Ombudsman

 

Ombudsman

Meaning and Role

An indigenous Swedish, Danish and Norwegian term, Ombudsman is etymologically rooted in the word umboosmaor, essentially meaning ‘representative’. Whether appointed by a legislature, the executive, or an organization, the typical duties of an ombudsman are to investigate complaints and attempt to resolve them, usually through recommendations (binding or not) or mediation. Ombudsmen sometimes also aim to identify systemic issues leading to poor service or breaches of people's rights. At the national level, most ombudsmen have a wide mandate to deal with the entire public sector, and sometimes also elements of the private sector (for example, contracted service providers). Further redress depends on the laws of the country concerned, but this typically involves financial compensation.

The Government of India has designated several ombudsmen (sometimes called Chief Vigilance Officer (CVO)) for the redress of grievances and complaints from individuals in the banking, insurance and other sectors being serviced by both private and public bodies and corporations. For example, the CVC (Central Vigilance Commission) was set up on the recommendation of the Santhanam Committee (1962-64). CVC has been conceived to be the apex vigilance institution, free of control from any executive authority, monitoring all vigilance activity under the Central Government and advising various authorities in Central Government organizations in planning, executing, reviewing and reforming their vigilance work.

The major advantage of an ombudsman is that he or she examines complaints from outside the offending state institution, thus avoiding the conflicts of interest inherent in self-policing. However, the ombudsman system relies heavily on the selection of an appropriate individual for the office, and on the cooperation of at least some effective official from within the apparatus of the state.

 

Reference:

1) CBSE Class XII Legal Studies

Lok Adalat

 

Lok Adalat

The concept of Lok Adalat (People’s Court) is an innovative Indian contribution to the global legal jurisprudence. The institution of Lok Adalat in India, as the very name suggests, means, People's Court. "Lok" stands for "people" and the term "Adalat" means court. India has a long tradition and history of such methods being practiced in the society at grass roots level.

In ancient times the disputes were referred to ‘panchayats’ which were established at village level. Panchayats used to resolve the dispute through arbitration. It has proved to be a very effective alternative to litigation. This very concept of settlement of dispute through mediation, negotiation or through arbitral process known as decision of "Nyaya-Panchayat" is conceptualized and institutionalized in the philosophy of Lok Adalat. It involves people who are directly or indirectly affected by dispute resolution. 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.

The modern institution of Lok Adalat is presided over by a sitting or retired judicial officer such as the chairman, with usually two other members- a lawyer and a social worker. A Lok Adalat has jurisdiction to settle any matter 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 in the nature of civil or non-compoundable criminal disputes. The salient features of Lok Adalat are participation, accommodation, fairness, voluntariness, neighbourliness, transparency, efficiency and lack of animosity.

The benefits of Lok Adalat include:

1) 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.

2) There is no strict application of the procedural laws and the disputing parties can directly interact with the judges.

3) The decision of Lok Adalat is binding on the parties and its order is capable of execution through legal process.

History of Lok Adalat:

The first Lok Adalat was held on March, 14, 1982 at Junagarh in Gujarat. Lok Adalats have been very successful in settlement of claims including- motor accident claims, matrimonial/family disputes, labour disputes, disputes relating to public service such as telephone, electricity, bank recovery cases etc.

An overview of laws on Lok Adalat

Pursuant to Article 39-A of the Constitution of India, the Parliament has enacted The Legal Services Authorities Act, 1987. The Act provides for various provisions of dispute settlement through Lok Adalat. The Act constitutes legal services authorities to provide free legal aid and competent legal services to the weaker sections of the society. In 2002, the Act was amended to establish permanent Lok Adalats for public utility services.

Furthermore, the National Legal Services Authority (NALSA), a statutory body constituted under the National Legal Services Authorities Act, 1987 is responsible for laying down policies and principles for making legal services under the Act and frame the most effective and economical schemes for legal services. NALSA is engaged in providing legal services, legal aid and speedy justice through Lok Adalats.

It also disburses funds and grants for implementing legal aid schemes, literacy camps and programs. Similarly, the State Legal Services Authorities and District Legal Services Authorities have been constituted in every state capital and districts respectively.

 

Reference:

1) CBSE Class XII Legal Studies

Laws on Mediation and Conciliation

Laws on Mediation and Conciliation

Both Mediation and Conciliation are governed by Section 89, a provision inserted by the 2002 amendment of the Civil Procedure Code, 1908 (for short, ‘CPC’). The Code is the primary legislation governing the method, procedure and legal practice of civil disputes. Section 89 of the Code only deals with court referred mediation. Prelitigation mediation is not yet governed by any law in India.

Similarly, conciliation only finds a reference in Section 89, Civil Procedure Code, 1908. The process and methods within conciliation have been described in the Arbitration & Conciliation Act, 1996. Further, the Industrial Disputes Act, 1947 also provides for conciliation as a viable means of resolving disputes in the labour sector.

 

 

Reference:

1) CBSE Class XII Legal Studies

Conciliation

 

Conciliation

Meaning

Conciliation is a process similar to mediation as parties out of their own free will appoint a neutral third party to resolve their disputes. The key difference between mediation and conciliation lies in the role of the neutral third party. A mediator merely performs a facilitative role and provides platform for the parties to reach a mutually agreeable solution. The role of a conciliator goes beyond that of a mediator. [1]

A conciliator may be interventionist in the sense that he/she may suggest potential solutions to the parties, in-order to resolve their claims and disputes. [1]

The Arbitration and Conciliation Act 1996 governs the process of conciliation.

 

Reference:

1) CBSE Class XII Legal Studies

Process of Mediation

Jay Shree Ram! Welcome to this blog. The objective of this blog is to discuss about the process of mediation.

Process of Mediation:

The neutral third party facilitating the process of mediation is known as a mediator. Mediation does not follow a uniform set of rules, though mediators typically set forth rules that the mediation will observe at the outset of the process. Successful mediation often reflects not only the parties’ willingness to participate but also the mediator’s skill. There is no uniform set of rules for mediators to become licensed, and rules vary by state regarding requirements for mediator certification. [1]

Broadly speaking, mediation may be triggered in three ways:

(i) Parties may agree to resolve their claims through a pre-agreed mediation agreement without initiating formal judicial proceedings (pre-litigation mediation). [1]

(ii) Parties may agree to mediate, at the beginning of formal court proceedings (popularly known as court referrals). [1]

(iii) Mediation may be taken recourse of, after formal court proceedings have started, or even post trial, i.e. at the appellate stage.

Under the Indian law, contractual dispute (including money claims), similar disputes arising from strained relationships (from matrimonial to partnership), disputes which need a continuity of relationship (neighbour’s easement rights) and consumer disputes, have been held to be most suited for mediation. For example, a suburban homeowner might find that the formal legal system offers no realistic way to deal with his neighbour's overly bright driveway lights that shine in his bedroom window. Such disputes however can be mediated. [1]

Mediation gives the participants an opportunity to raise and discuss any issues they might wish to settle. For example, it might turn out that the neighbour lit his driveway because the homeowner's dog went on his lawn, or because the homeowner's tree was encroaching upon his property. Because mediation can handle any number of outstanding gripes or issues, it offers a way to discuss (and solve) the problems underlying a dispute and create a truly lasting peace. [1]

The Supreme Court of India in its judicial decision has expressly clarified the ambit of mediation. According to Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., [(2010) 8 SCC 24] representative suits, election disputes, criminal offenses, case against specific classes of persons (minors, mentally challenged) have been excluded from the scope of mediation. [1]

Reference:

1) CBSE Class XII Legal Studies

Mediation

Jay Shree Ram! Welcome to this blog on mediation. The objective of this blog is to understand the concept of mediation and its tyes.

Meaning 

Mediation is a method of ADR in which parties appoint a neutral third party who facilitates the mediation process in-order to assist the parties in achieving an acceptable, voluntary agreement. Mediation is premised on the voluntary will of the parties and is a flexible and informal technique of dispute resolution.

Mediation is more formal than negotiation but less formal than arbitration or litigation. Unlike litigation and similar to arbitration, mediation is relatively inexpensive, fast, and confidential. Further, mediation and arbitration differ on the grounds of the nature of an award rendered. The outcome of mediation does not have similar binding like an arbitral award. However, though non-binding, these resolution agreements may be incorporated into a legally binding contract, which is binding on the parties who execute the contract.

Types of Mediation

Mediation can be classified into the following categories:

Evaluative mediation - Evaluative mediation is focused on providing the parties with an evaluation of their case and directing them toward settlement. During an evaluative mediation process, when the parties agree that the mediator should do so, the mediator will express a view on what might be a fair or reasonable settlement. The Evaluative mediator has somewhat of an advisory role in that s/he evaluates the strengths and weaknesses of each side's argument and makes some predictions about what would happen should they go to court.

Facilitative mediation - Facilitative mediators typically do not evaluate a case or direct the parties to a particular settlement. Instead, the Facilitative mediator facilitates the conversation. These mediators act as guardian of the process, not the content or the outcome. During a facilitative mediation session the parties in dispute control both what will be discussed and how their issues will be resolved. Unlike the transformative mediator, the facilitative mediator is focused on helping the parties find a resolution to their dispute. The facilitative mediator further provides a structure and agenda for the discussion.

Transformative mediation - Transformative mediation practice is focused on supporting empowerment and recognition shifts, by allowing and encouraging deliberation, decision-making, and perspective-taking. A competent transformative mediator practices with a micro-focus on communication, identifying opportunities for empowerment and recognition as those opportunities appear in the parties' own conversations, and responding in ways that provide an opening for parties to choose what, if anything, to do with them.

Mediation with arbitration - Mediation has sometimes been utilized to good effect when coupled with arbitration, particularly binding arbitration, in a process called 'mediation/arbitration'. The process begins as a standard mediation, but if mediation fails, the mediator becomes an arbiter. This process is more appropriate in civil matters where rules of evidence or jurisdiction are not in dispute. It resembles, in some respects, criminal plea bargaining and Confucian judicial procedure, wherein the judge also plays the role of prosecutor.

Despite their benefits, mediation/arbitration hybrids can pose significant ethical and process problems for mediators. Many of the options and successes of mediation relate to the mediator's unique role as someone who wields no coercive power over the parties or the outcome. The parties’ awareness that the mediator might later act in the role of judge could distort the process. Using a different individual as the arbiter addresses this concern.

Online Mediation - Online mediation employs online technology to provide disputants access to mediators and each other despite geographic distance, disability or other barriers to direct meeting.

Reference:

1) CBSE Class XII Legal Studies

Administrative Tribunals

Jay Shree Ram! Welcome to this blog on Administrative Tribunals. The objective of this blog is to discuss about the administrative tribunals in Bharat. 

Administrative Tribunals

The 42nd Amendment Act, 1976 added Articles 323-A and 323-B to the Constitution of India. These articles empower the Parliament to set up tribunals for adjudication of specialised disputes. The range of disputes mentioned in the Constitution refers to:

1) disputes pertaining to service conditions of the government officers,

2) collection and enforcement of tax,

3) industrial and labour disputes,

4) matters concerning land reforms,

5) elections disputes,

6) ceiling on urban property, and

7) production, procurement, supply and distribution of food-stuffs or other essential goods.

Thus the 42nd Amendment Act ushered the era of ‘tribunalisation of Indian judiciary’. Further, the enactment of Administrative Tribunals Act, 1985 took the constitutional objective further and set-up the Central Administrative Tribunal (CAT) and State Administrative Tribunals. The CAT was set up pursuant to the Act of the Legislature in 1985. The tribunals exercise jurisdiction of service matters of employees covered by it. The appeals against the orders of the administrative tribunals lie before the Division bench of the concerned High Court. The tribunals are procedurally flexible and this flexibility increases their efficiency. For example, The Administrative Tribunals Act, 1985 allows the aggrieved persons to appear directly before the tribunals. [1]

The overall objectives of the tribunals are to provide speedy and inexpensive justice to the litigants. Since government is a major litigant in the courts and government related litigation has increased in the delay and pendency of litigation, such tribunals over the past two decades have significantly contributed in supplementing the role of the courts in adjudication of service disputes. The tribunals however are not meant to replace the Courts. This has been explained by the seven judge bench of the Supreme Court in L Chandra Kumar case (JT 1997 (3) SC 589) where it was held that tribunals would not take away the exclusive jurisdiction of the courts, and their decisions could be scrutinised by the Division bench of the High Courts. [1]

One may also note that these administrative and state tribunals are not an original invention of the Indian political and legal system. Such tribunals are now well established in the member countries of the European Union and the United States. [1]

1) Today, CAT has 17 regular benches, 15 of which operate at the principal seats of High Courts and the remaining two at Jaipur and Lucknow. [1]

2) The tribunal consists of a Chairman, Vice-Chairman and Members. [1]

3) The members of the tribunal are drawn both from judicial as well as administrative streams so as to give the tribunal the benefit of expertise both in legal and administrative spheres. [1]

Reference:

1) CBSE Class XII Legal Studies