Tuesday, December 5, 2023

We are already late in providing requisite impetus to ADR, says Justice AM Khanwilkar

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“Shortcomings in infrastructure and lack of awareness pushing ADR into slow trajectory,”observed Justice A.M. Khanwilkar at the 2nd Justice J.S. Verma Memorial ADR & Client Counselling Competition 2022.

Justice Khanwilkar paid rich tributes to Justice J.S. Verma, Former Chief Justice of India, and remembered his contribution in the field of protection of environment and women’s empowerment while delivering a speech as a Guest of Honour at the Inaugural Session of 2nd Justice J.S. Verma Memorial ADR & Client Counselling Competition, 2022 organised at NDMC Convention Centre, New Delhi. 

Justice Khanwilkar remembered various landmark judgments authored by Justice J.S. Verma and also the recommendations made for the amendment in the criminal law after the famous Nirbhaya case.

Justice Khanwilkar also praised the National Legal Services Authority and Justice U.U. Lalit for making all-out efforts in increasing disposal of cases through Lok Adalats, in particular e-lok adalats organised during the pandemic. Justice Khanwilkar was of the view that mediation is also picking up across India and soon we may see it as a main stream resolution mechanism for litigating public.

Justice A.M. Khanwilkar’s speech is given below:

Warm greetings to one and all present here today.

I congratulate Maharaj Agarsen Institute of Management Studies (Department of Law); and National Legal Services Authority for the inauguration of the 2nd Justice J.S. Verma Memorial ADR & Client Counselling Competition 2022.

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At the outset, I wish to recount the charisma of a great jurist of his time, Justice J.S. Verma, Former Chief Justice of India. Justice Verma had always been hailed as judiciary’s conscience keeper. I feel immensely privilegedfor being considered as part of his extended family. He wasmy role model and also a friend, philosopher and guide. He hada multifaceted personality.  He left behind a legacy which strongly propagatessocial reform, personal libertyand the upholding of the rule of law. He was fiercely independent Judge; and a beacon of inspiration for people around him.

Amongst his endless list of achievements is, spearheading the famously known Justice Verma Committee, constituted after the infelicitous Nirbhaya Case in 2013. It showcased the profound understanding of Justice Verma in the Indian context. Various harmonizing and salutary recommendations came to be made by this Committee,which reinvigorated the social fabric of the country.  His nuanced understanding of the socio-economic backgrounds and realities, ranging across his judicial experience, led to other celebratory recommendations on Sexual Harassment of Women at Workplace, on acid attack victims, offences against women in conflict areas, trafficking across India, child sexual abuse, medical examination of rape victims as well as police, electoral and educational reforms.From gender equality & human rights to judicial independence, and probity in public life, he contributed to the jurisprudence and development of law in a big way to uphold what was morally and ethically correct!He was always ahead of his time on seminal and sensitive issues.

Similarly, he was a protector of the environment laws, par excellence.  His judgment in T.N. Godavarman Thirumulkpad vs. Union of India & Ors.[1],is a testimony of his vision about environment protection.  Thisjudgment,to this day stands protecting forests across India.

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Another salutary enunciation by Justice Verma is, on the Constitutional Court’s role in issuing ‘continuing mandamus’.His judgments are replete with pragmatic and compassionate approach, as is manifest from the dictum in Nilabati Behera (Smt.) vs. State of Orissa & Ors.[2] His all-inclusive understanding of Hindutva in Dr. Ramesh Yeshwant Prabhoo vs. Prabhakar Kashinath Kunte & Ors.[3] or his enunciation in K. Veeraswami vs. Union of India & Ors.[4], are just a testament of his judicial acumen.  It may be trite to observe that his holistic understanding of the law made him such a successful and a complete Judge.

He became a Judge at a relatively young age. Barely within 3 years of his elevation, he was party to the famous ADM Jabalpur Habeas Corpus case decided by the High Court of Madhya Pradesh. His judgment was based on a constitutional rationale to support his point of view, which was hailed by all the right-thinking persons including the media.  Thiscelebration did not last for long as the Supreme Court’s ConstitutionBench took a different view of the matter.  But then two Judges forming part of the majority of the Constitution Bench, publicly acceptedthat it was their error of perception.

As a Supreme Court Judge, he would often offer nuanced guidance to junior members of the Bar so as to help them advance their arguments better and learn court craft. After demitting the Office of the Judge of the Supreme Court and as the Chief Justice of India, he was persuaded to accept the Office of Chairperson of the NHRC, a job that he performed to the best of his ability.

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His catchy observation on the quality of governance of India at the relevant time was —

“that if with below-par governance, India can grow at 8-9%, what would be the growth rate if there was an optimal governance”.

Thisexposit was a pointer to the unexplored potentials of our great country.

During his address to fresh law graduates while delivering the convocation address, he said:

“Each one of you is that ‘little drop’ who can unite to make the ‘rain’ needed for the ‘monsoon of purity in national character’ to revive the parched field.”

Justice Verma will always be remembered for his outstanding character and ability and for his legal innovation and firm commitment to women’s empowerment, protection of environment, accountability of judiciary and government, probity in public life, social justice and secularism.

His legacy is carried on by the Justice Verma Foundation, whose mission is — to make the law a friend to those most in need of one. It is focusing on providing quality pro bono representation to those most in need of it in High Courts and the Supreme Court, by acting as a facilitator.

His views would have coincided with the avowed purpose of organising this ADR and Client CounsellingCompetition. Alternate Dispute Resolution, as has been repeatedly noted by the Supreme Court of India, is one of the necessities for the present and future years. We are already late in providing impetus to these techniques, which have picked up many folds in jurisdictions aboard such as Singapore, Australia, U.S., U.K., and many more.  This is despite the requisite legislative backing provided by our Parliament,for invoking ADR techniques.

Also Read: We are already late in providing requisite impetus to ADR, says Justice AM Khanwilkar

Generally, the matters covered under ADR are civil matters which might in the common court of law take longer time. ADR is a mechanism which efficiently cuts down the time required in such adjudication.  Besides, it is cost-effective for the litigants. Yet due to shortcomings in infrastructure and lack of awareness, until now ADR has registered a slow trajectory of growth in India. Nevertheless, it is heartening to note that owing to all-out efforts made by theIndian judiciary and in particular NALSA, presently headed by my esteemed brother Justice Lalit, Lok Adalats seem to have brought a positive change in disposal rates.  Even during the pandemic, e-lok adalats were a sigh of relief for the people of this country. Mercifully, mediation is also picking up across India and the days are not far away when these ADR mechanisms will become more pronounced and most preferred options for the litigating public.  I see that ray of hope in the backdrop of your enthusiasm in participating in this competition.

It is heartening to know that you all are geared up to participate in client counselling competition as well.  In the recent years, this activity is getting due recognition it deserves.  Providing assistance to people in the field of law at an initial stage is like initiating them to the cause of justice. 

It is not as if disputescan be resolved only by going to court and by fightingit out.  It can be done also by strategizing and accentuating the chances of a beneficial holistic outcome with minimum resistance— by resorting to ADR techniques. Formerly, when the clients were unaware of their rights — be it for reason of illiteracy or lack of knowledge — they could often be misguided. Fortunately, today for myriad reasons, the litigants have become more educated and aware of their rights.

Such competition, therefore, would enhance the capabilities of the students and also their clinical knowledge of the law,given the need for thorough research and penning down presentation. It would also helpthe participants in inculcating preventative law and counselling functions of law for future practice.

I am happy to note that in next five days, over seventeen events comprising of Mediation, Arbitration, Negotiation, Client Counselling, Judgement Writing, Legal and Constitutional History quiz, Extempore Moot Court, Creative Writing among others would take place. This is a sure sign of a vibrant legal dialogue which is the very heart of a quality legal education.

I wish all the participants best of luck.  I am sure that everyoneparticipating in this competition will learn a great deal from the invaluable experience gained.  That will be handy to you in your future endeavours.  Once again, I commend the organisers for organising this competition.

Thank You

Jai Hind !

[1] (1997) 2 SCC 267

[2] (1993) 2 SCC 746

[3] (1996) 1 SCC 130

[4] (1991) 3 SCC 655

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