Talking It Out- The Problem With, And In Rural Areas
by , Aavieral Malik
In my salad days as a law student, whenever I came across the concept of alternate dispute resolution and heard the terms such as “mediation”, “conciliation” and “negotiation”, my mind instantaneously concocted a scene tantamount to one in the famous series “Suits” wherein a doppelganger of Harvey Specter would be sitting in an expensive suit, bringing two affluent parties to an amicable settlement; or maybe successfully aiding a negotiation deal worth billions. But through the years, the more I gleaned about this field and its application in modern day India, the more I came to this bitter realization that the reality is in fact a far cry from the above stated. The whole purpose of Section 89 of the Code of Civil Procedure was to inculcate and ameliorate the spirit of outside-the-court settlement, more so due to the burgeoning burden on the Indian judiciary with a multitude of cases pending across all courts.
Indeed, in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India, the Hon’ble Supreme Court came to the conclusion that Section 89 of the Code of Civil Procedure was constitutionally valid and would go a long way to expedite the settlement and disposal of cases, both inside and outside the court. Also recently, in a latest development, as per a report of Niti Ayog, it has been envisaged by the organization inter alia to set up a robust mechanism to make the parties in a dispute to mandatorily exhaust alternate solutions or remedies which are available outside the court such as mediation and conciliation, before knocking the doors of the court, provided these instances do not create more burden on the already over-burdened judiciary. The report welcomes much needed suggestions in the wake of the fact that on an average, it takes almost 20 years for a property-related dispute to be resolved, and that it would take 324 years just to clear the present backlog at the current rate of disposal.
But the stark reality is that suggestions and reports like these only look good on paper but have no actual implication/s, especially in the rural areas, which houses a significant chunk of the Indian population, and which is also a place wherein the majority of the inhabitants are not cognizant of their legal rights. In my personal experience when I was a student of a national law university, having participated in legal awareness drives as a para legal volunteer and engaging in conversations with the villagers, the blatant truth which was exposed to me was that none of them had even heard of the term “alternate dispute resolution”, let alone be aware of its practical implication. In case of a dispute, the only recourse which they had was to approach either the panchayat or the lower courts.
Both of the above mentioned are an unfeasible choice, emphasis being laid towards the anachronistic approach of the Gram Panchayat which came up in the news, getting further highlighted when a twenty five-year old Rajendra Jena was stripped and grievously beaten by a group of local villages which also included the sitting Sarpanch of Talchua Gram Panchayat, his so called “heinous” offence being that he had eloped with a girl of an affluent family. Even though the Gram Panchayats have been established by a constitutional mandate of Constitution (73rd Amendment) Act, the orthodox approach and the paucity of legal acumen amongst the members of the panchayat, more often than not, ensues in the happening of such depraved and immoral incidents.
On the other hand, as per a recent report of the Law Ministry, the Indian Judiciary is currently facing a humongous crunch of judges, with 19 judges per 10 Lakh people on an average. The report further states that the subordinate courts have a shortage of 5,748 judicial officers, while the 25 high courts face 406 vacancies. That being said, there is more than an imperative need for the government to establish institutions which promulgate mediation and/or conciliation amongst other forms of dispute resolution.
Apart from Section 89 of the Code of Civil Procedure, the relevant statues which touch upon the concept of a harmonious outside-the-court settlement are The Gram Nyayalya Act, 2008 and The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Act, 2018. As per the amended Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2018, the newly inserted Chapter III-A enumerates the principle of “Pre-Institution Mediation and Settlement” wherein which it is stipulated that the parties before knocking the doors of the Court, have to resort to mandatory mediation so as in order to attempt to reach a peaceful settlement in those cases where no urgent relief is sought by the concerned parties. It is also noteworthy to mention that as per this statute, the pecuniary jurisdiction of the Commercial Courts has been reduced from One Crore to Three Lakhs so as to lower the threshold and to bring the lower strata of the society within its purview. On the other hand, the Gram Nyayalya Act, 2008 which came into effect in 2009 provides for the establishment of conciliation centers by establishing mobile courts at the panchayat level is the Gram Nyayalya Act, 2008. As per Section 3(1) of the Act, it is upon the respective state to establish these Nyayalayas in consultation with the High Court of that State. Section 26(1) of this Act also puts forth that the foremost attempt of the Gram Nyayalaya, wherever it thinks it’s possible, would be to lead and assist the parties to arrive at a feasible settlement by means of conciliation. But as yet, there are very few states which have taken an active step towards its establishment. As per a report, implementation of the Act, which has been left to the states, has been dismal across the country. The Act mandated setting up of 5,000 village courts till 2012. But only 172 have been set up. Of these, 152 are functional. Only nine states have notified Gram Nyayalayas and of these nine states, only four have functional courts. The problem can be attributed to a variety of factors, such as political unwillingness, meager funds allotted, lack of skilled manpower and dearth of awareness about the presence of such courts. It is the sine qua non to take immediate steps to create awareness about these modes of conflict resolution and the presence of such legislations and courts which are based in these areas. Apart from that, it is also required that proper training sessions are imparted and that it should be ensured that the lawyers have the necessary qualifications so as to fit the bill. Another initiative which can be put forth by the legislature is by obligating upon the lawyers a duty to mandatorily aid the parties to explain and thereto adopt various mediums of alternate dispute resolutions such as mediation and conciliation as a means to settle differences, rather than resorting to litigation as priority always, not only in the urban, but also in the rural areas. Lastly, what I would like to put forth as a conclusion is my observation as member of the legal fraternity. Though there are a plethora of laws to cater to all sorts of legal grievances, but the quintessential problem which exists is the dearth of knowledge about these laws amongst the common populace. It is a duty, I believe, on the part of those who belong to the legal fraternity, to do the needful to disseminate the same by participating and organizing legal awareness drives, so that in the long run, the scope of alternate dispute resolution not only looks good in the black and white text of the statute, but also as being applied and implemented in its practical sense to reduce the load on our already over-loaded judiciary, and also to aid in the speedy settlement of disputes and better the access to justice.
Aavieral Malik is an Advocate enrolled at the Bar Council of Uttar Pradesh, India, and has been practicing predominantly in Kanpur, Lucknow and Prayagraj. He has pursued his B.A.LL.B. (Hons.) from Dr. Ram Manohar Lohiya National Law University, Lucknow.
His stint as an Advocate has exposed him to diverse matters of Contractual Nature, Arbitration, Insolvency & Debt Recovery, Rent Control, Civil Procedure and Evidence, inter alia.
Having also served as a Consensual Dispute Resolution (C.D.R.) Leader for The Peace Keeping and Conflict Resolution Team (P.A.C.T.) in his college, the area of Alternate Dispute Resolution, particularly Arbitration & Mediation, have always invoked his passion and thereto he hopes to contribute more to them in the course of time.