Arbitration and Conciliation

Arbitration and Conciliation

·         Arbitration is a method for settling disputes privately, but its decisions are enforceable by law.

·         An arbitrator is a private extraordinary judge between the parties, chosen by mutual consent to sort out controversies between them.

·          Arbitrators are so called because they, have an arbitrary power; for if they observe submissions and keep within due hounds their sentences are definite from which there is no appeal.

·         Arbitration offers greater flexibility, prompt settlement of national and international private disputes and restricted channels of appeal than litigation.

·         In the words of Richard Cobden "At all events, arbitration is more rational, just, and humane than the resort to the sword."

·         Arbitration is a simplified version of a trial involving no discovery and simplified rules of evidence.

·          Either both sides agree on one arbitrator, or each side selects one arbitrator and, the two arbitrators elect the third to comprise.

·         Arbitration hearings usually last only a few hours and the opinions are not public record.

·         Arbitration has long been used in labour, construction, and securities regulation, but is now gaining popularity in other business disputes.

·          Litigation is expensive, time consuming and full of complexities.

Kinds of Arbitration

Adhoc Arbitration: In the course of a commercial transaction if a dispute arises and could not be settled amicably either by way of mediation or conciliation, the parties have the right to seek Adhoc arbitration. It is a process entrusted to a non-institution with all the procedural laws set out in specific agreement of the parties for that particular arbitration only.

Institutional Arbitration: In this kind of arbitration there will be a prior agreement between the parties regarding the institution that they will refer to in order to resolve their disputes in the course of a commercial transaction.

 Contractual Arbitration: In the present scenario, where the number of commercial transactions as well as the number of disputes are increasing, the parties entering into a commercial transaction prefer to incorporate an arbitration Clause in their agreement. The arbitration Clause provides that if in future any dispute arises between the parties they will be referred to a named arbitrator(s).

 Statutory Arbitration: If by operation of law the court provides that the parties have to refer the matter to arbitration it is termed as Statutory Arbitration. In this kind of arbitration the consent of the parties is not required. It is more of a compulsory arbitration and it is binding on the parties as the law of the land.

The Arbitration and Conciliation Act, 1996 provides two alternate methods of ADR: Arbitration and Conciliation.

·         Arbitration may be conducted ad hoc or under institutional procedures and rules.

·         Institutional arbitration is conducted under the guidance and well-tested rules of an established arbitral organization whereas under Adhoc arbitration, the parties have to draft their own rules and procedures to fit the needs of their dispute.

·         There are number of national and international organizations set up with the main object of settling commercial disputes by way of arbitration and other alternative dispute resolution mechanism.

·         These organizations lay down rules for the conduct of arbitration. These rules, however, cannot override the Act.

·         These organizations handle the arbitration cases of the parties and provide valuable services like administrative assistance, consultancy and recommending names of arbitrators from the panel maintained by them.

·         The Act contains general provisions on arbitration, enforcement of certain foreign awards, conciliation and supplementary provisions.

·         The three schedules reproduce the texts of Geneva Convention on the execution of Foreign Arbitral Awards, 1927, the Geneva Protocol on Arbitration Clause, 1923 and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958.

·                        The Act differs from previous Acts in many ways.

·         Firstly, where there is an arbitration agreement, the judicial authority is required to direct the parties to resort to arbitration as per the agreement, provided the application for that purpose is made before or when a written statement on the merits is submitted to the judicial authority by the party seeking arbitration.

·         Secondly, the grounds on which award of an arbitrator may be challenged before the court has been severely trimmed.

·         For e.g., a challenge will now be permitted only on the basis of invalidity of the agreement, want of jurisdiction on the part of the arbitrator or want of proper notice to a party of the appointment of the arbitrator or of arbitral proceedings or a party being unable to present its case.

·         At the same time, an award can now be set aside if it is in conflict with “the public policy of India” — a ground which covers, inter–alia, fraud and corruption.

·         Thirdly, the powers of the arbitrator himself have been amplified by inserting specific provisions on several matters, such as the law to be applied by him, power to determine the Venue of arbitration failing agreement, power to appoint experts, power to act on the report of a  party, power to apply to the court for assistance in taking evidence, power to award interest, and so on.

·         Fourthly, obstructive tactics sometimes adopted by parties in arbitration proceedings are sought to be thwarted by an express provision where under a party who knowingly keeps silent and then suddenly raises a procedural objection will not be allowed to do so.

·         Fifthly, the role of institutions in promoting and organizing arbitration has been recognized.

·         Sixthly, the power to nominate arbitrators has been given (failing agreement between the parties) to the Chief Justice or to an institution or person designated by him.

·         Seventhly, the time limit for making awards has been deleted.

·          Eighthly, present provisions relating to arbitration through intervention of court when there is no suit.

Advantages of Arbitration over Litigation

1. Arbitration carries a number of advantages over usual method of dispute resolution of redressal through a court of Law.
2. Arbitration promises privacy. In a civil court, the proceedings are held in public.
3. Arbitration provides liberty to choose an arbitrator, who can be a specialist in the subject matter of the dispute. Thus, arbitrators who are sector specialists can be selected who resolve the dispute fairly and expeditiously.
4. The venue of arbitration can be a place convenient to both the parties. Likewise the parties can choose a language of their choice.
5. Even the rules governing arbitration proceedings can be defined mutually by both the parties.
6. A court case is a costly affair. The claimant has to pay advocates, court fees, process fees and other incidental expenses. In arbitration, the expenses are less and many times the parties themselves argue their cases. Arbitration involves few procedural steps and no court fees.
7. Arbitration is faster and can be expedited. A court has to follow a systematic procedure, which takes an abnormally long time to dispose of a case.

8. A judicial settlement is a complicated procedure. A court has to follow the procedure laid down in the Code of Civil Procedure, 1908 and the Rules of the Indian Evidence Act. An Arbitrator has to follow the principles of natural justice. The Arbitration and Conciliation Act, 1996 specifically states that the Arbitral Tribunal shall not be bound by The Code of Civil Procedure, 1908 and The Indian Evidence Act, 1872.

9. Section 34 of the Act provides very limited grounds upon which a court may set aside an award. The Act has also given the status of a decree for the award by arbitrators. The award of the arbitrators is final and generally no appeal lies against the award.

10. In a large number of cases, ‘Arbitration’ facilitates the maintenance of continued relationship between the parties even after the settlement. It is quicker, cheaper, and more user-friendly than courts. It gives people an involvement in the process of resolving their disputes that is not possible in public, formal and adversarial justice system perceived to be dominated by the abstruse procedure and recondite language of law. It offers choice – choice of method, of procedure, of cost, of representation, of location. Because often it is quicker than judicial proceedings, it can ease burdens on the Courts. Because it is cheaper, it can help to curb the upward spiral of legal costs and legal aid expenditure too, which would benefit the parties and the tax payers.

 In this juncture, few things are most required to be done for furtherance of smoothening the mechanisms.

Few of them are:

• Creation of awareness and popularizing the methods is the first thing to be done.
• NGOs and Medias have prominent role to play in this regard.
• For Court – annexed mediation and conciliation, necessary personnel and infrastructure shall be needed for which government funding is necessary. Training programmes on the mechanism are of vital importance. State level judicial academies can assume the role of facilitator or active doer for that purpose. While the Courts are never tired of providing access to justice for the teeming millions of this country, it would not be incorrect to state that the objective would be impossible to achieve without reform of the justice dispensation mechanism. There are two ways in which such reform can be achieved – through changes at the structural level, and through changes at the operational level:
• Changes at the structural level challenge the very framework itself and require an examination of the viability of the alternative framework for dispensing justice. It might require an amendment to the Constitution itself or various statutes.
• On the other hand, changes at the operational level requires one to work within the framework trying to identify various ways of improving the effectiveness

of the legal system.

·         Needless to say, this will considerably reduce the load on the courts apart from providing instant justice at the door-step, without substantial cost being involved.

·         This is also avoiding procedural technicalities and delays and justice will hopefully be based on truth and morality, as per acknowledged considerations of delivering social justice.

LOK ADALAT

LOK ADALAT

·         The concept of Lok Adalat is an innovative Indian contribution to the world of jurisprudence. The introduction of Lok Adalats added a new chapter to the justice dispensation system of this country and succeeded in providing a supplementary forum to the victims for satisfactory settlement of their disputes.

·         This system is based on Gandhian principles.

·         The advent of Legal Services Authorities Act, 1987 gave a statutory status to Lok Adalats, pursuant to-the constitutional mandate in Article 39-A of the Constitution of India, contains various provisions for settlement of disputes through Lok Adalat.

·          It is an Act to constitute legal services authorities to provide free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, and to organize Lok Adalats to secure that the operation of the legal system promotes justice on the basis of equal opportunity.

·          Even before the enforcement of the Act, the concept of Lok Adalat has been getting wide acceptance as People's Courts the very name signifies.

·          Settlement of disputes at the hands of Panchayat Heads or tribal vogue since ancient times. When statutory recognition had been given to Lok Adalat, it was specifically provided that the award passed by the Lok Adalat formulating the terms of compromise will have the force of decree of a court which can be executed as a civil court decree.

·          The evolution of movement called Lok Adalat was a part of the strategy to relieve heavy burden on the Courts with pending cases and to give relief to the litigants who were in a queue to get justice.

·         It contains various provisions for settlement of disputes through Lok Adalat.

Salient features of Lok Adalat:

1.       It is based on settlement or compromise reached through systematic negotiations.

2.       It is a win-win system where all the parties to the dispute have something to gain.

3.       It is one among the Alternate Dispute Resolution (ADR) systems. It is an alternative to “Judicial Justice”.

4.       It is economical – No court fee is payable. If any court fee is paid, it will be refunded.

5.       The parties to a dispute can interact directly with the presiding officer, which is not possible in the case of a court proceeding.

6.       Lok Adalat is deemed to be a civil court for certain purposes.

7.       Lok Adalat is having certain powers of a civil court.

8.       The award passed by the Lok Adalat is deemed to be a decree of a civil court.

9.       An award passed by the Lok Adalat is final and no appeal is maintainable from it.

10.    An award passed by the Lok Adalat can be executed in a court.

11.    The award can be passed by Lok Adalat, only after obtaining the assent of all the parties to dispute.

12.    Code of Civil Procedure and Indian Evidence Act are not applicable to the proceedings of Lok Adalat.

13.    A Permanent Lok Adalat can pass an award on merits, even without the consent of parties. Such an award is final and binding. From that no appeal is possible.

14.    The appearance of lawyers on behalf of the parties, at the Lok Adalat is not barred. (Regulation 39 of the Kerala State Legal Services Authority Regulations, 1998.)

Lok Adalats have competence to deal with a number of cases like:

•          Compoundable civil, revenue, and criminal cases

•          Motor accident compensation claims cases

•          Partition Claims

•          Damages Cases

•          Matrimonial and family disputes

•          Mutation of lands case

•          Land Pattas cases

•          Bonded Labour cases

•          Land acquisition disputes

•          Bank's unpaid loan cases

•          Arrears of retirement benefits cases

•          Family Court cases

•          Cases which are not sub-judice

Procedure

·         The procedure followed at a Lok Adalat is very simple and shorn of almost all legal formalism and rituals.

·          The Lok Adalat is presided over by a sitting or retired judicial officer as the chairman, with two other members, usually a lawyer and a social worker.

·          It is revealed by experience that in Lok Adalats it is easier to settle money claims since in most such cases the quantum alone may be in dispute.

·         Thus the motor accident compensation claim cases are brought before the Lok Adalat and a number of cases were disposed of in each Lok Adalat.

·         One important condition is that both parties in dispute should agree for settlement through Lok Adalat and abide by its decision.

·         A Lok Adalat has the jurisdiction to settle, by way of effecting compromise between the parties, any matter which may be pending before any court, as well as matters at pre-litigative stage i.e., disputes which have not yet been formally instituted in any Court of Law.

·         Such matters may be civil or criminal in nature, but any matter relating to an offence not compoundable under any law cannot be decided by the Lok Adalat even if the parties involved therein agree to settle the same.

·          Lok Adalats can take cognizance of matters involving not only those persons who are entitled to avail free legal services but of all other persons also, be they women, men, or children and even institutions.

·         Anyone, or more of the parties to a dispute can move an application to the court where their matter may be pending, or even at pre-litigative stage, for such matter being taken up in the Lok Adalat where upon the Lok Adalat Bench constituted for the purpose shall attempt to resolve the dispute by helping the parties to arrive at an amicable solution and once it is successful in doing so, the award passed by it shall be final which has as much force as a decree of a Civil Court obtained after due contest.

·         The award of the Lok Adalat is fictionally deemed to be decree of Court and therefore the courts have all the powers in relation thereto as it has in relation to a decree passed by itself.

·          This includes the powers to extend time in appropriate cases. The award passed by the Lok Adalat is the decision of the court itself though arrived 'at by the simpler method of conciliation instead of the process of arguments in court.

·         Benefits of Lok Adalat

        The benefits that litigants derive through the Lok Adalats are many.

a)       First, there is no court fee and even if the case is already filed in the regular court, the fee paid will be refunded if the dispute is settled at the Lok Adalat.

b)       Secondly, there is no strict application of the procedural laws and the Evidence Act while assessing the merits of the claim by the Lok Adalat. The parties to the disputes though represented by their advocates can interact with the Lok Adalat judge directly and explain their stand in the dispute and the reasons therefore, which is not possible in a regular court of law.

c)       Thirdly, disputes can be brought before the Lok Adalat directly instead of going to a regular court first and then to the Lok Adalat.

d)       Fourthly, the decision of the Lok Adalat is binding on the parties to the dispute and its order is capable of execution through legal process. No appeal lies against the order of the Lok Adalat whereas in the regular law courts there is always a scope to appeal to the higher forum on the decision of the trial court, which causes delay in the settlement of the dispute finally. The reason being that in a regular court, decision is that of the court but in Lok Adalat it is mutual settlement and hence no case for appeal will arise. In every respect the scheme of Lok Adalat is a boon to the litigant public, where they can get their disputes settled fast and free of cost.

e)       Last but not the least, it has faster and inexpensive remedy with legal status.

·         The system has received laurels from the parties involved in particular and public and the legal functionaries, in general.

·         It Also helps in emergence of jurisprudence of peace in the larger interest of justice and wider sections of society.

·          Its process is voluntary and works on the principle that both parties to the disputes are willing to sort out their disputes by amicable solutions. Through this mechanism, disputes can be settled in a simpler, quicker and cost-effective way at all the three stages i.e., pre-litigation, pending-litigation and post-litigation.

·         The scheme also helps the overburdened Court to alleviate the burden of arrears of cases and as the award becomes final and binding on both the parties, no appeal is filed in the Appellate Court and, as such, the burden of the Appellate Court in hierarchy is also reduced.

·         The scheme is not only helpful to the parties, but also to the overburdened Courts to achieve the constitutional goal of speedy disposal of the cases.

·         About 90% of the cases filed in the developed countries are settled mutually by conciliation, mediation, etc. and, as such, only 10% of the cases are decided by the Courts there.

·         In our country, which is developing, has unlike the developed countries, number of Judges disproportionate to the cases filed and, hence, to alleviate the accumulation of cases, the Lok Adalat is the need of the day.

Criticism

·         The right to appeal is one of the most basic features of any sound legal system. It sprouts from the principle ‘to err is human’.

·         It recognizes the fact that it is impossible to be infalliable always.

·          Lok Adalats cannot proceed to pass awards unless the parties to a dispute under its consideration, agrees to the passing of an award.

·         In such a situation, by agreeing, the parties are stopping themselves from challenging it afterwards

·         In that case, denial of an appeal provision can well be justified.

·         But a Permanent Lok Adalat can proceed to dispose of matter referred to it even without the consent of the parties to such dispute.

·         And the PLA does not have to go by the rules of evidence contained in The Indian Evidence Act. Moreover, a party can be drawn to PLA, despite his wishes.

·         In such a situation, denying a chance to appeal may not be in consonance with our most cherished legal principle: Justice should not only be done, but should manifestly and undoubtedly be seen to be done.

Lok Adalat settles 1.25 cr. cases in a day dec 2014

•The Second National Lok Adalat held across the country recently settled about 1.25 crore pending and pre-litigation cases and brought financial relief of over Rs. 3,000 crore to ordinary litigants in a single day.

•           Organized by: The National Legal Service Authority (NALSA) 

Judicial Impact Assessment :

• Lawmaking is at the heart of the democratic process. The number, the types, and the quality of laws made each year are significant indicators of the health of a democracy. The very  large number of laws  passed in a year, draw attention to thestandard of parliamentary or legislative debate.
• An excessively detailed law on a simple subject, or a terse law on a complex subject, brings to focus, the question of delegation of powers. Too many amending laws demand an examination of the quality of the original parent legislations.
• The lack of adequate data on the working of the judicial system, particularly at the level of subordinate courts, has been a serious impediment in planning and management of judicial reforms. We still do not know the exact reasons for delay or the time taken at various stages of judicial proceedings. What is the cost involved in processing different types of cases and how is it to be calculated? What is the optimum capacity of the system and how judicial time is to be apportioned or evaluated?
• One feature of lawmaking, that is only occasionally a subject of public debate in India is the effect of new laws. Studying the impact of new laws, also known as judicial impact assessment, involves estimating the additional case-load, expenditure, andother burdens that such laws are likely to impose on the judicial system. It is a process whereby the government can anticipate the likely cost of implementing legislation through the courts and help deliver timely justice to litigants.

Why do we need a Judicial Impact Assessment?

• A large number of bills are introduced by the Parliament as well as the state legislatures every year. Between 2009 and 2014, an average of 172 bills were passed per year in both houses of the parliament. Though most of these bills remain pending , these numbers indicate the enthusiasm with which legislators at the centre participate in the lawmaking process.
• Each legislation increases the burden of court. Presently there are 14,000 Judges, this will take another 300 years for the 26 Million Cases to be cleared. This means the waiting time period for people to get justice from the courts will be long. Litigation demand depends on a variety of factors most of which are not factored in the making of laws.

Litigation is increasing due to three processes:

a. Legislative Activity;

b. Judicial Interpretation of laws: For example: Expansion of Doctrine of Sustainable Development by the SC, here inclusion of more and more rights will increase litigation

c. Economic Activity: Economic Development requires more investment on capital and transfer of technology. Here various legislations come into play, Law of Contracts, Labour Law, etc. so this results in the expansion of laws and as a result new laws have emerged viz., Competition Law, Information Technology Law, hence the judiciary has to see that the right laws are being applied.

• Bills tabled in Parliament are expected to be accompanied by three documents – a financial memorandum, a statement of objects and reasons, and a memorandum regarding the delegation of legislative powers.
• Financial memoranda are required to invite particular attention to the clauses involving expenditure, and provide an estimate of the recurring and non-recurring expenditure, if the Bill is passed into law. In practice, however, these financial memoranda serve only as token appendices, providing little insight into the true implications on the exchequer, and no information on the effects on the populace.
• Ultimately, the court is left with little resources to cope with extra cases generated by the  law. Therefore, despite greater disposal of cases each year, the number of pending cases keep on mounting.
• Therefore, realising the structural imbalance in the system, the Supreme Court on the Salem Advocates’ Association Case (2005)gave a direction to the government to make JIA an essential component of financial memorandum of legislative proposals. The government, then appointed a task force to recommend a methodology and infrastructure for institutionalising JIA in the law making process.

Task force on JIA :

The JIA Report suggested  methods to tackle the overloading of work problem in the judiciary.

• The task force said that judicial impact assessments must be carried out scientifically to estimate the additional case-load that any new legislation (introduced in Parliament as well as state legislatures) would place on courts.
• It also recommended that the cost of adjudicating such cases must be estimated and adequate budgetary provisions must be made accordingly.
• It  further proposed an elaborate institutional structure to project such estimates, in the form of “judicial impact offices” located all over the country, modelling it on similar arrangements in the United States.

• The Report explained that estimation must be done beforehand, the addition or work load to be borne by the judiciary due to the new laws.
• The Government of India must make assessment and provide necessary financial support at the bill stage for implementation of central laws on the subjects in the union list or concurrent list.
• Even as the state provides the necessary finance and infrastructure to judiciary for implementing the new rights or offences created by the fresh laws, the task force recommended the centre for establishment of additional courts for implementation of union laws.
• The report has recommended multiple methodologies based on two field studies commissioned by it : a) When legislatures make changes in CPC or Cr.PC, they impact on litigation.
  b) If laws are made or amended creating or extinguishing substantive rights, it impacts the workload of courts.
  c). When rights are interpreted narrowly or liberally by High Courts and the Supreme Court in the course of adjudication, it results in less or more litigation.
• The taskforce has also demanded that budgeting of judiciary should be based on solid database.
• In short, workload is the result of multiple factors, depending on litigants dispositions, legislative and adjudicative actions. To be able to evolve credible, standardised methodologies to estimate the impact of legislation on court workload, it is necessary to haveinput-output details of court production-delivery systems. Laws need to be classified on identifiable attributes and on the average time it takes through different court procedures. 

Conclusion :

• Some experts have criticised the JIA claiming that such assessments are a blunt, ineffective and unnecessary instrument for two reasons: first, reliable estimates of future litigation are impossible to obtain in India, where even basic court statistics are unavailable; and second, the recognition and creation of rights should not be linked to the existence or creation of judicial system capacity.
• Other critics say that inadequate  judge strength and court infrastructure are only a part of the reason why there is docket exclusion. Lack of an effective human rights bar at local levels is a far more important reason, as is the lack of adequate effort to spread awareness of rights and the social and governmental capacity to implement them.
• Some experts have also recommended Judicial Use Assessment (JUA)  instead of JIA, which could measure if people were actually using courts to enforce their rights .
• Although JIA suggests  better planning in setting up of courts with adequate infrastructural facility and paves way for a degree of specialization besides attitudinal changes and values that govern the process of the courts,  an action plan should be developed for each court in the country to ensure that the judicial system is fully used to secure rights as envisaged by the Constitution. Such an approach will expand and value the rights of people rather than allow rights and their enforcement to be constrained by lack of judicial capacity and budgetary resources.

High Courts

·         There are 24 High Courts at the state and union territory level of India.

·         The Madras High Court in Chennai, Bombay High Court in Mumbai, Calcutta High Court in Kolkata and Allahabad High Court in Allahabad are the oldest four High Courts in India.

Tripura High Court        26 March 2013

Manipur High Court       25 March 2013

Meghalaya High Court   23rd March, 2013

According to a study conducted by Bengaluru-based NGO Daksh on 21 high courts in collaboration with Ministry of Law and Justice (India) in March 2016, it was found that average pendency of a case in High courts in India is 3 years.

District court

·         The highest court in each district is that of the District and Sessions Judge.

·         This is the principal court of original civil jurisdiction besides High Court of the State and which derives its jurisdiction in civil matters primarily from the code of civil procedure.

·          The district court is also a court of Sessions when it exercises its jurisdiction on criminal matters under Code of Criminal procedure.

·          The district court is presided over by one District Judge appointed by the state Government.

·         In addition to the district judge there may be number of Additional District Judges and Assistant District Judges depending on the workload. The Additional District Judge and the court presided have equivalent jurisdiction as the District Judge and his district court.

·         However, the district judge has supervisory control over Additional and Assistant District Judges, including decisions on allocation of work among them.

·         The District and Sessions judge is often referred to as "district judge" when he presides over civil matters and "sessions judge" when he presides over criminal matters.

·          Being the highest judge at district level, the District Judge also enjoys the power to manage the state funds allocated for the development of judiciary in the district.

·         The district judge is also called "Metropolitan session judge" when he is presiding over a district court in a city which is designated "Metropolitan area" by the state Government.

·          Other courts subordinated to district court in the Metropolitan area are also referred to with "metropolitan" prefixed to the usual designation.

·         An area is designated a metropolitan area by the concerned state Government if population of the area exceeds one million or more than that.

District Munsiff Court

·         District Munsiff Court (alternate spelling District Munsif Court) is the court of the lowest order handling matters pertaining to civil matters and criminal matters in the district.

·         Usually it is controlled by the District Courts of the respective district.

·          The District Munsif Court is authorised to try matters pertaining to certain pecuniary limits.

·         The State Government notifies the pecuniary limits for the District Munsiff Courts.

·          It is under the charge of a munsiff magistrate/judicial collector.

·         The appeal against these courts lies before the Subordinate Courts which are one rank superior to the District Munsiff Courts but are inferior to the District court.

·         The State Government prescribes the territorial jurisdiction of the District Munsiff Court. The district is further divided into subdivisions; each subdivision has an in-charge tax inspector and Registrar magistrate.

·         The munsiff magistrate is the judge and presiding officer of the District who keep charge of all tax inspectors (tehsildars).

·         Enforcement is of the law of 1982 CrPc.

·         India has about 11 judicial officers per million population as compared to Australia’s 42 and Canada’s 75 ; the United Kingdom has 51 and the United States has 107 per million population.

·         In the Third All India Judges Association case, the Supreme Court felt that the “time has now come for protecting the judicial system” by directing an increase in the judges strength from 13 per million population to 50 judges per million.

Plea Bargaining

Plea Bargaining

·         A new chapter, that is chapter XXIA on ‘Plea Bargaining’, has been introduced in the Criminal Procedure Code.

·          It was introduced through the Criminal Law (Amendment) Act, 2005, which was passed by the parliament in its winter session.

·         This has certainly changed the face of the Indian Criminal Justice System.

·         Some of the salient features of ‘Plea Bargaining’ are that it is applicable in respect of those offences for which punishment is up to a period of 7 years.

·          Moreover it does not apply to cases where the offence committed is a socio-economic offence or where the offence is committed is committed against a woman or a child below the age of 14 years.

·         Also once the court passes an order in the case of ‘Plea Bargaining’ no appeal shall lie to any court against that order.

·         ‘Plea Bargaining’ can be defined as pre-trial negotiations between the accused and the prosecution during which the accused agrees to plead guilty in exchange for certain concessions by the prosecution.

Curative petition

Curative petition

·         The concept of Curative petition was evolved by the Supreme Court of India in the matter of Rupa Ashok Hurra vs. Ashok Hurra and Anr. (2002) where the question was whether an aggrieved person is entitled to any relief against the final judgement/order of the Supreme Court, after dismissal of a review petition.

·          The Supreme Court in the said case held that in order to prevent abuse of its process and to cure gross miscarriage of justice, it may reconsider its judgements in exercise of its inherent powers.

·          For this purpose the Court has devised what has been termed as a "curative" petition. In the Curative petition, the petitioner is required to aver specifically that the grounds mentioned therein had been taken in the review petition filed earlier and that it was dismissed by circulation.

·         This has to be certified by a senior advocate. The Curative petition is then circulated to the three senior most judges and the judges who delivered the impugned judgement, if available. No time limit is given for filing Curative petition.

·         The court could impose “exemplary costs” to the petitioner if his plea lacks merit.

Review petition

·         In India, a binding decision of the Supreme Court/High Court can be reviewed in Review Petition. The parties aggrieved on any order of the Supreme Court on any apparent error can file a review petition. Taking into consideration the principle of stare decisis, courts generally do not unsettle a decision, without a strong case. This provision regarding review is an exemption to the legal principle of stare decisis.

·         Article 137 of the Constitution provides that subject to provisions of any law and rule made under Article 145 the Supreme Court of India has the power to review any judgement pronounced (or order made) by it.

·          Under Supreme Court Rules, 1966 such a petition needs to be filed within 30 days from the date of judgement or order. It is also recommended that the petition should be circulated without oral arguments to the same bench of judges that delivered the judgement (or order) sought to be reviewed