INTRODUCTION

The the world is witnessing an unprecedented pandemic situation and even in the near future, the conditions are far from being normal. The state of affairs is appalling since the only steps to curb COVID19’s expansion so far are social distancing and lockout. In India, the administration of justice is already burdened with pending cases and has a background of delaying its procedure and the coronavirus has made the situation even worse. To ease the pressure on the courts, an improvised and efficient solution is needed and the answer can only be Online Dispute Resolution.

Online Dispute Resolution (ODR) is an umbrella term that describes dispute resolution processes that are assisted by the use of Information Technology.[1] Online dispute resolution (ODR) is in its infancy stage in India and is gaining popularity every day. E-commerce and E-governance gained formal and legal recognition with the enactment of the Information Technology Act, 2000.

This article covers the meaning of ODR, the outlook of various nations towards it, why there is need of this new phenomenon and its use in Consumer Redressal.

MEANING OF ONLINE DISPUTE RESOLUTION

Online dispute resolution or ODR is a method of resolving conflicts outside the judiciary, incorporating technology with Alternate dispute resolution methods. Many of us have participated in some form of ODR, whether through e-mail contact with a tribunal or through the use of online disclosure channels to manage disclosure. The resolution of disputes may be done with the help of Information and Communication Technology (ICT). It is the new counterpart of ADR and ICT. When the process is conducted entirely online, it is referred to as ODR, which means performing most of the dispute resolution procedure online, including initial filing, evidence-based processes, and oral hearings where necessary, online discussions, and even binding settlement rendering. ODR is the first step towards virtual dispute resolution. Online dispute resolution in India is a mechanism that strengthens the simplicity and advantages of alternative dispute resolution in India by requiring the parties to resolve the dispute by just sitting at home.

OUTLOOK OF VARIOUS NATIONS

Various courts have established or are looking forward to establish the online court system. On 18 August 2017, China established its first cyber court specializing and dealing with internet-related lawsuits in Hangzhou’s e-commerce hub, following an increase in the number of online disputes. Later, on 9 August and 28 September 2018, two new Cyberspace Courts in Beijing and Guangzhou were opened, raising the total number of Cyberspace Courts to 3. It’s high time now that India should also draw inspiration from China and establish cyber courts for rapid and cost-efficient adjudication of matters.

UNCTAD set up a conference on Online Dispute Resolution to address transnational consumer issues. The paper on possible future work on online dispute resolution in cross-border e-commerce transactions was presented at April 2010.[2]

The European Commission offers the European Online Dispute Resolution (ODR) forum to render online shopping easier and fairer by accessing the standard dispute resolution resources.[3]

India has seen significant growth in the volume of online transactions over the past half-decade, therefore, it has now become convenient to accept ODR as an efficient dispute resolution mechanism and thus implement a rapid and reasonable dispute resolution system. NITI Aayog, in collaboration with Agami and Omidyar Network India, brought key stakeholders together to facilitate electronic dispute resolution (ODR) in India.[4] A seminar meeting was conducted by NITI Ayog where several eminent senior judges of the Supreme Court, sectaries of government, legal experts, etc. took part and also presented their views.

Justice DY Chandrachud, Judge, Supreme Court of India spoke on Technology and access to Justice–[5]

We need a fundamental change of mindset, a resolution of disputes that should not be seen as a court where justice is administered but as a service that is being used. ODR has various functions to perform:

ü  Dispute settlement: Settlement of disputes that approach the courts via a free, effective and effective procedure.

ü  Containment of disputes: Those matters that do not require judicial resolution should not at all reach the courts.

ü  Dispute avoidance: Facilitate and ensure a problem does not reach the stage of a dispute through ODR. This will ensure that an issue will not become a dispute.

The ‘Digital India’ Programme, approved by the Hon’ble Prime Minister Narendra Modi in August 2014 aims to transform the country into a digitally empowered society and knowledge economy. The program aims to provide high-speed internet access to all up to Grama Panchayat levels. It also aims to empower citizens digitally.[6]

The First International Forum on Online Courts was also held in London on 3 and 4 December, 2018, where various countries participated like England, Singapore, United States, Japan, India, etc. Dr. Sadanand Date, Joint Secretary, eCourts, Justice Department, Government of India, talked about the ongoing Indian judiciary and ICT initiatives to allow judicial systems to be technically effective. He found out that the pendency of cases in India is one of the key issues that need to be tackled.[7] India started the eCourts Integrated Mission Mode Project in 2016 as one of the National e-Governance projects being carried out in the country’s District and Subordinate Courts. The effort aims at delivering approved facilities to litigants, lawyers and the judiciary by uniform district and appellate court technology, as well as improving the Supreme Court’s ICT infrastructure.[8]

Recently, the Supreme Court of India in Meters and Instruments Private Limited and Ors. v. Kanchan Mehta, a suo moto petition titled ‘Expeditious case trial under Section 138 of N. I. Act, 1881’, observed that “it is necessary to consider the use of modern technology not only for paperless courts but also to reduce the overcrowding of courts. Categories of lawsuits that may be conducted ‘online’ partly or fully, without the actual involvement of the parties, where strongly disputed issues are not needed to be adjudicated.”[9] (Para 17)

NEED OF ONLINE DISPUTE RESOLUTION

1.      Our judiciary is already over-burdened with a number of cases. Right now, India has a total of 33,189,635 cases pending at the District level[10] and 4,142,236 cases pending in the High Courts.[11] Delay in the administration of justice and high litigation costs are also the stumbling blocks.

2.      Arbitration was originally created as an alternative to going to court for various types of disputes but over time this method has become complex and expensive. ODR offers many companies a faster, more transparent and more accessible option for resolving disputes online, especially those with high volume and low-value cases.[12]

3.      Data storage problem has been solved by an ODR system which is one of the most common concerns faced in Indian courts, whereas in ODR data storage is secured and enables transferring information as and when necessary without any difficulties.

4.      ODR which was at an infancy phase has now acquired more prominence because of COVID’19.

5.      ODR eliminates the need for traveling and reduces costs considerably. It provides for improved time and cost management, greater procedural efficiency and more innovative approaches.

6.      ODR can be accessed wherever the internet is available, according to the convenience and necessity of the parties.

7.      Other factors that make online mediation an effective tool to protect consumers include confidentiality, flexibility, economization and the removal of legal problems.

CHALLENGES FACED BY ODR

1.      There is no sufficient recognition provided to it by Legislature or Judiciary.

2.      There is lack of awareness of ODR amongst the public.

3.      There is no sufficient technology system to support ODR.

CONSUMER REDRESSAL MECHANISM

Consumers play a vital role in supporting India’s economy. Everyone is a consumer because each and every one of us is engaged in some form of exchange of goods or services through money as a medium. Gradually, there has been an increase in all kinds of disputes between distributors, distributors and sellers, buyers and sellers, etc. Therefore, legislation governing the friction between buyers and sellers was required. The Consumer Protection Act identifies the right to Redressal as a key consumer right based on the establishment of the three-tier redress system.[13]

ü  District Forum established by the State Government in each district of the state by notification.

ü  State Commission established by the State Government in each district of the state by notification.

ü  National Commission established by the Central Government in each district of the state by notification.

The Preamble to the Consumer Protection Act, 1986 notes that the act was passed in order to safeguard the customer’s interest against exploitation and to put the customer grievances to the proper consumer court in order to meet the purpose of the Act and to do justice to the customers.

The Supreme Court in M/s Afcons Infra Ltd. v. M/s Cherian Varkey Construction Company Ltd. and Ors. it was observed that “when identifying matters appropriate for Alternative Dispute Resolution (ADR), it was maintained that all customer conflicts, including conflicts where a trader/ supplier/ service provider is keen on protecting its business/ professional image and reputation or product popularity, should be directed to ADR.”[14] (Para 19)

From its founding, eBay has been at the forefront of designing and providing tools to help ODR systems. Its Dispute Resolution Center is one of the world’s largest ODR programs, and has been called the most popular example of ODR.[15]

Thus, in the territorial-based grievance redress mechanisms, the non-territorial nature of electronic commerce throws up new challenges to consumer protection.

ONLINE PLATFORMS

1.      In 2018, the Indian Parliament enacted the ‘Pre-Institution Mediation and Settlement Rules’ where under section 21A(2) of the Commercial Courts Act, made it necessary for commercial disputes above INR 3,00,000 rupees to mediate until proceedings are brought until the judge.

2.      His Excellency President of India Shri Ram Nath Kovind and Honorable Chief Justice of India Shri S.A. Bobde recently stressed the adoption of mediation as an instrument for the resolution of disputes and the integration of artificial intelligence in judicial proceedings.[16]

3.      In consumer disputes also mediation is proposed as an alternative dispute resolution. Chapter V of the Consumer Protection Act, 2019 provides for the establishment, at district, state and national level, of consumer mediation cells for the aim of enabling court-annexed mediation.[17]

4.      The Centre of Excellence on Alternative dispute resolution, called “CADR,” is a website based entity facilitating ODR services. The Center is founded to undertake and facilitate research and to produce and disseminate expertise in the field of alternative dispute resolution methods.

5.      SAMA is a completely new way of resolving disputes between businesses and customers, employers and employees, landlords and tenants, professionals and customers or anyone else, all online, quickly and cost-effectively. Using sophisticated technology and a network of skilled professionals, SAMA ensures that your dispute will end with the end of the week.[18]

6.      AGAMI is bringing forward ideas that serve justice. AGAMI does so by identifying ideas, reframing problems, and catalyzing collaborative action. They do that with an abundance and transparency mentality.

CONCLUSION

Considering the current state of the judicial system in India, it can be concluded that there exists an utmost necessity to find alternatives to traditional litigation. As “justice delayed is justice denied” as propounded by William Ewart Gladstone. A radical shift in mentality has to be undertaken by people to distinguish the notion of justice from the place named, court.  The future will be a hybrid style, incorporating the best of the real world with the electronic world. People should reimagine the whole process of delivering justice to operate within the hybrid system. Promoting a dispute settlement mechanism that is allowed by technology would not only benefit the litigants but will ease the pressure and increase the performance of the Indian legal system. Therefore, the sooner ODR is adopted, the better it will be for the nation in general, and the justice seeker in particular.[19]