What's New :
Political Science Optional Foundation 2024 - Batch Starts: 21st February
Law Optional Foundation 2024, Batch Starts: 24th February
Public Administration Optional Foundation 2024, Batch Starts: 22th February
Sociology Optional Foundation 2024, Batch Starts: 22th February
Anthropology Optional Foundation 2024, Batch Starts: 22th February
History Optional Foundation 2024, Batch Starts: 22th February
Geography Foundation 2024, Batch Starts: 22th February

SINGLE TRIBUNAL FOR INTER-STATE WATER DISPUTE

  • Published
    12th Jul, 2019

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

No

Name of Tribuna

States concerned

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.

  • Protracted proceedings and extreme delays in dispute resolution.
  • Opacity in the institutional framework and guidelines that define these proceedings.
  • Ensuring compliance.

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.

Analysis

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:

  • States entering into inter-State pacts
  • Accepting court decisions
  • Giving paramount power to the federal government to resolve claims

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.

Indian scenario

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:

  • Provides a predictable, transparent, and credible process to all parties, resulting in outcomes that are seen as fair, effective, and lasting.
  • Builds trust as an integral component of broader community relations activities.
  • Enables more systematic identification of emerging issues and trends, facilitating corrective action and preemptive engagement.

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:

  • The traditional judicial system proved inadequate to decide and settle all the disputes requiring resolution. It was slow, costly, inexpert, complex and formalistic. It was already overburdened, and it was not possible to expect speedy disposal of even very important matters: e.g. disputes between employers and employees, lockouts, strikes, etc. These burning problems cannot be solved merely by literally interpreting the provisions of any statute, but require the consideration of various other factors and this cannot be accomplished by the courts of law. Therefore, industrial tribunals and labour courts were established, which possessed the technique and expertise to handle these complex problems.
  • The administrative authorities can avoid technicalities. They take a functional rather than a theoretical and legalistic approach. The traditional judiciary is conservative, rigid and technical. It is not possible for the courts of law to decide the cases without formality and technicality. On the other hand, administrative tribunals are not bound by the rules of evidence and procedure and they can take a practical view of the matter to decide the complex problems.
  • Administrative authorities can take preventive measures, for example, licensing, rate fixing, etc. Unlike regular courts of law, they have not to wait for parties to come before them with disputes. In many cases, these preventive actions may prove to be more effective and useful than punishing a person after he has committed a breach of any legal provision.
  • Administrative authorities can take effective steps for enforcement of the aforesaid preventive measures, e.g. suspension, revocation or cancellation of licences, destruction of contaminated articles, etc. which are not generally available through the ordinary courts of law.
  • Sometimes, the disputed questions are technical in nature and the traditional judiciary cannot be expected to appreciate and decide them. Administrative authorities are usually manned by experts who can deal with and solve these problems, e.g. problems relating to atomic energy, gas, electricity, etc.

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:

a) Flexibility

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

  • Rules are framed by the central government, under a particular Act, and undergo post facto scrutiny by Parliament. In contrast, a Bill is examined and debated by Parliament before its passage. However by allowing the government to determine the appointment, reappointment and removal of members through rules, the threshold of Parliamentary scrutiny of these provisions is being lowered.
  • Further, tribunals perform a judicial function, while the government is part of the executive. There may be instances where the government is a party to a dispute before a tribunal like the Central Administrative Tribunal (CAT) or the Income Tax Appellate Tribunal (ITAT). There would be conflict of interest if the government were to be a litigant before the tribunal as well as have the power to determine appointment or reappointment of its members. By allowing the central government to frame rules to decide each of these aspects, the independence of tribunals could be affected.
  • Assuming powers to appoint and remove the chairpersons triggering fears the unprecedented move will undermine the authority and independence of these quasi-judicial institutions.
  • Another provision - Section 180 - effectively fires judges from nine existing tribunals with three months' pay and allowances. There is no safety net for the tribunal judges. Legally speaking most of the legislations appointing judges totribunals prohibit their service conditions from being changed after their appointments.
  • This could pose a conflict of interest in cases where the government is a litigant since it is the one controlling the conditions of tribunal.
  • Through this move it will enable the government to put their own henchmen in tribunals control even autonomous bodies.
  • There is no infrastructure and merging them will add to their backlog, overlap and confusions.
  • COMPAT particularly dealt with competition laws which is essential but under NCLT which is already overburdened since The new Insolvency and Bankruptcy Code has designated NCLT as the adjudicating authority for corporates cases thus it may lead to compromise in efficiency and effectiveness.
  • TDAT may not be able to replace the expertise of AERA appellate tribunal especially when domestic air traffic is on the rise AERAAT.
  • Government has not followed several salutary principles laid down by the Supreme Court in 2014 to secure the independence of tribunals.

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:

  1. Company Law Board
  2. Board for Industrial and Financial Reconstruction.
  3. The Appellate Authority for Industrial and Financial Reconstruction
  4. Jurisdiction and powers relating to winding up restructuring and other such provisions, vested in the High Courts.

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:

  1. Most of the powers of the Company Law Board under the Companies Act, 1956.
  2. All the powers of BIFR for revival and rehabilitation of sick industrial companies;
  3. Power of High Court in the matters of mergers, demergers, amalgamations, winding up, etc.;
  4. Power to order repayment of deposits accepted by Non-Banking Financial Companies as provided in section 45QA of the Reserve Bank of India Act, 1934;
  5. Power to wind up companies;
  6. Power to Review its own orders.

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.

Salient features

  • The NGT is not bound by the procedure laid down under the Code of Civil Procedure, 1908, but shall be guided by principles of natural justice.
  • NGT is also not bound by the rules of evidence as enshrined in the Indian Evidence Act, 1872.
  • It will be relatively easier (as opposed to approaching a court) for conservation groups to present facts and issues before the NGT, including pointing out technical flaws in a project, or proposing alternatives that could minimize environmental damage but which have not been considered.
  • While passing Orders/decisions/awards, the NGT will apply the principles of sustainable development, the precautionary principle and the polluter pays principles. However, it must be noted that if the NGT holds that a claim is false, it can impose costs including lost benefits due to any interim injunction.

Recent judgments

  • The southern bench of the National Green Tribunal has suspended the environmental clearance of the India-based Neutrino Observatory project for research on high energy and nuclear physics, being set up in Tamil Nadu. The INO Project is a multi-institutional effort aimed at building a world-class underground laboratory with a rock cover of approximately 1200 metre for non-accelerator based high energy and nuclear physics research in India.
  • The illegal and improper activities at the camping sites led to the pollution of Ganga, forest areas and there was violation of the norms and guidelines with impunity thus the National Green Tribunal has prohibited all camping activity on beaches along the Ganga which fall within 100 meters from the middle of the river during lean season flow from Shivpuri to Rishikesh, a hub for eco-tourism and river rafting.
  • Biomedical waste plants in Delhi shall be subjected to inspection by joint inspection team of CPCB and DPCC. A complete and comprehensive report be submitted about their performances, capacity and results of treating such para-medical wastes. The NGT also directed the team to report about the manner in which bio-medical waste was being handled by hospitals and the situation prevailing in medical institutions adversely affecting human health and environment.
  • The National Green Tribunal (NGT) ordered a complete ban on burning of any kind of garbage, leaves, plastic waste and rubber in the open in Delhi-National Capital Region (NCR) to control air pollution. As per NGT, burning of garbage and other material like plastic is responsible for nearly 30 percent of the air pollution in the capital and its suburbs. The person who is found burning or responsible for burning would be liable to pay compensation in terms of Section 15 of the National Green Tribunal Act, 2010. It also directed authorities to levy a fine of 5000 rupees on anyone found burning such material in the open.

The critical issues are discussed as follows:

  • The act has limited the jurisdiction of tribunal to "substantial question of environment" i.e. situations where 'damage to public health is broadly measurable' or 'significant damage to environment' or relates to 'Point Source of Pollution'. The question related to environment can't left on discretion of an individual especially on subjective assessment whether environment damage is substantial or not.
  • NGT Jurisdiction is confined to where community at large is affected by specific form of activity such as pollution. It excludes individual or Group of individuals who deserves as much protection as to Community at Large.
  • The qualifications for a technical member are more favorable to bureaucrats (especially retired) and to irrelevant technocrats. The act considers higher degrees in Science, Technology and Administrative experience but no provision for ecologist, sociologist, environmentalist, civil society or NGO, etc.
  • The Act is silent on provision that who is liable to pay compensation or cost of damage to public health or environment. The MOEF state that it shall be notified in rules but this substantial concern shall be included in act only not on will of executive.
  • The Act doesn't provide jurisdiction to Tribunal over all laws related to environment such as Wildlife Protection Act (1972), Indian Forest Act 1927, Scheduled Tribes (Recognition of Forest Rights Act) 2005 and various other state legislation's.
  • NGT though is regular in scheduling hearings, typically with time gaps of two to three weeks between two consecutive hearings. Despite the high percentage of cases being disposed of, there is also an increasing backlog of cases in NGT.
  • NGT's critics have also questioned the "lack of environmental finesse" of its expert members. "Usually, the expert members are experts of one particular field and not of environment as a whole. For instance, an expert member who has been working on forests for many years would not be able to comprehend the issues arising out of industrial pollution. Thus, the judgments are vague and not relevant in some cases.

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.

Establishment:

  • The Gram Nyayalaya shall be established for every Panchayat at intermediate level or a group of contiguous Panchayats at intermediate level in a district or where there is no Panchayat at intermediate level in any State, for a group of contiguous Panchayats.
  • The seat of the Gram Nyayalaya will be located at the headquarters of the intermediate Panchayat; they will go to villages, work there and dispose of the cases.

Head of the Gram Nyayalayas:

  • The Nyayadhikaris who will preside over these Gram Nyayalayas are strictly judicial officers and will be drawing the same salary, deriving the same powers as First Class Magistrates working under High Courts.
  • He shall be appointed by the State Government in consultation with the High Court.

Jurisdiction:

  • The Gram Nyayalaya shall be a mobile court and shall exercise the powers of both Criminal and Civil Courts.
  • The Gram Nyayalaya shall try criminal cases, civil suits, claims or disputes which are specified in the First Schedule and the Second Schedule to the Act.
  • The Central as well as the State Governments have been given power to amend the First Schedule and the Second Schedule of the Act, as per their respective legislative competence.
  • The Gram Nyayalaya shall exercise the powers of a Civil Court with certain modifications and shall follow the special procedure as provided in the Act.
  • The Gram Nyayalaya shall try to settle the disputes as far as possible by bringing about conciliation between the parties and for this purpose; it shall make use of the conciliators to be appointed for this purpose.

Summary Procedure:

  • The Gram Nyayalaya shall follow summary procedure in criminal trial.
  • The judgment and order passed by the Gram Nyayalaya shall be deemed to be a decree and to avoid delay in its execution; the Gram Nyayalaya shall follow summary procedure for its execution.

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.

 

  • The Gram Nyayalaya shall not be bound by the rules of evidence provided in the Indian Evidence Act, 1872 but shall be guided by the principles of natural justice and subject to any rule made by the High Court.

Appeal:

  • Appeal in criminal cases shall lie to the Court of Session, which shall be heard and disposed of within a period of six months from the date of filing of such appeal.
  • Appeal in civil cases shall lie to the District Court, which shall be heard and disposed of within a period of six months from the date of filing of the appeal.
  • A person accused of an offence may file an application for plea bargaining.

Ineffectiveness of the Gram Nyayalayas

  • The Act has not been enforced properly, with only 194 functional Gram Nyayalayas in the country against a target of 5000 such courts.
  • The major reason behind the non-enforcement includes financial constraints, reluctance of lawyers, police officials and other State functionaries to invoke jurisdiction of Gram Nyayalayas, lukewarm response of the Bar, non-availability of notaries and stamp vendors etc. are some of the issues indicated by the States which are coming in the way of operationalisation of the Gram Nyayalayas.
  • Majority of States have now set up regular courts at Taluk level, thus reducing the demand for Gram Nyayalayas.
  • The Gram Nyayalaya uneasily straddles two approaches to legal system reform: expansion of the formal legal system and diversion from the mainstream legal system. Both these approaches rest on an understanding of a legal system which are conceptually inadequate and empirically suspect.
  • The Gram Nyayalayas are not only going to divert the existing disputes away from the civil and criminal court system and thereby speed up dispute resolution in the legal system. Instead they are likely to spawn a new arena where disputes which were hitherto resolved through other dispute processing mechanisms will now enter the legal system.
  • There has been no comprehensive empirical assessment of the success of diversion strategies towards reducing delay in the formal legal system.
  • There has been no rigorous assessment of the justice enhancing properties of these diversionary strategies.
  • In the absence of a separate cadre of Gram Nyayadhikari, the Gram Nyayalayas are presided over by First Class Judicial Magistrates or Civil Judges (grade I or grade II) or in a few cases Chief Judicial Magistrates who are already over burdened with their regular judicial work.
  • Further, the spirit of the legislation requires that as far as possible Gram Nyayalayas should be established where it would be of maximum utility to the villagers. But in practice some of the Gram Nyayalayas are established in cities/towns along with other regular courts having parallel jurisdiction. For example, in Indore the Gram Nyayalaya functions within the regular court premises.
  • The infrastructure and security are grossly inadequate.
  • Many of the stakeholders including the litigants, lawyers, police officers and others are not even aware about the existence of Gram Nyayalayas in the district court premises and no conferences or seminars have been organized for creating awareness about this institution.
  • There is ambiguity and confusion regarding the specific jurisdiction of Gram Nyayalayas, due to the existence of alternative forums such as labour courts, family courts, etc.
  • One of the objectives of the Act was to reduce pendency and burden on lower courts in the district but the study revealed that even this has not been fulfilled. The number of cases disposed by Gram Nyayalayas is negligible and that they do not make any substantial difference in the overall pendency in the subordinate courts.
  • Other reasons for the institution falling short of expectations have been the lack of cooperation from lawyers and Public Prosecutors. The reasons cited range from lack of economic viability or incentives/allowance to security issues, unsafe location of a Gram Nyayalaya (sometimes being close to a forest, where crime rates are high), etc.

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

  • Training of Gram Nyayadhikari:

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.

  • Infrastructure and Security:

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.

  • Creation of awareness among various stakeholders:

Suitable steps may be taken for creating awareness among various stakeholders including the revenue and police officers.

  • Creation of a regular cadre of Gram Nyayadhikari:

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.

  • Establishment of permanent Gram Nyayalayas:

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.

Conclusion

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

  • It is based on settlement or compromise reached through systematic negotiations.
  • It is a win - win system where all the parties to the dispute have something to gain.
  • It is one among the Alternate Dispute Resolution (ADR) systems. It is an alternative to "Judicial Justice".
  • It is economical - No court fee is payable. If any court fee is paid, it will be refunded.
  • The parties to a dispute can interact directly with the presiding officer, which is not possible in the case of a court proceeding.
  • Lok Adalat is deemed to be civil court for certain purposes.
  • Lok Adalat is having certain powers of a civil court.
  • The award passed by the Lok Adalat is deemed to be a decree of a civil court.
  • An award passed by the Lok Adalat is final and no appeal is maintainable from it.
  • An award passed by the Lok Adalat can be executed in a court.
  • The award can be passed by Lok Adalat, only after obtaining the assent of all the parties to dispute.
  • Code of Civil Procedure and Indian Evidence Act are not applicable to the proceedings of Lok Adalat.
  • A Permanent Lok Adalat can pass an award on merits, even without the consent of parties. Such an award is final and binding. From that no appeal is possible.
  • The appearance of lawyers on behalf of the parties, at the Lok Adalat is not barred. (Regulation 39 of the Kerala State Legal Services Authority Regulations, 1998.

Levels and Composition of Lok Adalats

  • At the State Authority Level

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.

  • At High Court Level

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.

  • At District Level

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.

  • At Taluk Level

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.

  1. a) First, there is no court fee and even if the case is already filed in the regular court, the fee paid will be refunded if the dispute is settled at the Lok Adalat.
  2. b) Secondly, there is no strict application of the procedural laws and the Evidence Act while assessing the merits of the claim by the Lok Adalat. The parties to the disputes though represented by their advocate can interact with the Lok Adalat judge directly and explain their stand in the dispute and the reasons therefore, which is not possible in a regular court of law.
  3. c) Thirdly, disputes can be brought before the Lok Adalat directly instead of going to a regular court first and then to the Lok Adalat.
  4. d) Fourthly, the decision of the Lok Adalat is binding on the parties to the dispute and its order is capable of execution through legal process. No appeal lies against the order of the Lok Adalat whereas in the regular law courts there is always a scope to appeal to the higher forum on the decision of the trial court, which causes delay in the settlement of the dispute finally. The reason being that in a regular court, decision is that of the court but in Lok Adalat it is mutual settlement and hence no case for appeal will arise. In every respect the scheme of Lok Adalat is a boon to the litigant public, where they can get their disputes settled fast and free of cost.
  5. e) Last but not the least, faster and inexpensive remedy with legal status.

Conclusion

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.

 

 

 

Introduction

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

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.

Mediation

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

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

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.

 Procedure

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'.

Advantages

  • Arbitration promises privacy. In a civil court, the proceedings are held in public.
  • Arbitration provides liberty to choose an arbitrator, who can be a specialist in the subject matter of the dispute. Thus, arbitrators who are sector specialists can be selected who resolve the dispute fairly and expeditiously.
  • The venue of arbitration can be a place convenient to both the parties. Likewise the parties can choose a language of their choice.
  • Even the rules governing arbitration proceedings can be defined mutually by both the parties.
  • A court case is a costly affair. The claimant has to pay advocates, court fees, process fees and other incidental expenses. In arbitration, the expenses are less and many times the parties themselves argue their cases. Arbitration involves few procedural steps and no court fees.
  • Arbitration is faster and can be expedited. A court has to follow a systematic procedure, which takes an abnormally long time to dispose off a case.

Ground reality

  • Delay: Arbitration in India is rampant with delays that hamper the efficient dispensation of dispute resolution. Though the 1996 Act confers greater autonomy on arbitrators and insulates them from judicial interference, it does not fix any time period for completion of proceedings.

          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.

  • Cost: Arbitration is generally considered cheaper over traditional litigation, and is one of the reasons for parties to resort to it. However, the ground realities show that arbitration in India, particularly ad hoc arbitration, is becoming quite expensive vis-à-vis traditional litigation. A cost analysis on arbitration vis-à-vis litigation will throw light on the higher cost of arbitration over litigation. This is a crucial factor which weighs against developing a cost effective quality arbitration practice in India.

          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.

  • Flexibility of procedure, place and language in the arbitration proceedings: The parties to arbitration are free to determine the procedural rules subject, however, to certain mandatory rules. If the parties do not agree to the procedure, the procedure will be as determined by the arbitral tribunal. Arbitral Tribunal has powers to decide the procedure to be followed, unless parties agree on the procedure to be followed and conduct the proceeding in manner it considers appropriate. The Tribunal also has powers to determine the admissibility, relevance, materiality and weight of any evidence.

          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:

  • Relevant court for domestic and international arbitration matters: Under the Act, the relevant court for all arbitration matters would be a principal civil court or high court with original jurisdiction.
  • The Bill modifies this to state that in the case of international arbitration, the relevant court would only be the relevant high court.
  • Applicability of certain provisions to international commercial arbitration: Part I of the Act that included provisions related to interim orders by a court, order of the arbitral tribunal, appealable orders etc. only applied to matters where the place of arbitration was India.
  • Under the Bill, these provisions would also apply to international commercial arbitrations even if the place of arbitration is outside India. This would apply unless the parties agreed otherwise.
  • Powers of Court to refer a party to arbitration if agreement exists: Under the Act, if any matter that is brought before a court is the subject of an arbitration agreement, parties will be referred to arbitration.
  • The Bill states that this power of referral is to be exercised by a court even if there is a previous court judgment to the contrary. The Court must refer the parties to arbitration unless it thinks that a valid arbitration agreement does not exist.
  • Interim order by a Court: The Act states that a party to arbitration may apply to a court for interim relief before the arbitration is complete. For example, a party may seek interim protection of goods, amounts, property, etc. that is the subject matter of the arbitration before a court.
  • The Bill amends this provision to specify that if the Court passes such an interim order before the commencement of arbitral proceedings, the proceedings must commence within 90 days from the making of the order, or within a time specified by the Court. Further, the Court must not accept such an application, unless it thinks that the arbitral tribunal will not be able to provide a similar remedy.
  • Public Policy as grounds for challenging an award: The Act permits the court to set aside an arbitral award if it is in conflict with the public policy of India.  This includes awards affected by (i) fraud or corruption, and (ii) those in violation of confidentiality and admissibility of evidence provisions in the Act.
  • The Bill modifies this provision to also include those awards that are (i) in contravention with the fundamental policy of Indian Law or (ii) conflict with the notions of morality or justice, in addition to the grounds already specified in the Act.
  • Appointment of arbitrators: The Act permits parties to appoint arbitrators. If they are unable to appoint arbitrators within 30 days, the matter is referred to the court to make such appointments.
  • The Bill states that, at this stage, the Court must confine itself to the examination of the existence of a valid arbitration agreement.
  • Time period for arbitral awards: The Bill introduces a provision that requires an arbitral tribunal to make its award within 12 months. This may be extended by a six month period.  If an award is made within six months, the arbitral tribunal will receive additional fees.  If it is delayed beyond the specified time because of the arbitral tribunal, the fees of the arbitrator will be reduced, up to 5%, for each month of delay.
  • Time period for disposal of cases by a Court: The Bill states that any challenge to an arbitral award that is made before a Court, must be disposed of within a period of one year.
  • Fast track procedure for arbitration: The Bill permits parties to choose to conduct arbitration proceedings in a fast track manner. The award would be granted within six months.

Way forward

  • The amendments to the Act, though laudable, are only a first step towards making arbitration the preferred mode of dispute resolution in India. It must be acknowledged that increased efficiency in arbitration is unlikely to come solely from the imposition of top-down legislative change, especially one that is as inherently flawed as this one.
  • A change in the very culture of Indian arbitration is required.

    a) For one, there needs to be a change in the perspective with which arbitration is viewed. The pool of Indian legal practitioners who specialize in the practice of arbitration has to grow, with arbitration viewed as the priority rather than playing second fiddle to Indian court litigation work.

    b) And the pool of arbitrators needs to grow as well. Unfortunately, the tendency to appoint retired Indian judges as arbitrators is also stifling the growth of arbitration as a dispute resolution mechanism in India. What is needed is the growth of a community of arbitrators unfettered by the traditions of the Indian courts and focussed on growing arbitration in its own right.

    c) The final, and most important, change needed is the minimization of judicial interference.

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

  • By choosing to interpret its constitutional mandate narrowly, the Commission has laid itself open to the charge of elite bias. The Commission acts on complaints, and it is the more upwardly mobile sections within these groups that are articulate and capable of mounting claims, it could be said to have been less than sensitive to the exclusions engendered by the lack of education or information, and has not used its powers of suo moto cognisance actively enough.
  • The Commission has been active in suggesting ways of streamlining procedures or ensuring fairness in the implementation of reservations and development schemes. It is, however, less active in making a stronger case for fundamental change, or even a frank and sharp analysis of the social realities of discrimination. By drawing attention to the landlessness of dalit wage labourers, and highlighting the need for streamlining land revenue administration, the Commission has clearly sought to go beyond its role as protector, to advance the welfare of disadvantaged social groups. It has, however, failed to bring about any concrete change in these areas, if only because the ostensible - and weakly articulated - consensus on such issues results in politically correct homilies rather than in concrete policy.
  • The lack of institutionalisation in the procedures of appointment to the Commission has meant that competent and committed members are less likely to be appointed, especially in a political and policy environment where membership of the Commission becomes a convenient sinecure for unemployable politicians or a temporary shelf for bureaucrats belonging to these groups.
  • The most significant handicap of the Commission is the fact that its decisions are not binding, but recommendatory.
  • The Commission is supposed to prepare an Annual Report for presentation to Parliament. Reports are often tabled two or more years after they have been submitted to the President. Such delays are usually on account of the requirement that the Action Taken Report be submitted along with the main report. This means that the President circulates the Report to all the Ministries and Departments which are mentioned in it, and it is only when they have all explained their actions, or justified their inaction, that the Report can be presented in Parliament. The Constitution does not fix any period within which the Report must be discussed in Parliament Even when Reports are tabled in Parliament, they are frequently not discussed.
  • In many policy sectors, as in the case of the Scheduled Castes, the proliferation of institutions has created an institutional jungle in which the roles and powers of each are obfuscated. The duplication and multiplication of institutions is, in such situations, primarily a symbolic low-cost response to political pressures, imbued with few serious expectations.

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

  • There is lack of independent financial authority over use of the funds.
  • It handles low number of cases, compared to the large number of cases that occur in the country. It is due to lack of staff to deal with the volume of cases that come in.
  • There is a tendency among staff to concentrate on the more easily manageable service cases where the petitioners are more organised and hence more vocal, and thus neglect the atrocities cases.
  • Appointment of active politicians and regular government officials leads to the conflict of interest
  • The National Commission for Scheduled Tribes has no information about the action taken by the concerned Ministry/department on the advice/views given by the Commission.
  • The Commission has to depend upon the Tribal Ministry for its day to day functioning. It has also to route its proposals on financial, administrative and legal matters through the Ministry.

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.

X

Verifying, please be patient.

Enquire Now