LOK ADALAT IN JAMMU & KASHMIR: The Process, Practice and Problems M.Ayub Dar*

The access to justice movement around the world has repudiated the long prevailing formalistic approach which tended to identify the law with the system of norms produced by the State and has made it to concentrate on the primary and real world but neglected components - subjects, institutions, processes and their societal context. With a spirit of iconoclasm it has dethroned the hitherto much worshipped gods stamping them inadequate and initiated a hunt for alternative remedies and processes to make justice friendly, fair and accessible. What has emerged in this search are especially non- contentious conciliatory forms of alternatives as well as special courts geared more towards achieving a consensus rather than to a rigidly conceived idea of right or wrong. In India too alternative dispute resolution system has gathered much momentum 2 particularly because the under-staffed judiciary has become intolerably overloaded by an ever increasing volume of cases resulting in congestion, delay and expense turning the system in

Lecturer Department of Law, University of Kashmir, Srinagar-6. 1 Mauro Cappelletti, Alternative Dispute Resolution Processes within the Framework of the World-wide Access-to Justice Movement, (13) 55: 3 May MLR. on. 282-296 at P. 282 2 The r Code of Civil Procedure (Amendment) Bill, 1997 introduced in the Rajya Sabha on 14th August 1997 proposes to insert a new section 89 in the Code of Civil Procedure, 1908 with the object of encouraging settlement of disputes outside the court through alternatives like arbitration, conciliation, judicial settlement through Lok Adalat or mediation.

capable of living up to the ideals of access to justice for all 3. After the incorporation of Article 39-A into the Constitution a new mechanism has been institutionalized in the shape of Lok Adalat under the Legal Services Authorities Act, l987 4. The institution has shown a tremendous success settling huge number of cases 5 without vexation, delay and expense.

The State of Jammu and Kashmir has likewise evinced its concern by giving a statutory base to the institution of Lok Adalat through the enactment of Jammu and Kashmir Legal Services Authority Act, 1997. Besides facilitating legal assistance in courts the Act, like its Indian Counterpart, bestows the institution of Lok Adalat with two wings to fly for settlement of disputes at (i) pre-trial and (ii) in trial stage. Its single wing flies in the direction of pending disputes have been stimulative and encouraging; But should it continue to fly in that way singing the litigative songs alone? As a non-litigative aid attempts at reconciliation or reasonable settlement has long been recommended as a pre-condition for legal assistance in courts especially in disputes concerning women, children and other weaker sections of society 6. Relying on certain official statistical

See the Law Day Speech delivered by Hon’ble Chief Justice of India Dr Justice A S Anand on November 26, 1998 published in Naya Deep Vol. 2, issue 1,Jan, 1999 pp 21-25 at pp 21-22, quoting the recommendations of the Law Commission (120th Report, 1987 the Hon’ble Justice remarks that the ratio of Judges per million population in India continues to be 10.5 as against the requirement of 50 judges per million while these figures in other countries in 1987 were 50.9 in England, 57.7 in Australia, 75.2 in Canada and 107 in USA per million population, at another place the Hon’ble Judge admits that failure of judiciary to deliver justice within a time frame has brought about a sense of frustration amongst the litigants. See also the Times of India, April 26, 1998 Carrying the report that in 18 High Courts there are nearly 30,00,000 cases and in 500 odd District and Lower Courts in India, there are nearly 2,50,00,000 cases pending. 4 The Legal Services Authorities Act, 1967, Chapter VI Secs. 19-22 5 Till March 31, 1998 in approximately 22,452 Lok Adalats about 66,28,270 cases were disposed of - See Nyaya Deep Vol. 1. July issue of 1998 and Nyaya Deep Vol. 2 Issue 1, Jan. 1999 at p.17. 6 See Report of the Expert Committee on Legal Aid- Processual Justice to the People, 1973, Government of India, Ministry of Law, Justice and Company Affairs - pp 56, 61,

115-127, see also Report on National Juridicare - Equal Justice - Social Justice, (1977) pp. 59-60, 77 and 78.

information this paper is a humble attempt in the above direction, highlighting the potential of the alternative mechanism to serve the society and not merely the court system and to be more attractive and cost effective for the State and the disputants than it is made to be.

Lok Adalat: Process and Practice The Jammu and Kashmir Legal Services Authorities Act, 1997 invests the State Authority, District Authorities and the High Court or Tehsil Legal Services Committees with powers to organize Lok Adalats in their respective jurisdictions 7. A Lok Adalat bench is to consist of serving or retired judicial officers and other persons 8. Such other persons must however be from amongst eminent social workers engaged in the upliftment of the weaker sections including scheduled caste, women, children and labour, or lawyers with ten years standing, medical or other experts or reputed persons specially interested in the implementation of the Legal Services Scheme 9. Although every Lok Adalat has the requisite powers to specify its own procedure for determination of any dispute coming before it, to determine civil suits it possesses the same powers as are vested in civil courts under the Code of Civil Procedure in respect of summoning and enforcing the attendance of any witness and examining him on oath, the discovery and production of any document, the reception of evidence on affidavits, the requisitioning of any public record or document or copy thereof from any court or office 10.

A Lok Adalat has powers to effect a compromise or settlement between the parties to a dispute falling within its jurisdiction.

7The Jammu and Kashmir Legal Services Authorities Act, 1987, Chapter V. Sec 18. 8 Id. Sec. 18(2) 9 The Jammu and Kashmir Legal Services Authorities Rules, 1998, Rule 2910 Supra Note 7, Sec. 21 See also Jammu and Kashmir Consumer Protection Act. 1987, Sec. 11(4) conferring like powers upon a Divisional Forum

Such a dispute may be (i) any case pending before; or (ii) any matter, which is falling within the jurisdiction of and is not brought before any Court in the area for which the Lok Adalat is organized 11. The word ‘any matter’ may include even time barred matters. It is not clear however whether the legislature intends a Lok Adalat to relax strict adherence to bar of limitation contained under provisions of Limitation Act wherever the ends of justice so require. Such a noval doze of interpretation would be protected by Section 24 of the Legal Services Authorities Act, 1997 conferring an overriding effect of its provisions over other laws for the time being in force. On the criminal side, offences as are not compoundable under law, cannot however form the subject matter of reference 12. Reference of a pending dispute can be made if the parties thereof agree or one of the parties makes an application in this behalf and the court is prima facie satisfied that reference would result in settlement. A suo motto reference by a court in appropriate cases is not barred. In case of suo motto reference or reference on the basis of an application by one of the parties, the court making such reference has to afford a reasonable hearing to the parties as have not applied for reference 13. A similar hearing has to he given to other party where the reference is made by an Authority or Committee on the basis of an application by one of the parties to a dispute not yet litigated. Although it is not clear whether it is the concerned Chairman of the Authority or Committee receiving such application or the Authority or Committee consisting of several members which is to give a hearing before reference yet each Authority or Committee being

11 While Sec. 13(4) of the State Act confers jurisdiction upon a Lok Adalat in respect of disputes pending in or referable to courts only the Central Legal Services Act confers such jurisdiction in respect of disputes pending in or cognizable by any revenue court or any tribunal as well, See Sec 19(3) of The Central Act of 1987.12 Sec 18(4) of the state Act, 1997 13 Id Sec 19

generally headed by a Judicial officer, the hearing would essentially be judicial in character in all circumstances.

A duplicity of reference may occur in matters not litigated but falling within the jurisdiction of two courts of different Authorities or Committees or matters pending in one court of an Authority or Committee and falling within the jurisdiction of another court of another Authority or Committee. Reference of a dispute which has been withdrawn from a court or dismissed in default seems to be barred even in cases where the cause of action continues to be subsisting. After a reference there can be no withdrawal and the Lok Adalat has to proceed to dispose of the case or matter and arrive at a compromise or settlement between the parties in an expeditious manner, guiding itself and its procedure according to the principles of justice, equity, fair play and other legal principles.14

An award of a Lok Adalat is deemed to be a decree of a civil court or, as the case may be, an order of any other court and besides being non-appealable is final and binding on all the parties to the dispute.15 Where no compromise or settlement is arrived at in respect of a dispute earlier pending before a court, the record of the case has to be returned to such court for its disposal in accordance with law. Such court is to proceed from the stage of the case already reached. But in case of failure to make an award in respect of a non-litigated dispute, the Lok Adalat is to advise the parties to seek remedy in a court.16 Where however a compromise or settlement is arrived at by all the parties on some of the issues of a dispute or such a compromise or settlement is possible on some or all the issues but

14 Id Sec.19(3)and(4) 15 Id Sec 20 16 Id Sec. 19(6)

between or amongst some of the parties only, there are no clear cut guidelines for the parties, the Lok Adalats and trial courts to give effect to such partial compromises or settlement.

The institution of Lok Adalat seems to be gaining field in the State and has been tested by the State Judiciary from the year 1997 A.D. when there was no statutory basis for it (See Table -1). Before statutory recognition Lok Adalats have been confined to the settlement of motor accident claims referred by the concerned Tribunals. From 1997 besides settling motor accident claims by awarding huge compensation the institution has launched its settlement drives in a wide variety of petty criminal matters. The other areas in which the institution has received a meager amount of reference are civil, matrimonial and family disputes and bank cases. There has been no reference for settlement of cases involving revenue, land acquisition and industrial disputes. 100% reference of disputes has been in respect of pending cases at the initiative of concerned courts and tribunals. One of the reasons behind reference of greater number of pending petty criminal matters and motor accident claims is the involvement of lesser amount of technical and complex web which is otherwise utilized by the ordinary courts and tribunals for disposal of such disputes under the legal system, leaving lesser amount of hostility effects upon the parties which prompts them to lean towards rationality and negotiation. In civil and family disputes comparatively larger involvement of adversarial complexity results in greater amount of hostility which the courts find difficult to remove. 17 Removal and overshadowing of such hostile components among the disputants demand greater amount of concentration and time of judges which they are unable to provide because of their routine heavy workload.

17 Sampat D K Mediation, concept and Technique in support of resolution of disputes (1991). National Law School of India University, Banglore p.10.

Year No. of Adalats held

MACT cases

MAT cases

Civil Cases

Land Acq. Dis.

Rev. Dis

PCM

Family Dis.

Indus. Dis.

Bank Cases

Others

Total

Compensation awarded in MACT cases

1991 to 1996

12 761 761

Rs. 680,55,672

1997

13 292 49 38 48 427

Rs. 290,65,189

1998

79 576 156

296

1031

28 13 663

2763

Rs. 808,85,443

1999*

19 106 7 91 808

16 30 1058

Rs. 167,79,000

Total

123 1735

212

425

1887

14 43 663

5009

Rs. 194,78,5303

*Upto 20th March 1999. Source: Office of the J & K State Legal Services Authority, Srinagar.

MACT: Motor Accident Claims Tribunal MAT: Matrimonial Acq: Acquisition

Rev: Revenue Dis: Dispute PCM: Petty Criminal Matters Indus: Industrial.Pre-trial Reference: Reasons for absence

One of the reasons why judges prefer reference of pending disputes to Lok Adalats is their full acquaintance with the case and the frequent availability of the parties or their counsels at a pre-Lok Adalat stage. Studies conducted in some states have revealed that some cases in which decisions have already been reached are referred to popularize the institution. The courts too seem to have confessed it that a solitary appearance of parties before a Lok Adalat which is organised for a day or two may not be adequate for arriving at a compromise or settlement.19

In the case of pre-trial reference the Legal Services Act both State and Central, presume the voluntariness on the part of disputants to make reference without external or third party motivation and help which motivation and help is readily available to disputants in pending matters. Some additional factors which may boost their motivation are long drawn trials, procedural complexity and the financial costs involved - factors which other category of disputants might not have necessarily tasted at the pre-trial stage. Thus a discriminatory approach has been adopted under the legislation which has no nexus to the object to be achieved.

A simplified procedure of lay application has been provided to move the wheels of a Lok Adalat yet this application for reference is to be examined by persons largely obsessed with court-centered thinking. This apparently glittering procedure of

18 Singh Sujan, Legal Aid - Human Right to Equality (l906) p. 290. Deep and Deep Publications. 19 See in this behalf the judgment of Delhi High Court delivered by Mr. Justice Anil Dev Singh in civil writ petition No 5177/98.Abdul Hassan and National Legal Services Authority v. Delhi Vidyut Board and others, AIR 1999 Delhi 88 at p. 93 para 14

reference cannot remove the inceptional apprehensions of injustice among the innocent disputants whose raw applications may not, in the absence of legalistic guidance, ventilate the case fully, apply the law accurately and demonstrate a viable cause of action. While the duty of hearing the party or parties before reference is assigned to the concerned courts where the dispute is pending, in the case of pre-trial reference such a duty is to be performed by respective authorities or committees. Each authority or committee consists of several members besides a judicial member acting as chairman. The presence of bulk of members at the reference stage may remove some fears and apprehensions, ascribed or associated with traditional courts, from the minds of disputants and may stimulate a larger amount of facilitatory intervention which leaves the parties as far as possible unconstrained in constructing an outcome within their own universe, but giving hearing to a party by such a huge body in each case is not only cumbersome but illusory. 20 In the absence of legal provisions commanding holding of regular sessions in this behalf, 21 it is difficult to bring all such members round a table to give a patient and concentrated hearing in each case.

Court sponsored negotiatory processes are said to be potentially problematic as it is doubted whether uncoerced negotiations are possible at all under the supervision of court personnel. 22 What is needed is to allow the parties to retain maximum control over their dispute to come out with a self-

20 Under Regulations 7, 10 and 16 of the Jammu and Kashmir Legal Services Authority Regulations, 1998 each Legal Services committee or Authority is to meet ordinarily once a month but such meetings are meant more for financial and administrative decisions rather than dispute resolution. 21 See Supra note 18 at p 292, the study reveals that lack of acquaintance with a case is one of the major factors for the non-active involvement of the community members of a Lok Adalat, the other factors being lack of legal knowledge on their part, availability of little time in Lok Adalat to get involved and over domination by judicial members in such Lok Adalats. 22 See Simon Robetts, ‘Alternative Dispute Resolution and Civil Justice: An unresolved Relationship’: MLR 56:3. May 1993 p 462.

constructed negotiated outcome. This is not however possible due to the absence of a threshold settlement procedure under the existing law. After a reference is successful a post reference therapeutic examination and intervention is needed involving at least three further tasks: obtaining and assessing accurate information about the disputants and their quarrel; identifying and evaluating the options available and persuading the parties to adopt the course of action which in the light of professional experience is considered to be best suited to particular circumstances. This form of intervention may include an evaluation of the merits of the case and a forecast of what court might do if confronted with such a type of problem. In this type of active, evaluative and directive intervention, the intervener comes to share control over the outcome with the parties. Here the authoritative intervener can significantly alter the universe of meaning within which any agreement can be reached. This is a course in which he is to impress the parties that as a specialist he knows better than them how the issues confronting them are to be resolved.

Lawyers can be a potential wing of the Lok Adalat justice delivery system but the present legislative scheme has made it to breathe at a distance from the legal profession, hijacking their traditional role in the dispute resolution. The system has to be operated not in isolation of lawyers but in a manner enjoying their active confidence.23

Procedural Sabotage

Many disputes arise in locations remote from law courts and are attended to in the first instance by the parties them-

23 It has been recommended that in all private disputes an attempt by lawyers of respective parties to reach a reasonable settlement at pre-trial stage should be a condition precedent for further reference to conciliation courts and regular court see the Law Commission of India, 1h Report on Urban Litigation - Mediation as Alternative to Adjudication, 1988, Paras 3 & 4.

selves. A substantial portion of the period of limitation of a dispute is consumed in exploring the possibilities of a negotiated outcome and in many a cases the dispute passes to lawyers and courts at the brim of the period of limitation. Ordinarily the Legal Service Authorities or Committees have to wait for holding a Lok Adalat till a substantial number of cases or disputes are referred which would justify assembly of a larger body constituting a Lok Adalat. Besides compliance with various formalities including publicity campaign also consumes much of its time. While some disputes at pre-trial stage may be referred to it on the last day of period of limitation, other such disputes may turn time-barred in between the period of reference and the actual holding of Lok Adalat. 24 Under the Legal Services Authorities Act, in the event of failure of a Lok Adalat to arrive at a compromise or settlement in respect of disputes referred to it at pre-trial stage the only remedy to be suggested to the parties by the Lok Adalat is ‘to seek remedy in a regular court’ 25 would a Lok Adalat suggest such a remedy for disputes which have turned time-barred before it? If so, would the period consumed by Lok Adalat be excluded by a regular court while it computes the period of limitation before it?

Both Limitation Act, 1938 as well as Code of Criminal Procedure 1989 make provisions for exclusion of time of proceeding bonafide in court without jurisdiction 26 but for the

24 Difficulties of similar nature are presaged in Rule 23 of the Legal Services Authorities Rules, 1998 while a Legal Services Authority or Committee processes and scrutinizes an application for the grant of legal aid. The application is no doubt to be processed as early as possible and preferably within fifteen days of receipt but there is no remedy if the claim turns time-barred in the meantime as the time consumed can not be excluded by regular courts especially in civil suits. 25 Sec. 19(6), Of the State Legal Services Act, 1997 See also the Central Legal Services Authorities Act, 1987, Sec 20(5). 26 See Limitation Act 1938, Sec. 14 and Code of Criminal Procedure, 1989 Samvat as amended, Chapter XLV-A Sec. 538-D. In criminal cases Sec. 538-B Cr. P.C imposes a bar of limitation for taking cognizance of offences punishable with fine or imprisonment upto a period not exceeding three years. In taking cognizance of offences ….. contd….

application of said provisions it is essential that the earlier proceeding must have been instituted in a court unable to entertain it in view of jurisdictional defect or other cause of like nature. It is pertinent to submit that the Legal Services Authorities Act hesitates to handover the stamp of a court to Lok Adalat and treats it a civil court and its proceedings as judicial proceedings for a limited purpose.27 Where a Lok Adalat is successful making an award the Act provides a suitable mechanism to plug and adjust its conciliatory outcome with the traditional courts and the legal system governing them but fails to provide such a mechanism in case of disputes where no compromise or settlement is reached by a Lok Adalat turning it into a mere corium non judice in such cases. In the absence of such a mechanism the bar of limitation can be fatal in respect of disputes referred at pre-trial stage to a Lok Adalat but are not settled or compromised. The problem becomes more acute in respect of similar disputes related to a Lok Adalat which are triable before different tribunals under enactments which may not necessarily provide facilities like the one permissible to a disputant under section 14 of the Limitation Act. Keeping in view the fact that Lok Adalats are increasingly taking cognizance of disputes ordinarily within the jurisdiction of such tribunals 28 and suggestions are forthcoming from the Judiciary for holding permanent Lok Adalats for settlement of varieties of disputes at pre-litigative stage concerning governmental departments, statutory authorities and autonomous bodies 29, and the uncertainty or incapacity attendant with a Lok Adalat to resolve all such disputes,

otherwise time-barred. sec. 558-G facilitates extension of period of limitation but imposes a duty upon the prosecution to properly explain the delay or satisfy the court that taking cognizance of the offence s in the interests of justice 27 Sec 21(3) of the State Act provides, ‘all proceedings before a Lok Adalat shall be deemed to be judicial proceedings within the meaning of sections 193, 219 arid 226 of the Ranbir Penal code. Samvat, 1989 and every Lok Adalat shall be deemed to be a civil court for the purpose of Section 198 and Chapter XXXV of the Code of Criminal Procedure, Samvat 1989, a similar but limited Protective status is conferred upon a Divisional Forum under Sec 11(5) of the Consumer Protection Act. 1937 28 See supra Table 1 Out of a total of 5009 cases settled by Lok Adalats in the state 1735 cases are such as have been referred by different Motor Accident Claims Tribunals.

29 See supra note 19 at p. 94, paras 17 and 18

it is desirable that the Legal Services legislation should ensure working of Lok Adalat without pre-judice to the rights of disputants to seek remedy in unsettled matters in ordinary courts or tribunals.

In some disputes a party can, during the pendency of a reference before a Lok Adalat, in the absence of procedural safeguards, easily rob his opponent of the value of settlement and ensure that his opponent is unable to enforce the outcome. Interlocutory remedies under the Code of Civil Procedure provide procedural means for seeking appropriate solutions to this inescapable dilemma. Employing some basic fact finding and law-determining measures to minimize the risk of error, these measures are mere rudimentary mechanisms dictated by the necessity of making a rough assessment of the facts and issues in dispute to find a timely solution, however, fallible. Such procedural principles of impartiality require courts at the most basic level, to approach a dispute with an open mind and show no special preference for one litigant over the other. 30 The aim of such injunctions is to obtain a satisfactory balance between, on the one hand, the need to reduce the risk of harm to lawful rights pending litigation and , on the other hand, the imperative of impartiality which argues for non-interference prior to final judgement.31

Court based alternative dispute resolution has been said to be of immense value especially in a wide variety of civil disputes 32 but there is no provision expressly authorizing a Lok Adalat to pass such interlocutory orders wherever a situation demands especially in disputes of civil nature. No doubt power

33 M.H. Redish and L.C. Marshall: ‘Adjudicatory Independence and the Values of Procedural Due Process’ (1986)98 Yale L J 455. 31 A. A. S Zuckerman: Interlocutory Comedies in Quest of Procedural fairness’, (1993) 56. May MLR p. 326. 32 Se supra note 1 at p. 3

has been conferred upon each Lok Adalat to specify its own procedure for determination of any dispute coming before it33 which may include the power to specify a procedure for passing interlocutory orders as well but such an approach, though flexible, has the tendency to leave the disputes of delicate nature on the whim and excessive discretion of Lok Adalats where parties may more often be taken by surprise. An express provision in this behalf would not only bring uniformity in the procedure and enable Lok Adalats to develop healthy precedents but would help the disputants in making an intelligent choice by removing apprehensions of justice being ill served under the process. Besides it is equally important that such interlocutory orders once passed by Lok Adalats should during their continuance, command a status similar to those guaranteed to like orders under the code of Civil Procedure. Moreover pendency of reference before a Lok Adalat shall be a bar to commence legal proceedings in courts and tribunals.34

Another procedural sabotage that may daunt the possible clientele of a Lok Adalat is the absence of a provision which prohibits the parties, in the unsettled disputes, to rely on or introduce as evidence in regular judicial proceedings factors like (i) views expressed or suggestions made by a party in respect of possible settlement of the dispute, (ii) admissions or confessions made in the course of Lok Adalat proceedings, (iii) proposals made by the Lok Adalat and (iv) the fact that a party had indicated willingness to accept a proposal for settlement before the Lok Adalat. The rationale behind such confidentiality is to allow discussion with zeal and candour to reach a settlement without fear that anything said will be used against later if negotiations fail. Here primacy needs to be accorded to party

33 See sec 21(2) of State Legal Services Authorities Act, 1987 34 See in this behalf the Arbitration and Conciliation Act. 1996, Sec 77

domination of the settlement process even if the information withheld from the court as a result may be highly material to the determination of the action before such court. In England such an immunity has been extended to documents which may be relevant to proceedings involving strangers to negotiations.35 Equally ill-effective is the absence of a safeguard in unsettled disputes that a lawyer who has acted as member of a Lok Adalat does not later on act as counsel of a party in such disputes before the ordinary courts. Unlike Legal Services Authorities Act, 1997 the Arbitration and Conciliation Act, 1996 has adopted a healthy policy in this respect which would ensure smooth and optimum development of arbitration and conciliation. 36

Litigative Legal Services and Conciliatory Settlement: The practical Gaps.

The object behind the statutory legal services scheme is neither to find work for lawyers or courts nor to encourage litigation but to diminish it if possible. Under conditions of scarce human and material resources it has been suggested that nothing should be done to add to the volume of the work of overburdened courts if justice can otherwise be secured to those who need it.37 It should be a machinery for promoting love and peace and not hatred and strike. The weaker sections, in view of

35 Rush & Tomkins Ltd. V. GLC (1988) 3 All ER 737; See also Cyril Glasser, ‘Civil Procedure and the Lawyers -- the Adversary System and the Decline of the Orality Principle (1983)56. 3 May MLR pp. 307-317 at pp 309-310. 36 See Arbitration and Conciliation Act, 1986, Secs. 80 and 81 dealing with the role of the conciliator in other proceedings and the admissibility of evidence in other proceedings. Besides Sec. 77 prohibits parties to conciliation to resort to judicial proceedings in respect of a dispute forming subject matter of conciliation proceedings, there is no such provision under Legal Services Act, 1997 prohibiting recourse to courts in respect of a referred dispute; for a detailed study of need for secrecy in mediation see. P.M. Bakshi, ‘the obligation of secrecy in Mediation’, in Alternative Dispute Resolution - What it is and How it Works edited by P C Rao & William Sheffield (1997) ICADR P.p. 292-98. 37 Supra note 6 Krishna lyer Report, p.55

special features of their problems, have been characterized as the first concern of social justice needing special, sensitive and pragmatic measures of protection.38 The reason is that it is beyond the capacity of these down trodden rustics to prove their cases according to the refined requirements of a ‘sophisticated system’ including especially the technical evidence and the elaborate formalities of the procedure.39

The law governing delivery of legal services in Jammu and Kashmir has favoured a conciliatory approach towards dispute resolution right from the beginning.41 Under the modernized scheme the State Authority is duty bound to encourage settlement of disputes by way of negotiation, arbitration and conciliation.41 The Member-Secretary of the State Authority is empowered to take extra measures to draw schemes for effective and meaningful legal services for settling rural disputes at the door steps of the rural people including organization of Mediation Centres in the rural as well as urban areas. 42

The weaker sections of the State comprising of women, children, scheduled castes, scheduled tribes, gujjar, backward, and bakerwal, physically handicapped constitute 53.90% of the total beneficiaries of legal services in Jammu and Kashmir (See Table 2). The official Legal Services Organization has obviously turned into an instrument by which disputes of weaker sections, howsoever trifling in nature are straightway taken to

38 Report on National Juridicare - Equal Justice - Social Justice (1977) pp. 59-60

39 Supra note 6 Krishna Iyer Report’ pp. 108-9 40 For a detailed study of such approach under the repealed schemes see the Jammu and Kashmir Legal Aid to the Poor Rules, 19S4 and the Jammu and Kashmir State Legal Aid to the Poor Rules, 17, Rule 12 41 The Jammu arid Kashmir Legal Services Authorities Act, 17, Sec. 4(f See also

Legal Services Authorities Rules, 18, Rule 2t)(a) which guarantees State Legal Services in all matters where such service is aimed at amicable settlement of the dispute by bringing about conciliation between the parties to the dispute. 42 The Jammu and Kashmir Legal Services Authorities Rules, 1, Rule 7(i)

Persons who have been provided legal aid in courts by the State Legal Services Authority and its predecessor, Legal Aid Board*

Year Women Children Sch. Caste

Sch. Tribe

Backward Classes

Gujjar & Bakkarwal

Physically Handicapped

Others Total

As on 1-3-1991

1437 110 269 25 138 0 0 3954 5933

14-3-91 to 15-3-92

361 18 31 25 9 0 0 213 635

16-3-92 to 31-12-93

160 5 14 3 2 8 6 62 257

1-1-94 to 31-12-94

1995-96 1146 31 114 0 48 143 25 587 2100

1996-97 836 36 73 6 56 59 21 439 1521

1997-98 936 31 134 1 24 12 6 230 1276

1998 to 31-3-99

104 12 10 13 0 145 284

Total 4980 243 645 51 277 222 58 5630 12006

Percent 41.47 2.02 5.37

0.42 2.30 1.84 0.48 46.21 100.00

Source: Office of the J & K State Legal Services Authority, Srinagar.

courts. With the limited object of ameliorating their short term financial problems the legal aid beneficiaries have been regarded so far simply as traditional clients without money. Likewise women and children constitute 43.49% of the total beneficiaries with their cases involving mostly domestic differences. Without an attempt to effect reconciliation, if possible, the provision of legal aid in respect of women and children has been objected in view of its potential to result in break-up of families.43 The State of Jammu and Kashmir is increasingly becoming a party taking active steps which would have such untoward results. The state through its Legal Services Organisation is made to spend huge amounts as counsel fee, incidental expenses and court fee to litigate each aided case,44 without knowing the results of contentious court battles. This does not only consume the substantial portion of the budget of official Legal Services Organization but has other adverse effects on it in terms of its precious time and energy. The whole organization remains busy and overburdened with this litigational work load in processing scrutinizing applications, allowing, refusing legal aid, contacting panel layers, holding meetings and disbursing amounts to lawyers and in other multifarious activities and so on. This leaves little time with the organization to devise conciliatory efforts for dispute resolution and come out at the grass root level to identify cases which can be settled at a inc-trial stage through appropriate conciliatory efforts.

43 Supra note,6 Krishna Iyer Report at p. 61 In Australia under the Family Law Act. 1975 (Sec. 79) there can n’t be a contested hearing in relation to certain family disputes unless the parties to the proceedings have attended a Conference in relation to the matter to which the proceedings relate Parties must attend in person along- with all relevant documents and make a bonafide endeavour to reach agreement on relevant matters in issue between them - see in this behalf Richard Ingleby - Court Sponsored Mediation: the case against Mandatory Participation, (13) 56: 3 May MLR, pp. 441-51 at p.444. For a study of similar provisions in India see the Hindu Marriage Act, 1955, sec. 23(2) and (3) and the Family Courts Act, 1984, sec. 9(1). 44 See the Schedule attached to the Jammu and Kashmir Legal Services Authorities Regulations 1998, each advocate representing the case of an aided

person is entitled to fee in three installments which is Rs 950 per case at Tehsil/sub Divisional level: Rs 1350 per case at District level and Rs 3500 per case at High Court level.

In the absence of other conciliatory means of settlement reference of aided disputes of weaker sections in particular and others in general to Lok Adalats at pre-trial stage seems to be the only alternative available with the Legal Services Organization. Although disputes of weaker sections have been termed as a priority item of social justice, reference of such disputes at pre-litigation stage to Lok Adalats in the state has been generally ignored. This official apathy towards such disputes has occurred not only after the institutionalization of the Lok Adalat but before the naked eyes of state judiciary as well which has been placed at the steering wheel of the Legal Services machinery including Lok Adalats.

Conclusion and Suggestions

Conciliatory justice is said to be able to produce qualitatively better results than contentious litigation which often results in final break of the relationship among the litigants. Tue adopted procedure is more accessible more rapid, informal less expensive and the adjudicators are more capable and eager to understand the parties plight and the environment in which it has arisen.45 The Legal Services Authorities Acts both at the Centre and in the State have made out a case for the courts to embrace the system of alternative dispute resolution in the shape of Lok Adalat which has much to offer in support of the judicial process The integration of this type of alternative dispute resolution process into the public justice system has much potential to make the traditional court a multidoor court house where judges would emerge as mediators and not merely as

45 Supra note 1 at p 28.9

traditional judges performing a narrow managerial activity of hearing arguments and then formulating and imposing decisions.

A Lok Adalat has in view the social goals of ending feuds rather than pending disputes restoring peace in the family, community and locality. Mutually agreed settlements arrived at by the disputants in Lok Adalats, therefore, contribute to the greater social solidarity and better-cohesion among litigants.46 In the case of Jammu and Kashmir the institution would help the state in realizing the constitutional commitment to secure a judicial system which is humane, cheap, certain, objective and impartial whereby justice shall be done and shall be seen to be done. 47 But for a further realization of the said goal the legislation promoting the institution would have to fill certain gaps inter alia pertaining to the minimum standards and guarantees to be maintained in this alternative kind of adjudicatory procedure which lacks at least partly those formal guarantees of procedural fairness as are typical of ordinary procedure. To attract disputants to refer their disputes to Lok Adakts at pre-trial stage the legs1ation will have to facilitate motivation and help at least to the extent to which it is available to disputants in pending cases. Association of retired judges with each Legal Services Authority and Committee with responsible assignment of giving a patient and concentrated hearing to disputants at reference stage may’ help to overcome various organizational and administrative difficulties in this behalf besides the advantage of removing associated apprehensions of the disputant at the reference stage. After a reference a therapeutic examination of the dispute, identifying and evaluating the options available and

46 N.R.M Menon: “Lok Adalat: peoples programmes for speedy justice” Indian Bar Review Vol:3(2), 1988 p. 132, see also Upendra Baxi, Towards a Sociology of Indian Law (1985) p.90

47 The Constitution of Jammu and Kashmir, sec. 18

persuading the patties to adopt a self-construed course of action best suited to their circumstances is to be undertaken. To achieve this, retired judges, senior lawyers and legal aid advocates will have to be associated with each Authority and Committee in such a way that they become the guiding manpower in the threshold settlement procedure of a Lok Adalat.

Lok Adalats In the slate have been exercising jurisdiction in respect of disputes pending in tribunals although Section 18(4) of the Legal Services Authority Act, 1997 does not expressly confer such a jurisdiction over them. Section 18(4) needs to be overhauled therefore to include tribunals as well which would enable a lawful exercise of jurisdiction by a Lok Adalat in respect of disputes pending or referable to tribunals. A suitable mechanism is needed enabling the legislation to plug pre-trial references with the ordinary legal system where a Lok Adalat fails to reach a settlement in such references. This can be achieved by removing the bar of limitation in appropriate cases so as to enable the Parties to seek remedy in a court or tribunal. Sec. 19(6) should be amend in such a way that the ordinary courts and tribunals are, while receiving such unsettled disputes and computing period of limitation in their respect, in a position to exclude the time consumed by Lok Adalats in attempting a settlement in respect of such cases. A Lok Adalat shall like a civil court possess express and adequate powers to pass interim and interlocutory orders so that it is beyond the capacity of a party to reference to frustrate the Lok Adalat proceedings. A uniform rather than individualized procedural approach can be prescribed under Section 21(e) which should guarantee a status sufficient for observance of such orders. Equally important is an express bar that debars the parties to commence proceedings in courts and tribunals in respect of dispute forming the subject matter of reference before a Lok Adalat. To encourage settlement of disputes through the new institution the legislation will have to promise a fearless negotiating atmosphere to the parties by according a degree of confidentiality to negotiations and correspondence between the parties where such negotiations fail. All such negotiations should, it is submitted, therefore be shielded from production to the court where they fail to effect their purpose. Lastly disputes of legal aid seekers should form as a priority item of reference to Lok Adalats and every encouragement should be offered to disputants especially belonging to

weaker sections to settle their disputes at pre-trial stage by resorting to alternative dispute resolution mechanisms. Establishment of neighbourhood mediation centres by each Authority and Committee of Legal Services on the lines recommended by the National Juridicare Report would help the legislation in achieving its glamorous objective of up-lifting of the weaker sections.

48 Supra note 8 at pp. 77-78.