20 ADR in Indian Law:Lok Adalats And Other Mechanisms

Mr Madhav Mallya

1.  INTRODUCTION

Lok Adalat, plainly means ‘People’s Court’. It is one of the alternative system of dispute resolutions and has a long history in India. The silent feature of this form of dispute resolution are: participation, accommodation, fairness, voluntariness, efficiency and lack of animosity, finical viability etc.. It has statutory recognition under Legal Services Authorities Act, 1987 as amended. Similarly permanent Lok Adalat established under Legal Services Authorities Act, 1987 has both function to play which included Pre-Litigation Conciliation and Settlement and if the dispute is not settled then adjudication on merits.

Directive Principles of State Policy in the Constitution of India 1950, casts a duty upon the state to take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. To fulfill the said objective Gram Nyayalayas Act 2008, was passed by the parliament for establishment of Gram Nyayalayas or village courts for speedy and easy access to justice in the rural India.

Learning Outcomes:

The knowledge of the concept of Lok Adalat and reasons for the establishment of the institution as part of Indian adjudication process,

The role played by the courts and their place in the working of the institution of Lok Adalats

The knowledge of the institution of Gram Nyayalayas and reasons for the establishment of these Nyayalayas as part of Indian adjudication process,

The role played by the courts and their place in the working of the institution of Gram Nyayalayas, and

Understanding the importance of Gram Nyayalayas and Lok Adalats in the achievement of the Constitutional mandate in the socio-economic realities of India.

1.1. Lok Adalat: Genesis

The genesis of the concept of Lok Adalat, lies in the jurisprudence inspired by our constitutional ideals and the institution gives a fair opportunity not only to the indigent, but to every person who has a legal dispute to resolve on the basis of equality.

Article 39A of the Constitution, a directive principle of state policy, states that the state shall secure that the operation of the legal system promotes justice on the basis of equal opportunity, and shall in particular provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

The following description about our contemporary system of justice gives us a broad understanding and why the concept of Lok Adalat is an essential part of the principles of access to justice.

Our present traditional system of justice is suffering from maladies like huge and heavy expenses; unexpected and unpredictable delay in disposal and cumbersome and complex process of court…. The life span of a civil case or a law suit in the civil side is ranging average, between 8 to 12 years. Who knows that even after a successful decision or order in favour of a party, whether he would be able to see light at the end of the tunnel after having passed through the long legal and procedural conduit pipes? Even after a decree awarded or order passed on judicial side in favour of a party,after a number of years a successful party has again to undergo a second round of litigation at the stage of execution.

In Hussainara Khatoon v State of Bihar2, referring to the poor and indigent, the Supreme Court observed that ‘the Law is regarded by them as something mysterious and forbidding, always taking something away from them and not as a positive and constructive social device for changing the social economic order and improving their life conditions by conferring rights and benefits on them. The result is that the legal system has lost its credibility for the weaker sections of the community. It is, therefore, necessary that we should inject equal justice into legality and that can only be done by dynamic and active schemes of legal services’.

Realising that the programme of legal aid is a constitutional mandate, the Government of India by a resolution dated 26th September 1980 appointed the “Committee for Implementing Legal Aid Schemes” (CILAS) to monitor and implement legal aid programmes on a uniform basis in all the states and union territories.

It was later felt desirable to constitute statutory legal service authorities at the national , State and District levels and therefore the Legal Services Authorities Act 1987 (LSA Act 1987) was enacted with a view to constitute Legal Services Authorities at National, State and District levels. The Act incorporates provisions for the institution of Lok Adalats.

1.2. Gram Nyayalayas

Article 40 of the Constitution of India 1950, casts a duty upon the state to take steps to organize Village Panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government.

Parliament of India passed the Constitution (Seventy Third Amendment) Act 1992. The Amendment Act recognized, under its statement of object and reasons, the existence of Panchayati Raj Institutions and observed that these institutions have not been able to acquire the status and dignity of viable and responsive people’s bodies. The Act acknowledged and highlighted a number of reasons for the degenerated state of the Panchayati

Raj institutions in the country. The most important amongst them included absence of regular elections, prolonged supersessions, insufficient representation of weaker sections like Scheduled Castes, Scheduled Tribes and women, inadequate devolution of powers and lack of financial resources. The statement of object and reasons of the Act observes that the it seeks to achieve the aims enshrined under Article 40 of the Constitution. Accordingly part IX was added to the Constitution which provides for the institution of Panchyats.

Later on Gram Nyayalayas Act 2008 was passed by the parliament for establishment of Gram Nyayalayas or village courts for speedy and easy access to justice in the rural areas of India. The Act came into force on 2nd October 2009.

The preamble of the Act sates that this is an Act to provide for the establishment of Gram Nyayalayas at the grass roots level for the purposes of providing access to justice to the citizens at their doorsteps and to ensure that opportunities for securing justice are not denied to any citizen by reason of social, economic or other disabilities and for matters connected therewith or incidental thereto.

2.LEGAL SERVICES AUTHORITIES ACT 1987

2.1. Establishment, Power, and Procedure for Lok Adalats

The preamble of the Act states that it is to constitute legal services authorities to provide free and competent legal services to the weaker sections of the society, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disability, and to organize Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity.

Chapter VI and VI A give recognition and statutory status to the institution of Lok Adalats. As per section 19 every State Authority or District Authority or the Supreme Court Legal Services Committee or every High Court Legal Services Committee or as the case may be, Taluk Legal Services Committee may organise Lok Adalats at such intervals and places. The Lok Adalat shall consist of members of serving or retired judicial officers and other persons, of the area as may be specified by the respective organizing Authority. Section 19 (5) of the Act deals with the jurisdiction of the Lok Adalat to determine and arrive at a compromise or settlement between the parties to a dispute. The type of cases over which a Lok Adalat can exercise jurisdiction is specified in section 19(5).

According to this provision a Lok Adalat shall have jurisdiction to determine and arrive at a compromise or settlement between parties to a dispute in respect of any case pending before or any matter which is falling within the jurisdiction of and is not brought before any court for which the Lok Adalat is organized. However the Lok Adalat shall have no jurisdiction in respect of a case or matter relating to an offence not compoundable under any law. The jurisdiction of the Lok Adalat is also co-extensive with that of the Court in relation to which the Lok Adalat is organized.

Section 20(3) provides that where any case is referred to a Lok Adalat under sub section (1) of section 20 or where a reference has been made under said provision, the Lok Adalat shall proceed to effect a compromise or settlement between the parties and every Lok Adalat shall while determining any reference before it under the Act be guided by principles of justice, equity and fair play and other legal principles.

Section 21 states that an award of the Lok Adalat shall be deemed to be a decree of a civil court, or order of any other court and where a compromise or settlement has been made, the Court fee paid shall be refunded in the manner provided under the Court Fees Act 1880. It further says that every award made by a Lok Adalat shall be final and binding on the parties to the dispute, and no appeal shall lie to any Court against the award.

Under section 22, the Lok Adalat is deemed to be a civil court and the procedure vested in a Civil Court under the Code of Civil Procedure while trying a suit in respect of the matter provided thereunder. It has been also enabled to frame its own procedure in view of the fact that it is not bound by the Code of Civil Procedure. Thus, the Lok Adalat is not bound to follow all the procedures prescribed by the Civil Procedure Code and is free to adopt a procedure of its own.

If the parties are unable to arrive at a settlement or compromise, the case is either returned to a court of law or the parties are advised to seek remedy in a court of law. This was said to be a major drawback in the existing scheme of organization of Lok Adalats under Chapter VI of the Act causing unnecessary delay in the dispensation in the justice. To tackle the problem, the parliament thought of giving the Lok Adalats power to decide cases on merits in cases parties failed to arrive at any compromise or settlement. Further the cases that arise in relation to public utility services such as transport services or passengers or goods by air, road or water, postal, telegraph or telephone services, supply of power, light or water to the public by any establishment, public conservancy or sanitation, services in hospitals or dispensaries, insurance services etc., need to be settled urgently so that people get justice without delay even at the pre litigation stage.3

Therefore, the Legal Services Authorities Act was amended in 2002, and a new Chapter VIA was inserted providing for the establishment of Permanent Lok Adalats. The Permanent Lok Adalats have jurisdiction for compulsory pre-litigation mechanisms involving conciliation and settlement of cases relating to public utility services.

2.2. Pre-Litigation Conciliation and Settlement

The permanent Lok Adalat consists of a chairman, who is or has been a district judge or additional district judge or who has held judicial office higher in rank than that of the district judge and two other persons having adequate experience in public utility services. Section 22B empowers the Permanent Lok Adalat to exercise jurisdiction in relation to the aforementioned public utility services.

The pecuniary jurisdiction, as per section 22C, of the Permanent Lok Adalat shall be Rs. 10, 00, 000/-. However, the Central Government may increase the said pecuniary jurisdiction from time to time. It shall have no jurisdiction in respect of any matter relating to an offence not compoundable under any law. Section 22-C further provides that before the dispute is brought before any court, any party to the dispute may make an application to the Permanent Lok Adalat for settlement of the dispute.

As discussed above the lok Adalats suffered from the absence or lack power to proceed with the case when parties failed to arrive at a settlement, section 22C, clauses (8) (9) cure this defect. Where it appears to the Permanent Lok Adalat that there exist elements of a settlement, which may be acceptable to the parties, it shall formulate the terms of a possible settlement and submit them to the parties for their observations and in case the parties reach an agreement, the Permanent Lok Adalat shall pass an award in terms thereof. In case parties fail to reach an agreement, the Permanent Lok Adalat shall decide the disputes on merits.

Permanent Lok Adalat shall, while conducting conciliation proceedings or deciding a dispute on merit under this Act, be guided by the principles of natural justice, objectivity, fair play, equity and other principles of justice, and shall not be bound by the Code of Civil Procedure 1908 and the Indian Evidence Act 1872. Award of Permanent Lok Adalat, under this Act, made either on merit or in terms of a settlement agreement shall be final and binding on all the parties.

It is deemed to be a decree of a civil court and can not be called in question in any original suit, application or execution proceeding.

3. GRAM NYAYALAYAS ACT 2008

Gram Nyayalayas literally means ‘Village Courts’. The Statement of Objects and Reasons of the Gram Nyayalayas Act 2008 states that, it is an Act to provide for the establishment of Gram Nyayalayas at the grassroots level for the purpose of providing access to justice to citizens at their doorsteps and to ensure that opportunities for seeking justice are not denied to any citizen by reason of social, economic or other disabilities and for matters connected or incidental thereto. Section 2(b) defines a Gram Panchayat to be an institution of self -government constituted at the village level, under Article 243 B of the Constitution.

The provisions of the Act inter alia, reflect the intention of the framers of the legislation to ensure the speedy trial and disposal of cases at the grassroots level. Students are advised to refer to the Act and its schedules carefully to ascertain the nature of the cases, both civil and criminal which can be heard and decided by a Gram Nyayalaya.

According to section 3 the state government may establish one or more Gram Nyayalayas for every Gram Panchayat or a group of contiguous Panchayats after consultation with the High Court. The Gram Nyayalaya established under the Act is in addition to any other court established by any law. The Presiding Officer of Gram Nyayalaya is a Nyayadhikari, appointed for every Gram Nyayalaya. Only a person who is eligible to be appointed as a judicial magistrate of first class can be a Nyayadhikari. Though, the headquarter of every Gram Nyayalaya is to be at the headquarter of the Panchayat at intermediate level, a Nyayadhikari can hold mobile courts.

Section 11 states that a Gram Nyayalaya shall exercise both civil and criminal jurisdiction. As per section 12 the Gram Nyayalaya may take cognizance of an offence or a complaint or on a police report and try all offences specified in Part I of the First Schedule. The Nayayalaya can grant relief, if any, specified in Part II of that Schedule. Similarly section 13 empowers the Gram Nyayalaya to try suits and proceedings of a civil nature as specified in Part I of the Second Schedule.

The Gram Nyayalaya has the power to effect Plea Bargaining on an application filed by an accused before it. Section 20 incorporates the procedure applicable in Plea Bargaining provided in the Code of Criminal Procedure.

Section 22 mandates that the judgment in every trial shall be pronounced by the Nyayadhikari immediately after the completion of trial in open Court, or at any time not exceeding fifteen days.

Section 24(8) stipulates that a Gram Nyayalaya shall dispose of a suit within six months from the date of its institution. A judgment in a civil case shall be delivered to the parties free of cost within three days of passing of the judgment. According to section 25, the judgment of Gram Nyayalaya shall be deemed to be a decree and be executed as a decree of a civil court. Section 25(2) frees Gram Nyayalaya from being bound by the procedure laid down in the Code of Civil Procedure in respect of execution of a decree and enable it to be guided by the principles of natural justice. Section 26 requires the Gram Nyayalaya to assist parties in arriving at a settlement in every suit or proceeding in respect of the subject matter of the suit, claim or dispute.

4. SUMMARY

It is evident that the access to mechanisms which ensure the quick and speedy resolution of disputes as well as ensure access to justice in a simpler and less daunting way form an essential part of the right to legal aid services. The Indian legal system has a number of procedural, systemic and institutional obstacles which hinder access to justice. This is possibly one of the consequences of a huge population and scarcity of resources, but nevertheless is a serious problem which decades after Hussainara Khatoon, still needs to be tackled effectively. Implementation of the procedures laid down in the legislations mentioned above are necessary steps towards effective realization of a smooth legal aid system.

During the last few years Lok Adalat has been found to be a successful tool of alternate dispute resolution in India. It is most popular and effective because of its innovative nature and inexpensive style. The system has received wide acceptance not only from the litigants, but from the public and legal functionaries in general. Lok Adalat has been functioning continuously and permanently in every district centre. In taluk centres also sittings of Lok Adalats have been held successfully. Several thousands of pending cases and disputes which had not reached law courts have been settled through Lok Adalats.

The major defect of the mechanism of Lok Adalat is that it cannot take a decision, if one of the parties, is unwilling for a settlement, though the case involves an element of settlement. The adamant attitude shown by one of among the parties will render the entire process futile. Even if all the members of the Lok Adalat are of the opinion that the case is fit for settlement, under the present set-up, they cannot take a decision unless all the parties consent.

Ministry of Panchayati Raj, Government of India, is nodal state agency for ongoing process of decentralization and local governance in the States which inter alia includes the establishment of Gram Nyayalaya. In ultimate analysis, however, it is the state government which has to establish the Gram Nyayalaya and the Central Government has to render assistance financial or otherwise in achieving the object of the Gram Nyayalayas Act 2008. Six years has passed since the enactment came into being yet effective implementation of the Gram Nyayalayas Act 2008 has been a distant goal.

Web Resources:

• R.C. Chopra, ‘Legal Aid Movement in India : Its Development and Present Status’
• <http://causelists.nic.in/nalsa >
• The Law Commission of India, Report on Panchayats and Gram Nyayalaya (14th Report (1958). < http://lawcommissionofindia.nic.in >
• The Law Commission of India, Report on Gram Nyayalaya (114th Report 1986)] <http://lawcommissionofindia.nic.in >
• Ministry of Panchayati Raj, < http://www.panchayat.gov.in/> Ministry of Law and Justice, < http://doj.gov.in/?q=node/104>