Chapter-3 Legal and Constitutional Provisions: Krishna Iyer J
Chapter-3 Legal and Constitutional Provisions: Krishna Iyer J
……Krishna Iyer J.
It is settled now that free legal aid must be provided to the indigent
person, who cannot defend themselves in a court of law due to the reason
of money and other and now it also mandatory under Article 39-A and
Article 21 of the Indian Constitution.100
The law has to help the poor who do not have means to fight their
causes. The Constitutional Mandate rescue operation began with justice
V.R. Krishna Iyer and Justice P.N. Bhagwati’s Committee Report, weaks
section thus become enable to approach law court’s right from Munsif
courts to the Supreme Court. CILAS (Committee for the implementation
99
State of Haryana Vs. Darshan Devi, AIR 1979 SC 855
100
Avtar Singh –―Law of Arbitration and Conciliation‖ PP 397-398, 7 Edition, Eastern book Company,
Lucknow
88
of Legal Aid Services) also come on the scene. Based on this states
adopted (through state legal Aid and advice Boards) Lok adalat.101
3.1.1- Preamble
101
Dr. Anupam Kurlwal, An Introduction of Alternative Dispute Resolution System.
102
See P.N. Bhagawati on the need to create adequate and effective delivery system of justice in
Chapter VI of ―Social Justice – Equal Justice‖ P.33
103
Narendra Kumar – ―Constitution of India‖ PP.28, 250
89
handle the huge backlog of cases. This can be effectively achieved by
applying the mechanisms of Alternative Dispute Resolution.
The word ―life and liberty‖ are not to be read narrowly it is very wide in
its sense.
The reason of this liberal interpretation was very simple that Article-21 is
to redress that mental agony, expenses and strain which a person
proceeded against in litigation has to undergo and which, coupled with
delay, may result in impairing the capacity or ability of the accused to
defend himself.
The same has received recognition from the legislature as well as in the
form of introduction of Alternative Dispute Resolution and Alternative
Dispute Resolution Mechanism through various statutes.
104
Hussainara Khatoon (No.) V. Home Secretary, Bihar, AIR 1979 SC 1360; Kadra Pahadiya V. State
of Bihar, AIR 1982 SC 1167; Raghubir Sing V. State of Bihar, (1986) 4 SCC 481. See also Raj Deo
Sharma V. State of Bihar, AIR 1998 SC 3281; Common Cause, Registered Society V. Union of India,
AIR 1997 SC 1539; Kartar Sing V. State of Punjab, (1994) 3 SCC 569; Akhtari Bai V. State of M.P.,
AIR 2001 SC 1528 : In this case it is ruled that where matters are not disposed of within a period of say
5 years for no fault of the convict, they should be released on bail.
105
Article 21 is Fundamental right that can be directly enforced in the Supreme Court under Article 32
of the Constitution of India.
90
3.1.3 Article 39-A Free Legal Aid
Article 39-A obligates the State of secure that ―the operation of the legal
system which promotes justice, on a basis of equal opportunity, and shall,
in particular, provide free legal aid, by suitable legislation or schemes or
in any other way, to ensure that opportunities for securing justice are not
denied to any citizen by reason of economic or other disabilities.‖106
Thus promotion of justice is most important function of a state and ADR
mechanisms helps in it. Hence much legislation like Arbitration and
Conciliation Act 1996 ; Section 89 of CPC ; Legal Services Authority Act
1987 have been passed to promote justice.107
106
This Directive Principle was inserted by the Constitution 42 nd Amendment Act, 1976
107
Dr. Anupam Kurlwal, An Introduction of Alternative Dispute Resolution System page 114
91
litigation. In Guru Nank Foundation V. Rattan Singh108 the Supreme
Court of India while referring to the 1940 Act, observed that “the way in
which the proceedings under the Act are conducted and without an
exception challenged in courts has made lawyers laugh and legal
philosophers weep” in view of “ unending prolixity at every stage
providing a legal trap to the unwary.” The Supreme Court made further
observation in Food Corporation of India. V. Joginderpal109 that the
law of arbitration must be simple less technical and more responsible to
the actual reality of situations, responsive to the canons of justice and fair
play.
(a) arbitration ;
(b) conciliation ;
(c) Judicial settlement including settlement through Lok Adalat
; or
(d) mediation.
108
AIR 1981 SC 2075
109
AIR 1989 SC 1263
92
(2) Where a dispute has been referred –
(b) to Lok Adalat, the court shall refer the same to the Lok
Adalat in accordance with the provisions of sub section (1)
of section 20 of the legal Services Authority Act, 1987 (39 of
1987) and all other provisions of that Act shall apply in
respect of the dispute to referred to the Lok Adalat;
(c) For judicial settlement, the court shall refer the same to a
suitable institution or person and such institution or person
shall be deemed to be a Lok Adalat and all the provisions of
the Legal Services Authority Act, 1987 (39 of 1987) shall
apply as if the dispute were referred to a Lok Adalat under
the provision of the Act;
93
through Lok Adalats : or Mediation.110 In Salem Advocates Bar
Association V. U.O.I,111 the Supreme Court directed the constitution of an
expert committee to formulate the manner in which section 89 and other
provisions introduced in CPC have to be brought into operation. The
Court also directed to devise a model case management formula as well
as rules and regulations, which should be followed while taking recourse
to ADR referred to in section 89 of CPC.
1A. Direction of the Court to opt for any one mode of alternative dispute
resolution. – After recording the admissions and denials, the Court shall
direct the parties to the suit to opt either mode of the settlement outside
the Court as specified in sub-section (1) of section 89. On the option of
the parties, the Court shall fix the date of appearance before such forum
or authority as may be opted by the parties.112
110
Law & Practice of Alteration Dispute Resolution in India, a Detailed Analysis by Anirban
Chakraborty Published by Lexis Nexis
111
AIR 2003 SC 189
112
Inserted by Act 46 of 1999, sec. 20(w.e.f. 01-07-2002)
94
1B. Appearance before the conciliatory forum or authority. Where a suit
is referred under rule IA, the parties shall appear before such forum or
authority for conciliation of the suit.113
113
Ibid.
114
Ibid.
95
assistance where it is possible to do so. The Court may also
adjourns the proceedings if it thinks fir to enable attempt to be
made to effect a settlement where there is a reasonable possibility
of settlement. In discharge of this duty Court may take assistance
of welfare expert who is engaged in promoting the welfare of the
family.
Here it is proved to the satisfaction of the Court that a suit has been
adjusted wholly or in part by any lawful agreement or compromise [in
writing and signed by the parties], or where the defendant satisfies the
plaintiff in respect of the whole or any part of the subject matter of the
suit, the Court shall order such agreement, compromise or satisfaction to
the recorded, and shall pass a decree in accordance therewith [so far as it
relates to the parties to the suit, whether or not the subject matter of the
agreement, compromise or satisfaction is the same as the subject matter
of the suit.
[Provide that where it is alleged by one party and denied by the other that
an adjustment or satisfaction has been arrived at the Court shall decide
the question but no adjournment shall be granted for the purpose of
deciding the question, unless the Court, for reason to be recorded, thinks
fit to grant such adjournment.]
96
of Order 23 proves that if the court is satisfied that a suit has been
adjusted wholly or partly by and lawful agreement or compromise, the
court shall pass a decree in accordance to that. Order 23, Rule 3 gives
mandate to the Court to record a lawful adjustment or compromise and
pass a decree in term of such compromise or adjustment.
The family courts act, (Act No. 66 of 1984) is in act to provide for
the establishment of family courts with a view to promote
conciliation in, and secure speedy settlement of dispute relating to
marriage and family affairs and for matters connected therein.
(1) For the purpose of exercising the jurisdiction and powers conferred
on a Family Court by this Act, the State Government after
consultation with the High Court, and by notification,-
b. may establish Family Courts for such other areas in the State
as it may deem necessary.
(2) The State Government shall, after consultation with the High Court
specify, by notification, the local limits of the area to which the
jurisdiction of a Family Court shall extend and may, at any time,
increase, reduce or alter such limits.
97
Section 4 Appointment of Judges.
(1) The State Government may, with the concurrence of the High
Court appoint one or more persons to be the Judge or Judges, of a
Family Court.
98
b. has for at least seven years been an advocate of a High Court
or of two or more such Courts in succession; or
(6) No salary or honorarium and other allowances payable to, and the
other terms and conditions of service of, a Judge shall be such as
the State Government may, in consultation with the High Court,
prescribe.
99
a. institutions or organisations engaged in social welfare or the
representatives thereof;
(1) The State Government shall, in consultation with the High Court,
determine the number and categories of counsellors, officers and
other employees required to assist a Family Court in the discharge
of its functions and provide the Family Court with such
counsellors, officers and other employees as it may think fit.
(2) The terms and conditions of association of the counsellors and the
terms and conditions of service of the officers and other
employees. referred to in sub-section (1), shall be such as may be
specified by rules made by the State Government.
2.2.1 Section 7
(1) Subject to the other provisions of this Act, a Family Court shall :-
100
for the time being in force in respect of suits and proceedings
of the nature referred to in the Explanation; and
101
(2) Subject to the other provisions of this Act a Family Court shall also
have and exercise;
102
Court or subordinate Court referred to in that sub-
section or, as the case may be, before any Magistrate
under the said Code; and
(2) If, in any suit or proceeding, at any stage, it appears to the Family
Court that there is a reasonable possibility of a settlement between
the parties. the Family Court may adjourn the proceedings for such
period, as it thinks fit to enable attempts to be made to effect such a
settlement.
(3) The power conferred by sub-section (2) shall be in addition to, and
not in derogation of, any other power of the Family Court. to
adjourn the proceedings.
103
It is, the bounded duty of the family court for making an
attempt for conciliation before proceedings with trial of the case.
Section 9 of the act lays down the duty of the Family Court to
assist and persuade the parties, at first instance, in arriving at a
settlement in respect of subject matter. The Family Court has also
been conferred with the power to adjourn the proceedings for any
treasonable period enable attempts to be made to effect settlement
if there is a reasonable possibility.
Hindu Marriage Act 1955 Casts Duty on the court that before
granting relief under this Act, the court shall in the first instance
make and endeavour to bring about reconciliation between the
parties, where it is possible court should preferably attempt to
encourage the parties to conciliate their differences and disputes.115
For this purpose the statute empowers the court of suitable
situation to adjourn the proceedings for the reasonable period and
referred the matter to person nominated by court or party with the
direction to report to the court as to the result of the reconciliation.
(1) In any proceeding under this Act, whether defended or not, if the
Court is satisfied that-
(a) any of the grounds for granting relief exists and the
petitioner except in cases where the relief is sought by him
on the grounds specified in sub-clause (a), subclause
115
Chhotelal Vs. Kamla 1967 pat. 269
104
(b) and sub-clause (c) of clause (ii) of Section 5 is not any way
taking advantage of his or her own wrong or disability for
the purpose of such relief, and
(2) Before proceeding to grant any relief under this Act, it shall
be the duty of the Court in the first instance, in every case
where it is possible so to do consistently with the nature and
circumstances of the case, to make every endeavour to bring
about a reconciliation between the parties:
105
Provided that nothing contained in this sub-section shall
apply to any proceeding wherein relief is sought on any of
the grounds specified in clause (ii), clause (iii), clause (iv),
clause (v), clause (vi) or clause (vii), of sub-section (1) of
Section 13.
(3) For the purpose of aiding the Court in bringing about such
reconciliation, the court may, if the parties so desire or if the
Court thinks it just and proper so to do adjourn the
proceedings for a reasonable period not exceeding fifteen
days and refer the matter to any person named by the parties
in this behalf or to any person nominated by the Court if the
parties fail to name any person, with directions to report to
the Court as to whether reconciliation can be and has been
effected and the court shall in disposing of the proceeding
have due regard to the report.
106
In Rajasthan State Road Transport Corporation V. Krishna
Kant,116 Supreme Court observed that ―the policy of law emerging
from Industrial Disputes Act, and its sister enactments is to provide
an alternative dispute – resolution mechanism to the workmen, a
mechanism, which is speedy, inexpensive, informal and
unencumbered by the plethora of procedural Laws and appeals and
revisions applicable to civil courts.‖
116
1955 SCC(5) 75
117
Dr. Anupam Kurlwal, An Introduction of Alternative Dispute Resolution System.
107
of 1857 and 1882), brought back all the provisions of the Indian
Arbitration Act, 1899 and incorporated them in the schedule
appended to the court. The Arbitration provisions contained in the
schedule of Civil Procedure Code 1908 were re-enacted into a
separate act in 1940.
108
methods in India gradually declined. The successive Civil
Procedure Codes enacted in 1859, 1877 and 1882, which codified
the procedure of civil courts, dealt with both arbitration between
parties to a suit and arbitration without the intervention of a
court.118
The first Indian Arbitration Act was enacted in 1899. This Act was
largely based on the English Arbitration Act of 1889 and applied only to
cases where, if the subject matter of a suit, the suit could, whether with
leave or otherwise, be instituted in what was then known as a Presidency
town. The scope of this Act was confined to arbitration by agreement
without the intervention of a court.119
118
Rao P.C & Sheffield William ―Alternative Dispute Resolution- What it is and how it works?‖,
Universal Law Publishing Co. Pvt. Ltd. New Delhi- India, 1997 Edition, Reprint 2011, Unni A.C.C.
―The New Law of Arbitration and Conciliation in India‖, pp. 68-69
119
Ibid.
120
Rao P.C & Sheffield William ―Alternative Dispute Resolution- What it is and how it works?‖,
Universal Law Publishing Co. Pvt. Ltd. New Delhi- India, 1997 Edition, Reprint 2011, Rao P.C ―The
Arbitration and Conciliation Act, 1996: The Context‖, pp. 33-44
109
(ii) OBJECT OF THE ACT
110
The objects and reasons aid in finding out what really persuades the
legislature to enact a particular provision thought they cannot be the
ultimate guide in interpretation of statutes. The objects and reasons of
an Act should be taken into consideration in interpreting the
provisions of the Statute in case of doubt and the language of a
provision is not clear.
Part-I closely deals with the provisions of the UNCITRAL Model Law
but some of them differs from that of the Model Law. Some of the
Sections are mentioned below:122
111
scheme as he deem appropriate for dealing with the
appointment of arbitrators.
c) Section-13 does not permit the challenging party to approach
the Court when the challenge made to the arbitral tribunal is not
successful. However after the award is made, the party could
challenge the award on the ground that the arbitrator has
wrongly rejected the challenge.
d) Section-16 states that if the arbitral tribunal turns down the plea
that it has no jurisdiction then the Act does not make the
provision for approaching the Court at that stage.
e) Section-31(7) contains detailed provisions on award of interest
by the arbitral tribunal. It deals with the costs of arbitration.
f) Section-36 provides that under two situations, namely- a) where
an award is not challenged within the prescribed period, or b)
where an award has been challenged but the challenge is turned
down, the award shall be enforced in the same manner as if it
were a decree of the court.
g) Section-37 makes provision for appeals in respect of certain
matters
h) Section-38 enables the arbitral tribunal to fix the amount of
deposit or supplementary deposit, as the case may be, as an
advance for the cost of arbitration.
i) Sections 39 to 43 are largely based on the corresponding
provision in 1940 Act.
112
outside India, whether or not made in an arbitration agreement covered by
the law of India, will henceforth be treated as a foreign award.123
123
Supra note (200)
124
Rao P.C & Sheffield William ―Alternative Dispute Resolution- What it is and how it works?‖,
Universal Law Publishing Co. Pvt. Ltd. New Delhi- India, 1997 Edition, Reprint 2011, Nariman F.S.
―Arbitration and ADR In India‖, pp. 45-56
113
New Delhi on May 1995 is a significant event in the matter of promotion
of ADR movement in India. 125
114
(2) Every Lok Adalat organised for an area shall consist of such
number of—
(ii) any matter which is falling within the jurisdiction of, and is
not brought before, any Court for which the Lok Adalat is
organised:
115
Provided that the Lok Adalat shall have no jurisdiction in respect
of any case or matter relating to an offence not compoundable
under any law.
(2) Notwithstanding anything contained in any cither law for the time
being in force, the Authority or Committee organising the Lok
Adalat under sub-section (1) of section 19 may, on receipt of an
application from any one of the parties to any matter referred to in
clause (ii) of sub-section (5) of section 19 that such matter needs to
be determined by a Lok Adalat, refer such matter to the Lok
Adalat, for determination:
116
Provided that no matter shall be referred to the Lok Adalat except
after giving a reasonable opportunity of being heard to the other
party.
(3) Where any case is referred to a Lok Adalat under sub-section (1) or
where a reference has been made to it under sub-section (2), the
Lok Adalat shall proceed to dispose of the case or matter and arrive
at a compromise or settlement between the parties.
(4) Every Lok Adalat shall, while determining any reference before it
under this Act, act with utmost expedition to arrive at a
compromise or settlement between the parties and shall be guided
by the principles of justice, equity, fair play and other legal
principles.
(5) Where no award is made by the Lok Adalat on the ground that no
compromise or settlement could be arrived at between the parties,
the record of the case shall be returned by it to the court, from
which the reference has been received under sub-section (1) for
disposal in accordance with law.
(6) Where no award is made by the Lok Adalat on the ground that no
compromise or settlement could be arrived at between the parties,
in a matter referred to in sub-section (2), that Lok Adalat shall
advice the parties to seek remedy in a court.
(7) Where the record of the case if returned under sub-section (5) to
the court, such court shall proceed to deal with such case from the
stage which was reached before such reference under sub-section
(1).
117
Section 21 Award of Lok Adalat.—
(2) Every award made by a Lok Adalat shall be final and binding on
all the parties to the dispute, and no appeal shall lie to any court against
the award.
(1) The Lok Adalat or Permanent Lok Adalat] shall, for the purposes
of holding any determination under this Act, have the same powers
as are vested in a Civil Court under the Code of Civil Procedure,
1908 (5 of 1908), while trying a suit in respect of the following
matters, namely:—
118
the requisite powers to specify its own procedure for the
determination of any dispute coming before it.
Section 22 Definitions.—
In this Chapter and for the purposes of sections 22 and 23, unless the
context otherwise requires,—
119
may be, in the public interest, by notification, declare to be a
public utility service for the purposes of this Chapter.
(2) Every Permanent Lok Adalat established for an area notified under
sub-section (1) shall consist of—
120
Section 22C Cognizance of cases by Permanent Lok Adalat.—
(1) Any party to a dispute may, before the dispute is brought before
any court, make an application to the Permanent Lok Adalat for the
settlement of dispute :-
Provided that the Permanent Lok Adalat shall not have jurisdiction
in respect of any matter relating to an offence not compoundable
under any law:
Provided further that the Permanent Lok Adalat shall also not have
jurisdiction in the matter where the value of the property in dispute
exceeds ten lakh rupees:
121
statement together with a copy of such document and other
evidence, if any, to each of the parties to the application.
122
the parties, it may formulate the terms of a possible
settlement of the dispute and give to the parties concerned
for their observations and in case the parties reach at an
agreement on the settlement of the dispute, they shall sign
the settlement agreement and the Permanent Lok Adalat
shall pass an award in terms thereof and furnish a copy of
the same to each of the parties concerned.
(1) Every award of the Permanent Lok Adalat under this Act made
either on merit or in terms of a settlement agreement shall be final
and binding on all the parties thereto and on persons claiming
under them.
(2) Every award of the Permanent Lok Adalat under this Act shall be
deemed to be a decree of a civil court.
123
(3) The award made by the Permanent Lok Adalat under this Act shall
be by a majority of the persons constituting the Permanent Lok
Adalat.
(4) Every award made by the Permanent Lok Adalat under this Act
shall be final and shall not be called in question in any original suit,
application or execution proceeding.
(5) The Permanent Lok Adalat may transmit any award made by it to a
civil court having local jurisdiction and such civil court shall
execute the order as if it were a decree made by that court.
Every agreement,-
124
to restrict any party from enforcing his rights, is void to that
extent
125
―By no stretch of imagination can the taint of legalising a
crime will attach to it. It should not be forgotten that already the
Probation of Offenders Act gives the court the power to pass a
probation order. Further the power of executive pardon, power of
re-mission of sentences have already an element of not condoning
the crime but lessening the rigour of length of imprisonment. In
imposing a sentence for a lesser offence or a lesser period the
community interest is served and it will facilitate an earlier
resolution of a criminal case, thus reducing the burden of the court,
Perhaps it would even reduce the number of acquittals for after
prolonged trial it is quite possible that the case may end in
acquittal.‖
Compounding Of Offences
126
Plea Bargaining – In 2006 the code of criminal procedure 1973 was
amended and a new chapter XXIA on plea bargaining was added
according to which an accused can make an application for plea
bargaining in certain types of criminal cases.
127
India has the largest number of road accidents in the world resulting in a
very large numbers of accident claim case being filed in courts. As per
Sections 146 and 149 of the MV Act, victim compensation in Motor
Accident Claims is based on third party insurance. Section 169 of the Act
lays down that the Tribunal shall follow such summary procedure as it
thinks fit in sedtting claims compensation. But in reality the Tribunals
constituted for this purpose are conducting regular trials instead of
summary inquiries which consume lot of time. Insurance companies
delay settlement of claims.
128
deal with the problem of excessive litigation under the NI Act is a matter
of discussion currently. One of the proposals that has gained consensus is
introduction of ADR in dealing with dishonor of cheque case which
includes :-
(b) Disputes which are already pending before the courts may be
referred to ADR mechanisms of (a) Arbitration, (b) Conciliation
(c) Mediation or (d) Permanent Lok Adalat by Courts with
consent of the parties.
129