The expression of an “Access to Justice” cannot be easily identified. It is a local government, legal, and theoretical sign of undeniable potential and allurement for the subjects of statecraft. An Access to justice has an intrinsic progression with the term “justice”, in the sense that it is its minimum circumstances. The thought of justice evokes the apprehension of the rule of law, of the determination of conflicts, of an administration that make law and of those who enforce it; it expresses fairness and the implicit acceptance of the principle of equality .
Access to justice relates to the ease of entry to a legal administration and also to the nature of the de jure fact that carries its promise . The notion of “access to justice” has undergone an extensive transformation; earlier a right of access to judicial preservation meant essentially the discontented individuals official right to merely litigate or defend a claim. Basically, the reason behind was that access to justice was a natural right and natural rights did not require favorable state action. The disclosure of the notion of welfare state, the right of access to justice has profit special attention and it has become a right of effective access to justice. In the modern, egalitarian legal system the constructive access to justice is regarded as the most basic human right which not only proclaims but promise the legal rights of all.
In today’s world, “Access to justice” means having possibility to an affordable, quick, satisfactory settlement of controversy from a credible forum. These words “access to justice” serve to focus on two basic purposes of the legal system-the system by which people may acquit their rights and resolve their controversy under the general auspices of the state. Thus it need that the system, firstly, must be equally accessible to all, and secondly, it must lead to results that are individual person and socially justice.
Access to justice can be broadly classified into official and unofficial access to justice. The official access to justice is basically adjudication of the controversy by the courts, which follow the rules of civil and criminal procedure. This mode of justice delivery method though the primary model, has numerous shortcomings such as cost gathering, inordinate delays and other technical gathering like laches and execution of courts order. On the other hand, the informal access to justice includes alternative modes of controversy intention such as arbitration, conciliation, mediation, Lok Adalat and Nyaya Panchayats. The preservation of that the nomenclature suggests, alternative modes are more of a supplementary phenomenon and were devised with that very intent. However, one has to recall that these methods of controversy intention are needed to always adhere to certain basic postulates of controversy intention – parity of potential between the contesting parties being one such postulate. If they are very conceptions offer scope for coercion or undue influence, they cannot be examined to be imparting justice. It has to be recalled that justice is the beacon of any controversy intention method and not just mere settlement of controversy. If mere settlement becomes the beacon, then there comes the element of potential imbalance and declared that the society becomes an asymmetrical leading to tussle and eventual conflict between potential holders and potential addressees.
WHAT IS MEDIATION?
The word “Mediation” is the form of Alternate Dispute Resolution (ADR). The reason of that termed ‘alternate’ is that it is a controversy intention method that is perceived to be an unconventional to the traditional system of court procedures. Mediation described as the maintenance of a conference process between the disputants, with a third person, namely the mediator, assisting the disputants in, first, recognised and understanding their underlying concerns and needs and, based on these, in conference a settlement that is agreed by both the parties. Mediation has been defined working as a flexible process conducted confidentially in which a neutral person assists the parties in working towards a conference contract of a controversy or difference, with the parties in ultimate control of the solution to settle and the terms of idea.
The focus is on decision is that it differs from court procedures where the focus is on the realization of justice. If the parties are not capable to settle because, for example, the controversy concerns a matter of principle, or where there are no prospects of success in reaching a an agreement, mediation is not an appropriate tool to deal with the controversy. This is one of the important reasons why mediation should not be mandated for all controversy in a one-size-fits-all manner. Since the focus of mediation is a contract, a capability of the parties to settle is of paramount importance. It is mandatory mediation lost sight of the essence of mediation. Mediation is defined as an optional process, not only because it is a process that is undertaken freely, but also because the outcome is freely attained by the parties, that is, no consequence can be imposed on the parties as is the case with arbitration or adjudication by court procedure. Coercion as to entering an action as well as to the consequences to organize the antithesis of the essence of mediation.
Furthermore, the fact that the disputants are forced into pursuing a certain method of controversy ideas may contribute to their incapabilities to co-operate and reach an agreement. The decision thereof is precisely the alternative of what proponents of mediation attribute of the process of mediation, namely, that mediation is a successive tool in the attainment of access to justice. The decision is an extra, obligatory and a futile step in the long journey of access to justice, imposing on the parties extra time delays and extra costs. In such a situation, mediation is necessary may be described as an obstacle to access to justice.
Although there is a difference between coercion to enter the procedure of mediation and coercion to settle, coercion to enter a mediation procedure may lead to coercion to settle. Other commentators argue that the distinction between coercion to enter an action of mediation and coercion to settle are distinct and individual, and that coercing parties to attempt conciliation is not necessarily tantamount to enforcing an agreement.
Another essential element of mediation is that it is a confidential procedure that is without prejudice. It follows that, if a mediation an action can later be scrutinised by a court with the potential to castigate a party with adverse costs, should the court be of the view that the individual party was unreasonable in either not entering into an action of mediation at all, or in not reaching agreement during an action, there can be no confidentiality in the procedure. This is a means to mandate not only the use of mediation as a controversy intentional method, but ultimately also a means whereby to mandate a contract by the parties, who may settle despite an unfair agreement for fear of incurring a punitive costs order against them should they decide not to settle but to pursue their rights through the court procedure. In this manner, the difference between a coercion to enter into mediation and a coercion to settle is blurred. When this happens, the traditional profit of mediation are relinquished.
Halsey v. Milton Keynes General NHS Trust,
The courts were banned from compelling incapable parties to refer their controversy to mediation.
The Court of Appeal communicates the view, obiter, that in light of developments in mediation practice in the past decade, perhaps a ‘bold judge’ may revisit the result in the Halsey case and rule that a court may compel incapable parties to attempt mediation.
Nevertheless, compelling litigants to participate in an optional procedure by threat of sanction, such as adverse costs orders, is not only ironic, but also divests the action of its essence. In fact, necessary of mediation is an oxymoron. Worse, still, is an obligation to settle. If the obligation ends at entering the procedure, the parties are free not to settle and to pursue their rights in a court of law. If forcefully to settle, however, justice is not only retarded, but rejected.
MEDIATION : ACCESS TO JUSTICE IN INDIA
In present scenario the mode of “access to justice” through the courts, followed in India is based on adverse legalism. The adverse system of law is generally followed in common law countries, and is distinguished by the state’s neutrality and in which the parties are accountable for initiating and conducting litigation except in criminal matters wherein the state initiates the progress. This mode of access to justice is an inheritance from the British and was applied by the British government to exploit the Indian masses.
The whole set up was for the profit of the potential holders and not for the potential addressees. In this method there was no parity of potential between the parties to the controversy and it was plagued by high cost, postponed, uncertainty and exploitation of the parties by an advocates. This mode of access to justice misplaced the community justice system as well as the last mark of the inquisitorial model, which was prevalent in earlier India. This inherited mode of access to justice is incapable to deliver as it is a relic of colonial rule, was born out of the required of the colonial masters to perpetuate their dominance and was thus primarily designed in the similar, with ‘justice’ being more or less an afterthought. It was fashioned to issue a resemblance of justice so as to avoid dissent, which is but the real fallout of denial of the similarity. Real and constructive justice, for obvious reasons, was not a priority of the colonial masters. The system prevalent then, and woefully for us, still in continuing is naturally partial to the well heeled. It discriminates on economic grounds, creating disparities right at the outset, de facto refusing to some even access to the administration of justice delivery, and the de facto decline is a consequence of us trying to work the de jure equality6 through an implement at odds with it, on account it is natural iniquitous.
After independence on 1947, the Constitution of India came into being the approach towards access to justice was redesigned and modified, and an endeavour was made to bring parity of potential in modes of controversy action. According to the preamble of the Indian Constitution resolves to secure to all its citizens, justice-social, economic and local government. In the, Article 14 of the Indian Constitution said that “Equality before the Law – The State shall not deny to any person equality before the law and the equal protection of the laws within the territory of India.” The words “equal protection of laws” recommended the two things: Firstly, that every person is entitled to the preservation of all the laws of the land, and secondly, every person within Indian territory is equally entitled to that conservation.
Article 14 casts a duty on the State to deliver the substantial guarantee of the laws, in other words the state has been implemented with a duty of delivering justice to all the people within the territory of India. In Article 256 of the Indian Constitution provides for two important things, firstly, it obliges the State governments to execute the laws, which are the laws passed by the State and Union Legislatures. Secondly, on failure to do so, the Union government is under a commitment to direct the State government to execute the laws. Thus, under the Indian Constitution, a strict duty is cast in the State to ensure that there is consent with every law. Therefore, from the aforesaid, it is logical to conclude that even the violation of a private right casts a duty upon the state to initiate a process against the offender.
Thus, from a reading of the aforesaid facilities one can infer that the Constitution of India discarded the adversarial mode of adjudication and impliedly adopted the inquisitorial mode. But that idea, unwillingly has not ratified as yet, and the old model, though in dissonance with fundamental facilities of our Constitution is still operative.
In an inquisitorial method, the court or a part of the court is actively involved in determining the facts of the case, as an alternative to an adverse system where the role of the court is solely that of an unbiased referee between parties. However, the constitutional mandatory in this regard has been consistently overlooked and we end up, still upholding the adverse mode of adjudication, inspite of the fact that it is inherently prejudicial to the consistency principle and thus contrary to Article 14, and thereby unconstitutional.
A mediation process is not the same as an arbitration or conciliation process. Further, the functioning of a Lok Adalats, which is usually resorted to quick controversy action requires a distinctive mindset. A person who is familiar with one type of practice cannot simply adapt to undertaking process under a different ADR procedure. Moreover, negotiation and conciliation, which is designed to bring lasting peace through consensual awards or decrees is usually subject to litigation action which broadly seek to execute, set aside and or otherwise call for the judicial forums to obstruct with the awards passed, on one ground or another. The fact that there is a litigation procedure envisaged at the conclusion of the arbitration procedure merely goes on to show that the parties do not place enough trust in the ADR procedure.
The unofficial modes of “Access to Justice” are not to displace the official modes of , “Access to Justice” rather to contact them. But as we have already discussed that the unofficial modes of access to justice, which includes Nyaya Panchayats, lok adalats, Negotiation, Mediation, Conciliation, Arbitration and Institution of Ombudsman working in India, are not adhering to the proposition of parity of potential and are also not in consonance with the constitutional compulsory. The institution of Nyaya Panchayat is presuming easy access to justice to the people living in villages, but it’s not only about an access to justice rather one should be able to get justice. The difficulty is that the powerful factions of the villages are individually using the nyaya panchayats for their favour at the expense of justice. The lok adalats are also working well and helping courts in relieving their burden, but the approach of Lok Adalats towards the controversial action is conciliatory, which require a waiver of right and it is against the Article 14 of the Indian Constitution. The other mode of unofficial controversy action like negotiation, mediation and conciliation are not constructive because a mediator or a conciliator has no potential to order a party to appear and in favour a claim. Nor can a mediator or conciliator compel the losing side to comply with a result. Moreover, these mechanisms of debate process, they involve waiver of right, which is opposed the Article 14 of the Constitution of India. As far as Arbitration is anxious the award of the arbitrator is binding, thus satisfying the coercion count, but as the Arbitration and conciliation act provides for the waiver of the right, it is opposed the proposition enshrined in Article 14 of the Indian Constitution. Another lacuna is that it is based on the adverse model of litigation which decision in delay and high costs. The organization of ombudsman popularly known as the office of “lokayukta” is not provided with the requisite machinery and potential of the respective state legislation and is thus not working consequences.
Although these modes of unofficial access to justice were premised on good intentions, their manifest implications are to the contrary. This is agreed with the facts have been adverse in the course of this paper. The primary and fundamental flaw being that, notwithstanding making access to the instrumentalities elaborate easier, the very quality of justice that they are employed to deliver is warped by their procedure. As has been reiterated time and again through this paper, these modes are inclined more to afford agreement to the state than to deliver wholesome justice, and that holds true for the official modes as well. The quality of justice (the use of the word justice being malapropos here) in the true sense is made inefficient to a great extent by its being moored in inequitable postulates.
The apocryphal idea that the adverse system subserves the object of justice easily is exposed by its inherent inconsistency with Article 14, which is as compendious an articulation of the principle of equity as possible. Article 14 advocates the implementation of an inquisitorial system premised on the parity of potential. We can also draw imagination from the proposition of Rajadharma which is based on the inquisitorial pattern. What we need is a model which can suit our society and proposition of Rajadharma in the present problems of the Indian society. The proposition of Rajadharma is embedded in the Constitution also. Under the Constitution of India, it is the duty of the state to provide equal protection of the laws and to execute compliance with every law. Thus a state has to play a pro-active role in providing justice; what is needed is a reading and execution of the Constitution in the true spirit.
There are a number of challenges and possibilities roadblocks that are still existing in the modern context that prevents the ready adoption of mediation and other ADR procedure and prevents ready adoption. Furthermore, it needs to be pointed out that the parties are suspicious of an utilize to mediation and other ADR procedure due to the fact that they feel that for bringing quietus, there needs to be a binding litigation procedure that conclusively settles the arguments. Many people feel that procedure before ADR forums are likely to get challenged before the Courts, decision further process even after the apparent consent contract.