New Delhi: An umbrella legislation backing online dispute resolution (ODR), tax incentives for startups in the space, a regulator-like national platform with sufficient budgetary allocation, and mandatory pre-litigation mediation for certain categories of disputes such as family, inheritance, and consumer issues — these are some of the key recommendations made by a high-level committee headed by Justice A.K. Sikri (Retd) that was constituted by the government last year to suggest measures to advance access to justice through ODR.
According to highly placed sources in the government, the report prepared by the panel will soon be sent to the Prime Minister’s Office (PMO).
“The report has almost been finalised, and will be sent to the government in the very near future,” Justice Sikri confirmed to ThePrint.
ODR is a concept that seeks to unclog the courts by offering online alternative dispute resolution (ADR) mechanisms, like arbitration, negotiation and mediation.
According to Union law ministry data, as of August 2020, there were 62,054 pending cases in the Supreme Court, over 51.6 lakh in the high courts, and more than 3.5 crore in subordinate courts.
The judiciary is also facing many vacancies, which serve as a hurdle in tackling pendency. As of 2020, the law ministry data states, India had 20.91 judges per million population, compared to 107 in the US, 75 in Canada, and 41 in Australia.
The ODR committee includes the NITI Aayog CEO, besides the secretaries of the ministries of micro, small and medium enterprises (MSME) and corporate affairs, departments of legal affairs, legal justice, consumer affairs, and promotion of industry and internal trade, as well as the officer on special duty (law) at the NITI Aayog.
A national platform
Under the ODR system, people will be able to approach private firms for the settlement of certain matters so the cases don’t have to be taken to courts.
Among the committee’s recommendations are suggestions to ensure the government maintains oversight over the process, and stays involved enough to build public trust around the idea.
A key recommendation made by the committee, sources said, is that the government must create a national ODR platform to help mainstream the process.
While much help is needed from the private sector to popularise the concept, there are obvious limitations to this approach since industry is driven by profit motives, the panel has said.
The government must put together a team of technology experts, technocrats and other experts to create a blueprint for a national ODR platform, and subsequently make a sufficient budgetary allocation towards building, maintaining and evaluating it, the committee has said.
The fact that the government has a level of involvement in the process will help the public develop trust in ODR, which is currently an alien mechanism for much of the country, it has stated.
The panel has also recommended that the platform needs to be backed by a suitable governance framework, which would allow participation by all stakeholders.
Explaining the need for the platform, Justice Sikri said it will serve as a “regulator” to standardise ODR practices across the country.
“For all kinds of dispute resolutions, there are relevant Acts and procedures, so for ODR as well, a platform that would regulate practices is needed. This is especially important since there will be several startups that offer ODR services in the country, and persons other than judicial officers could be allowed to perform the role of ‘neutrals’ or dispute resolution professionals,” he added.
In a draft version of this report as well, the committee had “recommended that the rules lay down only certain basic standards regarding conflict disclosure and due process, and expand the scope of who can resolve a dispute”.
While the platform will not interfere in day-to-day ODR mechanisms, an independent government regulator has its value, Justice Sikri added.
A law to back ODR practices
In addition, the committee has recommended a slew of legislative changes to promote ODR in the country.
For example, it has been suggested that the government consider introducing an umbrella ODR legislation, which would address all related issues, such as detailing what kind of matters qualify for the process.
“What we are proposing is that there should be an umbrella legislation covering mediation and ODR practices,” Justice Sikri said. “Since an Act for mediation is needed in any case, it is proposed that you have an all-encompassing law for both mediation and ODR.”
The committee has also recommended mandatory pre-litigation mediation on a pilot basis for a specific category of disputes like those involving family matters, real estate, inheritance, consumer issues.
Govt adoption of ODR
It has also been recommended that Public Sector Undertakings (PSUs) and the Department of Legal Affairs create an ODR mechanism for inter-governmental disputes in order to popularise the concept.
Explaining the significance of this proposal, an official said government bodies and PSUs taking to ODR will significantly boost the confidence of the public by dispelling fears about the process.
Among other things, the panel has recommended that compliance of the e-commerce industry be ensured. Firms in the sector are already mandated to set up internal grievance redressal mechanisms under the Consumer Protection (E-Commerce) Rules, 2020, which the panel suggests can be tapped for the ODR framework.
Moreover, it has been suggested that the government introduce tax incentives for startups eyeing the ODR space.
Strong push from govt, judiciary
The government and the judiciary have been seeking to publicise the concept of ODR.
At a meeting convened by the NITI Aayog in December last year, Supreme Court judge Justice D.Y. Chandrachud called the concept an “effort to decentralise the administration of justice”.
“It is to look upon justice which is not something that is exclusively a preserve of courts. Courts are necessary and they can’t be supplanted as a part of the mechanism of the state, overall. But courts aren’t necessary everywhere,” he said.
“We have realised that when we have given a fillip to arbitration and mediation. ODR is in the same line today of decentralising the administration of dispute resolution,” he added.
At the same meeting, attorney General K.K. Venugopal said ODR is essential “considering the fact that so far as the justice delivery system is concerned, it is clogged with a huge pendency of cases”.
“It is imminently important to find an alternative where the entry of cases itself can be mitigated for and ODR can facilitate this aspect,” he added.
Speaking on the experience of arbitration and mediation in India, Anirudh Sharma, an advocate on record for the Supreme Court, said the mediation experience has improved significantly since the Arbitration and Conciliation (Amendment) Act, 2019, adding that there is immense scope for ODR.
The Arbitration and Conciliation (Amendment) Act, 2019, aims to set up an Arbitration Council of India to encourage arbitration, mediation and other alternative dispute resolution mechanisms.
“In arbitration and mediation, the Evidence Act is not followed with as much rigour as it is done in the courts… So, the scope for fast-tracking cases is immense,” he said. “In any case, through Covid, and even before that, several cases were being heard and resolved virtually.”
Sharma added: “The problem with arbitration is that if the judge is not available, or the lawyers are not available at that time, the whole process gets delayed. ODR can fix that.”