Overview: ONLINE DISPUTE RESOLUTION TO AMPLIFY JUSTICE
Oct. 31, 2023 • DHRUVIKA.P
Access to justice is the foundation of a just society. Justice is defined in various forms but the final objective of justice should be equitable treatment of individuals through the protection of rights and the resolution of disputes. After the evolution of courts as judicial institutions, litigation was the conventional method for resolving disputes. Litigation is a process in which a dispute is resolved through legal proceedings in a court of law. There was an upsurge in the pendency of cases when litigation was the predominant approach. The Honorable Supreme Court has also addressed this concern and has encouraged alternate dispute resolution(ADR) means to accelerate the settlement of cases. ADR mechanisms include arbitration, mediation, conciliation, negotiation, etc.. although these mechanisms ease the burden on courts and litigants, there is a need to take a step forward and induct online dispute resolution mechanisms to further simplify the process of dispensing legal issues.
ORIGIN OF ADR IN INDIA
According to an ancient Indic text Katyayana Smrithi, there were various courts like kula(family courts), shreni(councils for trade profession), gana(assembly village), sasita(King's court) and nripa(the king himself) in ancient India. Even during the Mughal empire, there was the establishment of a hierarchical judicial system with vakils being the representative of clients in the court. This showcases a distinctive and well-structured hierarchy of legal institutions that streamlined legal processes in the past before the introduction of the common law system.
The East India Company introduced a common law system in India by establishing mayor’s courts. Later on, the British crown replaced these mayor’s courts leading to the formation of high courts and the Supreme Court. Initially, Indian practitioners were barred from the Supreme Court established by the British. Only after the enactment of the Practitioners Act of 1846 Indian nationals were allowed to enter this profession.
The Indian legal system evolved in many aspects post-independence. The enactment of The Arbitration and Conciliation Act, of 1996 is one such noteworthy example of progress. The then prevalent Arbitration Act of 1940 provided only domestic arbitrations; however, globalization and liberalization of the Indian economy necessitated the enactment of new legislation to make domestic laws at par with other countries which further paved the way for foreign investments.
According to the latest reports and data over 5.02 crore cases are pending across different courts in India. One of the key objectives of The Arbitration and Conciliation Act, of 1996 was to reduce court intervention and provide speedy disposal of disputes. Emphasis on this objective cannot be undermined, as it minimizes the caseload on the judiciary, enabling the courts to prioritize cases of significant societal impact.
In India, ADR majorly involves arbitration, conciliation, mediation, negotiation, and lokadalts. The results of these proceedings are enforceable by law. The following provides a brief description of a few ADR mechanisms.-
- Arbitration - It is a quasi-judicial proceeding wherein parties appoint an adjudicator to resolve the dispute. The latest Arbitration and Conciliation Act, 1996 is based on the UNICTRAL model. This act was further amended in 2015 and 2019 enabling conduct of arbitration to be efficient and also providing a statutory framework for time-bound completion of arbitration proceedings.
- Conciliation - In this form a conciliator appointed by the parties amicably solves the dispute by meeting the parties separately. It is governed by the Arbitration and Conciliation Act, of 1996.
- Mediation - This is an informal mode of ADR where conflicting parties resolve disputes with the help of a mediator who helps parties negotiate and mutually agree on a solution. Recently, The Mediation Act 2023 was passed which is a pivotal move for the legal ecosystem of India.
The above-mentioned mechanisms are striving for efficient dispute resolution but there is also a need for structuring the future of a dispute resolution system that is online dispute resolution. Identifying the potential of ODR, in 2021 NITI Aayog today released the report ‘Designing the Future of Dispute Resolution: The ODR Policy Plan for India’, to scale dispute avoidance, containment, and resolution online.
FUTURE OF DISPUTE RESOLUTION SYSTEMS
In 2020 due to pandemic the significance of online systems increased, leading to the traditional ADR system's transition into the digital realm. It is crucial to understand ODR beyond the idea of e-ADR, at further advanced stages ODR can help in finding resolutions and is a cost-effective solution for dispute resolution.
Presently India is working towards integration and mainstreaming of ODR systems. The three main branches of government have acknowledged the potential of ODR.
The executive wing of the government has launched e-portals like SAMADHAAN which enables e-filing and online settlement of Micro and Small Enterprises (MSE) dues against Public Sector Enterprises.
In the case of the State of Maharashtra v Praful Desai, the Supreme Court extended this recognition for modern modes of communication and upheld video-conferencing as a valid mode for recording evidence and testimony of witnesses. The Supreme Court has also recognized electronic summons in the Central Electricity Regulatory Commission v National Hydroelectric Power Corporation Ltd case.
These welcoming moves by the government are laudable however some challenges can be faced to adopt ODR systems completely, the report published by NITI AAYOGYA provides comprehensive details regarding the implementation and challenges this article further briefs the key points of the report.
The policy plans to implement ODR in three phases-
Firstly by working on setting up infrastructure and increasing the capacity of existing infrastructures,
Secondly, it aims to work on mainstreaming ODR in dispute resolution and governance by introducing legislative amendments and the use of ODR for intergovernmental disputes involving PSUs.
Lastly, it focuses on fostering the ODR ecosystem by using various methods like developing a National ODR Platform. encouraging innovations and entrepreneurship in ODR, While the policy chalks out the perfect implementation plan it lacks a proper description of the legal framework needed for ODR systems which can be a major adversity in the implementation of ODR.
Another challenge that demands a legal framework for ODR is operational challenges in which privacy and confidentiality are major concerns. Introducing amendments in legislation by emphasizing ODR was also recommended by the NITI AAYOGYA policy.
Lack of awareness can create another challenge for the implementation of ODR. The skepticism regarding technology and its credibility is concerning and it needs to be tackled by educating citizens and as responsible citizens of the country, we also must have open discussions regarding the ODR system. Awareness about ODR should also be introduced in schools and higher educational systems to eliminate behavioral challenges at the grassroots level.
As Alan Watts quotes, “The only way to make sense out of change is to plunge into it, move with it, and join the dance.” It becomes evident that embracing the ODR mechanism and enacting comprehensive legislation is imperative.
The author affirms that this article is an entirely original work, never before submitted for publication at any journal, blog or other publication avenue. Any unintentional resemblance to previously published material is purely coincidental. This article is intended solely for academic and scholarly discussion. The author takes personal responsibility for any potential infringement of intellectual property rights belonging to any individuals, organizations, governments, or institutions.
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6. State of Maharashtra v Praful Desai. (n.d.). Supreme Court of India. https://main.sci.gov.in/jonew/judis/19114.pdf