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
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
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
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
Goal To Achieve Earlier And More Proportionate Resolution of Legal Problems
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 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.
-Unless mindset of the judges are changed, there will be no
motivation for the lawyers to go to any of the ADR methods.
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.
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
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
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.