INTRODUCTION
The judiciary is burdened excessively. The attempts to relax the same have been on top of the list for not only the Courts but also the legislators. The introduction of Alternate Dispute Resolution gained popularity in the spheres of the world and even the parties who were looking at a price effective method to enforce their rights. As per reports, at present there are about 34.5 million cases before district courts and 4.46 million before the high courts.
A branch of dispute resolution, supported by the ever-improving world of technology had been working for quite some years in the international foreground and the Indian grounds called Online Dispute Resolution (ODR). The United Nations Commission on International Trade Law ODR Working Group defines ODR as “[…] a mechanism for resolving disputes facilitated through the use of electronic communications and other information and communication technology”.
The system has got approval from various international agencies lie ICC, WIPO, Intentional Centre for Settlement of Investment Disputes, with incorporation of rules and regulations concerning e-disputes.
The disputes dealt through the process of ORD range from online contracts, software development, consumer complaints, IP issues, privacy, cybersquatting, property matters among others. There are mainly two approaches involving ORD, namely, non-adjudicative (negotiation and conciliation) and adjudicative (arbitration). The Indian approach presently mostly involves the latter while the former has been through several attempts being incorporated.
The pandemic has bought the need to implement, improve and incorporate such mechanisms even more so with in-person resolution becoming a thing of the past.
PRESENT SCENARIO
There has been talk of incorporation of ODR in the Indian judicial process for quite some time. Justice Ramana and Present Hon’ble Chief Justice Bobde, both have recognised the need for inclusion of technology and internet for not merely filling but in preventing a complete shutdown of the courts. Further, the Chief Justice has highlighted the need for including mediation agreements to the binding category, while realising the role of Artificial Intelligence in imminent future.
In present government initiative trends fuelled by the pandemic have been hailed as promising in the aspect of fully bringing the aspirations of the Hon’ble Justices, with the Nilekani Panel making recommendation for resolution of disputes of online payment through a two-level system of automated and human platform keeping in mind the provision of appeal. Furthermore, the NITI Aayog initiative in association of Agami and Omidyar Network India, dealt with making an online court presence for small and medium disputes .
The private sector has also seen innovation with the evolution of legal tech start-ups i.e., yessettle, sama, presolv360 …et al who are advancing the cause of out of court settlement fairly and with finality for various disputes.
JUDICIAL VIEW
Integration in the judiciary
1. eCourts Mission Mode Project
The process of incorporation of technology started in 1990 with the introduction of National Informatics centre followed by the scheme of National Policy and Action Plan for Implementation of Information and Communication Technology in the Indian Judiciary in 2005. Presently the judiciary has incorporated, ecourt websites, National Judicial Data Grid, Case Information Systems, e-filling, e-payments, for all courts in India.
2. Artificial Technology
The Supreme Court jumped onto the potential use of artificial intelligence through the development of SUVAS “Supreme Court Vidhik Anuvaad Software) which has the capability to translates judgments, orders and judicial documents from English to nine vernacular language scripts and vice versa .
Precedent recognition
1. Online Arbitration
The Supreme Court in Trimax International v. Vendata Aluminium Ltd and Shakti Bhog v. Kola Shipping , the court held that “in the absence of a written acceptance then same may be inferred from various documents and communicationsduly approved and signed by the parties which may be in the form of exchange ofemails, letter, telex, telegram and any other means of communication” . The same satisfied the requirements under Section 4 and 7 of the Information Act, 2000.
2. Video Conferencing
In case of Grid Corporation of Orissa Ltd. v. AES Corporation , the Hon’ble Supreme Courtaccepted that actual presence of parties is not necessary for conversation andconcluding of contracts if it is possible to be done by electronic media and technology. Similarly, effective consultation, if possible, can be obtained by means of electronic media. Arbitrator and parties are not required to not sit together at one place and an arbitrator can be appointed by electronic messages, as valid appointment.
3. Electronic Summoning
In Central Electricity Regulatory Commission v National Hydroelectric Power Corporation Ltd , the Supreme Court allowed service of summons through email and other modes. Further, Tata Sons Ltd v John Doe and Kross Television India Pvt Ltd v Vikhyat Chitra Production ,the respective High Courts have recognised service through instant messaging applications and permitted service of summons through WhatsApp.
In the present pandemic situation, the Supreme Court, in a Suo Moto Writ Petition In re Cognizance for Extension of Limitation had directed all service of summons, notices and pleading to be affected by email, facsimile and commonly used instant messaging applications.
4. Admissibility of Evidence
The Indian Evidence Act along with IT Act, 2000, recognise the admissibility of electronic evidence for documents as under Section 65B. the landmark case of Anwar PV v. PK Basheer laid down the fact that all electronic evidence must conform with the conditions of Section 65B.
5. Virtual Courts for Cheque Bouncing disputes and Traffic challenges
M/S Meters and Instruments Pvt. Ltd. vs. Kanchan Mehta , the Supreme Court held that “complete reliance could be placed on technology tools to resolve disputes” . Further recommending that some cases could be concluded online for simple cases like those involving traffic challans and cheque bouncing through online mechanisms.
E-Lok Adalat
The first online Lok Adalat took place in Chhattisgarh this year in July and was followed up in several parts of India.
Support for Government Initiative
In a stakeholders’ meeting titled “Catalyzing Online Dispute Resolution in India” organised by NITI Aayog on June 12 2020, Justice Indu Malhotra Justice, D.Y. Chandrachud, Justice Sanjay Kishan Kaul recognised the potential of ODR to address disputes arising not only due to COVID-19 pandemic but also from other personal and commercial disputes.
LEGISLATIVE ACTION
The incorporation of ARD mechanisms has been solidly found place in many acts and rules with specific regard to certain types of disputes
1. Civil Procedure Code, 1908
The code bestows power on the courts to refer cases to be resolved through ADR specifically arbitration, conciliation, judicial settlement including settlement through Lok Adalat or mediation.
2. Family Courts Act, 1984
As under Section 9, calls for resolution through conciliation and mediation which has been reiterated by the courts.
3. Commercial Courts, 2015
As seen in the Italian Democracy, the Section 12A calls for pre-litigation mediation as mandatory in pursuance of reducing the burdens on the courts.
4. Arbitration and Conciliation (Amendment) Act, 2019
The acts aim at strengthening the institutional arbitration further with a Council formed to deal with rule and policy making to regulate institutions.
5. Consumer Protection Act, 2019
As under Section 74, the Consumer Mediation Cells are to be established in every district to reach each and every consumer and reduce their hassles in pursuing litigation.
6. Companies Act, 2013 and the Companies (Mediation and Conciliation) Rules, 2016
As under Section 442 of the Act requires the Central Government to maintain a panel of experts called the ‘Mediation and Conciliation Panel’ and any party to proceedings can request for the dispute to be referred to mediation. The rulesregulate the empanelment of mediators and prescribing the procedure for the mediation proceedings
While all these acts empower the ADR mechanisms to be carried out but when read with Section 65B of IEA, 1872 and Section 4,5,7 of ITA, 2000 enables the authenticity of ODR as well.
SUCCESFUL ESTABLSHMENT IN INDIA
Interestingly, the world is not new to the aspects of Online dispute management. There have been many drivers in various sectors showing possibility of great success out of such ventures.
E-Bay is one of first company which came up with its own dispute resolution system back in 1990. When it was introduced in India, it followed the same model of negotiation, mediation and community courts to resolve disputes which arise out of feedback from consumers.
CONCLUSION
The concept of Online Dispute Resolution has been doing the rounds over many years. However, the potential had largely remained undermined, the mechanisms have been long part of the various sectors on personal level. The need at the moment arises from the huge burden on the courts shoulder fuelled by the pandemic situation.
ORD had been on the end of constant appraisal from the judiciary through their own activism, but the government and legislative action is the need of the hour. While the opportunity was realised by the legislature and government, the implementation process had largely been weak with even the aspects of ADR remain untouched.
The digitisation of every aspect of life be it cashless transaction, e-filling of complaints etc through government initiative has been a welcome change. The NITI Aayog initiative bring together all parties be it judiciary, government and imminent social personalities to set a phrased plan to fully dive into this technology that has been in our hands without any real use for too long.
REFERENCES
REPORTS
1. United Nations Commission on International Trade Law, ‘UNCITRAL Technical Notes on Online Dispute Resolution’ (2017)
2. Nandan Nilekani and others, ‘Report of the High Level Committee on Deepening of Digital Payments’ (2019) 97
3. NITI Ayog and others, ‘Catalysing Online Dispute Resolution in India’ (NITI Ayog, 12 June 2020)
4. Supreme Court of India, Press Release 25 November 2019
5. https://main.sci.gov.in/pdf/Press/press%20release%20for%20law%20day%20celebratoin.pdf
6. accessed 9 December 2020
JOURNAL ARTICLES
1. Jaskaran Singh, Online dispute resolution international practice and its need in India, – (2018), http://shodhganga.inflibnet.ac.in:8080/jspui/handle/10603/235194 (last visited Dec 9, 2020).
2. S. M. Aamir Ali, Online Dispute Resolution: An emerging tool of dispute resolution in contemporary era, 21 Journal of the Gujarat Research Society 480–487 (2019), http://www.gujaratresearchsociety.in/index.php/JGRS/article/view/945 (last visited Dec 9, 2020).
CASE LAWS
1. Trimax International v. Vendata Aluminium Ltd, 2010 (1) SCALE 574.
2. Shakti Bhog v. Kola Shipping, AIR 2009 SC 12.
3. Grid Corporation of Orissa Ltd. v. AES Corporation, AIR 2002 SC 3435.
4. Central Electricity Regulatory Commission v National Hydroelectric Power Corporation Ltd. (2010) 10 SCC 280
5. Tata Sons Limited & Ors v John Doe 2017 SCC OnLine Del 8335
6. Kross Television India Pvt. Ltd. v Vikhyat Chitra Production 2017 SCC OnLine Bom 1433
7. In re Cognizance for Extension of Limitation Suo Moto Writ Petition (C) No. 3/2020
8. Anvar P.V. v P.K. Basheer (2014) 10 SCC 473; See Also: Arjun PaditraoKhotkar v Kailash KushanraoGorantyal (2020) 3 SCC 216.
9. M/s Meters and Instrument Private Limited v Kanchan Mehta 2017(4) RCR (Criminal) 476
10. K. Srinivas Rao v D.A. Deepa (2013) 5 SCC 226
About author –
This article is authored by Shreya Sharma, Third year student of BBA LLB at Symbiosis Law School, Hyderabad.
