CHAPTER 9

CONCLUSION AND SUGGESTION

“Litigation has become an inevitable stage in the life cycle-slightly beyond adolescence but
before maturity. It is virtually impossible to survive litigation and remain solvent. But it is
occasionally possible to endure it and remain same. As a modern ordeal by torture, litigation
excels, it is exorbitantly expensive, agonizingly slow, and exquisitely designed to avoid any
resemblance to fairness or justice. In strange and devious ways it does settle disputes- to
everyone’s dissatisfaction”

- J. S. Aurbach

CONCLUSION

“Discourage litigation; persuade your neighbors to compromise, whenever you can. Point out
to them the normal winner is often a real loser; in fee, expenses and waste of time. As a peace
maker, the lawyer has a superior opportunity of being a good person.”1

ADR represents only a change in forum, not in the substantive rights of parties.ADR is not
intended to supplant altogether the traditional means of resolving disputes by means of
litigation. It only trades the procedures and opportunity for review of the courtroom for the
simplicity, informality and expedition of ADR. The primary object of ADR is avoidance of
vexation, expense and delay and the promotion of the ideal of “excess to justice”.

ADR is based on more direct participation by the disputants rather than being run by lawyers
and judges. This type of involvement is believed to increase people’s satisfaction with the
outcome and as well as with their compliance with the settlement reached. Most ADR
process is based on an integrative approach. They are more co-operative and less competitive
than adversarial court based method like litigation. For this reason ADR tends to generate
less escalation and ill-will between parties.

Ethical issues should be given due regard while administrating the ADR techniques. The
integrity and fairness of the ADR process should be maintained .The faith reposed by the
parties in the ADR system by agreeing to resolve their disputes through ADR should be
respected; otherwise an attempt to put in an ADR mechanism would become futile.2

1
Abraham Lincoln , President United States of America
2
Supra note 21

1
The framework of ADR mechanism that has emerged is comprehensive. But its success
depends much on the will of the people to work it up in the right spirit and with good faith.
Serious efforts to shift to ADR deserve to be made. The parties have to be made aware of the
advantage of adopting an ADR mechanism. Unfortunately one or the other party is interested
in delay and is not bothered either about the cost or consequences and would not hesitate to
take a false, unethical and wholly unprincipled stand to benefit from the delay. Therefore
ADR as a tool for dispute resolution can only work if the attitude of the parties to
unnecessary litigation changes.

The twin benefits of ADR mechanisms are essentially time and money. A satisfactory
solution is an added bonus. If we compare proceedings of the court to that of proceeding
conducted before arbitral tribunal, following inference is deducible as to the benefits of
arbitration:

Table of Benefits

COURT ARBITRATION

ADJUDICATOR No Choice Designated Can Choose Qualified

Person

JURISDICTION May Be Disputed Agreed upon

PLACE Choice of the claimant Choice of both the parties

TIME OF HEARING Decision of the Court Decision of the Parties

PROCEDURE Strict CPC applies Its Informal

EVIDENCE Strict application of Its informal

Evidence act

The analysis so far indicates that while the benefits of litigation is cut and dried, there are
substantial side benefits in following the arbitration track provided it is done in a proper way.

Similar analysis of comparison of other modes of ADR with proceedings in a regular court of
law reveals the same results, with ADR method fairing better in dispensing justice than
regular court of law.

This leads support to the fact that ADR mechanisms are very vital and have immense value in
our dispute redressal system.

SUGGESTIONS

2
The wheels of Indian justice grind slowly, but there are times when they don’t move at all, as
has happened with the record-breaking case of an erstwhile Bengali royal family’s property.
The matter, which is now in the Calcutta High Court, has been pending for 175 years, making
it perhaps the country’s longest-running case.3

One of the major flaws of India is the delay in its legal system. The average time taken by the
Indian courts for deciding case varies between 5 to 15 years. In The Guinness Book of
Records there is an entry, which says that the most protracted law suit ever, recorded was in
India: A "Mahant", who is a keeper of a temple, filed a suit in Pune in 1205 AD and the case
was decided in 1966 -761 years later.

There are innumerable instances when the present judicial system has resulted into a painful
experience for the litigants seeking redressal. It’s shocking to see as to how many cases are
pending in the courts.

The mounting arrears in the courts, inordinate delays in the administration of justice and
expenses of litigation have the potential to erode public trust and confidence in our legal
system, which is the pillar of our democracy. Delay also gives rise to corruption and other
evils. Ideally speaking Judicial system is blind to power, wealth and social status .Courts are
supposed to offer a forum where the poor ,powerless and marginalized can stand with all
others as equals before law. But with the present state of affairs, our fellow citizens have
chosen to avoid courts rather than face intimidation cost and time in legal proceedings.4

In its 14th report Law commission of India recommended devising ways and means to ensure
that justice should be simple, speedy, cheap, effective and substantial. 5 In its 77th Report Law
commission of India observed that the Indian is primarily an agrarian and is not sophisticated
enough to understand the technical and cumbersome procedures followed by courts.6

To further the above mentioned reports and thoughts of jurists, it would be pertinent to have a
look at the pendency of cases at the various courts.

Variation in Pendency of court cases from 1991 to 1998:7

Supreme Court –substantially reduced from 104,936 (1991) to 19,806 (1998)

High Courts – increased from 2.65 million (1993) to 2.98 million (1995) and 3.18 million
(1997) more than 50% in only four high courts –

3
http://timesofindia.indiatimes.com/175_years_later_West_Bengal_case_goes_on_and_on/articleshow/3690564.ms
4
ADR: Speech delivered by Justice Y.K.Sabarwal –Judge Supreme Court of India and Chairman Supreme Court
legal services committee on 21-11-2004 in a seminar organized by Bombay High Court
5
Law Commission of India, 14th report on Reform of Judicial Administration.
6
Law Commission of India,77th report on Delay and arrear in Trial Courts,1979
7
Chapter – II, Annual Report 2000-2001, Ministry of Home Affairs; See
http://www.mha.nic.in/pdfs/AR(E)1011.pdf

3
Allahabad High Court - (0.86 million),

Madras/Chennai High Court - (0.32 million),

Calcutta High Court - (0.28 million),

Kerala High Court - (0.25 million).

Subordinate courts – fluctuating – 21.8 million (1995), 19.9 million (1996), 20 million (1997)

Pendency in the High Courts

The pendency of cases in the high courts, which was 2.651 million as on 31.12.1993,
increased to 2.981 million as on 31.12.1995 and further increased to about 3.181 million as
on 31.12.1997. The pendency of cases as on 31.12.1999 was 3.365 million. This increased to
3.557 million as on 31.10.2001

Criminal justice administration

As on July 31, 1999, out of 20,106,882 cases 13,250,329 criminal cases were pending in the
subordinate courts of the country. Statistics reveal that there is almost one cognizable crime
committed every seven seconds, one penal offence every twenty seconds, a property crime
every minute, theft every one and half minutes, violent crime every two minutes, burglary
every four minutes, riot every five minutes, robbery every fourteen minutes, murder every
fifteen minutes, rape every fifty two minutes, molestation every twenty six minutes, dowry
death every one hour forty two minutes, kidnapping or abduction every forty three minutes,
an act of eve-teasing every fifty one minutes and an act of cruelty towards women every
thirty three minutes

The reports submitted by the Law Commission of India and other committees who are
constituted annually to examine various loopholes in the law and suggest measures to meet
the situation. These commissions take into account views and experiences of diverse sections
of people belonging to socio-legal circles. These reports generally reflect the sentiments of
general public and ordinary litigants in India

In the 114th Report on Gram Nyayalaya (1986) the Law Commission of India examined that
the judicial system suffers from inordinate delays, excessive costs, legal technicalities and
even uncertainty of judicial decision. The Commission added that the task of solving the
problems of backlog of pending cases in law courts is stupendous.

The observations made in the report of the Arrears Committee8 also reflect the general
mindset regarding court system in India:

8
Constituted by the Government of India in 1989 on the recommendation of the Chief Justices’ Conference, published by
the Supreme Court of India- 1990, at p. 109.

4
“Settlement of cases by mutual compromise is a much better method than seeking
adjudication in the adversary system. Fighting litigation to its bitter and final end apart from
generating tension and leaving a trail of bitterness, burdens the parties with heavy financial
expenditure. Besides, the successful party has to wait for years before enjoying the fruits of
litigation. Results in consonance with justice, equity and good conscience can sometimes be
achieved by having a mutual settlement of the dispute than by inviting the court to decide a
case one way or the other…….

To examine the court work methods and work environment and to suggest improvements
thereof, the National Judicial Pay Commission9 engaged the services of Indian Institute of
Management, Bangalore (IIMB). The IIMB, after an in-depth study concluded that most
people having stakes in the judicial work are of opinion that justice delivery system is
unsatisfactory or poor. The main reason given by them is the delay in disposal of cases. IIMB
ransacked the order sheets of several cases and after carefully analyzing them stated as
follows:

1. The time taken to serve summons and emergency notices to defendants varied from three
months to three years.

2. The time taken to file written statements ranged from six months to twenty four months.

3. Interlocutory applications caused delays ranging from four months to four years.

4. Framing of issues consumed as much as three years and six months in one case.

5. Other stages that delayed the cases were absence of advocates and, of course, innumerable
adjournments given for a variety of reasons.

6. The major causes of delays were "summons not being served on time" and "witnesses not
being present in court". For criminal cases, the most widely felt source of delay was
"inadequate number of concerned personnel". For civil cases, it was "filing of unwarranted
Interlocutory Applications".

7. The delay in most of the cases is due to multiplicity of interlocutory applications, which
are not dealt with by the courts promptly.10

The above finding concurs with the views of several commissions and reinforces the felt need
to introduce long overdue reforms. The National Judicial Pay Commission, in its first report

9
Constituted by Government of India on 1996 on the direction of the Supreme Court given in All India Judges
‘Association v. Union of India, AIR 1992 SC 165.
10
Chapter 24, Report of First National Judicial Pay Commission (1999),
http://www.kar.nic.in/fnjpc/cwcm&adr.html

5
submitted in 1999 examined the work methods and environment in courts and noted
following difficulties faced in court system that affect the interests of litigant public:

1) The Courts are overburdened with work. The experience is that even at the stage of
framing of issues, there is no assistance from advocates in most of the courts. Interrogatories
are seldom resorted to and very often documents are filed after the commencement of trial
with an application seeking permission.

2) Advocates produce hindrance in observing the procedure and a very insisting officer is
likely to be harassed in many ways. Rules are already there but are not observed because of
noncooperation of various agencies responsible for producing witnesses.

3) Considerable long time is being wasted in securing the presence of the parties for the
purpose of admission and denial and seeking reply to the interrogatories.

4) Language of the Courts: In almost all states, the judicial proceedings in lower courts are
recorded in local language of the state concerned. Proceedings, including evidences are
recorded by the Peshkar (Reader) in vernacular while the presiding officer either in his own
hand or by dictation to the steno-typist records the proceedings in English. On account of
implementation of transfer policy of judges of the high courts, generally judges in a high
court are from outside the state concerned. The transferee judges, who are not familiar with
local language of the State, face considerable difficulty in dealing with cases when the
records are only in local language. The translation of all the records into English is an
enormous task besides the cost factors and even if it be done, it would cause delay in disposal
of cases. Therefore, language is also in a way becomes a hindrance in the way to attain
speedy disposal of cases.

Therefore, people are looking forward in developing Alternative Dispute Resolution modes,
which will minimize the overall time and cost of a person, while maximizing the time
available at one's disposal. This is evident from the fact that a considerable litigation burden
has been shifted to the hybrid variety of ADR modes developed in the country during last five
decades.

Problems of the court system

Various problems with which Indian court system is ailing may be summed up as under:

Overburdened judiciary: The court system in India, which is based on adversarial model of
common law, is cumbersome, expensive and cumulatively disastrous. It is overburdened. It
has to tackle with voluminous pending as well as fresh litigation arising every day. The
hierarchy of courts, with appeals after appeals adds to the magnitude of the problem.

Inadequacy of judiciary to meet the challenges of total population:

Inadequate judge strength throughout the country is the similar biggest factor for huge
backlog of cases. Added to this difficulty is sluggishness shown by the high courts and

6
various state governments in filling up the vacancies of judges on time. As on December
2001, there were 15.14 % vacancies in the subordinate courts, high courts and the Supreme
Court of India out of total 13140 judge posts.

State is the largest litigator:

The central and state governments are the single largest litigants, abetted by government
owned corporations, semi-government bodies and other statutory organizations. In Bombay
High Court alone, there were as many as 1,205 writ petitions filed against these bodies
between January 1 to June 7, 2000- excluding those filed on the appellate side, while total
number of suits filed is 2,402.11

Adversarial character of administration of justice:

In its structure and organization, the administration of justice in India as at present in vogue
has the stamp of ‘Made in U.K.’. It is adversarial in character. It renders the position of a
judge to a passive listener, a sort of umpire in a game of cricket, denying him active
participation in unraveling the truth. And the court battle is conducted according to medieval
rules of evidence.

Time taken in disposal of cases:

One of the major flaws of India is the delay in its legal system. The average time taken by the
Indian courts for deciding case varies between 5 to 15 years.

In-spite of the constitutional guarantees, judicial decisions and the reports by various high
powered Committees the concept of speedy justice has remained an elusive goal. About 0.18
million under-trials are in jail because of the non-disposal of the cases in time. The
Government has to spend to the tune of Rs. 3,610 million per year on this.

Complex reasons for pendency:

Lack of responsiveness and transparency in administration increase in access to information

and institution of cases, rise in population, radical changes in the pattern of litigation,
multifarious litigation, inadequate strength of judges/judicial officers, adjournments, etc.
Inadequate judge strength throughout the country is the similar biggest factor for huge
backlog of cases.

11
Source: http://www.kar.nic.in/fnjpc/cwcm&adr.html

7
Constant pressure and demoralizing of TRIAL COURTS:

That the trial judges in India work under a charged atmosphere and constantly under a
psychological pressure has been even judicially recognized. The Supreme Court observed:12

“The lower judicial officers mostly work under a charged atmosphere and are constantly
under a psychological pressure with all the contestants and their lawyers almost breathing
down their necks – more correctly up to their nostrils. They do not have the benefit of a
detached atmosphere of the higher courts to think coolly and decide patiently. Every error,
however, gross it may look, should not, therefore, be attributed to improper motive."

Another unique problem of Indian court system is that appellate courts demoralize
subordinate courts by reversing judgments and decrees passed by these courts and adverse
remarks in the judgment itself are made regarding propriety of subordinate judiciary. The
higher judiciary looks down upon it. Appellate courts do not approach the case for the first
time. The raw materials for the appellate court are already collected, assembled and focused
unlike in the trial court. The appellate court hears only the oral arguments in a tension free
atmosphere and it has plenty of time to come to conclusion. There is enough time for the
appellate court to think and re-think on any legal issue. There is a qualitative difference in the
variety, novelty and method in the decision-making by the appellate court. Apart from that,
unlike in the trial court, the appellate courts generally have substantial contribution from the
well-prepared lawyers. The assistance given to the appellate court generally is far better than
the assistance given to the trial court.

However the power of the appellate courts is used most frequently to find fault with the trial
judge in each and every matter of the decision-making. Trial judges are treated with very
little respect, even though it is not proper for the appellate court to make derogatory remarks
against trial judge.

In Braj Kishore Thakur v. Union of India and Others 13, Justice K.T. Thomas speaking for the
Supreme Court while deprecating the caustic and severe censure made by the single judge of
the Patna High Court against the Senior District and Sessions Judge of Bihar Judicial Service,
observed:

"Judicial restraint is a virtue. A virtue, which shall be concomitant of every judicial

disposition. It is an attribute of a Judge, which he is obliged to keep refurbished from time to
time, particularly while dealing with matters before him whether in exercise of appellate or
revisional or other supervisory jurisdiction. Higher courts must remind themselves constantly
that higher tiers are provided in the judicial hierarchy to set right errors, which could possibly
12
K.P. Tiwari v. State of M.P 1994 Supp (1) SCC 540
13
1997) 4 SCC 65, at 66 and 70.

8
have crept in the findings or orders of courts at the lower tiers. Such powers are certainly not
for belching diatribe at judicial personages in lower cadre.”

In State of Rajasthan v. Prakash Chand & others 14, deprecating the tendency of certain
judges in making disparaging and derogatory remarks in intemperate language, it was
observed:

"The foundation of our system which is based on the independence and impartiality of those
who man it will be shaken if disparaging and derogatory remarks are permitted to be made
against Brother Judges with impunity. It is high time that we realize that the much-cherished
judicial independence has to be protected not only from outside forces but also from those
who are an integral part of the system. Dangers from within have much larger and greater
potential for harm than dangers from outside. We alone in the judicial family can guard
against such dangers from within. One of the surer means to achieve it is by the Judges
remaining circumspect and self-disciplined in the discharge of their judicial functions."

Low Conviction Rate: The average conviction rate of crimes under the Indian Penal Code
has been 39.02 per cent as per the information from the National Crime Records Bureau of
the Ministry of Home Affairs. This rate of conviction has been constant from 1995 to 1999.
The reasons for poor conviction rate are attributed to the nature of the procedural laws,
practices and procedures followed by criminal courts and the inadequacies of the
investigating and prosecuting agencies15

Even after providing a mechanism for an alternative dispute resolution the Supreme Court
was of the view that The Arbitration and Conciliation Act, 1996 suffers from two defects:

a) There is no provision in the Act for accepting the awards or subsequent proceedings
in courts where applications are filed for setting aside the awards.

b) For challenging the award, the aggrieved part has to again start from the district
court.16

The Arbitration and Conciliation Act,1996 was introduced in view of growing complexities
of modern commercial transactions in wake of globalization of economy which necessitated
an effective redressal mechanism for speedy settlement of domestic and commercial disputes
so as to allow uninterrupted flow of trade and commerce. This has been possible through
measures of conciliation, mediation and arbitration which are considered relatively less
expensive and speedy as compared to court proceedings which are dilatory and
cumbersome.17
14
(1998) 1 SCC 1
15
Low Conviction Rate In Criminal Cases, August 22, 2001, PIB
Release;http://pib.nic.in/archieve/lreleng/lyr2001/raug2001/22082001/r220820012.html
16
M/s Centerotrade Minerals & metals Inc. V. Hindustan Cooper ltd. 2006 11 SC 245
17
SBP & Co V. Patel Engineering Ltd & another. 2005 8 SCC 618

9
Therefore there has been a shift to the alternative mode of dispute resolution which is not an
alternative to our present judicial system, but it only furthers the constitutional mandate of
providing justice.

Arbitration has social purpose to fulfill today. It is of great importance as there has been an
explosion of litigation in court of law established by the sovereign. 18 The courts are full of
litigation which is pending from a long time; therefore it should be the endeavor of those who
are associated with dispensing justice, to do so in an effective manner.

18
Food corporation of India V.Joginder Pal Mohinder Pal AIR 1989 SC 1263

10