Amendments upheld

ON October 25, a Supreme Court Bench comprising Chief Justice B.N. Kirpal and Justices Y.K. Sabharwal and Arijit Pasayat upheld the constitutional validity of the amendments made to the Civil Procedure Code (CPC) which came into force on July 1 (Frontline, July 19, 2002). The amendments were challenged through writ petitions by two Bar Associations. One of them, the Salem Advocates Bar Association in Tamil Nadu, sought leave of the court to withdraw its petition, but the Bench declined its plea, as the petition was filed in the public interest.

At the request of the court, senior advocate C.S. Vaidyanathan, and advocate K.V. Vishwanathan assisted it in dealing with the case. In its judgment, the Bench said that none of the counsel had made submissions to the effect that the amendments were without legislative competence or that they were violative of the Constitution.

The Bench dealt with some of the provisions of the Civil Procedure Code (Amendment) Act, which were perceived to have practical difficulties in implementation. The Bench was appreciative of Section 89, introduced through the Amendment Act; it provides for the settlement of disputes outside the court through arbitration, conciliation or judicial settlement, including settlement through the Lok Adalat, or through mediation.

The Bench commended the Alternative Dispute Resolution (ADR) mechanism, which has been contemplated in this section. Pointing out that all cases filed in the court need not be decided by the court itself, the Bench held that it had become imperative to resort to ADR mechanisms in order to resolve cases between the parties at an early date.

The Bench pointed out that in countries where the ADR mechanism had been successful to the extent that over 90 per cent of the cases were settled out of court, the parties to the suit had to indicate the form of ADR that they would like to resort to during the pendency of trial of the suit. If the parties agree to arbitration, the provisions of the Arbitration and Consolidation Act, 1996, will apply, and the case will go outside the purview of the court. But resorting to conciliation or judicial settlement or mediation would not ipso facto take the case outside the judicial system. Therefore, the Bench suggested that efforts need to be made to bring about an amicable settlement between the parties. If conciliation or mediation or judicial settlement is not possible despite efforts being made, the case would go to trial.

The Bench appointed a committee headed by a sitting or retired Judge, to be nominated by the Chief Justice of India, and comprising senior advocates Kapil Sibal, Arun Jaitley, C.S. Vaidyanathan, and D.V. Subba Rao (Chairman, Bar Council of India), to devise a model case management formula and rules and regulations that should be followed while taking recourse to the ADR under Section 89.

The committee will be at liberty to co-opt any other member and take the assistance of any member of the Bar or Association, and examine difficulties that may arise in implementing these amendments. The Bench asked the committee to submit its report within four months, and expressed the hope that the amendments would help in the expeditious disposal of cases in the trial courts and the appellate courts.

V. Venkatesan