Alternative Approaches to Law

In one line

An adversarial trial before a State court is one way of settling a dispute, and this topic is about the others.

In the wording a student can write in an exam: the ordinary Indian method of settling a dispute is an ADVERSARIAL trial before a court constituted by the State, in which two represented parties place their cases before a judge who applies a rule and gives a decision that binds and is appealable. The alternatives depart from that model in one or more of four respects: WHO DECIDES, a neutral chosen by the parties or nobody at all; WHAT IS APPLIED, interest and convenience rather than a legal rule; WHAT COMES OUT, an agreement rather than an adjudication; and WHERE IT HAPPENS, near the parties rather than in a court town. The pressure for them comes from four defects of the ordinary method: DELAY, COST, DISTANCE and the fact that an adjudication produces a winner and a loser where the parties must go on living together. Article 39A directs the State to secure that the operation of the legal system promotes justice on a basis of EQUAL OPPORTUNITY and to provide FREE LEGAL AID, and it is the constitutional root of most of what follows.

What the alternative is an alternative to

The model. A dispute is framed as a claim; each side is represented; evidence is led and tested by cross-examination; a judge appointed by the State applies a rule of law; a decision issues that binds both and is enforceable by the State's machinery; and an appeal lies.

Its virtues, which must be stated before its defects. A rule is applied rather than a bargain struck, so the weaker party is not simply overborne. The outcome is enforceable. The reasons are public and precedent is created, so the rule is knowable to everybody else. And the process is subject to appeal, so an error can be corrected.

Its defects.

DELAY. Cases pending in the Indian courts run into tens of millions and a civil suit commonly takes years, so that the remedy arrives after the dispute has ceased to matter. That is [Reform of Court Processes and of the Justice Delivery System].

COST. Court fees, lawyers' fees, the cost of attending repeatedly, and the cost of the time lost. Cost falls hardest on the party with the smallest claim, which is a systematic bias against the poor.

DISTANCE. The court is in a court town; the party is in a village; and each hearing is a day's travel. That is the whole reason for [Nyaya Panchayats] and [Gram Nyayalayas].

And the RELATIONSHIP. An adjudication produces a winner and a loser. Where the parties are neighbours, relatives, a landlord and tenant, or an employer and a workman who must continue together, a decision that vindicates one destroys the relationship the dispute arose in.