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Speech of Hon'ble Mr.Justice A.R Lakshman Then Chairman of Law Commission of India, on the Occasion of Inaguration of 'SOHATHM' by Legal Assistance Forum

Warren E.Burger, former Chief Justice, US Supreme Court said 20 years back, and I quote:

“The entire legal profession (lawyers, judges, law school teachers) has become so mesmerized with the stimulation of the courtroom contest that we tend to forget that we ought to be healers of conflicts.”

Perhaps, the worth of these golden words could have never been truer and clearer than it is today in context of the Justice Delivery and redressal systems. In this fast moving and neo-legal world of today, legal reforms and initiatives to tackle the increased load on the judiciary and cry of delayed justice is the immediate need of the hour.

Parallel system of dispute resolution has become a necessity where police, lawyers, judiciary and the litigant deviate from the formal systems and engage with the parallel system. For many a litigant, the engagement with the parallel system is not even a choice as they remain oblivious of the existence of the same. Since, the legitimacy of the Alternative Dispute Resolution (ADR) is premised on parties consenting to the process, the benefits accruing from the parallel system have to be raised considerably high to drive the parties to consent to the ADR processes.

ADR today falls into two broad categories: court-annexed options and community-based dispute resolution mechanisms. Court-annexed ADR includes mediation/conciliation-the classic method where a neutral third party assists disputants in reaching a mutually acceptable solution-as well as variations of early neutral evaluation, a summary jury trial, a mini-trial, and other techniques. Such methods decrease the cost and time of litigation, improving access to justice and reducing court backlog, while, at the same time, preserving important social relationships for disputants.

Community-based ADR is often designed to be independent of a formal court system that may be time consuming, expensive, distant, or otherwise inaccessible to a large section of population. New initiatives sometimes build on traditional models of popular justice that relied on elders, religious leaders, or other community figures to help resolve conflict. India embraced lok adalat village-level people’s courts in the 1980s, where trained mediators sought to resolve common problems that in an earlier period may have gone to the panchayat, a council of village elders.

The use of Mediation and Conciliation as means of dispute resolution can be traced back thousands of years. For many centuries, the meditative approach has been the primary way of dispute resolution in countries like China and India, where personal (and collective) responsibility and responsibility to the community are highly valued. Conciliation and mediation refers to a voluntary process whereby the mediator/conciliator, a trained and qualified neutral, facilitates negotiations between disputing parties and assists them in understanding their conflicts at issue and their interests in order to arrive at a mutually acceptable agreement. Mediation/ Conciliation involves discussions among the parties and the mediator/conciliator with an aim to explore sustainable and equitable resolutions by targeting the existent issues involved in the dispute and creating options for a settlement that are acceptable to all parties.

Decentralisation – the Transfer of power, responsibility and resources from central to regional and local governments- is seen as one way to improve governance by bringing decision making closer to the people affected by the decision, thereby enhancing empowerment, access and accountability.

In India, the panchayat justice system in which respected village elder(s) assists in resolving community disputes, has long been an accepted method of conflict resolution. Since, the Vedic times, India has been heralded as a pioneer in the achievement of social goal of speedy and effective justice through informal but culminating dispute resolution systems. Alternative dispute resolution methods are not new to India and have been in existence in some form or the other in the days before the modern justice delivery system was introduced by colonial British rulers. In Bhadranayaka Upanishad, Sage Yajnavalkya has referred to various types of arbitral bodies, commonly known as Panchyatdars and its members as Panchas. of these arbitral bodies led to the emergence of the celebrated Panchayati Raj system in India, especially in the rural and village locales. This ever-evolving system ran through the veins of dispute resolution mechanisms of the Vedic, Gupta, Mauryan, Mughal, & even the British Raj justice deliverance structures. Proceedings before theses bodies were of an informal nature, free from cumbersome technicalities of domestic laws.

However, after the introduction of the modern justice delivery arrangements, these ancient forms of dispute resolution took a back seat for many decades. The same were granted a sanjivani by the Parliament through the enactment of the various litigant-friendly statutes such as Legal Services Authorities Act, 1987, the Arbitration and Conciliation Act, 1996. In 2002, the CPC was amended to make ADR an integral part of the judicial process. In terms of the newly inserted section 89 of CPC, if it appears to the court that there exist elements, which may be acceptable to the parties, the court may formulate the terms of a possible settlement and refer the same for arbitration, conciliation, mediation or judicial settlement.

The justice delivery system, despite an increase in disposals, is under considerable strain due to an increase in the institution of cases with a corresponding increase in the pendency of cases. Presently, Lok Adalats are taking away some of the burden of pending cases but quite clearly that is not enough. Some massive steps have to be taken in this arena to lead towards the eventual success of the present-day dispute resolution systems.

“Traditional” mediation is best suited to conflicts and disputes between people living in the same community, who seek reconciliation based on restoration. Formal justice, on the other hand, is able to provide the legal and procedural certainty in cases involving serious penalties, such as imprisonment; or where the parties are unwilling or unable to reach a compromise. Access to justice by disadvantaged people may require both formal and traditional systems; the way they enrich each other may vary in each context. Formal systems may sometimes need to be “informalized” to become user friendly, while in certain circumstances, traditional systems need to be formally recognized and set under the oversight of the courts to ensure fair and impartial justice.

Our Hon’ble President Dr. APJ Abdul Kalam has also been supportive of amicable settlement of disputes and has advocated the need to encourage mediation as an alternative dispute resolution (ADR) mechanism in the following words:

“(Mediation and conciliation) is definitely a faster method of dispute resolution compared to the conventional court processes. Only thing is that we have to have trained mediators and conciliators, who can see the problem objectively without bias and facilitate affected parties to come to an agreed solution. In my opinion, this system of dispute resolution is definitely a cost effective system for the needy …………. Mediators must possess the qualities of being a role model in the society, impeccable integrity and ability to persuade and create conviction among the parties.”

Over a century ago, Abraham Lincoln, then President of the United States of America said; and I quote:

“Discourage litigation; persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser- in fees, expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.”

In criminal matters, the complainant and the accused can arrive at a settlement, which is recognized by law under Sec. 320 of the Cr.P.C., 1973. Once the parties decide to settle all their grievances the criminal charges against the accused can be compounded with the permission of the court, and in some cases, even without it.

The present project of Legal Assistance Forum, ably titled SOCIAL HARMONY THROUGH MEDIATION (SOHARTHM) is a welcome step for the greater awareness of mediation/conciliation as a dispute resolution mechanism, both in civil and criminal cases. It would to a great extent, assist in changing the judicial system from adjudication based model to a justice delivery model in pending cases and in pre-litigation disputes of the common man. I am sure that this project can bring about momentous transformation for the people in our villages and rural areas, though it would require a series of workshops and camps to train the conciliators. The members of Legal Assistance Forum have volunteered to do it, which is very commendable indeed. I wish this project and all the members of the Legal Assistance Forum all the very best for its success and achievements.

Thank you.