ABSTRACT
The primary objective of this article is to examine the legislative history surrounding Section 89 of the Code of Civil Procedure, specifically by tracing its development or evolution throughout history. ADR has long been a disruptive element within the broader formal legal system in India. An informal process, often an elder or the leader of a small clan, settled conflicts in ancient and medieval times, according to our historical records. Indian epics and folklore are replete with instances of consensual mechanisms employed to resolve disagreements at the local level. The adversarial system of justice, which we later embraced, has proven to be both expensive and time-consuming. The complexities of legal procedures, the technicalities of the law, and the inability of many litigants to afford legal representation waste time. The issue of procrastination in making decisions has led to this prolonged backlog. Delays effectively deny justice. Constitutional assurance currently recognizes the expeditious dispensation of justice as an integral component. The Code of Civil Procedure (CPC) implemented Section 89 to expedite conflict resolution through non-judicial means. Its purpose is to decrease the number of pending cases in court and encourage effective dispute settlement. The provision encompasses a range of alternative dispute resolution (ADR) processes, including arbitration, conciliation, judicial settlement, Lok Adalats settlement, and mediation. The objective is to promote the parties’ willingness to settle their conflicts in a friendly manner, thereby avoiding protracted legal actions. In 1989, the foundation for a robust forum for alternative dispute resolution was laid. After that time, legislators have persistently endeavored, using numerous amendments, to establish a framework that can effectively manage the exponential increase in litigation. The legislative endeavors in question have significantly influenced the development of Section 89 of the CPC. The objective of this article is to establish a connection between the aforementioned amendments and the evolution of the present-day Section 89.
KEYWORDS: Alternative dispute resolution, Section 89 CPC, Negotiation, Mediation
Introduction
Evolution and Purpose of Section 89 CPC
The swift arm of justice was never known to fail; the gaol supplied the gallows; the gallows thinning the gaol; and the Sages of the Law subtly devised numerous precautionary measures with the intent of awe-inspiring the rogues. According to John W. Smith,
Old Chinese proverb: May your lifetime be filled with intriguing circumstances. Undoubtedly, we are currently residing in circumstances of great fascination. Alternative Dispute Resolution has fundamentally changed the way we approach disputes by introducing an additional forum to the dispute resolution mechanism.
Abraham Lincoln eloquently described the philosophy underlying alternative dispute resolution systems: whenever possible, discourage litigation and convince your neighbors to reach a compromise. It is important to illustrate that the typical victor often incurs losses in terms of expenses, labor, fees, and costs. We cannot and should not attempt to halt the influx of cases. Closing the doorways of justice is both impossible and imperative. Two methods exist for augmenting the outflow. We can enhance the capacity of the existing system both quantitatively and qualitatively.
Furthermore, we may discover some additional venues. Court overcrowding, insufficient personnel and resources, and the resulting delays, expenses, rigidity of procedure, and absence of participatory roles all contribute to the necessity of exploring alternative options, approaches, and avenues. One such alternative is identified as a positive framework for alternative dispute resolution methodologies.
For an extended period, ADR has served as a component of India’s formal legal system. During the ancient and medieval periods, a neutral third party, either an elderly person or the chief of a village clan, arbitrated disputes informally.
Indigo epics and folklore are replete with illustrations of consensual processes employed to resolve conflicts at the local level. We later adopted an adversarial system of justice, which has proven to be “expensive and time-consuming.” Procedural disputes, legal complexities, and the incapacity of a significant number of litigants to retain legal representation all consume time. Due to the issue of delayed decision-making, this lengthy pendency has developed. The proverb asserts that delaying justice is tantamount to denying it. We now recognize expeditious justice as a constitutional guarantee.
Section 89 of the Code of Civil Procedure (CPC) integrates judicial and non-judicial mechanisms to expedite dispute resolution, minimize expenses, and lessen the burden on the courts. Arbitration, conciliation, judicial settlement, and mediation are some of the possibilities that are available under this system, which was developed to facilitate the promotion of amicable agreements without the interference of the court.
Initially adopted in 1989, the system underwent a period of abolishment before its resuscitation in 1999, thereby expanding its jurisdiction beyond arbitration. The modifications came into effect on July 1, 2002, providing rules for the use of alternative conflict resolution procedures. These rules ensure that these methods are enforceable in the same manner as court proceedings. The Court Fees Act underwent a further amendment to facilitate fee refunds in cases referred to alternative resolution modalities, as per Section 89.
The case of Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd. clarified the legally enforceable nature of arbitral awards and settlement agreements by clarifying alternative dispute resolution (ADR), particularly arbitration. In general, the purpose of these legislative amendments is to simplify the process of conflict resolution by providing parties with a more expedient and economical alternative to the conventional method of litigation.
Challenges and Criticisms of Section 89 CPC:
The practical effectiveness of Section 89 has been criticized, even though it was created with good intentions. It has been argued by many legal experts that the clause is a “paper tigress” because it does not contain any thorough recommendations or actual implementation strategies. People have brought attention to the fact that there is a requirement for operational frameworks that are more transparent and processes that are enhanced to guarantee that the provision is effective in reducing court backlogs.
The operational effectiveness and implementation of Section 89 of the Code of Civil Procedure (CPC) are the primary focal points of the issues and critiques that surround this section of the civil procedure code. The provided sources highlight the following key points that shed light on the challenges and criticisms of Section 89 of the CPC:
1. A Lack of Comprehensive Rules: Some people believe that Section 89 does not have any rules that are both clear and comprehensive for its practical execution, which might lead to uncertainty and difficulties in its application. The absence of detailed operational structures has raised concerns about the provision’s effectiveness in reducing court backlogs and promoting speedy dispute resolution.
2. Operational Ambiguity: Critics have criticized Section 89 for its operational ambiguity, which has hindered its effective application in resolving conflicts outside of formal court proceedings. The absence of precise instructions for utilizing the clause has led to uncertainty among legal practitioners and parties involved in disputes.
3. Insufficient Clarity Regarding Alternative Dispute: Insufficient Clarity on Alternative Dispute Resolution Procedures: Critics argue that the clause fails to adhere to the fundamental principles and practices of alternative dispute resolution (ADR). For instance, critics view the definitions of “judicial settlement” and “mediation” in Section 89(2) as inapplicable and against the established principles of alternative dispute resolution (ADR), leading to confusion and impeding efficient resolution.
4. Procedural Challenges: Controversy surrounds Section 89: as it mandates the court to establish settlement conditions before initiating alternative dispute resolution proceedings. delays and undermines the time-saving benefits of ADR mechanisms. Because of this procedural constraint, the process of conflict resolution may be less flexible and less efficient than it otherwise would be.
5. Need for Written Guidelines: Critics have brought attention to the fact that there are no written guidelines for the practical application of Section 89 of the Criminal Procedure Code. They have emphasized the significance of having rules that are both explicit and structured to guarantee that the execution is both consistent and effective.
One of the major points of dispute has been the absence of precise instructions for the appropriate utilization of the primary sources of issues and critiques surrounding this section. Including the operational ambiguity of Section 89 of the Criminal Procedure Code, the lack of comprehensive guidance, procedural limits, and incompatibilities with established alternative dispute resolution techniques.
Arbitration, known as the Additional Dispute Resolution
In India, disputes are typically settled through recourse to courts, mediation by elders, adjudication within joint families or certain communities, the Panchayat system, Lok Adalats under the Legal Services Authorities Act of 1987, or by seeking assistance from a neutral third party. This assistance, termed ‘Third Party help’, involves an impartial third party chosen by the disputants, operating within legal frameworks. ADR, comprising mediation, conciliation, and arbitration, functions as a supplementary mechanism to the conventional court system, hence aptly termed the ‘Additional Dispute Resolution System’. It particularly proves beneficial in resolving family disputes, contractual conflicts, motor accident claims, neighborly disputes, and various civil and minor criminal cases, which contribute significantly to the backlog of pending litigation. Recognizing the imperative for swift and just outcomes, efforts by the Indian legislature to enact and refine ADR laws are aimed at alleviating delays and making litigation more accessible to the general populace.
Section 89 of CPC: The Welcome Edition
An attempt has been made to ensure that all of the cases that are brought before the court do not necessarily have to be determined by the court itself by introducing Section 89 of the Criminal Procedure Code. When one considers the delays that are caused by the law as well as the limited number of available judges, it has become necessary to make use of alternative dispute resolution mechanisms to put a stop to the litigation that is taking place between the parties at any point in time.
According to section 89 of the CPC, the alternative dispute resolution process that is intended is arbitration, conciliation, or judicial settlement, which may also include settlement through Lok Adalat or mediation.
The term “third-party help” refers to the assistance of an impartial third party who is chosen by the parties involved in the dispute and who acts under the law and its parameters. It is possible to seek assistance from a third party through the processes of mediation, conciliation, or arbitration. At the end of the day, this alternative dispute resolution system functions as a supplement to the traditional court structure. ‘Additional Dispute Resolution System’ is a more appropriate name for Alternate Dispute Resolution than any other terminology.
According to Section 89 of the Civil Procedure Code, the Welcome Addition Alternative Dispute Resolution (ADR) has been so effective that in certain countries, such as the United States of America, more than ninety percent of the cases are settled outside of court. There is a legal obligation that the parties to the claim must designate the form of alternative dispute resolution (ADR) that they would like to turn to while the trial of the suit is still pending. A comparable set of measures has been implemented by introducing a new section 89 and rules 1-A, 1-B, and 1-C in order X of the Code of Civil Procedure. These rules and sections provide for the mandatory resolution of disputes through alternative dispute resolution.
The provision known as Section 89 of the CPC is a relatively new one. Even though arbitration and conciliation have been in existence as a means of resolving disputes, this has not resulted in a reduction in the workload of the courts.
In Salem Advocate Bar Association, T.N. vs. Union of India, the Supreme Court of India observed that mechanisms need to be developed for how section 89 of the Code of Criminal Procedure and, for that matter, the other sections that have been adopted by way of modifications, may have to be in effect. A committee was established by the Supreme Court to guarantee that the adjustments that were made would be successful and would result in the administration of justice being completed more quickly. Section 89 is a vital part of the Code of Civil Procedure which acts as an effective method to resolve disputes between parties through various ways of resolving the same. The Section thrives to reduce the burden of the court by ensuring that a compromise is arrived at between parties. Alternate Dispute Resolution is a means of increasing access to justice without decreasing the quality of justice.
Conclusion
ADR cannot serve as a universal remedy for all legal disputes. It is not suitable for every case, particularly issues such as admitted liability, divorce, or probate matters, which cannot be referred to arbitration. ADR is only appropriate when there is no statutory prohibition and both parties agree to it. Courts invoking Section 89 of the CPC must exercise caution in this regard.
The effective implementation of ADR faces several challenges, including:
The pivotal role of lawyers and judges
Inadequate infrastructural facilities
Lack of awareness and legal literacy
Moreover, it is often argued that arbitration can be more expensive than traditional litigation. Therefore, it is crucial to ensure that arbitration and conciliation remain cost-effective and deliver high-quality results. The quality of ADR is dependent on the competence of the facilitators. The Arbitration and Conciliation Act provides for judicial intervention when necessary to prevent misuse and ensure justice is served.
Adopting ADR methods can help mitigate the shortcomings of the current legal system. The future of India’s legal landscape relies on efficient, cost-effective, and time-saving Alternative Dispute Resolution mechanisms. Alternative Dispute Resolution (ADR) is not just about Arbitration it engulfs in itself various modes which are different from litigation but solve the same purpose that is ‘provide justice’ but in a speedier and an efficient manner. Section 89 of the Code of Civil Procedure, 1908 which was introduced by the Act of 1999 and came into effect from 01/07/2002, embodies the legislative mandate to the court to refer civil disputes to various ADR mechanisms mentioned in the Section where it finds it appropriate to do so.
Author: Shradha Suman Rath
Christ Deemed to be University Bangalore Karnataka
