Monthly Archives: January 2011

I need to give my apartment on rent and prepare a Rental / Lease agreement. How do I do it?

With the rapid (almost crazy) increase in real estate prices, most people are forced to rent out apartments. Buying an apartment, for long the middle class dream has become a definitely upper class fantasy.

So now that you need to rent a property, you must prepare your rental agreement with great care. A simple Rental Agreement is prepared so often by so many people that they forget how the small things matter. Like is often said, god is in the details.

What must I be clear about?

First of all, be very clear about the rent and the security deposit. Not just the amount, but also on which date the amount is to be paid and how you intend to pay it – by cash, cheque or online banking etc. Next, describe yourself and the tenant / landlord very clearly and systematically. On which date will the property be taken on rent? No, not “around the 15th” or “third week” Be precise.

Next, describe why you want the property on rent. Is it for your personal residence? Or do you also intend to run your medical practice or small shop there? This makes a big difference. Take care of the other little things. Do you intend to keep pets? Is there a building association or society? Does it need to be informed?
Finally, take care of the unpleasant part. If something goes wrong, who has to pay for the repair? What if a major repair is needed? Typically, the landlord pays for the major repairs and the tenant pays for minor repairs. Any damage caused is usually paid for by the tenant. Still, take care to put these things down in writing.

Is there anything I am forgetting?

Yes, after the agreement is prepared, it has to be printed and signed by two witnesses. Choose people who are not mentally unsound and known to you. (The Landlord or the Tenant cannot be the witnesses). Very often, people prefer to print the document on Stamp Paper. This is not strictly necessary but if you are able to, print the document on Stamp Paper. Decide on the value of the Stamp Paper in advance.

And in case things turn sour, remember to include a notice period so you cannot be unceremoniously thrown out overnight. A one month notice period for both the landlord and tenant is common. Most people also make a lease agreement for 11 months, since such an agreement need not be registered and is much easier to execute.

If you want to write your Will, prepare your Rental Agreement, or send a cheque bounce notice, get legal advice for your business or get any other legal service online just turn to vakilsearch.com

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I am an elderly person who needs to be looked after. Does the law protect me?

In the Indian legal system, until now, elderly persons, both men and women were not given the kind of protection that they deserved. An elderly person who was financially unable to take care of herself had to file a ‘maintenance petition’ under the Criminal Procedure Code and go through the trauma of a court case which could take several months, if not years, to be solved.

Has the situation changed?

Yes, with the introduction of the ‘Maintenance and Welfare of Parents and Senior Citizens Act, 2007.’ This law makes all people with children or grandchildren above the age of 18 eligible to their care and protection.

How does another law help? Don’t I still need to go to Court?

No. Under this law, special ‘Maintenance Tribunals’ have been set up which will look into the complaint of a senior citizen and ensure that he / she is taken care of, in not more than 3 months.
And the word ‘maintenance’ means that everything needed for a normal, healthy life, including food, clothing and basic shelter have to be provided.

What if my children or grandchildren cannot afford to take care of me?

The law is meant to protect you and not harm your children. So the amount of care which you get will depend on what your children can afford, and in no event can you demand more than Rs. 10,000 per month. (In today’s era of inflation, that should be increased!)

And what if they can afford to but still don’t take care of me?

The law allows you to immediately approach the ‘Maintenance Tribunal’. If you still don’t get any support, you can go back within three months of the payment being due. And in the worst case, if your children or grandchildren have abandoned or deserted you, the law says that they will be fined Rs. 5000 or imprisoned for three months, or both.

Is the law perfect?

No, certainly not. An elderly, weak person may not be able to approach a ‘Maintenance Tribunal’. There is no guarantee that his / her children will take better care of him. However, 90 days is definitely better than 2 years, and the fear of punishment may make callous children behave. In the end, it is more important to cure an imperfection in society than to make a perfect law. And while this law has its faults, it is surely a start.

If you want to write your Will, prepare your Rental Agreement, or send a cheque bounce notice, get legal advice for your business or get any other legal service online just turn to vakilsearch.com

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Will anyone help me write my Will?

Most people look at Wills differently from the way they look at other documents. There is a sense of finality in writing a Will, not helped by the fact that it is called a ‘Last Will and Testament’. In reality, a Will is nothing more than an expression of your intent.

A Will tells the world at large, after you are gone, that you wanted your wealth to go to a certain person / people or to an organization. That does not mean however that you should wait till the proverbial ‘right age’ to write your Will. It is never too early to plan for the future, and a Will can be changed as many times as you wish.

So, how do I write my Will?

Since a Will is purely an expression of intent, you can write it even on the back of a tissue paper and it will be perfectly valid (Although this is true, please use a more respectable medium!)

Start by outlining all your assets and wealth. Describe the asset. So don’t just say car, say ‘My red Hyundai Santro, TN – 02 – AN 2331”.

Next, decide to whom those assets and that wealth must go. For example, you can divide the property between your children in a 60 – 40 ratio, with your daughter getting 60% and your son getting 40%. If you divide your car in a 60 – 40 ratio, it means that the car can be sold and your children will share the resale price in that ratio.

After that, clearly state who gets all the remaining assets. For example, you might have carefully divided all your assets but forgotten to mention your gold ring which is in your bank locker. Clearly state that ‘All my remaining assets will go to…”

Who is an executor?

An executor is a person whose responsibility it is to ensure that your property is divided the way you wanted. It is not mandatory to mention that in your Will, but it is very strongly recommended. Mention how the executor is known to you (it could even be your best friend)

And just to be doubly sure, appoint an ‘Alternate Executor’ in case your primary executor is unable or unwilling to perform his duty.

What more can I do with my Will?

Plenty more, actually.

You can create a ‘Life Interest’. This means that a property will be used by somebody as long as that person is alive, after which it will go to someone else. This may sound complicated, but it is a common strategy.

For example, you have an ailing mother and a son. You want to give your flat to your son but also want to be sure that your mother will have money for food and medicines. You can create a life interest, which means that as long as your mother is alive, the income from the property will be used to take care of her. After her death, your son will enjoy the property.

Then you can create a Trust. You may say that your house’s rental income will be used to create a trust. The purpose of the trust may be to pay for the education of your son right until he finishes a post-graduate degree in a college of his choice. After that (clearly state this too), it will go to the Cancer Foundation, or go to your daughter, or be used for some other purpose. Naturally, you need to mention who the trustee will be.

Finally, you can appoint a Guardian for your young child. This is only necessary if your child is under 18 years of age. The Guardian will take care of the interests of the child, its education, health and overall well being.

Finishing touches:

Sometimes, people use a Will to explain why they ‘did not’ leave property to somebody. For example, ‘I did not leave property to my son because he has a good job with IBM and does not need my wealth’. This is purely optional. The only advantage is that tomorrow, if the son tries to fight with his siblings over your property, this one line may make all the difference.

You can also use your Will to thank those who meant the world to you when you were alive. ‘I would like to thank my wife Shailaja who was my best friend and loyal companion throughout my life’

So your Will can be a lot more than a distribution system. It can be used as a caretaking mechanism, ensuring that the people you loved are not only provided for, but looked after too.

Click here to write your Will now, or prepare your Rental Agreement, send a cheque bounce notice, get legal advice for your business or get any other legal service online only on vakilsearch.com

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Under-trials in India : Their rights and their plight

The National Crime Records Bureau of the Government of India, in Chapter VI of its report dealing with the number of prisoners undertrial in various prisons across the country, has released some shocking details. It reported that thousands of undertrials had been incarcerated for a period of five years or more, and in fact in states including developed states like Punjab and Delhi, a large number of prisoners were under-trials. In Bihar, 30.4 % of the prisoners incarcerated had not been convicted and yet they languished in jails for years, sometimes for periods longer than the period for which they would have to serve, if convicted.

The figures get even more distressing if one studies the number of prisoners incarcerated for more than one but less than five years in different prisons across India. In Uttar Pradesh and Bihar alone, the number of prisoners detained for a period of between two and five years, without having been convicted of any offence was 7310. The number of such prisoners languishing in other jails in different parts of the country constitutes a figure several times the figure for the two states mentioned above.

Examining the Central Jail (Tihar), some more disquieting figures come to light. In 1993, out of the 7200 prisoners housed in the Central Jail Complex (called the Tihar Jail), only 900 prisoners had actually been convicted of any crime. Seven out of every eight prisoners in Tihar Jail consisted of those who had not been convicted of any offence, which amounts to close to 90% of all inmates! Even more shockingly, out of the 280 women prisoners, only 20 had been convicted! Thus, 260 out of 280 prisoners were languishing in jail when the law presumed them to be innocent. It is difficult to think of a justification for this woeful failing of our criminal justice system, but solutions may be sought, and the first place to which one’s attention is directed is the criminal law in the country, specifically the Criminal Procedure code, which is the backbone of the criminal justice system in the country.

Thus, it is clear that the problem of under-trial prisoners is one of great magnitude. The Indian legal system embraces the principle that a person is innocent unless proven guilty. Thus, unless a person has been convicted by a court, no punishment must be meted out to him. Incarceration, even if the person has not been convicted, is damaging physically and mentally and may irreversibly change the life of the individual socially, financially and emotionally. This detention of under- trials for long periods thus in effect imposes heavy costs on the individual, and in effect is no different from being jailed as a punishment for a crime.

(i) Analysis of Section 167 of the Code of Criminal Procedure and the issue of bail linked to financial ability

Section 57 of the CrPC states that “no police officer can detain in custody a person arrested without warrant for a period longer than under all circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Sec 167, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.

Sec 167 is needed if the police feel that they cannot complete their investigation within 24 hours, and also have reasons to believe that the accusation against the accused is well founded. The procedure prescribed is that an officer not below the rank of a sub-inspector shall transmit to a judicial magistrate a copy of the entries in the diary, and forward the accused to the same Magistrate.

This magistrate can do one of two things: First, he can, from time to time, authorise the detention of the person for a term not exceeding fifteen days. Secondly, if he cannot try the case, he may forward it to another magistrate who has the jurisdiction, who may authorise the detention of the person for a period for a period not exceeding either ninety days or sixty days (depending on whether the person has committed an offence punishable with death, imprisonment for life, or imprisonment for ten years or more or not).

Justice Pathak in Hussainara Khatoon v. Union of India expressed hope that this provision, which limits the period during which a person may be incarcerated was actually being correctly, and that the judges in lower courts were, in the spirit of the provision, satisfying themselves that there was a cause for incarceration. But the real concern of the Court was with provision for bail which is part of our Code.

The Section states that after the expiration of this period, a person who is prepared to and does furnish bail, shall be released on bail. The explanation to the Section further states that “for the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.

The Supreme Court in Hussainara Khatoon noted the unfair nature of this provision and the unsatisfactory position of this law in this regard. The learned judges noted that there was no mechanism with the Code which “enabled the release, in appropriate cases, of an under-trial prisoner on his bond without sureties and without any monetary obligation”, and urged the government to formulate a specific provision in this regard. Clearly, almost every person would prefer liberty to incarceration and thus would be prepared to furnish bail, but some on account of poverty, will not be able to furnish it. I am thus in agreement with R.S. Pathak J. on this point, as the primary reason for the continued incarceration of a large number of individuals was that they could not furnish the necessary amount to be released on bail, but others, who were in all other respects identical to the person incarcerated and could generate the funds, were not deprived of their personal liberty.

A method which reasonably limits the movement of an under-trial (so as not to subvert the cause of justice) but without incarceration should therefore be provided for all accused persons to avoid the discrimination mentioned above. Another move that is absolutely essential is the deletion of the explanation to this section, which makes it impossible for a person to secure his liberty unless he furnishes a monetary bond.

The provision requiring a person to bear a financial burden to secure his liberty as we have seen, is clearly an infirmity of our law. However, the Supreme Court in Hussainara Khatoon pointed to several areas where protection granted by the statute was not being applied by the police, which we shall now examine.

(ii) Analysis of Section 468 of the CrPC

The first Section examined by the Court was Sec 468 of the Code, which states that for accused persons whose alleged crimes would mandate a punishment, if they were convicted, of
a. A fine only
b. Incarceration for not more than one year
c. Incarceration for more than a year, but not more than three years,
If they were incarcerated for a period of six months and above, or one year and above, or three years and above respectively, no court could take cognizance of the offence.

We must also pay attention to Sec 167(5) of the Code of Criminal Procedure, which provides specific protection to the accused in a case triable by the Magistrate as a Summons Case, and states that if the investigation is not concluded within a period of six months from the date on which the person is arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interest of justice prolonged investigation is necessary.

With respect to both provisions, the Court directed the Govt of Bihar to study the profiles of prisoners and release the prisoners whose continued incarceration was violative of the provisions mentioned above. It is indeed unfortunate that the enforcement of the protection due to the prisoners by law could be granted to them only after the highest appellate court directed the government to examine prisoners’ profiles. A suggestion of the present researcher in this regard is to create a mechanism by which the register in every jail containing the offence and the duration already served is checked every two weeks and if any person falls into the categories contained in Sections 167 (5) or 468, the person will be released immediately.

The most outstanding feature of the decision in Hussainara Khatoon is the fact that it enshrined the right to speedy trial as a fundamental right, specifically as part of the right to life under Art 21. This formed the basis for the contention of Mr PP Rao in AR Antulay v. Naik where he argued that it was settled that the right to speedy trial was part of the right to life, which was enshrined in Art 21 of the Constitution.


(iii) Analysis of “Right to speedy trial” as being part of Right to life under Article 21 and Section 482 of the Code of Criminal Procedure

He further argued that to make the right effective, there had to be an outer limit beyond which a person’s trial could not be conducted. It was submitted to the Court that Sec 468 could be used as guidance in placing the limit on the period beyond which the trial of a person could not be conducted, and although Sec 468 clearly applied only to minor offences calling for a punishment of at most three years, Mr Rao argued that the same could be extended to major offences as well.

The Supreme Court importantly held that the core of the right to speedy trial was the protection against incarceration and thus, in the prolongation of a trial, the maximum prejudice was suffered by an individual who had been unjustly incarcerated. But the primary contention which deserves our attention is the contention of the Advocate General in the same case, where he contended that unjustifiably long periods of detention would amount to an abuse of the process of the court and would thus invite judicial action under Sec 482 of the Code.

Section 482 of the CrPC is titled “Saving of the inherent powers of the Court”. It states that nothing in the code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary…, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. In Ratilal, it was held that the inherent powers of the High Court preserved under Sec 482 of the CrPC were vested in the High Court by law within the meaning of Art 21 of the Constitution. Therefore, it follows logically from this proposition that the exercise of the power of the Court under Sec 482 can be done if the Court believes that there has been an infringement of the right of an individual under Art 21 of the Constitution, namely the right to life.

We have already seen that in Hussainara Khatoon, it had been held that the right to a Speedy Trial was part of the right to life enshrined in Art 21. Relying on the third Hussainara Khatoon case it was observed that the denial of this “fundamental right to a speedy trial” would constitute a violation of Art 21, and the Court, thus, using its inherent power under Sec 482, could quash the trial pending against the accused. Additionally, relying on Khadra Paharia v. State of Bihar , it was contended that a court, when it encountered a case where the right to a speedy trial had been denied to a person, could use its inherent powers in discharge of its constitutional obligations to give necessary directions to State and Central Governments for the enforcement of these obligations.

(iv) Analysis of Section 309 of the Code of Criminal Procedure

In fact, at this stage, we may make reference to Sec 309 of the CrPC which clearly states that proceedings in a trial had to be completed as expeditiously as possible. Clause 1 states that in every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has begun, states that the same must continue from day to day until all the witnesses have been examined, unless the Court finds the adjournment of the same beyond the following day necessary. Interestingly, it also requires the Magistrate to record reasons as to why an inquiry or trial is being adjourned or postponed, if he finds it both necessary and advisable to do so. Finally, in no event is a Magistrate allowed to remand an accused person to custody under this section for a term exceeding fifteen days at a time. Thus, though the CrPC does not contain express provision enabling a Court to quash a trial, it states unambiguously that proceedings had to be completed without delay.

In S. Gain and Ors. v. Grindlays Bank Ltd of the apex court has held that a period of seven years was bound to result in harassment and abuse of the judicial process. Similarly, in Rakesh Saxena v. State through C.B.I. it was held that any further continuance of the prosecution after lapse of more than six years would amount to an abuse of the process of the Court. In Machander v. State of Hyderabad a period of even five years was held to be unjustifiable, in the facts and circumstances of that case. However, in AR Antulay, the Court did not lay down any specific time period beyond which the court would have the power to quash the criminal proceedings against a person. They thus did not accept the argument raised by Mr PP Rao that the period provided for under Sec 468 should be used to determine the maximum time period in respect of major offences. It is submitted that the Supreme Court decided this proposition correctly.

First, as the Court rightly pointed out, there might be several instances where the delay might be caused by the conduct of the accused himself, with or without mala fide intention. Indeed in the facts in Antulay, the delay had been caused, (the Court held though that there had been no mala fides) by the conduct of the appellant himself. Second, the Court discussed in detail American decisions, particularly decisions of the United States Supreme Court which has laid down in that a speedy trial was a constitutional mandate. However, it is interesting to note that in America, the Sixth Amendment to the United States Constitution expressly guarantees the right to a speedy trial, while in India, the same right has been read by a process of creative interpretation into the constitution. Yet in America, inspite of it being specifically mentioned in their constitution, no fixed outer period or time limit has been set beyond which a trial will be quashed on account of delay. Thus, it is submitted that the judges of the Supreme Court were right when they decided not to put in place any outer time period which would lead to the quashing of criminal charges. Instead, they suggested a case by case examination guided by certain guiding factors, such the length of the delay, the reason for the delay and the prejudice caused during the delay. For example, a person incarcerated for a period of seven years would in almost all cases be given back his liberty and the trial which had been commenced against him will almost always be terminated. It is submitted that this test will thus buttress the protection available to convicts already under Sec 468 of the CrPC.

We have thus seen that a creative interpretation of the Constitution has been used to expand the ambit of the right available under the Code of Criminal Procedure to under-trials. In Sheela Barse (II) v. Union of India , the issue which arose before the Supreme Court was more specific and involved the detention for long periods under trial prisoners who were children below the age of 16. The Court came down very strongly upon this practice, which prevailed in a few states and passed directions to States to discontinue this practice.

Interestingly, they did apply a time limit beyond which the detention of children under-trial would be unjustified, a short period of three months from the date of filing of the complaint or lodging of the First Information Report as the maximum time permissible for investigation and a period of 6 months from the filing of the charge sheet as a reasonable period within which the trial of the child must be completed. (This period was not made applicable to children who had been accused of crimes which called for a punishment of more than seven years). However, they distinguished the previous decisions, specifically Antulay on the ground that those decisions dealt with a different class of people, specifically those who were above the age of 16. It is submitted that although the Supreme Court did overstep its primary function, which is the interpretation of the Constitution by issuing directions to the executive, in this case, their action is justifiable, regard being had to the importance of immediate action on as pressing issue as this.

The same concern with the welfare of the accused will inform the next part of our discussion, which is that of whether under-trials can be handcuffed and if they can, under what circumstances. The Supreme Court, using Secs. 46 and 49 of the Constitution, has declared that handcuffs cannot ordinarily cannot be used on undertrial prisoners. This is discussed in the next part.

(v) An analysis of Secs 46 and 49 of the Code of Criminal Procedure and prevention of inhuman treatment to under-trial prisoners

Sec 46 and Sec 49, it must be remembered, extend general protection to all prisoners and applies to all cases of arrest. However, in the cases we shall be examining, as we have seen, special emphasis has been placed on the problem with using unnecessary force while dealing with under-trial prisoners, particularly with the use of handcuffs. The reason behind this, it is submitted, is that, as we have examined, the incarceration of an individual is psychologically deleterious. This is exacerbated by the use of instruments like handcuffs, and this can be especially damaging to an individual who has not been convicted and may not be guilty of any offence.

Sec 46 of the CrPC limits the circumstances in which, and the extent to which force may be used by a police officer while incarcerating an individual. It states not only that force may not be used while dealing with an accused individual who has, by word or action consented to the arrest, it also states that a police officer can in no event cause the death of an accused not accused of a crime punishable with death or life imprisonment. Sec 49, which is more important for our purposes, gives specific protection to a person in police custody, including prisoners under-trial. It states that “the person arrested shall not be subjected to more restraint than is necessary to prevent his escape”.

In Prem Shankar v. Delhi Administration , Krishna Iyer J., in his inimitable style, examined a plea that inspite of the decision in Sunil Batra v. Delhi Administration undertrials were being subjected to the “mortifying and dehumanizing treatment” of being handcuffed. The plea was sent by means of a telegram to the Supreme Court and exercising its “epistolary jurisdiction”, the Supreme Court took cognizance of the fact that undertrials in Tihar Jail were being compelled to wear handcuffs while being transported to and from the Delhi Courts.

The Supreme Court first made reference to Article 10 of the International Covenant on Civil and Political Rights, which states that “all persons deprived of their personal liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” Additionally, the Court relied on Sunil Batra which had held that the fact that a person had been incarcerated did not mean that he had waived his fundamental rights. Further, the Supreme Court was influenced by (though this does not directly concern us), the fact that Rule 26.22(2) in Chapter 26 of Punjab Police Manual read as follows-
“(2) Better class under-trial prisoners must only be handcuffed when this is regarded as necessary for safe custody. When a better class prisoner is handcuffed for reasons other than those contained in (a), (b) and (c) of Sub-rule (1) the officer responsible shall enter in the Station Diary or other appropriate record his reasons for considering the use of hand-cuffs necessary.” This was held by the Supreme Court to be unconstitutional and violative of the fundamental right to equality guaranteed by the Indian Constitution.

Thus, the same concern with equality which played an important role in the decision in Hussainara Khatoon’s case shaped the decision in this case as well. The Supreme Court ultimately, following the broad interpretation of Art 21, a legacy left to use by the decision in Maneka Gandhi v. Union of India as well as Sec 49 of the Code of Criminal Procedure, held that the only circumstance which validated the “incapacitation by irons” was when there was no other means of preventing the escape of a person, in the circumstances. Although the intention of the Supreme Court in this case was undoubtedly good, it remains flawed in logic. It is absurd to expect the police to read the mind of the prisoner and know for sure that he is likely to escape at that point of time. The test suggested by the Supreme Court fails at the outset as it places an unrealistic and practically unviable burden on the shoulders of the police. Thus, although the Supreme Court’s intention was undeniably good, namely to prevent unreasonable loss of liberty, they wrongly tackled the problem by doing away with an important police safeguard. What the Supreme Court could have done, since its “mandatory direction” in this case is never going to be implemented in practice, was to issue a “recommendatory direction”, which the States would have been under a good faith obligation to follow.

If we must have a mandatory direction to the officials of the State, then the decision in Sunil Batra is more practically viable. In Sunil Batra, it was held that handcuffs could be used when “an under-trial has a credible tendency for violence and escape a humanely graduated degree of “iron” restraint is permissible if — other disciplinary alternatives are unworkable.”

A similar fact situation, based on Sec 49 of the Code of Criminal Procedure, arose in the decision in Citizens for Democracy through its President v. State of Assam and others . There, the now famous Kuldip Nayar had observed that in Assam, several suspected terrorists had been detained using ropes while they were in a hospital undergoing medical treatment. The State, in its defense, argued that during the three years from 1991-94 there had been as many as fifty one cases of escape of terrorists from Police and Judicial custody including thirteen terrorists who escaped from different hospitals in the State. The Supreme Court however held that the law as laid down in the decisions in Sunil Batra and Prem Shankar Shukla were binding on it under Art 141 of the Constitution and the interpretation placed in both those decisions on Art 21 and Sec 49 thus had to be applied in the case before it as well. However, it is submitted that in this case, since the State of Assam had shown the Court a reasonable basis for applying extraordinary measures to suspected terrorists, credence should have been lent to the fears of the State.

BROAD CONCLUSIONS

The problem of undertrials languishing in our jails is a problem which we have ignored for too long. We as a nation cannot afford to ignore it any longer. In order to tackle the problem, there are a few things that we need to do immediately.

First, we need to relook the entire system by which only people who can afford to furnish the monetary security are released on bail, since this unfairly prejudices the poor.

Second, we need to re-examine the long periods which under-trials serve without being convicted in the context of protective provisions such as Section 468 of the CrPC. As Mr. P.P. Rao argued before the Supreme Court, a time frame has to be put in place so if a person has served more time than he would have if he had been convicted, he should be released. Such a provision should be made, if possible through a constitutional amendment such as they have in the United States in the form of the Tenth Amendment.

Finally, we must also relook the requirements imposed on the police officials. The police currently, after the decision of the Supreme Court in Sunil Batra v. Delhi Administration have a very high burden if they want to handcuff a person. A hybrid mechanism, by which the under-trial is not allowed to escape, and at the same time his dignity is not violated in any manner, must be used to make the job of the police easier. These are the broad conclusions.

If you want to write your Will, prepare your Rental Agreement, or send a cheque bounce notice, get legal advice for your business or get any other legal service online just turn to vakilsearch.com

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Procedure to be followed during a Mediation

A mediation has often been defined as an assisted negotiation. I believe that a better way of analysing the mediation process is to look at the mediator as a catalyst, who supports the negotiation process at every stage.

There are myriad reasons why it is believed that a mediator is needed to assist in the negotiation process, among these being the fact that the negotiators might feel exploited if a third party is not present, and importantly because communication ties between the parties might have broken.

Additionally, the negotiators might not be aware of the position of the law and thus, the introduction of a third party who is not only neutral but also has knowledge of the law might be the shot in the arm that the negotiation process needs to be successful. All these could be merely some of the reasons why parties may choose to mediate instead of resorting to an ordinary process of negotiation.

Mediation has met with different rates of success in different countries. In the United Kingdom, The Centre for Effective Dispute Resolution reported that in 2002/2003, some 516 commercial cases were mediated (an overall 22% increase over 2001/2002) with a settlement rate of 78%, the major proportion of such cases settling on the day of the mediation, and with 95% of all cases conducted in one day. The enormous success of mediation in the UK has led the Lord Chancellor’s Department to announce that all government departments would seek to avoid litigation by using mediation and other neutral-assisted dispute resolution procedures. So important has mediation become in the UK, that in Hurst v Leeming Lightman J described the current position in England and Wales in the following terms :-

“Mediation is not in law compulsory, … (but) alternative dispute resolution is at the heart of today’s civil justice system, and any unjustified failure to give proper attention to the opportunities afforded by mediation, and in particular in any case where mediation affords a realistic prospect of resolution of dispute, there must be anticipated as a real possibility that adverse consequences may be attracted.”

Mediation has also become the principal method of dispute resolution in countries like Sri Lanka, where specialised Mediation Boards have been established as well as in countries in the far East, like China and Japan.

I. Analysing the Mediation Procedure through an examination of the various stages of the mediation process:

The mediation procedure can be divided into six steps, each of which represents a particular stage of the mediation process. These stages, for the sake of convenience, have been outlined below:-

a. Convening process and preliminary arrangements
b. Mediation introduction and laying down the ground rules for mediation
c. Statements by negotiators, followed by a restatement of the problem by the mediator
d. Setting the agenda for mediation
e. Facilitating the mediation, by generating options, if necessary
f. Reaching a negotiated settlement

To effectively analyse the mediation procedure, I shall be examining each stage of the mediation procedure in some detail. In each of the stages mentioned above, I have placed two or more stages in juxtaposition to aid analysis. This examination will not only provide an overview of the entire process, but will also highlight some of the measures which have to be taken by the mediator/parties, and some actions which cannot be performed by them.

    a. Convening process and preliminary arguments:

The process of convening the mediation is often the most difficult and challenging part of the mediation procedure, because it may, and does often require the bringing together of parties who do not want to negotiate, or between whom relations are so strained that they may not want to negotiate.

There are different procedures for bringing parties together, and these differ widely across jurisdictions. In America, it is only the parties who must voluntarily agree to enter the mediation process. In India, the situation is different and greater external pressure can be placed to induce the parties to enter the mediation. In fact, in the case of court appointed mediation, the Court can order the parties to enter the mediation process under Section 89 of the Code of Civil Procedure.

On examination of the procedure laid down in the Delhi High Court Mediation Rules, the parties are ordinarily given the freedom to appoint a mediator of their choice. However, to assist mediation, the Courts in the National Capital Region are mandated to create a panel of mediators from among whom mediators may be chosen to assist the parties. Thus, the fact that the parties have not been able to reach consensus on whom to appoint as a mediator will not pose a hindrance to the progress of negotiations.

The difficulty in convening the mediation is often because the parties are unwilling to enter a negotiation, or because relations between them are very strained. If there is no third party to facilitate the coming together of the parties, they may be often unwilling to come to the negotiation table. If however, the convening of the mediation process is done by a third party mediator, then it certainly might be easier to secure the willingness of a reluctant party. This is especially so if the mediator is a person with significant social standing, like a judge of the High Court or the Supreme Court, or even a senior lawyer. Additionally, in the procedure mentioned under Section 89 earlier, it becomes compulsory for the negotiators to come together and enter the mediation process, in mediation centres specially established by the Court for the purpose.

Having said that, an unwilling party who is hauled into the mediation process might not be willing to discuss settlements as readily and might not co-operate with the mediator and the other party. But this risk is outweighed by the benefit in the cases of other unwilling parties, who because of court annexed mediation, will actually attempt the mediation remedy which they would not have otherwise.

    b. Mediation introduction and laying down the ground rules for mediation:

This is a critical stage in the mediation process. The mediator in this stage has to explain the procedure which will be followed in the rest of the mediation. In other words, the mediator must in the stage explain how the mediation will be carried out.

The mediator must also inform the parties about things which might have the effect of reducing the possibility of success in the mediation. For example, the mediator must inform the parties about the fact that reaching a settlement is not necessary, and how participating in mediation is supposed to be voluntary.

As mentioned earlier, there is however in neither India nor America a standard form of rules which have to be followed. Indeed, if the parties can reach a consensus on the rules to be followed in the mediation, then those rules can be followed during the mediation. Even the Delhi High Court Mediation Rules state that parties may agree on the procedure to be followed by the parties and the mediator in the conduct of the mediation proceedings.

This is one of the principal advantages of mediation and other forms of Alternative Dispute Resolution, namely that there do not exist rigid and binding rules of procedure which may hamper and delay the process. Even the rules of procedure to be followed can, and often are, evolved by the parties through consensus between them. The other advantage of this is that if the parties are involved in the framing of the rules, it becomes easier to enforce them and this is particularly beneficial because a mediation does not have powers conferred upon Courts of law under the Contempt of Court Act.

    c. Statements by negotiators, followed by a restatement of the problem by the Mediator:

In this stage, the mediator will elicit statements from the negotiators. This is a mandatory stage and it is here that the parties articulate their positions, so that the other side can understand exactly what they want.

This is particularly important if the parties, before the mediation, were not on cordial or even speaking terms. Additionally, understanding the positions of the parties on the other side will also help parties to begin to understand the interests of the parties which underlie the positions.

The mediator will have to follow this rule of procedure even if he knows the problem which exists between the parties, to remove incongruities which exist in the understanding of the facts by the parties and consequently to ensure that the parties understand the problem in the same sense.

Following the statements by the parties/negotiators, the mediator must restate the problem. This is to add to the process carried out earlier and to accommodate multiple perceptions of the problem. Often, the inability of the parties to reach a settlement is because they have different perspectives on the problem, even if they are clear on what the problem is. One party might feel therefore that he or his client was treated unfairly and therefore, even if he knows the events which have led to the problem, he may be reluctant to actively participate in the mediation. When the mediator restates the problem after hearing the various and often competing perspectives on the problem, he must attempt to accommodate the differing perspectives as far as possible in his restatement, as long it does not lead to contradictions. By harmonizing the differing perspectives on the problem, he will help to reduce the parties’ perceptions of the differences that exist between them.

Once this is done, the mediator must then attempt to collect as much additional information about the problem and the sequence of events that led to it. It will not only help the mediator in facilitating the negotiation between the parties, (which will be discussed shortly), it will also help in setting the agenda for the mediation.

    d. Setting the agenda for mediation:

This stage involves the setting down of the sequence or order in which the negotiation is to proceed, and is an important duty cast on the mediator because it imparts clarity to the mediation which not only benefits the mediator in assisting the parties to reach a settlement, but also the parties because they have a standard according to which they can evaluate individually the progress of their negotiations. In setting an agenda, the mediator might place not only the dates and the venue for the negotiation sessions, but will additionally also place before the parties the issues which have to be discussed by them in sequence, so as to remove vagueness from the exercise.


    e. Facilitating the negotiation, by generating options, if necessary: </em

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In this stage, the mediator assists the parties in undertaking the negotiation effectively. It is here that the importance of neutrality and confidentiality on the part of the mediator and in the mediation process respectively, are showcased. Both these have been discussed in detail in the next part.

The generation of options must be viewed as distinct from the interference of the mediator in reaching the final settlement. The mediator ought not to interfere by compelling the parties to reach a final settlement, and the rules formulated by the Delhi High Court prohibit the mediator from compelling the parties to reach a settlement. However, the mediator may facilitate the reaching of a settlement by generating options, one (or a combination of a few or many) which the parties may adopt as the final settlement. An example of this, which readily comes to mind, is in the case of a dispute between an employer and an employee.

Here, the mediator may offer various options which will best satisfy, in his opinion, the interests which he believes underlie the positions take by both parties. If he for example comes to understand that the interest of the employer is in maintaining the status quo in the company’s hierarchy, and the employee wants to be promoted, he can offer them two options. One option could be that the employer will create an additional position at the higher level to accommodate the employee without disturbing the hierarchy, and the second option is to offer the employee a substantial raise but with the same position in exchange for the promotion. Both of these options will satisfy the employer and the employee, but left to themselves, they might not be able to, or willing to examine these options. Thus, the intervention of the mediator in generating options becomes an important part of the mediation procedure.

    f. Reaching a negotiated settlement:

This stage of the mediation procedure is the final stage and involves two steps, first the reaching of a settlement, secondly the summing up of the settlement. Once these two stages have been completed successfully, the process of implementation of the settlement begins.

This is the practically the most important part of the mediation process and thus care and caution have to be exercised in this process by the mediator. Although in this stage as well, there is no fixed procedure which must be followed in all circumstances, there are certain factors to be kept in mind by the parties as well as the mediator. First, the mediator must, through the use of options discussed earlier, direct the parties towards reaching a settlement which he believes will best satisfy their interests. Only then will the mediator succeed in securing the commitment of the parties to the mediation and the settlement reached. Next, once the settlement is reached, the mediator has to summarise the settlement and put it down in writing. This procedural requirement is critical because an essential requirement to secure compliance is that the parties both understand and are in agreement on the exact content of their settlement.

Therefore, to secure this objective, the mediator must record a synopsis of the settlement remembering to note all the material particulars which the parties reached an agreement upon and not ignoring matters of detail which are related to their interests either. This is also important because once this is complete the mediated settlement has the force of a binding contract and can be enforced by a court of law.

After the settlement is reached, as mentioned earlier, it has the power of a binding contract between the parties and can be enforced by a court of law. The Rules framed by the Delhi High Court state that on receiving the settlement, if the Court is satisfied that the parties have reached a settlement, it must pass a decree in accordance with the same. This is a welcome addition to the strength of the mediation process, since it makes settlement immediately capable of being executed and also exposes the other party to the risk of civil contempt in the event that he does not show commitment to the implementation of the settlement.

II. Factors to be kept in mind by the mediator during the mediation process

We have seen the various stages which make up the mediation process. In this part, I shall be examining certain guiding principles which have to be kept in mind by the mediator and the parties during the mediation. These do not directly constitute the mediation procedure, but form the pillars on which the procedure stands. I have examined three broad principles, namely neutrality, confidentiality and ethics. Under each of these, I have included other principles which also assist and support an effective mediation process such as private meetings, counselling and extending assistance to parties with substantially lesser bargaining power in the negotiation.

1. CONFIDENTIALITY

One of the factors which sets a mediation apart, (or for that matter any mechanism of Alternative Dispute Resolution) except Lok Adalats in the Indian context, is the presence of confidentiality in the process.

As has been pointed out by respected authors in the field , the lawyers involved in the process of alternative dispute resolution (henceforth ADR) view the requirement of confidentiality very differently from their clients. To some clients, keeping the information behind closed doors might be very important for social, emotional or even economic reasons. On the other hand, lawyers would view the requirement of confidentiality essentially from the perspective of future litigation between the parties. In America, the Federal Rule of Evidence 408 prohibits the use of settlement discussions in courtroom proceedings, and the policy considerations for confidentiality in mediation are very similar to the underlying policy considerations for the Rule of Evidence. Similarly, in India, Rules 20 and 21 of the Delhi High Court mediation rules make it mandatory for the mediator to keep confidential any document if requested by one of the parties to do so, and also to ensure that the mediation proceedings are carried out in complete privacy.

A mediated agreement and the mediation process thus enjoys the benefit of confidentiality. The direct advantage of this is that it develops trust between the parties to the mediation process. If parties are aware that their discussion will be behind closed doors, then they will be naturally more willing to reveal information they believe sensitive. But more importantly for our purposes, it helps the mediator in developing trust between the parties, since the mediator can generate the confidence of the parties much more easily if he can assure them that anything they say in the mediation cannot be used against them, and also that the world outside will not come to know of information the parties might not want to reveal.

A good mediator, in the beginning of the process itself, will inform the parties about the guarantee of confidentiality. Additionally, he might also try to reassure the parties by telling them the exact ramifications of confidentiality in the process. The basic requirement of informing the parties is a fundamental duty of the mediator.

There has been much discussion about the granting of confidentiality, and it is relevant for us to discuss this here. Although it has been generally accepted that confidentiality is beneficial and necessary to a negotiation process, much doubt has also been expressed about the impact which this confidentiality and the consequent immunity granted to the mediator might have. The rules framed by some High Courts also expressly confer immunity on the Mediator in respect of anything bonafide done or omitted to be done by him during the mediation/conciliation proceedings for civil or criminal action. The rules also state that the mediator cannot be summoned by any party to the suit or proceeding to appear in a Court of law to testify in regard to information received by him or action taken by him in respect of drafts or records prepared by him or shown to him during the mediation proceedings. It has been argued that this level of immunity is excessive and might hinder the cause of justice when the mediator’s actions have impaired the rights of one of the parties to the mediation.

It must however be noted that the rules stated above only provide immunity in respect of actions performed bona fide by the mediator in the performance of his official duties in the mediation process. They do not prevent the parties from invoking the responsibility of the mediator in mala fide or corrupt dealings.

I think therefore that on the whole, it is important for there to be confidentiality in the mediation process, since the cost of potential abuse must not be allowed to outweigh the benefit of preventing disclosure of sensitive information. A practical issue is also the fact that the mediators (in the Indian context) are senior lawyers or retired judges, sometimes even Chief Justices of different High Courts or on occasion, the Chief Justice of India. The Delhi High Court mediation rules also require that a mediator, in order to serve on the mediation panel, must be either an experienced lawyer or a judge, or in any event, a distinguished professional or an expert in the field of mediation. It would be difficult to expect them to come as willingly to assist in the mediation process if there remained the danger that they would be required to appear in court on allegations of mala fide, or worse, corruption.

2. NEUTRALITY

We have noticed that one of the primary objectives of ensuring confidentiality in the mediation process was to develop trust and confidence in the parties regarding the process and make them more willing to not only share information, but also to actively discuss options and reach a settlement. Similar factors necessitate neutrality in the mediation process. Infact, as some authors have noted, the mediator is actually called a third party neutral. It becomes necessary therefore, in light of the obvious importance attached to neutrality, to discuss exactly why it is so important. The reasons which will be advanced below are an elaboration upon and in addition to the reasons mentioned above.

The word neutrality is used interchangeably with impartiality, freedom from prejudice and freedom from conflict of interest. Authors and groups in the United States however, have distinguished between neutrality and impartiality. While neutrality implies removal of any possibility of a biased mediation process, impartiality implies actual involvement in the course of the mediation process to help both parties reach a favourable settlement. For example therefore, a neutral mediator, if he feels, or if any of the parties feel, will be biased towards one side, will excuse himself from the entire process. On the other hand, the display of impartiality means that the mediator will actively assist both parties in reaching an agreement, and not support any particular individual, which is the role of a lawyer in a court room.

I believe that this distinction is very flimsy and indeed, while discussing the necessary factors to be kept in mind by the mediator for a successful mediation, really does not support our endeavour. This is because even if there were a difference between the two, the two are so interconnected and interdependent that in practice, a mediator will have to keep both of these in mind to an equal degree, and simultaneously. If however, as has been understood by a few, impartiality is considered to be akin to actively ensuring fairness in the mediation process, there is an important distinction between the two which has to be kept in mind.

I shall for the purposes of the discussion be reading the requirement of neutrality and impartiality in juxtaposition and analysing the two together. This raises a very interesting and a very important question. Does a mediator have to ensure only fairness of the process, by either excusing himself on apprehension of bias or intervening to prevent any procedural unfairness or does his duty extend to even ensuring that the result of the mediation process is fair?

Kimberly Kovach argues that it is not for the mediator to intervene and make judgements for the parties and to that would be to require conduct which is outside the mediators role in the mediation process. She also argues that even if there is a case in which the mediator feels that he will not be able to produce a fair or unbiased result, he or she should not intervene in the mediation process. The mediation rules framed by some High Courts in the country also expressly state that the mediator shall only attempt to facilitate the voluntary resolution of the dispute, and that the mediator shall not and cannot impose any settlement on the parties. The Rules state that the only role of the mediator is to communicate the view of each party to the other, assist them in identifying issues, reducing misunderstandings, clarify priorities, explore areas of compromise and generate options in an attempt to solve the dispute.

However, it must be remembered that the role of a mediator is different in that he is supposed to guarantee an agreement which is not one which a court would refuse to enforce on grounds of fraud, duress, unconscionability or overreaching imbalance in bargaining leverage. Additionally, it is submitted that there might be instances when a mediator might have to intervene and declare suggestions to be unacceptable, though that might ordinarily seem to be outside the scope and powers of the mediator. This is in situations in which the proposed settlement is against the provisions of any law. An example which comes to mind readily in the Indian context is as regards the Minimum Wage Legislation enacted in India by different states. If the settlement which has been reached by the two parties violates the provisions of the statute, then even though the parties are agreeable to the solution, the mediator is bound to enter the mediation process and inform the parties about the statutory bar prohibition against such a settlement or agreement.

Further, I believe that the role of the mediator does include an obligation to infuse fairness into the mediation process, by, in some cases, actually supporting the weaker party to the mediation. I believe that though this goes against the opinion of authors like Kovach, it does not infringe the rules mentioned above. Specifically, the High Court rules only prevent a mediator from imposing a settlement on the parties and infact empower him to reduce misunderstandings promote the reaching of a settlement, which is possible only if there is some degree of parity, or in any event the perception by the parties of a certain degree of parity in the mediation process.

Further, it is submitted that this would be justified in light of the purpose to be served by the presence of a mediator as a third party to moderate the process. It may often happen that one of the parties might not have the same bargaining power, and indeed, its power may be significantly lower than that of the other party. If that is the case, it will be impossible for that party to develop trust and confidence in the process and will irreparably reduce that parties’ willingness to actively participate. It becomes necessary to level the playing field to not only to increase and facilitate the involvement of both parties, but also to increase commitment to a settlement, if it is reached.

The importance of this can be better understood if we examine the consequences if the playing field is not levelled. First, as mentioned earlier, one of the parties will have very little trust and confidence in the mediation process, if any. This will lead to reduced involvement and decreased willingness to make concessions, since he will view the process as exploitative. This in turn will reduce the possibility of reaching a settlement and if a settlement is reached, it will gravely impair the likelihood of the parties being committed to the results of the mediation. It is submitted that in light of the above, it is very important that a mediator intervene to level the playing field, if he perceives that the bargaining power of one of the parties is significantly lower, or if that party, for some reason, is weaker than the other.

An example of this might be in the case of a mediation between a worker and the management of the company, i.e. his employers. A single employee might, in the absence of a Union, or even in its presence, not have even a fraction of the bargaining power of the management. The workers livelihood may depend on the contract, but the dismissal of that individual might not affect the company at all. In this case, the worker might feel that the entire process is exploitative and even if he agrees to come for mediation, he might not at all be committed to the process and he will be unwilling to make concessions. Borrowing a term from negotiations, he might believe that the BATNA to his participation in the mediation, namely going to court to adjudicate his rights might be a much better option to mediating, since in a Court his legal rights will be considered as important as the rights of the company. If a party feels that the BATNA is much stronger than the mediation, it is not hard to imagine what will happen if he gets the slightest feeling that the process is not fair or impartial. Thus, in such cases, it is imperative that the mediator intervene and convince the individual that his rights will be secured through the mediation process.

Additionally, the fact that the mediator must not directly engage himself with an individual party cannot come in the way of counselling and allowing parties to give vent to the emotions. The reasons for this are essentially the reasons mentioned above. A party to the negotiation might have undergone emotional and psychological turmoil. Further, he might be unsure about the need or utility of the process. He might also have an irrational fear about the process, distinct from the differences in bargaining power. The mediator at this stage can and must enter the process by either counselling them, giving them additional information about the process to alleviate their fears, or by simply allowing the parties to vent their emotions.

Additionally, the mediator can also specially arrange private meetings with the parties, as long as the other party does not perceive the mediator to be biased. The mediator may use these special meetings to increase the trust that the parties have in the mediation process, and increase their willingness to participate. Private meetings can also be used as fora for the parties to vent their emotions.

3. ETHICS IN MEDIATION

An important consideration which the parties and the mediator have to keep in mind while entering the mediation process is that they must conform to accepted professional standards of conduct. Black’s law dictionary has defined the word “ethics” as of or relating to moral action, conduct, motive or characteristics conforming to professional standards of conduct. It is unclear where exactly to draw the line between other vital requirements like maintaining neutrality and confidentiality and other ethical norms which have to be kept in mind and followed by the mediator and the parties.

Some of the ethical standards which are universally believed to apply to the mediation process include the avoidance of fraud, impropriety and dishonesty. Not only must these basic ethical markers be scrupulously followed by the mediator, he must also ensure that the same are followed by the parties. For example, in a mediation where the mediator is called upon to answer the question as to the value of a building, the mediator may come to know in the course of the mediation that the prices as cited by one party have been doctored with the assistance of the contractor. It becomes the duty of the mediator to inform the other party of the fraud so that the settlement, if reached, does not reflect the result of improper and dishonest negotiations. There are also ethical considerations which have to be kept in mind by the mediator. For example, a mediator must not charge exorbitant fees and engage in advertising, and since he must not identify himself with the result but only with ensuring a fair, impartial and effective process, contingency fees have been prohibited in other countries where they may otherwise be charged by lawyers.

A question which has provoked the maximum debate on the ethical considerations involved in the mediation process is this- “Should the mediator must play the role of giving advice to parties to assist them individually in making the settlement fair and just or must he at all times play the role only of assisting the parties in arriving at a settlement by themselves? When is the intervention of a mediator to provide some assistance to one party ethical? Or must the principle of self-determination by the parties always govern the field? This question is similar to the earlier question asked during the discussion on neutrality on the part of the mediator.

It is believed by some that once a mediator intervenes, even if it is to merely give assistance to one party, his role changes and becomes similar to that of an advocate on the side of that party. Additionally, it is argued, that the trust and confidence in the mediation process, which depends to a large extent on the independence, impartiality and neutrality of the mediator might be affected if the mediator intervenes on the side of one of the parties. On the other hand, practical realities, especially in the Indian context cannot be ignored. It is submitted that this ethical consideration is adequately and appropriately answered in the earlier part, namely that when the mediator believes that one of the parties is in a weaker position and has significantly lesser bargaining power, he may and should intervene to assist one party and level the playing field to the extent possible. If appropriately carried out, it may actually promote the success of the mediation and not hinder it.

However, the mediator must at all times remember to separate people from the problem. The importance of the mediator intervening to level the playing field or at times offering assistance to one party must not be confused as meaning that the mediator must identify himself with the individuals involved in the mediation. It is clear that to do this would tremendously reduce the efficacy of the mediation process, and would derail it entirely if the other party felt the mediator was not neutral. The situation is different however if the mediator finds that the differences in the bargaining power are affecting the understanding of the problem itself by the parties. If the mediator finds that this happening, then as we mentioned earlier he must intervene to prevent the parties from ignoring their interests and instead rigidly focussing on their positions. In contradistinction to involving himself with the people and not with the problem, this will infact make the mediator engage more directly with the problem and reduce engagement with people and their positions.

III. Recalling everything that has been discussed

We have seen how the process involved in the mediation is greatly shaped by the role of the mediator, as well as the parties to the mediation. At every stage of the mediation process, we have seen how the role of the mediator is crucial in securing the success of the mediation. Thus, from the stage of convening the mediation itself, the mediator must act in a manner most conducive to building the trust and confidence of the parties in the mediation process.

This objective extends through every stage of the mediation process we outlined. For example, as we have seen, an effective restatement of the problem will help to resolve different competing perceptions of the problem and can go a long way towards preventing misunderstandings on that score. Further, if effectively done, it may also ensure greater commitment of the parties to the settlement reached as a result of the mediation process.

In addition to the various stages which we have examined, we have also seen how the the mediation procedure also depends to a great deal on the supporting principles, which have to be kept in mind by not only the mediator, but the parties as well. We have seen how the most essential among these, specifically the requirement of confidentiality, neutrality and ethics are as essential as building blocks of mediation success as any of the specific mediation stages. We have also seen how the objectives of mediation are supported if the mediator adopts a proactive role in counselling the parties, holding private meetings and supporting the weaker party if he feels that the difference in the bargaining power of the parties is hindering the reaching of a settlement.

On examination of the rules framed for mediation by the Delhi High Court, we have seen how it has incorporated some of the essential elements discussed above. We have also noted the differences in these specific rules in comparison to the principles and practices discussed. It is clear however that irrespective of the specific content of any code of rules, the success of mediation will depend on the honouring, in letter and spirit of the guiding principles at every stage of the mediation process by not only the mediator, but the parties as well.

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Companies and the Environment : A mess that’s only getting messier

Corporate governance to the lay observer conjures up images of a supranational entity to regulate and control the activities of corporate bodies, or some kind of special regulatory mechanism to clamp down on enterprises.

In reality, the phrase means something very different. It relates to the process of streamlining the internal management of a company, or the manner in which it is directed, guided and controlled. At a more abstract level, it is an attempt to ensure the representation of the various stakeholders in the management and governance of enterprises, each stakeholder seeking to preserve a specific interest.

One such interest which is today the subject of much debate is the environment. Increases in the size of corporations and the unimaginable use of natural resources by them has led to a shrill cry for regulating the impact of their activities on the environment. And the manner in which this was initially sought to be done was through environmental legislation. There are three enactments in India, which we shall briefly examine. These are the The Air (Prevention And Control Of Pollution) Act, 1981, the Water (Prevention And Control Of Pollution) Act, 1974 and the Environmental Protection Act, 1986.

As the names suggest, the first and the second were enacted for the purpose of protecting the air and water (atmosphere and hydrosphere) from the ill effects of human activity. For example, the Air Act, has a very wide definition of what an industrial plant is, including even trading activities in addition to industrial activity. Thus, virtually all kinds of commercial activity have been brought under the legislation.

Under the Air Act, the State Board has “to inspect, at all reasonable times, any control equipment, industrial plant or manufacturing process and to give, by order, such directions to such persons as it may consider necessary to take steps for the prevention, control or abatement of air pollution;” In addition, the Act also bans the establishment of any industrial plant in areas earmarked under the Act as pollution control areas. The Act therefore does two important things as far as the control of corporations is concerned.

Similar checks are found in the Water Act and The Environment Protection Act as well. The Environment Protection Act deserves to be specially cited because of the nature of the check it imposes on industrial activity. The Act sets standards across industries and enterprises, and places a stringent restriction on enterprises, prohibiting them from “discharging or emitting or permitting to be discharged or emitted any environmental pollutants in excess of such standards as may be prescribed.”

Once the standards have been laid down under the Act therefore, no industry or establishment can violate those standards. All Acts give the officers appointed by the Government power to enter and inspect the premises of polluting industries.

If implemented well, these enactments could have acted as a grid to allow industrial activity to be carried on smoothly and in an environmentally friendly manner.

If its the Government’s responsibility, why do the Courts seem to be doing all the work?

As is happening across India, a complete failure of governance has led to the Courts taking over the reins of environmental protection. In this part, I shall be exploring a few landmark decisions of the Supreme Court in which the Court has had to grapple with issues of corporate responsibility and liability for causing environmental harm. These are the decisions of the Supreme Court in Vellore Citizens Welfare Forum v. Union of India , M.C. Mehta v. Kamal Nath , and Indian Council for Enviro Legal Action v. Union of India .

Vellore Citizens Welfare Forum v. Union of India reached the Supreme Court through a writ petition filed under Art 32 of the Constitution, complaining of massive pollution and interference with water supply caused by the “enormous discharge of untreated effluent” from the tanneries and other industries in a part of Tamil Nadu. The decision was preceded by numerous instances of the Court chastising corporations and tanneries in the region for not putting in place pollution control and effluent treatment plants. On more than one previous occasion, the Court had threatened or ordered the closing down of corporations which were not complying with regulatory environmental norms.

The Court made reference to provisions of the Environment Act where there is not only a power conferred on the Central Government to check industrial activity, but also a duty cast it. Because the Government was consistently failing in its duty, the Court placed itself in the shoes of the Government.

In Indian Council for Enviro Legal Action v. Union of India , the writ petition was filed to deal with the non-implementation of a Central Government notification issued under Rule 5 (3) (d) of the Environmental Protection Rules. Here again, making use of the norms in the Act, the appropriate course of action for the Court would have been to direct the Government to perform its duty but the Court once again took the law into its own hands, literally.

In M.C. Mehta v. Kamal Nath, there had been an environmental violation by a company running a hotel and as a result, the course of a river had been diverted. Not only was there danger to the villages on the other side of the river from flooding, the move in itself had caused significant environmental harm.
The Court, for the first time in Indian history, slapped “exemplary damages” on the corporation.

How should the conflicting interests of Companies and environmental protection be reconciled?

First of all, the Government, which is the appropriate body, should learn to discharge its duty by itself and not abdicate it to the judiciary. The judiciary has many strengths, but speed and predictability are not among them. Judicial decisions in the recent past have been getting more and more strict, and uncertainty is a silent killer of enterprise.

Second, we need to also understand the situation of Companies. In India, with very high input and infrastructure costs, it is getting increasingly difficult to do business and compete against China and other emerging market producers of goods and providers of service. Even in our vaunted IT sector, countries like the Philippines and China are fast catching up.

So for the real, long term solution, we need to strengthen implementation of norms laid down in legislation and also relentlessly work towards more effective internal governance of enterprises.

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