Global ODRM treaty: Need of the Hour

The existence of fair, just and reasonable procedure for determination and settlement of conficting issues between the litigating parties decides success rate of every justice delivery system and this includes the right of an individual to early disposal of cases known as the right to speedy justice. For this reason, there have been various efforts by both legislature and judiciary to ensure early disposal of cases to the litigants. The Indian judiciary has been considerate enough to include right to speedy trial as a part of fair, just and reasonable procedure enshrined under Article 21 of Constitution as the mental agony, expense and strain which a person suffers in his quest for justice while litigating in courts and which, coupled with delay results in impairing the capability or ability of the litigant to represent his case and sometimes even in the total denial of justice to him.

But, this right of speedy trial and easy access to justice should not be considered as one limited to criminal trial only and is equally available in civil suits. There are various legal provisions which provide alternative0 and less lengthy judicial mechanisms such as Arbitration and mediation.

A unique example of this right as a part of Indian judicial system is the existence of "Village Panchayat System" which not only enjoys constitutional status under PART IX and schedule 11 and 12 of the Constitution of India but also has a great historical significance as it is an institution meant for local governance. Under this village panchayat system, various judicial powers have been given to them which, though limited, but are of great importance as they are based on the principle of "Conciliation and mediation".

Not only this, the major procedural law on civil proceeding, the Civil Procedure Code, 1908 also gives power to the court to refer matters for settlement through Arbitration, conciliation and mediation including panchayats inder Section 89 of it. Further, we also have the Arbitration and Conciliation Act, 1996 which specifically provides the procedure to be followed in any arbitration proceeding. As there is no special procedure to be followed in the arbitration proceedings and party are free to make arrangements for the same as per the provisions of the Arbitration and Conciliation Act, 1996; the benefits of information technology can be used for this purpose as well. Hence, the system of Online Dispute Resolution Mechanism (ODRM) can be a good idea for this. The provisions for incorporating ODRM as an ADRM, though by implication only; but are very much included in both CPC and Arbitration and Conciliation Act, 1996.

Now a big question arises as to the need of ADR/ODR in the contemporary society. It is beyond any doubt that the ADR/ODR mechanisms have an upper hand and strategic advantage as compared to traditional dispute resolution mechanism like "litigation". Thus, the parties all over the world prefer ADR/ODR as against litigation that usually takes a long time to culminate. Thus, the need of ADR/ODR is stemming out of "necessity". Now a successful ADR/ODR base cannot be visualized till we follow the "uniform standards" at the global level. Thus, first the laws must be "harmonised" and then those laws must be associated with ADR/ODR initiatives. (1)

Uniform standard is the requirement not only of the Global ODR system but of every Institution and system be they legal or not; and even for a simple arrangement between a group, we first need to decide in what direction we are going to work. what are our objectives and what means can be employed for the achievement of the same.

Though, it is not easy to gain consensus as every legal system is in some way or the other different from the rest of the world but the basic point on which there is consensus is the need to impart justice and over the recognition of certain justice delivery systems. Further, this requirement of Uniform standard is also there under our Arbitration and Conciliation Act, 1996, when it says that parties are free to draft their arbitration agreement but the same must be in conformity with the provisions laid down in the Act and can in no way go against the same.

Hence, when we talk in context of India, Arbitration and Conciliation Act, 1996 sets out those Uniform standards and at global level same can be found in UNCITRAL and other international documents. These provisions are either scattered or are not properly defined. The need is to develop consensus between both individuals as well as nations to draft these Uniform standards. Further, the need for the same has become more intense in recent times as business and migration activities have increased dramatically in recent times.

Thus, law on ADR/ODR is quite sound in India and the only need is to make good use of the same. The need of the hour in this respect is to draft a global treaty on ODRM keeping in mind the requirements of member nations particularly those of business community.

Regards,

Geeta Narula,
Advocate and Consultant,
Delhi High Court

Contact at: advocategeeta@yahoo.com / advocategeeta@rediffmail.com
Mobile: +91 9873331152

http://www.blogger.com/profile/9620500

(1) Dalal, Praveen; http://www.frappr.com/phpBB2/viewtopic.php?p=99481#99481

RTI protects basic features of Constitution

Every sovereign legal state is supposed to have a fundamental legal document which is known as Constitution and primarily sets out the frame-work for creation and functioning of various organs of the state such as legislature, executive and judiciary. These government organs draw their powers and work within principles determining their functions. But constitution is not just a code of conduct for governmental agencies. Constitution not only confers powers on various organs of the state but also sets limitations and regulations on the proper use of those powers by providing the mechanism of check and balance.

Right to Information is one of such mechanism as it puts power of legislature, executive and even judiciary under the scrutiny of general public. It preserves basic freedoms of individuals and upholds his dignity and personality. Right to Information adheres to the principle of constitutionalism which means ideals of Justice, freedom and equality are being followed by organs of the state while discharging their duties. It is an in-built restriction on the powers of government agencies which provided by the constitution itself as Right to Information has emerged from the Right to freedom of speech and expression as contained under Art. 19 (1) (a) of the constitution.

Right to Information connotes the principles of constitutionalism by providing for 'limited government'. It is an antithesis to the arbitrary powers. Absence of Right to Information would mean to jeopardize the freedom of people and it would also lead to authoritarian and oppressive government.

Further, Right to Information is part of rule of law also as Rule of law implies the absence of arbitrary powers, equality before law and individual liberties. Hence, in real sense, the Right to Information protects not only constitutionalism but basic features of the constitution also such as Fundamental Rights, Rule of law, principle of check and balance. All of these have been held to be part of basic features of Constitution; its heart and soul.

Regards,

Geeta Narula,
Advocate and Consultant, Delhi High Court,
Contact at: advocategeeta@yahoo.com / advocategeeta@rediffmail.com /
Mobile: +91 9873331152

TECHNOLOGICAL COURTS AND SPEEDY JUSTICE

An article analysing the utility of the Information Technology for the speedy disposal of cases.

The very basic purpose for which every state machinery sets up the court system is to award justice to the victims of crimes. The constitution of India imposes heavy duty on the judicial system for providing legal mechanism to deal with problem relating to imparting justice. The setting up an independent judicial system, inclusion of fundamental rights and directive principles of state polices further shows the commitment of our constitution makers in making the judicial system an effective organ of state machinery on which people can rely with trust and hope of justice.

The technological development made by the human being in the field of science can be highly useful in realization of this objective. In last two decades, Information technology has brought many beneficial changes into our lives.And this tool of information technology can be equally useful in imparting justice.

The judicial response vis-à-vis information technology is not only positive but technology friendly also. The importance of Information technology has already been recognized by apex court in many cases.

In "M/S SIL Import, USA v M/S Exim Aides Silk Exporters" [1] the words "notice in writing", in Section 138 of the Negotiable Instruments Act, were construed to include a notice by fax. The Supreme Court observed: "A notice envisaged u/s 138 can be sent by fax. Nowhere is it said that such notice must be sent by registered post or that it should be dispatched through a messenger. Chapter XVII of the Act, containing sections 138 to 142 was inserted in the Act as per Banking Public Financial Institution and Negotiable Instruments Laws (Amendment) Act, 1988.Technological advancements like Fax, Internet, E-mail, etc were on swift progress even before the Bill for the Amendment Act was discussed by the Parliament. When the legislature contemplated that notice in writing should be given to the drawer of the cheque, the legislature must be presumed to have been aware of the modern devices and equipments already in vogue and also in store for future. If the court were to interpret the words "giving notice in writing" in the section as restricted to the customary mode of sending notice through postal service or even by personal delivery, the interpretative process will fail to cope up with the change of time. So if the notice envisaged in clause (b) of the proviso to section 138 was transmitted by Fax, it would be compliance with the legal requirement".

Thus the requirement of a written notice will be satisfied if the same is given in the form of a fax, e-mail etc, using the information technology. It must be noted that a notice by e-mail can be send instantaneously and its delivery is assured and acknowledged by a report showing the due delivery of the same to the recipient. This method is more safe, accurate, economical and lesser time consuming as compared to its traditional counterpart, popularly known as "Registered A.D".

In "Basavaraj R. Patil v State of Karnataka" [2] the question was whether an accused need to be physically present in court to answer the questions put to him by the court whilst recording his statement under section 313. The majority held that the section had to be considered in the light of the revolutionary changes in technology of communication and transmission and the marked improvement in the facilities of legal aid in the country. It was held that it was not necessary that in all cases the accused must answer by personally remaining present in the court. Once again, the importance of information technology is apparent. If a person residing in a remote area of South India is required to appear in the court for giving evidence, then he should not be called from that place, instead the medium of "video conferencing" should be used. In that case the requirements of justice are practically harmonized with the ease and comfort of the witnesses, which can drastically improve the justice delivery system.

In "State of Maharashtra v Dr.Praful.B.Desai " [3] the Supreme Court observed: "The evidence can be both oral and documentary and electronic records can be produced as evidence. This means that evidence, even in criminal matters, can also be by way of electronic records. This would include video conferencing. Video conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence. Thus, it is clear that so long as the accused and/or his pleader are present when evidence is recorded by video conferencing that evidence is recorded in the "presence" of the accused and would thus fully meet the requirements of section 273, Criminal Procedure Code. Recording of such evidence would be as per "procedure established by law". The advancement of science and technology is such that now it is possible to set up video conferencing equipments in the court itself. In that case evidence would be recorded by the magistrate or under his dictation in the open court. To this method there is however a drawback. As the witness is not in the court there may be difficulties if commits contempt of court or perjures himself. Therefore as a matter of prudence evidence by video conferencing in open court should be only if the witness is in a country which has an extradition treaty with India and under whose laws contempt of court and perjury are also punishable".

Once again the safety of victims and the witnesses through the use of information technology was recognized by the Supreme Court in "Sakshi v U.O.I" [4] The Supreme Court in this case observed: " The whole inquiry before a court being to elicit the truth, it is absolutely necessary that the victim or the witnesses are able to depose about the entire incident in a free atmosphere without any embarrassment. Section 273 Cr.P.C merely requires the evidence to be taken in the presence of the accused. The section, however, does not say that the evidence should be recorded in such a manner that the accused should have full view of the victim or the witnesses. Recording of evidence by video conferencing has already been upheld. Moreover, there is a major difference between substantive provisions defining crimes and providing punishment for the same and procedural enactment laying down the procedure of trial of such offences. Rules of procedure are handmaiden of justice and are meant to advance and not to obstruct the cause of justice. It is, therefore, permissible for the court to expand or enlarge the meanings of such provisions in order to elicit the truth and do justice with the parties. Thus, in holding trial of child sex abuse or rape a screen or some arrangements may be made where the victim or witness (who may be equally vulnerable like the victim) do not see the body or face of the accused. Recording of evidence by way of video conferencing vis-à-vis Section 273 Cr.P.C is permissible".

The above case law shows that the judiciary in India is not only aware of the advantages of information technology but is actively and positively using it in the administration of justice, particularly the criminal justice.[5]

Once again it got proved that fast track justice is the need of hour specially in the rape cases.And this time, fast track court established by Chief Judicial Magistrate court of jodhpur to conduct the expeditious trial in the rape case of a German tourist by two auto rickshaw drivers became the medium of this fast justice. This judgement further shows the sincerity of our judical system in making justice available to the poor victims as early as possible so that the victim do not undergo the same physical as well mental trauma of that unforgettable criminal torture in the name of getting justice.Judgement delivered by the Additional District Judge Jodhpur is considered to be one of the quickest court verdicts. The fast track court delivered it in just 20 days and on June 1 it awarded sentence of life imprisonment to the two accused. It is not only the verdict of the court in this case which is being welcomed by thinkers , it is more the less time taken by the court in arriving at the judgement which is being applaused by all. Today, when more and more rape victims are daring to come forward to report the heinous crime commited upon them.This practice of delivering quick judgement if taken seriously will not only strengthen their faith in the judicial system but will also help them in coming out of the trauma of being a rape victim as it ensures to them their fundamental right to speedy trial. To make this practice of fast track justice a happening reality , not only the consensus should be generated among the general public in favour of setting up of such more fast track courts but the state machinery should also make financial arrangements for such a useful mechanism of delivering justice more quickly. [6]

© Geeta Narula. All rights reserved with the author.
* Advocate, Delhi High Court
Contact at: advocategeeta@yahoo.com /
advocategeeta@rediffmail.com

[1] AIR 1999 SC 1609.
[2] (2000) 8 SCC 740.
[3] 2003 (3) SCALE 554.
[4] (2004) 5 SCC 519.
[5] Dalal Praveen at http://perry4law.blogspot.com/2005/05/justice-through-electronic-governance.html
[6] Narula; Geeta at http://www.india.indymedia.org/en/2005/05/210607.shtml

THE CULTURE OF ADR IN INDIA

The aim of this article is to analyse the existence and culture of alternative dispute resolution mechanism (ADRM) in India. At the same time, a special emphasis has been laid down upon the online dispute resolution mechanism (ODRM) as applicable in India. The work is further analysing the use of both ADRM and ODRM for effectuating and promoting the right to speedy trial as provided by Article 21 of the Constitution of India.

I. INTRODUCTION

Article 21 of the Constitution of India declares in a mandatory tone that no person shall be deprived of his life or his personal liberty except according to procedure established by law. Life and liberty, the words employed in shaping Article 21, by the Founding Fathers of the Constitution, are not to be read narrowly in the sense drearily dictated by dictionaries; they are organic terms to be construed meaningfully. Embarking upon the interpretation thereof, feeling the heart-throb of the Preamble, deriving strength from the Directive Principles of State Policy and alive to their constitutional obligation, the Courts have allowed Article 21 to stretch its arms as wide as it legitimately can. The mental agony, expense and strain which a person proceeded against in criminal law[1] has to undergo and which, coupled with delay, may result in impairing the capability or ability of the accused to defend himself have persuaded the Constitutional courts of the country in holding the right to speedy trial a manifestation of fair, just and reasonable procedure enshrined in Article 21. Speedy trial, again, would encompass within its sweep all its stages including investigation, inquiry, trial, appeal, revision and re-trial in short everything commencing with an accusation and expiring with the final verdict. The constitutional philosophy propounded as right to speedy trial has though grown in age by almost two and a half decades, the goal sought to be achieved is yet a far-off peak. Myriad fact-situations bearing testimony to denial of such fundamental right to the accused persons, on account of failure on the part of prosecuting agencies and executive to act, and their turning an almost blind eye at securing expeditious and speedy trial so as to satisfy the mandate of Article 21 of the Constitution have persuaded the Supreme Court in devising solutions which go to the extent of almost enacting by judicial verdict bars of limitation beyond which the trial shall not proceed and the arm of law shall lose its hold[2]. The validity or justness of those decisions is not the matter to be decided but the seriousness of delay in the conclusion of criminal and civil matters must be appreciated at the earliest. This seriousness was appreciated and accepted by the Constitutional Courts long before and the same has got a recognition from the “legislature” as well in the form of introduction of “Alternative Dispute Resolution” (ADR) Mechanism. There is a growing awareness among the masses as well regarding ADR and people are increasingly using the same for getting their disputes settled outside the court. The traditional means and modes of dispute settlement have seen a renaissance in the form of ADR mechanisms (ADRM) and its growth in the future is guaranteed.

II. THE BACKLOG PROBLEM

The backlog of cases is increasing day by day but criticising judiciary for the same is a wrong practice. It must be noted that the backlog is a product of “inadequate judge population ratio” and the lack of basic infrastructure. The government is not very keen in increasing and improving either. It has, however, been wise enough to amend the existing provisions of C.P.C, 1908 to take care of the requirements of ADR in India. The CPC has been amended with effect from 1st July 2002 to make ADR an integral part of the judicial process. The newly inserted section 89 (1) in the CPC deals with the settlement of disputes outside the court in order to bring down the arrears of cases before the courts. In terms of new section 89 of CPC, where it appears to the court that there exist elements, which may be acceptable to the parties, the court may formulate the terms of a possible settlement and refer the same for arbitration, conciliation, mediation or judicial settlement. While upholding the validity of the CPC amendments in Salem Advocate Bar Association Vs UOI, the Supreme Court had directed the constitution of an expert committee to formulate the manner in which sec.89 and other provisions introduced in CPC have to be in operation. It has also directed to devise a model case management formula as well as rules and regulations, which should be followed while taking recourse to alternative dispute redressal referred to in Sec.89 of CPC. Thus, ADR has been recognised and approved as a “legislative and judicial method” of managing the backlog of cases.

III. LEGISLATIVE EFFORTS

The legislative sensitivity towards providing a speedy and efficacious justice is mainly reflected in two enactments. The first one is the Arbitration and Conciliation Act, 1996 and the second one is the incorporation of section 89 in the traditional Civil Procedure Code. The Arbitration and Conciliation Act, 1996 laid down the minimum standards, which are required for an effective Alternative Dispute Resolution Mechanism. Further, the recent amendments of the Code of Civil Procedure, 1908 will give a boost to ADR. Section 89 (1) of CPC deals with the settlement of disputes outside the court. It provides that where it appears to the court that there exist elements, which may be acceptable to the parties, the court may formulate the terms of a possible settlement and refer the same for arbitration, conciliation, mediation or judicial settlement. While upholding the validity of the CPC amendments in Salem Advocate Bar Association V UOI[3], the SC had directed the constitution of an expert committee to formulate the manner in which section 89 and other provisions introduced in CPC have to be brought into operation. The Court also directed to devise a model case management formula as well as rules and regulations, which should be followed while taking recourse to alternative dispute redressal referred to in Sec.89 of CPC[4]. All these efforts are aimed at securing the valuable right to speedy trial, as guaranteed under Art.21 of the Constitution of India, to the litigants.

IV. THE PREMIER MODE OF ADR

Arbitration is the supreme method for resolving and adjudicating commercial disputes[5]. It is a procedure in which the dispute is submitted to one or more arbitrators, for adjudication, who resolve the dispute. The decision is given in the form of an award. The main objects of arbitration are speed, economy, convenience and simplicity of procedures. It encourages healthy relationship between the parties. The Arbitration and Conciliation Act, 1996 governs the “arbitration procedures” in India. Section 5 of the Act provides that notwithstanding anything contained in any other law for the time being in force, in matters governed by Part I (Sections 2 to 43), no judicial authority shall intervene except where so provided in the said part. This clearly indicates the legislative intent to minimise supervisory role of courts to ensure that the intervention of the court is minimal. Section 4 is a deeming provision, which lays down that where a party proceeds with the arbitration without stating his objection to non-compliance of any provision of Part I from which the parties may derogate or any requirement under arbitration agreement, it shall be deemed that he has waived his right to so object. Section 7 provides that the arbitration agreement shall be in writing and such an agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. Sub-section (4) of Section 7 provides the conditions under which a document or exchange of letter or exchange of statement of claim and defence may amount to an arbitration agreement. Section 11 of the Act provides for appointment of arbitrators and sub-section (6) thereof empowers the Chief Justice of the High Court or any person or institution designated by him to make such an appointment on the happening of certain conditions enumerated in clauses (a), (b) or (c). Section 16 of the Act is important and it provides that the arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or authority of the arbitration agreement[6]. Thus, the base provided by the Act is sufficient to accommodate the mandates of ODRM. It must be noted that a court of law cannot render justice unless the ultimate decision is based on the contemporary law as prevailing in the society. A decision based on an old law, which does not satisfy the requirements of the present situation, and environment should be avoided. In such a situation the efforts of the courts should be to give the law a "purposive, updating and an ongoing interpretation". This position makes the interface of justice delivery system with the information technology inevitable and unavoidable. We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law, which stands in the way of its growth. Law must therefore constantly keep on adapting itself to the fast changing society and not lag behind[7]. Justice is supreme and justice ought to be beneficial for the society so that the society is placed in a better-off situation. Law courts exist for the society and ought to rise up to the occasion to do the needful in the matter, and as such ought to act in a manner so as to sub serve the basic requirement of the society. It is a requirement of the society and the law must respond to its need. The greatest virtue of the law is its flexibility and its adaptability; it must change from time to time so that it answers the cry of the people, the need of the hour and the order of the day. Thus, the justice delivery system cannot afford to take the information technology revolution lightly[8]. The judiciary in India has not only recognised this need but has also utilised the information technology to do complete justice. The Supreme Court has on various occasions encouraged the use of information technology for meeting the ends of justice and to do complete justice. There is nothing that shows that the courts in India will not encourage the concept of ODRM in India. The Supreme Court has encouraged the use of ADR techniques in India and very soon the same will be extended to ODRM as well.

V. ONLINE DISPUTE RESOLUTION

The swift growth of e-commerce and web site contracts has increased the potential for conflicts over contracts which have been entered into online. This has necessitated a solution that is compatible with online matters and is netizens centric. This challenging task can be achieved by the use of ODRM in India. The use of ODRM to resolve such e-commerce and web site contracts disputes are crucial for building consumer confidence and permitting access to justice in an online business environment. These ODRM are not part and parcel of the traditional dispute resolution machinery popularly known as “judiciary” but is an alternative and efficacious institution known as ADRM. Thus, ADR techniques are extra-judicial in character. They can be used in almost all contentious matters, which are capable of being resolved, under law, by agreement between the parties. They have been employed with very encouraging results in several categories of disputes, especially civil, commercial, industrial and family disputes. These techniques have been shown to work across the full range of business disputes like banking, contract performance, construction contracts, intellectual property rights, insurance, joint ventures, partnership differences etc. ADR offers the best solution in respect of commercial disputes. However, ADR is not intended to supplant altogether the traditional means of resolving disputes by means of litigation. It only offers alternatives to litigation. There are a large number of areas like constitutional law and criminal law where ADR cannot substitute courts. In those situations one has to take recourse of the existing traditional modes of dispute resolution.

The ADR mechanism can be effectively used to settle online disputes by modifying it as per the need. It is time effective and cost efficient. It can also overcome the geographical hurdles. However, there are certain issues revolving around ADR mechanism like need for personnel with knowledge of IT, ADR and law; technical concerns; legal sanctity of proceedings; industry support etc. But these hurdles are just a passing phase. The use of ADR mechanisms for resolving online disputes is increasing day by day. A number of web-sites provide for some type of online dispute resolution method like arbitration, negotiation, mediation etc. and also certain conflict management services. These services fall into the general categories of complaint handling, negotiation, mediation and arbitration. These services will be in great demand in the future since the 1996 Act has given paramount importance to “party autonomy” by accepting the intention of parties as a platform for dispute resolution. Thus, what law will be applicable will depend on the intention of parties. If the parties have adopted the mechanism of ODRM then it will definitely apply with necessary minor modifications. The language used in various sections of the Arbitration Act give options to the parties to opt for the procedure as per their agreement during the arbitral proceedings before the arbitrator[9]. Thus, it is high time that we must build a base for not only offline ADRM but equally ODRM in India. It must be noted that every new project needs time to mature and become successful. Thus, the success of ADRM and ODRM depends upon a timely and early base building.

VI. E-JUSTICE SYSTEM IN INDIA

The judicial response vis-à-vis information technology is positive and technology friendly.

In M/S SIL Import, USA v M/S Exim Aides Silk Exporters[10] the words "notice in writing", in Section 138 of the Negotiable Instruments Act, were construed to include a notice by fax. The Supreme Court observed: "A notice envisaged u/s 138 can be sent by fax. Nowhere is it said that such notice must be sent by registered post or that it should be dispatched through a messenger. Chapter XVII of the Act, containing sections 138 to 142 was inserted in the Act as per Banking Public Financial Institution and Negotiable Instruments Laws (Amendment) Act, 1988.Technologiacl advancements like Fax, Internet, E-mail, etc were on swift progress even before the Bill for the Amendment Act was discussed by the Parliament. When the legislature contemplated that notice in writing should be given to the drawer of the cheque, the legislature must be presumed to have been aware of the modern devices and equipments already in vogue and also in store for future. If the court were to interpret the words "giving notice in writing" in the section as restricted to the customary mode of sending notice through postal service or even by personal delivery, the interpretative process will fail to cope up with the change of time. So if the notice envisaged in clause (b) of the proviso to section 138 was transmitted by Fax, it would be compliance with the legal requirement".

Thus the requirement of a written notice will be satisfied if the same is given in the form of a fax, e-mail etc, using the information technology. It must be noted that a notice by e-mail can be send instantaneously and its delivery is assured and acknowledged by a report showing the due delivery of the same to the recipient. This method is more safe, accurate, economical and lesser time consuming as compared to its traditional counterpart, popularly known as "Registered A.D".

In Basavaraj R. Patil v State of Karnataka[11] the question was whether an accused need to be physically present in court to answer the questions put to him by the court whilst recording his statement under section 313. The majority held that the section had to be considered in the light of the revolutionary changes in technology of communication and transmission and the marked improvement in the facilities of legal aid in the country. It was held that it was not necessary that in all cases the accused must answer by personally remaining present in the court. Once again, the importance of information technology is apparent. If a person residing in a remote area of South India is required to appear in the court for giving evidence, then he should not be called from that place, instead the medium of "video conferencing" should be used. In that case the requirements of justice are practically harmonised with the ease and comfort of the witnesses, which can drastically improve the justice delivery system.

In State of Maharashtra v Dr.Praful.B.Desai[12] the Supreme Court observed: "The evidence can be both oral and documentary and electronic records can be produced as evidence. This means that evidence, even in criminal matters, can also be by way of electronic records. This would include video conferencing. Video conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence. Thus, it is clear that so long as the accused and/or his pleader are present when evidence is recorded by video conferencing that evidence is recorded in the "presence" of the accused and would thus fully meet the requirements of section 273, Criminal Procedure Code. Recording of such evidence would be as per "procedure established by law". The advancement of science and technology is such that now it is possible to set up video conferencing equipments in the court itself. In that case evidence would be recorded by the magistrate or under his dictation in the open court. To this method there is however a drawback. As the witness is not in the court there may be difficulties if commits contempt of court or perjures himself. Therefore as a matter of prudence evidence by video conferencing in open court should be only if the witness is in a country which has an extradition treaty with India and under whose laws contempt of court and perjury are also punishable".

This judgment of the Supreme Court is a landmark judgment as it has the potential to seek help of those witnesses who are crucial for rendering the complete justice but who cannot come due to "territorial distances" or even due to fear, expenses, old age, etc. The Courts in India have the power to maintain anonymity of the witnesses to protect them from threats and harm and the use of information technology is the safest bet for the same. The testimony of a witness can be recorded electronically the access to which can be legitimately and lawfully denied by the Courts to meet the ends of justice.

The above discussion shows that the judiciary in India is not only aware of the advantages of information technology but is actively and positively using it in the administration of justice, particularly the criminal justice. Thus, it can be safely concluded that the "E-justice system" has found its existence in India. It is not at all absurd to suggest that ODRM will also fine its place in the Indian legal system very soon.

VII. CONCLUSION

The right to speedy trial is not a fact or fiction but a “Constitutional reality” and it has to be given its due respect. The courts and the legislature have already accepted it as one of the medium of reducing the increasing workloads on the courts. The same is also gaining popularity among the masses due to its advantages. The management and maintaining of a welfare state is no doubt the task of the three sovereign organs of the Constitution and speedy disposal of cases is also one of the tasks on their agenda. The same, however, cannot see the light of the day unless citizens also “participate” in that movement. The citizens can help in the achievements of these benign objectives by restraining themselves while invoking jurisdictions of the “traditional courts” where the matter in dispute can be conveniently and economically taken care of by ADR mechanisms. We need “private initiatives” for not only establishment of ADR facilities in India but equally a “liberal use” of the same by the citizens and netizens. It must be noted that an ADR mechanism cannot be effective unless it is amalgamated and merged with the information technology. The benefits of online dispute resolution mechanism are far more and convincing enough to switch to that method. All that is needed is initiatives of private persons and institutions for the facilitation of their maximum and proper use. It cannot be doubted that ADRM is a much better platform to redress grievances of civil nature. This is more so when ODRM is used because it is not only instantaneous but equally cheap and convenient. The companies and individuals engaged in the business of e-commerce and web dealings must avail its services as soon as possible. In the future every “electronic dealing” will inevitably carry an “ODRM clause” and that situation requires a base of qualified “techno-legal” experts who can make the “right to speedy trial” a “Constitutional reality”.

© Praveen Dalal. All rights reserved with the author.
* Arbitrator, Consultant and Advocate, Delhi High Court
Mail to: pd37@rediffmail.com/ perry4law@yahoo.com
Contact at: 9899169611.

[1] This agony is equally present in civil cases where the proceedings are dragged to numerous years before their completion.
[2] P.Ramachandra. Rao v State of Karnataka, (2002)4 SCC 578.
[3] Writ Petition No.496 of 2002 decided on 25.10.2002
[4] New Law of Arbitration and Conciliation: Recent Elucidation and Interpretation by the Supreme Court; (2002) 4 Co.LJ.220
[5] The other methods like conciliation, mediation, etc are also available but arbitration is generally used to resolve the disputes.
[6] Shree Subhlaxmi Fabrics Pvt. Ltd. v Chand Mal Baradia, Civil appeal no: 7653 of 2004.
[7] Justice Bhagwati in National Textile Worker’s Union v P.R.Ramakrishnan, (1983) 1 SCC 228, at p. 256.
[8] Praveen Dalal, “Justice through electronic governance”, http://www.naavi.org/, posted on 05-12-04.
[9] Praveen Dalal, “Online dispute resolution in India”, http://www.naavi.org/, posted on 11.05.05.
[10] AIR 1999 SC 1609.
[11] (2000) 8 SCC 740.
[12] 2003 (3) SCALE 554.

INDIAN BPO: VICTIM OF MISINFORMATION

The paper discusses way in which the Indian BPO industry is being projected by the western media after the alleagtion of data theft revelation the Sun Tabloid UK.

This particular BPO theft episode is unnecessarily being dragged to the wrong direction. Even before the completion of the initial inquiry into the matter the whole Indian BPO sector is being projected to the world as an organized sector of economic crime and a threat to the global business.

I see this particular episode as a victim of over reaction by every section of society.Without going through the details of the case some part of the media, particularly western media starting naming it as an blot on the BPO business and started even warning companies to reconsider their decision of transferring BPO works to India.

Similarly, issues relating to the adequacy of Data Protection laws in India are being misinterpreted in this regard. Cyber experts have been writing and stressing for long that India has sufficient Data Protection laws and problem is not of the their inadequacy but of their proper implemention.

The law concerning “Data Protection”.

The laws, till now, governing the protection of “Data Property” can be found in the Copyright Act, 1957 and the Information Technology Act, 2000. The Copyright Act is the most important law, which is providing the most effective and strongest protection to “Data Property”. The Copyright Act, 1957 protects “databases” as “literary works” under section 2(o) of the Copyright Act.It is supplemented by the Information Technology Act that is taking care of ‘Data stored in electronic form”(1). Similarly, adequate provisions are there under the TRIP'S agreement to protect the databases.

Hence, The basic information and public awareness about their existence in India is missing and the same is required to be provided as soon as possible.

(1) http://perry4law.blogspot.com/2005/06/insuring-data-property_111831618809117833.html

© Geeta Narula. All rights reserved with the author.
* Advocate, Delhi High Court

Contact at: advocategeeta@yahoo.com / advocategeeta@rediffmail.com

DIGITIAL MARRIAGE

The present paper tries to analyse the possibility of digital / cyber marriage or simply speaking marriage through the medium of internet with specific reference to the domicile and jurisdictional aspect, which are important parts of law of marriage especially in cases of conflicts of laws.

I. INTRODUCTION

Since the time when man in primitive society decided to live in groups and formed the society, marriage and family are the institutions which were considered to be not only a union of a man and women but as a sacrament and in upholding of which society at large was deeply interested for a long time. The things have changed with the technological developments made by the mankind and Marriage is not an exception to this. The form and formalities required for the marriages too have changed now.

However this law of marriage is not as simple as it seems to be but is rather complex and law governing the marriage varies with community or religion. Every community has its own personal law governing the issues relating to marriage. To be valid a Hindu marriage must be in accordance with either the Hindu Marriage Act or the Special Marriage Act. Similarly, a Muslim marriage must be in accordance with the Muslim Personal law applicable to the parties.

Every marriage to be legally valid must satisfy two things

(1) essential validity and

(2) formal validity of the marriage.

While an essential validity refers to the legal capacity or the requirement of complying with the "capacity" aspect of the marriage which are generally fixed by the law of the land. For example, to enter into a valid marriage contract one must be above the minimum age fixed by the relevant law to which the parties are subject. Whereas, the formal validity generally encompasses within its ambit the "formality aspects" of the marriage i.e. customary rituals which are fixed by the personal law of the parties.

II. DIGITAL MARRIAGE

There is great disagreement among the legal scholars over the possibility of Digital Marriage or marriage with use of internet. The main point of their disagreement is the relaxation of the requirement of physical presence. Though at present, marriage under the Hindu Marriage Act can not be performed in the cyberspace as traditional Hindu Law emphasizes on the ceremony of "saptapdi" as an essential ceremony for the validity of it which can not be performed without physical presence of both the parties to the marriage. But such a marriage would be equally valid if there is a custom to the contrary that allows the party to marry by simply accepting each other as husband and wife. As far as marriage under Special Marriage Act and Muslim marriage are concerned, they can be performed in the cyberspace since facilities of digital signature and video conferencing can be used for this purpose. Similarly marriage under Muslim law where marriage is essentially a contract it is possible.

III. LAW OF DOMICILE

As law of marriage is governed by the relevant personal law, and personal laws are applied on the basis of one's domicile. Hence, for the application of proper marriage law, one must have a domicile.

The domicile is the legal relationship between an individual and a territory with a distinctive legal system, which invokes that system as his personal law. The determination of domicile of an individual has a great legal significance. It helps in identifying the personal law by which an individual is governed in respect of various matters such as the essential validity of a marriage, the effect of marriage on the proprietary rights of husband and wife, jurisdiction in divorce and nullity of marriage, illegitimacy, legitimation and adoption and testamentary and intestate succession to moveables. Each person who has, or whom the law deems to have, his permanent home within the territorial limits of a single system of law is domiciled in the country over which the system extends; and he is domiciled in the whole of that country even though his home may be fixed at a particular spot within it.

Generally speaking domicile is of 3 types:

(i) Domicile of origin that is received by birth by operation of law.

(ii) Domicile of choice, residence coupled with intention to reside permanently or for an indefinite period of time in a country; and

(iii) Domicile by operation of law.

Till a new domicile is acquired by a choice or by operation of law, the domicile of origin continues. In Mr. Louis De Raedt v U.O.I the Supreme Court observed: "For the acquisition of a domicile of choice, it must be shown that the person concerned had a certain State of mind, the animus manendi. If he claims that he acquired a new domicile at a particular time, he must prove that he had formed the intention of making his permanent home in the country of residence and of continuing to reside there permanently. Residence alone, unaccompanied by this state of mind, is insufficient.

IV. THE JURISDICTIONAL PROBLEM

The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married.

The exceptions to this rule may be as follows:

(i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married;

(ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married;

(iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.

V. CONCLUSION

There is nothing that makes a marriage valid or invalid for it being performed with the use of internet or information technology. Once a person satisfies the essential and formal validities of the marriage his/her marriage is perfectly valid.

© Geeta Narula. All rights reserved with the author.

* Advocate, Delhi High Court
Contact at: advocategeeta@yahoo.com / advocategeeta@rediffmail.com

ONLINE DISPUTE RESOLUTION IN INDIA

The aim of this article is to analyse the prospective use of online dispute resolution mechanism (ODRM) in India. The necessity of the same has arisen due to the growing use of alternative dispute resolving mechanism (ADRM) in India to reduce the burdening of the already overburdened courts in India. The popularity and use of ADRM is increasing but it can achieve its best only if the same is integrated with the information technology.

I. INTRODUCTION

The swift growth of e-commerce and web site contracts has increased the potential for conflicts over contracts which have been entered into online. This has necessitated a solution that is compatible with online matters and is netizens centric. This challenging task can be achieved by the use of ODRM in India. The use of ODRM to resolve such e-commerce and web site contracts disputes are crucial for building consumer confidence and permitting access to justice in an online business environment. These ODRM are not part and parcel of the traditional dispute resolution machinery popularly known as “judiciary” but is an alternative and efficacious institution known as ADRM. Thus, ADR techniques are extra-judicial in character. They can be used in almost all contentious matters, which are capable of being resolved, under law, by agreement between the parties. They have been employed with very encouraging results in several categories of disputes, especially civil, commercial, industrial and family disputes. These techniques have been shown to work across the full range of business disputes like banking, contract performance, construction contracts, intellectual property rights, insurance, joint ventures, partnership differences etc. ADR offers the best solution in respect of commercial disputes. However, ADR is not intended to supplant altogether the traditional means of resolving disputes by means of litigation. It only offers alternatives to litigation. There are a large number of areas like constitutional law and criminal law where ADR cannot substitute courts. In those situations one has to take recourse of the existing traditional modes of dispute resolution.

II. THE PREMIER MODE OF ADR

Arbitration is the supreme method for resolving and adjudicating commercial disputes[1]. It is a procedure in which the dispute is submitted to one or more arbitrators, for adjudication, who resolve the dispute. The decision is given in the form of an award. The main objects of arbitration are speed, economy, convenience and simplicity of procedures. It encourages healthy relationship between the parties. The Arbitration and Conciliation Act, 1996 governs the “arbitration procedures” in India. Section 5 of the Act provides that notwithstanding anything contained in any other law for the time being in force, in matters governed by Part I (Sections 2 to 43), no judicial authority shall intervene except where so provided in the said part. This clearly indicates the legislative intent to minimise supervisory role of courts to ensure that the intervention of the court is minimal. Section 4 is a deeming provision, which lays down that where a party proceeds with the arbitration without stating his objection to non-compliance of any provision of Part I from which the parties may derogate or any requirement under arbitration agreement, it shall be deemed that he has waived his right to so object. Section 7 provides that the arbitration agreement shall be in writing and such an agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. Sub-section (4) of Section 7 provides the conditions under which a document or exchange of letter or exchange of statement of claim and defence may amount to an arbitration agreement. Section 11 of the Act provides for appointment of arbitrators and sub-section (6) thereof empowers the Chief Justice of the High Court or any person or institution designated by him to make such an appointment on the happening of certain conditions enumerated in clauses (a), (b) or (c). Section 16 of the Act is important and it provides that the arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or authority of the arbitration agreement[2]. Thus, the base provided by the Act is sufficient to accommodate the mandates of ODRM. It must be noted that a court of law cannot render justice unless the ultimate decision is based on the contemporary law as prevailing in the society. A decision based on an old law, which does not satisfy the requirements of the present situation, and environment should be avoided. In such a situation the efforts of the courts should be to give the law a "purposive, updating and an ongoing interpretation". This position makes the interface of justice delivery system with the information technology inevitable and unavoidable. We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law, which stands in the way of its growth. Law must therefore constantly keep on adapting itself to the fast changing society and not lag behind[3]. Justice is supreme and justice ought to be beneficial for the society so that the society is placed in a better-off situation. Law courts exist for the society and ought to rise up to the occasion to do the needful in the matter, and as such ought to act in a manner so as to sub serve the basic requirement of the society. It is a requirement of the society and the law must respond to its need. The greatest virtue of the law is its flexibility and its adaptability; it must change from time to time so that it answers the cry of the people, the need of the hour and the order of the day. Thus, the justice delivery system cannot afford to take the information technology revolution lightly[4]. The judiciary in India has not only recognised this need but has also utilised the information technology to do complete justice. The Supreme Court has on various occasions encouraged the use of information technology for meeting the ends of justice and to do complete justice. There is nothing that shows that the courts in India will not encourage the concept of ODRM in India. The Supreme Court has encouraged the use of ADR techniques in India and very soon the same will be extended to ODRM as well.

III. E-JUSTICE SYSTEM IN INDIA

The judicial response vis-à-vis information technology is positive and technology friendly.

In M/S SIL Import, USA v M/S Exim Aides Silk Exporters[5] the words "notice in writing", in Section 138 of the Negotiable Instruments Act, were construed to include a notice by fax. The Supreme Court observed: "A notice envisaged u/s 138 can be sent by fax. Nowhere is it said that such notice must be sent by registered post or that it should be dispatched through a messenger. Chapter XVII of the Act, containing sections 138 to 142 was inserted in the Act as per Banking Public Financial Institution and Negotiable Instruments Laws (Amendment) Act, 1988.Technologiacl advancements like Fax, Internet, E-mail, etc were on swift progress even before the Bill for the Amendment Act was discussed by the Parliament. When the legislature contemplated that notice in writing should be given to the drawer of the cheque, the legislature must be presumed to have been aware of the modern devices and equipments already in vogue and also in store for future. If the court were to interpret the words "giving notice in writing" in the section as restricted to the customary mode of sending notice through postal service or even by personal delivery, the interpretative process will fail to cope up with the change of time. So if the notice envisaged in clause (b) of the proviso to section 138 was transmitted by Fax, it would be compliance with the legal requirement".

Thus the requirement of a written notice will be satisfied if the same is given in the form of a fax, e-mail etc, using the information technology. It must be noted that a notice by e-mail can be send instantaneously and its delivery is assured and acknowledged by a report showing the due delivery of the same to the recipient. This method is more safe, accurate, economical and lesser time consuming as compared to its traditional counterpart, popularly known as "Registered A.D".

In Basavaraj R. Patil v State of Karnataka[6] the question was whether an accused need to be physically present in court to answer the questions put to him by the court whilst recording his statement under section 313. The majority held that the section had to be considered in the light of the revolutionary changes in technology of communication and transmission and the marked improvement in the facilities of legal aid in the country. It was held that it was not necessary that in all cases the accused must answer by personally remaining present in the court. Once again, the importance of information technology is apparent. If a person residing in a remote area of South India is required to appear in the court for giving evidence, then he should not be called from that place, instead the medium of "video conferencing" should be used. In that case the requirements of justice are practically harmonised with the ease and comfort of the witnesses, which can drastically improve the justice delivery system.

In State of Maharashtra v Dr.Praful.B.Desai[7] the Supreme Court observed: "The evidence can be both oral and documentary and electronic records can be produced as evidence. This means that evidence, even in criminal matters, can also be by way of electronic records. This would include video conferencing. Video conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence. Thus, it is clear that so long as the accused and/or his pleader are present when evidence is recorded by video conferencing that evidence is recorded in the "presence" of the accused and would thus fully meet the requirements of section 273, Criminal Procedure Code. Recording of such evidence would be as per "procedure established by law". The advancement of science and technology is such that now it is possible to set up video conferencing equipments in the court itself. In that case evidence would be recorded by the magistrate or under his dictation in the open court. To this method there is however a drawback. As the witness is not in the court there may be difficulties if commits contempt of court or perjures himself. Therefore as a matter of prudence evidence by video conferencing in open court should be only if the witness is in a country which has an extradition treaty with India and under whose laws contempt of court and perjury are also punishable".

This judgment of the Supreme Court is a landmark judgment as it has the potential to seek help of those witnesses who are crucial for rendering the complete justice but who cannot come due to "territorial distances" or even due to fear, expenses, old age, etc. The Courts in India have the power to maintain anonymity of the witnesses to protect them from threats and harm and the use of information technology is the safest bet for the same. The testimony of a witness can be recorded electronically the access to which can be legitimately and lawfully denied by the Courts to meet the ends of justice.

The above discussion shows that the judiciary in India is not only aware of the advantages of information technology but is actively and positively using it in the administration of justice, particularly the criminal justice. Thus, it can be safely concluded that the "E-justice system" has found its existence in India. It is not at all absurd to suggest that ODRM will also fine its place in the Indian legal system very soon.

IV. ONLINE DISPUTE RESOLUTION

The ADR mechanism can be effectively used to settle online disputes by modifying it as per the need. It is time effective and cost efficient. It can also overcome the geographical hurdles. However, there are certain issues revolving around ADR mechanism like need for personnel with knowledge of IT, ADR and law; technical concerns; legal sanctity of proceedings; industry support etc. But these hurdles are just a passing phase. The use of ADR mechanisms for resolving online disputes is increasing day by day. A number of web-sites provide for some type of online dispute resolution method like arbitration, negotiation, mediation etc. and also certain conflict management services. These services fall into the general categories of complaint handling, negotiation, mediation and arbitration. These services will be in great demand in the future since the 1996 Act has given paramount importance to “party autonomy” by accepting the intention of parties as a platform for dispute resolution. Thus, what law will be applicable will depend on the intention of parties. If the parties have adopted the mechanism of ODRM then it will definitely apply with necessary minor modifications. The language used in various sections of the Arbitration Act give options to the parties to opt for the procedure as per their agreement during the arbitral proceedings before the arbitrator. So if there is an agreement between the parties with regard to the procedure to be followed by the arbitrator, the arbitrator is required to follow the said procedure. However, this would not mean that in appeal parties can contend that the appellate procedure should be as per their agreement. The appellate procedure would be governed as per the statutory provisions and parties have no right to change the same[8]. It must be noted that party autonomy presupposes the existence of an arbitration agreement. There may be a situation where the parties had not entered into an arbitration agreement. To meet such situations Sec.89 of CPC can be invoked. The reason for inserting Sec.89 has been to try and see that all the cases which are filed in the court need not necessarily be decided by the court itself. Keeping in mind the law delays and the limited number of judges, which are available, it has now become imperative to resort to ADR Mechanism as contemplated by Sec.89. There is a requirement that the parties to the suit must indicate the form of ADR, which they would like to resort to during the pendency of the trial of the suit. If the parties agree to arbitration, then the provisions of the Arbitration and Conciliation Act 1996 will apply and that will go outside the stream of the court[9].

V CONCLUSION

The need and necessity of ODRM is going to be felt very soon and we must be prepared for the same. A sound techno-legal base must be established in advance. There is a possibility that we may get BPO services in arbitration matters in the distant future. In any case it is also a mandate of Article 21 of the Constitution of India. Art.21 confers a Fundamental Right on every person not to be deprived of his life or liberty, except according to procedure established by law. Such procedure is not some semblance of a procedure but the procedure should be “reasonable, fair and just”, and therefrom flows the right to speedy trial[10]. It cannot be doubted that if the State is encouraging ODRM it is thereby assisting in the attainment of a speedier, economical and convenient justice system. Thus, the sooner ODRM is adopted the better it will be for the nation in general and the justice seeker in particular.

© Praveen Dalal. All rights reserved with the author.
* Arbitrator, Consultant and Advocate, Delhi High Court
Contact at: pd37@rediffmail.com/ perry4law@yahoo.com
Telephone no: 9899169611.

[1] The other methods like conciliation, mediation, etc are also available but arbitration is generally used to resolve the disputes.
[2] Shree Subhlaxmi Fabrics Pvt. Ltd. v Chand Mal Baradia, Civil appeal no: 7653 of 2004.
[3] Justice Bhagwati in National Textile Worker’s Union v P.R.Ramakrishnan, (1983) 1 SCC 228, at p. 256.
[4] Praveen Dalal, “Justice through electronic governance”, http://www.naavi.org/, posted on 05-12-04.
[5] AIR 1999 SC 1609.
[6] (2000) 8 SCC 740.
[7] 2003 (3) SCALE 554.
[8] N S Nayak v State of Goa, 2003 (6) SCC 56.
[9] Salem Advocate Bar Association v U.O.I, Writ Petition No.496 of 2002 decided on 25.10.2002.
[10] Hussainara Khatoon (1) v Home Secretary, State of Bihar [(1980)1SCC 81]