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Arbitration: justice beyond the pale of judicial jurisdiction

Wednesday 15 November 2006, by IYER*Krishna V.R.

India needs a totally new arbitration calculus.

THE CHIEF Justice of India, while in Kochi the other day, pleaded that cases be settled by means of alternative dispute resolution mechanisms such as mediation, which will lessen the load of the courts, now heavily burdened by arrears of dockets.

No one will disagree. Our judges have much to account for to the people - who find litigation to be expensive, multi-docketed, gambling. Poor Indians can hardly afford a legal system that will bankrupt the parties and baffle the verdicts, especially because of the dilatory curial process, the costly lawyers, and the overall corruption of the system. The quality of the judges, the diminishing commitments to the community at large, the absence of devotion to the ideals expressly mentioned in the Preamble to the Constitution such as socialism and secularism, and the lack of a sense of realism about agrarian and urban destitution are to blame.

The very selection of judges has no scientific or socially realistic basis and often reminds a public critic of Parkinson’s Laws and the Peter Principle. The voice of jurists or the enlightened elite among the public are not heard. Consequently there is chaos in the judicative operation, which will continue until a revolutionary change and creative restructuring, in harmony with the raw Indian condition, take place. The reconstructing of a dynamic modern legal system in tune with dialectical materialism pledged with spiritual material and moral values or (Dharma) is the desideratum.

The distance is long, the roadblocks are many and the vested interests are barriers. The cultural transformation demands mass participation and jurists with the vision of creating an India with a sense of swarajya and without primitive feudalism, colonialism, and Yankee biased geo-colonialism.

One alternative of arbitration to reduce the accumulation of case laws has proved to be a remedy that aggravates the malady because of the dreadful delays, heavy financial investment, unsatisfactory performance, and judicial indiscipline. The Chief Justices of India have often been emphasising the calamity of Himalayan arrears of dockets, which makes the courts unapproachable for the common person.

Arbitration is a nice word but a noxious process. Its formalities and venues are forbiddingly expensive. If only the arbitrators, who are often retired judges, levy fees equal to their last drawn salaries together with their pensions it would be a service; but now the venues chosen are luxurious hill stations and faraway garden cities - with spouses accompanying.

The whole process is turning into an inevitable plutocratic pleasure. They charge fantastic fees, outrageous when compared to their salaries. These arbitrators are a law unto themselves. They work for a few hours, punctuated by procrastinating postings, exhausting the resources of the disputants.

Indeed, arbitration as a judicial process has become an extraordinary racket. A simplified, inexpensive, accessible methodology of settlement is easy to devise but money is the focus of the retired judges. Settlement is not their socially constructive goal. The finest hour of bringing parties together is never on their agenda. The whole system of arbitration is a luxurious operation of lucrative windfall for retired judges who make more income in a few years of arbitration than they have made in their whole judicial career. Remember, we are in indigent India and swaraj with swadeshi demands a totally new arbitration calculus.

Generally speaking, the judicial experience free of corruption is a valuable social asset. Research into the subject of arbitration law in action is a necessity followed by a creative, informal justice-oriented economic process with rules of austerity and good behaviour binding on the bench and the bar.

See online : The Hindu

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