Abstract
In an era focused on technological efficiency, the Indian judiciary faces a colossal backlog of over 4.5 crore pending cases, impeding swift justice. To tackle this challenge, alternate dispute resolution (ADR) mechanisms have evolved, offering arbitration, mediation, and conciliation as alternatives to court-based resolutions. The concept of online dispute resolution (ODR) has emerged as a beacon of hope, harnessing artificial intelligence and digital platforms to expedite resolution processes. Regulatory bodies such as the Reserve Bank of India, the Securities and Exchange Board of India, and the Insurance Regulatory and Development Authority of India have taken note of ODR’s potential and have begun integrating it within their sectors. This article delves into the dynamics of court-based dispute resolution, the essence of ADR and ODR, and how ODR’s economics stands to transform the landscape.
The Judicial System in India is under tremendous pressure. As of May 2022, over 4.7 crore cases are pending in courts across different levels of the judiciary while nearly 1,82,000 cases have been pending for over 30 years.
Amid the rising trend of litigation, more people and organizations are approaching courts. National Judicial Data Grid, a database of the Department of Justice, shows that courts saw an increase of over 27% in pendency between December 2019 and April 2022.
Benefits of online dispute resolution system
Managing Time and Cost:
ODR has the potential to reduce legal costs, by way of reduced time for resolution and by doing away with the need for legal advice in select categories of cases.
Flexible Nature:
Compared to rigid court procedures followed for ages, ODR encourages speedy resolution in a versatile and informal way.
It eliminates the need for travel and synchronization of schedules.
Encourages Negotiations:
ODR tools such as online negotiation and mediation are premised on mutually agreeing, they make the dispute resolution process less adversarial and complicated for the parties.
Simple to Access:
By the convenience and requirement of the parties, ODR can be accessed anywhere at any time where the internet is accessible.
Storing Data:
Document storage has been replaced by the ODR mechanism as one of the most common problems faced in Indian courts.
Problems associated with online dispute resolution system
Structural Problems:
Lack of Digital infrastructure:
A pre-condition to ODR integration is robust technology infrastructure across the country.
This includes access to computers, smartphones, and medium to high bandwidth internet connection for at least the length of time it takes to conduct meaningful hearings.
The lack of such requirements is likely to disadvantage those who have limited access to digital infrastructure.
Lack of Digital Literacy:
According to the Ministry of Electronics and Information Technology, only 38% of households in India are digitally literate.
In urban areas, digital literacy is relatively higher at 61% relative to just 25% in rural areas.
As per Internet India Report 2019, women constitute only 1/3rd of internet users in India.
Therefore, there is a need for programs that focus on boosting internet accessibility in rural areas combined with dedicated initiatives to popularise the basic skill sets required to access ODR services.
Operational Problems:
Privacy and Confidentiality Concerns:
It includes online impersonation, breach of confidentiality by the circulation of documents and data shared during ODR processes, tampering with digital evidence, or digitally delivered awards/ agreements.
Enforcement of the outcome of the ODR process:
Enforcement of arbitral awards in India is complex and burdensome.
It requires stamp duties in most of the States. The archaic requirement to attach a stamp certificate to the document creates barriers in an otherwise end-to-end online process.
Behavioral Problems:
Lack of Trust in ODR Services:
This mistrust stems at several levels from skepticism ( feeling of doubt) regarding technology to questions regarding the enforceability of ODR outcomes.
Mutual Consent of Parties:
Admissibility of the ODR is one of the main and critical problems.
Mutual consent of the parties is necessary for triggering the ODR procedure, whether through an explicit contractual clause or a separate mutual agreement between the parties, otherwise, any decision made impartially is not legally legitimate and binding on the parties.
Need for online dispute resolution in India
The COVID -19 pandemic resulted in a large section of society being unable to receive timely access to justice. The pandemic also led to a deluge of disputes further burdening the already lengthy court processes. As the premier policy think tank of the Government of India, NITI Aayog undertook a transformative initiative to use technology and innovation to help bring affordable, effective, and timely justice to those who need it the most.ODR has the potential to help reduce the burden on the court and efficiently resolve several categories of cases. It may also be integrated to support the judiciary through technology integration in court-annexed Alternate Dispute Resolution (ADR) centers, via e-lokadalatsand also be introduced within Government departments for internal disputes.
Extensive deliberations, including 20 stakeholder discussions and nearly 100 engagements at an institutional and individual level, were conducted by NITI Aayog with a range of stakeholders. Public feedback was also sought during the course of the deliberations.
Consultations were held with members of the judiciary (current and former Supreme Court Judges), the Attorney General, senior Government officials, industry representatives, academic institutions, and civil society organizations, besides other domestic and international legal and technology experts.
There was overarching consensus in support of this initiative. In fact, during one of these deliberations, Justice DY Chandrachud, who heads the e-Committee of the Supreme Court, observed:
“In the wide variety of litigation that comes before every court, there is a confluence of the very substantive and not very small, but important, disputes which don’t have to come before the court. Cases like motor accident claims, cheque bouncing cases, personal injury claims, and issues such as this may be dealt with by ODR. The ODR initiative by NITI Aayog is commendable and the draft report is meticulously compiled. This is a unique analysis of the interface between dispute resolution and technology and its prospects in India.”
Constituent members of the Committee included the CEO, of NITI Aayog; the Secretary of, the Department of Legal Affairs; the Secretary, of the Department of Justice; the Secretary, of the Ministry of Micro, Small and Medium Enterprises; the Secretary, of the Department of Consumer Affairs, Secretary, Department for Promotion of Industry and Internal Trade and, Secretary, Department of Corporate Affairs. The report is the outcome of a collaborative and inclusive exercise, and it should serve as the starting point for a long-term plan to make India the global leader in implementing ODR on a large scale. It sets out the roadmap for how ODR can be scaled up as a point of first contact for dispute avoidance, containment, and when applicable, resolution.
‘Designing the Future of Dispute Resolution: The ODR Policy Plan for India released in the presence of Justice (Retd) AK Sikri, NITI Aayog VC Dr. Rajiv Kumar, Members Prof. Ramesh Chand, Dr VK Saraswat and Dr VK Paul, CEO Amitabh Kant, Secretary (Law) AK Mendiratta, and other senior officials of NITI Aayog.
At the release of the report, Justice (Retd) AK Sikri observed: “ODR is an idea whose time has come, I appreciate NITI Aayog’s initiative to set up this expert committee at the right time. The report—which has consulted all stakeholders, including the judiciary and executive—will be significant and impactful.”
NITI Aayog VC Dr Rajiv Kumarsaid, “NITI Aayog has worked extensively on measures that can help enhance efficiency and accessibility to justice for every person who seeks it. ODR will go a long way in resolving disputes and the report needs to be expeditiously implemented.”
NITI Aayog report on Online Dispute Resolution Policy for speedy access to justice
NITI Aayog has pushed for Online Dispute Resolution (ODR) for speedy access to justice. NITI Aayog today released the report Designing the Future of Dispute Resolution: the ODR Policy Plan for India, to scale dispute avoidance, containment, and resolution online. It said the rollout of the recommendations in the report can help make India a world leader in using technology and innovation through ODR, for effective access to justice for every individual. The report is a culmination of the action plan made by a committee constituted at the peak of the COVID crisis by NITI Aayog on ODR in 2020 and chaired by Supreme Court Justice A K Sikri.
Conclusion
In my view online dispute resolution system is an urgent need for the Indian judicial system as of today heavy amount of cases are at the pending stage being the judges are less in amount and it can be found that the higher judiciary is getting flooded with cases day by day so the government and judiciary should improve the digital infrastructure so for more easy access to the common peoples.
Written by
Kaulav Roy Chowdhury
Reference
- https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2596267
- https://pib.gov.in/PressReleasePage.aspx?PRID=1776202
- https://www.taxmann.com/post/blog/opinion-odr-online-dispute-resolution-and-its-new-trends/
- https://scholarhub.ui.ac.id/ilrev/vol12/iss2/1/
- com/article/explained/explained-economics/how-the-online-dispute-resolution-system-announced-by-sebi-will-work-8878
- com/news/opinion/why-india-should-encourage-online-dispute-resolution-adoption-11267801.html
