By Shubhankar Barnwal, 3rd Year, at ICFAI University, Dehradun.
While the whole world fights the pandemic following the norms of the respective governments, the nation's judicial system suffers the most. In this crawling time, an emergency is all you are allowed for. But it is not the same for the judicial system. How can a court decide which case is an emergency and which is not? Who can survive without the Court's aid and who cannot?
Recently in Calcutta High Court, the Judge dismissed a suit stating that the case was not an urgent matter and it can be postponed post-COVID period. The lawyer in return mocked the Calcutta High Court for defining its urgency, "How do we define the urgency of matters? Receiving a certain amount of money to be able to pay the not so privileged staff/laborers is a sense of urgency, in my opinion. To receive this duly payable money, you may have to drag parties to the Court, which might not find your relief urgent enough to hear you“ and had to face contempt of court trial.
For such situations, the Alternative methods for resolution of disputes are very beneficial without bothering the courts. Resolution of Disputes through courts, tribunals, and Government is a tricky job for all the organizations working in national or international spaces, having an interest in the nation. Stakeholders having business in India prefer more hassle-free resolution of disputes which can be achieved through mediation, arbitration on an Online platform. The dependency on courts is not preferable for the parties as the conclusion they want can be achieved through an Arbitrator or a Mediator. All they have to do is to convey their issues and differences to the middle man and then a mid-way is paved out by the efforts of all three parties.
ODR is a boon for organizations operating overseas and having business in several countries. These organizations may have their customer base or employee base in other countries as well. In such a situation, dispute arising through customers or employers is quite common. As these organizations may not be well versed with all the laws of all the countries, the ODR serves as an advantage to such organizations and provides a platform and various means through which disputes can be solved. Courts and Governments are not involved in such informal processes which makes this a very cost and time effective procedure. In ODR techniques, the parties at dispute need not to look into the laws of the nation and check for jurisdiction; as the agenda is to get a solution to the dispute and not a lawful remedy given under laws or legislation. Thus, ODR serves the best purpose for parties in such a situation.
The present Indian judicial system demands for limiting the roles of Traditional Courts and to promote the ODR techniques so that their benefits could reach the parties. The Indian judicial system should allow the parties to have a consensual and peaceful settlement of their disputes rather than dragging the matter in the Courts. It helps more in civil suits of family matter where the parties at dispute are the family members. Rather than diminishing the dignity of the family in the society through court proceedings, we all know how ugly a case may become when in a court, here ODR solves the purpose.
The utilization of ADR strategies empowers families to determine questions without being truly present in the workplace of an Arbitrator or Conciliator. Online stages encouraging goals can be integral assets to settle wedding questions. The facts confirm that we are presently embracing the strategies for e-petitioning for moving towards the courts and so on, however, we additionally need a necessary referral of family questions to ODR (after the e-documenting is finished.)
In ODR, parties needn't bother to have more than one cell phone. They need to give a rundown of purposes of difference/issues on the web, and the conciliator can recommend a solution to the differences. Other than including secrecy in the process to ensure the protection of the gatherings, this basic strategy disposes of superfluous bothers and diminish mental stress brought about by protracted meetings and the frequently tacky experience of head-to-head encounter with the other party face to face.
Today, the Judicial System of India is one of the most burdened systems in the world. As of April 2018, over three crore cases were pending in Supreme Court, High courts, and the Subordinate courts jointly. Therefore, increasing more loads on the judiciary through cases that can be settled without the expertise and interference of courts has to be slowed down. It is the need of the hour that the ODR is mainstreamed through new legislations rather than traditional proceedings.The Supreme Court of India has always played an active role in promoting ODR. The SC once quoted sharing of evidence over video conferencing as “virtual reality the actual reality" and upheld the validity of Videoconferencing as a method of giving testimony of witnesses and submitting evidence.[1]
In cases like Shakti Bhog v Kola Shipping[2] and Trimex International v Vedanta Aluminium Ltd.[3] Where the court has recognized the online Arbitration (e-Arbitration) agreement valid until it is in parlance with the Provisions of IT Act, 2008 and Arbitration and Conciliation Act, 1996. Those provisions are sections 4 & 5 of the IT Act along to be read with Section 65B of The Indian Evidence Act, 1872. The concurrent development to incorporate innovation in dispute resolution and dependence on ADR components is a reasonable marker that India is outfitting itself to coherently progress towards ODR.
Even the S.A.Bobde, CJ. in history, has iterated the requirement for settling on mediation compulsorily while perceiving the numerous advantages of such an arrangement of dispute resolution. He has likewise accentuated the need to have international arbitration and Artificial Intelligence ("AI") as the main option in contrast to the current scenario.[4] Even also in this pandemic of COVID-19, Justice Bobde has appealed the subordinate courts to go digital so that the High Courts and Apex Court are not shut down[5].
In this manner, the stage is by all accounts set, partially determined by the COVID-19 actuated earnestness, for ODR to take off as one of the fundamental methods of dispute resolution in India. Recently, NITI Aayog, in relationship with Agami and Omidyar Network India, composed a gathering on 'Catalyzing Online Dispute Resolution in India' where it brought together key partners to work cooperatively to guarantee endeavors are taken to scale online dispute resolution in India.[6]
[1]State of Maharashtra v Praful Desai (2003) 4 SCC 601 [2]Shakti Bhog v Kola Shipping, Delhi HC, 194 of 2009 [3]Trimex International v Vedanta Aluminium Ltd,(2010) 1 scale 574 [4]115 PTI, ‘CJI Bobde bats for law containing compulsory ‘pre-litigation mediation’ (The Week, 08 February 2020) https://www.theweek.in/news/india/2020/02/08/cji-bobde-bats-for-law-containing-compulsory-pre-litigation-mediation.html accessed 6th Sept 2020 [5] PTI, ‘CJI rules out total shutdown of Supreme Court amid coronavirus threat’ (Livemint, 16 May 2020) https://www.livemint.com/news/india/cji-rules-out-total-shutdown-of-supreme-court-amid-coronavirus-threat-11584300621602.html, accessed 6th Sept 2020 [6] NITI Ayog and others, ‘Catalysing Online Dispute Resolution in India’ (NITI Ayog, 12 June 2020)
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