The Authorities and the Appearance of Activity

The Legal Services Authorities were created for a plain purpose: to see that poverty does not keep a person out of court.

What has grown up instead is a parallel institution with an outward life of its own. Much of what reaches it is not law at all: pensions not released, entitlements not delivered, ration not issued, schemes not implemented. These are administrative failures belonging to the district administration and the departments concerned. They arrive at the Authority because the citizen has been told it is effective. The Authority listens. It writes, it forwards, it recommends, it convenes a camp. What it cannot do is compel. Its power is persuasive and nothing more, though the citizen who appears before it, in the court building and before a judicial officer, has no way of knowing that. He leaves with an assurance rather than an order.

If a department is not doing its work, the answer is to make it answerable in law with consequences for disobedience. What has been done instead is to appoint somebody to persuade it. The arrangement makes no sense in any other setting. Nowhere else, when a man fails to do the work he is paid for, is the response to appoint a second man with no authority over him to request that he should do it.

Its calendar is a calendar of Lok Adalats and camps, and its achievement is reported in cases closed. These are led and driven by the judiciary, and the visible activity therefore establishes something about the judiciary: that it is responsive, energetic and present at grass-root level. The energy is real, and so is its direction. It flows outward, into work that can be counted and photographed, and away from the courtroom, where the cases are waiting and nothing has changed.

Arbitration Is a Different Animal

Much of the criticism above does not transfer to arbitration, and the argument is stronger for admitting it.

Arbitration between two represented commercial parties who negotiated a clause is not coercion through backlog. It has genuine justifications that Lok Adalats and settlements through mediation do not. The parties choose a tribunal that understands the trade, they keep the dispute confidential, and above all a foreign award travels. Under the New York Convention an award rendered in India is enforceable across some hundred and seventy jurisdictions. A decree of an Indian court is not. For cross-border commerce this is not a convenience. It is the whole case, and no amount of judicial reform would supply it.

Grant all of that, and the Indian problem remains untouched, because the Indian problem is what happens after the award.

An award is made. It is then challenged under Section 34, appealed under Section 37, occasionally attacked by writ, and carried to the Supreme Court by special leave. The dispute returns to the courtroom it was designed to avoid, arriving later and costlier than if it had started there. An arbitral award made in India under the Act remains open to challenge on grounds wide enough to make the challenge worth bringing, and finality is the one thing the statute does not deliver.

The usual answer is that the courts must exercise restraint, and that with restraint the mechanism works as intended. But finality cannot rest on the subjective satisfaction of whichever court the matter reaches. A litigant who is told his award is final, and then finds that its finality depends on how another judge views the case, has not been given finality at all. He has been given the hope of it, at a price, with the court retained as an unwritten appellate stage.

The Economy of Delay

Take all of this together and a structure appears that no one designed and everyone now depends on.

Delay is the justification for settlement. Settlement is the evidence of reform. The reform is then offered as the answer to the delay. The circle closes, and inside it delay has ceased to be a defect. It has become the resource the whole apparatus draws on. Remove the backlog tomorrow and the case for the present ADR regime collapses, because the persuasion that fills its benches has no argument left once the courtroom is quick.

So, a system does not reform the condition it has learnt to live on. What is needed is not a better way of persuading litigants to leave, but a court capable of hearing them.

What Honesty Would Require

The first obligation is not a choice. The State undertook to provide adjudication and it has to provide it: judges at the recommended strength, and the buildings, registries, staff, process service, police coordination and execution machinery without which more judges only produce faster stagnation. This is expensive in the way the Constitution is expensive, which is to say it is the cost of having meant it. No arrangement for settling disputes elsewhere discharges that duty or excuses its postponement.

None of which is an argument for abolishing ADR. It is an argument for putting it where it belongs, which is outside the court.

Keep all of it out. No referral, no court-annexed centre, no mediation cell in the court premises, no Lok Adalat sitting, no judicial officer measured by settlements procured. Let the State establish arbitration centres, mediation centres and conciliation centres as institutions in their own right, staffed by people trained for that work rather than by judges improvising as counsellors between two files. Let a citizen who wants that route take it before he files, and let a citizen who files be understood to have chosen the other one. Where awards are made by such centres, let them be final, on grounds of challenge narrow enough to mean it.

A court is entirely unconcerned with what a family, a village or an institution settles among themselves before anyone approaches it. That is society and state doing its own work, and no judge has business objecting. But once a citizen has walked through the door and invoked the law, the court's obligation is to decide. The courtroom may be the last place where a man can refuse to compromise and still be heard. That is not a limitation of the institution. It is the institution.

We, the People

The Constitution does not begin with the State or the Judiciary. It begins with the people, giving themselves the document and everything in it. The administration and adjudication are parts of what they gave themselves. The public is not an input to any of the systems. It is the reason any such system exists, the source of its authority, and the payer of its bills.

From that position the litigant is entitled to say, and to keep saying:

Decide my case in time.

Do not use your delay as an argument against me.

Do not send me out of the room I came into.

Do not publish my loss as your achievement.

The elders had power and owed nothing. The judge owes a duty and holds no power over anyone's caste, marriage or livelihood. He holds power over one thing only, which is how long a man must wait, and that is the power now being spent to persuade him to leave. That was the exchange the Constitution made, and it made it deliberately, keeping the structure it had inherited and refusing the one it had grown out of. It should not now be undone by a system that has kept the persuasion and given up the deciding.

A note on sources.

1. Several observations in this essay about how settlements are actually arrived at are not drawn from official records, because official records do not report them. They are consistent with what has already been documented. Jayanth K. Krishnan and Marc Galanter observed Lok Adalat sittings directly and concluded that the claim that this forum offers speedy, fair and deliberative justice needs serious reconsideration. See "Bread for the Poor: Access to Justice and the Rights of the Needy in India", 55 Hastings Law Journal 789 (2004), available at
   https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1378&context=facpub
2. On the sources of delay that lie outside the court, and on the attribution of that delay to the judiciary, see the present author, "Judicial Pendency: Accountability or Misattribution?", LiveLaw, Part I at https://www.livelaw.in/articles/judicial-pendency-accountability-misattribution-530811 and Part II at https://www.livelaw.in/articles/judicial-pendency-accountability-misattribution-530812 ↩

Views are personal.