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Constitutional Jurisprudence and The Growth of Alternative Dispute Resolution

The ADR system in India is definitely a great achievement where the judiciary is burdened in terms of quality and quantity, this system is definitely an ease for the people who face various negative impact such as delay etc of the contemporary court system. India is a country where dispute resolution was available at various level since ancient time. The popularity of such system exists even till date. This form of dispute resolution was in practice by the disputants in India since time immemorial. After the enforcement of constitution of India,1950 Alternative Dispute resolution in India was founded on the constitutional basis of Article 14 and 21 ;i.e : Equality before law and right to life and personal liberty. It was an important attempt made by the legislators and judiciary alike to achieve the “ constitutional goal of achieving complete justice”. There is an constitutional directives to settle the dispute through the ADR indirectly under Article 39A of the constitution of India stated that the state shall make a principle of state policy relating to equal justices and free legal aid. Under Article 40 of the constitution of India gives a directive to the state to take steps to organize village panchayats and endow them with such power and authority as may be necessary to enable them to function as units of self -government. Part IX has been inserted by the constitution (73rdAmendment) act, 1992 enumerated the provision of Constitution of Panchayats. ADR is the best way to resolve the dispute and conflicts. ADR is a solution for a social peace because it brings a peace to the society by the intervention of the Arbitrators and also advocates. This paper analyses the role of ADR which is expected to resolve disputes amicably and in a peaceful manner.

The implementation of Alternative Dispute Resolution mechanisms as a means to achieve speedy disposal of justice is a crucial issue. The first step had been taken in India way back in 1940 when the first Arbitration Act was passed. However, due to a lot of loop holes and Problems in the legislation, the Provisions could not fully implemented. However, many years later in 1996, The Arbitration and Conciliation Act was passed which was based on the UNCITRAL model. Sufficient Provisions have been created and amended in the area of Lok Adalats in order to help the rural and commoner segments to make most use of this unique Alternative Dispute Resolution Mechanism in India. It is impossible to oust the conflicts and disputes in any society and the human society develops in contradictions between the People. India is a Sovereign, Socialist, Secular Democratic Republic. The Constitutional goal is to set up an egalitarian society and to secure to all its citizens-Justice, Social , Economic and Political. It is the duty of the state to secured access to Justice to its citizens by ensuring judicial and non-judicial forums of dispute resolution that provides timely and effective justice and enforcement of their legal and fundamental rights. The State itself should travesty this basic principle, in the teeth of Articles 14 and 39(A).

Alternative dispute Resolution (ADR) contains the effective mechanism to provide speedy and cost effective justice, it also has the potential to trim the huge arrears of cases to size. The major techniques of ADR are extra-Judicial in nature.

In our country, the justice delivery system thorough courts has given rise to certain grave problems like inordinate delays, huge pendency of cases and expensive litigation. In these circumstances, it becomes significantly necessary for all the stake -holders of judicial system to find out some mechanism where such grey areas can be effectively and adequately taken care of .This paper seeks to Constitutional Perspective of alternative dispute resolution and how for it functions under the Constitution.

Rule of Law:

The Rule of law has been given by Prof. Dicey, the expression the guarantee of equality before the law .The rule of law embodied in Article 14 is the “Basic feature” of the Indian Constitution. Hence, it cannot be destroyed even by an amendment of the constitution under Article 368 of the Constitution. It means that No man is above and all are equal in eye of law. And uniformity will be applied for all. Every organ of the state under the Constitution of India is regulated and controlled by the rule of law.Absence of arbitrary Power has been held to be the first essential of rule of law. The rule of law requires that the discretion conferred upon the executive authorities must be contained within clearly define limits. However, in the recent theories, with the emergence of the welfare state, the right to access to justice has gained grounds.

Thus, from a passive right, the right to access to justice has become an effective right wherein not only the right to litigate or defend a claim, but also right to access such forums and have parity of power with the other litigants.

Article 21- Right To Life And Personal Liberty:

Article 21 declares that no person shall be deprived of his life or his personal liberty except according to procedure established by law. The right to free legal aid and speedy trial are guaranteed fundamental rights under Article 21. Article 39 A provides “ equal Justice” and “free legal aid”. It means Justice according to law.

Legal aid is regarded in many forms and at various stages, for obtaining guidance for resolving disputes in courts, tribunals or other authorities such as arbitration, conciliation, mediation and lok Adalat and collectively called as Alternative Dispute resolution (ADR). It is a mandatory rule that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

Regarding the right to free legal aid, Krishna Iyer, J; declared, “This is the state’s duty and not Governments’ charity. The Supreme Court held that “ right to a speedy trial” a fundamental right is implicit in the guarantee of life and personal liberty enshrined in Article 21 of the Constitution. Speedy trial is the essence of criminal Justice. The Supreme court has allowed Article 21 to stretch aims as wide as legitimately can. Article 21 is fundamental right that can be directly enforced in the SC under Article 32 of the Constitution of India.

Fundamental Rights Incorporated In The Constitution:

The attainment of the common goal as distinguished from the good of individual is the essence of justice. Legal Justice is the part of social justice. As whenever the legal justice is denied, the society gets disturbed . A legal system is part of state which maintains social harmony through dispute resolution that provides timely and effective justice and enforcement of their legal and fundamental rights. This can be effectively achieved by applying the mechanisms of Alternative Dispute Resolution.

The Constitution of India guarantees the right to equality ( Equality before law) through Article 14. The Court have been unfolding the vast potentialities of this article as a restraint on the legislative power of the legislature as well as administrative power of the administration. Article 14 bars discrimination and prohibits discriminatory laws but he fact remains that all persons are not equal by nature ,attainment or circumstances , and therefore ,a mechanical equality before the law may result in injustice.

The varying needs of different classes or section of people require differential and separate treatment. The legislature is required to deal with diverse problems arising out of an infinite variety of human relations. The Principle of equality of law thus means not that the same law which includes (Procedure and treatment) should apply to everyone but that law should deal alike with all in one-class, that there should be an equality of treatment under equal circumstances . It means “ that equals should not be treated unlike and unlike should not be treated alike. Likes should be treated alike”.

Directive Principles of State Policy

The idea of welfare state envisaged by our constitution can only be achieved if the state endeavours to implement them with a high sense of moral duty. Under Article 39 A, the directives require the state to provide free legal aid to deserving people so that justice is not denied to anyone merely because of economic disability. Under Article 40 of the constitution of India, gives a directive to the state to take steps to organize village Panchayats and endow them with such power and authority as may be necessary to enable them to function as unit of self-government. The objectives laid down in Article 40 have been fulfilled by enacting the constitution 73rdAmendment Act,1992,Part IX ( Article 243 A to 243 O ) on “ The Panchayat”. This Amendment provide constitutional sanction to democracy at the grass root level.

This article makes it clear that the Social objective of equal justice and free legal aid has to be implemented by suitable legislation or by formulating scheme for free legal aid. Under Article 50 of the Constitution of India gives a directive to the state to take steps to separate the judiciary from the Executive in the public Service of the State. Under Article 51(d) of the constitution of India also gives a directive to the state to encourage settlement of international disputes by arbitration. The wisdom of using the term arbitration is doubted.

Most countries do not prefer arbitration to other means and in fact, the practice of various states shows that arbitration is not the first choice of different nations. India too has not preferred arbitration as the first means to settle international disputes. On the consequences of above said directive principles of state policy, State enacted various enactments to resolve the dispute in alternative forum other than court by party’s choice such as the Arbitration and Conciliation Act,1996 and the Legal services authority Act,1987 etc.

Goal To Achieve Earlier And More Proportionate Resolution of Legal Problems And Disputes:

Increasing advice and assistance to help people resolve their disputes earlier and more effectively. Increasing the opportunities for people involved in court cases to settle their disputes out of Court; and reducing delays in resolving those disputes that need to be decided by the Courts. To implement the noble ideas and to ensure the benefits of ADR to common people, the four essential players (government, bench, bar litigants) are required to coordinate and work as a whole system. Case management includes identifying the issues in the case, summarily disposing of some issues and deciding in which order other issues to be resolved; fixing timetables for the parties to take particular steps in the case, and limiting disclosure and expert evidence.

Government- Government has to support new changes. If the government support and implements changes, ADR institutes will have to be set up at every level from district to national level.

Bench-Unless mindset of the judges are changed, there will be no motivation for the lawyers to go to any of the ADR methods.

Bar- The mindset of the members of the Bar is also to be changed accordingly otherwise it would be difficult to implement ADR. The myth that ADR was alternative decline in revenue or alternative drop in revenue is now realizing that as more and more matters get resolved their work would increase and not decrease.

Litigants: Few Parties are usually interested in delay and not hesitate in taking a stand so as to take the benefit if delay. Parties have to realize that at the end, litigation in court may prove very costly to them in terms of both cost and consequence.

Limitations of Alternative Dispute Resolution:

There are several disadvantages blocking the way of successful dispute resolution and often affecting both parties sentiment to settle for a comprised decision some of the disadvantages are:
(a) Unequal Bargaining Power
In certain situations, one side is able to control the other. Therefore, a significant imbalance of power exists. Eg: Employment and divorce cases, making the courts a better option for a weak party.

(b) Lack of Legal Proficiency:
Where a dispute involves difficult legal points a mediator or arbitrator is unlikely to have the same legal expertise and knowledge as a judge. Dispute can be of various situations such as commercial conflicts, social conflicts, legal conflicts and many others which require specialized mediator. Most of the cases, the mediator does not possess a judge’s point of view.

(c) No System of specific Model:
It isn’t easy to predict the outcome of a dispute decided through ADR as there is no system of precedent. Therefore, it is easier to obtain evidence from the other party in a lawsuit. Lack of system results in restricted prediction of outcomes.

(d) Enforceability:
Most forms of ADR are not legally binding making any award difficult to enforce. Legal arbitration has some kind of process for internal appeals , which enables the decision as binding and only subject to the review of Court.

(e) Required Court Action:
The arbitrator’s decision can require a court action if one of the parties refuse to accept the arbitrator’s decision. This would not only create chaos but also a mandatory review by the court. Thus, ADR sometimes raises the question of biasness of arbitrator’s decision. Also, there is very limited opportunity for judicial review of an arbitrator’s decision.

(f) Limits Discovery Process:
ADR generally proceeding without the protections offered parties in litigation, such as those rules governed through discovery. Courts generally allow a great deal of latitude in the discovery process, which is not active in alternative dispute resolution.

In the light of above discussion, it can be concluded that the constitution has basic to the alternative dispute resolution mechanism. There is duty to the state to enact a law and provide alternative dispute resolution mechanism. The same has received recognition from the legislature as well as in the form of introduction of Alternative Dispute Resolution and Alternative dispute resolution mechanism through various statutes.
There is a much felt need for developing an alternative model of access to justice. Alternative dispute resolution processes are said to be flexible, cheap, speedy and less formalistic in nature thus making it a viable alternative for adjudication through the court of law. For simple dispute, there is alternative resolution apart from the court procedure at the choice of parties.

India is moving towards the ray of light of judicial equality .The ADR system acts as an supporting agent to climb up the ladder of justice for all. The ADR movement needs to be carried forward with greater speed. This will considerably reduce the load on the courts apart from providing instant justice at the door-step, without substantial cost being involved. If they are successfully given effect then it will really achieve the goal of rendering social justice to the parties to the dispute.

1.Indian Constitutional law – M.P. Jain -Edition 2007
2.A Primer on Alternative Dispute Resolution -R.D. Rajan -Edition 2005
3.Alternative Dispute Resolution -Sukumar Ray- Edition 2012
4.Alternative Dispute Resolution -Dr .S. C. Tripathi
5.Law of Arbitration & Conciliation -Dr. Avatar Singh
6.Arbitration & ADR- Dr. Paranjape
7.Law Commission Reports 142,154 & 177.

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