Report No. 129

Urban Litigation Mediation as Alternative to Adjudication

Chapter 1

Introductory

1.1. The Indian judicial system is pyramidic in character, with courts at taluk level at the foot of pyramid, moving vertically upward through the district level where there is a Court of District and Sessions Judge/City Civil Court in some cities, and then further upward the High Court at the State level. At the national level, there is an apex court - Supreme Court of India. The system is one integrated whole. And a rot has set in at each layer of pyramid.

That prompted a thinking in the Government of India that a Judicial Reforms Commission should be set up. The terms of reference of the proposed Commission were drawn up. Later on the task was assigned to the Law Commission. Conscious of the fact that the system is highly centralised, which contributed to making the system dysfunctional, the terms of reference included the following:-

"1. The need for decentralisation of the system of administration of justice by-

(i) establishing, extending and strengthening in rural areas the institution of Nyaya Panchayats or other mechanisms for resolving disputes?

(ii) setting up of a system of participatory justice with defined jurisdiction and powers in suitable areas and centres;

(iii) establishing other tiers or systems within the judicial hierarchy to reduce the volume of work in the Supreme Court and the High Courts.

2.................................

3. The procedural laws with a view generally to disposing of cases expeditiously, eliminating unnecessary litigation and delays in hearing of cases and reform in procedures and procedural laws and particularly to devising procedures appropriate to the terms envisaged in items 1(i) and 1(ii)."

Obviously where the whole system from the bottom to the top requires to be analysed in depth with a view, if necessary, to restructure it, the normal course is to begin from the bottom. Accordingly, the Law Commission, after having been satisfied that the system at present in vogue is unsuitable for resolution of disputes arising in rural areas, devised a new model - Gram Nyayalaya - for resolution of disputes arising from rural areas.1 Unlike the present model, it was to be a different model, participatory in character where people's direct participation in the administration of justice would be ensured so as to impart respectability and credibility to the system.

Today there is such a yawning chasm between justice system and the people for whom it is devised that over a period credibility of the system is considerably eroded. The participatory model-where people themselves participate in administration of justice - would restore credibility, ensure respectability and impart a touch of informality in resolution of disputes.

1. LCI, 114th Report on Gram Nyayalaya.

1.2. The next layer moving vertically upward is the one at district level where the principal court of original jurisdiction is the District Court. At this level the two streams of civil and criminal justice merge in the sense that the District Court is styled as 'District and Sessions Court' and the Judge presiding over it is designated as 'District and Sessions Judge'. The Constitution vested the control over district courts and courts subordinate thereto in the High Court,1 yet the service up to and inclusive of District Judge was part of the judicial service of the State.

The State had power to legislate about that service in view of pre-amended entry 3 of State List which read, "Administration of justice; constitution and organisation of all courts, except the Supreme Court and the High Courts,.". Entry 3 was amended by deleting the aforementioned words by the Constitution (Forty-second Amendment) Act, 1976, which simultaneously provided for inserting entry 11A in the Concurrent List in the same language. Even thereafter, the service up to and inclusive of District Judge formed part of State Judicial Service.

While there are a number of all-India services, such as I.A.S., I.P.S., I.F.S., I.A.&A.S., et al, there is no all-India judicial service. Article 312 of the Constitution, which confers power to set up an all-India service, was specifically amended to confer power to set up an all-India judicial service by the Constitution (Forty-second Amendment) Act, 1976. The Law Commission, therefore, dealing with the first intermediate stage examined the feasibility of setting up an all-India judicial service to be styled as 'Indian Judicial Service' and submitted its report.2

1. The Constitution of India, Article 235.

2. LCI, 116th Report on Formation of an All-India judicial Service.

1.3. Thereafter the Law Commission focussed its attention first on the High Court1 and then on the Supreme Court of India.2

1. LCI, 124th Report on The High Court Arrears - A Fresh Look.

2. LCI, 125th Report on The Supreme Court - A Fresh Look.

1.4. One segment of administration of justice, both civil and criminal, remained to be explored, that is, the litigation at the urban level. This report deals with the same.

1.5. The Law Commission issued a comprehensive working paper (see Appendix specifying the areas of urban litigation where reform is not only overdue but is urgently needed. In the working paper, the Law Commission pointed out the tremendous congestion in dockets in urban centres on account of litigation explosion with consequent delay in resolution of disputes leading to certain undesirable developments threatening the very existence of the system.

In separating the problem of urban litigation from the one in rural areas, the Law Commission is guided by the fact that till now the present monolithic system of administration of justice offered the same model procedure for resolution of disputes by the same prolix procedure even though the disputes arising in rural areas are comparatively simple in character compared to the disputes in urban areas.

A very simple dispute arising in rural area would be dealt with by the Judge of the civil or the criminal court, as the case may be, in the same manner as the dispute would be dealt with in highly developed urban areas, with the consequence that a simple dispute remains unresolved for years, nay decades, causing misery to the disputants, imposing an unbearable load on the system and rendering the system highly expensive. It is admitted on all hands that this monolithic approach requires to be largely abandoned.

The State court system which has been operating in this country since the advent of the British rule requires to be modified by inviting people's participation in it. Therefore, a participatory model has been recommended for resolving disputes in rural areas. The working paper invited a discussion whether the same model with necessary modifications can be of help and use in dealing with urban litigation. The working paper also sets out the nature of litigation coming to urban courts, the causes for delay in disposal of the same and tentative suggestions for remedying the situation.

1.6. The High Courts Judges at other levels, organised Bar and even some litigants responded to the working paper and either agreed with some of the tentative suggestions made by the Law Commission or offered their own solution. The High Court of Jammu and Kashmir, Chief Justice and some Judges of the Andhra Pradesh High Court and some Judges of the City Civil Court submitted their detailed response to the working paper. The High Courts of Gujarat and Madras and the Supreme Court of India stated that they had no comments to offer on the working paper.

1.7. The working paper was also sent to all the State Governments requesting them to send in their comments as early as possible. The Government of Sikkim desired to have a copy of the report of the Law Commission on Gram Nyayalaya before furnishing comments/views on the working paper. A copy was sent but thereafter nothing was heard from the Sikkim Government. A detailed reply was received from the Government of Maharashtra. After pointing out that the Government of Maharashtra has framed a scheme, known as 'The Maharashtra State Legal Aid and Advice Scheme, 1979', it proceeds to state that it has established Legal Aid and Advice Boards at the State, district and taluk levels. Each such Legal Aid Board was required to constitute a Conciliation Cell.

Anyone seeking legal aid may have first to satisfy the Board that he/she is entitled to legal aid. Once the eligibility is established, the case is referred to the Conciliation Cell. The Cell issues notice to the opposite party and tries to bring about settlement. Conciliation proceeding is required to be over within a period of one month, failing which the matter is presented to the court for disposal according to law. It also suggested setting up of Lok Nyayalaya, increasing the Judge strength proportionately after taking into consideration volume of litigation in all districts in the State.

Other suggestions were the reduction in adjournments, restriction on the advocate's right to appear in certain type of litigation and, for its own reasons, agrees with the statement in the working paper that section 115 of the Code of Civil procedure requires to be deleted. The Government of Andhra Pradesh promised to send at a later date its response to the working paper but none was forthcoming. The Government of West Bengal submitted detailed response to the working paper. It leaned in favour of setting up a court with two trained Judges for rent litigation. It leaned in favour of participatory model.

The Government of Tripura was not in favour of participatory model as it apprehended that justicing is a technical subject which cannot be left to inexperienced, rustic people in the name of village tradition and culture'. The Commissioner of Police, Union territory of Delhi, giving his response to the working paper offered his own suggestions emphasising the fact that the strength of the magistrates, prosecutors and investigating officers should be fixed in relation to the workload. He was of the opinion that a number of offences which are set out in the Penal Code deserve to be deleted and the procedure should be recast.

1.8. The Law Commission, with a view to having an exhaustive debate on the subject, organised workshops at Delhi, Bombay, Puri in Orissa, Shillong in Meghalaya and Shimla in Himachal Pradesh. The workshops were attended by Chief Justice and Judges of High Courts, Judges of the district and subordinate judiciary, lawyers, law academics and others. By the interaction of various interest groups at the workshops, numerous suggestions emerged which would help in formulating the recommendations. The debate was thorough and incisive. The workshops generated immense interest in the subject. This would become apparent from the names of the participants set out in Appendix II.

1.9. The materials gathered and the information available to the Law Commission is varied and extensive and would assist in making concrete and effective recommendations.