By Suresh Kumar, Assistant Professor, Himcapes School of Law, UNA (H.P.)
Discourage litigation persuade your neighbour to compromise whenever you can. Point out to them how the normal winner is often a loser in fee, expenses, cost and time. — Abraham Lincoln
The word ‘conciliation’ is derived from the Latin word ‘conciliate’, which means to bring together, make friendly or to win over, to soothe the anger of, make friendly, to overcome the differences or hostility of, to pacify, to mollify, to gain esteem, goodwill or favour of, to make compatible or reconcile.
According to Webster Encyclopaedia Unabridged Dictionary of English Language, the meaning of phrase “conciliate” is as follows:
- To win over; soothe the anger; to make friendly; placate.
- To gain (regard, favour, goodwill, esteem etc.) by friendly acts.
- To reconcile; make consistent.
Conciliation is by no means alien to Indian society for the resolution of disputes. Indian culture has been based on peace, with respect and justice for all. Conciliation is as old as the hills. While differences and disputes are inevitable among human beings and have been there since time immemorial, along with there has been a process of resolution of disputes in the form of reconciliation. While the shape and form of conciliation process may have changed from time to time or may have varied with individuals or situations the conception is as ancient as our Vedas.
There is a long-standing tradition for settlement of disputes by way of conciliation and mediation since ancient times. Conciliation is as old as Indian history. In Mahabharata when both parties had determined to resolve the conflict in the battlefield, conciliation efforts were made by Lord Krishna to resolve the conflict and he went to Kauravas to avoid the war. In Manu Smriti, Manu has also emphasised on the importance of conciliation. Manu has described four methods of dispute settlement for the ruler i.e. Sama (conciliation), Dana (winning over by gifts or presents), Bedha (creating division or splits) and War. According to Manu the ruler should prefer the first method, that is conciliation of the above four methods. The King should resort to the other methods only if the conciliation method fails.
Legislative Provisions and Conciliation in India
The legislative history of conciliation in India is not very old. Although the concept of conciliation was there in the Indian culture from very ancient times but it got the legal sanctity at a very later stage. It was in the British period that some provisions regarding conciliation were laid down in some Acts. Conciliation may trace its lineage to the Code of Civil Procedure, 1908, where it gets a passing reference only and after that in the Trade Disputes Act, 1927. But, after independence conciliation has been inscribed in Industrial Disputes Act, 1947, the Hindu Marriage Act, 1955 also. However, conciliation is accorded pride of place by sharing honour as equal partner in the title and being accorded an entire part in the Arbitration and Conciliation Act, 1996.
Legal provisions regarding conciliation under the Indian legal system can be discussed as under:
- Civil Procedure Code, 1908 (Section 89)
- Industrial Disputes Act, 1947 (Sections 3, 4 and 5)
- Special Marriage Act, 1954 (Section 34)
- Hindu Marriage Act, 1955 (Section 23)
- The Family Courts Act, 1984 (Section 9)
- The Legal Services Authorities Act, 1987 (Chapter VI-A)
- Arbitration and Conciliation Act, 1996 (Sections 61–81)
Conciliation and the Civil Procedure Code, 1908
Parliament inserted Section 89 (as also Order 10 Rules 1-A, 1-B and 1-C) in the Code of Civil Procedure, 1908 to ensure that alternative dispute resolution was resorted to before the trial of a suit. The provisions of this section are based on the recommendations made by the Law Commission of India and the Malimath Committee.
Settlement of Disputes Outside Court
The Civil Procedure Code, 1908 casts a duty on the courts. It provides that when a case is brought before the court for adjudication and the court is of the opinion that there are elements of settlement in that particular case which may be acceptable to the disputing parties. The court in such a case shall formulate the terms of settlement and give them for the observation of the parties to the dispute. After receiving the observation of the parties, the court may reformulate the terms of the settlement. After the court has formulated the terms of a possible settlement, it shall refer the matter to arbitration, conciliation, judicial settlement including through Lok Adalat or for mediation.
Order 10 Rule 1-A, 1-B and 1-C: Civil Procedure Code, 1908
These Rules were inserted in the Civil Procedure Code, 1908 by the Code of Civil Procedure (Amendment) Act, 1999. The newly added Rule 1-A enables the court to explore the possibility of alternative methods of dispute resolution as provided in Section 89 of the Code, which are conciliation, arbitration, judicial settlement or settlement through Lok Adalat. The court can direct the parties to opt any of the above modes under Order 10 Rule 1-A. Order 10 Rule 1-B provides for the appearance of the parties before the conciliation forum as directed by the court under Order 10 Rule 1-A. Order 10 Rule 1-C provides that where the presiding officer of conciliation forum or authority is satisfied that it would not be proper in the interest of justice to proceed with the matter further, then he shall refer the matter again to the court and direct the parties to appear before the court on the date fixed by the court.
Suits Relating to Matters Concerning the Family
The Civil Procedure Code, 1908 provides some special provisions for the resolution of family disputes. Order 32-A which was inserted in the Civil Procedure Code, 1908 by the Code of Civil Procedure (Amendment) Act, 1976 makes provisions in this regard.
Duty of the Court to Make Efforts for Settlement
Under Order 32-A a duty is cast upon the court to make an endeavour at first instance, where the court thinks it is possible to make a compromise with the nature and circumstances of the case and to every case and proceedings to which this order applies, to assist the parties in arriving at a settlement in respect of the subject matter of the suit. If, during the trial of any suit or proceedings at any stage it appears to the court that there is a reasonable possibility of a settlement between the parties, the court may at its discretion adjourn the proceedings for such period as it thinks fit so as to enable attempts to be made to effect conciliation between the parties.
Assistance of Welfare Expert
The Act also makes provisions for the assistance of a welfare expert. The court can secure the services of such person as the court may think. For the purpose of the appointment of such person as a welfare expert, it is immaterial that such person is related to the parties or not. While the court is taking the assistance of a person to effect conciliation between the parties, it should prefer to appoint a woman as expert where it is possible. The court can also engage a person who is professional in the matter of promoting the welfare of the family. The court may avail the service of such person for the purpose of assisting the court in discharging the functions imposed by Order 32 Rule 3.
Conciliation and the Industrial Disputes Act, 1947
The Industrial Disputes Act, 1947 provides for different methods for the settlement of industrial dispute and the course of conciliation proceedings is the most preferred one. For the purpose of settlement of the industrial disputes through conciliation, the Industrial Disputes Act, 1947 provides for the constitution of the following authorities:
- Works Committee (Section 3)
- Conciliation Officer (Section 4)
- Board of Conciliation (Section 5)
Works Committee
Works Committee is constituted by the employer who employs or has employed hundred or more than hundred workmen on any day of the preceding twelve months. The works committee consists of equal number of the representatives of both the employers and the workmen engaged in the industrial establishment. The representative of the workmen is to be selected amongst the workmen in consultation with the trade union, if there is a trade union in the industry.
Conciliation Officer
The conciliation officer is appointed by the appropriate Government by notification in the official gazette. The appointment of the conciliation officer may be made either permanently or for a limited period. The number of conciliation officers to be appointed is also decided by the appropriate Government. A conciliation officer may be appointed for a specific area or for a specified industry in a specified area or for one or more specified industries.
Board of Conciliation
The Board of Conciliation is constituted by the appropriate Government to promote the settlement of the industrial disputes by way of conciliation. The conciliation board consists of a chairman or two or four other members as the appropriate Government may think fit. The chairman is an independent person and the other two or four members are appointed to represent the parties to the disputes. Each party appoints equal number of persons to represent themselves.
Binding Nature of Settlement Through Conciliation
A settlement arrived at in the course of conciliation proceedings under the Industrial Disputes Act, 1947 is binding on the following category of persons:
- All the parties to the industrial disputes;
- All other parties summoned to appear as parties to the disputes, unless the board, arbitrator, labour court, tribunal or national tribunal, as the case may be, records the opinion that they were so summoned without proper cause.
- Where a party referred to in clause (a) or clause (b) is an employer, his heirs, successors or assignees in respect of the establishment to which the dispute relates;
- Where a party referred to in clause (a) or clause (b) is composed of workmen, all persons who were employed in the establishment or part of establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment.
Conciliation and the Special Marriage Act, 1954
The Special Marriage Act, 1954 casts a duty upon the courts to make efforts for reconciliation before a decree is awarded by the court under this Act. The Act also lays down the procedure to be followed by the court while the court makes the reconciliation efforts.
Reconciliation in Family Disputes
The Special Marriage Act, 1954 casts a duty on the court to make every endeavour to bring about reconciliation between the parties. When the court is of the opinion that reconciliation is possible between the parties keeping in view the nature and circumstances of the case, the court shall try to strive reconciliation between the parties. The Act provides that before granting any relief, which is recognised under this Act, the court should try to persuade the parties for reconciliation. This duty is a consistent duty of the court to make efforts for reconciliation between the parties. It means that the court should not only try to persuade the parties for reconciliation at the time when the petition is brought before the court but the court can make such efforts at any stage of the proceedings, where the court finds it possible so to make in the nature and circumstances of the case.
Procedure for Conducting Reconciliation Proceeding
The Act also lays down the procedure for the purpose of bringing about reconciliation between the parties. The Act provides that if the parties so desire and the court thinks it proper so to do, the court may adjourn the proceedings for a reasonable period of time, not exceeding fifteen days. After the adjournment of the proceedings, the court shall refer the matter to any person named by the parties in this behalf and if the parties fail to name any person then the court can nominate any person on behalf of the parties.
Conciliation and the Hindu Marriage Act, 1955
The Hindu Marriage Act, 1955 contains some vital provisions of considerable importance relating to conciliation in family disputes. Section 23 of the Hindu Marriage Act, 1955 provides for the court’s duty for reconciliation.
Court’s Duty for Reconciliation
The legislator has imposed a duty on the courts under Section 23(2) of the Hindu Marriage Act, 1955. This section provides that before granting any relief under this Act, courts must first make efforts to bring about reconciliation between the husband and the wife. If the courts order a party to file an objection without first trying for reconciliation as it should, the order would be erroneous. The court has to go for reconciliation irrespective of the result, howsoever serious or estranged the relations of the husband and wife may be. When the efforts of the courts at reconciliation fail it should enter into the merits of the case within an open mind and without the slightest prejudice against either party for the stance taken by him or her during the court’s efforts for reconciliation. The Hindu Marriage Act, 1955 authorizes the courts to take the assistance of a third person for effective reconciliation between the parties.
Conciliation and the Family Courts Act, 1984
The Family Courts Act, 1984 provides for the amicable settlement of family disputes through conciliation in family disputes. Under the Family Courts Act, 1984, a duty is cast upon the Family Courts to make efforts for the amicable settlement of disputes by way of conciliation. The Family Courts Act, 1984 provides that in every suit or proceeding under this Act, when a case is brought before a family court, and the family court is of the view that in that case a settlement is possible keeping in view the nature and circumstances of the case, the court shall in such case try to make an endeavour to assist the parties in arriving at a settlement in respect of the dispute. For the purpose of making the settlement, the court can adjourn the proceedings for such period as it may deem fit.
Conciliation and the Legal Services Authorities Act, 1987
The primary aim of enacting the Legal Services Authorities Act, 1987 was to organise Lok Adalat to ensure that justice to the poor section of the society is made accessible. But, the Act was amended in the year 2002 and by this amendment a new chapter under the head “Pre-Litigation Conciliation and Settlement” was inserted in the Legal Services Authorities Act, 1987, which provides for the establishment of the Permanent Lok Adalats and to ensure settlement through conciliation.
Establishment of Permanent Lok Adalats
The Legal Services Authorities Act, 1987 directs the Central authority and the State authority to establish Permanent Lok Adalats. The Central or the State authorities shall also determine the places at which the Permanent Lok Adalats shall be established. The Permanent Lok Adalats so established shall be notified by the Central or the State authority as the case may be. The area and the jurisdiction of such Permanent Lok Adalats shall also be specified by the Central or the State authority as the case may be.
Cognizance of Cases by Permanent Lok Adalat
The Act lays down the area on which the Permanent Lok Adalat shall have the jurisdiction to deal with the cases. It provides that any party to a dispute may, before the dispute is brought before any court, make an application to the Permanent Lok Adalat for the settlement of dispute. However, the area of the Permanent Lok Adalat is limited by adding three provisos. The first proviso provides that the Permanent Lok Adalat shall not have jurisdiction in respect of the matter which is of a criminal nature and such offence is not compoundable under any law. The second proviso lays down that the Permanent Lok Adalat shall also not have the jurisdiction to deal with the cases where the value of the property in dispute exceeds ten lakh rupees. The third proviso lays down that the Central Government may by notification in the official gazette increase the limit of ten lakh rupees specified in the second proviso after consultation with the Central authority.
Conciliation by the Permanent Lok Adalat
After all the statements, additional statements and reply, if any, have been filed to the satisfaction of the Permanent Lok Adalat, it shall conduct conciliation proceedings between the parties who have made the application for the settlement of their dispute, in such manner as it thinks appropriate taking into account the circumstances of the dispute. During the conciliation proceedings when a Permanent Lok Adalat is of the opinion that there exist elements of settlement in such proceedings which may be acceptable to the parties, it may formulate the terms of a possible settlement of the dispute and give to the parties to the dispute for their observations and in case the parties reach an agreement on the settlement of the dispute, they shall sign the settlement agreement and the Permanent Lok Adalat shall pass an award in terms thereof and furnish a copy of the same to each of the parties concerned. Every award made by the Permanent Lok Adalat under this Act shall be deemed to be a decree of a civil court and shall be binding on all parties and all the persons claiming under them.
Conciliation and the Arbitration and Conciliation Act, 1996
Before the enactment of the Arbitration and Conciliation Act, 1996, there was no separate law on conciliation. It was for the first time in this Act that the law relating to conciliation was codified. In the present Act, conciliation has been assigned an entire chapter. Chapter II of the Arbitration and Conciliation Act, 1996 is devoted to conciliation; it consists of 20 sections from Section 61–81.
Commencement of Conciliation Proceedings
The proceedings of conciliation can be initiated by any party, by sending an invitation in writing to the other party to conciliate a dispute. The conciliation proceedings shall commence only when the other party to the dispute accepts in writing the invitation of the initiating party. While invitation to conciliate and its acceptance amounts to an agreement between the parties to conciliate the identified dispute, the other party can walk out of the agreement at any stage of the conciliation proceedings. The thread of voluntariness runs through the entire process of conciliation.
Appointment of Conciliators
The appointment of the conciliators is also made by the disputing parties. In conciliation proceedings with one conciliator, the parties may agree on the name of sole conciliator. In conciliation proceedings with two conciliators, each party is required to appoint one conciliator and the third conciliator is to be appointed by both the parties and he is to act as the presiding officer. The Act also makes the provisions for the alternative modes of appointment of conciliators. Instead of appointing the conciliator themselves, the parties can entrust this task to an institution or to a third person.
Procedure Followed by the Conciliator
After his appointment, the conciliator may request each party to submit to him a brief written statement indicating the general nature of dispute and the point at issue. Each party is also required to supply the copies of their statements to the other party. Additional detailed statements supported by any documents or other evidence which a party may deem necessary in respect of one’s respective cases may also be called for. The Conciliator is not bound by the Code of Civil Procedure, 1908 or Indian Evidence Act, 1872. The obvious purpose of this provision is to liberate the institution of conciliation from the clutches of procedural laws. In performing his function, the conciliator shall be guided by the principle of objectivity, fairness and justice.
As and when it appears to the conciliator that an amicable settlement of the dispute is possible, he may formulate the terms of possible settlement and submit them for the observation of the parties. After the parties observe the terms formulated by the conciliator, the terms may also be reformulated in the light of the observations that the conciliator receives. If the parties accept the terms of the settlement, they can themselves draw up and sign the settlement agreement. If the parties request the conciliator to draw or assist in drawing up the settlement, the conciliator may assist the parties in drawing up the settlement. The agreement becomes final and binding on the parties and so also persons claiming under them on signing by both the parties. The conciliator shall authenticate the settled agreement and furnish a copy to each party.
Termination of Conciliation Proceedings
The Act provides for the termination of conciliation proceedings in the following four ways:
- By the signing of the settlement agreement, on the date of the agreement; or
- By a written declaration of the conciliator to the effect that further efforts at conciliation are no longer justified, on the date of such declaration; or
- By a written declaration of both the parties addressed to the conciliator indicating that the conciliation proceedings are terminated, on the date of such declaration; or
- By a written declaration of a party to the other party and the conciliator, if appointed, to the effect that the conciliation proceedings are terminated, on the date of such declaration.
Conclusion
In the Indian legislative history, conciliation gets the legal sanctity for the first time in the Civil Procedure Code, 1908. In this Act provisions were made for the first time for the resolution of disputes by arbitration, conciliation, judicial settlement and mediation. The Industrial Disputes Act was passed in 1947. This Act specifically makes provisions for the resolution of industrial disputes by conciliation. After India got independence, the Government of India passed a number of legislations, in which provisions relating to conciliation were made. Until 1996 the settlement through conciliation was regulated by the above mentioned Acts; there was no separate law on conciliation. But with coming into force of the Arbitration and Conciliation Act, 1996 we have a separate legislation on conciliation. The Arbitration and Conciliation Act, 1996 makes and defines the law relating to conciliation.
This Act provides for the settlement of every dispute by conciliation except those which cannot be submitted to conciliation by virtue of any other law for the time being in force. The most important provision of the law of conciliation is that the settlement agreement has been given the same status and effect as if it is an arbitral award. The settlement can be enforced in the court in the same manner as if it were a decree of the court.
At present conciliation has emerged as a better mode to resolve the disputes between the parties instead of the ordinary litigation process of the courts. The court process of dispute settlement is expensive and time consuming while in conciliation, if the parties are willing, disputes can be settled with nominal costs and that too in a very short time. Keeping in view the pendency of cases in our judiciary from the bottom to top, conciliation certainly has the capacity to decrease this workload from the judiciary. Finally, it is suggested that in every dispute efforts should be made to settle the dispute by conciliation and only those matters should be referred to courts where no element of conciliation exists.