Mediation: In respect of Indian scenario
The Author is Mr. Adnan Athar Quraishi from Faculty of Law Integral University Lucknow.
“My joy was boundless. I
had learnt the true practice of law. I had learnt to find out the better side of
human nature and to enter men’s hearts. I realized that the true function of a
lawyer was to unite parties driven as under. The lesson was so indelibly burnt
into me that a large part of my time during the twenty years of my practice as
a lawyer was occupied in bringing about private compromises of hundreds of
cases. I lost nothing thereby – not even money, certainly not my soul.”
----Mahatma Gandhi[1]
Mediation has found increased statutory
recognition in India and the legislature has recently introduced it in the
Companies Act 2013, the Insolvency and Bankruptcy Code 2016, as well as the
Commercial Courts Act 2015, among others. We can discuss the mediation in
respect of the Indian scenario in two different stages. The first stage is “Proposal for an Indian Mediation Act”
and the second one is “Mediation becomes a topic
of household discussion in India”.
Now let’s started with the first stage:-
Stage I: Proposal for an Indian
Mediation Act
On March 5, 2019, a two-judge bench of the
Supreme Court asked the government to examine the feasibility of setting up a
Motor Accident Mediation Authority in every district so that road accident
claims can be settled in a speedy and amicable manner.[2] Two
factors specific to India make this ruling very significant. One, there are a large number of accidents in India – in 2017, about 147,000 people died in road deaths, a number which
surpasses the entire population of Shillong, the capital of an Indian state.
Two, these large numbers of accidents have given rise to a phenomenal jump in
claim cases, adding to the already piling litigation backlog that India is
infamous for. It is not too difficult to understand then that mediation is
needed in India for quick resolution of these motor claims. What is most
notable about this ruling, however, is that the Supreme Court held that the
need for more mediation efforts in the country is generally felt,
and is not limited to motor vehicle claims alone. The bench noted that “the way
[the] mediation movement is catching up in this country, there is a dire need
to enact [an] Indian Mediation Act as well.” Acting upon this note, it held
that “we impress upon the government to also consider the feasibility of
enacting [an] Indian Mediation Act to take care of various aspects of mediation
in general.”
An ‘Indian Mediation Act’ as suggested by
the Supreme Court is indeed a promising proposal for India. Even though various
statutes have given the parties the autonomy to get their disputes resolved via
mediation and there exist court-referred as well as private means of engaging in
mediation, there is a scarcity of clear procedural guidance on this aspect. The
Mediation and Conciliation Rules, 2004 are inadequately framed and do not cover
the entire spectrum of the mediation process. Moreover, these rules have been
lazily drafted as they seem to be more or less lifted from the Arbitration and
Conciliation Act, 1996. This lends a great lack of confidence and uncertainty
to the mediation process in India. A comprehensive statute will certainly clear
up the muddle.
Now in the last but not least starting with
the second stage:-
Stage II: Mediation becomes a topic of household discussion
in India
The second update is from March 8th
2019. A five-judge “Constitutional Bench” of the Supreme Court of India ordered
a court-monitored mediation in Ayodhya dispute.[3]The Ayodhya dispute
is of immense political and religious sensitivity in India. It started
centuries ago in the year 1528 when a mosque was built under Mughal emperor
Babur’s regime on the site which Hindus believe marks the spot where Lord Ram,
a highly revered Hindu deity, was born. Thus, the Hindus want a temple to be
built there instead of the mosque. The first recorded incidents of religious
violence at the site emerged as long back as in the year 1853. Members of both
religious groups filed civil suits in the Indian courts in 1949. Worse, in
1992, the mosque was torn down by some Hindu groups prompting nationwide
rioting between Hindus and Muslims in which over 2,000 people died. Since then,
efforts by courts of all levels in the country, commissions of inquiry,
renowned archaeologists as well as politicians have failed to resolve the
dispute. It is then significant that even in the face of slim chances of
consensus between the parties, the Apex Court has relied on mediation as a last-ditch attempt to bringing peace. In its order, the Supreme Court has stressed the necessity of confidentiality of the mediation proceedings. It has also
given liberty to the chairman of the three-member panel to bar the press from
reporting the proceedings. More pertinently, it has asked the panel to submit a
report of the progress of the mediation process within four weeks from its
commencement to the Supreme Court.
Conclusion
The reference of the highly sensitive Ayodhya dispute
to mediation has brought the mediation process to the attention of the general
Indian citizen. It cannot be denied that any outcome of this process will play
a heavy role in influencing the opinion of Indian citizens about the mediation
process. Lack of public awareness about ADR methods is the key reason why An Indian citizen is more conditioned to signing up for the adversarial process by
default. In the case of arbitration, this changed when the Arbitration and
Conciliation Act, 1996 was enacted. Today, there is a much better arbitration
culture in the country than in 1996 thanks to the statute. A mediation-specific
statute may similarly make the country more open to mediating disputes.
India currently faces a lack of not merely a
dedicated mediation statute, but also mediation focused institutions with
trained professionals as well as public awareness on the meaning and
significance of the mediation process. It is hoped that the push from the
Supreme Court in the first update, and the rise in public awareness about
mediation due to the second update will help remedy this situation.
[1] The story of my
experiments with Truth, General press, edn.2009
[2] M.R. Krishna Murthi v. The New India Assurance
Co. Ltd., Civil Appeal No. 2476-2477 of 2019, order dated 5 March 2019.
[3] M. Siddiq (D) v. Mahant Suresh Das,
Civil Appeal No. 10866-10867 of 2010, order dated 8 March 2019.
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