Inter-state water disputes are different from other interstate disputes. The Constitution, under Article 262, bars the jurisdiction of the Supreme Court or any other court over inter-state water disputes. The Inter-state (River) Water Disputes Act 1956 provides for the resolution of disputes. Under its provisions, the disputes are to be adjudicated by ad-hoc, temporary and exclusive tribunals.
Provisions of Inter State Water Dispute Act (1956)
The Inter-State river water disputes are governed by the Inter-State Water Disputes Act, 1956.
As per the current provisions of the 1956 Act, a tribunal can be formed after a state government approaches Union Government with such request and the Centre is convinced of the need to form the tribunal.
This act was further amended in 2002 to include the major recommendations of 'The Sarkaria Commission'.
The amendments mandated a one year time frame to setup the water disputes tribunal and also a 3 year time frame to give a decision.
This system has had some successes, especially with the first generation of tribunals set up soon after independence-to adjudicate on the Krishna, Narmada and Godavari rivers.
But in general, it has struggled to bring warring parties on the same page and offer equitable solutions.
Procedure for Adjudication of Disputes
When a Tribunal has been constituted under section 4, the Central Government shall, subject to the prohibition contained in section 8, refer the water dispute and any matter appearing to be connected with, or relevant to, the water dispute to the Tribunal for adjudication.
The Tribunal shall investigate the matters referred to it and forward to the Central Government a report setting out the facts as found by it and giving its decision on the matters referred to it within a period of three years.
Provided that if the decision cannot be given for unavoidable reason, within a period of three years, the Central Government may extend the period for a further period not exceeding two years.
If, upon consideration of the decision of the Tribunal, the Central Government or any State Government is of opinion that anything therein contained requires explanation or that guidance is needed upon any point not originally referred to the Tribunal, the Central Government or the State Government, as the case may be, within three months from the date of the decision, again refer the matter to the Tribunal for further consideration, and on such reference, the Tribunal may forward to the Central Government a further report within one year from the date of such reference giving such explanation or guidance as it deems fit and in such a case, the decision of the Tribunal shall be deemed to be modified accordingly:
Provided that the period of one year within which the Tribunal may forward its report to the Central Government may be extended by the Central Government, for such further period as it considers necessary".
If the members of the Tribunal differ in opinion on any point, the point shall be decided according to the opinion of the majority.
List of Existing Water Dispute Tribunals
Name of Tribuna
|1.||Godavari Water Disputes Tribunal||Maharashtra, Andhra Pradesh, Karnataka, Madhya Pradesh & Odisha|
|2.||Krishna Water Disputes Tribunal -I||Maharashtra, Andhra Pradesh, Karnataka,|
|3.||Narmada Water Disputes Tribunal||Rajasthan, Madhya Pradesh, Gujarat and Maharashtra|
|4.||Ravi & Beas Water Tribunal||Punjab, Haryana and Rajasthan|
|5.||Cauvery Water Disputes Tribunal||Kerala, Karnataka, Tamil Nadu and Puducherry|
|6.||Krishna Water Disputes Tribunal -II||Karnataka, Telangana, Andhra Pradesh and Maharashtra|
|7.||Vansadhara Water Disputes Tribunal||Andhra Pradesh &Odisha|
|8.||Mahadayi Water Disputes Tribunal||Goa, Karnataka and Maharashtra|
The Centre has already received a request to set up a tribunal as a new dispute has emerged between Odisha and Chhattisgarh over Mahanadi river water.
Issues with Existing Water Dispute Act
There are three main problems with the existing system.
The delays happen for a variety of reasons at every stage of the process.
Sometimes, the Centre takes years to decide whether a matter needs to be heard by a tribunal in the first place.
Example, the Godavari and Krishna disputes started around 1956 but the matter was referred to a tribunal only in 1969.
After the tribunal has been formed, it again takes many years to pronounce its award-it took nine years from reference in the case of the Narmada tribunal.
Another reason for delay is the requirement that the Centre notify the order of the tribunal to bring it into effect; this took three years for the Krishna award.
Now, however, the Centre has proposed that the awards will be notified automatically by the tribunal.
Also, India's messy federal polity and its colonial legacy sets the stage for the third problem of non-compliance wherein state governments have sometimes rejected tribunal awards.
For example, the Punjab government played truant in the case of the Ravi-Beas tribunal.
Features of the Proposed Amendment
a) Formation of Single Tribunal for dispute settlement
The National Water Policy 2012 proposed setting up of a permanent tribunal to replace multiple water tribunals working in the country.
Its revival now shows the non-political nature of the idea justifying serious consideration and approval.
The amendment will be introduced early during the budget session of Parliament, which begins in January 2017.
b) Centralized data collection centre
Apart from the tribunal, the proposed amendment to the 1956 law also seeks to create an agency to collect and maintain all relevant water data, like rainfall, water flow and irrigation area, in each of the river basins of the country. Collection of data is usually the first exercise in resolution of water disputes. A specialised agency would ensure that this kind of data is always available, in updated form, and does not need to be collected after a dispute has arisen.
c) Setting up of Disputes Redressal Committee
The proposed amendment provides for setting up a Disputes Redressal Committee comprising experts before referring a dispute to the new permanent tribunal.
It is hoped that most of the disputes would be settled at the committee level itself, if the committee has access to reliable and updated data.
The committee would also serve as the technical advisor to the tribunal.
Under the current law, the tribunals have three years to give their awards.
In order to give more teeth to the Tribunal, it is proposed that whenever it gives order, the verdict gets notified automatically. Until now, the government required to notify the awards, causing delay in its implementation.
d) Setting up of National Water Commission
The government has proposed a new National Water Commission (NWC) in place of the existing Central Water Commission (CWC) and Central Ground Water Board (CGWB).
One of the departments of the NWC is supposed to act as a comprehensive and specialized water data bank.
It's an agency to collect and maintain all relevant water data, like rainfall, water flow and irrigation area, in each of the river basins of the country.
Collection of data is usually the first exercise in resolution of water disputes.
A specialized agency like NWC would ensure that this kind of data is always available, in updated form, and does not need to be collected after a dispute has arisen.
Unification of water tribunals seems necessary as river water is a national resource to be shared by all States.
In federal constitutions, there are three types of resolving inter-State disputes:
A rare case of cooperation was recently presented by Telangana and Maharashtra States signing a pact for construction of major irrigation projects on the Godavari and its tributaries thus ending decades' old dispute.
On the other hand, unilateral repudiation of inter-State agreement on Sutlej-Yamuna Link Canal by the Punjab Assembly in March 2016 against the order of the Supreme Court to maintain status quo is nothing short of a challenge to the judiciary.
Tamil Nadu and Karnataka present a typical model of the highest level of non-cooperation in sharing the Cauvery river water.
Water is a state subject but the "regulation and development of inter-state rivers and river valleys… in the public interest" is on the Union list.
Given the number of ongoing inter-State disputes and those likely to arise in future, it may be difficult for a single institution with a former Supreme Court judge as its chairperson to give its ruling within three years.
Secondly, its interlocutory orders as well as final award are likely to be challenged in the Supreme Court.
The idea of a Dispute Resolution Committee, an expert body that will seek to resolve inter-State differences before a tribunal is approached, will prove to be another disincentive for needless litigation.
A positive feature of the proposed changes is that there will be an expert agency to collect data on rainfall, irrigation and surface water flows.
This acquires importance because party-States have a tendency to fiercely question data provided by the other side.
A larger and more significant downside to any adjudicatory framework is the refusal or reluctance of parties to abide by judicial orders.
Water disputes have humanitarian dimensions, including agrarian problems worsened by drought and monsoon failures.
The Central government must keep these factors in mind when setting up the proposed tribunal.
A robust institutional framework-and a transparent one to ease state and public buy-in is a must.
Without that cooperative approach, India's water dispute resolution is unlikely to see much improvement.
A dispute mechanism is a structured process that addresses disputes or grievances that arise between two or more parties engaged in business, legal, or societal relationships. Dispute mechanisms are used in dispute resolution, and may incorporate conciliation, conflict resolution, mediation, and negotiation.
Dispute Redressal Mechanisms are typical non-judicial in nature, meaning that they are not resolved within the court of law.
Article 21 of the Constitution of India declares in a mandatory tone that 'no person shall be deprived of his life or his personal liberty except according to procedure established by law. The Right to Speedy Trial has been rightly held to be a part of Right to Life or Personal Liberty by the Supreme Court of India. This liberal interpretation of Article 21 is to redress that mental agony, expense and strain which a person proceeded against in criminal law has to undergo and which, coupled with delay, may result in impairing the capability or ability of the accused to defend himself effectively. Thus, the Supreme Court has held the Right to Speedy Trial a manifestation of fair, just and reasonable procedure enshrined in Article 21.
Before formation of law Courts in India, people were settling the matters of dispute by themselves by mediation. The mediation was normally headed by a person of higher status and respect among the village people and such mediation was called in olden days "Panchayath". The Panchayath was headed by a person of higher statues, quality and character who deemed to be unbiased by people of the locality, called Village headman and he was assisted by some people of same character or cadre from several castes in the locality. The dispute between individuals and families were heard by the Panchayath and decision given by the Panchayath was to be accepted by the disputants. The main thing that was considered in such Panchayath was the welfare of the disputants as also to retain their relationship smooth.
But in a developing country like India with major economic reforms under way within the framework of the rule of law, strategies for swifter resolution of disputes for lessening the burden on the courts and to provide means for expeditious resolution of disputes, alternative modes of dispute resolution (ADR) came up by establishing facilities for providing settlement of disputes through arbitration, conciliation, mediation and negotiation. In this context the GOI has set up different Dispute Redressal Mechanism to address the problems.
The different mechanisms formed in India are Gram Sabha, Nyaya Panchayat, Lok Adalat, Family Court, Counseling Centers, Commission of Inquiry, Tribunal, Consumer Court, Indian Legislation on ADR, etc.
In essence the system focuses on: Mediation rather than winner take all; Increasing Accessibility to justice and Improving efficiency and reducing court delays.
However, a well-functioning grievance mechanism should:
In this series we are discussing different forms of Dispute Redressal Mechanism, issues and challenges related to it.
The Preamble of the Constitution of India, declares India to be a Sovereign, Socialist, Secular, Democratic, Republic. In the wisdom of our framers of Constitution, these ingredients were essential to establish a society which is egalitarian and a state which bases itself on the tenets of welfarism. Thus rule of law and the administration of justice; lie at the core of the phenomena of welfare state.
Also with the acceptance of Welfare ideology, there has been a phenomenal increase in the functions of the government, which has lent enormous powers to the executive and also led to increase in the legislative output. This has led to more litigation, restrictions on the freedom of the individuals and constant frictions between them and the authority.
The 42nd Amendment Act 1976 inserted Part XIV-A to the Constitution of India consisting of Articles 323A and 323B. Which led to the establishment of administrative tribunals.
Article 323A: Provides for the establishment of Administrative Tribunals for adjudication or trial of disputes and complaints with respect to recruitment, conditions of service of persons appointed to public services and other allied matters.
Article 323B: Makes provision for the creation of Tribunals for adjudication or trial of disputes, complaints or offences connected with tax, foreign exchange, industrial and labour disputes, land reforms, ceiling on urban property, election to Parliament and State Legislatures, etc. Parliament has power to enact any law under Article 323A while both Parliament and State Legislatures can make laws on matters of Article 323B, subject to their legislative competence.
Administrative Tribunals have emerged not only in India but also in many other countries with the objective of providing a new type of justice - public good oriented justice. These tribunals manned by technical experts, with flexibility in operations, informality in procedures have gained importance in the adjudication process.
Reason for establishment of Tribunals
Administrative tribunals are established for the following reasons:
Advantages of Administrative Tribunal
Administrative adjudication is a dynamic system of administration, which serves, more adequately than any other method, the varied and complex needs of the modem society. The main advantages of the administrative tribunals are:
Administrative adjudication has brought about flexibility and adaptability in the judicial as well as administrative tribunals. For instance, the courts of law exhibit a good deal of conservatism and inelasticity of outlook and approach. The justice they administer may become out of harmony with the rapidly changing social conditions. Administrative adjudication, not restrained by rigid rules of procedure and canons of evidence, can remain in tune with the varying phases of social and economic life.
b) Adequate Justice
In the fast changing world of today, administrative tribunals are not only the most appropriated means of administrative action, but also the most effective means of giving fair justice to the individuals. Lawyers, who are more concerned about aspects of law, find it difficult to adequately assess the needs of the modem welfare society and to locate the individuals place in it.
c) Less Expensive
Administrative justice ensures cheap and quick justice. As against this, procedure in the law courts is long and cumbersome and litigation is costly. It involves payment of huge court fees, engagement of lawyers and meeting of other incidental charges. Administrative adjudication, in most cases, requires no stamp fees. Its procedures are simple and can be easily understood by a layman.
d) Relief to Courts
The system also gives the much-needed relief to ordinary courts of law, which are already overburdened with ordinary suits.
Lacunas in functioning of Tribunals
Firstly, tribunals operate under the thumb of parent administrative ministries against whom many of them are meant to pass orders, therefore remaining at their mercy with visible and invisible strings for facilities, infrastructure and also rule-making.
Secondly, the secretary of the said Ministry sits on the panel for selecting and reappointing the adjudicating members and also has a role to play in disciplinary committees. For instance, the defence secretary is a part of the committee for selection and re-appointment of members of the Armed Forces Tribunal, and the said secretary is that very officer against whom all tribunal orders are to be passed.
Thirdly, under the garb of providing cheaper and informal adjudication, appeals have been provided, on very limited grounds, directly to the Supreme Court from some tribunals making access to justice a far call with some litigants accepting injustice rather than challenging orders simply because they cannot afford prohibitive costs of litigation in the apex court.
Fourthly, persons who at times have served as part of the same ministries are appointed as members and who carry with them their own personal experiences and over-familiarity making justice subjective as compared to judges who bear no such baggage and are trained to be objective.
Fifthly, a majority of non-judicial members are not legally qualified and hence are not even eligible to appear before such tribunals while they are allowed to exercise judicial functions while sitting on the bench.
Sixthly, some tribunals are not even vested with powers of civil contempt thereby leaving them toothless qua enforcement.
Rationalization of tribunals
The Finance Bill, 2017 has proposed for rationalization of the tribunals.
The amendments permit the central government to decide the terms of service including appointments, term of office, salaries and allowances, and removal of tribunal members through rules.
Additionally, the amendments to the Finance Bill, 2017 have done away with seven existing tribunals such as the Airports Economic Regulatory Appellate Authority (AERA). Functions of these tribunals have been transferred to existing tribunals. For example, the functions of the AERA have been transferred to the Telecom Disputes Settlement and Appellate Tribunal (TDSAT). This implies that TDSAT will now also have to decide upon matters related to pricing of airport services. The question is whether the TDSAT has the technical competence to deal with such diverse issues. Similarly, it is unclear if the National Company Law Appellate Tribunal, which will replace the Competition Appellate Tribunal, will have the expertise to deal with matters related to anti-competitive practices.
Criticism of Rationalisation
The Central Government has constituted National Company Law Tribunal (NCLT) under section 408 of the Companies Act, 2013.
The National Company Law Tribunal NCLT is a quasi-judicial body, exercising equitable jurisdiction, which was earlier being exercised by the High Court or the Central Government. The Tribunal has powers to regulate its own procedures.
The establishment of the National Company Law Tribunal (NCLT) consolidates the corporate jurisdiction of the following authorities:
In the first phase the Ministry of Corporate Affairs have set up eleven Benches, one Principal Bench at New Delhi. These Benches will be headed by the President and 16 Judicial Members and 09 Technical Members at different locations.
Powers of NCLT
The NCLT has been empowered to exercise the following powers:
The NCLT shall have powers and jurisdiction of the Board for Industrial and Financial Reconstruction (BIFR), the Appellate Authority for Industrial and Financial Reconstruction (AAIFR), Company Law Board, High Courts relating to compromises, arrangements, mergers, amalgamations and reconstruction of companies, winding up etc. Thus, multiplicity of litigation before various courts or quasi-judicial bodies or forums have been sought to be avoided. The powers of the NCLT shall be exercised by the Benches constituted by its President.
Significance of NCLT
Resolution of disputes relating of companies affairs has been one the major roadblock in improving ease of doing business in India. Thousands of cases remain long pending in the courts despite having legal timeline of resolution. Such scenario hinder the new investments not only from outside even domestic companies are preferring to shift their Headquarters outside the countries and choosing more business amicable locations like Singapore to operate. Delay in dispute resolution not only stagnate the new investments it also lead to devaluation of assent and increases inefficiencies of businesses and market.
Till 2016 several bodies like the Company Law Board, Board of Industrial and Financial Reconstruction, the Appellate Authority for Industrial and Financial Reconstruction and High Courts were responsible for the judging the disputes concerning companies affairs, this multiplicity of adjudicating and governing bodies was also delaying the dispute resolution process.
The formation of the NCLT and the NCLAT is also a significant step towards attaining fast and efficient resolution of disputes relating to affairs of the Indian corporates. Being the sole forum dealing with company related disputes, these tribunals would also eliminate any scope for overlapping or conflicting rulings and minimise delays in resolution of disputes, thus, proving to be a boon for litigants.
Instead of getting different decisions on the same matter by different High Courts, consolidation of jurisdiction will help the Tribunal Members and Judges in delivering uniform decisions and thereby removing any ambiguity and friction.
To ensure fair play and avoidance of judicial error, the procedural laws provide for appeals, revisions and reviews, and allow parties to file innumerable applications and raise vexatious objections as a result verdict get delayed.
Appeals against the order of the NCLT will go to NCLAT, exclusively dedicated for this purpose. Further appeal to the Supreme Court will only be on any question of law, thereby reducing the delay in appeals as earlier, the decisions of the Company Law Board were challenged before the High Court and then in the Supreme Court.
Consolidation of Corporate jurisdiction will lead to convergence rather than divergence and will maintain uniformity in the system.
The National Green Tribunal has been established under the National Green Tribunal Act 2010 for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto. It is a specialized body equipped with the necessary expertise to handle environmental disputes involving multi-disciplinary issues.
The critical issues are discussed as follows:
Many have also questioned some NGT judgments, for instance, the one dealing with the Okhla Bird Sanctuary in Noida. In September 2013, NGT' principal bench gave an order that stopped all construction within a 10-kilometre (km) radius of the sanctuary because the government had not notified the eco-sensitive zone around it at that time. The order stopped constructions only in Uttar Pradesh, but inexplicably didn't do so in parts of Delhi which fall within the 10 km radius. Many have criticized the selective and "judicial" nature of this judgment.
The bottom line is that NGT has done well so far. But many improvements are still required to make accessible, speedy and effective resolution of environmental disputes a practical reality. For this, NGT must be strengthened and not weakened.
Equality and justice are indisputably two key facets of the idea of a modern, democratic, and constitution-adhering India. The principles of equality and justice are realized by the State apparatus through the business of administration of justice. India's judicial system is characterized by systemic problems, including corruption, delays, pendency, increasing costs, limited legal aid, and a lack of appropriately trained lawyers and judges.
To overcome these problems the Law Ministry had set up Gram Nyayalays in 2009 with an aim to provide a cost-effective forum at the grass-root level for the poor living in villages to settle legal matters. It was established by the Gram Nyayalayas Act, 2008.
This Act perpetuates the phenomenon of two sections of Indians - that of the better-resourced urban citizen who can afford and has access to the courts, and the other India of the impoverished - the more disconnected rural citizen, who gets primary access to forums that focus primarily on disposing of their claims, minus the application of essential safeguards of the legal process - lawyers, appeals, procedural protections, and evidentiary requirements.
Gram Nyayalayas are mobile village courts in India established for speedy and easy access to justice system in the rural areas of India.
They are aimed at providing inexpensive justice to people in rural areas at their doorsteps.
The Act came into force on October 2, 2009 i.e. the birth anniversary of Mahatma Gandhi. (Gram stands for village; Nyay stands for Justice and Aalya stands for House/centre etc).
Salient features of the Gram Nyayalayas Act
The Gram Nyayalaya shall be court of Judicial Magistrate of the first class.
Head of the Gram Nyayalayas:
Summary Procedure: A legal procedure used for enforcing a right that takes effect faster and more efficiently than ordinary methods. The legal papers-a court order, for example-used to achieve an expeditious resolution of the controversy.
Ineffectiveness of the Gram Nyayalayas
The Department-Related Parliamentary Standing Committee, in its report to Parliament, expressed dismay that the Gram Nyayalayas which were supposed to usher in a revolution at the lowest level of the judicial system were being held back because of fund sharing problem between the Central and the State Governments.
Suggestions for optimizing the efficiency of Gram Nyayalayas
This is imperative keeping in mind the objectives of Gram Nyayalayas. Apart from the legal and procedural requirements of Gram Nyayalayas, training may also include the local language of the community amongst whom they are posted.
Separate building for the functioning of the Gram Nyayalaya as well as for the accommodation of the Gram Nyayadhikaris and other staff need to be constructed. Provision also has to be made for providing adequate security.
Suitable steps may be taken for creating awareness among various stakeholders including the revenue and police officers.
Officers recruited to this service ought to have a degree in social work apart from a law degree. However, some of the Gram Nyayadhikaris opined that creation of such a separate cadre might not be advisable due to the absence of chances of promotion. Instead, this could be made a compulsory service for a certain period for a newly recruited judicial officer to the regular cadre of first class judicial magistrates or civil judges.
Gram Nyayalayas may be established in every Panchayats at intermediate level or group of contiguous Panchayats at intermediate level depending upon the number of disputes which normally arise from that area. While determining the location of the Gram Nyayalayas the location of courts having parallel jurisdiction may also be considered.
The Jurisdiction of the Gram Nyayalayas may be redefined in order to remove the ambiguities regarding the jurisdiction of Gram Nyayalayas, and the Act amended.
Despite these shortcomings, the institution of Gram Nyayalayas has been a positive step. Above everything else they need concrete, well planned and continuous efforts to make them work. The policy makers need to review, reflect and act upon the suggestions offered by stakeholders and firmly resolve to fulfill the mandate of the Act.
The Preamble to the Gram Nyayalaya Act envisages access to justice to the citizens at their doorstep with the assurance that opportunities for securing justice are not denied to any citizen by reason of any disability whatsoever. Hence, the success of these institutions should not only be measured by the number of courts established in different states, but also in terms of reaching out to deprived sections of the society and its role in the overall reduction in the pendency of cases.
In every system of government, the effective justice delivery mechanism is a permanent and necessary condition of peace, order, civilization and governance of the country.
It is the primary duty of State to ensure equal and even handed justice for all by regulating the dealings of citizens with one another, by checking disorder and high handedness of one class of people over others and by maintaining all those rights which are fundamental to the existence and upliftment of common man through establishing the effective administration of justice.
But, in reality, the guarantee of equality before law does not provide any satisfaction to a poor man due to lack of access to justice. The other reasons which affected badly the administration of justice are delay, corruption, expensive litigation, non access, less number of courts, judges and official staff, lengthy process and lack of legal aid and legal awareness to the needy.
So in the light of these weaknesses of the existing judicial system, Lok Adalat has been established.
Legislation pertaining to Lok Adalats
The advent of Legal Services Authorities Act, 1987 gave a statutory status to Lok Adalats, pursuant to the constitutional mandate in Article 39-A of the Constitution of India, contains various provisions for settlement of disputes through Lok Adalat.
It is an Act 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 disabilities, and to organize Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity.
Salient features of Lok Adalat
Levels and Composition of Lok Adalats
The Member Secretary of the State Legal Services Authority organizing the Lok Adalat would constitute benches of the Lok Adalat, each bench comprising of a sitting or retired judge of the High Court or a sitting or retired judicial officer and any one or both of- a member from the legal profession; a social worker engaged in the upliftment of the weaker sections and interested in the implementation of legal services schemes or programmes.
The Secretary of the High Court Legal Services Committee would constitute benches of the Lok Adalat, each bench comprising of a sitting or retired judge of the High Court and any one or both of- a member from the legal profession; a social worker engaged in the upliftment of the weaker sections and interested in the implementation of legal services schemes or programmes.
The Secretary of the District Legal Services Authority organizing the Lok Adalat would constitute benches of the Lok Adalat, each bench comprising of a sitting or retired judicial officer and any one or both of either a member from the legal profession; and/or a social worker engaged in the upliftment of the weaker sections and interested in the implementation of legal services schemes or programmes or a person engaged in para-legal activities of the area, preferably a woman.
The Secretary of the Taluk Legal Services Committee organizing the Lok Adalat would constitute benches of the Lok Adalat, each bench comprising of a sitting or retired judicial officer and any one or both of either a member from the legal profession; and/or a social worker engaged in the upliftment of the weaker sections and interested in the implementation of legal services schemes or programmes or a person engaged in para-legal activities of the area, preferably a woman.
National Lok Adalat
National Level Lok Adalats are held for at regular intervals where on a single day Lok Adalats are held throughout the country, in all the courts right from the Supreme Court till the Taluk Levels wherein cases are disposed off in huge numbers.
Permanent Lok Adalat
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. Ten Lakhs. 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.
Mobile Lok Adalats
They are also organized in various parts of the country which travel from one location to another to resolve disputes in order to facilitate the resolution of disputes through this mechanism.
Benefits of Lok Adalat
The benefits that litigants derive through the Lok Adalats are many.
Objective of Lok Adalat is to settle the disputes which are pending before the courts, by negotiations, conciliation and by adopting persuasive common sense and human approach to the problems of the disputants.
The system has received laurels from the parties involved in particular and the public and the legal functionaries, in general. It also helps in emergence of jurisprudence of peace in the larger interest of justice and wider sections of society. Its process is voluntary and works on the principle that both parties to the disputes are willing to sort out their disputes by amicable solutions. Through this mechanism, disputes can be settled in a simpler, quicker and cost-effective way at all the three stages i.e. pre-litigation, pending-litigation and post-litigation.
With the steep growth in the number of laws and the number of cases, the Court system is under great pressure. In order to reduce the heavy demand on Court time, efforts need to be made to resolve the disputes by resorting to Alternative Dispute Resolution Methods before they enter the portals of the court. The Arbitration, Mediation and Conciliation are tools of Alternative Dispute Redressal System.
Arbitration is a method for settling disputes privately, but its decisions are enforceable by law. An arbitrator is a private extraordinary judge between the parties, chosen by mutual consent to sort out controversies between them. Arbitrators are so called because they have an arbitrary power; for if they observe submissions and keep within due bounds their sentences are definite from which there is no appeal. Arbitration offers greater flexibility, prompt settlement of national and international private disputes and restricted channels of appeal than litigation. In the words of Richard Cobden "At all events, arbitration is more rational, just, and humane than the resort to the sword."
Arbitration is a simplified version of a trial involving no discovery and simplified rules of evidence. Either both sides agree on one arbitrator, or each side selects one arbitrator and the two arbitrators elect the third to comprise a panel. Arbitration hearings usually last only a few hours and the opinions are not public record. Arbitration has long been used in labour, construction, and securities regulation, but is now gaining popularity in other business disputes. Litigation is expensive, time consuming and full of complexities.
The technique of ADR is an effort to design a workable and fair alternative to our traditional judicial system. It is a fast track system of dispensing justice. There are various ADR techniques viz. arbitration, mediation, conciliation, mediation-arbitration, mini-trial, private judging, final offer arbitration, court-annexed ADR and summary jury trial.
Arbitration is a process in which a neutral third party or parties render a decision based on the merits of the case. In the Indian context the scope of the rules for the arbitration process are set out broadly by the provisions of the Arbitration and Conciliation Act 1998 and in the areas uncovered by the Statute the parties are free to design an arbitration process appropriate and relevant to their disputes.
The Process of mediation aims to facilitate the development of a consensual solution by the disputing parties. The Mediation process is overseen by a non-partisan third party - the Mediator. The authority of the mediator vests on the consent of the parties that he should facilitate their negotiations.
Conciliation is a less formal form of arbitration. This process does not require an existence of any prior agreement. Any party can request the other party to appoint a conciliator. One conciliator is preferred but two or three are also allowed. In case of multiple conciliators, all must act jointly. If a party rejects an offer to conciliate, there can be no conciliation.
Parties may submit statements to the conciliator describing the general nature of the dispute and the points at issue. Each party sends a copy of the statement to the other. The conciliator may request further details, may ask to meet the parties, or communicate with the parties orally or in writing. Parties may even submit suggestions for the settlement of the dispute to the conciliator.
When it appears to the conciliator that elements of settlement exist, he may draw up the terms of settlement and send it to the parties for their acceptance. If both the parties sign the settlement document, it shall be final and binding on both.
Negotiation is a dialogue intended to resolve disputes, to produce an agreement upon courses of action, to bargain for individual or collective advantage, or to craft outcomes to satisfy various interests. It is the primary method of alternative dispute resolution.
Negotiation occurs in business, non-profit organizations, government branches, legal proceedings, among nations and in personal situations such as marriage, divorce, parenting, and everyday life. The study of the subject is called negotiation theory. Those who work in negotiation professionally are called negotiators. Professional negotiators are often specialized, such as union negotiators, leverage buyout negotiators, peace negotiators, hostage negotiators, or may work under other titles, such as diplomats, legislators or brokers.
The process of arbitration can start only if there exists a valid Arbitration Agreement between the parties prior to the emergence of the dispute. As per Section 7, such an agreement must be in writing. The contract, regarding which the dispute exists, must either contain an arbitration clause or must refer to a separate document signed by the parties containing the arbitration agreement. The existence of an arbitration agreement can also be inferred by written correspondence such as letters, telex, or telegrams which provide a record of the agreement. An exchange of statement of claim and defence in which existence of an arbitration agreement is alleged by one party and not denied by other is also considered as valid written arbitration agreement.
Any party to the dispute can start the process of appointing arbitrator and if the other party does not cooperate, the party can approach the office of Chief Justice for appointment of an arbitrator. There are only two grounds upon which a party can challenge the appointment of an arbitrator - reasonable doubt in the impartiality of the arbitrator and the lack of proper qualification of the arbitrator as required by the arbitration agreement. A sole arbitrator or panels of arbitrators so appointed constitute the Arbitration Tribunal.
Except for some interim measures, there is very little scope for judicial intervention in the arbitration process. The arbitration tribunal has jurisdiction over its own jurisdiction. Thus, if a party wants to challenge the jurisdiction of the arbitration tribunal, it can do so only before the tribunal itself. If the tribunal rejects the request, there is little the party can do accept to approach a court after the tribunal makes an award. Section 34 provides certain grounds upon which a party can appeal to the principal civil court of original jurisdiction for setting aside the award.
Once the period for filing an appeal for setting aside an award is over, or if such an appeal is rejected, the award is binding on the parties and is considered as a 'decree of the court'.
However, the reality is quite different. Arbitrators, who are mostly retired judges, usually treat the arbitration proceedings in the same manner as traditional litigations, and are willing to give long and frequent adjournments, as and when sought by the parties. Although the scope of judicial intervention under the 1996 Act has been curtailed to a great extent, courts through judicial interpretation have widened the scope of judicial review, resulting in the admission of large number of cases that ought to be dismissed at the first instance. Moreover, the parties usually approach arbitration with a similar mindset as for litigation, with the result that awards invariably end up in courts, increasing the timeframe for resolution of the disputes. Thus concept of fast track arbitrations has been established. Fast track arbitration is a time-bound arbitration, with stricter rules of procedure, which do not allow any laxity or scope for extensions of time and the resultant delays, and the reduced span of time makes it more cost-effective.
Arbitration costs incurred by the parties may include the arbitrator's fees, rent for arbitration venues, administrative/clerical expenses, and professional fees for the representatives of the parties (which may include lawyers and expert witnesses). The sum of these fees may differ significantly between ad hoc and institutional arbitrations.
The Place of arbitration will be decided by mutual agreement. However, if the parties do not agree to the place, tribunal shall decide the same after having regard to the circumstances of the case, including the convenience of the parties. Similarly, the language to be used in arbitral proceedings can be mutually agreed otherwise, Arbitral Tribunal can decide. The arbitral tribunal may order that any documentary evidence shall be accompanied by a translation into the language agreed upon by the parties or determined by the parties or determined by the arbitral tribunal.
Salient features of Arbitration and Conciliation (Amendment) Act, 2015:
The Amendment Act has introduced some major changes in the principal Act. We have prepared a brief summary of the following key amendments:
The basic premise behind making administration citizen-centric is to ensure that the benefits of good governance are available to all sections of society and one of the pillars of a citizen-centric administrative structure is a robust grievance redressal mechanism. Since some categories of citizens are more vulnerable than others, there is need for institutions which redress grievances specific to them.
In fact, the Constitution itself provides for various socio-economic and political safeguards to certain disadvantaged sections of society. These are guaranteed through enshrining of certain specific rights to such citizens and by laying down a number of 'Directive Principles of State Policy' for the State to act upon.
Several Constitutional and statutory institutions which look into the grievances filed by citizens been discussed below.
Human Rights Commission
National Human Rights Commission (NHRC) was constituted in 1994 following the enactment of the Protection of Human Rights Act, 1993. It observed that there had been "growing concern in the country and abroad about issues relating to human rights". Regard to this, and the changing social realities and emerging trends in the nature of crime and violence, it had been considered essential to review the existing laws and procedures and the system of administration with a view to bring about greater efficiency and transparency.
The Human Rights Protection Act, 1993 facilitates that State Government may constitute State Human Rights Commission to exercise the power conferred upon, and perform functions assigned to it under the Act.
Analysis of NHRC and SHRC
a) Commissions make recommendations to government, which include: payment of compensation to the victim or to her/his family; disciplinary proceedings against delinquent officials; etc however, they lack the power to enforce decisions.
b) Governments often ignore the recommendations completely or furnish a long bureaucratic discourse on how compliance with the recommendation is not in the public interest.
c) The law requires the NHRC to concentrate more on civil and political rights than on social and economic rights.
d) The Act requires that three of the five members of a human rights commission must be former judges but does not specify whether these judges should have a proven record of human rights activism or expertise or qualifications in the area.
e) Under the Act, human rights commissions cannot investigate an event if the complaint was made more than one year after the incident. Therefore, a large number of genuine grievances go unaddressed.
f) State Human Rights Commissions cannot call for information from the national government, which means that they are implicitly denied the power to investigate armed forces under national control. Even the powers of the National Human Rights Commission relating to violations of human rights by the armed forces have been restricted to simply seeking a report from the Government, (without being allowed to summons witnesses), and then issuing recommendations.
g) Most Human Rights Commissions are functioning with less than the prescribed five Members. This limits the capacity of commissions to deal promptly with complaints, especially as all are facing successive increase in the number of complaints.
National Commission for Women
The National Commission for Women was set up as a statutory body in January 1992 with the mandate to review the constitutional and legal safeguards for women, recommend remedial legislative measures, facilitate redressal of grievances and advise the Government on all policy matters affecting women.
To carry out these functions, the Commission has all the powers of a Civil Court trying a suit, as exists in the case of the NCSC/NCST. The Union Government causes the reports made by the Commission concerning the working of the safeguards provided to women to be laid before each House of Parliament along with an Action Taken Report on the recommendations and the reasons for non-acceptance, if any. In case of matters pertaining to any State Government, the report is placed before the State Legislature along with its Action Taken Report.
Analysis of National Commission for Women
a) The commission is dependent on the grant from the Union Government.
b) The commission does not have the power to select own members. The power is vested with the Union Government.
c) The commission has no right to concrete legislative power.
d) It has only power to recommend amendments and submit reports with are not binding on state or Union Government.
e) The Commission's Jurisdiction is not operative in Jammu and Kashmir.
f) Financial assistance is so less.
g) The National Commission for women in India seizes women's cause only when it is brought to light. Unreported cases of oppression and suppression of women are not attended to.
h) In rural sector still there is lack of awareness education, opportunities and basic facilities for women for economic of empowerment.
National Commission for Scheduled Castes
Originally, Article 338 of the Constitution provided for a Special Office for Scheduled Castes and Scheduled Tribes. This Office was designated as Office of Commissioner for Scheduled Castes and Scheduled Tribes. Consequent to the 46th Amendment, a multi-member Commission for Scheduled Castes and Scheduled Tribes was constituted in 1978.
The Constitution (Eighty-ninth Amendment) Act, 2003 provided for the constitution of separate Commissions for the Scheduled Castes and for the Scheduled Tribes. Accordingly, the first National Commission for Scheduled Castes (NCSC) was constituted in 2004.
The mandate of the Commission is to present Annual and other Reports to the President. These Reports contain recommendations on measures to be taken by the Union and State Governments for effective implementation of the safeguards and other welfare measures. These Reports are to be laid before both Houses of Parliament along with a Memorandum explaining the action taken or contemplated by the respective Ministries/departments and reasons for non-acceptance, if any. In case the recommendations pertain to State Governments, these are to be laid out before the respective State Legislatures along with a similar Memorandum.
Analysis of NCSC
National Commission for Scheduled Tribes
The National Commission for Scheduled Tribes had an origin similar to the NCSC. It was constituted as a separate Commission in 2004 following the amendment of Article 107 and insertion of Article 338A by the Constitution (Eighty-ninth Amendment) Act, 2003. Before that, as mentioned above, monitoring of constitutional safeguards provided to Scheduled Castes and Scheduled Tribes was done by a common body.
The composition, term, functions, powers and procedure for presentation of Reports in case of the National Commission for Scheduled Tribes (NCST) are similar to that of the NCSC. The constitutional and legal safeguards provided to Scheduled Tribes are also similar to those provided for SCs.
The NCST functions through six units which look after administration, coordination, socio-economic and educational development, service safeguards and atrocities related matters. The NCST has six regional offices which provide it with a regional perspective.
Analysis of NCST
Issues with the Institutional Mechanisms
The above stated institutions have been constituted for providing special focus on redressing the grievances of specific sections of society. Suggestions have been made, from time to time, to merge all Commissions into a comprehensive Human Rights Commission with separate Divisions for Scheduled Castes, Scheduled Tribes, Women and Children.
The overall issues related to these mechanisms and recommendations are:
There is a lack of coordination among the different organizations. The suggestion for merging of the Commissions came from different experts, particularly in larger States, is impracticable and would fail to adequately address the special problems of different disadvantaged groups. However, this may be possible in case of some of the much smaller States where the various Commissions to redress the grievances of different sections of society could be constituted into a single 'multi-role' Commission to carry out the specific functions of the existing constitutional and statutory Commissions of that State.
The existence of a large number of Commissions' should enable each one of them to look into specific categories of complaints thereby ensuring speedy action on the complaint. However, this multiplicity of Commissions could lead to problems of overlapping jurisdictions and even duplication of efforts in dealing with complaints. Some of the laws had envisaged these problems and made legal provisions for the same.
For example, in order to prevent duplication of efforts among the National and State Human Rights Commissions', Section 36 of The Protection of Human Rights Act, 1993 (PHRA) mandates that the NHRC shall not inquire into any matter which is pending before a State Commission or any other Commission duly constituted under any law for the time being in force. Furthermore, Section 3(3) of the PHRA provides that the Chairpersons of the National Commission for Minorities, the National Commission for Scheduled Castes, the National Commission for Scheduled Tribes and the National Commission for Women shall be deemed Members of the NHRC for the discharge of various functions assigned to it. However, this does not cover functions prescribed under Section 12(a) of the PHRA, which deals with inquiry, suo motu or otherwise, into a complaint of violation or abetment of violation of human rights or negligence by a public servant in the prevention of such violation.
Moreover, it is evident that there exists national as well as state level Commissions to redress similar grievances. The Central law itself provides for the constitution of National and State level Commissions for safeguarding human rights and child rights. Further, different State governments have constituted statutory Commissions for safeguarding the interests of SCs, STs, Women and Minorities. Among all these Commissions, the Human Rights Commissions have the widest mandate due to the broad definition of the term 'human rights' provided in the PHRA, 1993. Similarly, wherever the States have established statutory State level Commissions' (such as those for Women, SCs and STs, Minorities, Children etc) whose jurisdictions may overlap with the National level Commissions, it is necessary to evolve a mechanism to prevent duplication of efforts.
Thus there is need to provide a more meaningful and continuous mode of interaction between the National and State HRCs. At the basic level, in case of complaints, coordination between different Commissions at the national and state levels could easily be facilitated through creation of electronic data bases and networking. For having a seamless exchange of data, a common complaint format needs to be devised for all such Commissions constituted to monitor and investigate the constitutional and legal safeguards. This common format would have specifically designed data fields to capture the details of the victim(s) and complainants. In case of complaints filed without utilizing the specifically designed format, the necessary details could be ascertained at the time of registration of the case itself.
The creation of a database and networking would assist these Commissions in not only streamlining their workload but also in deciding which body would be the best agency to carry out investigations. Further, it would also help in identifying those areas and groups where the rights of such groups of citizens are more prone to abuse. This would assist the respective governments in devising specific measures to address the situation.
Further a large number of complaints are received by these Commissions which are regularly disposed by them by providing some relief to the victims. Efforts have to be made by the Union and State Governments to ensure that the cases of violation of the rights of citizens especially the vulnerable sections are significantly reduced if not eliminated altogether. Preventive measures would also have to be taken to eliminate cases of serious human rights violations such as custodial deaths, torture etc.
In addition to the criminal justice system, the National and State Human Rights Commissions as well as the other Commissions could play an important role in preventing such violations of citizens' right and also in mitigating the hardships of the victims. An analysis of the cases disposed of by NHRC over the last three years reveals that a wide variety of complaints of human rights violations are received and processed. But despite the efforts of the NHRC/SHRCs, the number of such cases has not been significantly reduced. Therefore, the Union and the State Governments should take proactive steps to eliminate causes of such occurrences. This could be achieved by prioritizing the more serious offences like custodial deaths/rapes etc. Guidance of the NHRC ad SHRCs may be taken to prepare and implement an action plan for this purpose.
Lastly a separate Standing Committee of Parliament may be constituted to look into Annual Reports submitted by these statutory Commissions.
Verifying, please be patient.