The pendency of cases in the Indian judicial system, from lower courts to appellate courts, has become a hurdle to the path of accessing justice for the aggrieved party. The legal maxim “Justice Delayed is Justice Denied” is a basic administrative principle of the judicial system which enables society to progress towards a more civilised one.[1] According to PRS Legislative Research, India records a total of 56.71 lakhs cases in Supreme Court and High Courts till the year 2021[2]. There are various reasons for this delay in access to justice such as long duration in the listing of cases, inadequacy of number of judges, cost ineffectiveness, rapid social and economic changes, lengthy and tiresome civil and criminal procedures, etc.[3] The said reasons gave rise to the jurisprudence of alternative dispute resolution (ADR) as a swifter redressal forum for commercial disputes.
Online Dispute Resolution (ODR)-Access to justice
The ADR mechanism was considered as the alternative for the judicial system, however, during the pandemic the need to collaborate technology and the internet with the ADR mechanism increased. This collaboration gave birth to Online Dispute Resolution (ODR). ODR had existed for a very long time, but it touched its peak during Covid. Moreover, ADR somehow failed to meet the intention of its formulation and to take off at a larger scale. The ecosystem of dispute resolution has changed after the adaption of a new justice-delivering system as ODR or E-ADR.[4]
Online Dispute Resolution provides numerous benefits revolving from party orientation to societal orientation. ODR provides parties with an opportunity to settle their disputes virtually while sitting at any place around the world, in an amicable and faster manner. The very benefit of ODR is to ensure confidentiality, fairness and transparency during the proceedings because it works on the principle of equity and conscience,[5] at a very minimal cost. Fairness and transparency lead to justice but in the traditional dispute resolution mechanism, the dominance of parties affects the due process of law, however, ODR surpassed these negative flaws and provides a fair and transparent platform. In the traditional dispute settlement mechanism, trust and security were the initial points of discussion but ODR protects the confidentiality and privacy of every party involved in the same.
Limitations in ODR
Despite many advantages, there are still some challenges for ODR in India and one of the most significant challenges is to ensure confidentiality and maintain fairness and impartiality. There are minimal regulations for ODR in India, and without proper safeguards in place, there is a risk that the more powerful party could use technology to their advantage in the proceeding by using their dominance and affecting the weaker party. Moreover, there are still concerns related to the quality and reliability of ODR platforms and the increased potential for fraud or other abuses.
To participate in an online dispute resolution process, all parties would need to have access to the necessary technologies and without sufficient technology, parties, might not be able to engage completely or would be at a disadvantage. Technically, in an ODR process, parties who are not tech-savvy may be at a disadvantage[6]. Fortunately, in recent times, there are an increased number of platforms in the ODR market at the domestic level as well as the international level which are tech-savvy and party-oriented that are solving the above-related issues.
Judicial and legislative system related to ODR has seen numerous developments recently. The report of the high-level committee on the Deeping of Digital Payments was the first formal step for the development of ODR in India. Since then, continuous amendments, specific to the Information Technology (IT) Act, of 2000, where electronic records and signatures are recognized by sections 4 and 5 of the Act, besides these Hon’ble Supreme Court in Shakti Bhog Foods Ltd v. Kola Shipping Ltd. held that online arbitration agreements are lawful as fulfilling the essentials of a complaint under sections 4 and 5 of the IT Act., new policy formulations, increase in the role of advanced technology for robust ODR such as data-encryption, spyware and cookies helps parties to maintain confidentiality and privacy. the risk of the above-mentioned flaws is now minimal. Information security, data security, and system security are some of the common flaws that are now addressed by the use of advanced technology, overcoming these flaws helps access justice, and increases fairness and efficiency in dispute resolution.
Conclusion
Increase in the rate of the backlog of cases, it was difficult to seek justice due to many reasons, but ODR is trying to correct these issues through various developments in this field. Issues related to confidentiality, transparency, fairness, and biases are now on the verge to be sought through various ODR platforms. From party orientation to societal orientation, ODR has offered several advantages. It has offered people the chance to rapidly and amicably settle their problems while maintaining their privacy and being economical.
Fairness and transparency, which are the pillars of equity and conscience, have been maintained by ODR throughout the entire process. In ODR, the role of technology has grown, which has solved many of the shortcomings of traditional dispute resolution processes, such as party domination that interferes with the due process of law. ODR in India still faces some difficulties and restrictions, such as maintaining fairness and impartiality and protecting confidentiality, as well as issues with the quality and dependability of ODR platforms and making sure that all parties have access to suitable technology.
Despite these drawbacks, ODR offers a quick and efficient method of resolving disputes that may complement traditional dispute resolution procedures. It has the ability to transform the legal system and improve everyone's access to justice. To ensure fairness, objectivity, and privacy, appropriate safeguards and laws must be put in place. It is also essential to make sure that all parties have access to the required technologies. Although there are requirements, ODR has shown significant potential in expanding access to justice, fairness, and efficiency in the resolution of disputes.
[1]Gaurav Kumar, An analysis on pendency of cases in India https://probono-india.in/research-paper-detail.php?id=764 (Last visited:19.04.2023) [2]PRS India Research, https://prsindia.org/policy/vital-stats/pendency-and-vacancies-in-the-judiciary (Last visited:19.04.2023). [3] Pratik Dutta & Suyash Rai, How to Start Resolving the Indian Judiciary Long-Runnig case Backlog Carnegie Endowement for International Peace, https://carnegieendowment.org/2021/09/09/how-to-start-resolving-indian-judiciary-s-long-running-case-backlog-pub-85296 (Last visited:19.04.2023). [4]Vidhi Legal, https://vidhilegalpolicy.in/research/the-future-of-dispute-resolution-in-india/ (Last visited:20.04.2023) [5]Noam Ebner & John Zeleznikow, Fairness, Trust and Security in Online Dispute Resolution, Volume 36 issue 2, Journal of Public Law & Policy 144, 154 (2015 https://digitalcommons.hamline.edu/cgi/viewcontent.cgi?article=1020&context=jplp [6] White Code Via Mediation & Arbitration https://viamediationcentre.org/readnews/OTE1/Advantages-and-Disadvantages-Of-ODR (Last visited:20.04.2023).
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