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BOMBAY HC ASKS POLICE TO PROVIDE PROTECTION AFTER ILLEGAL HAWKERS STOP HOMELESS SHELTER WORK IN DADAR.

On Tuesday the High Court of Bombay has passed an order to Shivaji Park police for allowing protection for the continuing construction of a shelter for homeless people in Dadar area has been closed by the anti social elements are the hawkers.

The intervention was required after the construction work which was carried by Shiv Sneh Samajik Pratisthan, a Non-Governmental organization was halted due to hawker assaulting the representatives of the charitable body along with labour hired by them.

The Pratisthan then filed a petition in the HC when the police at Shivaji Park declined to supply police protection. The NGO said that the protection was not given even after the civic officials had demanded to the police officials concerned.

About this, the unmistakable advocates for the NGO, Madhav V Thorat stated that the NGO chanced on a news report of the supreme court directing municipal corporations across the country to establish night shelters for homeless people and as a result, the NGO carried an independent survey and met BMC to provide a plan to build, fund & run a shelter for the homeless in Dadar free of charge.

Consequently, since the Apex Court order had made it compulsory for the BMC to establish shelters, the civic body considered the proposal from NGO & on January 15, 2024 issued work order to make the petitioner body functional under Keshavsut flyover near Flower Market, Dadar West.

However, Thorat said that they stopped the demolition work when the representatives of the NGO used labourers to go to the site, the act provoked illegal hawking merchants to abuse and even attack them. He stated that the police at the Shivaji Park police station rejection The NGO thereafter the civic officials urged the police officials to provide police protection for the event but the request amounted to nothing.

Before the Court, the police, however, took a stand that they were unable to provide police force because of the Lok Sabha elections & assured the court that the necessary police force would be deployed at the site on payment of fees for the police protection.

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WRITTEN BY: ABHISHEK SINGH

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CONCERNS REGARDING THE MINISTRY OF HOME AFFAIRS IN COMPLIANCE WITH BNSS, THE SOP FOR AUDIO-VIDEO RECORDING AT CRIME SCENES.

Under the new criminal procedure legislation, known as Bharatiya Nagarik Suraksha Sanhita (BNSS), the Ministry of Home Affairs has released a Standard of Procedure for the audio and video recording of crime scenes as suggested guidelines.

To meet their immediate need for a handholding document, field practitioners participated in extensive brainstorming sessions that resulted in the preparation of the SOP. In order to guarantee the admission of crime scene photos and videos in a court of law, it serves as a guideline for the functional and operational aspects of the field.

The technical elements, such as the contents, analysis, and photos obtained by forensic specialists, are only superficial and not thoroughly covered.

It has now been made clear that the SOP is a set of recommended guidelines that are shared for use by law enforcement and police units in states and central organizations. However, the states and central police organizations are free to expand upon this basic structure in accordance with their unique requirements and the need for special acts that are dependent on these procedural laws.

KEY HIGHLIGHTS OF THE SOP:

The two parts of the Standard Operating Procedure (SOP) are the Standing Operating Procedure for Videography in Investigative Compliance & Seizure of Electronic and Digital Devices Found as Part of Investigation and General Police Procedures for Videography.

  1. For the public to have faith in the police to accurately and truthfully document and preserve crime scenes, they need to be equipped with basic technology and the right training.

  1. By abiding by the general guidelines provided, state units and central police organizations will improve the environment of evidence gathering through audio-video recording.

  1. The investigating officer should follow a systematic procedure while entering the crime scene to ensure that no important evidence is overlooked.

  1. Independent witnesses, who could or might not be government representatives, will be present during the search. When conducting a search, police officers may also be mentioned as witnesses if no witnesses are present. The witnesses who are also known as Panch Witnesses are required to sign the seizure memo.

  1. Because they are admissible evidence, seizure memoranda pertaining to objects that were collected at the accused’s request should be properly drafted.

  1. For official criminal investigation purposes, only digital cameras and audio video recorders that have been approved and provided by the department may be utilized.

  1. There must be no breaks during the whole filming of the show. Additionally, it is mandatory for all members of the first responder or forensic teams to remain silent and refrain from talking during the videography process to prevent the defense from using it to undermine the integrity of the investigation. The same is anticipated of the in attendance witnesses.

  1. The officer in charge of the police station must provide the following: video recordings of crime scenes, records of searches and seizures, information relevant to cases that qualify for a formal complaint (FIR), and orders on the custody and disposal of property.

  1. Both the handler (or manager) and an expert must certify each audio-video recording made as part of procedural compliance, investigative compliance, and the seizure of pertinent digital evidence.

  1. As required by the New Criminal Laws, the states must provide for the additional needs of police stations regarding audio-video recording. These needs include a dedicated desktop for the Evidence Specialist, Data Manager, Information Assistant, and First Responders; a vehicle specifically designed to transport digital forensic experts and first responders to the crime scene; a room specifically designated for forensic teams and first responders; and storage facilities at data centers for parallel storage.

  1. Many central and state units have previously built an Android, iOS, or MS-based program that is backed by a web application. However, with the introduction of the New Criminal Laws, NCRB is now introducing a cloud-based audio/video recording application through “e-Sakshya” that will be integrated with CCTNS-2.0.

  1. The eSakshya Platform integration will be mandatory for states.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal falls into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

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SUPREME COURT GIVES ACTIVIST MAHESH RAUT INTERIM BAIL IN THE BHIMA-KOREGAON CASE.

Mahesh Raut, an activist and one of the defendants in the Bhima-Koregaon case, was recently granted interim release by the Supreme Court for two weeks so that he could attend rites when his grandmother passed away.

Raut was granted temporary bail by a vacation bench consisting of Justices Vikram Nath and SVN Bhatti from June 26 to July 10.The bench mandated Raut’s unconditional surrender on July 10. It further stated that the Special NIA court’s terms and conditions will apply to the interim bail.

“Taking into account the facts and circumstances, the length of Raut’s previous incarceration, and the nature of the request, we are inclined to give interim bail of two weeks to the applicant, which may begin on June 26 and expire on July 10. The NIA Special Court will specify the conditions of release. NIA may ask the trial court to set strict requirements. The judgement from the highest court said that the petitioner must surrender on July 10.

The 33-year-old Raut’s request for temporary release was rejected by the National Investigation Agency (NIA). Raut’s attorney informed the supreme court on the final day of the trial that he was pleading for an interim release so he could go to Gadchiroli to attend funeral rites following the passing of his grandmother.

The Bombay High Court’s September 21 ruling allowing Raut, who was detained in June 2018 and is now being held in judicial custody at the Taloja jail, bail was challenged by NIA, and the supreme court granted the stay. Prosecution claims that comments made during the gathering, which was reportedly sponsored by the CPI(M), a banned terror organisation, were provocative and inflammatory, and that this ultimately resulted in violence in Koregaon Bhima hamlet, close to Pune, in 2018.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal falls into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

WRITTEN BY: ABHISHEK SINGH

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Introduction to “One Nation, One Election”: Constitutional and Legal Issues Related to This Policy

Abstract

The One Nation One Election is a concept advocating for synchronizing the electoral cycles of different government levels in a country. It aims to create a more efficient and focused electoral system by aligning the schedules of parliamentary, state, and local elections. The Union Government formed a ‘High-Level Committee on One Nation, One Election’ in September 2023, chaired by former President Ramnath Kovind. The committee has been in discussions with national and state-level political parties, gathering input from the public and jurists. However, concerns have been raised about the potential impact on India’s democratic framework and federal structure.[1]

This article explores the background, necessity, benefits, challenges, stakeholder criticism, and the future of the One Nation One Election.

What is One Nation One Election?

The concept of “One Nation-One Election” refers to the arrangement of the Indian electoral system so that the State Legislative Assemblies and the Lok Sabha elections are held on the same day. Under such a system, voters often cast their ballots for both the State Assembly and the Lok-Sabha on the same day and at the same time. Furthermore, this simultaneous election does not entail that state assemblies and the Lok Sabha must be held on the same day nationwide. Voting for the state assembly and Lok Sabha is done on the same day in a phased manner that mirrors the electorate’s long-standing custom in a particular seat.[2] Over the last several days, the national conversation around the idea of “One Nation—One Election” has gained more traction. What this term means is the question that therefore emerges. The idea of “One Nation-One Election” stipulates that elections for the Lok Sabha and State Legislatures must be held concurrently. The term “One Nation One Election” (ONOE) is a theory that supports conducting all national and subnational elections in a nation at the same time, usually within a certain date. Its goals include cutting expenses, streamlining the election process, and maybe raising voter turnout. It does, however, also bring up questions regarding practical difficulties, possible political scheming, and the effect on regional problems. One nation one election committee is a high level committee constituted by the government under the chairpersonship of Shri Ram Nath Kovind, former President of India.

Background on One Nation One Election

Elections for both the state assemblies and the Lok Sabha were held concurrently soon after independence. For the elections of 1952, 1957, 1962, and 1967, this was accurate. However, this was abandoned because, for a variety of reasons, certain state legislative assemblies were dissolved early in 1968–69.

At the moment, separate elections are held for the Lok Sabha and state assemblies. That is, when the legislature is dissolved or the five-year tenure of the existing administration expires. There is no guarantee that the periods of the Lok Sabha and Legislative Assemblies will coincide. For example, elections were held in Rajasthan at the end of 2018, but not in Tamil Nadu until 2021. [3]

An average year has between five and seven assembly elections. The electoral commission recommended creating a structure to allow for simultaneous elections for the state legislature and Lok Sabha because of the issues it causes.

Additionally, the Law Commission of 1999, led by Justice Reddy, suggested returning to simultaneous elections. The parliamentary standing committee’s 79th report from 2015 reaffirmed its support for simultaneous elections.[4]

Prime Minister Modi brought up the concept of simultaneous elections once more in 2016. The ruling Bharatiya Janata Party has since made a compelling case for holding simultaneous elections.[5]

 

History of Elections implementation in India

The greatest democratic nation in the world is not new to the idea of “simultaneous elections.” Prior to the Indian Constitution’s current election regulations being amended, this exercise was standard procedure in India. 1968, 1969, and 1970 saw the dissolution of legislative assemblies following the separately held elections for amendments. Rethinking the “One Nation-One Election” was suggested by the Electoral Commission in 1983. [6]Though it was stated in the Law Commission Report, the BJP’s introduction of it in its 2014 manifesto accelerated the process of reconsideration. They were the norm until 1967. Elections to state assemblies and the parliament were held in 1968 and 1969, and the Lok Sabha met separately in December 1970. Kerala broke this cycle by reorganizing elections in July 1969.[7] It occurred when the Communist EMS Namboodiripad administration was overthrown by Indian Prime Minister Jawaharlal Nehru, who was then in office, using Article 356. Despite the lack of evidence to support this constitutional framework, Shri Narendra Modi put up the concept once more and requested that the NITI Aayog come up with some organic ways to lessen the effects and expedite the implementation process. As a result, in 2017, NITI Ayog created a working paper on the subject. The Law Commission’s working paper that followed made several suggestions and illustrated some positive aspects. The enactment of this bill would require the support of these suggestions. Despite receiving strong support from some political parties, the objections caused this concept to lose steam. [8]

Constitutional and Legal Challenges Related to One Nation One Election

Election reform—that is, holding simultaneous elections—may have a number of advantages, but achieving it would involve a number of legislative and constitutional changes.

  • It has been stated by the Law Commission that concurrent elections are inappropriate under the current constitutional structure. This calls for a number of changes to the state legislative assemblies’ and the Lok Sabha’s rules of procedure, as well as to the representation of the People Act of 1951 and the constitution.
  • A minimum of 50% of state legislative assemblies will need to accept constitutional modifications, according to the law commission.
  • This would necessitate a constitutional modification since the terms of these legislative assemblies must be either extended or shortened due to the random nature of the elections to multiple legislative assemblies.[9]
  • The tenure of the Lok Sabha, or state legislature, may be shortened if a no-confidence vote is approved. It will be necessary to make the necessary constitutional adjustments in order to replace the vote of no confidence with a constructive vote of no confidence, as suggested by the law commission. Only in this situation is it conceivable to overthrow the current administration if one cannot be replaced.[10]
  • There is also a chance of re-elections in the event of a hung legislature, which would alter the term and complicate concurrent elections. The Law Commission proposes amending the Constitution so that any new legislative assembly or Lok Sabha created in the middle of the term will only exist for the duration of the earlier session.

There are a number of additional difficulties with the Indian local government elections:

  • Since these elections are state-related, national control over them is not possible.
  • The state election commission now oversees these elections; a further constitutional amendment will be necessary to transfer the administration of these elections to a simultaneous body. [11]

An additional obstacle to the adoption of simultaneous elections is the lengthening or shortening of the terms now held by the participating parties in the Assembly. Articles 83(2) and 172(1) of the Indian Constitution specify the terms of the State Assemblies and the House of People. According to the Articles, the President, the State Governors, and the elected parties will dissolve the parties after five years, “unless sooner.” A private member’s bill proposing changes to Articles 356, 83, and 172 of the Constitution was introduced before the Lok Sabha.

In a similar vein, a second bill to amend the Constitution was presented to the Council of States in order to explore and determine whether simultaneous elections would be possible. The bill made clear how Articles 83 and 172 of the Constitution need to be amended. The aforementioned modifications will play a crucial role in ensuring that elections for the House of People or State Legislative Assemblies are held at the same time. Although the language “unless sooner dissolved” in the Constitution permits tenure reductions on a voluntary basis, an amendment to the Constitution is the only way to extend the duration.

Apart from the previously mentioned, there is no provision in the Constitution for the state assemblies’ term extensions. Article 356 addresses the President’s authority in the state and is activated in the event that a state’s constitutional machinery malfunctions. Sadly, this framework cannot be utilized as a tool to achieve election synchronization, and Article 172 of the Constitution would need to be amended. In a similar vein, the article may also include a new section that would allow for the desired synchronization of elections between the state legislative assemblies.[12]

This alternative approach may necessitate a slight extension or reduction in the tenure of several state assemblies, so it may be appropriate to amend the provisions found in Articles 174(1) and 85(1) of the Constitution under sections 14 and 15 of the Representation of People Act, 1951.

Pros of One Nation One Election :

Model code of conduct: After one election, there will be less time for the model code and more time for the legislators to talk about issues pertaining to policy.

Easy-to-use approach: Because every government employee may be employed at once, this can also aid in boosting awareness and lowering elements like booth capturing, black money, etc.

Lessen the impact on the service industry: The voting process involves more than one crore government workers, many of whom are teachers. It will aid in putting an end to this threat.

Benefits for tenure completion: It will guarantee that the Lok Sabha serves out the full five-year term that the Constitution intended.

Fostering policy formation: A solitary electoral procedure would offer sufficient duration to concentrate on formulating policies, devoid of the stress of securing or forfeiting votes.

Reducing vices: The numerous elections that take place virtually annually are the root of casteism, communalism, corruption, and bias. One nation, one election is a concept that may help to  resolve this issue.

Concerns about security: Election-related tasks sometimes need the diversion of security troops. Solving this issue can be aided by one nation, one election. Moreover, PM Modi stated, “There is a lot of security and police work done in this country, but they are stuck with election work.”[13]

Temporal necessity: Given that KC Tyagi of the Janata Dal (United), which governs Bihar with BJP backing, stated, “I don’t see this as a BJP programme,” it is clear from his comments. “We are reforming national elections with this.”[14]

 

Increases responsibility:In addition to increasing accountability, the regular election cycle keeps politicians alert. According to the prime minister, the nation suffers because politicians manage our government and compete in elections, splitting their energies. Consider myself; I do need to be aware of the next elections. I could focus better if they weren’t around.[15]

Preserving time: Our legislators spend a lot of time blaming and slandering each other, time that could be better spent elsewhere. The general public would also find it more efficient to cast both ballots at once.

Saving money: Since parties won’t be spending as much money on individual campaigns, it will help keep election costs down. For example, Prime Minister Modi mentioned the amount spent on elections, stating that Rs 4,000 crore was spent on the 2014 contest and Rs 1,100 crore on the 2009 one.

Beneficial for foreign residents: If foreign residents want to participate in the election, they will have the chance to cast ballots in all elections simultaneously, which will be beneficial for them.

Greater emphasis on development: Politicians spend half the year formulating plans for the next election. It will assist the Center’s senior leaders in abstaining from campaigning, which frequently means sacrificing their ministerial responsibilities. “Political party groups form the government, and they have to run for office again if there are elections in five years,” stated Haryana Chief Minister Mr. Manohar Lal Khattar. [16]

Cons of One Nation One Election

Constitutional amendments: The Indian constitution has to be amended extensively in order to allow for simultaneous elections at both levels.

Decreased communication between governmental officials: Reducing the frequency of elections would result in them being inactive or less active for the remainder of the term.

Different terms: In order to organize simultaneous elections, the center will need to convince certain states to agree to shorten their house of representatives’ tenure while extending those of others.[17]

Not a simple process: There might not be enough security or administrative personnel to handle the process.

Mixing up the national concerns: Holding both elections concurrently will also result in the national problems being confused with the state issues.

Mutual consensus: Obtaining political unanimity from all sides is the primary challenge with simultaneous polling.

Voter behavior: “There is unmistakable empirical evidence that, in simultaneous elections for the Centre and States, the majority of Indian voters choose the same party, with the relationship diminishing as elections are held farther away.” [18]

Political autonomy: It will have an impact on the state’s political autonomy.

Similar parties rule both at the state and federal levels: Similar governments may be elected at both levels, as was the case in the elections of 1952, 1957, and 1962.

Agreement among the regional parties: Due to the fact that people typically support the same party in both state and federal elections, could they be held simultaneously at both levels.[19]

CONCLUSION

The idea of “One India, One Election” is commendable, but it needs to be carefully considered whether or not it would actually make things better. Ultimately, however, we have seen that it was not followed when the 2019 general election was announced. If the laws and regulations are properly followed, accounting for the growing demand for competent administrative staff and security, it might be a significant improvement to the Indian election system. According to the standing committee, there should be ways to lessen the number of elections held in India so that the electoral commission and other government agencies have more time for other administrative tasks. Still, it might not be feasible to proceed with this configuration right now.

In order to avoid having continuous elections throughout the nation, the 21st Law Commission recommends holding simultaneous elections. On the other hand, a number of stakeholders must be involved in this transformation. In order to hammer out implementation details and create statutory and constitutional reforms, Niti Aayog recommends assembling a focused group of specialists that includes think tanks, political party leaders, election experts, and constitutional experts. The parliamentary standing committee suggests a two-phase strategy for simultaneous elections in the event that this change fails. In the event that the present system malfunctions, this backup plan may be taken into account.

In a nutshell, I would like to state that everything that is done in the political sphere these days is thought to be done with the intention of winning support or discrediting the opposition party. The key issue at hand is this: Is democratic India truly prepared to abandon the established electoral system in favor of One India One Election?

[1] Et Online, “One Nation, One Election: Why BJP Is Pushing for It and Why It Is Opposed” (The Economic Times, March 15, 2024) <https://economictimes.indiatimes.com/news/politics-and-nation/one-nation-one-election-why-bjp-wants-it-and-why-it-is-opposed/articleshow/108500237.cms>.

 

[2] Kumar, Vivek. “One nation one election: Indian perspective.”

[3] Arora S and Arora S, “What Is One Nation One Election Policy in India, Advantage and Disadvantage?” (adda247, March 15, 2024) <https://currentaffairs.adda247.com/one-nation-one-election-policy-in-india/>

 

[4] Makin T, “One Nation One Election – Pros &amp; Cons~ Group Discussion Ideas” (Group Discussion Ideas, July 3, 2019) <http://www.groupdiscussionideas.com/one-nation-one-election-feasible/>

 

[5] ibid

[6] Tawa Lama-Rewal, S. (2009). Studying elections in India: Scientific and political debates. South Asia Multidisciplinary Academic Journal, (3)

[7] Santoshkumar R, Lalithambika R. A New National Election Reforms “One India One Election and also People with Three Votes, Voice of Intellectual ManAn International Journal; c2020.

[8] Election Commission of India.(2018). “The Functions (Electoral System of India)”.Available at: https://eci.gov.in/about/about-eci/the-functions-electoral-system-of-india-r2/ (Last Visited on August 27,2020).

[9] Bansal, M. (2019). The Concept of One Nation One Election: An Analysis from Indian Perspective. Think India Journal, 22(4), 3077-3084.

[10] Bhagat, P., & Pokharyal, M. P. (2020). CONCEPTUAL REFORMS ONE NATION–ONE ELECTION. Ilkogretim Online, 19(4), 3929-3935.

[11] ibid

[12] sabrang. (2023, September 21). Analysing the Feasibility of Simultaneous Elections in India: A Review of Committee Recommendations and Constitutional Implications. SabrangIndia. https://sabrangindia.in/analysing-the-feasibility-of-simultaneous-elections-in-india-a-review-of-committeerecommendations-and-constitutional-implications/

[13] Conversation MR, “Laid-Back but Brilliant: Scientist Martin Rees Looks Back on His Student Years with Stephen Hawking” (Scroll.in, March 14, 2018) <https://scroll.in/article/872039/laid-back-but-brilliant-scientist-martin-rees-looks-back-on-his-student-years-with-stephen-hawking>

[14] ibid

[15] India H and India H, “The Hans India” (The Hans India, February 2, 2018) <http://www.thehansindia.com/posts/index/Opinion/2018-02-02/One-nation-One-election-a-path-breaking-electoral-reform/356029>

 

[16] Supranote15

[17] Kaushik, A. K., & Goyal, Y. (2019). The desirability of one nation one election in India: simultaneous elections. The Journal of Social, Political, and Economic Studies, 44(1/2), 110-120.

[18] “One India One Election – Pros and Cons” <https://www.careerride.com/view/one-india-one-election-pros-and-cons-29332.aspx>

[19] ibid

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Alternative Dispute resolution: An alternative to avoid lengthy court proceedings

Alternative Dispute resolution: An alternative to avoid lengthy court proceedings

ABSTRACT

The Indian judiciary, which is one of the oldest in the world, faces a substantial backlog of cases that remain unresolved even with the fast track courts that have been established. ADR, or alternative dispute resolution, provides workable ways to lessen this load by using strategies including Lok Adalat, arbitration, mediation, negotiation, and conciliation. The article deals with each approach, which is subject to different rules, enables the settlement of disputes outside of formal court processes and offers advantages including speedier settlements, control over the process, and confidentiality. ADR does not, however, come without disadvantages, such as a potential lack of resolution and limited enforceability. Important legal frameworks in India facilitate ADR and improve its application. This article examines the importance, advantages, disadvantages, and many forms of alternative dispute resolution (ADR). It also highlights the government’s initiatives to establish India as a major global centre for arbitration and conflict settlement and provides case law examples of how ADR has changed in India. ADR offers equitable and effective outcomes; ultimately, the choice of ADR method depends on the particulars of the dispute and the preferences of the parties.

Key words: Alternative Dispute Resolution, Arbitration, Mediation, Conciliation, Lok Adalat.

INTRODUCTION

It is a well-known fact that the Indian judiciary is among the oldest in the world, but it is also getting less effective at handling cases that are still pending since Indian courts are overflowing with lengthy cases that have not been resolved. The problem is far from being resolved because there are still a large number of ongoing cases, despite the establishment of more than a thousand fast track courts that have already resolved millions of cases. All methods and procedures for resolving disputes that don’t involve the government are gathered under ADR. The most well-known alternative dispute resolution (ADR) techniques include transaction, negotiation, arbitration, conciliation, and mediation.  Although they are subject to various regulations, all alternative dispute resolution (ADR) techniques share the ability to help parties resolve their disputes in a way that is acceptable outside of formal legal or court processes. In contrast to mediation and conciliation, where a third party serves to encourage an acceptable arrangement between the parties, negotiation does not involve a third party intervening to help the parties reach an agreement. The third party, which might be one or more arbitrators, will be crucial to the arbitration process since it will produce an arbitration award that the parties must abide by. In contrast, no legally-binding conclusion is imposed by the third party in conciliation or mediation. In practice, the parties combine the use of these many ADRs, so if they are all different, they shouldn’t be compared and faced. In their contracts, for example, the parties may state that, in the event of a dispute, they will first attempt an amicable settlement (conciliation or mediation) and will only turn to a judicial method of settlement, which may include arbitration or recourse to the State justice system, if that approach fails.

SIGNIFICANCE

ADR uses a variety of strategies to address the backlog of cases in Indian courts, which is a big concern in India. The Indian judiciary receives scientifically established approaches from the Alternative Dispute Resolution mechanism, which lessens the workload on the courts. ADR offers several ways to settle disputes, including as negotiation, mediation, conciliation, arbitration, and lok Adalat. In this context, negotiation refers to the parties’ self-counseling to settle their disagreement, nevertheless, In India, negotiation is not legally recognized.  Articles 14 and 21, which address equality before the law and the right to life and personal liberty, respectively, are also the foundations of alternative dispute resolution (ADR). The preamble’s stated goals of social, economic, and political justice as well as upholding societal integrity are the driving forces of ADR.

REASONS FOR OPTING ADR

Through alternative dispute resolution (ADR), parties can agree to settle a dispute involving intellectual property that is protected in multiple jurisdictions in a single procedure, avoiding the cost and complexity of multi-jurisdictional litigation as well as the possibility of contradictory outcomes. Compared to court action, alternative dispute resolution (ADR) gives parties more influence over the resolution of their disagreement because it is a private process. The parties themselves may choose the best arbitrators for their dispute, in contrast to court proceedings. They can also decide on the venue, language, and applicable law for the proceedings. In court-based litigation, when familiarity with the relevant law and local processes can offer major strategic benefits, one party may benefit from a home court advantage. However, ADR can be neutral to the law, language, and institutional culture of the parties. The ADR process is confidential. As a result, the parties may decide to maintain the confidentiality of the proceedings and any conclusions. This frees them up to concentrate on the merits of the disagreement without worrying about how it will be received by the public. This may be especially crucial in cases involving trade secrets and commercial reputations. In contrast to court rulings, which are typically susceptible to challenge through one or more stages of litigation, arbitral awards are typically not appealable. In general, arbitral verdicts are recognized on par with domestic court judgements under the United Nations Convention for the Recognition and Enforcement of Foreign Arbitral verdicts of 1958, also referred to as the New York Convention, without merit review. This makes it much easier to enforce prizes internationally.

DRAWBACKS OF ADR

There is not always a resolution through the alternate resolution procedure.
This implies that even after spending time and resources attempting to settle the disagreement outside of court, the parties may still need to go through with a trial by jury and litigation in order to pursue arbitration and other kinds of conflict resolution. An appeal is not possible against a neutral arbitration’s ruling, with a few notable exceptions like fraud. Conversely, a court’s rulings are typically appealable for a number of reasons. ADR awards cannot be enforced as if they were court judgements because there is no equivalent to section 66 of the Arbitration Act 1996, which states that an award made by the tribunal in accordance with an arbitration agreement may be enforced in the same manner as a judgement or order of the court to the same effect. The awards are not as readily enforceable, though. The majority of conflicts resolved through arbitrations involve money. They are unable to give injunctions because they are unable to impose instructions requiring one party to do something or refrain from doing something. Due to the lack of a disclosure requirement in arbitration that exists in litigation, there is a chance that parties will settle a dispute without fully understanding the circumstances, which could result in an incorrect conclusion. However, the majority of businessmen held the opinion that reaching a resolution quickly is preferable to squandering time and resources on a disagreement in order to reach the right conclusion. When a client requires an injunction, when there is no issue to be resolved, or when the client needs a legal decision made, alternative dispute resolution is not appropriate.

MODES OF ADR

Arbitration

The arbitration process cannot proceed if there is not a valid arbitration agreement in effect prior to a dispute developing. Parties submit their disagreement to one or more arbitrators in this way of resolving disputes.  Parties must abide by the arbitrator’s ruling, which is referred to as the “Award.” The goal of arbitration is to resolve disputes fairly and quickly, out of court, without incurring further costs or delays. Any party to a contract that has an arbitration clause may invoke it on their own behalf or through an authorised agent, in which case the dispute will be submitted to arbitration under the terms of the arbitration agreement. An arbitration clause in this context refers to a clause that specifies the procedures, language, number of arbitrators, and seat or authorised location of the arbitration.

According to Section 8 of the Arbitration and Conciliation Act of 1996, a party may petition the court to have the matter referred to an arbitration tribunal in accordance with the agreement if the other party disregards the arbitral agreement and takes the suit to civil court rather than arbitration, but not after the first statement has been submitted. The dispute will be referred to arbitration if the courts are satisfied with the application, which must contain a certified copy of the arbitration agreement.

Mediation

Through the alternative dispute resolution process of mediation, two or more disputants might work with a third, impartial person to help them reach a resolution. A third party serves as a mediator in this simple and straightforward party-centered negotiation process, employing effective communication and negotiating strategies to help parties settle their differences amicably. The parties have complete control over this process. The mediator’s role is limited to assisting the parties in resolving their disagreement. The mediator does not impose his opinions or decide what constitutes a just settlement.

Conciliation

Although less formal in nature, conciliation is nonetheless a type of arbitration. It is the process of helping the parties to a disagreement reach a peaceful conclusion through the use of a conciliator who meets with each party separately to resolve the conflict. Conciliators meet separately in order to improve communication, reduce tension between the parties, and interpret the situation in order to facilitate a negotiated conclusion. Prior consent is not required, and it cannot be imposed onto a party that does not choose to participate in conciliation. That is how it differs from arbitration.

Negotiation

It is the most regularly employed alternate method of resolving disputes. A non-binding process whereby the parties start talks with each other without the help of a third party in an effort to reach a mutually agreeable settlement. Businesses, non-profits, government agencies, court cases, international relations, and private affairs like marriage, divorce, parenthood, and daily living all involve negotiation.

Lok Adalat

The Lok Adalat, often known as the “People’s Court,” is chaired by a member of the legal profession, social activists, or a serving or retired judge. In order to exercise this authority, the National Legal Service Authority (NALSA) and other Legal Services Institutions regularly hold Lok Adalats. Lok Adalat may be consulted over any matter that is still pending in a regular court or any disagreement that hasn’t been presented before a court of law. The process is quick since there are no court costs and certain procedures are followed. The court money that was initially paid in the court when the petition was filed is also returned to the parties in the event that a matter that is pending in court or referred to the Lok Adalat is settled afterwards.

PIVOTAL CASE LAWS

Case name- Renusagar Power Co Ltd vs. General Electric

According to the Supreme Court, the goal of this Act was to expedite and advance international trade by establishing an arbitration process for the prompt resolution of trade-related disputes. It was declared that unless the parties specifically granted him such authority, an arbitrator generally lacked the capacity to clothe himself with the authority to decide the matter within his own jurisdiction. The Court further decided that the court, not the arbitrator, should make the decision regarding the contract’s validity under Section 33. The entire process would lack jurisdiction if there had been no arbitration clause in place when the arbitrators began their duties.

Case name- Bhatia International Vs Bulk Trading

The Supreme Court of India adopted Section 9 to support arbitrations seated outside of India after interpreting Part I of the Act to extend to arbitrations held outside of India. The aforementioned Act makes no mention of its provisions not applying to international commercial arbitrations held in nations that have not ratified conventions. The Act’s Part II is exclusively applicable to arbitrations conducted in nations that have signed conventions.  The court decided that Part I’s rules would automatically apply in any case where the arbitration took place in India. Nonetheless, unless the Parties have expressly or implicitly rejected all or any of Part I’s provisions, the requirements of Part I shall apply in cases of international commercial arbitrations conducted outside of India. In that instance, the Parties’ selected laws or regulations would take precedence. Any part of Part I that is expressly prohibited will not be applicable. The aggrieved parties in foreign arbitrations are now able to get interim remedy in India.

CONCLUSION

The establishment of arbitration rules, which have undergone substantial evolution over time, is where ADR techniques got their start. Over time, more alternative dispute resolution (ADR) techniques made their way to the Indian Parliament, which was astute enough to incorporate these novel approaches to conflict resolution. For example, the Micro, Small and Medium Enterprises Development Act of 2006 and the Commercial Courts Act of 2015 make sure that these processes are used case-by-case in particular industries. In order to position India as a leading worldwide hub for arbitration and other kinds of conflict resolution, the Indian government is currently undertaking further measures to establish alternative dispute resolution (ADR) procedures. Effective substitutes for traditional litigation are Alternative Dispute Resolution (ADR) techniques such arbitration, neutral review, mediation, and settlement conferences. They provide parties the ability to settle conflicts quickly, amicably, and possibly at a considerable financial savings. Selecting the best ADR strategy will eventually support equitable and successful conflict resolution and depend on the particulars of the dispute as well as the preferences of the parties.

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Written by- Shreyasi Ghatak

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