Open Access Research Article
THE IMAPCT OF ALTERNATIVE DISPUTE RESOLUTION ON ACCESS TO JUSTICE IN INDIA.
Published Paper
Article Details
THE IMAPCT
OF ALTERNATIVE DISPUTE RESOLUTION ON ACCESS TO JUSTICE IN INDIA.
AUTHORED BY - ANUPRIYA YADAV[1]
Abstract
This article examines the impact of
Alternative Dispute Resolution (ADR) on access to justice in India. Access to
justice is a fundamental aspect of a fair society, ensuring that individuals
receive their due and resolving disputes fairly. ADR methods, such as
arbitration, mediation, negotiation, conciliation, and Lok Adalats, have
emerged as effective alternatives to traditional litigation. These processes
offer cost-effectiveness, efficiency, informality, and the preservation of
relationships, making justice more accessible to a wider range of people.
However, challenges such as lack of awareness, unequal power dynamics,
enforceability issues, and limited applicability exist. This article highlights
the benefits and challenges of ADR in promoting access to justice and
emphasizes the need for a balanced approach that combines traditional
litigation with ADR methods to create a more equitable justice system in India.
Keywords:
Access to justice, Alternative
Dispute Resolution (ADR), Cost-effectiveness, legal awareness, Justice
delivery, Legal infrastructure.
Introduction
Justice can be defined as the moral
principle of ensuring that each person receives what is rightfully theirs and
preventing harm or injustice. It can be categorized into two main forms:
distributive justice, which pertains to the role of authorities in allocating
resources and benefits, and commutative justice, which deals with fairness in
everyday interactions between individuals. However, it is noteworthy that
justice lacks a universally agreed-upon, precise definition.
Mahatma Gandhi had put in correct
words as: “I had learnt the true picture of law. I had learnt to find out the
better side of human nature and to enter men's heart. I realised that the true
function of a lawyer was to unite parties riven asunder. The lesson was so
indelibly burnt into me that a large part of my time during the twenty years of
my practice as a lawyer was occupied in bringing about private compromised of hundreds
of cases. I lost nothing thereby-not even money-certainly not my soul.
Significance
of Access to Justice
Academics and policymakers articulate
the concept of the rule of law in the following manner. Firstly, it entails the
separation of powers, serving as a system to oversee and harmonize political
authority through established regulations. Secondly, the rule of law signifies
the presence and practical enforcement of a set of regulations and rights that
govern interactions between the government and individuals within a society, as
well as among individuals themselves. Lastly, the rule of law ensures the
robust safeguarding and promotion of constitutional rights and privileges.
Consequently, the rule of law stands as an essential necessity for the
effective operation of any well-functioning government. The safeguarding and progress of civil rights and
freedoms hinge on citizens' access to and trust in the legal system. To
establish a secure societal, political, and economic atmosphere, a government
must be capable of furnishing and safeguarding judicial services. When citizens
lack faith in the state's justice services, they may resort to self-help
measures. Consequently, a government loses its credibility when it cannot
maintain a monopoly on the use of force and ensure the safety of its citizens
from private acts of violence.
According to Krishna Iyer J,,”… the
jurisprudence of Access to justice as an integral part of social justice and
examine the constitutionalism as a facet of human rights highlighted our
nation's constitution…. If the state itself should travesty this principle in
the teeth of Articles 14 and article 39-A, where an indigent widow is involved
a second look at its policy is overdue.”[2]
The credibility and importance of the
rule of law diminish when citizens cannot avail themselves of legal services.
Law Commisssion in its 222nd Report has defined the expression
“access to justice” focuses on the following two basic purposes of the legal
system:[3]
1. The system must be equally
accessible to all.
2. It must lead to results that are
individually and socially just.
Alternative
Dispute Resolution.
In a world where conflicts and
disputes are an inevitable part of human interaction, finding efficient and
equitable means of resolution becomes paramount. Traditional litigation, with
its lengthy court battles, high costs, and adversarial nature, often falls
short in meeting the needs of individuals and organizations seeking to resolve
disputes swiftly and fairly. It is in this context that Alternative Dispute
Resolution (ADR) emerges as a compelling and transformative approach.
ADR encompasses a range of methods
and techniques designed to facilitate the resolution of disputes outside the
conventional courtroom setting. This dynamic and flexible approach not only
saves time and resources but also promotes constructive communication and
collaboration among disputing parties. As ADR gains prominence across legal,
commercial, and societal landscapes, it offers a promising pathway to resolving
conflicts in a manner that is efficient, cost-effective, and, most importantly,
conducive to maintaining relationships.
ADR techniques are extrajudicial;
they can be used to resolve any matter, under law, by the agreement between the
parties. They have been employed to settle abundant subject categories of disputes,
commercial, civil, industrial, and family disputes.[4]
The main objective of ADR is to provide quick and cost-effective relief to
clients. The present system fails to deliver quick and inexpensive relief to
the party in a dispute. The procedure is also overly complicated, and this
leads to a search for an alternative mechanism that should be a cost-effective,
quick, confidential procedure and be an accessory to the process of the
traditional court system.[5]
ADR processes and outcomes prioritize
the concerns of both parties involved, while courts and tribunals primarily
focus on legal rights. ADR mechanisms have the potential to help maintain
relationships between disputing parties. The use of Alternate Dispute
Resolution is not a novel concept in this country, as it has been in practice
in India since time immemorial. Historical records in the legal domain suggest
that throughout history, individuals have been experimenting with procedures
aimed at making the process of obtaining justice easier, more cost-effective,
reliable, and convenient.
It is commonly assumed that the
prevailing system of government in ancient India was predominantly monarchy,
and instances of republics were rare or considered deviations from the norm.
This perspective is grounded in the apparent observation that kings ruled in
ancient India, suggesting a monarchical system. ADR methods are not new to
India and have been in existence in some form or the other in the days before
the modern justice delivery system was introduced by the colonial British
rulers[6]
The Supreme Court in Salem
advocate Bar Association Tamil Nadu v Union of India[7] observed: ‘In certain countries of the world where ADR
has been successful to the extent that over 90% of cases are settled out of
court there is a requirement that particular suit must indicate the form of ADR
which they would like to resort to during the pendency of the trial of the
suit.’
Justice
Malimath Committee Report:
If a law is enacted giving legal
sanction to such machinery for resolution of disputes and resort there to is
made compulsory the inflow of commercial litigation in regular civil courts
gradually moving up hierarchically would be controlled and reduced.
Constitutional
Background of the ADR.
The constitutional requirement for rescue
operations commenced with the report by Justice V.R. Krishna Iyer and Justice
P.N. Bhagwati's committee. As a result, marginalized segments of society gained
the ability to seek justice through legal channels, ranging from local Munsif
Courts to the highest authority, the Supreme Court. The introduction of CILAS
(Committee for the Implementation of Legal Aid Services) also played a role in
facilitating the resolution of civil disputes through both formal legal forums
and informal means.
It is settled law that free legal aid
to the indigent persons who cannot defend themselves in a court of law is a
constitutional mandate under Articles 39 -A and 21 of the Indian constitution.
The right to life is guaranteed by Article 21.[8]
This law has to help the poor who do not have means that is economic means to
fight their causes.
Alternative Dispute Resolution
Mechanism consists of various modes for delivering justice. It consists of following
methods;
Arbitration:
In India, the regulation of arbitration falls
under The Arbitration and Conciliation Act of 1996. Arbitration is a method of
resolving disputes wherein one or more individuals are designated to act as
impartial third parties to adjudicate the matter. These impartial third parties
are commonly referred to as 'arbitrators,' and the outcome of their
deliberation, which essentially determines the merits of the case, is known as
an 'arbitration award.'
The arbitration procedure is
characterized by its informality, allowing for the amicable and efficient resolution
of disputes. It is known for its expeditiousness and cost-effectiveness, making
it a preferred choice for parties seeking dispute resolution. This preference
is particularly evident in the business world, where significant corporations
often opt for arbitration to swiftly settle disputes rather than engaging in
protracted court battles.
The Scheme of the arbitration law is such that
arbitration process which is a quasi-judicial proceeding has become more or
less a miniature form of litigation.[9]Arbitration
is an alternate means for dispute resolution. It is a more modern method and
perhaps more, an efficient means for resolving disputes than adjudication. N.
A. Palkhivala observed that there are incalculable advantages to such
proceedings. He said.
‘if the law is not to be a system of
tyrannical rigidity, but instead to be the efficient and useful servant of a
changing society it must from time to time be adapted and parts of it replaced.
A court of law is like an ancient castle constantly under repair there comes a
time when it is no longer pays to patch it up and it is better to resolve to a
new compact house built on modern lines’.[10]
In Guru Nanak foundations v. Ratan
Singh[11]
the Supreme Court of India while referring to the 1940 act observe that the way
in which the proceedings under the act are conducted and without an exception
challenge in court has made lawyers laugh and legal philosophers weep in view
of unending prolixity, at every stage providing a legal trap to the unwary.
The Supreme Court made further
observation in Food corporation of India v. Joginder pal[12]
that the law of arbitration must be simple, less technical and more responsible
to the actual reality of the situations responsive to the canons of justice and
fairplay. The Supreme Court in its decision in Konkan Railway v. Mehul
Constructions[13]
discussed about the objective of the new Arbitration Act as
‘The increasing growth of global
trade and the delay in disposal of cases in courts under the normal system in
several countries made it imperative to have the perception of an alternative
dispute resolution system more particularly, in the matter of commercial
disputes when the entire world was moving in favour of a speedy resolution of
commercial disputes, the United nations Commission on international trade law
way back in 1985 adopted the UNCITRAL Model Law of international commercial
arbitration and since then number of countries have given recognition to that
model in their respective legislative system full with the said UNCITRAL Model
Law in view the present arbitration conciliation act of 1996 has been enacted
in India replacing the Indian Arbitration Act 1940 which was the principal
legislation on arbitration in the country that had been enacted during the
British. The Arbitration Act of 1996 provides not only for domestic arbitration
but spreads its sweep to international commercial arbitration. The Indian law
relating to the enforcement of foreign arbitration awards provided for greater
autonomy in the arbitrary process and limits judicial intervention to a
narrower circumference than under the previous law.’[14]
Mediation:
Mediation is a process which is both
new in terms of its emergency in the legal arena and old in terms of its
timeless universality there is a need at the very outset distinguished model
mediation from traditional form of dispute resolution other settlement forms
mediation is now recognised not only a distinct system of dispute resolution
but also as a system that interacts interdependently with the justice system it
is an integral part of many court programs in developed countries around the
world. As defined in a commentary ‘mediation is a fresh facilitative process in
which disputing parties engage the assistance of an impartial third party, the
mediator, who helps them to try to arrive at an agreed resolution of their
dispute. The mediator has no authority to make any decisions that are binding
on them but uses certain procedures, techniques and skills to help them to
negotiate and agreed resolution for their dispute without adjudication’.[15]
Conciliation:
Conciliation emerges as a preferable
alternative to the formal justice system. Choosing the mode of conciliation
doesn't necessitate a formal agreement. When an arbitration clause is present
in an agreement, it implies that the matter should initially undergo a
conciliation process, and only if an amicable settlement proves elusive, it
proceeds to arbitration. Another advantage of opting for conciliation is that
even if an amicable resolution isn't achieved, the evidence presented and
proposals made during conciliation proceedings cannot be disclosed in any other
proceedings, including arbitration. This safeguard is inherent in the
Arbitration & Conciliation Act itself, providing parties with the opportunity
to engage in conciliation without incurring any risks.
Conciliation is a non-binding process
where an impartial third party aids disputing parties in reaching a mutually
acceptable resolution. Effective conciliation necessitates bringing the disputing
parties together, face to face, in a common location where they can engage with
one another and the conciliator to arrive at a resolution. The significance of
conciliation lies in the fact that in other proceedings, decisions are rendered
by the presiding authority and carry binding consequences."
The importance of conciliation in the
present Indian court system is increased as courts are facing with the problem
of mounting arrears of pending cases & there is a serious need of disposing
of them & for that amicable settlement, conciliation is the best
alternative. The Himachal Pradesh High court under took the project of
disposing of the pending cases by conciliation & insisting on pretrial
conciliation in fresh cases. This idea was based upon the mediation in Canada
& Michigan. The said project had great success in Himachal Pradesh. The Law
commission of India in its various reports (77th & 13th) has appreciated
the project in Himachal Pradesh and recommended the other States to follow same
path.[16]
Negotiation
Concilia omnia verbis prius experiri,
quam armis sapientem decet, a well-known legal maxim, which literally translates as "An
sensible man would prefer discussion before deploying arms," justifies the
goal of using negotiation. This
technique aids the disputing parties in reaching a mutual understanding and
settlement by recommending better outcomes to them. Negotiation can
be defined as any communication, whether direct or indirect, wherein
conflicting parties discuss how they might collectively address and ultimately
resolve their dispute. These discussions can pertain to resolving an existing
issue or establishing a foundation for a future relationship involving two or
more parties. Importantly, participation in the negotiation process is entirely
voluntary, with each party having the autonomy to accept or reject the outcomes
that emerge. There are no restrictions on the number of parties involved; it
can involve just two individuals or extend to numerous participants. Unlike
arbitration and mediation, negotiations culminate in an agreement reached by
the parties themselves, without the involvement of a neutral third party. This
process is marked by flexibility and informality, allowing for confidentiality
as desired by the parties involved.
Regarding its procedural aspects,
negotiation stands out as an exceptionally flexible method of dispute
resolution. It exclusively involves those individuals or parties with a vested
interest in the matter, enabling them to shape the negotiation process according
to their specific needs and schedules. The probability of arriving at a
mutually agreeable resolution is notably high, as the consent of all parties is
a fundamental aspect of the process. By adopting an interests-based approach
rather than the more commonly used positional-based approach, negotiation
enhances the likelihood of achieving a successful outcome.
Lok –
Adalat:
Lok adalat is an old form of
adjudicating system prevailed in ancient India and its validity has not been
taken away even in the modern days too. The words lok Adalat means People's
Court. [17]This
system is based on Gandhian principal and it is one of the very important
component of alternative dispute resolution system. Since the Indian courts are
overburdened with a plethora of the cases and the regular courts are not able
to decide the cases and if being decided it involves a lengthy and inexpensive
and tedious procedure. The courts are taking years together to settle the
cases. The Lok Adalat is considered as one of the methodology of alternate
dispute resolution for expeditious and inexpensive justice. In Lok Adalat
proceedings there are no victors and vanquished and thus, no rancour.[18] Experiment
of Lok Adalat is the alternative dispute resolution has come to be accepted in
India as a viable economic efficient and informal one. The legal service
authorities act 1987 is the outcome and the rule about Lok adalat is included
as a part of it.
Benefits of
ADR on Access to Justice
1. Cost-Effective: ADR is generally more
cost-effective than traditional litigation. Legal fees, court expenses, and
lengthy proceedings can be prohibitive for many individuals and businesses. ADR
provides a more affordable option, allowing a wider range of people to access
justice.
2. Time-Efficient: Traditional lawsuits can drag on
for years, causing undue stress and financial strain. ADR processes are often
faster, ensuring that disputes are resolved more promptly, reducing the time
and resources required to reach a resolution.
3. Informality and Flexibility: ADR
methods are less formal than court proceedings, making them less intimidating
for many individuals. Parties have greater control over the process and can
tailor it to their specific needs and circumstances.
4. Preservation of Relationships: ADR
methods, especially mediation, encourage parties to work together to find
solutions. This can help preserve relationships, which is crucial in family,
business, and community disputes.
5. Reduced Caseload on Courts: By
diverting disputes away from the court system, ADR helps alleviate the burden
on overloaded court dockets. This allows courts to focus on more complex cases
and ensures that individuals with pressing matters receive quicker resolutions.
Challenges
of ADR in Promoting Access to Justice
1. Lack of Awareness: Many people are unaware of
ADR options and may not know how to access them. Raising awareness about ADR
and its benefits is essential to ensuring its widespread use.
2. Unequal Power Dynamics: In some
cases, there may be significant power imbalances between parties involved in a
dispute. This can affect the fairness of ADR processes, as the party with more
resources or influence may have an advantage.
3. Enforceability: Unlike court judgments, ADR
outcomes are not always enforceable by law. Parties may choose to disregard
agreements reached through ADR, potentially undermining the efficacy of the
process.
4. Limited Applicability: ADR may
not be suitable for all types of disputes, particularly those involving serious
criminal offenses. In such cases, traditional court proceedings are necessary
to ensure justice is served.
Conclusion.
Alternative Dispute Resolution has
made significant strides in improving access to justice by offering a faster,
more cost-effective, and flexible way to resolve disputes. Its benefits in
terms of affordability, efficiency, and preservation of relationships cannot be
underestimated. However, challenges related to awareness, power imbalances,
enforceability, and limited applicability must be addressed to ensure that ADR
fulfills its potential as a means to make justice more accessible to all.
Striking a balance between traditional litigation and ADR methods is key to
building a fair and equitable justice system that truly serves its
constituents. Advocacy for the ADR has led to the development of various
legislations India to make alternative dispute resolution mechanism available
to the litigants. This alternative method of dispute resolution which
compliments the formalities station process has now become the part of the
mainstream dispute resolution organization the research is still underway to
explorer the further possibilities in revamping the institutions of community
or family based dispute resolutions. In India the need of the hour is for a
robust infrastructure which could only be provided by credible institutional
framework which can overcome the significant challenges of the selection of the
right arbitrator or mediator or the conciliator as well as time and cost of the
proceedings
[1] Research Scholar, Department of
Law, University of Lucknow
[3] https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022081082-2.pdf
[4]
https://www.alliance.edu.in/committees/ACADR/assets/publication/Rise-of-Alternative-Dispute-Resolution-Stepping-Towards-Efficient-Justice-System.pdf
[5] ibid
[6] Supra N 1
[7] AIR 2003 SC 189
[8] Avtar Singh, Law of Arbitration
& Conciliation and Alternative Dispute Resolutions Systems,564(11th
2019)
[9] Shashank Garg, Alternative Dispute
Resolution: The Indian Perspective 177(1st 2018)
[10] Mallika Tally, Introduction to
Arbitration 2(1st, 2015)
[11] AIR 1981 SC 2075
[12] AIR 1989 SC 1263
[13] (2000) 7SCC 2011
[14] Anirban Chakraborty, Law &
Practice of Alternative Dispute Resolution in India : A Detailed analysis 20 (1st,
2016)
[15] Supra n 11 at 218
[16] Dr. Ujwala Shinde, Conciliation as
an Effective Mode of Alternative Dispute Resolving System
https://ghconline.gov.in/library/document/conference2728072018/II2Conciliation%20as%20an%20Effective%20Mode%20of%20Alternative%20Dispute.PDF
[17] Sukumar Ray, Alternative Dispute
Resolution 154( 2nd, 2020)
[18] Ibid
Article Information
THE IMAPCT OF ALTERNATIVE DISPUTE RESOLUTION ON ACCESS TO JUSTICE IN INDIA.
Authors: ANUPRIYA YADAV
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/09/19
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.