Friday, March 16, 2012

Lok Adalat--An alternate Forum For Settling Disputes

LOK  ADALAT -An alternate Forum For Settling Dispute

It is undeniable fact that there is huge pendency of cases and there are many reasons for the said pendency like low strength of  judges or other un-avoidable reasons.



I'm not going to do analysis about the piling up of cases,I would confine my self to the concept of Lok Adalat for settling disputes.



When people were vexed with delays and adjournments of court cases,the concept of Lok Adalat emerged as an alternate system of dispensing of justice/justice delivery system,wherein,any litigant can voluntaries agrees to settle their dispute in an amicable way with in short period of time ,we can also say inexpensive mode of settling of the dispute without following archaic &time consuming procedures.Many Supreme Court Judges supported the concept of  Lok Adalat.


Justice P.N Bhagawati said " legal aid means providing arrangement in the society so that machinery of administration of justice becomes easily accessible and is not out of reach those who have to resort to it for enforcement of rights given to them by law" 
 
Lok Adalat -Free Legal Aid &its Statutory provisions:


Constitutional Provisions : Article 14 says state shall not deny equality before law and equal justice shall be ensured to all.The citizens approaching court for enforcement of fundamental rights itself a fundamental right under Constitution of India.



Important provisions relating to legal aid includes Article 38 and Article 39  of Constitution of India,1950.



Article 38 says "State to secure a social order for the promotion of welfare of the people

(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.


(2) The State shall, in particular, strive to minimize the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations."



Article 39 A says "Equal justice and free legal aid-The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities"[included by 42nd Amendment ]


Article 21  says "Right to life and personal liberty",the right to free legal aid or free legal services is an essential part of the "reasonable ,fair ,and just procedure "The state is duty bound to provide services of lawyers.[Hussainara Khatoon V state of Bihar ,AIR ,1979 SC 1369.


In Khatri V State of Bihar AIR 1981 S.C 928 ,S.C said "free legal aid applicable in bail also"


In Ashok Kumar V State of Rajasthan,1995 Cr.L.J 1231 "Rich persons are not entitled for free legal aid"




Criminal Procedure Code,1973 : Section 304 says " Legal aid to accused at State expense in certain cases.

(1) Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the court that the accused has not sufficient means to engage a pleader, the court shall assign a pleader for his defence at the expense of the State.


(2) The High Court may, with the previous approval of the State Government make rule providing for-


(a) The mode of selecting pleaders for defence under sub-section (2);
(b) The facilities to be allowed to such pleaders by the courts;
(c) The fee payable to such pleaders by the Government, and generally, for carrying out the purposes of sub-section (1).

(3) The State Government may, by notification, direct that, as from such date as may be specified in the notification, the provisions of sub-sections (1) and (2) shall apply in relation to any class of trials before other courts in the State as they apply in relation to trials before the Courts of Session.



Civil Procedure Code :


ORDER XXXIII. [SUITS BY INDIGENT PERSONS] Subs, by Act No. 104 of 1976 for "Suits by Paupers" (w.e.f. 1-2-1977).


1. Suits may be instituted by in by indigent person.Subject to the following provisions, any suit may be instituted by 1[an indigent person]

2[Explanation I—A person is an indigent person,—
(a) if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit, or
(b) where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject-matter of the suit.
 

Explanation II—Any property which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person.
 

Explanation II—Where the plaintiff sued in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity.]

Order 33 of the C.P.C. deals with suits by indigent persons. Order 33, Rule 10 provides for costs when an indigent person succeeds.as 



"he[Indigent] failed in the suit and appeal since both are dismissed by the trial Court and this Court. His contention that he is not liable to pay court fee since he continues to be indigent person is not sustainable".[see Dev vs Chief Secretary, Government Of,2003 AIR 2004 Ker 11, 2003 (3) KLT 201]


The Legal Services Authority Act ,1987 : 


In year 1971,an  expert committee on "Free Legal Aid " was formed under chairmanship of Justice Krishan Iyer recommended suitable legislation and appropriate provision for grant-in-aid for legal aid and lawyers obligation to provide free legal aid to poor.


In year 1980,expert committee was formed under chairmanship of Mr.Justice P.N Bhagwati to implement legal aid programmes .The legislation in this regard was passed in year 1987 ,the through act called " The Legal Services Authority Act ,1987 "


Mr. Justice R.N. Mishra the then Chief Justice of India played a key role in the enforcement of the said act


The Legal services Authorities under the act was formed to provide free and competent legal services to weaker sections of the society with intention of securing justice to all citizens ,which can not be  denied to any citizens due to reason of economic or other disabilities and to organise Lok Adalat to securing ends of  justice providing equal opportunity.




Section 12 of LSA act:.


Every person who has to file or defend a case shall be entitled to legal services under  this Act if that person is –

(a)a member of a Scheduled Caste or Scheduled Tribe;
(b)a victim of trafficking in human beings or begar as referred to in Article 23 of the Constitution;
(c)a woman or a child;
(d)a mentally ill or otherwise disabled person;
(e)a person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or
(f)an industrial workman; or
(g)in custody, including custody in a protective home within the meaning of clause (g) of section 2 of the Immoral Traffic (Prevention) Act, 1956 (104 of 1956); or in a juvenile home within the meaning of clause
(j)of section 2 of the Juvenile Justice Act, 1986 (53 of 1986) or in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of section 2 of the Mental Health Act, 1987 (14 of 1987); or
(h)in receipt of annual income less than rupees nine thousand or such other higher amount as may be prescribed by the State Govt., if the case is before a court other than the Supreme Court, and less than rupees twelve thousand or such other higher amount as may be prescribed by the Central Govt., if the case is before the Supreme Court."
(Rules have already been amended to enhance this income ceiling).
According to section 2(1) (a) of the Act, legal aid can be provided to a person for a 'case' which includes a suit or any proceeding before a court. Section 2(1) (aaa) defines the 'court' as a civil, criminal or revenue court and includes any tribunal or any other authority constituted under any law for the time being in force, to exercise judicial or quasi-judicial functions. As per section 2(1)(c) 'legal service' includes the rendering of any service in the conduct of any case or other legal proceeding before any court or other authority or tribunal and the giving of advice on any legal matter.



 Other Important sections :



Section 21. "Award of  Lok Adalat." 2[(1)] Every award of the Lok Adalat shall be deemed to be a decree of a Civil Court or, as the case may be, an order of any other Court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred on it under sub-section (1) of Sec.20, the court fee paid in such cases shall be refunded; in the manner provided under the Court Fees Act, 1870 (7 of 1870)

(2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any Court against the award.


Section 22 :" Powers of Lok Adalats" - (1) The Lok Adalat shall, for the purposes of holding any determination under this Act, have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit in respect of the following matters, namely : (a) the summoning and enforcing the attendance of any witness and examining him on oath;

(b) the discovery and production of any document ; (c) the reception of evidence on affidavits ;

(d) the requisitioning of any public record or document or copy of such record or document from any Court or Office; and (e) such other matters as may be prescribed.

(2) Without prejudice to the generality of the powers contained in sub-section (1), every Lok Adalat shall have the requisite powers to specify its own procedure for the determination of any dispute coming before it.

(3) All Proceedings before a Lok Adalat shall be deemed to be judicial proceedings within the meaning of Secs. 193, 219 and 228 of the Indian Penal Code (45 of 1860) and every Lok Adalat shall be deemed to be a Civil Court for the purpose of Sec. 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2) of 1974).


Procedure of Legal Aid &Lok Adalat :
 Legal Aid :

  1. Any person requiring legal aid ,can make an application to Secretary Legal Services committee.
  2. The committee will maintain register of applications. 
  3. On receipt of application secretary will pass an order refusing or granting legal aid, after it found that application is fit to be legal aid case. 
  4. LSA will refer matter to  paneled advocate,maintained by LSA for further course of action. 
  5. LSA may finance PIL matters,where large body of victims belongs to weaker sections of society.

Lok Adalat :

  • The lok adalat shall have jurisdiction to determine and arrive at compromise or settlement between parties to a dispute.
  • Any case pending
  • Any case which is falling with in jurisdiction of and is not brought before  any court for which the Lok Adalat is organized.
  • Provided the Lok Adalat shall no jurisdiction in respect of any case or matter to an offence no compoundable under any law.
Cognizance of case by Lok Adalat :The Lok Adalat takes cognizance of case ,when
  • The parties there of
  • one of parties  ,can approach Lok Adalat
  • If such court satisfied that there is a prima facie fit case for settlement or compromise.,then court will  refer matter to Secretary ,LSA.
There are large number of parties are involved in the dispute ,the Lok Adalat bench can be constituted for the batch case [Banks,Financial inst,Motor Vehicle cases ,insurance or family disputes ]


Benefits Under Lok Adalat:

1.There is no Court fee and if Court fee is already paid the amount will be refunded if the dispute is settled at Lok Adalat according to the rules.

2.The basic features of Lok Adalat are the procedural flexibility and speedy trial of the disputes. There is no strict application of procedural laws like Civil Procedure Code and Evidence Act ,while assessing the claim by Lok Adalat.

3.The parties to the dispute can directly interact with the Judge through their Counsel ,which is not possible in regular Courts of law.

4.The award by the Lok Adalat is binding on the parties and it has the status of a decree of a Civil Court and it is non- appeal-able which does not causes the delay in the settlement of disputes finally.

In view of above facilities provided by the 'Act' Lok Adalats are boon to the litigating public they can get their disputes settled fast and free of cost amicably."[Justice Lakshmanan in P.T. Thomas vs Thomas Job -http://www.indiankanoon.org/doc/109249/]


References :

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LAW AND SOCIETY