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COURT ANNEXED ADR

5.5 Clinic-I (Alternative Dispute Resolution)

Submitted by:
Mritunjay Pathak
UG 2016-28
5th Semester (3rd Year)

Submitted to:
Prof. (Dr.) Anirban Chakraborty, Associate Professor of Law

Academic Year: 2017-2018

MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR


COURT ANNEXED ADR
“Litigants should be encouraged to resort to alternative dispute resolution so that the court
system would be left with a small number of important disputes that demand judicial
attention”
-Shri P.V. Narasimha, Former Prime Minister of India

INTRODUCTION

The preamble to the constitution lays down the goals for the state to provide holistic progress
to its citizens and one such goals is social, political and economic justice. Justice is an abstract
and lifeless concept. However, our Constitution has filled this non-living entity with flesh and
blood. Art 39-A1 of the Constitution of India provides for ensuring equal access to justice.2
According to the framers of our constitution and modern legislators, everyone should get the
chance to explore and exploit the resources for their own use but, keeping in mind the need of
others. The Supreme Court has emphasized in Keshavananda3 that the preamble, introduction
to the Constitution, emphasizes the principle of equality as basic to the Indian Constitution. It
is the basic feature of the Constitution and no legislature can amend or remove it. The concept
of equality in India is not narrow and static, but a dynamic concept. The subject is so broad
that the delivery of justice within a reasonable time as a fundamental right is protected under
Article 144 of the Constitution of India.5 But, increase in the amount of cases and pendency of
litigation in civil courts have made it impossible to dispose of cases within a reasonable time
and making, directly or indirectly, ‘justice’ a distant dream, altogether, because overburdening
of cases is a casualty in real terms. It is very well said that justice delayed is justice denied.

There is a gamut of reasons behind a backlog of cases and one such reason is the currently
available infrastructure of courts in India. The inadequacy of Indian courts in settling growing
litigation expeditiously makes common men entangled in the web of litigation for as long as a
lifetime, and sometimes litigation carries on to the next generation making the situation worse.

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The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity,
and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure
that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
2
Hon’ble Justice S.B. Sinha (Judge Supreme Court of India), ADR and Access to Justice: Issues and Perspectives,
available at http://www.tnsja.tn.nic.in/article/ADR-%20SBSinha.pdf. (Visited on October 9, 2018).
3
Keshvananda Bharati v. State of Kerala & Others (1973) 4 SCC 225.
4
Article 14- Equality Before Law- The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.
5
Hussainara Khatoon & Ors v. Home Secretary, State of Bihar AIR 1979 SC 1369 (1979).

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When a common man sees that his earnings are draining out and nothing is being resolved than
he becomes depressed and may take some action which gives rise to a criminal case. This is
something which is not far-fetched and there have been many cases where litigants have tried
to do something in lieu of helplessness and anger which was not supposed to be done. In this
background, there is an urgent need to choose Alternative Dispute Resolution mechanisms
(hereinafter referred as ADR) in India and incorporate them as successfully as litigation. I being
an advocate of settling disputes in conciliatory manner, firmly stands on the ground that ADR
can supersede litigation, as a choice, in majority of cases and slowly it is becoming evident
also in the Indian judicial system. Other than bringing efficiency in working of the judiciary,
measures are being taken all over the world, including India, for availing ADR systems for
resolving pending disputes as well as at pre litigation stage. In this essay, the author shall not
delve into the use and applicability of ADR in pre litigation stage rather he will discuss the use
and applicability of ADR in relation to court’s referral to ADR after the suit has been filed in
the civil court.

SIGNIFICANCE AND IMPACT OF COURT ANNEXED ADR

Section 896 of Code of Civil Procedure, 1908 brought the ADR processes into the mainstream
of the Indian legal system.7 Although, there are a number of legislations in India which were
enacted before section 89 came into existence and provided for an amicable method of dispute
resolution. But, its design and overarching scope accommodated various ADR processes,
namely, arbitration, conciliation, Lok Adalat, judicial settlement and mediation under one roof.
The concept of ADR is not new as the concept of settling disputes with the help of the third
party is very well known to ancient India.8 There have been numerous incidents in Indian
history where disputes have been resolved informally, without taking any recourse to the king’s
court or formal judicial process. There are a lot of advantages associated with settling disputes
outside court and that is why it has always remained popular specially among those who have
to deal with trivial issues on daily basis and don’t have time and energy to invest in adversarial
form of dispute settlement mechanism like litigation.

6
Section 89 was repealed by Act 10 of 1940, Section 49 and Schedule II and again added by Act 46 of 1999,
Section 7(w.e.f. 1-7-2002).
7
Sriram Panchu, Recasting Section 89 CPC- Afcons Infrastructure Ltd. V. Cherian Varkey Construction
Company. (P) Ltd., 246 Supreme Court Cases Online Web Edition, 1 (2015).
8
Supra note 2.

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The advantages of court annexed ADR are as follows:
▪ The ADR system seeks to provide cheap, simple, quick and accessible justice.
▪ The stage setting of processes like Mediation, Lok-Adalat and Conciliation is informal
and in this process, judges, advocates and litigants are more of participants who sit
together to resolve a dispute and thereby giving them belief that they all are collectively
working to ensure justice is dispensed and no one should go unsatisfied.
▪ Majorly, the proceedings are simple and informal and are conducted, by and large, in
the manner agreed by the parties. The parties to the dispute are given an autonomy to
decide and choose the type of ADR process they want to go through and the onus of
settlement lies on their shoulders. For example, in mediation the role of the mediator,
neutral third party, is passive and he assist the parties to reach to the settlement.
▪ ADR stimulates to resolve dispute expeditiously with less expenditure of time, money
and strength and in court-annexed ADR courts try to convince the parties to resolve
the dispute through amicable ways which in turn make ADR procedures more popular
and effective.
▪ The court annexed ADR provide additional tool to the judicial system to decrease the
backlog of cases and provides perpetuity to the process making courts central
institution for the ADR mechanism.

GLOBAL PERSPECTIVE
To trace the history of emergence of Court Annexed ADR globally, one has to go to United
States of America, notably at the Pound Conference in 1976.9 The pound conference embraced
ADR, mainly mediation. This was followed by two enactments namely The Civil Justice
Reform Act, 1990 and The Administrative Dispute Resolution Act 1996 which expanded the
use of ADR.
Other countries, like the United Kingdom, also introduced court-annexed mediation as an
alternative dispute resolution mechanism to decrease the pendency of cases as it is an epidemic
affecting the smooth functioning of the judiciary. Several countries have set up mediation
centers and the cases are taken off the courts mandatorily to undergo the process of mediation
before the court appointed mediators.10

9
Hon’ble Mr. Justice F.M. Ibrahim Kalifulla, An Endeavour: Mandatory Application of Mediation by Civil Courts
in Pending Legislation, available at http://www.tnsja.tn.nic.in/Article/Mediation%20Speech-FMIKJ.pdf. (Visited
on October 8, 2018).
10
Ibid.

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INDIAN PERSPECTIVE
The discussion of court-annexed ADR in relation to Indian perspective is not restricted to
Section 89 of CPC although it is said that Section 89 is the harbinger of court-annexed ADR
in India. There are many statutes, enacted by the parliamentarians, which made courts to resort
to ADR mechanisms for resolving disputes. ADR was at one point of time considered a
voluntary and private process and the court’s interference was negligible but later on mediation,
conciliation and other types of ADR mechanism got statutory recognition under different
provisions of The Family Courts Act, 1984, The Hindu Marriage Act, 1955 and many other
legislations. The author wants to discuss certain provisions of these acts:
▪ Section 23 (2) of the Hindu Marriage Act, 1955- The court should try to make an
endeavor to resolve the dispute through amicable means like mediation and should try
to bring about reconciliation between the parties where it is possible.11
▪ Section 80 (1) of Code of Civil Procedure- This section lays down that it is imperative
on the part of the petitioner or the plaintiff to issue notice at the government office
before instituting a suit against Government or public officer. The whole object behind
serving the notice against the Government or any public officer is to give the
government sufficient warning of the case and an opportunity to decide dispute
amicably resorting to any of the ADR mechanisms.
▪ Legal Services Authority Act, 1987- The act came into existence with a purpose to
establish the culture of Lok Adalat in India. Lok Adalat means a people’s court and the
name itself suggests that the government in order to provide equal access to justice and
to reduce pendency of cases established these courts where specific types of issues are
brought before the court which are suitable for ADR mechanisms. Suitability of any
case for ADR is dependent upon the nature of the act committed, interests of the parties
involved and the outcome that the parties seek to achieve. ADR per se is known for
preserving relationships and reputation of the parties because it is a confidential process
and interference of any third party is not involved which gives confidence to the parties

11
Section 23(2) of the Hindu Marriage Act, 1955-
Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every
case where it is possible so to do consistently with the nature and circumstances of the case, to make every
endeavour to bring about a reconciliation between the parties:
[Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any
of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) of sub-section
(1) of section 13.]

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in the justice system. One of the feature of Legal Services Authority Act, 1987 is that
the principles of natural justice is intact throughout the statute.12

SECTION 89 OF THE CODE OF CIVIL PROCEDURE

Section 89 of the CPC made court-annexed ADR possible in India. Indian legal system has
been battling with the virus of backlog from the past many years and the judiciary, as well as
the legislature, felt an urgent need to tackle with the logjam of cases. The only option they have
had with them is to accommodate ADR mechanisms into the middle-of-the-road because the
court wanted to invest its time on those cases which were in need of quality judicial attention
and application of mind. Section 89 lays down that, where it appears to the court that there
exists an element of settlement, which may be acceptable to the parties, the court may formulate
the terms of settlement and refer to the following procedures-
▪ Arbitration (The Arbitration and Conciliation Act, 1996)
▪ Conciliation (The Arbitration and Conciliation Act, 1996)
▪ Mediation
▪ Judicial Settlement
▪ Lok Adalat (The Legal Services Authority Act, 1987)

The objective behind introducing Section 89, as observed in Salem Bar-I13, is to bring an end
to litigation at an early date so that parties don’t waste their time and money.14 Later on in
Salem Bar Association v. Union of India15 the Supreme Court has requested prepare model
rules of ADR rule. The rules came into existence under the head “Alternative Dispute
Resolution and Mediation Rules, 2003”.

12
Section 20 of The Legal Services Authority Act- Cognizance of cases by Lok Adalat-
Section 20 (ii)- The court is satisfied that the matter is an appropriate one to be taken cognizance of by the Lok
Adalat, the court shall refer the case to the Lok Adalat: Provided that no case shall be referred to the Lok Adalat
under sub-clause (b) of clause (I) or clause (II) by such court except after giving a reasonable opportunity of
being heard to the parties.
Section 20 (2) Notwithstanding anything contained in any other law for the time being in force, the Authority or
Committee organising the Lok Adalat under sub-section (1) of Section 19 may, on receipt of an application from
any, one of the parties to any matter referred to in clause (ii) of sub-section (5) of Section 19 that such matter
needs to be determined by a Lok Adalat, refer such matter to the Lok Adalat, for determination; Provided that no
matter shall be referred to the Lok Adalat except after giving a reasonable opportunity of being heard to the other
party.
13
Salem Advocates Bar Association v. UOI, (2003) 1 SCC 49.
14
Anirban Chakraborty, Law & Practice of Alternative Dispute Resolution in India: A Detailed Analysis, 256 (1st
ed. 2016).
15
(2005) 6 SCC 344.

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The rules were sufficient for giving directions to the court that how mediation should be
conducted. It explained that how, under certain circumstances, the court is given the power to
mandatorily refer the parties for resolving disputes to mediation even if the parties do not agree.
It further talked about the reference that a court can make again to the courts if ADR is not
successful in that particular case. So, this section has contributed in many ways in development
of court annexed ADR in India.

CONCLUSION AND SUGGESTIONS

ADR is a beauty of any judicial system in the world. The advantages prevail over disadvantages
because the former is much more, in number than the latter. There is a lot that has to be done
in this field in order to bring efficiency into its working. There are thousands of cases which
have been solved through ADR mechanisms, but there are lakhs of cases which are pending
and needs an urgent attention otherwise people will lose faith in justice. It is not necessary that
every case should be heard before the judges and in every case, the parties should seek remedy
from the courts. Lok Adalat is an effective way of resolving disputes through mediation and
conciliation and hundreds of cases are resolved on daily basis in these Lok Adalats and
Permanent Lok Adalats. Arbitration is considered as one of the facets of ADR but in reality, it
is a different thing altogether and it needs a different line of thought and discussion. An
effective integration of ADR in the Indian Judicial System has been affected by the introduction
of section 89. This section should be used zealously and with utmost responsibility by the
courts so that pendency of cases is reduced to a significant extent. There is ADR Mediation
Rules, 2003 for governing mediation in India but it is not sufficient because the ground level
reality is different. There are a lot of impediments like awareness of parties is less, the
willingness of advocates is also very less and the infrastructure of the court is not good to
nurture ADR. It is quintessential for everyone, legal or non-legal, to encourage the ADR
movement because quick, cheap and efficient settlement of dispute is the need of the hour.