It's A DISCOURSE IN INDIA: A PARADIGM OF VOICE LYNCHING By Rahul Roy

 '' A government of, by, and for the people requires that people talk to people, that we can agree to disagree but do so in civility. If we let politicians and those who report dictate our discourse, then our course will be dictated'' – Donna Brazile.

Someone has very truly said that cavalry cannot go to a battle with wet powders and blank shells if you want to win the battle. It's your incorrigible cornerstone that decides your winning and losing. Similarly, you cannot run the world's largest democracy without having a firm foundation. A system will collapse or flourish depends on its foundation. Public discourse is one of those foundations of Indian democracy which paves the way towards its effective functioning. Better dialogues improve the quality of public policies which further strengthen our democracy. 

Today everyone is well aware of the current scenario of public discourse in India. It is worsening day by day and reasons are multiple, you cannot blame a soul organization or any media house or any particular individuals. It's a collective fault, we have entirely changed the meaning of public discourse in India.

Talking about its meaning, public discourse means statements, speeches, dialogues, and deliberations which leads towards public good and their betterments. 

Well, it seems quite dichotomous when we contemplate over its meaning as in India, public discourse is like doing voice lynching without any outcome. It's breaking all the limits of decency and civility and gradually lowering its standards.

When we talk about democracy in India the first thing that flashes out in our minds is politics and those who run it i.e politicians. The reason being is democracy is a two-fold process for the people and politicians. We all understand and respect the role of politicians in our gigantic democracy. It's a politician who makes policies and laws for the upliftment and betterment of the people. We elect them because we think that they will act as the face for our problem and will try to represent the issue over a national podium, and will consequently resolve them. No doubt, many of them do the same but, at what cost? we all know, by raising personal attacks over other politicians, by doing ad-hominem criticism.

Many renowned philosophers reiterated that ad- hominem criticism is not at all considered as good public behaviour. Instead of criticizing the person or any individual, criticize their policies, their decisions, or their impact which will in return definitely prove to be a symbiotic critic. 

Our criticism should be such which can throw photons on what matters to all of us. But, in India the kind of words that are being used in public discourse by certain people or politicians is something that needs a deep contemplation, the reality is they just don't care about whatever they are saying. Maybe the ordinary person is enjoying those kinds of words but is this a sign of a civilized society? 

This is not only confined to informal gatherings, you all are well acquainted with the discussion debate that goes inside the walls of the parliament house. I'm still in wonder how the speaker manages them. They gather inside the house for having a fruitful debate but what they do is only create chaos. 

We all understand that being in parliament gives you the whooping privilege to talk about any national issue in any manner, but being in a privileged state doesn't mean that every individual has to speak all the time. Marking your attendance in every single debate is not required. The main purpose behind the parliamentary debate is not to weaken or criticize the administration or any party but to strengthen it by investing it with more meaningful parliamentary support. So, its time to take a break and introspect the very essence of a fruitful public discourse, that throwing negative words on the opposition party doesn't make you a leader, it's your attitude towards the issue that makes you a leader. 

Its never too late if your intentions are aligned towards the upliftment of the society. let's make this public discourse a more symbiotic one for both the speaker and the listener which will eventually help our nation to propel towards a trajectory akin to those of a more civilized and developed one.

INDIA SAYS NAMASTE AS SHAKING HANDS IS TOO RISKY By Muskan Jain

The novel Coronavirus has spread throughout the globe like the oxygen in the air. While people are taking every kind of precautions to keep themselves safe like wearing masks, carrying hand sanitizers, avoiding public areas and physical contacts, Namaste, an Indian style of greeting has become popular throughout the world.

One of the modes of coronavirus spread is due to physical contact like shaking hands or even hugging. Greetings are considered to be an act to show respect and attention, but the pandemic has made the traditional greeting style quite risky. Therefore, the world leaders have replaced their traditional handshake with a namaste. Namaste involves joining our own palms together and it is one of the best ways to greet someone without touching them and thus, the safest greeting in times of pandemic.

Small gestures and small changes can solve huge problems, isn’t that amazing?

What is Namaste?

Namaste means bowing to someone. It is derived from Sanskrit phrase ‘Namah’ means ‘bow in adoration’ and ‘te’, meaning ‘to you’; meaning that I bow to you in adoration or respect.

This gesture of greeting is widely used throughout the Indian subcontinent and is also used by the migrants from India. Since the virus spreading and namaste is a non-contact form of greeting, Namaste has become the trend of 2020.

With the virus, Namaste too has now become global. The world leaders like the president of USA Donald Trump, French president Emmanuel Macron, Prince Charles, Isreal prime minister Benjamin Nethanyahu have all adopted this new way of greeting stating it to be safe and contact-free. President Trump hailed the Indian way of greeting by saying “the Indians are ahead of the curve.”

Countries around the globe are looking towards India with friendly eyes since India has extended its help, by providing assistance in every way possible like drugs (Hydroxychloroquine) and necessary equipment such as testing kits and other medical assistance, to over 150 countries in a fight against the deadly coronavirus.

Indian Prime Minister Narendra Modi addressed a High-level segment of UN-ECOSOC where he said that India has always responded with speed and solidarity at the times of crisis. He said; “COVID-19 pandemic has severely tested the resilience of all the nations.”

The United Nations Secretary-General Antonio Guterres saluted India for helping in the global fight against coronavirus. President Trump also stated that India’s help during this time of crisis would never be forgotten.

The changing Trends

The virus has led to so many lifestyle changes throughout the world. People around the world have started adopting the Indian lifestyle. They have started to refrain from non-vegetarian food and are turning towards vegetarianism and even vegan forms. People are now looking forwards towards the Indian traditional lifestyle where humans used to spend hours with nature, living in spacious homes, cooking fresh food etc. Indian spices are magical substances which not only enhance the food but also benefits the body and thus, many people have adopted the Indian way of cooking.

The Jain community in India is the one where the saints places a mask on their mouth on a regular basis and the reason for it is that it does not allow the transmission of the virus while we speak. And now as we can all see; masks have become an essential for protecting ourselves.

The pandemic has advised everyone to wash their hands properly and use only the sanitized products. In India, the people are used to wash the fruits and vegetables before consuming them, also the habit of washing hands, not just after but also before eating food, is inculcated since childhood. Also, instead of using products brought from outside directly from the packets, Indians put them in separate and clean containers before using them.

Indian lifestyle from using spices to greeting with Namaste is what the world is appreciating. And in times like these, it would be the small steps that would bring a positive change and help us fight against the coronavirus.

Namaste.

WRONGFUL CONVICTIONS – AN UNRELIABLE SYSTEM OF CRIMINAL JUSTICE By Neha Garg

 "The annals of criminal law are rife with instances of mistaken identification."

—The Michigan Supreme Court in People v. Anderson (1973)

Nowadays the term ‘innocent before proven guilty’ has swapped to ‘guilty before proven innocent’.“Wrongful conviction,” expressed as the convictions of literally innocent persons that ignore persons who have committed the act and men rea of crimes but whose convictions were obtained in violation of constitutional or other procedural rights in a manner not reckoned as harmless error by appellate courts. The dearth of accountability of police and prosecutors, reliance on junk science and deceptive eyewitnesses, and the penniless defence crisis are major contributors to wrongful convictions that have undermined the integrity of our system and ruined the lives of innocent men and women this is nothing but a miscarriage of justice.

The reasons behind this wrong are seldom Bad Lawyering i.e. The failure of hackneyed lawyers to investigate, call witnesses, or prepare for trial has piloted to the conviction of innocent people.  Eyewitness Misidentification i.e. the single greatest cause of wrongful convictions universally. Research shows that the human mind is not like a video camera; we neither record incidents exactly as we see, nor recall them like a tape that has been rewound. Instead, witness memory is like any other evidence at a crime scene; it must be well-looked-after carefully and recouped logically, or it can be polluted. Junk Science Countless forensic testing methods have been applied with little or no scientific justification and with inadequate calculations of their reliability. As a result, forensic analysts sometimes testify in cases without a proper scientific basis for their findings and the worst forensic analysts get affianced in misconduct.FalseConfessions as innocent suspects make impeaching statements, deliver utter revelations, or plead guilty. Notwithstanding the age, capacity, or state of mind of the confessor, what they often have mutually is a decision that at some point during the cross-examination process that confessing will be more beneficial to them than continuing to uphold their incorruptibility. Government Misconduct: the government representatives take steps to ensure that a suspect is convicted despite weak evidence or even clear impermeable innocence. Snitches statements from people with spurs to testify i.e. mostly incentives that are not divulged to the jury are the dominant evidence in convicting an acquitted person. People have been wrongfully convicted in cases in which snitches are paid to testify or obtain favours in return for their testimony.

Countries such as the United States, United Kingdom, Australia, Canada, Germany, etc. have enacted a statutory right to compensation, but it is limited to wrongful conviction by the righteousness of a final order, after all, appeals have been dog-tired and a new fact, which then leads decisively that the convicted person was precisely innocent. In its 277th report titled “Wrongful Prosecution (Miscarriage of Justice): Legal Remedies” (August 2018), This Report was predominantly based on a reference made by the High Court of Delhi, the case of Babloo Chauhan v State Government of NCT Delhi[1], has rightly pointed that the practices in other countries would be derisory to address the complete shortfalls of the criminal justice system in India, where individuals have spent several years in imprisonment even erstwhile to a conviction.

The major problem the victims suffer is their Right to compensation. Under the International Covenant on Civil and Political Rights (ICCPR) under article 14(6), the consigner is required to take actions to ensure the right to compensation for wrongful imprisonment and incarceration. While India had stated reservations while ratifying the ICCPR that the Indian legal system does not comprehend the right to compensation for victims of unlawful arrest and detention, the jurisprudence created by the Supreme Court of India has made this reservation outmoded.

In case of Nambi Narayan[2], the Supreme Court stipulated a compensation of 50 lakhs to former ISRO scientist Nambi Narayanan, 24 years after he was illegally detained on the indictment of leaking official secrets to a spy racket.The fact that the payment of compensation was ordered 24 years after the wrongful arrest is a stern reminder of the need to correct wrongs caused by illicit arrests timely and preserve freedom. This calls for legitimate recognition of the Right to compensation in cases of wrongful arrests and imprisonment, which the victims of such indictments can avail without waiting for several years of process before the courts.

The remedies available in India against this evil Public Law remedies are available in the form of petitions under Article 32 before the Supreme Court or under Article 226 before the respective High Court under the Constitution of India but, the main drawback is how to calculate the compensation.Private Law Remedy, a claim for compensation for wrongful acts done by interventions of the State are often pursued before Civil Courts which forms part of the Civil law remedy available to the accused.Criminal Law Remedy in Chapter XI of the Indian Penal Code, 1860 (IPC) makes punishable offences involving fabrication of records, of perjury, illegal confinement and commitment to trial of innocent persons by a police officer and Section 211 IPC is of worth as it penalises institution of false criminal proceedings or falsely charging a person of a crime. This section is made pertinent to all persons including public servants as well.

Many times, victims don’t approach the supreme court directly for prevailing justice and compensation as a result of lack of financial resources and information. A legitimate right of compensation should be provided to the victims to live a decent life which they have lost by the fault of no other but the justice system itself.

 

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[1]BABLOO CHAUHAN @ DABLOO Vs.STATE GOVT. OF NCT OF DELHI CRL.A.-157/2013(Delhi High Court, 30/11/2017)

[2]Mr. S. Nambi Narayanan vs State Of Kerala WP(C)KLHC01-072982-2012

https://en.wikipedia.org/wiki/Miscarriage_of_justice

https://www.law.umich.edu/clinical/innocenceclinic/Pages/wrongfulconvictions.aspx

 

CONCILIATION AS A NEW TOOL FOR RESOLVING DISPUTES By Muskan Sihag

It is a method of alternative dispute resolution where a conciliator is appointed for resolving disputes, who meets both the parties of the dispute separately and also together and ultimately attempts to find a solution which is in best fit to both the parties. Conciliation contrasts from arbitration in that the conciliation process has no legal standing, and the conciliator usually has no sanction to seek evidence or call witnesses, he/she usually writes no decision, and makes no award.

Conciliation differs from mediation is that in conciliation, most of the time the parties are in need of restoring or putting back together a relationship, either personal or business. Many a times the conciliator can act as a 'messenger' by talking to one party and the other participants separately and communicating ideas or proposals between one another. It is also possible to hold sessions by telephone in some circumstances.

Advantages of using conciliation:

• Conciliation procedures are substantially less costly than traditional litigation methods, since as a general rule the costs are spread equally among the parties. Additionally, there is no need for expenses to be incurred on having a dispute heard before courts at several levels.

• Conciliation certifies party autonomy.

• Disputes are resolved more swiftly and at times which suit the parties’ councils.

• The parties have the right to choose the most acceptable conciliation procedure best suited for them. 

• The parties themselves set the procedural directives for settling a dispute. 

• In contrast to public court proceedings, conciliation procedures are confidential, and all information collected by an mediator during such proceedings is not disclosed even in court.

• An agreement entered into with the help of a mediator has contractual force and binds the parties on both sides. The court may also approve an agreement as a settlement agreement. 

• In disagreement to a court decision, which only covers the range of matters set by the law, an agreement reached further to a conciliation procedure may provide for a much greater number of problems to be resolved.

These advantages may hold similarity with those of arbitration or mediation but a few major points such as enforcement of agreement in court and setting of procedural rules makes it a different way. 

Types of conciliation:

1. Expert determination is a conciliation process which involves the conciliator preparing a written opinion containing legal reference and analysis to the situation and also determines the risk of adverse consequences for both the parties. The mediator offers recommendations for suited ways of resolving the matters in dispute. The recommendation is made based on the documents and information provided on both sides of the parties, which also includes their initial contact with the intermediary. 

2. Next is the Facilitated negotiation which involves a conciliation process for which a mediator, who based on the preceding study of documents and information provided to him/her by the parties on both sides, acts as an expert to assist them to settle the dispute affably. The same time the mediator may also propose to the parties some specific ways to resolve the dispute which may also include agreeing to a written document i.e. contract. 

3. This one is a little different procedure from the above two mentioned. A Mini-trail is a settlement process during which both the parties with the assessment of the mediator first and foremost exchange their written opinion to one another and then the documents and information related therewith. After which an authorised representative of each party, in the presence of a mediator, attempts to resolve the dispute by forming an agreement which includes setting out the relevant circumstances of the matter. Under any circumstances if the parties fail to reach agreement, the mediator will provide them with his/her opinion which is likely to be the outcome of the case when referred to the court.

4. Last is the Mediation procedure- it is a conciliation process which takes the form of negotiation which are arranged by an intermediary or mediator who manages the negotiation procedure in respect to help the parties for settling their dispute by reaching an agreement which serves in the interest of both the parties to agreement. In this process the mediator not only puts forward to the parties a way for resolving the dispute but also assists them in reaching an agreement which is of advantage to both the parties. 

HUMAN TRAFFICKING IN INDIA: a curse to humanity By Rahul kumar Roy

 Imagine yourself in a situation of perpetual poverty, you don’t have money to foster your families, or to educate your children for handling your household finances. Meanwhile, a person comes and promises you to give you a job that will cease all your difficulties and lead you towards a happy life. In the hope of getting a job believing in someone words, you move towards a new city for giving a fresh start to your career. But, then something happened that you never dreamt of, you find yourself in a honey trap, locked in a room for three months and then you are forced to be a part of the sexual market that wakes up in the midnight in the silence of the city. You try to escape somehow, but those inhuman have not left any iota of hope for getting out of this mud. Eventually, you find yourself emotionally and physically slackening everything and then you surrender yourself. This above story is not at all any hypothetical story, it’s a harsh reality to our humanity. We define this act as human trafficking.UN defines human trafficking as ‘‘trafficking is activity leading to recruitment, transportation, harboring or receipt of persons, employing threat or use of force or a position of vulnerability^[1]’’ in simple terms selling or trapping any person by use of nefarious or coercive acts and exploiting them sexually, economically and physically. The entire world is witnessing this billion-dollar illicit industry. Edmund burke very well said – ‘‘slavery is a weed that grows on every soil’’ India is acting as a hub for these traffickers in the Asia-pacific region. Human trafficking comes with many forms, few of those are:

●       Bonded labour

●       Forced marriages

●       Child labour 

●       Sexual trafficking 

●       Domestic servitude

●       Illegal organ trade

Most of the victims of human trafficking are find amidst us in our day-to-day surroundings.You must have seen children working in a tea stall, for begging purposes in traffic areas, in highways many of them are victims of human trafficking. Many times their parents sell them for illegal business for some money. No doubt this is the most heinous act that anyone can do, but it exists, it is the harsh reality of our humankind. According to a report by INTERNATIONAL LABOUR ORGANISATION (ILO) in 2016, there is a gobsmacking number of humans indulged in this traffic^[2], it is estimated that 40.3 million people fall under modern slavery, including 24.9 million under forced labor and 15.4 million in forced marriages. It's very astonishing to note that 1 in 4 victims of slavery are children, out of 24.9 million 4.9 million people are victims of sexual trafficking. When we see these mindboggling numbers of people as a victim of human trafficking, an obvious question strikes to our mind that what the government is doing, is there any law for tackling such wicked act. The answer to this is yes, we have laws enacted for tackling these crimes, but we all know the gap between enactment and implementation of law in our country. We have lump of laws like IMMORAL TRAFFICKING PREVENTION ACT(ITPA) which penalizes commercial sexual exploitation and punishes an offender with a punishment which can extend up to 7 years, we have BONDED LABOUR ABOLITION ACT which prohibits bonded laboring, CHILD LABOUR ACT which no doubt is a milestone in preventing child labor. Child labor is something that we are still struggling with. Human traffickers find making children their prey very easy, whenever there is any disaster or conflicts like that of Rohingyas a new market opens for human traffickers. In the very recent Rohingyas strike many children went missing, nobody knows the whereabouts of those children, they may have been sold. According to a report by NATIONAL CRIME RECORD BUREAU (NCRB) ^[3] every 8 minutes, a child misses India. In India, our eastern^[4] part act as a hub for those traffickers, because of the fact that we have a very porous border in our eastern region so smuggling and trafficking becomes very easy for them. Ministry of women and child development in a report^[5] claimed that 20,000 women and children were victims in the year 2016 which showed a 25% rise from 2015 reports. The number of cases above mentioned are the cases that have been registered in police stations but the actual figure could be much gobsmacking as many victims didn’t register their cases because in many cases they didn’t know the law and in case if they know then they are under fear of traffickers. One of the main reason that people easily fall prey to human trafficking is lack of awareness and education .so govt of India must ensure to have proper awareness camp for prevention of human trafficking .we as a citizen too holds a duty to aware people about this trafficking and inform police and concerned authority whenever we feel that someone is being trapped in this business. what is the meaning of humanity if it is not meant for helping others and uplifting others. martin Luther king very well said – ‘‘our lives begin to end the day we become silent about things that matter’’ so come forward and help them whom you find getting into this trap.

 

 

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^[1] https://www.unodc.org/unodc/en/human-trafficking/what-is-human-trafficking.html

 

^[2] https://www.ilo.org/global/topics/forced-labour/lang--en/index.htm

^[3] https://ncrb.gov.in/sites/default/files/missingpage-merged.pdf

^[4] https://wcd.nic.in/sites/default/files/RESEARCH%20PROJECT%20REPORT_0.pdf

 

^[5] https://www.theweek.in/news/india/2018/07/30/20-000-women--children-victims-of-human-trafficking-in-2016.html

THE USE OF ALTERNATIVE DISPUTE RESOLUTION IN PERSONAL INJURY LITIGATION By Prakriti Suthar

 Both in the terms of public spending and legal advice in the private sectors, judicial inefficiency has led to high cost. This is leading towards a growing disaffection with courts. These are raised in line with the increase of these new mechanisms, particularly those that are developed in an online environment. All these are challenging traditional justice avenues by reason of their speed, cost efficiency and flexible, tailored proceedings that detect abnormal patterns of behavior. Hence, it leads to ‘supervising’ the process and outcomes of professionals involved. 

In order to guarantee the quality of the service, information technology facilitates the improvement of such methods.

Arbitration involves a third party who has to be neutral, that is, not from any party and he is responsible for running the process and making decisions which are necessary for solving the disputes. The arbitrator is usually a private person other than any judge who is chosen by the parties themselves.

The person chosen who is chosen by the parties for dispute often has specialized expertise in the subject matter of the dispute, but only if the parties specify, legal training is required.

Personal Injury Claims

Many personal injury claims are suitable for Alternative Dispute Resolution. If utilized properly and with the right type of claim, Alternative Dispute Resolution ( ADR ) can be important in securing the just, speedy and inexpensive determination of the claim.

Mediation

For the purpose of resolving personal injury claims, mediation is a good process to be used. 

Mediated personal injury claims generally have 3 characteristics-

1. The negotiations taking  place usually involve only the distribution of funds among the parties. 

2. In the matter of resolving personal injury disputes, the claimant usually is inexperienced.

3. The issue being mediated is largely subjective.

Before entering into an agreement to mediate a personal injury claim, liability is typically stipulated to by the parties. In addition, just before the meeting, the issue of who pays for any alleged damages is usually established. Because of this, the defendant is not frequently present at the mediation session. Hence, to focus on the issue of damages, the plaintiff, the plaintiff’s attorney, the defendant’s attorney and an adjuster from the defendant’s insurer is present.

Because the mediation process involves a claimant who is probably involved in the only lawsuit, the claimant has been called upon to  evaluate and the insurance  representative may have handled hundreds of similar cases, the mediator is challenged to bring some to the playing field. Hence, it may be beneficial for the plaintiff to be represented by an attorney; for the reason mentioned above.  

The claimant’s injury and pain and suffering are the subjective nature of the personal injury dispute.  To find a suitable criteria which will help out the parties in placing an acceptable value on pain and suffering, is the main challenge for the mediator.

The mediation session usually starts with  both the parties giving a brief  overview of the issues and the parties’ arguments in a joint session. The mediator may caucus with each party separately to discuss each side’s concerns.

At the mediation session, so that the mediator can have access to the records as the case is being discussed; the plaintiff may present a settlement package, including all medical billings and records, as well as other records of special damages, claimed.

To establish communication and rapport with the session as soon as possible is really important for the mediator. The mediator should help out the parties to identify the other interests involved, although distributive interests make up a large part of the personal injury mediation. The desire for an apology or an admission of fault may also be included among these interests.

 Arbitration

An issue of liability which is left unresolved often preludes the use of mediation and use of binding arbitration is required. Cases involving minor impacts and cases with no objective finding of injury which have substantial medical expenses are often more suitable to arbitration due to the defendant’s reluctance to accept the claim or the extent of the claim.

Initially, the parties enter into a written arbitration agreement, establishing the rules for conduct of the hearing, the procedural rules, , enforceability of an award, powers of the arbitration, method of selection of the arbitration who will be hearing the parties present their material evidence and cross examination opposing witnesses. 

ROLE OF ETHICS IN ADR By Mansi Verma

When we are stuck in a difficult situation and we face tough choices in life, it often happens that we have to choose between a right path and a wrong path. It usually seems that both paths have a compelling reason to choose from and these reasons are not always enough to decide the right choice. An ethical dilemma arises when there are ideas of goodness which gives an alternate and a different course of action. ADR is a newly developed field and thus it faces more complicated legal choices.

While laying down the codes, quality and fairness of the branch should be maintained so that not only justice has prevailed fairly but also the behavior of legal practitioners is regulated. There are also some amendments required in the statutes so as to ensure that arbitrators delivering the awards are behaving in a fair, independent and impartial way. Any misconduct or ill practices on behalf of practitioners should also be brought under the ambit of such an amendment. One example of such a code of conduct is a framework operating in Delhi by CIAC (Construction Industry Arbitration Council) or ICA^[1]. There is a specific set of rules under CIAC which requires arbitrators to adhere to strict code of conduct for the arbitrator, parties & the counsel/parties’ representative to ensure a smooth and environment-friendly atmosphere for the conduct of an arbitration.^[2]

Legal practitioners face a lot of challenges when dealing with ADR disputes as they are not used to a totally new role and a not litigious role like this. This often raises a lot of ethical issues when dealing with ADR. Issues can be created in two ways:

1.  Issues for representatives in ADR (negotiation, mediation, arbitration etc.) are lying and misrepresentation, advising the client, confidentiality and disclosure, posturing and pressuring clients, acting as an agent for settlement.

2.   Issues for facilitators in ADR (mediators, arbitrators, etc.) neutrality and impartiality, duty of care, confidentiality and disclosure, conflicts of interests and prior relationships with parties, fairness of process and of the agreement.

 Professional conduct requirements

Formal rules offer more advice to practicing lawyers than ADR practitioners and this is due to the difficulty in developing a single, uniform standard of conduct. The National Alternative Dispute Resolution Advisory Council (NADRAC) guidelines represent practice standards that are not legally binding upon practitioners as they are more targeted at arbitrators and facilitators than representing themselves. Some pertinent extracts are:

1.  Eliciting information^[3]: The ADR practitioner may consider issues such as whether an ADR practitioner can contradict a party or whether there is any scope for discrediting a party before their colleagues in order to verify the relevant facts or what kind of information can be raised in private sessions or whether recommendations or decisions may be restricted to agreed issues in dispute/maybe open to other issues as well.

2. Managing continuing or termination of the process: Terminating an ADR process is a responsibility which the practitioner has and while doing it, he has to consider whether to dispirit the parties from abandoning the process when the practitioner believes settlement is possible or abandon the process in order to induce an agreement or try to restrict the number of scope of settlement options by reference to similar case experience, expert intellectual knowledge or legal principles.

3.   Exhibiting lack of biasness: If a practitioner needs to approach the subject matter of the dispute, he should be open minded and without any misconceptions and this is only possible when ADR practitioners demonstrate independence and lack of personal interest in the outcome of the ideas.

4.  Maintaining confidentiality: ADR processes like mediation are considered to be essentially private. It is important that the parties and the practitioner have a clear and common understanding of the extent and the limits of confidentiality. An ADR practitioner can not disclose any information about one party provided during an  ADR session to any other party, subject to any common law, contractual or statutory requirements.

5.   Maintaining impartiality: Impartiality is a matter of behaviour and neutrality and is  more of a question of interest. It depends on holding on to the confidence of the parties which is built upon their perception that they are treated fairly by the practitioner. In order to be impartial, an ADR practitioner needs to conduct the process in a fair way without treating the parties biasedly. They should not accept any advances or gifts from the parties and should ensure that the parties do not communicate with more than required warmth, friendliness and acceptance.

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^[1] Source::http://jcil.lsyndicate.com/wp-content/uploads/2018/05/ROLE-OF-PROFESSIONAL-ETHICS-IN-ALTERNATIVE-DISPUTE-RESOLUTION-Deeksha-Dubey-5.pdf

^[2]Source:http://jcil.lsyndicate.com/wp-content/uploads/2018/05/ROLE-OF-PROFESSIONAL-ETHICS-IN-ALTERNATIVE-DISPUTE-RESOLUTION-Deeksha-Dubey-5.pdf

^[3] Reference:https://www.jaani.net/resources/law_notes/dispute_resolution/05_Ethics_alternative.pdf 

THE NEW YORK CONVENTION: RECOGNITION AND ENFORCEMENT OF INTERNATIONAL ARBITRAL AWARD By Vrinda Agarwal

Arbitration is a method of dispute resolution outside the court where the parties refer to one or more persons appointed as an arbitrator(s) who reviews the case and imposes a decision which is legally binding on all parties. It is a quasi-judicial method. It is a preferred dispute resolution tool in both domestic as well as international trade.

Due to the main features of arbitration, it gained popularity and the number of cases where it was referred kept on increasing. It was easy when both the parties belonged to the same country but things got a little complicated when the award was to be enforced in a different country. A conference was held in the United Nations where the New York Convention was adopted. This convention provided recognition for enforcement to an award in one country which has been awarded in another. The first draft Convention on the recognition and enforcement on International arbitral awards to the United Nations Economic and Social Council was given by The International Chamber Of Commerce in 1953.  

 The international arbitral award or the United Nations Convention on the recognition and Enforcement of the Foreign Arbitral Awards (The New York Convention) was promulgated on June 10, 1958 and came into force on June 7, 1959. It has been adopted by 164 countries and by signing on this resolution a country consents to enforce the awards issued in any other nation[1]. This convention is also considered to be the foundation of international arbitral awards as it provides recognition and validation for enforcement to the arbitral awards which are not of domestic nature.

This convention is adopted by the countries with two reservations. First is Reciprocity Reservation by which the signatory countries will only accept the award coming from another signatory country only. The second is Commercial Reservation by which the signatory countries can only enforce the foreign arbitral award which is of commercial nature. 

 The two basic actions which are contemplated by the New York Convention are:

 The first action relates to the recognition and enforcement of foreign arbitral awards. This field of application is defined in Article I[2]. There is an obligation to recognize and enforce awards issued by another signatory country. The award should however, be in accordance with their rules of procedure laid down in Article III[3]. A party which is seeking enforcement of a foreign award needs to give the court (a) the arbitral award and (b) the arbitration agreement (Article IV). 

The party against whom enforcement of award is sought can object to the enforcement by resorting to one of the grounds for refusal of enforcement which are listed in Article V(1). The court can also on its own motion refuse enforcement for reasons of public policy as provided in Article V(2). 

If the award is subject to an action for setting aside in the country in which, or under the law of which, it is made (“the country of origin”), the foreign court before the enforcement of the award may sought to adjourn its decision on enforcement (Article VI). 

Finally, if a party that is seeking enforcement of the arbitral award wants to base its request for enforcement on the court’s domestic law on enforcement of foreign awards or treaties in force in the country where it seeks enforcement,  can do so by virtue of the more-favourable-right provision of Article VII(1). 

The second basic action which is contemplated by the New York Convention is the Referral by a court to arbitration. Article II(3) provides that the court of the contracting nation, while hearing a matter where the parties have made an arbitration agreement, on the request of even one party has to refer them to arbitration. In both actions the arbitration agreement must satisfy the requirements of Article II(1) and (2) which clearly states that the agreement should be in writing.

The Geneva Treaties of 1923 and 1927 was the predecessor of the New York Convention. In the Geneva Treaty it was required that the parties were subject to the jurisdiction of the States Party to the Treaties. Such a condition for an application is not required by the New York Convention under which it states that the award is made in the territory of another Contracting State or in the enforcing State if it is considered as non-domestic[4]. 

However, within the framework of the question of non-domestic awards (Article I(1), second sentence) and the reciprocity reservation (Article I(3)), nationality may play a role in the sense that a court may be prepared to consider an award as non-domestic for the purposes of the Convention only if the parties (or at least one of them) comes from a Contracting State.

The New York Convention has enabled the parties not only from one country but from the countries around the globe to refer to arbitration in a situation of commercial dispute rather than referring to traditional courts.

1.Article, Fifty Years of the New York Convention on Arbitral Awards: Success and Controversy.

2.Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958).

3.Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958).

4.United Nations UNICITRAL.

LOK ADALAT: INDIA’s ALTERNATIVE DISPUTE RESOLUTION By Renika Yadav

Before the commencement of The Arbitration and Conciliation Act 1996, India already had its own Alternative Dispute Resolution mechanism embellished on the grass root level in the country’s justice dispensation system known as Lok Adalat. This mechanism already existed in the Indian cultural and social life before the concept of ADR was formally introduced in the Indian jurisprudence. The term Lok Adalat stands in its vernacular form as People’s Court. It is a forum where pending cases in any court of law or cases that are at pre-litigation stage are settled amicably by using methods of conciliation, mediation and negotiations. Settlement in these courts is made possible by the voluntary efforts made by the parties. These courts emerged from the concept of providing Legal Aid to the poor ,with the motive that poverty shall not become a hindrance in obtaining justice. The purpose of these courts was to make administration of law and justice obtainable and accessible to everyone and provide relief to those in line for justice.

 They have been given statutory status and legally sanctioned by the Legal Services Authority Act 1987. Section 19 of this act provides that every State and District authority, Taluk Legal Service Committee, High Court or the Supreme Court Legal Services Committee may establish Lok Adalats to obtain speedier and cost effective settlements of pending cases. Article 39-A of the Indian constitution also provides various provisions for the settlement of issues through Lok Adalat. The jurisdiction at Permanent Lok Adalat can be sought by an application before the pre-litigation phase; once the jurisdiction has been approved the parties cannot resort to or approach before any other court of law during the ongoing process. It is also important to remember the monetary jurisdiction is up to Rs.10 Lakhs only and no jurisdiction can be sought in the matter of non-compoundable cases i.e. cases which are serious in nature and no compromise can be made between the parties and even the court lacks the authority and cannot give assent to compound such offenses. Under this act^[1], the decision made by the court is deemed to be a decree of a civil court and is binding on all the parties. However, no appeal can be made against the decision in any court of law. If the disputant parties fail to reach a settlement or are not satisfied by the award (decision) of Lok Adalat they are allowed to pursue litigation and approach court with the appropriate jurisdiction.

The presiding members of Permanent Lok Adalat are generally active or retired judicial officers (or from other fields) assigned as a Chairman along with two other persons with adequate knowledge and experience in public utility services, they can also be a lawyer or a social worker. Lok Adalats have been conducted in regular intervals by National Legal Service Authority (NALSA) along with other Legal Aid and Service institutions^[2]. ‘Conciliators’ is the term used for members of Lok Adalat-  they do not have any judicial role rather they act as statutory conciliators only, it means they cannot compel, coerce or pressurize any disputant party to reach a settlement or compromise in matters rather they can only encourage and persuade the parties to reach a conclusion and resolve the matter outside the court. Matters in Cases of Lok Adalat are not decided on its own instance, rather the members of Lok Adalat assist the parties in an impartial and independent manner to reach for an amicable solution. One important key factor is that both the disputant parties shall agree for settlement through Lok Adalat and abide by its decision.

Lok Adalat generally deals with cases regarding:

●      Mutation of Land cases

●      Encroachment on forest lands

●      Family Disputes

●      Land acquisition disputes

●      Motor accident claims

●      Cases which are not sub-judice

Lok Adalat not only provides speedier justice but also can be conducted in suitable places in local languages which make it comprehensive even for the illiterates. It is also economical in the sense that no court fee is to be paid, if the dispute is settled in the Lok Adalat in cases that are filed or cases that are referred from regular courts then the fee is refunded, this phenomenon also acts as an incentive for disputants to negotiate for settlement. There is no strict application of procedural laws and Evidence Act during the process of claims, the parties can explain their stand and claims through their advocates or they can directly interact with the judge. It is a complimentary institution to the present judicial system working on the principles of justice, equity and fair play. It has become a necessity for the nation where justice cannot be denied and it must surmount the barrier of illiteracy and poverty.^[3]

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^[1]  Legal Services Authority Act 1987

 Organized under Section-22 B of The Legal Services Authority Act, 1987

^[2] Nalsa.gov.in/lok-adalat

^[3] Legalserviceindia.com/legal/article -1823-lok-adalat