CONSTITUTIONALITY OF ADR

    The Alternative Dispute Resolution (ADR) system is an effective method adopted by many countries worldwide.

    WHAT IS ADR?

    ADR helps in the settlement of disputes without litigation, i e., outside the court. Some of the methods used as ADR include-

    ARBITRATION

    The dictionary meaning of ‘arbitration’ is a process used to solve an issue between people by keeping a solution acceptable by the people/parties involved. Arbitration is the dispute settlement process between two agreeable parties to appoint an arbitrator to give a binding solution on the dispute. However, in Booz Allen and Hamilton Inc, V. SBI Home Finance Ltd.[1] it was held by the apex court that few instances could not be tried via the arbitration method. These cases were-

    • Criminal cases
    • Matrimonial disputes
    • Disputes between trust, trustees and beneficiaries
    • Insolvency cases
    • Cases of guardianship
    • Tenancy matters
    • Testamentary matters

    NEGOTIATION

    Negotiation is concerned with the settlement of the issues by exchanging the parties’ possible hindrances and problems. There is a common interest which both parties seek. There is no third party involved.It is essential to know that the conclusions on which the parties reach are non-binding. Some of the institutions and areas where negotiation can be useful are NGOs, marriage, divorce, parenting, etc.

    MEDIATION

    Mediation is an ancient and effective method used by people and parties that disagree over something, thereby causing some fault in the smooth functioning. A mediator is appointed in this mediation process, and the parties/people decide by entering into a written contract. Mediation is less formal in comparison to arbitration. It’s flexible.  

    CONCILIATION

    Conciliation is a process of dispute settlement where discussion between parties is done in a conciliator’s presence. With the permission of the parties involved, the conciliator can seek administrative assistance from a recognized institution.

    The ADR system in India is an outstanding achievement where the judiciary is burdened in terms of quality and quantity; this system is easy for the people who face various negative impacts such as delay etc. of the new court system. [2] The ADR system’s establishment is to make the whole dispute resolution process more efficient and less time-consuming. The massive backlog of the courts’ cases can be effectively disposed of when the ADR system is enforced. 

    We should expand the jurisprudence of access to justice as an integral part of Social Justice and examine the constitutionalism of court-fee levy as a facet of human rights highlighted in our Nation’s Constitution. If the State itself should travesty this basic principle, in the teeth of Articles 14 and 39A, where an indigent widow is involved, a second look at its policy is overdue. [3]                                      -Krishna Iyer J. 

    The Constitution of India is an amalgamation of various constitutions from around the globe. What remains the main objective of the different constitutions of the nations and the Indian constitution is; the welfare and betterment of the country’s citizens. ‘Welfare state’ is one of the main ideas behind the enforcement of the constitution. The state must provide all its citizens the basic legal aid to uphold the legal maxim of “Audi Alteram Partem,” which, when interpreted correctly, states that, “hear the other side” or no man should be unheard, both the parties have an opportunity of being tried relatively. Justice will be given to both parties without any discrimination or prejudice. Moreover, no one will be deprived of justice through legal means to protect their legal rights and fundamental rights. 

    Article 39-A and Article 21 of the Indian constitution gives out the mandatory provision of free legal aid to people who cannot defend themselves due to weak economic conditions. 

    https://legalreadings.com/transfer-of-property/

    BENEFITS OF ADR

    Before moving on to the ADR system’s constitutionality, I would like to state some of the benefits of the ADR system. 

    The following are some of the advantages:

    1. Flexibility to choose the procedure- As mentioned before, various methods can solve a dispute. 
    2. Speedy trial- ADR methods are faster to deal with an issue and dispose of the cases as soon as possible. All of this is unlikely to happen in a normal court proceeding where the procedure is lengthy and time-consuming. 
    3. Cost-efficient- ADR methods are cost-efficient hence, making it helpful for the economically weaker section of people. 
    4. Confidentiality– One of the reasons for opting out for this method is a guarantee of full confidentiality. For instance, a well known and well-established company wants to merge with another company due to the loss of recent shares that might not reveal its name. Therefore, the confidentiality of the parties plays an important role.
    5. Informal and simplified process– In comparison to court proceedings, ADR proceedings are much more informal and simplified. 

    PREAMBLE

    Our constitution’s very foundation, the preamble, speaks about social, political, and economic justice. 

    • The Constitution of India is the grundnorm of this country; it contains provisions that indicate the promotion of justice and harmonious reconciliation of individual conduct with society’s general welfare. The act done by an individual is justified if it brings about common interest for all. We need to understand that the legal system is implemented deeply in our society to maintain the community’s harmony. Moreover, it is essential to understand that social justice and legal justice go hand in hand. If an individual’s legal justice is disrupted, the societal balance/justice is disturbed by it. 
    • Equality before the eye of law and that no one is discriminated based on class, caste, creed, region, and religion. Equality in this context can be interpreted as no one being deprived of legal options. The rule of law is embodied in Article 14 of the constitution; it states equality before the law. The practice of law cannot be amended under Article 368 of the constitution. The essence of the rule of law is the absence of arbitrary power. Thus, from a passive right, the right to access to justice has become an effective right wherein the right to litigate or defend a claim and the right to access such forums and have parity of power with the other litigants. 

    Liberty gives out the freedom to people. About this specific topic, one can say that every citizen has the freedom to gain justice with the help of legal aid.

    ARTICLE 21

    No person shall be deprived of his/her life or liberty except according to the procedure established by law. Article 21 mentions the right to free legal aid and speedy trial. However, we should not overlook the broad scope and nature of the words “life and liberty.” In Hussainara Khatoon  Vs. Home Secretary, Bihar [4], interpreted that the right to a speedy trial is also a part of the right to life and personal liberty. The Supreme court has allowed Article 21 to stretch aims as wide as legitimately can. 

    The interpretation was taken into consideration due to the financial backwardness, mental agony, coupled with a delay in the person’s whole legal procedure, which may result in the disability of the accused to defend himself.

    ARTICLE 39-A

    Article 39A of India’s Constitution falls under the Directive Principles of State Policy and provides for free legal aid to the poor and weaker sections of society and ensures justice for all. [5] Hence, Article 39-A has been a significant foundation for implementing the ADR system in our country. As ADR is cost-efficient and gives a speedy trial for the needy, it proves to be useful as an alternative to court proceedings. Article 40 of the constitution of India offers a directive to the state to take steps to organize village Panchayats and endow them with such power and authority as may be necessary to enable them to function as a unit of self-government. The objectives laid down in Article 40 have been fulfilled by enacting the constitution.

    Other than this, Article 51(d) of the constitution gives a directive to the government to resolve an international dispute through arbitration, although this method is seldom used. 

    CONCLUSION

    From the above discussion, it is evident that the constitution has basics for the ADR functioning, now the enactment of the same needs to be done by the state. India is a country that aims to protect the vast socio-economic, and cultural rights of its citizens should acknowledge that the ADR system is essential to give out justice to the people who have been in any harm’s way. We all know that ‘justice delayed, is justice denied’; hence, the gravity and seriousness of this should be taken into account by the states and the citizens. Citizens need to be aware of the ADR system’s working to know their rights and the legal options they can seek to attain their fundamental rights back. This awareness needs to be made available to the people by the government.

    REFERENCES:

    [1] Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd., (2011)5 SCC 532.

    [2]Constitutional Jurisprudence and The Growth of Alternative Dispute Resolution available at, 

    http://www.legalserviceindia.com/legal/article-706-constitutional-jurisprudence-and-the-growth-of-alternative-dispute-resolution.html (last visited on October 3, 2020).

    [3]Legal and Constitutional provisions available at, https://shodhganga.inflibnet.ac.in/bitstream/10603/190313/8/08_chapter-3.pdf (last visited on October 2, 2020).

    [4] Hussainara Khatoon  Vs. Home Secretary, Bihar, (1980)1 SCC 98.

    [5]NATIONAL LEGAL SERVICES AUTHORITY available at, https://doj.gov.in/sites/default/files/NALSA%20BRIEF.pdf (last visited on October 2, 2020).


    BY NAVODITA SINGH | SNDT UNIVERSITY LAW COLLEGE FOR WOMEN

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