISADVANTAGES OF ADR

• ADR is not helpful where a dispute is to be decided on the basis of a precedent.
• When there is a need for court and interim orders, ADR would not be useful.
• ADR is less suitable when there is a need for enforcement.
• When there is a need for live and expert evidence and analysis in a case, then ADR would not be useful.
• When there is an imbalance of power, between the parties in the dispute, then ADR would not work.
• If the case is of a complex nature, then the adjudicating body must look into minor details and may need expert advice and suggestions. Here, ADR would probably not work.

TYPES OF ADR METHOD

There are various ADR methods, but they differ from country to country. This article shall look at the main ADR methods used, with special focus on India.

• ARBITRATION Arbitration in India is governed by The Arbitration and Conciliation Act, 1996. It is a form of dispute resolution where one or more parties are appointed to adjudicate the dispute. They act as third parties. This third party should be neutral and this party is referred to as an ’arbitrator’ while the decision of the arbitrator, which is essentially a determination of merits in the case, is known as ‘arbitration award’. The arbitration process is informal and this process allows the dispute to be resolved amicably and efficiently as it takes less time and involves lesser costs for the parties. Therefore, parties frequently choose to arbitrate when disputes arise, especially in the business world. Big corporations would rather settle disputes quickly, rather than fighting long cases in the courts. Before the arbitration process begins, an arbitration agreement is required to be formed. This agreement lays down the terms and conditions on which the arbitration process is carried out. It is determined through this agreement as to how the process will be made cheaper, efficient and and how the rules of evidence would be applied etc. 6 This 5ibid

• MEDIATION In mediation, a third neutral party aims to assist two or more disputants in reaching a settlement. This third party is referred to as the mediator. The mediator needs to properly communicate with both the parties and use proper negotiation techniques, in order to make one party fully aware of the other party’s perspective, through empathy and dialogue. This process is controlled by the parties. One of the characteristics of this type of dispute resolution is that the mediator is not allowed to give an outcome of the dispute. The solution is given mutually, and the agreements are generally non binding. Parties are in significant control of the mediation process and it is strictly confidential. The parties can even go for litigation if they are not satisfied with the mediation process. It must be observed that the main aim of the mediation process is to build relationships, and not to make a decision. It is more of an amicable resolution of differences with potential form future business between the parties. Guru Nanak Foundation v. Rattan Singh & Sons case, AIR 1981 SC 2075, where it was felt that court fed litigation has an abundance of procedural “claptraps” when compared to ADR systems which is more speedy, less formal and effective as compared to complex, expensive, time consuming and interminable court procedures where “lawyers laugh and legal philosophers weep”.
• NEGOTIATION Negotiation is also a form of dispute resolution, but there is no third party to adjudicate the matter, therefore the parties work together to find a mutually acceptable solution or a compromise. The parties may choose to be represented by their attorneys during their negotiations. Negotiation is not statutorily recognized in India. There are no set rules for conducting a negotiation. Essentials of negotiation-
• It is a process of communication which helps to resolve conflicts.
• It can be entered into voluntarily and its outcome is non-binding.
• The parties are benefitted here as they have control over the outcome and procedure and the process is carried out keeping their interests in mind. 8 8 ibid

• CONCILIATION In conciliation, the third party, who is called the conciliator, talks to the parties involved separately so that the parties can arrive at a mutually acceptable solution through facilitating talks between the parties. Conciliation is also governed in India under The Arbitration and Conciliation Act, 1996. Under Section 61, conciliation is provided for disputes arising out of legal relationships, whether they are contractual or not. Difference between mediation and conciliation In mediation, the mediator plays a more active role in the the process by proposing compromise solutions after hearing all parties while in the case of conciliation, the conciliator has to bring the parties into such a state of mind as to facilitate the parties to come to an acceptable compromise. 9 9 ibid

INTRODUCTION

The Indian judiciary is held in very high esteem in all the developing as well as

the developed countries of the world. However, there is criticism that the Indian

judiciary is struggling with many problems as the mounting burden of backlog

of court cases, the astronomical rise of high costs of litigation, corruption,

inadequate number of judges, lack of sufficient accommodation and staff,

unpredictable delays, and inaccessibilities of justice. The Lok Adalat system is

only the answer of these significant problems of Indian judicial system. Lok

Adalat an important alternative method used for resolution of disputes, where

justice is dispensed summarily without too much emphasis on procedural

technicalities. It enables the common people to ventilate their grievances against

the state agencies, other citizens and to seek a just amicable settlement if

possible. Such mutually agreed settlements arrived at by the disputants in the

Lok Adalats contribute to the greater social solidarity and better cohesion

among litigants. The salient features of this form of dispute resolution are

participation, accommodation, fairness, expectation, voluntariness,

neighbourliness, transparency, efficiency, less legal technicalities and lack of

animosity

LOK ADALATS

In a country like India where there are many illiterate people, the concept of Lok

Adalats is a necessity. This was first introduced in 1982 in Gujarat. This concept

mainly focused on reducing the burden of pending cases on the Courts and has

incorporated the concept keeping in mind various factors like social justice.

Lok Adalats are governed under The Legal Services Authorities Act,1987.

Sections 19, 20, 21 and 22 specifically deal with Lok Adalats. They have been

organised by the State Legal Aid and Advice Boards with the aid of District Legal

Aid and Advice Committees. These have helped poor people to avoid the

inefficiencies of litigation. The aim of The Legal Services Authorities Act was to

provide access to justice for all, whether he be poor or rich. Since the poor masses

of the society were not being delivered on this promise, this Act was formed. This

access has been further strengthened by judgements of various courts, such as the

Delhi High Court, in the case of Abul Hasan and National Legal Service

Authority v. Delhi Vidyut Board & Ors. AIR 1999 Del 88 where it gave an order

for setting up permanent Lok Adalats. Further, the decision given by the Lok

Adalat is binding and shall be treated akin to the order of a civil court., thereby

increasing poor people’s access to justice.

judge about the matter directly. This is not a possibility in courts where a third

person pleads the case and the nvolved only get a say when their turn comes. To

explain their stand directly is an advantage that makes people’s court very

accessible and easy for people.

6. Even if the case is filed in court, the expenses are refunded to the party when

the case is solved by Lok Adalat which is another reason why people should be

made more aware of this litigation system where there is no fee involved.

According to justice V V Rao, it will take another 320 years to clear the pending

backlogs in India but if more and more people take their cases to Lok Adalats,

there is a fair chance that this could be achieved earlier.

DISADVANTAGES OF LOKADALAT:

Justice delayed is justice denied but justice hurried is also justice buried. Faster

justice comes with a price of settlement made at the cost of lesser compensation

and the petitioner had no time to claim higher amount which he justly should

have got as seen in many cases after which apex court ordered Lok Adalat to be

careful about not impairing the right of any party involved in the issue. Faster

and easier justice must not come with the price of injustice which is what falls

as a disadvantage of Lok Adalat.

Not all cases are suitable for lok adalat jurisdiction. Lok adalat is all about

settlement and compromise which is not what every case requires. Most cases in

India require punishment and correctional methods which is not under the

dealing of lok adalat. These cases would usually fail here and would then be

recommended to courts. This would only create superfluous deferral in the legal

proceedings, sometimes which could be required as early as possible.people

in12.

1. In fact, Lok Adalat is brought into force to settle the cases quickly but in

reality number of cases placed before the Lok Adalat is delayed beyond

imagination and parties might have spent large sums in the form of

advocates fees and other miscellaneous expenses.

2. The majority of the cases placed before the Lok Adalat are not between

living persons, but against non-living persons. For example, Motor

Vehicles Accident Claim cases, telephone bills cases, Electricity board

cases, etc.,

3. The presiding officers of Lok Adalat are chosen from the retired judicial

officers and others of that area who are having prescribed qualifications

and experience. But usually, these officers are not in a position to

convince the parties for the settlement of cases in an amicable manner,

since they are not trained.

4. The major drawback is that the system of Lok Adalats is mainly based on

compromise or settlement between the parties. If the parties do not arrive

at any compromise or settlement, the case is either returned to the court of

law or the parties are advised to seek remedy in a court of law. This

causes unnecessary delay in the dispensation of justice. 13

PERMANENT LOKADALAT:

The other type of Lok Adalat is the Permanent Lok Adalat,

organized under Section 22-B of The Legal Services Authorities Act, 1987.

Permanent Lok Adalats have been set up as permanent bodies with a Chairman

and two members for providing compulsory pre-litigative mechanism for

conciliation and settlement of cases relating to Public Utility Services like

transport, postal, telegraph etc. Here, even if the parties fail to reach to a

settlement, the Permanent Lok Adalat gets jurisdiction to decide the dispute,

provided, the dispute does not relate to any offence. Further, the Award of the

Permanent Lok Adalat is final and binding on all the parties. The jurisdiction of

the Permanent Lok Adalats is upto Rs. One Crore. Here if the parties fail to

reach to a settlement, the Permanent Lok Adalat has the jurisdiction to decide

the case. The award of the Permanent Lok Adalat is final and binding upon the

parties. The Lok Adalat may conduct the proceedings in such a manner as it

considers appropriate, taking into account the circumstances of the case, wishes

of the parties like requests to hear oral statements, speedy settlement of dispute

etc.

PART-III REPORT ON LECTURE SERIES

INTRODUCTION

A one week traine's trainer program (LAWOF 2021)was conducted from

20th october to 27th october by kerala law academy in association with

national service scheme as part of legal aid clinic. The aim of this legal

awareness programme was that would serve as an inductingto budding Lawyers

and will equip them to succour the survey by providing legal awareness. The

inauguration was done by Honble Justice Mr. MUHAMMED NIAS C. P ( The

Judge, High Court Of Kerala). The welcome speech was delivered by Nagaraj

Narayan(Director kerala Law Academy).The presidential address is done by

Sanil Kumar(Judge CBI Special Court& Chairman of TLSC). Vote of Thanks is

presented by Prof. Hareendharan (principal of Law Academy). It is one of the

effective method of grasp the legal Awareness