Paper 6 Conciliation and ADR in India - Murali Neelakantan
Synopsis : A. Introduction : ADR in India History of ADR in India ADR in Modern India Litigation in India - the need for ADR Judicial approach to ADR in India Arbitration and Conciliation Act, 1996. Conciliation Conciliation v. Arbitration Conclusion
B. C. D. E. F. G.
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Introduction : ADR in India History of ADR in India
India has had a long history of ADR; the earliest recorded instances date back to several centuries before Christ. Many of these forms exist with little change in the interiors and rural India. Bodies such as the panchayat, a group of elders and influential persons in a village deciding the dispute between villagers are not uncommon even today. There are also instances of disputes between persons of two different villages being settled by a body of individuals drawn from the disputants’villages, a third village or a combination of the two. The disputants are required to present their cases before the panchayat which will attempt to resolve the dispute. The working of the panchayat is such that it would be difficult to classify it as a mediator, a conciliator, an arbitral tribunal or a judicial body. While all disputes are heard by the panchayat it dons different forms, depending on the circumstances and the situation. If the facts disclose a clear legal obligation, it would act as a ‘judicial’ body to decide the rights of the parties and enforce the decision by sanction. On the other hand, it may persuade one of the parties to act in a particular manner in a situation where the petitioner has no real claim in law but appeals to the righteousness of action to seek relief. This may be seen as the first indication of the process of conciliation in India. The disputants would ordinarily accept the decision of the panchayat and hence a settlement arrived consequent to conciliation by the panchayat would be as binding as the decision that was on clear legal obligations. One ought to understand that the decision of the panchayat was always to be followed, irrespective of the source of the decision. The panchayat has, in the recent past, also been involved in caste disputes. One may compare some activities of the panchayat to that of the 18th. century English guilds since the caste system began with a classification based on the profession of its members. The Muslim rule in India saw the incorporation of the principles of Muslim law in the Indian culture. The Kazi was the designated judicial officer who decided disputes between individuals. There are many recorded instances where the kazi has decided a case beyond the law by getting the disputants to agree to a solution that has been arrived at by conciliation, without actually giving that colour to the decision. Thus the decision from the authority of the kazi would be binding on the parties before him, it may just be that the decision is more acceptable and the disputants go back with the feeling that the decision was just and neither lost. ADR in modern India In the not so distant past too, conciliation has been effectively used in dispute resolution. The most prominent and effective use of conciliation has been in the Industrial Disputes Act, 1947 (the I.D. Act). Conciliation has been statutorily recognised as an effective method of dispute resolution in relation to disputes between workmen and the management of the industry. The I.D. Act makes it attractive for disputing parties to settle disputes by negotiation, failing which by conciliation by an officer of the Government before resorting to litigation. Several provisions set the scene for conciliation to be successful:
September 5, 1997
Ref : C2/adr....
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