The Bar Council of India connects ordinary citizens to the legal profession.http://www.barcouncilofindia.org/Advocate India can provide free legal advice in some cases:http://www.advocatesc.com/

A discussion on the current situation of free legal aid in India can be found here:

http://www.legalserviceindia.com/article/l261-Legal-Aid.html

The Constitution of India, in English, indexed:

http://indiacode.nic.in/coiweb/welcome.html

The Constitution of India, in Hindi (pdf file)

http://lawmin.nic.in/coi/contents.htm

India’s Legal System in Need of Overhaul

   Even as the Indian economy races ahead to become bigger and stronger, the country’s legal system lags behind. According to the Chief Justice of India, A.P. Shah, it would take the Delhi High Court 466 years just to clear its backlog of criminal cases.

In a report released by the judiciary, the lax legal system is a result of three major factors – the low number of sitting judges per population, India’s high rate of corruption and the tedious process of registering a court case.

The associated press reported that although the Delhi High Court resolves cases at an average speed of four minutes and 55 seconds, it still has innumerable cases pending including 600+ cases that are more than 20 years old. The United Nations Development Program estimates that some 20 million legal cases are pending in India. As a result, its not uncommon to hear stories of court cases lasting longer than the average human lifespan.

Although cases are resolved at an undeniably high speed, India has roughly 11 judges for every million people compared with roughly 110 per million in the United States.

Corruption another evil the judiciary should be independent of is not only commonplace in Indian society, but also exists at every level in India’s courts. Like many nations the law tends to favor the wealthy who are now accustomed to getting away with large crimes.

Long, archaic and silly rules also add to the immense paperwork and bureaucracy that add years to the judicial process, often tempting ordinary citizens to solve the case amongst themselves – out of court. "All kinds of objections are raised — the copies are dim, the margins are not wide enough, it's single-spaced instead of being double-spaced," Prashant Bhushan, a lawyer in New Delhi told the AP. "For a layperson, it's impossible."

The Delhi high court is the capital’s highest court. It hears civil, criminal, and constitutional cases for five hours and 15 minutes a day, and is open for 213 working days a year. Ways in which to improve the system and drive in efficiency are being worked out as a result of the report.

History of the Indian Legal System

Before the arrival of  Europeans in India, the country was governed by laws based on The Arthashastra, dating from  400 BC, and the Manusmriti from about 100 AD.  After the Mughal invasion there  existed two codes of laws: Hindu and Muslim.  Under both systems the King, Mughal,  or Raja held supreme authority. But the villages had considerable independence, and had their own panchayth system to resolve disputes among  members. Larger problems merited a trans-village council. This tradition in India continued beyond the Islamic conquest of India, and through to the Middle Ages. Islamic law "The Sharia" was applied only to the Muslims of the country. But this tradition, along with Islamic law, was supplanted by the common law when India became part of the British Empire. The history of the Modern Judicial System in India starts from there.

The Supreme Court

The Supreme Court of India is the highest court of the land as established by Part five, Chapter four of the Constitution of India. According to the Constitution of India, the role of the Supreme Court is that of a federal court, guardian of the Constitution and the highest court of appeal. Articles 124 to 147 of the Constitution of India lay down the composition and jurisdiction of the Supreme Court of India. Primarily, it is an appellate court which takes up appeals against judgments of the High Courts of the states and territories. However, it also takes writ petitions in cases of[1] serious human rights violations or any petetion filed under Article 32 which is the right to constitutional remedies or if a case involves a serious issue that needs immediate resolution. The Supreme Court of India had its inaugural sitting on 28 January 1950, and since then has delivered more than 24,000 reported judgments.

 Issues

Indian courts have large backlogs. For instance, the Delhi High Court has a backlog of 466 years according to its chief justice. This is despite the average processing time of four minutes and 55 seconds in the court.[2] In Uttam Nakate case, it took two decades to solve a simple employment dispute. However it need to be mentioned that the concept of backlogs doesn't describe the actual reason for some many cases lying in the courts. Rather the term "backlog" has been misused and the term "pendency" is the right word for describing the large number of cases pending in the courts today. As could be understood, the largest number of cases that are actually pending in the Indian Courts are that of minor Motor Vehicle Cases,( which evolves out of wrong parking, minor road accidents, not following traffic rules, etc. In this cases, the people involved are generally the drivers, who happen to carry 3-4 driving licences having different addressess. Thus, the actual address is never given to the police officer, due to which the accused couldn't be produced before the court for years at end and many times never.)petty crimes such as stealing ( in some cases the sum of money can be as low as 10 Rs.),abusing,insult,slap etc.It is a established fact which the Govt. of India accepts that there is 40 % shortage of judiacial staff.

Corruption is rampant in India's courts. According to Transparency International, judicial corruption in India is attributable to factors such as "delays in the disposal of cases, shortage of judges and complex procedures, all of which are exacerbated by a preponderance of new laws".

Mediation: A Pro – Poor Analysis

By Abhirup Ghosh

Mediation

            India is presently witnessing a considerable progress in the usefulness of the alternative dispute resolution system i.e. ADR. But one should make it clear that ADR is not the method but the network of various dispute resolution systems. This network includes mainly five methods namely 1. Arbitration 2. Conciliation 3. Settlement through Lok Adalats 4. Mediation 5. Negotiation. The provisions for arbitration and conciliation have already been codified through Arbitration and Conciliation Act of 1996.  From the name itself it becomes clear that the Act primary emphasizes on arbitration and conciliation and except for section 30 of the Act, mediation finds hardly any reference in the Act. But the present day trend shows how disputants are more interested in heading towards mediation process in spite of having statutory provision available under the 1996 Act. Before coming to an analysis of the reasons, we must undertake the exercise of explaining the concept of mediation.

            Mediation is one of the methods of ADR. It contemplates a significance of a neutral third party who by helps the disputants in reaching an agreement in order to solve the dispute. The plus point of mediation is that a mediator avoids opinions and judgments. He facilitates communication between the parties and considers the interests and priorities and then tries to bridge the gap. There are certain advantages of mediation like it is cost effective, it consumes short period of time to dispose of the conflict, it has no formality unlike the courts, very flexible and most importantly non binding in nature. Therefore it gives the parties adequate space to have a test drive on the dispute before going to the Court. Considering the advantages of mediation the present article makes an effort to highlight how this process of ADR can serve the poor effectively—particularly the ones who stay beyond the so called light of urban civilization.

The Present Judiciary of India and the poor

          The Supreme Court of India in a number of cases pronounced and reiterated the principle of “justice delayed is justice denied”. But the present scenario of judicial efficiency does not show us any impression that this principle has been a part and parcel of the judicial system of India. And the worst sufferers of this problem are the poor people and undoubtedly the rural ones. The backlogs that have been created in the courts are beyond the imagination of a commonplace person. In one phrase it would be called as “Docket Explosion”. It was unanimously opined in the conference of the Chief Justices of various High Courts held on 4th December 1993 that the Courts are not in a position to bear the entire burden of justice system and thus it is imperative to think about effective alternative dispute resolution system. Such system would necessarily reduce the strain the conventional trial system. Apart from the backlogs there are other problems which really concern the poor people. One on them is over-professionalization of legal practice. Since common citizens regard Court as a final authority to deliver justice, therefore the access to Court is highly monopolized by the lawyers. The drafting of most of our laws are highly influenced by the British and thus understanding of the language of law is beyond the capabilities of the common mass and perhaps it is impossible for the people who are poor and not acquainted with the urban or metropolitan culture. Therefore in this area mediation will not be better but the best option available for those people.

Finding “Alternative” amongst Alternatives

            One may ask a particular question as to why mediation is preferred over the other alternatives available within the recognized network of ADR. To answer this question one must showcase the distinctions between mediation and other alternative dispute redressal mechanisms. In arbitration the disputants employ a third party to decide the outcome and parties do not have a direct role to play. The award given by the arbitrator is final and binding subject to appeal. An arbitrator hesitates to go beyond the traditional remedies, there is the risk of loosing and some formal or semi-formal rules are there. In conciliation also the conciliator plays a relatively direct role and sometimes he may appear as responsible to figure out the best solution for the parties. But mediation in contrast to these two aforesaid is a peaceful kind of dispute resolution. Here a neutral third party assists the two parties to interact with each other and to find an amicable solution. In mediation the parties are the best Judges of their problem but what the mediator facilitates is communication between them as lack of communication is the root cause of many problems. In mediation there is no formality, a mediator never assumes the position of a Judge and the outcome of the mediation may even cross the traditional concepts resulting into an innovative idea. Therefore mediation can be regarded the best amongst the alternatives available.

Mediation as an effective tool for poor people

            As far as mediation is concerned, in my opinion it can be a very useful resource for dispute resolution particularly for those who are lying in the rural areas. Parliament as well as the state legislatures have enacted a number of laws concerning to the welfare of the poor people. But these laws have not attained the expected success because of their improper implementation by the executive. Moreover no significant step has yet been taken for spreading awareness about those laws in the public. Awareness apart, the institutions which are administering such laws should have gained the faith of the people in the first place. But it is apparent that due to inadequate or no legal literacy, complexity in language, exploitation by lawyers, poor people are not still aware of many of their rights. In rural side people are afraid of going to the courts because of pre-imagination of harassment, humiliation and most importantly the cost of litigation is too high to be borne by them. Therefore a mentality for compromising with the violation of rights and silently suffer the exploitation is on increase. But this is not fair. When we have the pie of ADR in our hand then why not share it equally amongst all and in such distribution if more of the portion goes to the poor particularly the rural one then there is no harm in it. The constitution has given adequate space for positive discrimination in favor of the weaker sections. The Arbitration and Conciliation Act of 1996 provides for mediation but it does not mandate the authority concerned to improve the existing mechanism and the future incorporation of more of such institutions for the purpose of serving the poor people. The modern picture depicts that the mediation centers are mainly coming up in the urban areas particularly in the metros and the people are already enjoying its fruits. But most, rather say all of them are based on private ownership and they charge very high fees. Therefore they are far fetched dreams for the poor. But if the same is there in the rural areas with reasonable fees then it can be beneficial in various aspects.

1. Growing legal literacy: In India the rural poor are not at all aware of the black letters of law. Thus development of mediation agencies in rural areas can help in thrusting legal literacy upon the poor by allowing them in taking part in dispute resolution. In this way the knowledge of law can be inculcated in the minds of the people in a more simple way. Further in this way rural poor can become aware of their legal rights.

2. Significantly informal: Mediation is simplest of all procedures. Therefore the illiterate people can easily understand it. In this way exploitation of the poor people by lawyers not at all possible.

3. Reducing mental agony: Any kind of conflict gives birth to mental tension. Moreover in judicial proceedings there is a win-lose situation and as a result people are always scared. This is more relevant in context of poor. On the other hand a mediator himself takes the task of removing handicap.

4. Not a passive onlooker: A mediator is neither a passive onlooker like a Judge, nor he is as neutral as an umpire. He keeps his efforts on in restoring the effective communication between the disputants. It is very important because in any kind of dispute communication is the first victim.

5. Non Compulsiveness: Mediation is necessarily a non compulsive procedure. There is nothing which binds the disputants to come to an agreement. Therefore it gives the persons enough space to approach the door of the Court.

Conclusion and Recommendations:  

            India is the largest democracy in the world. A true democracy must provide adequate facility to the people to access effective mechanism of dispute resolution at reasonable costs. A democracy must be bound by rule of law otherwise dispute will be at increase and that in turn will breach the social solidarity. If social solidarity is violated then the country will not progress. Therefore we must head towards the creation of an effective ADR system with a huge network having equally represented in all over the country and particularly, ensuring that the rural poor are deriving benefits out of it. This will be the ideal way to maintain social solidarity and communal harmony. It is an imperative to ensure that judicial waste of time must not take place in dealing with unimportant matters. Only important matters must receive judicial attention. India is becoming more and more prominent in international scenario and thus it is necessary that measures should be taken by the govt. to bring change in the present judicial system to give effect to the same. Therefore at the end we must remember that it is the prime time to reform the judicial system in India in order to achieve a society which is free of conflicts, beneficial to the development of trade & commerce, ultimately in the advancement of the nation in all spheres.