Justice Delayed is Justice Denied: How ADR Can Bring Delayed Justice at ease
This article delves into the critical issue of delayed justice in India and explores how Alternative Dispute Resolution (ADR) mechanisms, such as mediation and arbitration, can provide effective solutions to streamline the legal system and expedite justice.
1. Introduction
2. The Problem of Delayed Justice in India
3. Understanding Alternative Dispute Resolution (ADR)
5. ADR as a Solution to Delayed Justice
7. Case Studies and Success Stories
8. Challenges and Limitations of ADR in India
9. Conclusion
Introduction
Justice is a cornerstone of any civilized society, and its timely delivery is pivotal for maintaining social order. In India, the chronic issue of delayed justice has far-reaching consequences, impacting individuals, society, and the rule of law. This article explores the causes behind the delays, introduces the concept of ADR, and analyzes how it can offer a swift and cost-effective alternative to traditional court proceedings.
Justice is a fundamental pillar of any civilized society, and its timely delivery is crucial for maintaining social order and harmony. The phrase ‘Justice Delayed is Justice Denied’ encapsulates the importance of swift justice. It implies that if legal redress is available for a party that has suffered some injury, but is not forthcoming in a timely fashion, it is effectively the same as having no redress at all. This principle is held dear in many legal systems worldwide, including India’s.
India, being the world’s largest democracy with a population of over 1.25 billion, faces a significant challenge in delivering timely justice due to a shortage of resources, including a lack of judges and an everincreasing rate of institution of cases. As a result, civil and criminal trials often take years to conclude, leading to delayed and ineffective justice delivery. This delay in justice delivery can lead to social unrest, as justice is seen as inaccessible or unattainable by the public.
To address this issue, various steps are being taken, such as the promotion of Alternative Dispute Resolution (ADR) mechanisms. ADR refers to various methods used to resolve disputes outside the traditional court system, and includes processes like arbitration, mediation, and conciliation. These methods are gaining popularity due to their potential to provide amicable, inexpensive, and expeditious resolution of conflicts.
In the following parts, we will delve deeper into the concept of ‘Justice Delayed is Justice Denied’, the reasons behind the delay in justice in India, and how ADR can help in bringing about timely justice.
The Problem of Delayed Justice in India
Justice delayed is justice denied. This adage is particularly relevant in the context of India’s legal system, where the chronic problem of judicial delay continues to affect individuals, society, and the overall rule of law.
Causes of Delayed Justice: Several factors contribute to the delay in justice in India. [1]
1. Inadequate Number of Judges and Staff
India has only 20 judges per million population as of April 2022, causing a significant shortage.
Approved positions for judicial officers in lower courts often remain unfilled.
2. High Inflow of Cases
The judiciary handles a massive inflow of cases, including petty ones, contributing to the backlog.
Over five crore pending cases across higher and subordinate courts in India as of October 2023.
3. Weak Work Culture Among Judges
Judges’ lack of motivation and a weak work culture contribute to delays.
Judges sometimes fail to assert citizens’ constitutionally conferred rights.
4. Endless Amendments and Loopholes in Laws
Frequent amendments and loopholes in laws contribute to prolonged legal processes.
Recent crime code laws criticized for containing exploitable loopholes.
5. Unavailability of Judges
Various reasons like vacancies, lack of diversity, inadequate infrastructure, and suboptimal working conditions contribute to judges’ unavailability.
Several high profile cases in India have highlighted the issue of delayed justice. For instance, the Nirbhaya case, where all four men convicted for the 2012 gangrape and murder were finally hanged seven years after the brutal crime. Another example is the Uphaar Cinema case, which is one of the most intriguing cases of delayed justice.
Impact of Delayed Justice on Society and Individuals [2]
The ramifications of justice delay are immense. For individuals, it leads to a loss of faith in the legal system, as they find themselves embroiled in lengthy legal battles that can extend to several decades.
Delayed justice also perpetuates a culture of impunity, where the guilty can evade punishment for years, exacerbating the problem of crime and undermining deterrence. It also results in overcrowded prisons, as undertrial prisoners languish for years without a verdict.
On a societal level, a slow judiciary with a large number of pending cases reduces trust in the economy and makes people fearful. It delays contract enforcement, thereby impinging business.
The issue of justice delay in India demands urgent attention and effective solutions. Expedited reforms are necessary to streamline judicial processes, reduce the backlog of cases, and enhance the efficiency of the legal system. Increased investment in infrastructure, recruitment of more judges, and the use of technology for case management are potential remedies. Addressing the problem of justice delay is crucial to restore public trust, protect human rights, and ensure the rule of law prevails in India.
Understanding Alternative Dispute Resolution (ADR)
Alternative Dispute Resolution (ADR) encompasses a variety of methods that allow parties to resolve disputes without resorting to traditional court litigation. ADR is generally considered to be faster, less formal, and often less costly than the court process, making it an attractive option for many disputants. The confidentiality of ADR processes can also preserve relationships by allowing for more amicable settlements.
Types of ADR [3]
1. Mediation
In mediation, a neutral third party, the mediator, facilitates communication between the disputing parties to help them reach a voluntary and mutually acceptable resolution. The mediator does not impose a decision but assists the parties in understanding each other’s positions and exploring settlement options.
2. Arbitration
Arbitration involves a neutral arbitrator who hears evidence and arguments from the parties and then makes a decision, which is often binding. This process is more formal than mediation but still less so than court proceedings, and the rules of evidence are typically more relaxed.
3. Conciliation
Conciliation is similar to mediation, but the conciliator may play a more active role in suggesting solutions. While the final decision rests with the parties, the conciliator can guide them towards a settlement.
4. Lok Adalats
Specific to India, Lok Adalats are informal courts where disputes are resolved through compromise. They provide a quick and costeffective resolution, and the decisions are binding on the parties.
5. Judicial Settlement
This involves a judge, who is not involved in the trial of the case, facilitating negotiations between parties to help them reach a settlement.
6. Negotiation
Negotiation is the most informal ADR process, where parties directly engage with each other to settle their dispute without third party involvement.
How ADR Works [4]
The ADR process typically starts when parties agree to resolve their dispute outside of court. They select an ADR method and may appoint a neutral third party to oversee the process. The specific procedures vary depending on the chosen method, but ADR is characterized by:
- Voluntariness: Parties often choose to enter into ADR voluntarily, although some contracts and laws may require ADR for certain disputes.
- Confidentiality: ADR proceedings are private, and the discussions or agreements are not part of the public record.
- Enforceability: Agreements reached through ADR can be enforceable in the same manner as court judgments, particularly in arbitration.
- Flexibility: ADR allows parties to customize the process to their needs, including setting their own rules and choosing an expert in the subject matter.
- Speed and CostEffectiveness: ADR is generally quicker and less expensive than traditional court proceedings.
In India, ADR is increasingly recognized as a means to reduce the burden on the judiciary and provide a more efficient resolution to disputes. The Indian legal framework supports ADR through statutes like the Arbitration and Conciliation Act, 1996, and judicial pronouncements, making it a vital component for ensuring a reliable mechanism for dispute resolution.
In summary, ADR offers various methods for parties to resolve disputes in a manner that can be more efficient, less adversarial, and more tailored to the specific needs of the parties involved. Its growing use in India reflects the legal system’s adaptation to the modern requirements of dispute resolution.
History and Evolution of ADR in India [5]
Alternative Dispute Resolution (ADR) has a long history in India, dating back to ancient times when disputes were resolved by elders sitting under a tree. This traditional method of dispute resolution has evolved significantly over time, with India developing its own progressive legislation based on the Model Law and the UNCITRAL Arbitration Rules.
The first formal statute relating to arbitration in India was the Indian Arbitration Act of 1899, which was applicable only to the Presidency towns of Madras, Bombay, and Calcutta. Over time, other ADR mechanisms were introduced, with the Indian government taking steps to ensure these methods were used in specific industries. For instance, the Commercial Courts Act, 2015 and the Micro, Small and Medium Enterprises Development Act, 2006 were enacted to facilitate the use of ADR in these sectors.
Current Status and Acceptance of ADR in India
Despite the global recognition of ADR as an effective, swift, and cost effective alternative to litigation, its acceptance in India has been somewhat mixed. While ADR is acknowledged as a potential solution to the congestion in courts, lack of adequate manpower and resources, and rigidity of procedure, it has also been criticized for being lengthy and timeconsuming due to the involvement of busy legal practitioners.
However, the Indian government is making efforts to promote ADR. For instance, it is planning to develop the India International Arbitration Centre as a preferred seat for domestic and international commercial arbitration[7]. Moreover, the Supreme Court of India has provided guidelines on the types of cases suitable for ADR processes under Section 89 of the Civil Procedure Code.
Legal Provisions Related to ADR in India [6]
The legal framework for ADR in India is primarily based on the Arbitration and Conciliation Act, 1996, which is one of the most popular modes of ADR in the country. This Act was revamped in 1996 to promote a leastinterventionist approach by Indian courts, thereby providing some relief to foreign investors.
The Constitution of India also supports ADR. For instance, Article 14 and Article 21 of the Indian Constitution underpin the foundation of ADR in the country. Furthermore, Article 39A of the Constitution aims to achieve equal justice and free legal aid, which aligns with the principles of ADR.
Despite these legal provisions, there are still challenges to the widespread acceptance and implementation of ADR in India. These include a lack of awareness about ADR, fear of legal problems due to reporting ADRs, and the need for more promotion of ADR by relevant authorities. However, with continuous efforts from the government and the legal fraternity, it is hoped that ADR will play an increasingly significant role in the Indian legal system in the future.
ADR as a Solution to Delayed Justice [7]
The Indian judiciary, burdened with a massive backlog of cases, has been seeking ways to expedite the delivery of justice. Alternative Dispute Resolution (ADR) has emerged as a beacon of hope in this context, offering a pathway to alleviate the clogged court system.
Analysis of how ADR can help in reducing delays in justice
ADR mechanisms, such as mediation, arbitration, and conciliation, are designed to provide faster dispute resolution compared to traditional court proceedings. These methods facilitate the parties in reaching agreements more promptly, thus reducing the time spent in the litigation process. The Indian legal system has undergone a transformation with the integration of ADR, which is now seen as a less adversarial and more costeffective approach to dispute resolution.
Benefits of ADR over traditional court proceedings
ADR offers numerous benefits over conventional court litigation. It is generally less expensive, which makes it accessible to a broader segment of society. The confidentiality of ADR processes helps in maintaining privacy and protecting sensitive information. Moreover, ADR allows for greater control over the resolution process, often preserving relationships that might otherwise be damaged in a litigious environment
Case studies where ADR has expedited justice in India [8]
Recent initiatives in India have demonstrated the effectiveness of ADR in expediting justice. For instance, the integration of the Maximum 3 Adjournment Rule with CIS 3.2 software has contributed to reducing delays and arrears in the justice delivery system. Many High Courts now have courtannexed Mediation and Arbitration centres, which have been instrumental in decreasing case pendency.
The downward trend in case pendency observed in the High Court of Delhi is a testament to the potential of ADR in reducing court delays and backlogs. Furthermore, the Vidhi Centre for Legal Policy, through its JALDI Initiative, has advocated for mainstreaming Online Dispute Resolution (ODR) in India, which could revolutionize the dispute resolution landscape and significantly reduce the existing case burden.
In conclusion, ADR has the potential to significantly reduce delays in the Indian justice system. However, for ADR to be more effective, there is a need to increase awareness about its benefits and to address the challenges that hinder its widespread adoption.
Impact of ADR on Litigants [9]
Alternative Dispute Resolution (ADR) mechanisms have a profound impact on litigants, offering a range of benefits that can make the dispute resolution process more efficient, costeffective, and amicable.
Faster Resolution to Disputes
One of the most significant advantages of ADR is its potential for faster dispute resolution. Traditional court proceedings can be time consuming due to the high volume of cases, procedural complexities, and other factors. In contrast, ADR mechanisms like mediation, arbitration, and conciliation are designed to expedite the resolution process. This is achieved by facilitating direct negotiations between the parties, bypassing many of the procedural formalities associated with court litigation.
Reduced Legal Costs
ADR can also lead to substantial cost savings for litigants. Court litigation can be expensive, with costs including attorney fees, court fees, and other related expenses. ADR, on the other hand, is generally less costly, making it a more accessible option for many individuals and businesses. The costeffectiveness of ADR is particularly beneficial for disputes involving smaller amounts, where the cost of court litigation could potentially exceed the disputed amount.
More Amicable Settlements
ADR mechanisms promote more amicable settlements, which can be particularly beneficial in disputes where the parties have an ongoing relationship, such as in family or business disputes. Unlike court litigation, which is adversarial in nature, ADR encourages cooperation and mutual agreement. This can help preserve relationships and result in settlements that are satisfactory to all parties involved. Furthermore, the confidentiality of ADR processes can help maintain privacy and protect sensitive information, which can be particularly important in certain types of disputes.
In conclusion, ADR can offer significant benefits to litigants, including faster dispute resolution, reduced legal costs, and more amicable settlements. These benefits, combined with the increasing support for ADR within the Indian legal system, make it an increasingly attractive option for dispute resolution.
Case Studies and Success Stories
Alternative Dispute Resolution (ADR) has been instrumental in reducing judicial delays in India, including in Delhi and Jammu & Kashmir. ADR mechanisms such as mediation, arbitration, and conciliation have been successful in providing quicker, costeffective, and less adversarial solutions to disputes.
Success in Delhi
In Delhi, the Tis Hazari and Kar Kar Dooma Mediation Centres have been effective in resolving disputes. Data from these centres between 2005 and 2008 show a significant number of cases referred for mediation, indicating the growing acceptance of ADR mechanisms. Furthermore, the International ADR Summit held in New Delhi in 2023, organized by the AsiaPacific Centre for Arbitration and Mediation, highlighted the increasing global recognition of ADR’s effectiveness[10].
Success in Jammu & Kashmir
In Jammu & Kashmir, ADR has been successful in clearing the backlog of cases at various levels. In 2021, 39 Lok Adalats, including 4 National Lok Adalats, were organized, settling 1,75,009 cases. In 2022, till date, 2,12,540 cases have been disposed of through Lok Adalats[11].
Notable Cases
The Supreme Court of India in Afcons Infra. Ltd. v. Cherian Varkey [13] had the opportunity to discuss at length the inner workings of Section 89, which encourages parties to settle disputes through ADR. The court presented an illustrative list of disputes suitable for ADR processes under Section 89, emphasizing the importance of ADR in the Indian legal system.
Challenges and Limitations of ADR in India [12]
Despite the potential benefits of Alternative Dispute Resolution (ADR) in India, there are several challenges and limitations that hinder its full implementation and effectiveness.
One of the major challenges is the lack of government support. As a developing nation, India has uneven growth across different sectors, and ADR is one area that has received limited support. This lack of support is evident in the insufficient infrastructure and credible arbitral institutions. Even after the passing of the Arbitration and Conciliation Act in 1996, there are not enough ADR centers in India, primarily due to lack of funding. This lack of infrastructure is a significant hindrance to the growth of ADR in India, as parties often have to travel long distances to cities where ADR centers are located.
Another challenge is the lack of awareness about ADR among the general public and even among legal professionals. Many people are not aware of the benefits of choosing arbitration over litigation, and this lack of awareness is partly due to the inability of Indian institutions to successfully host awareness campaigns and workshops.
Moreover, there is a shortage of fulltime arbitration attorneys in India. Lawyers often have to juggle between court cases and arbitration proceedings, which can affect the quality and efficiency of the ADR process.
Resistance to change is another significant challenge. The Indian law favors arbitration and mediation, but the attitude of the disputants often does not. Changing this attitude requires making people aware of the benefits of ADR and promoting a shift in mindset.
Lastly, there is a need for proper training and resources. To effectively resolve disputes and promote ADR, proper training must be provided to mediators, arbitrators, and other relevant professionals. However, there is currently a lack of such training programs in India.
Conclusion
In conclusion, while ADR has the potential to address the issue of delayed justice in India, several challenges and limitations need to be overcome. These include lack of government support and infrastructure, lack of awareness, resistance to change, and the need for proper training and resources.
Despite these challenges, ADR remains a promising solution to the problem of delayed justice in India. It offers a more efficient, costeffective, and less adversarial means of resolving disputes compared to traditional litigation. Therefore, it is crucial to address these challenges and invest in the development and promotion of ADR in India.
For the future, it is recommended that the government increase its support for ADR, both in terms of funding and policymaking. Efforts should be made to build more ADR centers, especially in small cities and towns. Awareness campaigns and workshops should be conducted to educate the public and legal professionals about the benefits of ADR. Training programs for mediators and arbitrators should be established and made widely accessible. Lastly, a cultural shift is needed to embrace ADR as a viable and preferable alternative to litigation. This can be achieved through education, awareness campaigns, and the promotion of success stories of ADR.
Mushtaq Ahmad Dar, an Advocate based in Anantnag Jammu & Kashmir. Education: B.Com, LL.B from School of law University of Kashmir Srinagar can be reached at Adv.mushtaqd@gmail.com
Linkedin https://www.linkedin.com/in/lawadvocate/
Citations:
[1] Bhongale, Dr. Jay Kumar. 2012. “Delay Justice, Justice Denied https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4477067.
[2] Moog, Robert. “Delays in the Indian Courts: Why the Judges Don’t Take Control.” The Justice System Journal 16, no. 1 (1992): 19–36. http://www.jstor.org/stable/27976795.
[3] https://www.lawctopus.com/academike/arbitrationadrinindia/
[4] https://legalaffairs.gov.in/sites/default/files/Arbitration_Mediation.pdf
[5] https://www.scconline.com/blog/post/2021/02/07/evolutionofadrmechanismsinindia/
[7] https://www.niti.gov.in/sites/default/files/202303/DesigningTheFutureofDisputeResolutionTheODRPolicyPlanforIndia.pdf
[9] https://viamediationcentre.org/readnews/OTIz/IMPACTOFADRININDIA
[10] https://www.livelaw.in/eventscorner/adrsummitapcam227137
[11] https://statetimes.in/alternatedisputeresolutionfasttrackjusticedeliverysystem/
[12] https://blog.ipleaders.in/anoverviewofchallengesinadrmechanisminindia/
[13] https://indiankanoon.org/doc/1875345/