Open Access Research Article
ARBITRATION AND ACCESS TO JUSTICE IN INDIA: A CRITICAL ANALYSIS OF PROCEDURAL AND CONSTITUTIONAL CONCERNS
Abstract
ABSTRACT
Arbitration
in India has, over the past three decades, been progressively positioned by
legislature and judiciary alike as the preferred mechanism for resolving
commercial disputes, prized for its promise of party autonomy, procedural
flexibility, confidentiality and expedition relative to an overburdened civil
court system. Yet this preference for arbitration sits in an uneasy and
under-examined relationship with the constitutional guarantee of access to
justice, understood as encompassing not merely formal availability of a forum
but substantive, equal and affordable access to effective dispute resolution.
This paper undertakes a critical, doctrinal analysis of the procedural and
constitutional tensions that arise at the intersection of arbitration and access
to justice in India, examining the framework of the Arbitration and
Conciliation Act, 1996, as amended in 2015, 2019 and 2021, and the proposed
further reforms contained in the draft Arbitration and Conciliation (Amendment)
Bill, 2024, following the February 2024 report of the T.K. Viswanathan Expert
Committee. It analyses the doctrine of minimal judicial intervention as
developed in Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc.
and refined through a substantial body of 2025-2026 Supreme Court
jurisprudence, assessing whether the judiciary's pronounced pro-arbitration,
non-interventionist trend adequately safeguards constitutional guarantees under
Articles 14, 21 and 39A of the Constitution when arbitration's contractual,
opt-in and party-funded character systematically disadvantages
resource-constrained litigants, including micro, small and medium enterprises
and individual consumers bound by standard-form arbitration clauses. The paper
critically examines cost asymmetry in ad hoc arbitration, unequal bargaining
power in contract formation, the tension between confidentiality and the public
interest in transparent adjudication, and the narrow scope of judicial review
under Section 34, before evaluating the 2024 Draft Bill's proposed reforms —
including curtailment of Section 9 interim relief, statutory recognition of
emergency arbitration, and delegation of fee-determination authority to the
Arbitration Council of India — for their likely impact on access to justice for
economically weaker parties. The paper concludes that meaningful reconciliation
of arbitration's efficiency objectives with constitutional access-to-justice
guarantees requires targeted procedural safeguards, differentiated treatment of
consumer and employment arbitration, judicially and legislatively calibrated
cost regimes, and continued vigilance against the erosion of minimum
due-process protections in the pursuit of institutional efficiency.
Published Paper
Author Details
Authors: UMANG KAMBOJ
Registration ID: 1013068 | Published Paper ID: IJLRA13068
Year: Aug-2026 | Volume: 3 | Issue: 5
Approved ISSN: 2582-6433 | Country: Delhi, India
Page No.: 1769-1791
Article Information
ARBITRATION AND ACCESS TO JUSTICE IN INDIA: A CRITICAL ANALYSIS OF PROCEDURAL AND CONSTITUTIONAL CONCERNS
Authors: UMANG KAMBOJ
- Journal IJLRA
- ISSN 2582-6433
- Volume 3
- Issue 5
About Journal
International Journal for Legal Research and Analysis
- AbbreviationIJLRA
- ISSN2582-6433
- AccessOpen Access
- LicenseCC 4.0
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