..not a law student but as a media person

H.M. Seervai Memorial lecture

(He got Padma Bivushan Award in the year 1983)

Organized by KIIT Law School and me, a law student inside the audi. An attempt to report as a media person. The chief Justice of Orissa High Court Justice Dr. B S Chohan was the chief guest. He emphasized on the duty of the citizen. He has also said that the Hindu jurisprudence mainly emphasize on the duty. In the case of Chandravan the court said it is fallacy to think there is only right and no duty in our constitution. At last he said that Part IV of the constitution is not empty and high sounding words but ideals.

Justice S. B. Sinha, the judge of the Supreme Court of India, was the Speaker. He said a thing can be differently interpreted. For e.g. Orissa is a rich state or Orissa is a poor state. It can be said as Orissa is a rich state of poors. He said that in the A.K.Gopalan’s case, it was said about Art. 21. The SC said it should be read with Art. 14, 19, the Preamble, Part III and IV.

According to him the legislature and the executive is not working while the judiciary is over acting. So, he raised the question of separation of powers. He said a case should be considered to its merit. At the same time he gave the example of SEZ and said India should take decision according to the doctrine, which she follow: the market doctrine, the justice doctrine or the social doctrine. So, what was the law in the 17th century is not the law now. He criticized Globalization and said the Sovereignty will be demolished and the territory will be Pepsi/Cola land.

Justice Lokur the judge in Delhi High Court conducted our class and gave us the following information. There are 30 lakhs cases pending in the High Court. Similarly the number is 50000 in the Supreme Court. Moreover the total figure in the country is about 3 crores. In1999, the Parliament said that, alternative dispute solving mechanism should be used for the resettlement of the conflict. Prior to that there was the Arbitration Act. Section 19 of the Act says about the establishment of the Lok Adalat. So, in July 2002 section 9 was added in the CPC.

According to Lokur J. mediation is the best way for the resettlement of the dispute. Mediation is the mechanism when the dispute of the both the party is solved by the neutral third party. In this process there is no judge as such unlike in the court of law. But that neutral party has to just facilitate in settling the disputes. For example in the court of law, there are two parties and there was the fight for the compensation for the infringement of the rights. But here there is the settlement. Both the party has to agree the truth and finally there was the judgement. If one of the party does not agrees to disclose the truth or gives the false statement, which the other party could not able to agree upon then the full mechanism becomes hopeless. Here the mediator has to expressly state that his is the neutral person. But there is no such provision in case of the court of law because it is implied. There is also the provision of Cocus, in which one party will go out and the other party will disclose all, which he wants to say the mediator personally such as anything related to matrimonial life or any personal or family matter. So, there are 4 steps as a whole viz. Introduction, Joint session, Private session and the Joint session for the exploration of the possibilities. There may be more than one private session as dependent upon the case. There is also the role of the the lawyer in this regard like to see the legal aspects of a case because the parties are often confused about their own case. Due to ignorance they could not able to know what has gone wrong but simply thinks something has gone wrong. Negotiation is the second job of the lawyer to look into.

There are many advantages of this mechanism. They are as follows:

Once the matter is solved there is no appeal because it is solved taking the interests of both. So, it is the final one. But in case of the court of law, the court have to give judgment in favour of one. So, there is further appeal. And at the last the SC has to also give judgment in favour of one of the party.

Secondly, it is the speediest way of solving a case. The matter can be solved even in 2 hous and max to max it is one month. But in the court, if the rule of CPC is strictly followed, then also it is not less than 8 months.

Thirdly it is cheaper. Here you may not employ a lawyer and the run to home to court is saved.

After that the question arise how a mediator is selected?

There are two ways of selecting a mediator. The first one is the Court integrated mediation, where the mediator are already involved in the court and the judge gives him the case if he thinks that it can be saved through mediation.

The second process is by training. There is a programme of 40 hours of training. The institute summons application and the students are selected in the basis of patient, attitude of cooperation and the ability to look the same thing in different perspective. Theoretically a person not from the law background can also go for it.

Lokur J. has also given the example of the lawyering of M. Gandhi, how he solved the matter. His client got the compensation and the other party also becomes happy because he gave it in installment.