Anda di halaman 1dari 19

NATIONAL LAW SCHOOL OF INDIA UNIVERSITY, NAGARBHAVI,

BANGALORE

IMPORTANCE OF ADR IN THE CURRENT INDIAN SCENARIO

KISHOR KUNAL
FINAL YEAR LL.M. (BUSSINESS LAW)
EMAIL ID: kkunal.llb@gmail.com

Electronic copy available at: http://ssrn.com/abstract=1969164

I realized that the true function of a lawyer was to unite parties... A large part of my time
during the 20 years of my practice as a lawyer was occupied in bringing about private
compromises of hundreds of cases. I lost nothing thereby - not even money, certainly not
my soul

......Mahatma Gandhi

Introduction:Any dispute is just like a Cancer. If it is resolved sooner, it is better for all the parties
concerned to it. If it is not resolved at the beginning, it grows at the very fast rate and with
time, it becomes very difficult to resolve it1.As new issues emerges and conflicting situation
flourish. In this way one dispute leads to another and new complexities arises thereby leading
to multiplicity of proceedings. Therefore, it is always better to resolve it at the moment it
rears its head. Therefore, it is necessary that the procedure of resolving it must be agreeable
by both the parties2.
The preamble of the Constitution of India declares to ...... to secure all its citizen justice,
liberty, equality and fraternity. The justice granted to citizen is of social, economical and
political. However, the mode of delivering the justice to the citizen of India poses so many
questions.3 It is in this regard necessary to put the question that whether the present system of
access to justice is satisfactorily fulfilling the constitutional goal?
The present mode of access to justice in India is based on the adversarial legalism. This
system is generally followed in the common law countries. In this mode of justice the State
plays a neutral role and it is parties who are responsible for initiating and conducting
litigation. However, any crime is considered as an offence against the State in which such
proceeding is initiated. This mode of justice was adopted by the Britishers to exploit the
masses in their colonies. The whole set up was for the convenience of the administration in
which the position of the power addressee was very pathetic. If we analyse the adversarial
legal system, we could find that there is no parity of power between the parties to the dispute.

Anurag k. Agarwal, Role of Alternative Dispute Resolution methods in development of society : Lok
Adalat in India, available at www.napsipag.org/pdf/Lok_Adalat.pdf accessed on 28-04-11.
2

Id;
Id;

Electronic copy available at: http://ssrn.com/abstract=1969164

It discriminates on the social, economical and political ground and thus directly hit to the root
of the Constitution.
The adversarial system of justice is plagued by the high cost of litigation, delay, technicalities
of law, uncertainty and exploitation of parties by the advocates. Therefore, it is necessary to
think over the inquisitorial form of justice. Alternative Dispute Resolution (hereinafter ADR)
has emerged as a solution to the problems posed by the adversarial system of Justice at least
in the small cases.

HISTORY OF ALTERNATIVE DISPUTE OF RESOLUTION IN INDIA:-

ADR is not new to India. Mediation was a method of dispute resolution in India even
centuries before British arrived. In ancient time there was Panchayat System in India. This
system was used by the village heads to resolve community dispute. It is prevalent in Indian
society till date. Mediation was used as a tool to resolve the dispute even in the businessmen
class in pre-British period. At that time impartial and respected businessman were requested
by business association members to resolve disputes through informal procedure.4

In pre-British period in tribal areas disputes were resolved by panchas, who were wise
persons of that locality. The disputant members of a tribe used to present their dispute to the
panchas who had to work out for settlement. In case of its failure it was referred to a public
forum attended by all interested members of the tribe for resolution. After considering the
dispute, available solution, interest of the tribe in great detail, panchas used to try once more
to resolve it. If settlement was possible yet, then the panch rendered a decision that was
binding upon all the parties. However, the decision of the panchas was not arbitrary rather it
was based on the tribal laws as well as such other consideration which was necessary to
maintain harmony and prosperity. 5 The main significance of this system was that all
proceedings were oral and there was no record of the outcome. Instead of legal authority
those kinds of dispute resolution procedures were regularly used and commonly accepted in
the Indian society.6

Anil Xavier, Mediation: Its origin and growth in India, available at


www.arbitrationindia.org/pdf/mediation_india.pdf.
5
Id;
6
Supra n.4;

Thus, in India ADR is not a new concept rather ADR relating resolution has been amended
from time to time to cater speedy dispute resolution. Indian judiciary has also encouraged it at
various occasions 7 . For eg : In Salem Advocate Bar Association v. Union of India 8 the
Honourable Supreme Court of India directed the constitution of an expert committee to
formulate the manner in which the provision relating to ADR incorporated in Section 89 9 of
Civil Procedure Code 1908 has to be brought into operation 10 . For the effective
implementation of ADR mechanism, several organisations and institutions like ICA, ICADR,
Consumer Redressal Forum and Lok Ad alat were revived. The Old Arbitration Act, 1940
was repealed and new Arbitration and Conciliation Act, 1996 was enacted. The new Act of
1996 is based on International Trade Law (UNCITRAL) model law on International
Commercial Arbitration.11

7
8

http://www.sethassociates.com/alternative_dispute_resolution.php accesed on 28-04-11.


Writ Petition No.496 of 2002 decided on 25.10.2002

Section 89. Settlement of disputes outside the Court.

(1) Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties,
the court shall formulate the terms of settlement and give them to the parties for their observations and after
receiving the observation of the parties, the court may reformulate the terms of a possible settlement and refer
the same for(a) arbitration;
(b) conciliation
(c) judicial settlement including settlement through Lok Adalat; or
(d) mediation.
(2) Where a dispute had been referred(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 shall apply as if
the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act.
(b) to Lok Adalat, the court shall refer the same to the Lok Adalat in accordance with the provisions of subsection (1) of section 20 of the Legal Services Authority Act, 1987 and all other provisions of that Act shall
apply in respect of the dispute so referred to the Lok Adalat;
(c) for judicial settlement, the court shall refer the same to a suitable institution or person and such institution or
person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 shall
apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;
(d) for mediation, the court shall effect a compromise between the parties and shall follow such procedure as
may be prescribed.
10

Praveen Dalal, The culture of ADR in India, available at


www.odr.info/THE%20CULTURE%20OF%20ADR%20IN%20INDIA.doc accessed on 27-04-11.
11
Supra n.7

PENDENCY OF CASES IN THE INDIAN COURT:Delay in justice not only affects the interest of the litigants but also undermines the capability
of the judicial system in imparting justice in efficient and effective manner. In Babu Singh v.
State of Uttar Pradesh12, Krishna Iyer J. while dealing with the bail petition remarked, Our
justice system even in grave cases, suffers from slow motion syndrome which is lethal to fair
trial whatever the ultimate decision. Speedy justice is a component of social justice since the
community, as a whole, is concerned in the criminal being condignly and finally punished
within a reasonable time and the innocent being absolved from the inordinate ordeal of
criminal proceedings. Similarly, in Sheela Barse v. UOI13 the Honourable Court reaffirmed
that speedy trial to be fundamental right. Thus Right to speedy trial is well recognized
fundamental right at present.14
There are many forum of appeals provided in the existing legal system. For eg :- appeal from
small causes court lies to the District Court on both facts and law and again right of second
appeal lies in the High Court which is known as Letters of Patent Appeal. This various
forums of appeal results cater delay in the justice delivery system15.
Till July 2009, there were 53,000 cases pending in the Supreme Court, 40 lakhs in the
different High Courts of India and 2.7 Crore in the different lower Court. Even if we assume
that no fresh cases would be filed and there will be no increase in the strength of the judge
then it would take 9 months to the Supreme Court to clear the backlog. Similarly, it would
take 2 years and 7 months for the High Courts and 1 year and 9 months for the Lower Court
to clear the pending cases. However, the figure would vary if we look the individual High
Courts and Lower Courts. For eg. Allahabad High Court needs nearly 6 years to clear the
backlog16. ADR has emerged as a new trend preventing court litigation and resolving disputes
quickly and amicably.

12

AIR1978SC527
(1986) 3 SCC 235
14
http://www.mightylaws.in/439/delayed-justice-inhuman-act
15
Avtar singh, Law of Arbitration and Conciliation, sixth edition, Eastern book Company, 2002.
16
PRS
Legislative
Research,
Centre
for
policy
Research,
New
Delhi
www.prsindia.org/.../1251796330~~Vital%20Stats%20%20Pendency%20of%20Cases%20in%20Indian%20Courts%2026A
13

available

at

NEED FOR ALTERNATIVE DISPUTE METHODS:The main reason for the origin or need of the ADR is the tiresome processes of litigation,
costs and inadequacy of the court system17. It has ability to provide quick and cheap relief.
The present mode of adversarial system fails in providing the real justice between the parties.
The party, who approaches the Court of justice with pain and anguish in their heart, faces
various problems and suffers physically, economically and mentally. The present system fails
to deliver quick and inexpensive relief to the party. The procedure is also very complex. This
leads to a search for an alternative mechanism which should be inexpensive, quick and with
supplementary to the process of the traditional civil court. However, at the same time the
elements of judiciousness, fairness, equality and compassion cannot be discarded for
expeditious disposal. It is well said that justice delayed is justice denied and at same time, it
is also said that justice hurried is justice buried. In Fuerst Day Lawson Ltd v Jindal
Exports Ltd18 the Honourable Supreme Court held observed that the object of Alternative
Dispute Resolution Act 1996 is to provide speedy and alternative solution to the dispute and
avoid protraction of litigation. The provisions of the Act have to be interpreted accordingly.

Alternative Dispute Resolution promotes amicable settlement and help in the preservation of
the relations. Since there is direct involvement of parties in the settlement process there is no
need of the involvement of technical and formal procedures. However, amicable settlement
does not mean compromise at any cost rather it is reasonable compromise factor. 19
LEGISLATIONS RELATING TO ADR IN INDIA :Legislators in India has incorporated various provisions in different statutes pertaining to
ADR. The list of such legislations are as follows :i)

Section 89 of Civil Procedure Code.

ii)

Order 23 Rule 3 of the Civil Procedure Code.

iii)

Order 32-A of the Civil Procedure Code.

iv)

Section 80 of the Civil Procedure Code.

v)

Arbitration and Conciliation Act 1996.

17

Avtar Singh, Law of Arbitration and Conciliation, sixth edition, Eastern Book Company, Lucknow, 2002, p.
329.
18
(2001) 6 SCC 356: AIR 2001 SC 2293
19
P.C Rao & William Sheffield, ADR IN THE CONSTRUCTION INDUSTRY, Universal Law Publishing Co. Pvt. Ltd.,
1997, P.316

vi)

Legal Services Authorities Act 1987.

vii)

Industrial Dispute Act

viii)

Section 320 of Criminal Procedure Code

ix)

Section 9 of Family Court Act

x)

Inter state water Dispute Act

DISADVANTAGE OF LITIGATION
Article 2120 encompasses all conceivable human rights within its ambit. It is a directive to the
State to refrain from infringing the right of life or personal liberty of a person.21In Hussainara
Khatoon v. Home Secretary22, State of Bihar, the Honourable Supreme Court held right to
speedy trial as a part of right to life or personal liberty. In Abdul Rehman Antulay v. R. S
Nayak 23 , the court asserted that the Right to speedy trial flows from Art. 21 and
encompasses the stages right from the date of registration fo the FIR and onwards, remains
unaltered.24
Following are the disadvantages of litigation :i)

Cost The present adversarial system of litigation is too expensive and at times
the cost exceeds the value of the claim. It is expensive, financially and
emotionally both. The cost of litigation includes the payment of court fees, fees
paid for summons and other processes, advocates fees etc. Though the
government pays to the judges and provide building and other infrastructure
necessary to try cases. Yet the fact is that the litigant has to bear the high cost in
the litigation and the most important expense is to bear the lawyers fees.

ii)

Delay The delay is the most disadvantageous part of the litigation. If we look at
general proceeding in Civil cases it takes at least 15-20 years to be decided. In
some of the cases it is the next generation which litigate the dispute. In grave
criminal cases also it takes at least decade. The delay result into the physical,
mental and financial harassment.

20

No person shall be deprived of his life or personal liberty except according to the procedure established by
law.
21
Ashok K. Jain, Constitutional Law of India ( Part II), Second edition, Ascent Publication, Delhi, 2009,p.137.
22
1980) 1 SCC 81.
23
(1992) 1 SCC 225.
24
id; p.154.

iii)

No Parity of Power There is no parity of power between the wealthier litigant


and under resource litigant. Parity of power refers to the balance between the
parties. If one party is rich and other is poor than there is all chances of the
exploitation of the later. The reason is that the rich person can afford the best
lawyer of the country whereas the poor person will not be in a position to afford
such lawyer. Secondly, the delay overburdens the expenses of the litigation.
Therefore, the time will come when the poor person would abandon his claim or
go for out of court settlement.

iv)

Uncertainty There is no certainty about the result of the litigation and how long
it will last which induces the fear of incomprehensible to litigants.25

v)

There is no chance of reconciliation in family disputes. Parties never forget the


bad things said by their spouses at the trial.26

vi)

Lack of expertise There is lack of expertise of judges in the present legal


system in commercial and technology disputes matter. This has resulted in wrong
decisions and consequential appeals to higher forums.27 For example In matter
relating to building the person chosen to decide the matter should be normally an
expert in the subject matter of dispute, whereas the judges in the court will seldom
have any practical experience of the technicalities of the trade in question.
Therefore, they cant appreciate the matter satisfactorily. Even if experts are
called to assist them, their opinion is not binding upon the judges. 28 In Mitsubishi
Motors Corporation v. Soler Chrysler Plymouth Inc. 29 The Supreme Court of
Australia highlighted one advantage of arbitration as the adaptability and access to
expertise as hallmarks of arbitration. It made a point that the arbitrator is an expert
in the subject-matter appointed by the party to the dispute or the tribunal itself.30

vii)

Win lose Scenario In present legal system Court act as Courts of law and not
as court of equity. It leads to win- lose scenario, there is no mutual acceptable
decision.

viii)

No privacy - The another disadvantage of litigation is that pleading and document


filed in the court becomes public document and any person can have access of it.

25

http://www.lady4justice.com/2-2-8_litigation.cfm visited on 27-04-11.


Id;
27
http://www.hg.org/articles/article_1530.html visited on 27-04-11.
28
Dr. Avtar singh, Law of Arbitration, Third edition, Eastern Book Company, Lucknow, 1994, p.6.
29
87 LED 2d 444 (1985) at 459.
30
Supra n.9.
26

DEVELOPMENT OF TECHNOLOGY AND ADVANCEMENT OF


SOCIETY AT PRESENT TIME
Present era is the age of technology, since last century technological advent has been an
ongoing process. This has made a great impact on the commercial life by increasing the
competition throughout the world.31 At the same time it produces concern for the protection
of the consumers right. Various new issues emerging in the society and the present legal
system is not sufficient to give any response to the new atmosphere and problem of the
commercial world. In such a situation, ADR has emerged as a powerful weapon for
resolution of disputes at domestic as well as international level. And now it is developing as
an independent and separate legal branch.32

Till 2009, Indian Information Technology (IT) industry accounted for a total of 5.19% of the
countrys GDP while providing employment to its various tertiary sectors. The annual
revenues from IT-BPO sectors have increased over US $ 76 billion in 2010-11. India is
producing around 5,00,0000 engineers each year. India is leading country in providing
outsourcing for customer support via Internet or Telephone connections. By 2009 India has
total of 37,160,000 telephone lines in use and total of 5.06,04,0000 mobile phone
connections. Around 7,570,000 people in the country have a access to broadband internet
which makes it 12th largest countries in the world in terms of Broadband users. With the
drastic growth in this communication sectors , the crime has also emerged as a challenge to
the government. Cyber Crime is more burning issues at this time. Hacking of internet, online
banking services etc. poses a great threat.

In this backdrop it must be mentioned that the Police, lawyers, judges etc. are not sufficiently
equipped to handle such technical cases and therefore require proper training about these
technology. Their lack of technological knowledge put them in great trouble and which paves
the way of delay in resolving a dispute33. Cyber crime, is one such example where most of
the police, judges of lower courts do not have even primary knowledge of computer, in such
situation how one can expect the resolution of dispute with them.34
31

Supra n. 1.
Id;
33
http://cyberlawsinindia.blogspot.com/2010/03/perry4law-launched-online-dispute.html visited on 28-04-11
34
.id;
32

Globalisation has thrown open the world market to every nation of the world. It has turned
the world as small play ground for gigantic companies. Even countries like India has opened
its market and marched on the path of economic liberalisation, industrial deregulation,
privatisation of state owned enterprises and reduced controls on foreign trade and
investment35. Since trades are no longer restricted within the boundaries of a nation, the
nomenclature of the contracts entered into has also changed. International Contract is often
difficult for the parties to agree on the choice of the national Court. It is also true that choice
of a state Court in a third country is seldom appropriate. Further, judicial proceedings are
time consuming and set impediments in business transactions. Under such situation ADR
emerges as the most suitable option to the parties to such disputes36. Moreover, ADR gives
more autonomy to the parties in matters relating to selection of the neutral third party who
shall preside the proceedings, the rule they are to be bound by and the time limits within
which the dispute is to be settled. These discretion vested in the parties ensure expedient
disposal of the matter.

METHODS OF ALTERNATIVE DISPUTE RESOLUTION AND ITS


MERITS AND DEMERITS
The administration of justice is one of the essential functions of the State. The disadvantage
of adjudication has already been discussed in Chapter II of this paper. Considering those
disadvantages it can be said that the time demands, some alternative methods for resolving
the disputes, much quickly and efficiently. Therefore, the method like arbitration, mediation,
conciliation, specialised tribunal, consumer forum etc. was evolved37. Lok Adalat is the fine
blend of all38. Following are the methods of Alternative Dispute Resolution :i)

Lokadalat In 1987, the Legal Services Authorities Act was enacted by the
Parliament which came into force on 9th November, 1995 with an object to
establish a nationwide uniform network for providing free and competent legal
services to the weaker sections of the society on the basis of equal opportunity.

35

https://www.cia.gov/library/publications/the-world-factbook/geos/in.html visited on 28-04-11.


G K Kwatra, Arbitration and alternative dispute resolution : How to settle business disputes, Lexis Nexis,
New Delhi, 2004.
37
Arnab kumar hazra, The law and Economics of Dispute Resolution in India, Bookwell, New Delhi,
2003,p.180.
38
Supra n.1.
36

10

Lokadalat means Peoples Court. There are mainly two object of Lok Adalath
:a) It is to provide quick, accessible, non-technical, sympathetic and homely
forum for resolution the disputes, and
b) To resolve the disputes in a conciliatory spirit.
This method facilitates the parties to come to some form of agreement irrespective of whether
they answer the requirement of law or not. It is a form of administrative method of dispute
resolution.
ii)

Arbitration and Conciliation The Arbitration and Conciliation Act -1996


provides an alternative mode of dispute of resolution through arbitrator and
conciliator.

iii)

Mini Lok Adalats

With the object of providing justice to rural and tribal people mini lok adalat was
constituted at sub-district level and in villages . It cater justice to them at their
door-step. Local advocates and officials and social workers take part in the mini
lok adalat39.

iv)

Village Courts
These are units of self-government. They are like village panchayat. Village
panchayat is under the subject of state list. There are five members in the village
court . In some state these members are elected whereas in some they are
nomitate. There is no need of legal qualification to become the member40.

v)

Mediation Centres
Mediation centre originated in year 1983 , in Tamil Nadu, in rural areas under the
Tamil Ndu Legal Aid and advice boards. The main object of the mediation centre
is to promote settlement of disputes which came before it. There is participation
of local social worker and mediator lawyers.41

39

Avtar singh, Law of Arbitration and Conciliation, sixth edition, Eastern book Company, 2002, p.341.
Id;
41
Id;
40

11

vi)

Family Courts Act of 1984It was enacted to establish family courts with the object to promote conciliation
and speedy settlement in marriage and family cases. It deals with conjugal right
restitution, decree of nullity, judicial separation and dissolution marriages42.

ADVANTAGES OF ADR:A judge is considered to be trained in the law in order to decide legal issues and parties are
not required to pay him. Then the question arises what is the need of appointing an
arbitrator? The answer to this question is that a judge may be expert of law but he can not be
expert of all laws particularly the new emerging technological fields. Such as Cyber law,
IT law, Buiding Construction work, Investment law etc. In fact, it is not possible for any
human being to be the master of all laws. In the 176th report of the Law Commission, Justice
B.P. Jeevan Reddy has suggested that the principle of least court interference may be fine
principle for international arbitration awards but having regard to Indian conditions and the
fact that several awards are passed in India as between Indian nationals sometimes by lay
men who are not well acquainted with law, the interference with such awards should not be
as restricted as they are in the matter of international arbitrations.43
Justice Malimath Committee Report
It was recommended by the committee that after the framing of the issue it should be made
obligatory for the court to refer the dispute for settlement either by way of arbitration,
conciliation , mediation, or through lokadalat44.
Following are the some advantages of ADR :i)

Privacy and Choice in the Tribunal One of the major significance of


arbitration is privacy and confidentiality of the proceedings. Some people prefer to
settle their dispute out of the public gaze. Particularly in matrimonial disputes it is
very effective. Because people dont want that their private disputes to come in

42

Id;

43

Reddy,B.P.Jeevan, Law Commission of India 176th Report on the Arbitration And Conciliation
(Amendment) Bill, 2001, 12th September 2001, available at: httplawcommissionofindia. nic.inarb.pdf
accessed on 22-04-11.
44
Supra n.17,p.51.

12

the public. Arbitration also saves matrimonial home and relations because the
dispute is resolved peacefully with the consensus of the parties. If matters come to
the ordinary civil court in most of the cases the relation become strained and
family shatters. Further, some disputes involve highly technical issues therefore it
would be useful if at least one member of the tribunal is expert in that field. Since
in arbitration it is the party who select the member of the tribunal, they select at
least one member expertise in that field. However, in the ordinary court judge may
not be expert in that field and therefore we cant expect proper justice in that
case.45

ii)

Flexibility
Arbitration is very much flexible both in time and procedure. If dispute needs
urgent resolution, the parties can choose a tribunal who will act promptly rather
depending on the luck of the draw from a court list. The parties are also free to
choose the most suitable procedure. The parties are also free to be represented by
anyone of their choice and they are not bound by rules limiting appearance to
persons with particular legal qualifications. 46

iii)

Neutrality and Equality


Where the parties belongs to the different countries they dont wishes to litigate in
the ordinary court of law rather they prefer arbitration. Because arbitration offers
them neutrality in the choice of law, procedure and tribunal. They can choose the
law and procedure of the third or they can appoint an arbitrator which belong to
the third country. It gives them confident of equality and there is parity of power
between them47.

iv)

Principal of Natural Justice Arbitrator is not bound by the strict procedure of


the Civil Procedure Code and law of evidence. However, he has to follow the
principle of natural justice. It is one of the advantage of the alternative dispute
resolution that it avoids technicality and complexity of law and focus on the

45

Russell on Arbitration, Sweet & Maxwell, twenty-first edition,London, 1997, p.9.


Id; p.10.
47
Id;
46

13

problem of the disputant parties and try to resolve it with simple method or
procedure.

v)

Enforceability of award
Another advantage of the arbitration is the extensive enforceability of the award.
Today, there are various conventions which recognise arbitral awards and enforce
it in many countries than English court judgment.48

vi)

Control over both the process and the outcome


An important benefit of using ADR methods is that the disputant has control over
both the process and the outcome of the resolution.

vii)

Amicable Settlement - Alternative disputes method promote amicable settlement


of dispute. It enables the parties to resolve the dispute and bury the past. Which
results in the preservation of the present relation and at the same time it paves
better for future.49

viii)

Payment of Court fee In Alternative Dispute Resolution there is no need of


payment of Court fees as it is paid in the ordinary court before the hearing of civil
cases. If court fee is not paid, the court does not entertain the suit. Sometimes, the
parties are not in a position to pay the court fee. ADR is the best resort for those
kind of people.

ix)

When a disputant goes to the court, he knows that he would win or lose all. On the
Contrary, if he gives his consent for the informal settlement, he knows very well
that he might not get all that he wants, but he will also not lose everything50.

x)

Procedural flexibity ADR provides procedural flexibity which is not found in


the traditional court. It may be as casual as a discussion around the conference
table. The disputant has freedom to choose the procedure and applicable law51.

xi)

Win- Win Situation The Court procedure results in win-lose situation. In other
words, in the ordinary court litigation a party shall either win the case or lose his

48

Id;
Supra n.1
50
Supra n.1..
51
Dr. K. D Rajum Alternate Dispute Resolution Sysystem : A prudent Mechansim of Speedy Redress in India,
available at: http://ssrn.com/abstract=1080602.
49

14

claim. On the contrary, in ADR a person may not get all that he wants, but he will
certainly not lose everything.
xii)

The most significant feature of ADR is that it does not only resolve the dispute but
also the pathology of the dispute. Which hit at the root of the dispute and it bring
normalcy in the relationship of the disputant.

xiii)

ADR provides participatory solution. Being participatory solution in nature its


implementation becomes easier.

CONCLUSION AND SUGGESTION


Belief in alternative dispute resolution takes on the character of a moral value. For believers it
represents a best practice not only in producing technically superior outcomes but of being
the right thing to do. To conclude, it is suggested that ADR system should be
institutionalised. But at the same time a caveat is also suggested, that one must be careful to
avoid the dysfunctions that frequently accompany successful institutionalisations. Because
the ADR movement is still in the formative stage, there is much to learn about the feasibility
of alternatives to litigation. ADR is, as yet, a highly speculative endeavor. We do not know
whether ADR programs can be adequately staffed and funded over the long-term; whether
private litigants will use ADR in lieu of or merely in addition to litigation; what effect ADR
may have on our judicial caseload; whether we can avoid problems of "second class" justice
for the poor; and whether we can avoid the improper resolution of public law questions in
wholly private fora. In light of these and other uncertainties about ADR, we should continue
to view alternative dispute resolution as a conditional venture, subject to further study and
adjustment. Every new ADR system should include a formal program for self-appraisal and
some type of "sunset" arrangement to ensure that the system is evaluated after a reasonable
time before becoming permanently established.
ADR can thus play a vital role in constructing a judicial system that is both more manageable
and more responsive to the needs of our citizens. It is essential, as the aforesaid discussions
illustrate, that this role of ADR be enhanced in the resolution of important constitutional and
public law issues by ADR mechanisms, that are independent of our courts. Fortunately, few
ADR programs have attempted to remove public law issues from the courts. Although this

15

may merely reflect the relative youth of the ADR movement, it may also manifest an
awareness of the danger of public law resolution in non-judicial fora.
The main object of Alternative Dispute Resolution is to give quick, cheaper and efficient
dispute resolution. I suggest following methods to promote ADR in India52 :i)

There is need to spread awareness of ADR through seminars, workshops and other
means to not only uneducated people but also well educated people. Because in
most of the cases it has been seen that even well educated people are much aware
about its structure and functioning.

ii)

At the same time, there is need to extend or create facilities, services and
infrastructure for the effective implementation of ADR practice.

iii)

There is need of effective coordination both at operational and structural level for
the success of ADR mechanism.

iv)

There is need of promoting pre-trial conciliation.

v)

There is need of establishing institutions to provide proper training to mediators,


negotiators, and conciliators.

vi)

There is need to establish more organisations like ICA, ICADR , Indian Chamber
of Commerce to promote and strengthen the ADR mechanism.

vii)

Organising legal aid camps in rural areas: In rural areas people are not even aware
about their basic fundamental rights. They must be made aware about it and also
about the available forum for the redressal of their grievances.

viii)

No compromise on Quality: Free legal aid should not mean providing poor or
inferior legal services. The lawyer to provide the free legal aid service should be
experienced. As Justice Blackmun has rightly said in Jackson v. Bishop that;
"The concept of seeking justice cannot be equated with the value of dollars.
Money plays no role in seeking justice."

ix)

Student interest Classroom teaching can teach the basics of law but can not
imbibe among the students the sense of humanity and moral obligation to aid the
poor and the destitute. In this regard I would like to appreciate the initiatives taken
by the various universities for incorporating practical training of students in the
course curriculum. For eg :- Bangalore university provides 200 marks for this
curriculum in B. A. L.LB programe. If we give the law students exposure of lok

52

Supra n.7

16

adalat, mediation centre, court visit, jail etc. then only they could follow it up and
develop interest to choose it as a carrier option. If law students are given such
exposure it has two two-fold benefit :a) Needy people like under trial prisoners will aware from the legal status of their case
b) Student would get practical application of law which would help them once they pass
out from the college and join profession.
x)

There is need to encourage Gram Nyayalaya, Mobile Courts etc.

xi)

There is need to encourage networking among various law schools and colleges to
organize more seminars and conference on the importance of ADR not only in
Law schools and colleges but also in other corporate offices, rural areas etc.

17

BIBLIOGRAPHY
STATUTES :1. Arbitration and Conciliation Act 1956
2. Code of Civil Procedure Act 1908
3. Constitution Of India
REPORTs :1. Government of india law commission of india, Need for Justice-dispensation through
ADR etc., Report No. 222, April 2009.
2. Government of India law Commission of India, Report no. 228.
3. Justice Malimath Committee Report.
4. Reddy,B.P.Jeevan, Law Commission of India 176th Report on the Arbitration And
Conciliation (Amendment) Bill, 2001, 12th September 2001, available at:
httplawcommissionofindia. nic.inarb.pdf accessed on 22-04-11.

BOOKS
1. Hazra, Kumar Arnab, The law and Economics of Dispute Resolution in India,
Bookwell, New Delhi, 2003.
2. Jain, Ashok K., Constitutional Law of India ( Part II), Second edition, Ascent
Publication, Delhi, 2009.
3. Kwatra, G K, Arbitration and alternative dispute resolution : How to settle
business disputes, Lexis Nexis, New Delhi, 2004.
4. Rao, P.C & Shefield William, Alternative Dispute Resolution : What it is and
how it works, First edition, Universal Law Publishing Co. Pvt. Ltd., Delhi,
1997.
5. Roberts, Simon and Palmer, Michael, Dispute Processes : ADR and the
Primary Forms of Decision-Making, Second edition, Cambridge University
Press, 2005.
6. Russell on Arbitration, Sweet & Maxwell, twenty-first edition, London, 1997.
7. Singh, Dr. Avtar, Law of Arbitration and Conciliation, eighth edition, Eastern
Book Company, 2007.
8. Sharma. R. A, Hand Book of Arbitration in Construction Contracts based on
Arbitrantion & Conciliation Act, 1996, First edition, Om Law Book House,
1997.

18

ARTICLE
1. Agarwal, Anurag k., Role of Alternative Dispute Resolution methods in

development

of

society

Lok

Adalat

in

India,

available

at

www.napsipag.org/pdf/Lok_Adalat.pdf accessed on 28-04-11.


2. Allen, Franklin, Comparing Legal and Alternative Institutions in Finance and

Commerce, available at http://ssrn.com/abstract=1136168, accessed on 27-4-11.


3. Dalal,Praveen,

The

Culture

of

ADR

in

India,

available

at

www.odr.info/THE%20CULTURE%20OF%20ADR%20IN%20INDIA.doc
accessed on 28-04-11.
4. Gupta, Sayantan, Alternative Criminal Dispute Resolution System : An evolving

interface in India available at http://ssrn.com/abstract=1461375, accessed on 2704-11.


5. Raju, Dr. K. D Alternate Dispute Resolution Sysystem : A prudent Mechansim of

Speedy Redress in India, available at: http://ssrn.com/abstract=1080602 accessed


on 28-04-11.

Websites :1. http://www.lady4justice.com/2-2-8_litigation.cfm visited on 27-04-11.


2. http://www.hg.org/articles/article_1530.html visited on 27-04-11.
3. http://cyberlawsinindia.blogspot.com/2010/03/perry4law-launched-onlinedispute.html visited on 28-04-11
4. https://www.cia.gov/library/publications/the-world-factbook/geos/in.html
visited on 28-04-11.

19