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Dispute Resolution Process in India

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Dispute Resolution Process in India IDE Asian Law Series No. 16 Dispute Resolution Process in Asia (India) Dispute Resolution Process in India INDIAN LAW INSTITUTE New Delhi INSTITUTE OF DEVELOPING ECONOMIES (IDE-JETRO) March 2002 JAPAN PREFACE The evolution of the market-oriented economy and the increase in cross-border transactions have brought an urgent need for research and comparisons of judicial systems and the role of law in the development of Asian countries. Last year, in FY 2000, the Institute of Developing Economies, Japan External Trade Organization (IDE-JETRO) conducted legal researches in Asian countries with two main themes. The first theme was to figure out the role of law in social and economic development and the second was to survey the judicial systems and the ongoing reform process thereof. We organized joint research projects with research institutions in Asia and had a roundtable meeting entitled “Law, Development and Socio-Economic Change in Asia” in Manila. The outcomes of the joint researches and the meeting were published in March 2001 as IDE Asian Law Series No. 1-10. This year, in FY 2001, based on the last year’s achievement, we established two research committees: the Committee on “Law and Political Development in Asia” and the Committee on “Dispute Resolution Process in Asia”. The former committee focused on legal and institutional reforms following democratic movements in several Asian countries. Since late 1980s many Asian countries have experienced drastic political changes by the democratic movements with mass action, which have resulted in the reforms of political and administrative system for ensuring the transparency and accountability of the political and administrative process, human rights protection, and the participation of the people to those process. Such reforms are essential to create the stability of the democratic polity while law and legal institutions need to function effectively as designed for democracy. The latter committee conducted a comparative study on availability of the court system and out-of-court systems (namely Alternative Dispute Resolutions), with the purpose of determining underlying problems in the courts. As social and economic conditions drastically change, Asian countries face challenges to establish systems for fairly and effectively resolving the variety of disputes that arise increasingly in our societies. For dispute resolution, litigation in the court is not the only option. Mediation and arbitration proceedings outside the courts are important facilities as well. In order to capture the entire picture of dispute resolution systems, a comprehensive analysis of both the in- and out-of-court dispute resolution processes is essential. In order to facilitate the committees’ activities, IDE organized joint research projects with research institutions in seven Asian countries. This publication, titled IDE Asian Law Series, is the outcome of research conducted by the respective counterparts. This series is composed of papers corresponding to the research themes of the abovementioned committees, i.e. studies on law and political development in Indonesia, the Philippines and Thailand, and studies on the dispute resolution process in China, India, Malaysia, the Philippines, Thailand and Vietnam. The former papers include constitutional issues that relate to the recent democratization process in Asia. Studies conducted by member researchers investigated the role of law under those conditions while taking up such subjects as rule of law, impeachment, Ombudsman activities, human rights commissions, and so on. The latter papers include an overview of dispute resolution mechanisms for comparative study, such as court systems and various ADRs, as well as case studies on the dispute resolution process in consumer, labor and environmental disputes. We believe that this work is unprecedented in its scope, and we hope that this publication will make a contribution as research material and for the further understanding of the legal issues we share. March 2002 Institute of Developing Economies List of Contributors Professor (Ms) S. K. Verma Director, Indian Law Institute Project Director Professor S. C. Srivastava Research Professor, Indian Law Institute Ms. Geeta Obrai Research Assistant Table of Contents Preface List of Contributors Part–I Overview of the Dispute Resolution Mechanism Chapter I Court System: How the Court System is used as Dispute Resolution Mechanism 1. Overview of the Court System in India 2. Current situation regarding the use of Courts 3. Parties’ Viewpoints with regard to the Court System 4. Problems of the Court System 5. Direction of Judicial Reform Chapter II Alternative Dispute Resolution: How Out-of-Court Systems are used as Dispute Resolution Mechanisms 1. Overview of the ADR 2. Current situation regarding the use of ADR 3. Parties’ Viewpoints with regard to ADR 4. Problems of ADR 5. Value in ADR Part–II Study on Dispute Resolution Process in Specific Cases Chapter III Dispute Resolution Process in Consumer Protection 1. Outline of consumers’ cases 2. Organizations/institutions for dispute resolution 3. Fact finding regarding the organizations/institutions 4. Institutional routes from the outbreak to the resolution of disputes 5. Choices of routes for dispute resolutions 6. Case study Chapter IV Dispute Resolution Process in Labour Disputes 1. Outline of labour dispute cases 2. Organizations/institutions for dispute Resolution 3. Fact finding regarding the organizations/Institutions 4. Institutional routes from the outbreak to the resolution of disputes 5. Choices of routes for dispute resolutions 6. Case study Chapter V Dispute Resolution Process in Environment Problems 1. Outline of environmental cases 2. Organizations/institutions for dispute resolution 3. Fact finding regarding the organizations/institutions 4. Institutional routes from the outbreak to the resolution of disputes 5. Choices of routes for dispute resolution 6. Case study Summary Bibliography CHAPTER I COURT SYSTEM: HOW THE COURT SYSTEM IS USED AS DISPUTE RESOLUTION MECHANISM 1. Overview of the Court System in India The Indian Constitution though federal in character provides for unitary judicial system. The Supreme Court is the apex court of the country. It was established on 28 January 1950 and consists of 25 judges apart from the Chief Justice of India.1 All proceedings in the Supreme Court are conducted in English2 and are open to the public.3 The seat of the Supreme Court is in Delhi.4 Except for the chamber, where the judge sits singly, benches of two or more judges hear all matters. Normally five judges hear constitutional matters but in special cases, larger benches are constituted.5 In addition to the judicial autonomy, the Supreme Court has freedom from administrative dependence. In crisis arising out of diverse situations people approach the apex court for relief. Below the Supreme Court, there exists high court for every state / union territory. At present, the country is divided into 29 states and 6 union territories (UT).6 There are 21 high courts in the country, 5 having jurisdiction over more than one state/UT. In few states, due to large geographical area, benches are established outside the principal seat of a high court as shown below: High Courts in India7 Name Year of Territorial Jurisdiction Seat establishment Allahabad 1866 Uttar Pradesh Allahabad (Bench at Lucknow) Andhra 1954 Andhra Pradesh Hyderabad Pradesh Bombay 1862 Maharashtra, Goa, Dadra & Nagar Bombay (Benches at Nagpur, Haveli and Daman & diu Panaji, Goa, Aurangabad and 1 Supreme Court (Number of Judges) Act, 1956, Sec 2. 2 Constitution of India, Art 348. 3 Id., Art 145 (cc). 4 Id., Art 130. 5 Supreme Court Rules 1966, Order VII. 6 http://goidirectory.nic.in/fstateut.htm 7 Supreme Court Bar Association, 50 Years, SC Bar Association, (2000), p. 810. 1 Daman & diu) Calcutta 1862 West Bengal Calcutta (Circuit Bench at Port Blair) Delhi 1966 Delhi Delhi Guwahati 1948 Assam, Manipur, Nagaland, Guwahati (Benches at Kohima, Tripura, Mizoram & Arunachal Aizwal, Imphal, Shilong and Pradesh Agartala) Gujarat 1960 Gujarat Ahmedabad Himachal 1971 Himachal Pradesh Shimla Pradesh Jammu 1928 Jammu & Kashmir Srinagar and Jammu &Kashmir Karnataka 1884 Karnataka Bangalore Kerala 1958 Kerala & Lakshdweep Earnakulam Madhya 1956 Madhya Pradesh Jabalpur (Benches at Gwalior& Pradesh Indore) Madras 1862 Tamil Nadu & Pondicherry Madras Orissa 1948 Orissa Cuttack Patna 1916 Bihar Patna (Bench at Ranchi) Punjab & 1966 Punjab, Haryana, Chandigarh Chandigarh Haryana Rajasthan 1949 Rajasthan Jodhpur ( Bench at Jaipur) Sikkim 1975 Sikkim Gangtok Ranchi 2000 Jharkhand Ranchi Raipur 2000 Chattisgarh Raipur Nainital 2000 Uttaranchal Nainital In the sphere of the states, high courts have wide powers for issuing directions, writs or orders to all persons or authorities (including the governments), falling under their jurisdiction, whether original or appellate, primarily for the enforcement of fundamental rights. 8 The high court exercises administrative, judicial and disciplinary control over the members of the judicial service of the state.9 In addition, it is a court of record.10 Each high court comprises of a Chief Justice and other judges whose number vary from state to state.11 The Constitution of India has conferred on the high courts wide powers to administer justice, administer the lower courts, take necessary action when there is a miscarriage of justice, secure the rights and liberties to the people and among others ensure that the administrative
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