Change of Mindset- Chief Justice of India and his companion Judges

India is a vibrating Democracy. It has a very responsible and trustworthy judicial system. But for a country of over nearly a Billion people, the judicial system which is in place today is full to the brim. It was therefore necessary that suitable changes were brought about which would help the citizen to get justice, outside the normal Judicial forums. 

It was in the year 1999, that the Amendment to introduce section 89 in the Civil Procedure Code was proposed. The same was brought into force with effect from 1st of July 2002. It would be now important to reproduce the relevant portion of Section 89 of the Code of Civil Procedure here:-

“PART V

SPECIAL PROCEEDINGS

Arbitration

89. Settlement of disputes outside the Court.

1. Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observation of the parties, the court may reformulate the terms of a possible settlement and refer the same for-

   (a) arbitration;

   (b) conciliation

   (c) judicial settlement including settlement through Lok Adalat; or

   (d) mediation.

2. Where a dispute had been referred-

   (a) for arbitration or conciliation, the provisions of ……

   (b) to Lok Adalat, the court shall…..;

   (c) for judicial settlement, the court shall….;

   (d) for mediation, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.]

Although the thought process has been in existence for quite sometime and suitable amendments were made in Civil Procedure Code as mentioned above, the people of India did not show much interest in settlement of their disputes by alternate methods. In my opinion it was basically due to lack of guidance of the citizens on this aspect. But things are looking up. Almost all the High Courts in the country have set up mediation centres, and the cases are being referred to those mediation centres. Even the Supreme Court of India, whenever it finds a case fit for settlement refers it to mediation, before an appropriate mediation centre, of a respective High court.

Recently as reported in the Chandigarh Tribune Chief Justice of India Mr. Justice S.H. Kapadia while inaugurating the National Conference on Mediation in New Delhi said that if various Courts – from the Supreme Court to the subordinate courts – are flooded with cases, it is only because of the absence of settlement culture among the litigants. In many countries, people prefer settlement to litigation and that is why mediation is successful there. Giving a classic example, Justice Kapadia pointed out how for recovering Rs 5, people do not mind spending 15 years in the courts. While the court presents the litigants with a “win-lose” scenario, in mediation, one has to create a “win-win” situation for the contending parties. Undoubtedly, the people do not understand the value of time. Otherwise, what prevents them from opting for or trying out the various methods in the alternative dispute redressal mechanism? Significantly, many judges of the Supreme Court, who attended the conference, joined the CJI in blaming the lack of out-of-court settlement culture in the country for the rising backlog of disputes and the need for promoting the alternative dispute resolution mechanism to reduce the burden on courts. Justice Altamas Kabir said that though nobody can be blamed for the load of work they (the judges) will have to find a solution to “get out of this mess”. Justice R.V. Raveendran said that space needs to be created in courts to deal with cases which cannot be resolved through mediation, like criminal, election and administrative cases. For making mediation a success, there is need for effective cooperation between the judiciary, the Bar and the legislature. Unfortunately, the government is the biggest litigant today. Sadly, the Centre and the states continue litigation for litigation sake. They are prepared to file appeals after appeals and fight it out in the court for years but refuse to sympathise with a poor employee and deny him his legitimate dues. In a welfare state, the government should act as the custodian of public, and not act as a stumbling block in the speedy administration of justice. Prime Minister Mr. Manmohan Singh government’s new litigation policy will be of little value if the officials do not change their mindset.

As one can very well notice from the above, there is a tremendous effort which is being put in both by Legislature as well as by those who are manning the Courts namely right from Chief Justice of India downwards to bring about a change in the thinking of the litigating public and the Courts driving them towards a atmosphere of settlement culture.

There is a lot which is also being done by the Central Government in enforcing a new litigation policy which is based on encouraging expeditious disposal of cases. Some of the changes which are in the pipeline inter alia are as follows:-

The Central Government has announced huge financial packages to State Government for refurbishing the infrastructure in the Courts by introducing Information Technology. There is also an effort being made to introduce fresh laws which will make the lawyers and judicial officers more accountable. Commercial benches will be set up in the High Courts which will deal expeditiously with cases which raise commercial disputes involving amounts more than Fifty Million Rupees.

Lastly, it can be safely concluded that the atmosphere of delay in deciding cases seems to be undergoing a change. In my opinion it will further help the cause of out of court settlement by Mediation if all cases which are pending for more than ten years in Courts, are considered for settlement through mediation. Already cases pertaining to Motor Accident Claims which are pending for a long period are setdown for settlement through Lok Adalats. Lawyers should also make efforts on their own to encourage their clients for Mediation as it has been noticed that client’s faith in their lawyer is tremendous.

Law colleges in India must introduce a separate study course in Mediation alongwith Arbitration & Conciliation to educate fresh law graduates in the field of settlement of disputes by Mediation.