May 2021 - Page 14 of 18

This article is written by APURVA, a student of the Fairfield Institute of Management and Technology, GGSIPU. This article deals with the topic of Mediation, a mechanism of ADR.

ABSTRACT

In India, ADR- Alternative Dispute Resolution encompasses various methods of settling disputes outside the traditional judicial system. It mentions various methods, such as, arbitration, mediation, negotiation, conciliation, etc. An Alternative Dispute Resolution is an upshot of all such issues which are faced by the public constantly in the litigation. It is like a proxy to the traditional methods of resolving disputes. The mechanisms of ADR mainly focus on resolving disputes of the parties in the minimum time unlike Litigation. It is an option to resolve their issues without an interference of the court. But these mechanisms of ADR have some pros and cons. This article mainly focuses on one of the ways, i.e., Mediation, its position in India and the advantages and disadvantages of that.

Keywords: ADR, Mediation, Litigation, Advantages and Disadvantages

INTRODUCTION

Rule 4 of the Civil Procedure – Alternate Dispute Resolution Rules, 2003 (ADR Rules) defines mediation by stating that:

‘Mediation’ means the process by which a mediator appointed by parties or by the Court, as the case may be, mediates the dispute between the parties to the suit by the application of the provisions of the Mediation Rules, 2003 in Part II, and in particular, by facilitating discussion between parties directly or by communicating with each other through the mediator, by assisting parties in identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise, generating options in an attempt to solve the dispute and emphasizing that it is the parties own responsibility for making decisions which affect them.

In India, Mediation is a voluntary process in which the disputing parties mutually decide to find a solution to their legal issue by appointing a mediator and entering into a written contract. The mediator acts as a buffer to bring them to an understanding but the decision-making powers remain with the disputing parties. To represent the parties before the mediator and explain the situation in a professional way they can hire ADR lawyers. A mediator can be anyone of any designation and can be appointed formally or casually depending on the wish of the parties, but an Arbitrator needs to be formally appointed either in advance or at the time of the need.

In India, Mediation is divided into two categories as follows:

1. Court referred Mediation:
Under Section 89 of the Code of Civil Procedure, 1908, the court may refer to a pending case for mediation in India This type is frequently used in Matrimonial disputes, particularly divorce cases.

2. Private Mediation:
Corporates, general Public, anyone from courts as well as the government sector can appoint a Private mediator. In Private Mediation, the mediator is qualified personnel who works on a fixed-fee basis.

Principles of Mediation

Mediation has 5 basic fundamental principles which are followed strictly by a mediator as well as the parties for an effective outcome. They are:

Parties should participate voluntarily

It is in the hands of the parties to decide whether they want their dispute to be resolved by a mediator or they want to go to a court. Both the parties decide voluntarily, and It is necessary that no one should force them to mediate.

Confidentiality matters in the process

Every discussion and information given during the mediation shall be kept confidential unless there is a criminal intent or act that involves harm to self or others. And the information provided cannot be used in the court proceedings neither by the mediators nor a court can ask why the mediation did not work.

Mediators are impartial

The mediator should observe all the principles of mediation and consider only matters of procedure and must act impartially and neutrally. He. He should not comment, value judgments, nor give advice or suggest solutions.

An agreement has to be settled with the satisfaction of parties concerned

The process of mediation can only be initiated if there is an agreement between the parties. Mediation cannot be started without the consent of both the parties intending to resolve the dispute. A mediator should know how to explain the advantages of such dispute resolution to the parties, so that they themselves voluntarily agree to be part of such process. A party may at any time withdraw their participation according to their discretion and then transfer the case to the judge. A mediator can interrupt mediation if he feels that the parties have turned away from the solution or that they are even more opposed than they were at the start of mediation.

Mediation is without prejudice to other procedures

Mediation is only meant to resolve issues between parties and not prejudice them.

Mechanism of Mediation

“Mediation” is a well-known term in International Law. The process of mediation may include several stages. They are:

opening statement
opening statements of the parties
summarizing and agenda
exploration of issues
private sessions or caucuses
joint negotiation session
agreement

Practitioners in this field adopt their own preferred styles and they differ in their basic steps. It completely depends upon the nature of the dispute. In this process the mediator gets the opportunity to locate the points of differences and the areas of controversy and then help the parties to overpass the gap between them. The mediator should be neutral to both the parties. The neutrality of the mediator is similar to the neutrality of a Judge, but the role is completely different from that of a Judge. The mediator is not supposed to either deliver a judgment or dictate the terms of the agreement to the parties.

Why Mediation is Effective?

The following points are advantageous for the effectiveness of the ADR mechanism of Mediation:

Informality – The mechanism of mediation is informal by nature as it does not involve any court rule or legal precedents. No rights are vested in the hands of the mediator to impose his decisions upon the parties, rather, the solution rests with the parties themselves. Parties can look to develop their own creative solutions to resolve their issues and disputes.
Privacy and confidentiality – The conference in a mediation takes place in a private setting, such as, a conference room at any of the Arbitration Associations as it is not a matter of public record. Its privacy and confidentiality are maintained.
Time and cost savings – Generally, mediation lasts a day and in complex issues it may require more time due to highly technical issues or the involvement of multiple parties. Mediation requires no formalities unlike litigation which results in substantial costs savings.
Control – All the control is vested in the hands of the parties over their participation in mediation. Parties can decide to terminate their participation at any point in mediation and the mediators help them to maintain control over the negotiation.

CONCLUSION

The development of an ADR mechanism of Mediation is a feasible alternative to litigation but, in India it is still in the impending stage. There is always a need for policies and strategies for an effective implementation. The process of mediation is frequently used by the public but proper implementation lacks. The high courts need to set up more mediation centres and some particular sector of cases should be given to them by the courts.

Although, some mediation centres have been set up by a few industries and trade associations, and some professional lawyers have attempted to develop to full-fledged professionals with expertise in the mechanism of mediation, but these instances are sporadic and irregular in nature, so, the overall perspective of mediation still remains to traversed and looked upon. To achieve a high-level acceptability of the process of mediation, we need to focus upon several issues like development of awareness, building capacities, institutional framework, advocacy, and actual framework.

And let us make an ADR mechanism of Mediation a mainstream, rather than just being a less travelled road in India.

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Orios Venture Partners is an Indian Seed Stage Venture Capital firm. Currently investing from our Fund II, with a focus on tech investments across consumer and B2B for the Indian market. We are 3 partners and a VP who leads investments.

Some of our well-known investments are Pharmeasy, Country Delight, LetsMD, BeatO, GoMechanic, Zupee.

The fund’s founding team are experienced investors since 2008, and pre Orios investments include OlaCabs, Druva, Faballey, Box8, Unbxd and Jigsee.

We are well known for trend spotting and our maxim is #BackingMisfits

Our strategy is invest in selected companies and work closely with them. As a consequence each investment lead works with no more than 4 to 6 companies at a time.

The current team comprises of 16 people, out of which 9 are in investing roles.

For more details, you can visit some of our key members LinkedIn:

https://www.linkedin.com/in/rehanyarkhan/?ppe=1

https://www.linkedin.com/in/anupredback/

https://www.linkedin.com/in/rajeevsuri/

https://www.linkedin.com/in/vinitb/

We have offices in Mumbai, NCR and Bangalore.

We are looking for a Associate / Sr. Associate Legal to join us in Mumbai. The role includes:

Compliance with various laws especially Companies Act 2013, LLP Act, 2008, SEBI, AIF, FEMA & RBI.
Proficient in private limited companies and limited liability partnership compliance aspect.
Drafting and executing transactional documents incl. TS, SSHA and SPA with Portfolios Entities.
Drafting and/or Vetting of Agreements / Contracts / Legal documents,
Review, finalize & collate deal execution and investment documents.
Drafting and executing fund raising documents incl. TD, PPM, IMA & CA.
Research / Advise on structuring and procedural / secretarial task of Portfolios Entities.
Research / Advise on applicability of various business laws in India to Management / Others.
Advise / Co-ordinate for Legal and Corporate Due Diligence of Portfolios Entities.
Form various policy documents / frameworks at Fund, AMC and Portfolios Entities level.
Perform procedure for the Partner/Board Meeting, Committee Meeting and Shareholders Meeting.
Perform / Review compliance with MCA on periodic basis incl. Secretarial work.
Review any litigation matters and get appropriate law firm, if required to handle the disputes and
Co-ordinate with Contributors, Portfolios Entities or Professionals for documentation / legal aspect.

Requirements: Attributes, Experience

Top pedigree academics, LLB + CS (Company Secretary) (preferred)
Experience: 5 – 7 years (Experience with any VCF will be an advantage)
Experience in Transaction in AIF/PE-VC, Contract Law, Corporate Act & Business Laws
Initiative and Self-motivation
Good interpersonal skills
Ability to work under stiff deadlines
Excellent verbal & written communication skills

Seniority Level

Mid-Senior level

Industry

Venture Capital & Private Equity
Legal Services

Employment Type

Full-time

Job Functions

Legal

How to Apply?

https://www.linkedin.com/jobs/search/?currentJobId=2510454587&pivotType=jymbii

For regular updates, join us:

WhatsApp Group:

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Visit us for more such opportunities: http://lexpeeps.in/

Wipro is seeking a self-motivated, team player (but capable of working independently) for its growing business. As a counsel in the Legal and Compliance team of Wipro, the candidate will be expected to draft, review and negotiate global contracts in support of the company’s corporate departments and business units. The position requires regular communications with key business stakeholders, sharp business acumen, excellent contract drafting skills and the ability to negotiate effectively with opposing counsel, while successfully protecting the interests of the company. The attorney will be part of a dynamic, collegial and growing practice group within the corporate legal department.

Desired Work Experience:

Experience in drafting, reviewing and negotiating software license agreements, IT services contracts (e.g., Cloud and hosting agreements), IT infrastructure contracts, IP licenses, online advertisement/marketing agreements, ISDA contracts, construction contracts, property related documents, treasury contracts, structured finance documents, hardware purchase and leasing agreements, staffing contracts, IT development agreements, collaboration agreements, non-disclosure agreements, bank guarantees etc.
Understanding of software license compliance issues, including open source software and related copyright issues will be preferred
Knowledge of legal and compliance issues, such as data protection issues, relating to cross-border transactions
Exposure to contract disputes, including dispute resolution and/or litigation (preferred)

Qualification:

Roles & Responsibilities:

Skills:

Additional Skills:

Stakeholder Interaction

The candidate needs to be confident, dynamic and have a pro-active disposition.
Flexibility to work and support business operating in different time zones.
Strong business and organizational skills are required and the ability to multi-task with various stakeholders including, operations, delivery and finance teams on various aspects of contracting.
Should possess effective drafting and communication skills. Knowledge of foreign languages would be an asset.
Needs to have the ability to effectively work with internal clients/external customers and foreign law firms.
Should have excellent analytical, and interpersonal skills with professionalism to motivate and supervise others.
Should possess strong business acumen, ethics and high integrity.

The ideal candidate will be a qualified lawyer with 7-12 years of experience in commercial contracts, handling disputes and litigation, in-house or in private practice, preferably within the IT industry.

The Corporate Counsel will be part of the Corporate Legal team and be expected to deal with a wide scope of legal and contractual responsibilities.

Will be located in our Bangalore office. Will require travel within and outside of India on a need basis.

“Wipro is an Equal Employment Opportunity employer and makes all employment and employment-related decisions without regard to a person’s race, sex, national origin, ancestry, disability, sexual orientation, or any other status protected by applicable law”

Industry

Information Technology & Services
Computer Software
Financial Services

Employment Type

Full-time

Job Functions

Legal

How to Apply?

https://careers.wipro.com/careers-home/jobs/2640298?lang=en-us&utm_source=Linkedin

Notification:

https://www.linkedin.com/jobs/search/?currentJobId=2524969364&pivotType=jymbii

For regular updates, join us:

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Vanshika Arora, is a first-year B.A.LL.B student at the Army Institute of Law, Mohali. This article intends to briefly describe the history, evolution and development of Labour Laws in India.

INTRODUCTION

Labor laws, also called employment laws are a domain of laws that deals with the relationship of the employee and employer, along with the rights of both parties involved. This sect of law rules precedents and administration of a relationship with two parties wherein one is working for the other in exchange of some consideration. It also provides a link between laborers and the government. Essentially, labor laws deal with industrial relations such as trade unions, collective bargaining and unfair labor practices; workplace health and safety standards; and employment standards such as wages, maternity or paternity leaves, working hours, unfair dismissal etc.

Labor laws can be broadly divided into two categories: collective labor law, that deals with the relationship between employee and employer, plus unions; and individual labor law, that deals with the minimum wage, healthy working conditions, and other rights at the workplace.

History

The Indian labor laws owe their origin to the labor movements of the 19th and 20^th century. These laws were largely a result of the industrial revolution that saw an emerging relationship with the employee and the employer, along with tumultuous revolts that had to be addressed by the government. The very first legislation introduced in regards to the labor laws was Factories Act, 1883; this law abolished child labor, limited working hours to eight in a day, initiated overtime working wages and introduced safe working conditions for women.

On an international level, labor rights were first given global recognition through the enactment of ILO (International Labor Organization), established in 1919, by the League of Nations, after the end of World War I. On 29^th October, 1919, ILO adopted first six conventions on the labor laws, which dealt with hours of work, unemployment, maternity leave, night work for women, minimum wage and night work for young people. India has ratified 6 conventions of ILO, this binds India to abide by them at the international and national forums.

Subsequently, The Trade disputes Act, 1929 became the earliest legislation that governed the relationship between employee and employer.

Originally, the Trade Disputes Act and The Factories Act, were a result of British Colonial Interests guided by British Political economy and trade. Each of the two laws had provisions to promote profitable British trade. Hence, post independence legislators deemed fit to accrue Indian laborer and employer’s interests by altering these laws to include fair wage and fair working conditions.

Constitutional Provisions Governing Labor Laws

Labor Laws fall under the concurrent list, meaning both State and Center can make laws on the matters relating to labor. Chapter III, articles 16,19,23 and 24 along with Chapter IV, articles 39,41,42,43,43A and 54 deal with the matters of labor law. Entry 24, 25, 55, 65 and 66 of the concurrent list contain provisions in regards to labour laws.

Evolution of Labor Laws in India

Only until recently, labor law legislations in India were scattered to be 40 at central level and 100 at the state level. Broadly, they could be categorized into:

Acts administering working conditions: Factories Act, 1948; Shops and Commercial Establishment Act, 1961; The Contract Labor (Regulation and Abolition) Act, 1970.

Acts safeguarding social security: Employees’ Provident Fund Act, 1952; Workmen’s Compensation Act, 1923; Employee’s State Insurance Act,1948.

Acts providing for wages and remuneration: Payment of Wages Act,1936; The Minimum Wages Act,1948.

Acts providing security of employment and labour relations: Industrial Disputes Act, 1947; Industrial Employment Standing Order Act, 1946.

Most recently, in 2019, the Central government attempted to amalgamate these laws into a simpler, more comprehensible legislation. This was also suggested by the second National Commission (2002), which found the umpteen laws archaic and complex. In an attempt to codify and consolidate 29 central laws, 4 bills were introduced in the parliament, and only Wages Code Bill was passed in 2019. In September 2020, all erstwhile laws were replaced by the other 3 main legislations introduced, namely:

Industrial Relations Code Bill, 2020

This law combines Industrial Disputes Act,1947; Trade Unions Act,1926; and Industrial Employment (Standing Orders) Act, 1946. This law aims to include provisions for emerging forms of labor, like the gig economy. Earlier, many laws at the centre and state level attempted to define terms such as “employee”, “employer”, “wages” etc, this law attempts to produce a single definition aiming for uniformity. It also attempts to expand the definition of strike to include concentrated leave of more than 50% workers on a given day or days.

Code on Social Security Bill, 2020

This bill amalgamates 9 different laws and primarily recognizes unorganized sector workers. It defines an aggregator, gig worker, unorganized worker etc. It increases Employees’ Provident Fund to every establishment with more than 20 employees. It provides that maternity benefits shall apply to every establishment with 10 or employees. It also provides for the establishment of social security bodies to effectively implement social security regulations.

Occupational Safety health and Working Conditions Code Bill, 2020

This law amalgamates 633 provisions of 13 central legislations, into a single code. This code aims to lay down security and health related measures for those working in hazardous industry, such as mines, factories, construction and dock work, etc. It largely defines, contract labor, hazardous process, wages, certain rights of the employee and duties of the employer. Moreover, it lays down provisions for health, safety and working conditions and recognizes interstate contract laborers and migrant workers under the ambit of employees.

Conclusion

The three codes on one hand are revolutionary in the sense that they have optimized labour laws administratively and have done away with many complexities in the literature and the machinery of the umpteen statutes that existed before. However, on the other hand, these codes are being criticized highly for having set a precondition for workers that wish to strike. (that is a sixty day prior notice). This precondition is seen to be problematic under the constitutional right to strike. Moreover, through these codes, the threshold of standing order has been increased from 100 to 300 employees, giving immense unfair freedom to employers in terms of the hiring and firing process.

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This article is authored by Sanskriti Goel, a 1^st year law student from Chanderprabhu Jain College of Higher Studies and School of law, GGSIPU. This article discusses the various definitions and evolution of law of torts.

Origin of the term ‘Tort’

The word ‘tort’ is French equivalent of the English word ‘wrong’. The term has been derived from the Latin word ‘tortum’ which means ‘twisted’ or ‘crooked’. Therefore, tort essentially means a civil wrong or a wrongful act, which is either intentional or accidental and results in injury or harm to another who in turn recourse to civil remedies for damages or court order or injunction.

Definition of the term ‘Tort’

There is no comprehensive definition of tort but over the many years, several jurists have attempted to give a workable definition of the term ‘Tort’. The two categories under which these definitions fall is as follows:

Definition of Tort in Relation to Breach of Contract

Salmond says: “ A tort is a civil wrong for which the remedy is an action for unliquidated damages and which is not exclusively the breach of a contract, or the breach of a trust, or the breach of other merely equitable obligation. ”
Clark and Lendsell say: “ Tort is a wrong independent of contract for which the appropriate remedy is a common law action. ”
Underhill says: A tort is an act or omission which is unauthorized by law, and independent of contract.
1. infringes either
  - Some absolute right of another; or
  - Some qualified right of another causing damage; or
  - Some public right resulting in some substantial and particular damage to some person, beyond that which is suffered by the public generally; and
2. Give rise to an action for damages at the suit of the injured party.

Section 2(m) of The Limitation Act, 1963 defines: “Tort means a civil wrong which is not exclusively a breach of contract or breach of trust.”

Based on the above-mentioned definitions, it can be concluded that three distinct features are essential to constitute a tort. These features are:

Tort falls under the classification of civil wrong.
A tort is other than a breach of contract of a breach of trust; and
The wrong can be redressed by an action for unliquidated damages.

Definition of Tort in Terms of Breach of Legal Duty or Infringement of a Legal Right

Fraser says: “A tort is an infringement of right in the rem of a private individual giving a right of compensation at the suit of injured party.”
Pollock says: “Every tort is an act or omission which is related to harm suffered by a determined person.”
Winfield says: “Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.”

On the basis of these definitions, it may be concluded that the following conditions must be fulfilled in order to hold a person responsible in tort:

There should be breach of a duty;
This duty should be essentially fixed by law;
This duty should be towards persons generally; and
Remedy should be available in the form of unliquidated damages.

Evolution of Law of Torts in England

The main source of the law of torts is the common law. This means that law of torts is based on decided cases and owes its development to the activity of thee judges.

Before 1852

Until the mid 19th century, the question which arose when a plaintiff sued a defendant for some alleged enquiry was “ Has the plaintiff any form of action against the defendant and if so what form? ” If he could not fit his claim into one of the recognised forms of action, he had no legal grievance. An action was usually commenced by a writ issued from a government department. The plaintiff had to choose the most appropriate writ and pay for it. If he purchased a wrong writ or he could not fit his claim in one of the recognised ‘forms of action’ his suit was dismissed . The maxim at that time was ‘ubi remedium ibi jus’ which means where there is no writ, there is no right.

After 1852

The Common Law Procedure Act, 1852 and the Judicature Act, 1872 abolished the recognised framework of ‘forms of action’. Now the remedies are given for the damages suffered by the aggrieved party based on his right, not on whether they can be fitted into an established framework. In today’s times, the maxim is ‘ubi jus ibi remedium’ which means where there is a right, there is a remedy. A leading case in this reference is Ashby v. White (1703) 2 Ld. Raym. 938. In this case, the plaintiff was a valid voter at a parliamentary election. The defendant, the returning officer at the voting booth, wrongfully prevented the plaintiff from exercising his voting rights. Now, there was no loss, monetary or otherwise, suffered by the plaintiff as even the candidate, for whom he wanted to vote, won the elections. Still the plaintiff succeeded in his action against the defendant for a simple reason that the plaintiff’s right was violated. This case significantly contributed to the development of law of torts by establishing the principle ‘ubi jus ibi remedium’.

Evolution of Law of Torts in India

The Indian law had a much narrower conception of the law of torts than the English law of tort. In India, emphasis used to be on ‘punishment for crimes’ and not on ‘compensation for wrongs’. Gradually, with the advent of the modern era, the process of development of the law of torts started in India. The rules of law of torts in India are based on the common law of England.

Before Independence

During the 18^th century, the British administration established the Mayor’s Courts in India. These were established in the three presidency towns of Calcutta, Bombay and Madras. The Charter of 1726 introduced English Common Law and Statutory law in India for the first time. As a result, the law of torts, which is a branch of common law, was introduced in the courts of Calcutta, Madras and Bombay.

After Independence

The same rules of law of torts continued to be used in India even after Independence. Even today, the Indian law of torts is significantly influenced and shaped by the English common law system. However, the Indian courts are not bound by the English common law in the sense that the courts determine the appropriateness of English law before applying a particular rule to Indian case.

This happened in the landmark case of M.C. Mehta v. UOI (1987) 1 SCC 395 wherein the Hon’ble Supreme Court of India introduced the principle of absolute liability in place of strict liability which was established in the famous case of Ryland v. Fletcher (1868) LR 3 HL 330 so as to deal with issues arising in a modern industrialised economy. In the case Ryland v. Fletcher, the defendant employed independent contractors to construct a reservoir on his land to provide water for his mill. There was negligence on the part of contractors that they didn’t block the mine shafts which they came across while constructing the reservoir due to which water flooded plaintiff’s coal mine resulting into damage to the mines of the plaintiff. It was found as a fact that the defendant did not know about the shafts and had not been negligent. Justice Blackburn J. held the defendant liable by introducing the concept of strict liability and hence observed: “The rule of law is that the person who, for his own purpose, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape. Therefore, strict liability doesn’t take into account the intention or carelessness of the defendant, when the defendant caused the injury.

The facts of the famous case of M.C Mehta v. UOI were as follows: In 1985 in Delhi, a factory of the Shri Ram foods and fertilizers industries leaked Oleum gas that killed one person and had few others hospitalised and created huge panic among the residents. The then Chief Justice of India P.N Bhagwati held : “ We are of the view that an enterprise, which is engaged in hazardous or inheritance cli dangerous industry, which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding area, owes an absolute and non delegable duty to the community to and sure that no harm results to anyone on the account of hazardous activity in which it is engaged and it must be conducted with the highest standards of safety and if any harm is done on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. ”

The doctrine of strict liability has many exceptions while the doctrine of absolute liability is not subject to any exceptions.

CONCLUSION

Tort law has grown into a powerful and independent branch of law over the period of many years. But it can be seen that the development of tort law has been more significant in the developed countries like England, America and Canada, in comparison to developing countries like India. It is observed that the development of the law of torts in India has been slow due to several reasons. Some of the reasons include illiteracy, lack of proper knowledge of one’s rights, poverty, expensive judicial system and uncodified tort laws. Nevertheless the importance of the law of torts has been increasingly recognised across the globe, so as to protect the interest of individuals rather than to punish certain categories of the wrongdoer.

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This article is written by Kalyani Gupta, a Master’s in Law student from Amity University, Noida. This article discusses about the doctrine res judicata and how it is applied in Indian Law.

INTRODUCTION

Section 11 of the Civil Procedure Code, 1908 defines the doctrine of Res Judicata. It implies that if any issue or matter is already judged then no court of law will have the power to try any new suit or disputes which has been previously resolved in the earlier suit between the same parties and there is no pending appeal before any court, the court in this case has the power to dispose of that case by granting a decree of Res Judicata.

This doctrine is established on the grounds that if the issue or matter is already resolved by the competent court then no one will have the rights to reopen it with the following suit. It also presents the inevitability of the judgments regarding the points decided, in each subsequent suit between the same parties. The doctrine of Res Judicata is used by the court where the issues are directly and significantly involved between the same parties in the previous and the present suit, are identical.

For example: ‘A’ has sued ‘B’ because he failed to pay rent. ‘B’ requested for the reduction of rent on the ground as the vicinity of the land was lesser than what was stated on the lease.

The Court discovered that the area was larger than indicated in the lease. The area of the land was surplus and the principle of res judicata cannot be applied in this situation.

In a case, ‘A’ new suit was filed according to which the defendants requested the Court to reject the lawsuit with a plea of the doctrine of res judicata. She was prohibited from making a claim of res judicata because her earlier claim was rejected for fraud. The Court stated that the defense of res judicata can be applied only when it is proved by evidence.

Conditions

There should be two suits – One previous and the other is the subsequent. Former suit implies a suit, which was previously decided. It is not essential to know when the suit was instituted. What matters is when the decision was pronounced from the court.

Matter directly and significantly in the following suit – It implies that the issue must be directly associated with the suit. It should not be collateral or incidental to the stated issue.

There must be same parties in the suits – Parties are the people whose names are mentioned on the record when the decision is passed, and a party may also be a person who has interfered in the suit.

Litigating under the identical title – This means that the parties to the following suit must have had litigation under the same title in the previous lawsuit.

Competency of the Court – In the following suit, it is essential that the court which has tried the previous suit must have been competent to try the subsequent suit.

Finality – When the competent court has applied its judicial mind and has, after the arguments and deliberation, come to a verdict on a disputed matter

Principle Of Res Judicata

The principle of res judicata promotes the fair management and administration of justice and morality and to stop the law from exploitation. The principle of res judicata is applied when a complainant attempts to file a subsequent suit on the same issue, after having obtained a decision in a preceding case which involves the same parties. In several jurisdictions, this doctrine can be applied not only to the particular claims made in the former case but also to those claims that could have been rendered during the same case.

Pre- Requisites of Res Judicata

A legal decision by a competent court or tribunal
The decision is final, and binding and any judgment made on the facts and merits
A fair hearing by the court
Whether the earlier judgment is right or wrong is not important

Nature and Scope of Res Judicata

Res judicata comprises of two notions which are – claim preclusion and issue preclusion. Issue preclusion can also be called collateral estoppel which states that parties cannot sue each other after the final decision in the first case has been made on the basis of merits. For example, a plaintiff loses a case alongside the defendant in a case say ‘A’, now the plaintiff cannot possibly sue the defendant again in case ‘B’ on the basis of the same facts and reasons. Plaintiff cannot sue even in a separate court with the same stated facts. Whereas the concept of issue preclusion forbids the relitigating issues of law that have been previously determined by a judge as part of an earlier suit.

The doctrine of res judicata has its roots on the following three maxims[i]:

‘Nemo debet bis vexari pro una et eadem causa’ – No man should be
‘Interest reipubliace ut sit finis litium’ – It is in the interest of the State that there should be an end to a litigation
‘Res judicata pro’ – a judicial decision must be accepted as correct.

This doctrine is established on the principles of equity, justice, and good conscience and is applied to all civil and criminal proceedings and similarly to all quasi-judicial proceedings which are held before tribunals. Section 11 of the Code is applicable on both plaintiff and defendant related to a suit.

The scope of this doctrine has been decided in the case of Gulam Abbas v. State of Uttar Pradesh[ii]. The court in this case featured the rules as proof or evidence as a plea of an issue previously tried in the former case. The judgment of this case was tricky and difficult as the judges must apply the doctrine of res judicata. It was then decided that res judicata is not extensive and even if the issue is not clearly or directly included under the provisions of the section it will be deemed as a case of res judicata based on general principles.

Applicability and Non-Applicability of this Doctrine

Public interest litigation: The doctrine of res judicata may function in public interest litigation if the preceding litigation was a ‘bona fide’ public interest litigation, but if the former legal proceeding was not a ‘bona fide’ one, the following legal proceeding for the identical public interest litigation cannot be barred.

Writ petitions: For a long period of time, it was established that the doctrine of res judicata cannot be applied to writ petitions which are filed under article 32 and 226 of the Constitution of India. But in the case of M.S.M Sharma v. Dr. Shree Krishna[iii], the Supreme Court of India held that the principles of doctrine of res judicata can be applied even to the writ petitions which are filed under article 32 and 226 of the Constitution of India for violating the fundamental rights. The court has asserted that the principle of res judicata will specifically not apply to the writ of habeas corpus.

Criminal proceedings: It is apparent that the doctrine of res judicata can be applied to criminal proceedings because the major purpose of this doctrine is to end the litigation. The Supreme Court held additionally that once an individual is convicted of any criminal offence by a court which is competent to try such matter, he cannot be tried again for the same crime or offence.

Industrial adjudication: This doctrine is applied even to industrial adjudications. When an award is declared by the industrial tribunal, then the same issue cannot be claimed before the tribunal again. This is also extended to those cases filed under labor courts.

Taxation matters: This doctrine is not applicable in matters related to taxation. The year-to-year liability and paying tax is separate and an independent liability.

CONCLUSION

If the multiplicity of certain proceedings is permitted for the same matter, then it will not only make the parties to the suit suffer but also will increase the responsibility and burden on the judiciary and waste the resources by conducting trials on the same issue and articulating judgement for the same. To reduce or curb these problems the doctrine of res judicata is essential to be applied in an effective and stringent manner

[i] http://www.legalserviceindia.com

[ii] 1981 AIR 2198, 1982 SCR (1)1077

[iii] 1960 AIR 1186

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This article is written by K.Lasya Charitha pursuing BALLB in Damodaram Sanjivayya National Law University, Visakhapatnam. In this article, the researcher describes the History of ADR in India, types of ADR, the Importance of ADR in India, and few case laws related to ADR.

What is ADR?

Alternate Dispute Resolution (ADR) is the process that helps parties of a suit to resolve their disputes without the intervention of any judicial institution or any trial process. This process is usually confidential, less formal, and also less stressful compared to the traditional court procedures.

The Alternate Dispute Resolution process resolves all types of disputes which include civil, commercial, family, and high profile labor disputes, etc., where the parties will not be able to negotiate and reach a settlement.
ADR process uses third parties to help and communicate between both parties and reach a conclusion. These are often collaborative and help the parties to understand each other easily.
Generally, the ADR process comes out with creative idea solutions that the traditional courts may not be legally allowed to impose.
The ADR process gives the opportunity to the parties to maintain co-operation, social order and helps to reduce hostility.

History of ADR in Ancient India

Dispute resolution through ADR is inherently built into Indian culture. Since the Vedic period, the indigenous peoples have not used opposing methods to resolve their disputes. Yajnavalkya and Narada found that the courts of Kula, SRENI, and Puga had settled disputes in ancient India. Disputes between family members, communities, castes, or races and tribes were settled using these methods. The SRENI was a court composed of trade experts that helped traders resolve their trade disputes internally. Puga was a court made up of people who belonged to several parishes, but from the same place as Panchayat, these courts followed a simple decision-making process. The Kula decision can be challenged before the SRENI and the SRENI decision before Pradvivaca. and the final calling was allowed to the king. These courts had made decisions about the interests of the party and the community.[i]

Functions of ADR

Reduce the workload of the courts, which has indicated that there are currently around 3.4 million cases pending in Indian courts (data from national justice data grid).
Resolving cases swiftly equates to justice by avoiding procedural delays associated with the mandatory judicial system and therefore complying with the primary right of the speedy trial division of Article 21.[ii]
As the cost and time of litigation decrease, the chances of access to justice will increase. Therefore, it fulfills its obligation to provide free legal aid to the poor under 39A.[iii]
Save the common man from the complicated and unpleasant legal process.
The ADR procedure offers discretion. Assistance in important communal matters for litigants, especially in civil matters such as divorce.
In support of authority. For example Administrative Courts, National Company Law Court, National Green Court, and others.

Some Important Provisions related to ADR

Section 89 of the Code of Civil Procedure, 1908 talks about the ” Settlement of disputes outside the court”. The contents of the said section are as follows:

“where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of the settlement and give them to the parties for their observations and after receiving the observations of the parties, the court may reformulate the terms of a possible settlement and refer the same for :

Arbitration
Mediation
Conciliation
Lok Adalat”[iv]
Other legislations which deal with Alternate Dispute Resolution are the Indian Arbitration Act of 1899, Arbitration (Protocol And Convention) Act of 1937, The Arbitration Act Of 1940, Arbitration And Conciliation Act of 1996, Legal Services Authorities Act of 1987.

Modes of ADR in India

Arbitration

In arbitration, a neutral person called an “arbitrator” listens to the arguments and evidence of the parties, and then determines the outcome of the dispute. Arbitration is not as formal as the courts, and the rules of evidence are generally relaxed. Arbitration can be “mandatory” or “optional”. Binding arbitration means that the parties waive their right of litigation and agree to accept the arbitrator’s decision as to the final decision. Usually, there is no legal remedy against the arbitrator’s decision. Non-binding arbitration means that if the parties do not accept the arbitrator’s decision, they can file a lawsuit. The types of arbitration are Ad Hoc Arbitration, Institutional Arbitration, Statutory Arbitration, Fast track arbitration.

Mediation

In mediation, an impartial person called a “mediator” helps the parties find a solution acceptable to both parties. The mediator does not resolve the dispute but helps the parties communicate so that they can try to resolve the dispute on their own. Mediation is not binding on the parties like arbitration. The biggest advantage of mediation is that the entire process is strictly confidential. Mediation saves time and financial and emotional cost of resolving a dispute, thereby, leads to the re-establishment of trust and respect among the parties. Emotions and feelings between parties can be preserved causing minimum stress and heartache.

Conciliation

Conciliation is a form of arbitration, but it is not so formal in nature. It is a process of promoting peaceful settlement between the two parties. In this process, the parties to the dispute appoint a conciliator to meet with the two parties separately to resolve the dispute to Reduce the tension between the two parties, improve communication, and explain the problem to reach a negotiated solution. There is no need for an agreement in advance, nor can it be imposed on any party that does not seek a settlement, because this is different from arbitration in that way. However, if both parties accept the settlement document drawn by the conciliator, it shall be final and binding on both.

Negotiation

In India, Negotiation doesn’t have any statutory recognition. Negotiation is self-counseling between the parties to resolve their dispute. Negotiation is a process that has no fixed rules but follows a predictable pattern. It occurs mostly in business, NGOs, among nations, and also in personal matters like marriage, divorce, and everyday life.

Essentials of Negotiation are:

It is a communication process;
It resolves conflicts;
It is a voluntary exercise;
It is a non-binding process;
Parties retain control over outcome and procedure;
There is a possibility of achieving wide-ranging solutions, and of maximizing joint gains.

Lok Adalat

Lok Adalat is a unique system developed in India. It is also called the People’s Court and is a forum for voluntary settlement of disputes between parties through mediation and persuasive methods. This includes negotiation, mediation, and reconciliation. According to the Civil Procedure Law, the civil court has approved Lok Adalat, a tool for resolving disputes between the two parties. Any case heard in the ordinary court or any dispute not submitted to the court can be submitted to Lok Adalat. No fees are charged, and strict procedures are followed to simplify the process. If any matter is pending n the court and it is referred to the Lok Adalat and is settled subsequently, then the court fee which is paid before when the petition is filed will also be refunded back to the parties.

Advantages of Alternate Dispute Resolution

ADR has many advantages over the traditional method of litigation and some of the advantages are:

ADR is usually faster than the traditional courts and is budget-friendly.
It is informal in nature.
There is confidentiality in the process of resolution of disputes between the parties.
It is very flexible and responsive to the individual needs of the people involved in it.
It prevents further conflict and maintains a good relationship between the parties.

Few Case laws related to ADR

In P. Anand Gajapathi v. P.V.G. Raju[v], the question was whether an arbitration agreement can be entered into after a lawsuit has been filed. The parties to the case entered into an arbitration agreement during the pendency of the appeal in the court agreed to refer their disputes to an arbitrator. The court ruled that it is possible if both parties give their consent for arbitration. The phrase “subject to an arbitration agreement” does not necessarily require that the agreement must exist before the lawsuit is brought to court.

In M.V. Baltic Confidence v. State Trading Corporation of India Ltd.[vi], the Supreme Court held that the intent of the parties to enter into an arbitration agreement should be considered and the words of the clause can be overlooked if the intent is clear.
In the case of Narayan Prasad Lohia v. Nikunj Kumar Lohia[vii], the question of whether the arbitration agreement is no longer valid was raised, because according to the law, the agreement only stipulates the appointment of two arbitrators, and an odd number is required. Referees. It was pointed out that even if the parties ordered the appointment of two arbitrators, the agreement remained valid. The two judges can agree on the same thing. If there is a possibility of a tie, then in accordance with Article 11(3) Then, the arbitrators must appoint a third arbitrator as the head referee. It is also possible to appoint a third arbitrator as a preventive measure.

If the parties do not specify the number of arbitrators in the agreement, the arbitration tribunal will consist of one arbitrator by default.

In Satish Kumar v. Surinder Kumar[viii], talked about Section 35 that contemplates the finality of arbitral awards. The Supreme Court held that after the award becomes final, the rights and liabilities of the parties in respect of said claims can be determined only on the basis of the said award, thereafter, no action can be started on the original claim which had been the subject matter of the arbitral proceedings. It was held by the Supreme Court, that the award is in fact, a final adjudication of a court of the rights and liabilities of the parties, which on the face of it is conclusive upon the merits of the controversy submitted. It was further held that an award given under the Arbitration Act requires registration under section 17(1) (b) of the Registration Act if the award affects partition of an immovable property exceeding the value of Rs. 100/-.
In Puri Construction Co. v. Union of India[ix], it was held by the SC that when the court is called upon to decide the objections raised by a party against an award, the jurisdiction of the court is limited, as expressly indicated in the act and it has no jurisdiction to sit in appeal and examine the correctness of the award on merits. The Court also held that if there is no legal proposition either in the award or in any document annexed with the award which is erroneous and the alleged mistakes or alleged errors, are only mistakes of fact and if the award is made fairly, after giving adequate opportunity to the parties to place their grievances in the manner provided by the arbitration agreement, the award is not amenable to corrections of the Court.

Conclusion

In Conclusion, ADR has been proved successful in clearing the backlog cases in various levels of the Indian judiciary. Lok Adalats have alone disposed of more than 50 lakh cases every year. But there is a lack of awareness about the availability of these mechanisms. There is an urgent need for justice dispensation through ADR mechanisms. The National and State Legal Services Authorities should create awareness among the citizens of the country regarding these Alternative Dispute Resolutions so that they become the first option explored by the potential litigants. This will considerably reduce the load on the courts apart from providing instant justice to the people, without substantial costs being involved.

[i] Dr. Marisport A, Dr. Ambati Nageswara Rao, and Ms. Heena Goswami, ‘RESOLVING PENDING CASES THROUGH ALTERNATIVE DISPUTE RESOLUTION UNDER SECTION 89 OF CIVIL PROCEDURE CODE: A CASE STUDY’ (Department of Justice, 2019) <https://doj.gov.in/sites/default/files/GNLU.pdf> accessed 6 May 2021.

[ii] Constitution of India 1950, art.21.

[iii] Constitution of India 1950, art.39(A).

[iv] Code of Civil Procedure 1908, s 89.

[v] P. Anand Gajapathi v P.V.G. Raju, (2000) 4 SCC 539.

[vi] M.V. Baltic Confidence v State Trading Corporation of India Ltd, (2001) 7 SCC 473.

[vii] Narayan Prasad Lohia v Nikunj Kumar Lohia, 2002 (1) RAJ 381 (SC).

[viii] Satish Kumar v Surinder Kumar, AIR 1970 SC 833.

[ix] Puri Construction Co. v Union of India, AIR 1986 SC 777.

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INTRODUCTION

Principles of Mediation

Mechanism of Mediation

Why Mediation is Effective?

CONCLUSION

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INTRODUCTION

History

Constitutional Provisions Governing Labor Laws

Evolution of Labor Laws in India

Industrial Relations Code Bill, 2020

Code on Social Security Bill, 2020

Occupational Safety health and Working Conditions Code Bill, 2020

Conclusion

Origin of the term ‘Tort’

Definition of the term ‘Tort’

Definition of Tort in Relation to Breach of Contract

Definition of Tort in Terms of Breach of Legal Duty or Infringement of a Legal Right

Evolution of Law of Torts in England

Evolution of Law of Torts in India

CONCLUSION

INTRODUCTION

Conditions

Principle Of Res Judicata

Pre- Requisites of Res Judicata

Nature and Scope of Res Judicata

Applicability and Non-Applicability of this Doctrine

CONCLUSION

What is ADR?

Functions of ADR

Some Important Provisions related to ADR

Modes of ADR in India

Arbitration

Mediation

Conciliation

Negotiation

Lok Adalat

Advantages of Alternate Dispute Resolution

Few Case laws related to ADR

Conclusion

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