The author of this article is Anjum Salina, from Sultan-Ul-Uloom College of Law, affiliated with Osmania University.
Alternative Dispute Resolution (ADR) is a relatively booming remedy for pending cases in the Judiciary of India. While cases are on the rise, it is clear that the Indian judiciary is ineffective in handling ongoing cases.
Most people no longer have time to go to court, file papers and wait long hours for a hearing; it seems endless. Alternative Dispute Resolution has emerged as a ray of hope to eliminate the shortcomings and inefficiencies of the Indian justice system.
Meaning of Alternate Dispute Resolution
Alternative Dispute Resolution (ADR) cites a procedure for settling disputes outside court or without litigation. Simply put, when it is difficult to resolve a conflict between two parties to reach modus Vivendi, Alternative Dispute Resolution plays a significant role. Predominantly, a third party is hired or even appointed by the court, to help both the parties to cooperate and communicate until the dispute is settled. When the courts are not legally allowed to impose a judgment on the conflicting parties, Alternate Dispute Resolution puts forward a more creative way out.
Concept of ADR
The earliest instance of arbitration dates back to ancient India. In the past, interventions, such as arbitration or dispute mediation, were done by municipal courts, which has been common in India since Vedic times. Several historical citations confirm that arbitration was practiced before the era of Christ, and even leaders resorted to arbitration in settling territorial disputes.
In Hindu law, the oldest known treatise, “Brihadaranyaka Upanishad”, attests to the prevalence of arbitration in the Vedic era. It highlighted the three main arbitral tribunals:
- The Puga: the local courts
- The Sreni: people engaged in distinct business or profession
- The Kula: members concerned with social matters of a different community.
These three bodies are unitedly known as “panchayat.” The members of these bodies were the ‘panchas’ then the arbitrators used to deal with disputes under a framework now called Arbitration.
Islamic Law, the Shari’ah, saw the incorporation of its principles into Indian culture during Muslim rule. These laws were systematically compiled in the form of an explanation by Abu Hanifa, known as ‘Hadiya’.
During Muslim rule, an arbitrator was required to have the qualities of an official judge (Qazi) presiding over court proceedings. ‘Hadiya’ provisions were made for arbitration between the disputing parties. In case both parties were Muslims, the entire procedure is governed by Sharia law.
This court has all power to enforce arbitral awards, but the question or reasoning cannot be considered on the merits.
In recent times, where India is still developing, many people live in poverty. When these poor people find themselves in unfavourable conditions, especially when their rights are infringed, they choose to stay silent. While they lack financially, even to afford a lawyer, long battles in court seem out of question.
As stated in Report No. 222 of the Law Commission of India, access to justice for ordinary citizens is hampered by factors like poverty, illiteracy, social backwardness, innocence, etc.
These kinds of inefficiencies occur in every country through which ADR is being explored. For that reason, the Government of India replaced the previous Arbitration Act 1940 with the Arbitration and Conciliation Act of 1996 and enacted Section 89 of the Civil Procedure Act of 1908.
Forms of ADR mechanism
Even after the establishment of several fast-track courts, pending cases continue to pile up. To address this, alternative dispute resolution (ADR) can be a constructive mechanism and has various forms of peaceful conflict resolution.
Below are the mechanisms that differ from one country to another, and here are some of the forms:
Arbitration: In this form of dispute settlement mechanism, the parties to the dispute choose an independent arbitrator to settle the matter. The arbitrator’s settlement is legally binding on the parties and is known as “arbitration”. The main target of arbitration is to reach a fair settlement out of court without delay and unreasonable expenses.
Conciliation: It is an informal, private process in which a neutral third party helps the involved parties individually to arrive at a modus vivendi. The person who resolves the conflict is described as a ‘conciliator.’
Usually, the conciliator would independently scrutinize the dispute on its merit and draft his report suggesting the approach of settlement of disputes.
Negotiation: Closely resembling Mediation, negotiation is a process wherein parties in conflict themselves would resolve their dispute. In India, negotiation doesn’t have statutory recognition, with no set of rules for negotiating. It provides an opportunity for the parties to exchange ideas, see the inconvenience, find a way out, and get a commitment from the parties to reach an agreement.
Mediation: It is a process in which the mediator, an outside person, brings the parties together for an amicable settlement of their disputes. Mediation provides a basic opportunity for the parties to negotiate, converse, and explore multiple options aided by the settlement mediator.
Legal Framework: Legal Services Authority Act, 1987
The National Legal Services Authority of India is a corporation of the Indian Government that gives cost-free legal services to its citizens.
Under the Legal Services Authorities Act of 1987, NALSA, which came into effect on November 9, 1995, was created to make a nationwide, unified network, providing free competent legal services to the weaker sections of society, and made Lok Adalat for the amicable settlement of disputes.
NALSA is found in every state and every district has its own State/District Legal Services Authority to administer effect to the policies and directions of NALSA.
While State Legal Services Authority is headed by Hon’ble CJ of the High Court, District Legal Services Authority is chaired by the District Judge of the respective district.
Article 14 and Article 22(1) of the Indian Constitution compel a state to safeguard equality before the law, whereas Article 39A of the Constitution provides free legal aid to the poor and vulnerable groups of society to promote justice underpinned by civil rights.
Sustainable development Goal-16 has been relevantly achieving by the role played by NALSA, which aims to “Promote peaceful, inclusive societies for sustainable development, also provide access to justice and build effective, accountable institutions at all levels”.
This approach has been further developed through the judgment of various courts, examples are the Delhi High Court in the Abul Hasan and the National Legal Services Authority v. Delhi Vidyut Board & Ors. AIR 1999 Del 88, where the judgment was rendered to create the permanent Lok Adalats. Moreover, Lok Adalat’s decision is binding and should be treated similarly to a civil court order, which increases the poor citizen’s access to justice.
There are many dispute resolution techniques in India like arbitration, mediation, Lok Adalat, etc. While India continues dependent on litigation, ADR is increasingly becoming the preferred option for the disputing parties. Legal recognition appears to be of paramount importance to all ADR methods, particularly including negotiation, as they are both practical and convenient. But with the development of these resolution mechanisms, ADR appears to be improving access to justice, relieving the burden on courts that are gaining urgency.