In Salem Advocate Bar Association v. Union of India 2005, the Hon'ble Supreme Court of India delivered its landmark judgement, which became historically significant in reshaping Indian civil procedural legislation. The analysis stems from the constitutional review of amendments enforced to the Code of Civil Procedure, 1908[1] (CPC) through the Code of Civil Procedure (Amendment) Acts of 1999 and 2002. Section 89 under the CPC received major amendments that established new provisions to quicken civil trials while cutting down procedural time periods.

Section 89[2] amendments drew most objections due to their effect on litigant rights and practical implementation challenges. Though, in its previous ruling in Salem Advocate Bar Association v. Union of India 2003[3] the Supreme Court confirmed the constitutional validity of amendments but it established a committee to examine the challenges at hand.
This 2005 judgment appeared as a continuation of the previous decision of 2003 where the court evaluated the Committee's report and established operating guidelines for amended CPC provisions. It reaffirmed the need for ADR and clarified essential interpretations of Section 89 as well.

Case Citation: AIR 2005 SUPREME COURT 3353
Petitioner: Salem Advocate Bar Association, Tamil Nadu
Respondent: Union Of India
Date of Judgment: 02/08/2005
Bench: Y.K.Sabharwal, D.M.Dharmadikhari & Tarun Chatterjee

Statement of Facts

1. The Parliament passed the Code of Civil Procedure (Amendment) Acts of 1999 and 2002 to minimize civil litigation delays and enhance judicial productivity. The procedural reforms introduced compulsory settlement mechanisms while adding rules on costs, inspection protocols, and deadlines for trial stage.
    
2. Representing numerous lawyers, The Salem Advocate Bar Association, pursuant to Article 32^[4] of the Constitution filed a writ petition against various provisions brought through the Code of Civil Procedure (Amendment) Acts of 1999 and 2002 that challenged their constitutional validity.
    
3. During the Court's initial handling of this case in 2003, it upheld the constitutional aspects of these modifications and highlighted that some provisions, especially Section 89 needed further clarification and proper executive structure for implementation.
    
4. Consequently, the court appointed a committee under Justice M. Jagannadha Rao^[5], a former judge of the Supreme Court and the Chairman of Law Commission of India, to study the operational aspects of modified laws and recommend standard rules for execution.
    
5. The report came out in three parts:
   1. Consideration of grievances
   2. Draft Rules for ADR & Mediation
   3. Case management conferences
       
6. The validity of the amendments and reports underwent judicial scrutiny in the Supreme Court during its 2005 proceedings.
    

Issue Involved

Whether the procedural reforms introduced by the CPC (Amendment) Acts of 1999 and 2002, specifically the provisions related to Section 89 are capable of implementation, and if so, what guidelines are needed to ensure their practical applicability without violating the rights of litigants?

Contentions of Both Parties

Petitioner (Salem Advocate Bar Association):

• Ambiguity and Impracticality: The petitioners argued that certain procedural modifications including Section 89 of CPC, 1908 did not have sufficient clarity because they lacked proper implementation standards. They believe that disputes could become subject to arbitrary decisions and procedural problems when cases are sent to ADR because there are no established guidelines.
• Increased Burden: They claimed that procedural modifications demanding affidavits combined with strict time restrictions and pre-trial case scheduling impose a heavy load on attorneys and trial judges that hampers procedural simplicity.
• Encroachment upon Litigant's Rights: The petitioners expressed concerns that mandatory ADR references might violate Article 21^[6] i.e. rights to fair adjudication of the litigants, unless appropriate protections were in place. They emphasized the need for clear procedural guidelines with practical training before implementation.

Respondent (Union of India):

• Reforms crucial for Speedy Justice: The Union government presented the amendments as part of judicial reform which aimed to minimize procedural delays while upholding the right to speedy justice according to Article 21.
• A legal push to ADR: Section 89 was established to promote litigant settlements through various dispute resolution mechanisms. It was created to eliminate backlog cases and establish pleasant settlements that produce benefits for both judicial systems and litigants.
• Judicial Oversight: The Union emphasized that Section 89 does not have self-executing powers, so courts retain the authority to confirm a just application of the law.

Tripartite Committee Submissions

Pursuant to the judgment in the year 2003, the Committee submitted three reports between 2003-2005.

1. Report First:

   • Earlier, there was no need to file an affidavit with pleadings; only a simple verification was enough. But now, as per the insertion of Section 26(2)[7] and Order VI Rule 15(4)[8] of the CPC, an affidavit must be filed to confirm the truth of the facts stated in the pleadings. However, the affidavit is not considered as evidence during the trial. Any change in pleadings will give rise to a new affidavit.
   • Under Order VIII Rule 1, defendants need to submit their written statement to the court within 30 days yet this deadline extends to 90 days through sufficient justifications. The Court in Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur[9], determined that assessment of mandatory or directory provisions depends entirely on legislative intentions. The 90-day rule described in Rule 10[10] exists as a directory standard that enables courts to give exceptions but requires careful judicial exercise to avoid unfair practices.
      

2. Report Second:

   • The report established a classification between ADR procedures under Section 89, which include Arbitration, Conciliation, Mediation, Judicial Settlement, and Lok Adalats, while implementing existing laws, which consist of the Arbitration and Conciliation Act, 1996[11] and the Legal Services Authorities Act, 1987[12].
   • 1A. The Court will issue directions for parties to pursue settlement outside the Court framework described in Sub-section (1) of the same section. Once parties express their selection of a forum, the Court will establish a necessary date for their attendance at that forum.
   • 1B. Parties who have their case referred under 1A need to attend meetings at the designated forum or authority that handles suit conciliation.
   • 1C. If a case is sent for conciliation under 1A, and the officer in charge of the conciliation forum feels continuing with the process is unfair, then the case should be sent back to court.
   • ADR proceedings are initiated by courts through referral but they do not perform the procedures themselves.
   • The committee emphasized financial support from the government to enhance the mediation process.
   • The committee also proposed that courts must start enforcing real and fair costs, where the losing party compensates the winning party for all the expenses incurred to them.
    

3. Report Third:

   • The report centered its analysis on Case Flow Management and Model Rules because the right case management system leads to a substantial increase in case outcomes. The system requires judicial personnel to establish timeframes that need continuous monitoring throughout the entire court process. It was determined that case management systems following international standards produce notable positive results.
      

Judgement:

• The Supreme Court declared the Amendments made in CPC, 1908 under Amendments Acts of 1999 and 2002 to be constitutionally valid.
• The Court officially adopted and approved recommendations from the Committee formed after the 2003 judgment. The Committee model rules received official recognition as they provide essential support for enhancing the civil litigation process.
• The High Courts obtained directions to develop rules through Part X of the CPC by implementing suggestions the Committee presented in their Model Rules.
• Courts received instructions to prioritize ADR while maintaining case flow management systems and awarding genuine costs.

Legislative and Judicial Insights into Section 89
Section 89 CPC was enacted into legislation to lighten court caseloads through ADR techniques. Using this provision, courts may determine which disputes demonstrate tendencies toward settlement, and if so, then refer the case to appropriate ADR modes.

Although this Section employs two terms, "shall" and "may," which create confusion about compulsory referral procedures. The Court Judgment confirmed these points after harmonizing Order X Rule 1A[13] with the case at hand. It demonstrates that the obligation for courts to create settlement terms rests under "Shall" while "May" functions solely to transform settlement terms after party observations.

Thus, the court must make ADR referrals after detecting settlement possibilities, so the process remains compulsory as a procedural measure.
Another problem arises from the connection between Section 89 of CPC and the Arbitration and Conciliation Act 1996, in P. Anand Gajapathi Raju v. P.V.G. Raju 2000[14]It was clarified that the Arbitration Act applies post-reference.

Section 89 initiates the arbitration procedure through judicial referral, yet maintains a separate status from the Arbitration Act. After a referral occurs, the procedural control moves from CPC regulations to the 1996 Act. When ADR fails to resolve the dispute, it will be reintroduced before the same court responsible for its initial handling.

Constitutional Validity of Section 89
The core query in this case was whether Section 89 of the CPC, along with its regulatory amendments, compromised Article 21 of the Constitution which guarantees the right to a fair trial and access to justice. The petitioners criticized Section 89's procedural shortcomings while also expressing apprehension that ADR referrals without party consent and suitable safeguards could result in unfair legal processes as well as improper adjudication denial.

However, the Supreme Court determined its constitutional legitimacy because it functions as a procedural instrument. The Court made it clear that Section 89 does not take away the option for parties to reach court directly. Instead, it aims to promote settlement processes that lighten judicial workload and accelerate the pace of justice delivery.

The Court reasoned that ADR serves alongside formal litigation because when settlement attempts fail, the case returns to court for legal adjudication. Thus, the parties' right to be heard and obtain a judicial decision is never taken away. In State of Punjab v. Jalour Singh, 2008[15]SC established that courts cannot force parties to use ADR mechanisms, as arbitration and conciliation require parties to choose ADR on their own.

Affidavit Requirement and Pleading Reforms
Mandatory affidavits in pleadings under Order VI Rule 15(4) and Section 26(2) of the Civil Procedure Code, 1908 were established to combat the extensive issue of false pleadings along with intentional misstatements and delay strategies that plagued the judicial system.

The Supreme Court in this case, upheld these provisions as procedural tools to enhance accountability and prevent abuse of process. Verified pleadings contribute to limiting the number of unnecessary interlocutory applications that arise during judicial proceedings.

The affidavit requirement establishes a deterrent effect against false statements because litigants face possible perjury charges stemming from CrPC and IPC for making false statements under oath. A similar approach exists within Dalip Singh v. State of U.P. 2010[16] where the Supreme Court observed that a party seeking court intervention should present themselves with honesty and must avoid deliberately withholding essential information.

Despite the advantages, this legal reform encounters difficulties during its implementation, especially in lower courts and rural areas, because party members are typically unaware of the legal implications when they file affidavits. Moreover, enforcement of perjury laws remains weak, reducing the deterrent effect. There's also a concern that the affidavit requirement may be used oppressively against uneducated or underprivileged litigants who may not fully understand the implications of what they're affirming.

A Judicial push towards Cost awards and Case management
Throughout history, Indian courts have delivered minimal or simple cost awards that failed to show the actual prices spent by successful parties. The Supreme Court, aligning with the recommendations of the Malimath Committee[17], clarified that courts must award realistic or actual costs, which may include Court fees, Advocate's fees, Witness expenses and Miscellaneous litigation charges.

The potential obligation to pay opposing parties' expenses during litigation creates natural barriers that stop people from making baseless claims and requesting superfluous adjournments. The Court also established that parties who deceive the court face potential consequences through contempt or perjury penalties, for instance, false claims regarding service of summons.
On the other hand, Model Case Flow Management Rules were also approved by the judgment as these rules break down litigation into organized phases while enforcing specific time requirements.

Judges are now expected to act as active managers of cases, setting deadlines, monitoring progress, and imposing sanctions if parties cause unwarranted delays[18].
Despite the Supreme Court's push for realistic costs and effective case management, many lower courts still treat cost imposition as a mere formality.

In Indian Council for Enviro-Legal Action v. Union of India 2011[19], the Court emphasized that parties abusing the system should face exemplary costs, yet this principle remains minimally implemented. These procedural variations reduce the planned deterrent outcome while leading to additional administrative delays.

Furthermore, the implementation of cost regulation faces obstacles due to the absence of uniform training programs for judicial officers. The necessary steps to close this gap include mandatory case management practices combined with comprehensive judicial training programs throughout all judicial districts[20].

The procedure runs counter to the foundational values of ADR system
Following this case's final judgment, the concerns were raised that the procedures laid under Section 89(1) CPC could damage the essential foundation of ADR approaches such as Arbitration, Mediation and Conciliation. This means the court does much of the groundwork, such as identifying, formulating, and directing the settlement, before the neutral forum is even involved, restricting the role of arbitrators, mediators, and conciliators who are the ones supposed to facilitate negotiation and settlement.

As a result, the judge takes over roles originally meant for the ADR forum, and this carries damaging implications against the fundamental principles of ADR proceedings. This blurs the line between judicial and non-judicial dispute resolution, raising serious concerns about judicial overreach[21].

The Supreme Court of India through the Afcons Infrastructure Ltd. V. Cherian Varkey Construction Co. (P) Ltd., 2010[22] decision, established that courts retain responsibility solely to determine ADR suitability. Each forum should handle the actual settlement procedures independently.

This approach introduces bias because the court creates settlement terms that can generate feelings of pressure in parties who suspect judicial support for particular directions, thus undermining core ADR principles of party autonomy and increasing court workload beyond what mediation was intended to resolve.

Conclusion
The judgment not only interprets the law, but also tries to reconstruct the historical narrative about civil justice systems in India. The Supreme Court used reformist spirit along with constitutional guidance to step out of its traditional walls and breathe clarity into the fog of procedural confusion. Through adoption of the Jagannadha Rao Committee's suggestions, the Court engaged in an innovative handshake between judicial and legislative realms to create a more efficient justice system.

Crucially, the court reminded us that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. The Supreme Court renewed the core precept from State of Punjab v. Shamlal Murari, 1976[23]

Since the Court ignited this process, the legal framework has failed to maintain sustained momentum. As still the legal fraternity still features several groups that decline to surrender their lucrative, prolonged litigation benefits by blocking ADR progress through indirect obstruction. As a result, Section 89 CPC faces the risk of remaining an honorable provision noble only in text with minimal operational significance.

To prevent this, urgent amendments to the existing laws must take place to resolve procedural confusion while creating precise roles in ADR activities and removing ambiguities in interpretation. Simultaneously, Controlled and coordinated efforts among institutions combined with public and judicial education will advance an environment that comprehensively accepts ADR practices. Unless the guarantee of prompt justice persists solely as judicial jargon rather than becoming a lived reality.

End Notes:

1. The Code of Civil Procedure, 1908 (Act 5 of 1908)
2. The Code of Civil Procedure, 1908 (Act 5 of 1908), s. 89.
3. AIR 2003 SC 189
4. The Constitution of India, art. 32.
5. Committee on Civil Case Management Formula Invites Suggestions, available at: https://archive.pib.gov.in/archive/releases98/lyr2002/rnov2002/18112002/r181120029.html
6. The Constitution of India, art. 21.
7. The Code of Civil Procedure, 1908 (Act 5 of 1908), s. 26(2).
8. The Code of Civil Procedure, 1908 (Act 5 of 1908), or. VI r. 15(4)
9. 1965 SCR (1) 970
10. The Code of Civil Procedure, 1908 (Act 5 of 1908), or. VIII rr. 1 and 10
11. The Arbitration and Conciliation Act, 1996 (Act 26 of 1996)
12. The Legal Service Authority Act, 1987
13. The Code of Civil Procedure, 1908 (Act 5 of 1908), or. X r. 1A
14. AIR 2000 SUPREME COURT 1886
15. AIR 2008 SUPREME COURT 1209
16. 2010 AIR SCW 50
17. Garg, Pooja (2005) "Shifting Trends in Burden of Proof and Standard of Proof: An Analysis of the Malimath Committee Report," National Law School of India Review: Vol. 17: Iss. 1, Article 4. Available at: https://repository.nls.ac.in/nlsir/vol17/iss1/4
18. Steven S. Gensler, Judicial Case Management: Caught in the Crossfire, 60 Duke Law Journal 669-744 (2010) Available at: https://scholarship.law.duke.edu/dlj/vol60/iss3/4
19. 1996 AIR 1446
20. Dr. Sukhda Pritam, Rethinking Judicial Education: A Detailed Study of Curriculum and Learning Methodology in Judicial Academies (Centre for Research and Planning, Supreme Court of India 2024).
21. Bhatt, Niranjan J. Case Management– A Modern Concept. Advocate, [2023]. Available at: https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2023/01/2023010673.pdf
22. (2010) 8 SCC 24
23. AIR 1976 SUPREME COURT 1177

Award-Winning Article Written By: Ms.Minhum Zaidi