In 1963, Martin Luther King Jr used the phrase "justice too long delayed is
justice denied" in one of his letter - "Letter from Birmingham Jail
which was smuggled out of prison. Quite unfortunately, this phrase can find its
earned relevance even in todayís society, and is commonly referred to as Justice
delayed is justice denied
The low efficiency of the Indian courts, and the vast magnitude of pending cases
are a result of the plentiful population of 1.37 billion residing in the
country. Most of the times, justice is served late and cold, taking up years and
sometimes even decades. To eradicate this crisis in the Indian Courts and the
Indian Judicial system, ADR or the Alternate Dispute Resolution is a saviour to
all the victims yearning for justice.
Origin of Alternate Dispute Resolution
In the year 1899, an English legislation based Act was enacted for giving effect
to the mechanism of ADR in India. This Act was referred to as The Indian
Arbitration Act, 1899. Later in the year 1908, when the Civil Procedure Code,
1882 was amended it gave powers to the courts to refer the conflicts to ADR
mechanism through Section 89.
India also signed and adopted the Geneva Convention in the year 1937 which gave
a way to the emergence of The Arbitration (Protocol and Convention) Act, 1937 in
the country. The Arbitration Act, 1940 came into existence after Section 89
along with the second schedule of CPC and The Indian Arbitration Act, 1899 were
1n 1996, The Arbitration and Conciliation Act, 1996 was enacted which is a
single piece of legislation that deals with ADR. It emerged after the
consolidation of three Acts namely- The Arbitration Act, 1940, The Arbitration
(Protocol and Convention) Act, 1937 and The Foreign Award (Recognition and
Convention) Act, 1961. This has made the work easier as The Arbitration and
Conciliation Act, 1996 is a consolidated form of various legislations and is
In the rural areas especially in villages, small disputes among the villagers
were sought for with the help of Panchayats.
Forms of ADR
It is an informal trial that includes a neutral third party
which decides the case after hearing both the parties involved in the
dispute. A process of arbitration can start, only if there has been a valid
arbitration agreement in writing. The decision can be binding or non-binding,
depending upon the clause of the contract. If it is decided in the contract that
the decision will have a binding effect then the decision will be enforced by
the court and will be regarded as final.
Either of the parties can arrange for an arbitrator. In a situation of non
cooperation by the other party, one can also seek help from the office of
Chief Justice who in turn appoints an arbitrator. An arbitrator should
always be beyond the reasonable doubt of impartiality, and should be
qualified enough to be an arbitrator as per the arbitration agreement.
The mediator cannot force the parties to agree and so itís the
duty of the mediator to make sure that the decision is mutually agreed upon. He
also cannot decide the case. The process of mediation is voluntary, so the
parties have free will to refuse to come to an agreement. It is non-binding in
nature which allows the parties to go for litigation if not satisfied.
Mediation can be between two or more parties. It can involve communities,
organizations, states, individuals and others.
Here, the parties come to a mutual agreement without a third
party intervention. In many cases parties are represented by their respective
attorneys who fight for them. Parties bargain and compromise to come to a
mutually accepted ground. This kind of ADR mechanism is often used by non-profit
organizations, business dealings, marriage, divorce, etc.
Conciliation is another form of ADR. Usually one conciliator
deals with the proceeding, however there can be more than one conciliator as
well. In cases where there are more than one conciliator, all the conciliators
must act jointly. Either of the parties have the right to opt out from
conciliation if he/she wishes to.
If the conciliator is of the view that there exist elements of settlement, he
then sends the drawn up terms and conditions to both the parties for their
acceptance and approval. If both the parties agree and sign the settlement
document, it shall be considered as binding and final on both the parties.
- Lok Adalat:
The Indian concept of Lok Adalat has come from National Legal
Services Authority Act, 1967. It can settle matters related to disputes which
were at the pre litigation stage or pending in the court of law. In Lok Adalat,
parties can directly communicate with the judge unlike the long ongoing court
It does not need any procedural requirement as mentioned by CPC or
Evidence Act, thereby making it a much faster process. If a matter which was
pending in the court of law was later settled by Lok Adalat then the court fee
is refunded. Here the members try to assist the parties to come to a common
ground which can lead them into a settlement.
Advantages of ADR
Vinod Bhaiyalal Jain & Ors V. Wadhwani Parmeshwari Cold Storage Pvt. Ltd.
Appellants in this case: Vinod Bhaiyalal Jain & Ors.
Respondents in this case: Wadhwani Parmeshwari Cold Storage Pvt. Ltd.
- ADR provides for a speedy justice to the parties
- It is effective and efficient and processed in a smooth manner.
- It is cost effective. Lok Adalats are free of cost, and the other forms of
ADR require lesser amount of money compared to the general court proceedings
- Satisfaction of the parties- As the parties are involved in the case, it
helps them to have their own ways of settlement resulting in mutual
- The result is qualitative and productive.
The appellant had a business related to agricultural products. In the year 2004,
the appellants had availed the services of the respondent who was the owner of a
cold storage. So 50 kgs of singada
- a fruit was kept in the cold storage which
was managed by the respondent. The appellants were of the view that his products
were damaged due to the failure of the respondent to keep them in the proper
When the appellant claimed compensation for the damage, it was denied by the
respondent and subsequently a dispute arose.
The father of the appellant in due course got to know that the arbitrator in
this case is the same person who had already fought as a counsel for the
respondent in a previous case.
Despite such objections from the side of the appellants, the matter proceeded in
arbitration. It thereby directed the appellants to pay Rs 43000.
The matter went up to the District Court in Nagpur which said that the
objections raised by the appellants were justified and decided that the award of
the arbitration would be set aside.
The High Court reversed the order of the District Court by stating that even if
the arbitrator had appeared as a counsel of the respondent before, it is not a
ground to hold him as partial. So the decision of the District Court was quashed
and the award of the arbitration was restored.
Finally, when the matter was taken up to the apex court, it quashed the decision
of the High Court and restored the decision of the District Court.
India has had a long history of delayed, pending and never ending judgements.
The country has seen numerous stories of futile proceedings, court appearances
and hearings. Although these complications still pose a threat to the citizens
of the country, we can see that the society and the fraternity is changing; and
so is its system of functioning. Delayed justice is no more an acceptable issue.
People want results and they want them fast. Alternate Dispute Resolution (ADR)
could prove as a riposte to this crisis.
Written By Srabana Dutta
, a 4th year student of B.A. LL. B (H) from Amity University, Kolkata