Dispute Redressal Mechanisms and Institutions. Emergence and use of Alternative Dispute Redressal Mechanisms

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Dispute Redressal Mechanisms and Institutions. Emergence and use of Alternative Dispute Redressal Mechanisms.

In a democracy, the citizens make the government and hold it accountable. Government is operated by bureaucracy for whom the rules and regulations are more important than helping the citizens. Also, it tends to keep things secret and department like electricity and water-supply, railways and telephones etc. exercise their own power. Citizens register many complaints against government machinery. The grievances of citizens against government machinery need to be heard and redressed otherwise, citizens will tend to withdraw their loyalty towards it. Hence, democracy sets up appropriate machineries for the redressal of citizen’s grievances.

Objectives

  • Recognise the importance of redressal of public grievances in a democracy;
  • Identify and explain various instruments of redressal of public grievances;
  • Explain the role of Lokpal and Lokayukta;
  • Understand the role and working of Central Vigilance Commission.

Importance of Redressal of Grievances in a Democracy

In a developing country like ours, Government has to perform many functions. The citizens depend on the services provided by various government agencies. To levy rice, wheat and sugar from a ration shop, a citizen has to have a ration card issued by the Government. To obtain a ration card is not very difficult, but the quality of services is far from satisfactory. For most things in life, citizens depend on the services and facilities provided by government agencies.

It is a common experience that the citizens often face difficulties in dealing with government agencies. Too many rules and regulations are there, resulting in unncessary delay. Trains or buses may not run on time. The banks, the hospitals, the police are often not co-operative.

Delay or harassment and unhelpful attitude of government departments and agencies create a bad image of government. At the same time, it has to be accepted that government has to undertake many functions in the interest of the public. The difficulties that the members of the public face in getting services, make the people unhappy and dissatisfied. The poor people suffer most. They badly need government support and services, but they are the ones who are often harassed and turned down. This is obviously bad for the healthy democracy. The average citizen wants sympathetic, courteous and helpful public administration. If there are too many public grievances against the government agencies, corrective measures have to be taken to redress those grievances.

The Administrative Reforms Commission was set up by the Government of India in 1966. On the “Problems of Redress of Citizens’ Grievances”, the commission said the following:

“When the citizen can establish the genuineness of his case, it is plainly the duty of the state to set right the wrong done to him. An institution for redress of grievances must be provided within the democratic system of government. It has to be an institution in which the average citizen will have faith and confidence and through which he will be able to secure quick and inexpensive justice”.

Instruments of Redressal of Grievances

To deal with administrative-corruption and to redress citizens’ grievances, simplification of rules and procedures has been suggested and carried on in practice. Besides these, new institutions have also been recommended and actually set up in many countries.

Created for the redressal of public grievances, the institution of “Ombudsman” is typically Scandinavian. The office of Ombudsman has been in existence in Sweden since 1809 and in Finland since 1919. Denmark introduced the system in 1955. Norway and New Zealand adopted it in 1962, and the United Kingdom appointed the Parliamentary Commissioner for Administration in 1967. Several countries in the world have since adopted the Ombudsman-like institution.

Ombudsman, a Swedish word, stands for an officer appointed by the legislature to handle complaints against administrative and judicial action. As an impartial investigator, the ombudsman makes investigations, gets at the facts objectively, and reports back to the legislature. The complainant has simply to write to the ombudsman appealing against an administrative decision. The ombudsman system has been popular because of its simple and speedy nature. It is a cheap method of handling appeals against administrative decisions.

When a citizen or consumer finds good and service defective he/she can take the shelter of Consumer Protection Act enacted in 1986. The Right to Information Act (RTI) has also been passed by the Parliament of our country to know what has happened in regard to his/ her complaint.

Indian Instrumentation

In India, it has been observed by many committees and commissions that special machinery should be set up to deal with public complaints against the administration. Various institutions exist to redress public grievances. For instance, a citizen can move the court to seek remedy against any wrong done to him by a public servant or a public agency in the course of discharge of public duty: This is called Judicial remedy. Many kinds of administrative tribunals have been set up to provide cheap and speedy justice to the complainant. The Income Tax Appellate Tribunal, Labour Tribunals etc. are instances of this type of institution.

Secondly, Parliamentary procedure provides for opportunities to raise questions in Parliament by the elected representatives concerning their constituencies. Also, there is a Parliamentary Committee called the Committee on Petitions. A citizen may submit petitions to secure redress against an act of injustice. So, even though a distant body, Parliament or State Legislature can take up the cause of an aggrieved citizen.

Thirdly, under the provisions of the Public Servants (Enquiries) Act, departmental as well as public agencies can be instituted against a public servant for his misconduct. Not day-to-day dealing but more serious matter of maladministration come under the purview of this Act.

Fourthly, complaint forums have been set up at different levels to deal with public complaints. For example, in a public bus or in a railway station, there are complaint boxes to receive complaints from public. Consumers Forum is now available to deal with complaints against any supplier of goods and services such as telephone services. Within large public organization such as Railways and Telecommunication etc., there are complaint cells to deal with public complaints.

The government has also created Department of Administrative Reforms and Public Grievances. This is the nodal agency of the government for Administrative Reforms as well as redressal of public grievances.

The enactment of Administrative Tribunal Act 1985 opened a new chapter in the sphere of administrating justice to the aggrieved government servant and in some cases public members.

Lokpal and Lokayukta

The machineries and procedures for handling public grievances, as mentioned above, have been found to be too distant or expensive and time-consuming. They have not been very successful to provide effective redressal of an individual citizens’ grievance against government agencies and political leadership. Against this background, the Administrative Reforms Commission (ARC, 1966) made the following observation:

“We are of the view that the special circumstances relating to our country can be fully met, by providing for two special institutions for the redressal of citizens’ grievances. There should be one authority for dealing with complaints against the administrative acts of ministers or secretaries to government both at the centre and in the states. There should be another authority in each state and the centre for dealing with complaints against the administrative acts of other officials. All these authorities should be independent of the executive as well as the legislature and judiciary”. The ARC called the first authority the Lokpal and the second authority the Lokayukta.

Inspite of several attempts the Lokpal Bill has again and again fallen through in Parliament. It appears that both the Congress; and non-Congress Governments have not been sincere and serious enough about the enactment of the Lokpal Bill despite their public pronouncements to that effect and promise to give to the people a clean administration, There are two fundamental issues involved. Firstly, there is clearly the hidden unwillingness of political leadership to submit themselves for enquiry by an independent authority other than Parliament to which they are already responsible in a parliamentary democracy. Secondly, the functional jurisdiction of the proposed Lokpal is also debatable. Should the Lokpal take up the cases of corruption only or it should also be entrusted with the task of redressing citizens’ grievances in respect of injustice caused by maladministration of officials. The citizen is interested in redressal of his little problems and individual grievances but the existing avenues do not provide him easy, speedy and cheap redressal. Hence, what is needed is an agency, independent of government control, to redress the common grievances of people.

The Lokayukta

Although no institution of Lokpal has yet been established at the Centre, there are states like Maharashtra, Madhya Pradesh, Rajasthan, Karnataka, Bihar, Orissa, Himachal Pradesh and National Capital Territory of Delhi which have appointed Lokayukta for dealing with the public grievances on the lines suggested by the ARC. Maharashtra was the first state to enact such legislation in 1971. The other state legislations were based more or less on the Maharashtra lines which provide the Lokayukta with exclusive powers to look into complaints against state ministers, secretaries and other senior officers. Section 12 of the Himachal Pradesh Lokayukta Act, 1983, provides, “If, after enquiry in respect of a complaint, the Lokayukta is satisfied that all or any of the allegations made in the complaint have or have been substantiated either wholly or partly, he shall, by report in writing, communicate his bindings and recommendations to the competent authority and intimate the complaint and the public servant concerned about his having made the report”. The competent authority examines the report and has to communicate to the lokayukta within a period of three months of the receipt of such report, the action taken thereon. It may be noted that the Lokayukta is only a recommending authority. Its recommendations have no legal sanctity, nor are these binding. The final judgement in respect of the offence lies with the competent government authority.

The Central Vigilance Commission

Being alarmed at increasing rate of corruption; a high-power committee was set up by Government of India in 1962 under the Chairmanship of K. Santhanam. The Santhanam Committee recommended, setting up of Vigilance Commissions at the Centre and in the various States. Vigilance Cells have since been created in several government departments and public sector undertakings. At the highest level there is a Central Vigilance Commission (CVC).

The CVC is headed by the Central Vigilance Commissioner, appointed by the President of India, for a period of six years or until he attains the age of 65 years, whichever is earlier. The Commission’s office is located in the Ministry of Home Affairs having an autonomous status. In addition to the Commissioner, it consists of a Secretary, one Officer on Special Duty, one Chief Technical Commissioner, 3 Commissioners for departmental enquiries, 2 Under Secretaries and 6 Technical Commissioners. Its jurisdiction extends to all employees of the central government and the employees in public undertakings, corporate bodies and other organisations dealing with matters falling within the executive powers of the central government. However, it cannot probe cases of corruption against ministers and members of parliament.

The CVC receives complaints directly from the aggrieved party. It also gathers information about corruption and malpractices or misconduct from other sources such as press reports, audit objections, information through parliamentary debates and other forms etc. The complaints about Central Government employees received by the State Vigilance Commissions are forwarded by them to the CVC. On receiving complaints, the Commission may ask:

(i) The concerned ministry/department to inquire into them;

(ii) The Central Bureau of Investigation (CBI) to make an inquiry; and

(iii) The CBI direction to register a case and conduct an investigation. Prosecution, however, depends on the approval by the appropriate sanctioning authority.

The CVC has laid clown procedures to be followed by the administrative ministries/ departments in the case of complaints received by them. These complaints are to be dealt with by the ministries/departments concerned. The CVC may advise the ministries/ departments in respect of all matters relating to integrity in administration. It may also call for reports, returns or statements from all ministries/departments so as to enable it, to exercise a general check and supervision over vigilance and anti-corruption work in the ministries/departments. It can also take over under its direct control any complaint or case for further action.

Besides these, the CVC has a role to play in the case of the appointment of Chief Vigilance Officer of each ministry/department. The CVC is to be consulted before giving such an appointment. Moreover, the CVC has been empowered to assess the work of the Chief Vigilance Officer. This assessment is recorded in the character rolls of the officers. Finally, all proposals for re-organising or strengthening the Vigilance Organisation by the Chief Vigilance Officers are to be referred to the CVC for scrutiny.

The role of CVC is, however, limited because it is not a statutory commission and has only advisory role. Further, the procedure of investigation is so vexatious that people do not desire to be involved in long and unpleasant proceedings. Thus it has been commented that the Central Vigilance Commission is not at all a substitute for an Ombudsman. As it is constituted, the Commission is virtually an extension of the bureaucratic apparatus of the Central Government and its operations are very much hedged in by the overpowering ministries/departments and the political forces at the Centre.

 

Importance of Redressal: 

Article 21 of the Constitution of India declares in a mandatory tone that ‘no person shall be deprived of his life or his personal liberty except according to procedure established by law. The Right to Speedy Trial has been rightly held to be a part of Right to Life or Personal Liberty by the Supreme Court of India. This liberal interpretation of Article 21 is to redress that mental agony, expense and strain which a person proceeded against in criminal law has to undergo and which, coupled with delay, may result in impairing the capability or ability of the accused to defend himself effectively. Thus, the Supreme Court has held the Right to Speedy Trial a manifestation of fair, just and reasonable procedure enshrined in Article 21.

Before formation of law Courts in India, people were settling the matters of dispute by themselves by mediation. The mediation was normally headed by a person of higher status and respect among the village people and such mediation was called in olden days “Panchayath”. The Panchayath was headed by a person of higher statues, quality and character who deemed to be unbiased by people of the locality, called Village headman and he was assisted by some people of same character or cadre from several castes in the locality. The dispute between individuals and families were heard by the Panchayath and decision given by the Panchayath was to be accepted by the disputants. The main thing that was considered in such Panchayath was the welfare of the disputants as also to retain their relationship smooth.

But in a developing country like India with major economic reforms under way within the framework of the rule of law, strategies for swifter resolution of disputes for lessening the burden on the courts and to provide means for expeditious resolution of disputes, alternative modes of dispute resolution (ADR) came up by establishing facilities for providing settlement of disputes through arbitration, conciliation, mediation and negotiation. In this context the GOI has set up different Dispute Redressal Mechanism to address the problems.

The different mechanisms formed in India are Gram Sabha, Nyaya Panchayat, Lok Adalat, Family Court, Counseling Centers, Commission of Inquiry, Tribunal, Consumer Court, Indian Legislation on ADR, etc.

In essence the system focuses on: Mediation rather than winner take all; Increasing Accessibility to justice and Improving efficiency and reducing court delays.

However, a well-functioning grievance mechanism should:

  • Provides a predictable, transparent, and credible process to all parties, resulting in outcomes that are seen as fair, effective, and lasting.
  • Builds trust as an integral component of broader community relations activities.
  • Enables more systematic identification of emerging issues and trends, facilitating corrective action and preemptive engagement.

 

Alternative Dispute Resolution Mechanisms: 

ADR or “Alternative Dispute Resolution” is an attempt to devise machinery which should be capable of providing an alternative to the conventional methods of resolving disputes. ADR offers to resolve matters of litigants, whether in business causes or otherwise, who are not able to start any process of negotiation and reach any settlement. It has started gaining ground as against litigation and arbitration.

ADR and Constitution

  • ADR first started as a quest to find solutions to the perplexing problem of the ever increasing burden on the courts. It was an attempt made by the legislators and judiciary alike to achieve the “Constitutional goal” of achieving Complete Justice.
  • Alternative Dispute Resolution in India was founded on the Constitutional basis of Articles 14 and 21 which deal with Equality before Law and Right to life and personal liberty respectively.
  • ADR also tries to achieve the Directive Principle of State Policy relating to Equal justice and Free Legal Aid as laid down under Article 39-A of the Constitution.

The acts

  • The Acts which deal with Alternative Dispute Resolution are Arbitration and Conciliation Act, 1996 and the Legal Services Authorities Act, 1987.
  • Section 89 of the Civil Procedure Code, 1908 makes it possible for Arbitration proceedings to take place in accordance with the Acts stated above.

Advantage of Alternate Dispute Resolution:

  • It is less expensive.
  • It is less time consuming.
  • It is free from technicalities as in the case of conducting cases in law Courts.
  • The parties are free to discuss their difference of opinion without any fear of disclosure of this fact before any law Courts.
  • The last but not the least is the fact that parties are having the feeling that there is no losing or winning feeling among the parties by at the same time they are having the feeling that their grievance is redressed and the relationship between the parties is restored.

 

 

 

Legislative recognition of Alternative Dispute Redressal

  • The Legal Services Authorities Act, 1987 brought about the establishment of Lok Adalat System for settlement of disputes cheaply and expeditiously and also in the spirit of compromise by give and take formula.
  • Section 30 of the Arbitration and Conciliation Act, 1996 encourages arbitrators, with the agreement of the parties, to use mediation, conciliation or other procedures at any time during the arbitration proceedings to encourage settlement.
  • Further still, the Civil Procedure Code (Amendment) Act, 1999 carries Section 89 which is designed to enable the courts to bring about a settlement of dispute outside the Court. As and when the Amendment comes to be enforced, the four methods listed in the section and known as court-ordered or court- annexed ADRs would become statutory alternatives to litigation for settlement of disputes and would be legally enforceable
  • It is now made obligatory for the Court to refer the dispute after issues are framed for settlement with the concurrence of the parties either by way of:
    • Arbitration,
    • Conciliation,
    • Judicial settlement including settlement through Lok Adalat, or
    • Mediation

Where the parties fail to get their disputes settled through any of the Alternative Dispute Resolution methods, the suit would come back to proceed further in the Court it was filed.

Justice Malimath Committee Report (1989-90)

The Malimath Committee undertook a comprehensive review of the working of the court system, particularly all aspects of arrears and Law’s delay and made various useful recommendations for reducing litigation and making justice readily accessible to the people at the minimum cost o time and money. It underlined the need for alternative dispute resolution mechanism such as mediation, conciliation, arbitration, Lok Adalats etc. as a viable alternative to the conventional court litigation.

Various Kinds of ADR Mechanism

Arbitration:

Arbitration is the process of hearing and determining of a dispute between parties by persons chosen or agreed to by them. The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay and expense.

Conciliation:

Conciliation is the process of facilitating an amicable settlement between the parties. Unlike the Arbitration there is no determination of a dispute. There need not be a prior agreement and it cannot be forced on a party not intending for conciliation. The proceedings relating to Conciliation are dealt under sections 61 to 81 of Arbitration and Conciliation Act, 1996.

Mediation:

Mediation aims to assist two (or more) disputants in reaching an agreement. The parties themselves determine the conditions of any settlements reached— rather than accepting something imposed by a third party. The disputes may involve (as parties) states, organizations, communities, individuals or other representatives with a vested interest in the outcome. Mediators use appropriate techniques and/or skills to open and/or improve dialogue between disputants, aiming to help the parties reach an agreement (with concrete effects) on the disputed matter.

 

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