Operation Successful, Patient Dead

Arush Khanna writes a short piece on how one should uphold Linclon’s ideals which call for identifying alternate mechanisms of resolution for the various types of disputes in our country and make Dickens picture of litigation a thing of the past.

  • Arush Khanna

“May you be involved in litigation and may you win”

Since joining the Bar and starting my practice at the Delhi High Court in 2012, I have realized that Friday evenings are almost unanimously regarded as the best time of the week. It is a common sight to see lawyers enjoying themselves in the cafeteria after their matters instead of rushing to their respective chambers. This is mainly due to the fact that in litigation, there is nothing known as a weekend since most lawyers prefer to work on the weekends in order to prepare for their matters listed in the following week. However, one Friday, on the 5th day of December 2014, the Delhi High Court witnessed something very unique. For some young lawyers like myself, this was something, which was never seen before.

There was a protest staged by the litigants outside the main front gate of the Delhi High Court against the slow disposal rate of cases by the Courts in Delhi. The protestors were also demanding video recordings of the hearings. I was surprised to learn that some cases have seen 1500 to 1900 Court hearings and are still pending. What was more astonishing was the fact that it would take the Courts in Delhi (includes the High Court and six district Courts) almost 466 years to clear the backlog of cases pending before it. What started of as Friday evening entertainment gradually started to have a chilling effect on my conscience and my perception of our very noble and humane profession.

In light of the abovementioned incident, it would be befitting to introduce this article by expressing the thoughts propounded by Charles Dickens (1812-1870). Dickens, as a young London journalist who reported on Court proceedings, observed that “the one great principle of English law is to make business for itself” and his dark view of the legal system’s approach to dispute resolution is best summarized in his 1852 novel Bleak House, when he wrote,

“Becoming involved in a lawsuit is like ‘being ground to bits in a slow mill; it’s being roasted at a slow fire; it’s being stung to death by a single bee; it’s being drowned by drops; it’s going mad by grains.’ Hundreds and hundreds of people are exposed to such torture each year, some of them actually choosing to initiate the process. They invariably find the experience painful, protracted and expensive. Yet there remains a queue of victims impatient for their turn.”

Dickens version of litigation has been the predominant picture of the kind of dispute resolution that has existed in our country over the past centuries. Since the last 250 years the Anglo – Saxon adversarial system of law has been the primary justice delivery system in India. Post independence, it was the birth of the Constitution of India, which led to widespread awareness for fundamental and individual rights. Subsequently, the establishment of the Parliament and State Legislatures and public sector participation led to the Government becoming a major litigant in India. Further, the economic reforms of 1991 led to an unprecedented explosion in litigation, which was predominantly attributable to the introduction and expansion of private and foreign investment in the Indian economy and mushroom growth of regulators under the new laws.

Today, the countless number of Central and State Legislations and enactments in India has not only on the one hand, created new rights and remedies but also on the other hand, exposed the inadequate infrastructural facilities of our legal system to handle sheer volumes of cases effectively and efficiently. This is the sole reason, why, despite the continual efforts to make litigation a viable and feasible access to justice, the common man still finds himself entrapped in litigation for as long as a lifetime and even beyond. Speedy disposal of cases and delivery of quality justice has become an enduring agenda for all those concerned with the administration of justice. With the passage of time and to reduce the load of our already overburdened Courts, the need to put Alternate Dispute Resolution (ADR) mechanisms in place was realized and steps were taken to offload some cases from the dockets of the Courts.

Easy access to justice to all sections of the society and provisions for legal aid for the poor and needy and dispensation of justice by an independent judiciary within a reasonable time are not only one of the most cherished rights of a civilized society but is also embedded in our Constitution. Article 39A of our Constitution enjoins that the State shall secure the operation of the legal system to promote justice, on the basis of equal opportunity and shall, in particular, provide free legal aid, by suitable legislations or schemes, to ensure that opportunities for securing justice are not denied to any citizen by reasons of economic or other disabilities.

Arbitration has been one of the most widely used mechanisms of ADR. For instance, arbitration is especially helpful for the parties dealing in commercial contracts or government contracts. It is less expensive, time saving and free from procedural hazards and other formalities. Having said that, the said mode has now become comparatively costlier, atleast in the private sector commercial transactions. One other pitfall is that the scope of collateral proceedings being raised in Court under the provisions of the Arbitration and Conciliation Act, 1996 is there at virtually every stage of the arbitration proceedings. Even after the preliminary Award or final Award, parties are entitled to move to the Court for challenge in the same on various grounds thereby providing scope for further litigation. Keeping such shortcomings in mind, it will have to be concluded that arbitration may not be entirely an effective and efficient type of dispute resolution.

The system of administration of justice through “Lok Adalats” (People’s Court) merits to be taken note of. Till very recently, Lok Adalats could only account for noteworthy outcomes in motor accident and cheque bouncing cases. However, since the inception of National Lok Adalatin 2013, the scenario as well as the perception of the people towards this mode of ADR has changed considerably. The inaugural National Lok Adalat held in 2013 disposed off close to 71.5 lac cases. Recently, the National Lok Adalat held in 6th December 2014 dipsosed off a staggering 1.25 crore cases thereby reducing the pendency of cases by an average of 9% across all states.. Three benches of the Hon’ble Supreme Court were also constituted for this purpose, which settled 28 cases before it. The kinds of cases taken up on National Lok Adalat day ranged from family disputes, matrimonial cases, motor accident claims, bank recoveries and petty criminal offences. More than Rs.3,000/- crores were disbursed as compensation towards motor accident claims

One other mode of ADR, namely, the concept of Mediation is of great importance. It may be pertinent to mention here that Mediation is not an innovation of the 20th Century, it is as ancient as the human civilization. However, unfortunately, law journals have carefully chronicled various Court room battles and have hardly reported successful resolution of disputes through Mediation. The fact is that genuine disputes have mostly been resolved by right thinking people through Mediation. It can be said that the turn of the 21st Century has witnessed a pleasant change in the overall approach towards Mediation. It is worth mentioning that numerous codified enactments of this country have endorsed and expounded the ideal of settlement of disputes through ADR. Most prominently, Section 89 of the Code of Civil Procedure (CPC) (Amendment Act, 1999) has provided for the settlement of disputes outside the Court.

The inter-relation and distinction between Section 89 and Order X Rule 1A is best expounded in the landmark case of Afcons Infrastructure Ltd. Vs. Cherial Varkey Construction Co. Pvt. Ltd. (2010-5-L.W. 241 : (2010) 8 SCC 24). In this case the Hon’ble Supreme Court pointed out that Section 89 confers the jurisdiction on the Court to refer a dispute to an ADR process, whereas Rules 1A to 1C of Order X, lays down the manner in which the jurisdiction is to be exercised by the Court. The scheme is that the Court explains the choices available regarding the ADR process to the parties, permits them to opt for a process by consensus, and if there is no consensus, proceeds to choose the process.

Notwithstanding, the importance of the adversarial system in certain types of disputes, it is the need of the hour to look at ways of reducing the confrontational element within it. Keeping this in mind the Hon’ble Supreme Court of India in Afcons Infrastructure (supra) laid down that having regard to their nature, the following categories of cases are normally considered unsuitable for an ADR process.

Notwithstanding, the importance of the adversarial system in certain types of disputes, it is the need of the hour to look at ways of reducing the confrontational element within it. Keeping this in mind the Hon’ble Supreme Court of India in Afcons Infrastructure (supra) laid down that having regard to their nature, the following categories of cases are normally considered unsuitable for an ADR process.

i. Representative Suits under Order I Rule 8 CPC which involve public interest or interest of numerous persons who are not parties before the Court.

ii. Disputes relating to election to public offices.

iii. Cases involving grant of authority by the Court after enquiry, as for example, suits for grant of probate or letters of administration.

iv. Cases involving serious and specific allegations of fraud, fabrication of documents, forgery, impersonation, coercion, etc.

v. Cases requiring protection of Courts, as for example, claims against minors, deities and mentally challenged and suits for declaration of title against the Government.

vi. Cases involving prosecution for criminal offences.

All other suits and cases of civil nature, in particular the following categories of cases (whether pending in civil Courts or other special tribunals/forums) are normally suitable for ADR processes:

i. All cases relating to trade, commerce and contracts, including:

  • disputes arising out of contracts (including all money suits);
  • disputes relating to specific performance;
  • disputes between suppliers and customers;
  • disputes between bankers and customers;
  • disputes between developers/builders and customers;
  • disputes between landlords and tenants/licensor and licensees; and
  • disputes between insurer and insured.

ii. All cases arising from strained or soured relationships, including:

  • disputes relating to matrimonial causes, maintenance, custody of children;
  • disputes relating to partition/division among family members/ coparceners/co-owners; and
  • disputes relating to partnership among partners.

iii. All cases where there is a need for continuation of the pre-existing relationship inspite of the disputes, including:

  • disputes between neighbours (relating to easementary rights, encroachments, nuisance, etc.);
  • disputes between employers and employees; and
  • disputes among members of societies/associations/apartment owners’ associations.

iv. All cases relating to tortious liability, including:

  • claims for compensation in motor accidents/other accidents.

v. All consumer disputes, including:

  • disputes where a trader/supplier/manufacturer/service provider is keen to maintain his business/professional reputation and credibility or product popularity.

It may be pertinent to state that the above enumeration of “suitable” and “unsuitable” categorization of cases is not exhaustive or rigid. These are illustrative, which can be subjected to just exceptions or addition by the Courts/Tribunals exercising their jurisdiction/discretion in referring a dispute/case to an ADR process.

The great Abraham Lincoln (1809-1865), counseled his neighbours and clients “to compromise wherever they can and observed thus:

“Discourage litigation. Persuade your neighbours to compromise wherever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.”

Lawyers have the opportunity to help their clients to choose between Lincoln’s and Dicken’s vision of effective dispute resolution. Perhaps time has come for a new way of looking at conflict resolution and the legal profession- one that will harmonize the ethics of practice, the values of law and the demands of public policy. Let us be wise in our choice, uphold Linclon’s ideals and make Dickens picture of litigation a thing of the past.

ARUSH KHANNA is an Advocate practicing civil and commercial litigation in the Supreme Court of India and the Delhi High Court. He may be reached at