Exploring the scope of Alternate Dispute Resolution in India

It is the spirit and not the form of law that keeps the justice alive.”

    –      LJ Earl Warren

Alternative Dispute Resolution is alternate machinery devised to solve issues through an unconventional platform. ADR brings forth a new mechanism to resolve various litigation issues where the disputed parties are unable to take a coherent decision.

Historically, the origin of ADR in India finds its root in the Constitution of India. It is a quest to achieve the “Constitutional Goal” of achieving Complete Justice. It was based on Articles 14 and 21 i.e equality before law, right to life and personal liberty respectively and also takes into consideration the concept of equal justice and free Legal aid from Directive Principle of State under Article 39-A of the Constitution.

The main governing Acts of ADR are Arbitration and Conciliation Act, 1996, Legal Services Authorities Act, 1987 and Section 89 of the Civil Procedure Code.

The main motive of ADR is to create a fair and compatible alternative to our traditional judicial system. It can be seen as a fast track way of delivering justice. There are various ADR techniques mainly:

  1. Arbitration
    In this process chosen persons by parties involved hear and determine their issues and come to a fair resolution without being biased and without unnecessary delay and expense.
  2. Conciliation
    An amicable settlement is facilitated between parties in this process. No prior agreement is needed.
  3. Mediation
    This technique is made to assist two or more parties in an agreement. The parties themselves determine the terms of the agreement, the mediator just facilitates in reaching that goal in an appropriate manner.

ADR has now become the need of the hour.

“Judiciary is an important institution… but the judicial system has collapsed. A big movement is needed to improve it,”

-Prashant Bhushan

The Indian Judicial system is under a lot of stress now because of several reasons but the most persistence one is the huge stack of pending cases. The number of cases being filed has shown tremendous increase in past years and the resultant is the delay of justice. Therefore, ADR has become the call of the hour to help the Indian Judiciary in sustenance.

The resolution was adopted in this context. An excerpt from the conference held in New Delhi on 4th Dec 1993 presided by the then CJI says:”

“The Chief Ministers and Chief Justices were of the opinion that Courts were not in a position to bear the entire burden of justice system and that the number of disputes lent themselves to the resolution by alternative modes such as arbitration, mediation and negotiation. They emphasized the desirability of the disputants taking advantage of alternative dispute resolution which provided procedural flexibility, saved valuable time and money and avoided the stress of a conventional trial.”

The current scenario has become grave as the judicial system struggles to breathe. The standoff between the government and Collegium system is only accelerating the collapse of the legal system.

The Apex court is finding it hard to meet ends. Around 60 to 70 matters are heard on Mondays and Fridays by every bench and the long list for other days are not completed by the end of the day.

The condition of High Courts is no better. There are more than 50% vacancies in High Courts which imply that each judge is carrying the workload of two judges. The outcome of all this is delay in justice deliverance. The cases are adjourned repeatedly, the date of next hearing comes after months and meanwhile the people have to bear all the expenses.

The data on pendency of cases is frighteningly high:
Supreme Court: 62, 657 cases
High Courts: 38, 70, 373 cases

It will take a long time to eliminate this backlog. There is sense of dissatisfaction and disappointment that can be addressed with a mechanism that ADR promises to provide.

ADR mechanism has various advantages that are helping in its growth exponentially. It is affordable and easily available to people belonging to every strata of society, especially the poor people who cannot afford the litigation expenses. It is a much less time consuming process unlike the traditional system which takes years to deliver justice. It is free from all the technicalities of the normal court and doesn’t require any expert knowledge. Moreover the feeling of losing is not there; hence all the parties go as winners in ADR.

ADR has now become a gratifying system. In many countries the ADR mechanism has made their prior law governing bodies passive.

Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser- in fees and in expenses, and a waste of time.”

Abraham Lincoln



ABOUT THE AUTHOR

prerna-deep

Prerna Deep is currently a first-year student at Campus Law Centre, University of Delhi.  She has completed English Honours from Miranda House, DU. Literature gave this forever bibliophile the wings to follow her heart and Law gave her the strength to believe that she too can change the world. She considers receiving an award for her essay on ‘Women and Law in India’ from Mr Ram Jethmalani a treasure. When not writing she’s probably binge-watching sitcoms.  She believes nothing describes her best than Virginia Woolf’s words:
“I have a deeply hidden and inarticulate desire for something beyond the daily life.”

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