National Initiatives

LEGAL PROVISIONS Alternative Dispute Resolution in India was founded on the Constitutional basis of Arti le !" whi h deals with Ri#ht to life and personal libert$% &his Arti le is enshrined under Part III of the Constitution of India whi h lists the 'unda(ental Ri#hts of the iti)ens of India% ADR also tries to a hieve the Dire tive Prin iple of State Poli $ relatin# to E*ual +usti e and 'ree Le#al Aid as laid down under Arti le ,-A of the Constitution% &he A ts whi h deal with Alternative Dispute Resolution are Arbitration and Con iliation A t. "--/ and the Le#al Servi es Authorities A t. "-01% Se tion 0- of the Civil Pro edure Code. "-20 (a3es it possible for Arbitration pro eedin#s to ta3e pla e in a ordan e with the A ts stated above%

Constitution of India Art. 39A of the Constitution of India 45 the Constitution67 dire ts the State to ensure that the operation of the le#al s$ste( pro(otes +usti e. on the basis of e*ual opportunit$. and in parti ular. to provide free le#al aid. b$ suitable le#islation or s he(es or in an$ other wa$. to ensure that opportunities for se urin# +usti e are not denied to an$ iti)en b$ reason of e ono(i or other disabilit$% &he Supre(e Court has also re o#nised the 5ri#ht to speed$ trial6 as bein# i(pli it in Art. 21 of the Constitution% 4Hussainara Khatoon v. State of Bihar. AIR "-1- SC ",/27 &o #ive effe t to this (andate. Parlia(ent has re o#nised various alternative dispute resolution 45ADR67 (e hanis(s. su h as arbitration. on iliation. (ediation. and Lo3 Adalats to stren#then the +udi ial s$ste(%

Code of Civil Procedure S.89 of the Code of Civil Pro edure. "-20 45 the Code67 e8pressl$ provides for settle(ent of disputes throu#h ADR% S.89 (1) of the Code provides that where it appears to the Court that there e8ist ele(ents of a settle(ent whi h (a$ be a eptable to the parties. the Court shall for(ulate the ter(s of settle(ent. and #ive the( to the parties for their observations. and after re eivin# the observations of the parties. the Court (a$ refor(ulate the ter(s of a possible settle(ent and refer the sa(e for arbitration. on iliation. (ediation and +udi ial settle(ent. in ludin# settle(ent throu#h a Lo3 Adalat%

S.89 (2) of the Code provides that where a dispute has been so referred9 : : &o arbitration or on iliation. the provisions of the Arbitration and Con iliation A t. "--/ 45the "--/ A t67 shall appl$ as if the pro eedin#s for arbitration or on iliation were referred for settle(ent under the provisions of that A t; &o a Lo3 Adalat. the Court shall refer the sa(e to the Lo3 Adalat in a ordan e with the provisions of S%!2 4"7 of the Le#al Servi es Authorities A t. "-01 45 the 1987Act67 and all other provisions of that A t shall appl$ in respe t of the dispute so referred to the Lo3 Adalat; 'or a +udi ial settle(ent. the Court shall refer the sa(e to a suitable institution or person. and su h institution or person shall be dee(ed to be a Lo3 Adalat. and all other provisions of the "-01 A t shall appl$. as if the dispute were referred to a Lo3 Adalat under the provisions of that A t; 'or (ediation. the Court shall effe t a o(pro(ise between the parties and shall follow su h pro edure as (a$ be pres ribed%

Order X !ule 1A of the Code further provides that after re ordin# the ad(issions and denials. a Court shall dire t the parties to a suit. to opt for a (ode of settle(ent out of Court. as (a$ be opted for b$ the parties% Order X !ule 1" of the Code provides for the <8in# of the date of appearan e before the on iliator$ foru( or authorit$. while Order X !ule 1C onte(plates the referral of the (atter ba 3 to the Court. onse*uent to the failure of efforts of on iliation% &he Code onte(plates re ourse to ADR in several other ir u(stan es% Order XXXII#A. whi h pertains to suits relatin# to (atters on ernin# the fa(il$. i(poses a dut$ on the Court to assist the parties. where it is possible to do so. onsistent with the nature and ir u(stan es of the ase. in arrivin# at a settle(ent in respe t of their dispute. and e(powers it to se ure the assistan e of a welfare e8pert for su h purpose% Si(ilarl$. Order XX$II !ule %(") (andates that in ever$ suit or pro eedin# to whi h the Govern(ent. or a publi offi er a tin# in her offi ial apa it$. is a part$. it shall be the dut$ of a Court to (a3e. in the first instan e. ever$ endeavour. where it is possible to do so. in a ordan e with the nature and ir u(stan es of the ase. to assist the parties in arrivin# at a settle(ent in respe t of the sub+e t (atter of the suit%

Model Civil Procedure Alternative Dispute Resolution Rules &he "--/ A t and the "-01 A t do not onte(plate a situation where the Court as3s the parties to hoose an$ one of the ADR (e hanis(s. na(el$. arbitration. on iliation. or Lo3 Adalat% &hese A ts. thus. are appli able onl$ fro( the sta#e after referen e is (ade under S%0- of the Code% In view of the ri#ht to speed$ trial bein# i(pli it in Art% !" of the Constitution. and in order to provide fair. speed$ and ine8pensive +usti e to the liti#atin# publi . the Supre(e Court has re o((ended that =i#h Courts adopt. with or without (odi< ation. the (odel Civil Pro edure Alternative Dispute Resolution and >ediation Rules fra(ed b$ the Law Co((ission of India% 4Salem Advocates Bar Association v. Union of India. AIR !22? SC ,,?,7

&he (odel Alternative Dispute Resolution Rules fra(ed b$ the Law Co((ission la$ down the pro edure for dire tin# parties to opt for alternative (odes of settle(ent% Courts are dire ted to #ive su h #uidan e as the$ dee( fit. to the parties. b$ drawin# their attention to the relevant fa tors that the parties will have to ta3e into a ount. before e8er isin# their option as to a parti ular (ode of settle(ent% &he Rules provide for the pro edure for referen e b$ the Court to the different (odes of settle(ent. as also the pro edure for a referral ba 3 to the Court. and appearan e before the Court upon failure to settle disputes b$ ADR (e hanis(s% It is per(issible for =i#h Courts to fra(e rules under Part @ of the Code. overin# the (anner in whi h the option to sele t one of the ADRs. an be (ade% &he rules so fra(ed b$ the =i#h Courts are to supple(ent the rules fra(ed under the 'a(il$ Court A t. "-0A%

he Ar!itration and Conciliation Act" #$$% &he Arbitration and Con iliation A t. "--/ was passed on the basis of the BNCI&RAL >odel Law on International Co((er ial Arbitration. "-0? and BNCI&RAL Con iliation Rules. "-02% Its had been re o((ended b$ General Asse(bl$ of the Bnited Nations that all ountries should #ive due onsideration to the said >odel Law in view of the desirabilit$ of unifor(it$ of the law of arbitral pro edures and the spe ifi needs of the international o((er ial arbitration pra ti es% It has also re o((ended the use of the said Rules in ases where a dispute arises in the onte8t of international o((er ial relations and the parties see3 on a(i able settle(ent of that dispute b$ re ourse to on iliation% &hese rules are believed to (a3e a si#nifi ant ontribution to the establish(ent of a unified le#al fra(ewor3 for the fair and effi ient settle(ent of disputes arisin# in international o((er ial relations% &hese ob+e tives have been laid down in the Prea(ble to the Arbitration and Con iliation A t. "--/%

&ational 'e(al Services Authorit) Act" #$*+ Chile Arbitration and Con iliation A t. "--/ is a fairl$ standard western approa h towards ADR. the Lo3 Adalat s$ste( onstituted under National Le#al Servi es Authorit$ A t. "-01 is a uni*uel$ Indian approa h% Vision of the A t reads that &no one shall be denied of a ess to Dusti e for the reasons of e ono(i or other disabilities%E &he "-01 A t ai(s at providin# le#al awareness. free le#al aid and establish(ent of Lo3 Adalats% Introdu tion of Lo3 Adalats added a new hapter to the +usti e dispensation s$ste( in the ountr$% It su eeded in providin# a supple(entar$ foru( for on iliator$ settle(ent of disputes to liti#ants%

INS&I&B&IONS DEALING CI&= ADR IN INDIA &he followin# are a few e8a(ples of institutions whi h provide servi es for fa ilitatin# resolution of disputes throu#h ADR in India% "% Indian Institute of Arbitration F >ediation !% Coun il for National and International Co((er ial Arbitration ,% International Centre for ADR A% Indian Coun il of Arbitration ?% Delhi Dispute Resolution So iet$