Joginder Singh Toor

AN effort to decide disputes though arbitration, for cheapness, convenience, simplicity of procedure and speediness, has encouraged a healthy trend in evolving a new branch of law; ‘Alternate Disputes Redressal Forum’.

In ancient India, the disputes used to be redressed in the village council (Kulani), Corporations (Sreni) and assemblies (Puga). The village council later on known as village Panchayat, got legal and social approval. Village Panchayats assumed the role of village courts to decide disputes and issue social edicts. The Panchayats got legal entity in some States with the passing of Gram Panchayat Acts. The legislations were neither uniform nor did these cover the entire territory of India. The need to have uniform local bodies law, culminated into 73rd and 74th amendment of the Constitution of India requiring all the States and Union Territories of India to enact laws for the constitution of Gram Panchayats and Municipal Councils in each State in a regular manner and according to the model code provided under the 73rd and 74th amendment. The States passed their respective legislations giving statutory powers to the Panchayat to resolve petty disputes without resort to civil or criminal courts. No such powers for the municipal councils.

Dispute redressal by arbitration was a different effort. During the British rule numbers of regulations were made. Firstly in the Presidency of Bengal 1781 Regulation was introduced requiring the judges to recommend, so far as he can without compulsion, prevail upon the parties to arbitration of one person, to be mutually agreed upon by the parties. The Regulation of 1787 empowered the court even to refer suits for arbitration with the consent of the parties followed by The Regulation of 1793 authorizing the court to promote references of cases not exceeding Rs.200/- in value. The arbitration included disputes relating to partnership, accounts, debts, disputed bargains and breach of contracts. The provisions were extended in 1795 to Banaras. In 1802, 1814, 1822 and 1883 the limits and jurisdiction of arbitration were extended. Madras Presidency Regulation of 1816, Bombay Presidency Regulation of 1827 was steps in this direction. Even after the Charter Act of 1833 and the establishment of Legislative Council for India in 1834 under Lord William Bentinck, first Governor General of India, the regulations continued to operate.

With the passing of the Code of Civil Procedure, 1908, the provisions relating to arbitration were set out in its second Schedule. It was hoped that this would culminate into a comprehensive Arbitration Act, but did not materialize till 1940 when Arbitration Act of 1940 was enacted replacing the 1899 Act and the Second Schedule to the Code of Civil Procedure,1908. For 56 years no change took place in the Arbitration Act despite various recommendations of the Law Commission and of certain independent bodies. However, there were some State measures.

The United Nations Commission on International Trade Law (UNCITRAL) adopted in 1985 the model law on International Commercial Arbitration. The General Assembly of the United Nations requested all the countries to consider the model laws suggested by the UNCITRAL, so as to introduce alternative disputes redressal forums in International sphere to provide trading parties and even between the States a forum for redressal of disputes bilaterally. The Government of India passed Arbitration and Conciliation Act,1996 to consolidate and amend the law relating to domestic arbitration, international commercial arbitration and enforcement of arbitral awards and defined the laws relating to conciliation on the lines suggested by the U.N.

The passing of 1996 Act, has set a pace for amendment and passing of other laws, requiring and recommending arbitration in various fields of law.

Article 39-A of the Constitution of India, forming part of Chapter IV, relating to the Directive Principle of State policy, mandates the Govt. of India, to provide free legal aid and for expeditiously providing justice without much cost. As a result Legal Services Authorities Act,1987 was passed providing an infrastructure and funds for giving free legal aid to those who cannot afford expenses of litigation. At the same time it provided for establishing Lok Adalats for mutual settlements but the Lok Adalats so established had no legal backing. In the event of no compromise the case had to be referred back to the court for decision on merits which involved expenses and delay. The law had to be further amended to provide a legal backing to the Lok Adalats and the Lok Adalats to become a permanent feature. A permanent Lok Adalat has been given power, if moved by both or one of the parties to decide a dispute involving an amount upto Rs. 10 lakh, and the decision by the Lok Adalat would amount to decree of the court.

In other fields of litigation such as family law disputes an effort is made at the first instance to have the matter decided by conciliation.

Whether this alternate dispute redressal is an escape from deciding cases on merits or an expression of incapacity to do so without delay and heavy expense is a separate controversy, requiring legal reforms but alternate dispute redressal is a widely accepted measure.

[Joginder Singh Toor, Advocate, Punjab and Haryana High Court, jogindersingh_toor@yahoo.com Mobile 91-98151-33530]

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