Jurisprudence and ADR:
An alternative process developed, and some cases now move at a faster pace through the use of alternative dispute resolution (ADR) processes. Because one of the ADR processes-mediation-requires the active participation of the parties in resolving their dispute, the view held by the lay person about the legal system takes on an importance that did not exist historically.A view of the court system as white and male burdens the process at the outset with perceived power imbalances. In ADR, where the parties are pivotal to the outcome, power issues will arise more overtly and less implicitly than in the classical litigation forum. . There is a constitutional directives to settle the dispute through the ADR indirectly under Article 39A of the constitution of India stated that the state shall make a principle of state policy relating to equal justices and free legal aid. Under Article 40 of the constitution of India gives 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 units of self -government. Part IX has been inserted by the constitution (73rdAmendment) act, 1992 enumerated the provision of Constitution of Panchayats. ADR is the best way to resolve the dispute and conflicts. ADR is a solution for a social peace because it brings a peace to the society by the intervention of the Arbitrators and also advocates. This paper analyses the role of ADR which is expected to resolve disputes amicably and in a peaceful manner.
As per Section 89 (2) of CPC, where a dispute has been referred to LokAdalat, the Court shall refer the same to the LokAdalat in accordance with the provisions of Section 20 (1) of the Legal Services Authority Act, 1987 and all other provisions of that Act shall apply in respect of the dispute so referred to the LokAdalat.
It has been provided under Section 21 of the Legal Services Authority Act, 1987 that a settlement before a LokAdalat is enforceable as a court decree.
The concept of Rule of Law, given by Dicey implies supremacy of law and equality before law. This concept of Rule of Law is imbibed in Article 14 of the Constitution which guarantees equal protection of laws and protection against arbitrariness to each and every citizen of this country. The Supreme Court has also held Rule of Law to be part of Basic Structure of Constitution. As there have been progressions in law, right to access to justice has also become a part of Article 14 which not only includes the right to litigate or defend a right but also the right to access such forums and therefore, an equal right to seek redressal like other litigants.
In the case of Salem Bar Association v. Union of India (2003) 1 SCC 49:
In this matter, Writ Petitions were filed challenging the Amendments made to the Code of Civil Procedure by way of Amendment 46 of 1999 and Amendment 22 of 2002. Amongst other amendments, the attention of the Hon'ble Supreme Court was drawn to Section 89 of the Code of Civil Procedure.
The Hon'ble Supreme Court observed that the provision of Section 89 of the Code of Civil Procedure has been inserted to ensure that all the cases which are filed in the courts need not necessarily be decided by the courts. The Hon'ble Supreme Court opined the need to promote Alternate Dispute Resolution. It therefore, considered Section 89 to be a welcome step. It was therefore suggested by the Hon'ble Supreme Court, that a Committee be constituted so as to ensure that the amendments made to the Code of Civil Procedure become effective and result in quicker dispensation of justice.
Due to expansive interpretation of Article 21 in various judicial precedents, Article 21 also includes right to free legal aid and a speedy trial. Even Article 39A, one of Directive Principles of State Policy ensures that it is the responsibility of the state to provide equal opportunity to attain justice by specifically providing free legal aid. Legal aid is regarded in various forms and at various stages for seeking guidance through courts and tribunals or through ADR techniques.
Therefore, ADR mechanisms help achieve the objective of Article 39A, introduced by the 42nd Amendment to the Constitution, of providing free legal aid to all citizens so that justice is not denied by reason of economic or any other disabilities.
ADR is complementary to our Constitution. Therefore, State has also enacted various statues governing Arbitration, Conciliation, LokAdalats and so on and so forth. However these statutes will continue to be toothless tigers unless and until Dtate takes steps for proper implementation of them. It is pertinent to note that ADR provides a ladder to justice to the underprivileged sections of the society. India can only move towards the ray of light judicial equality if the burden on our courts is reduced considerably. Citizens should be made more aware of ADR mechanisms so that they can utilize them instead of taking the more painful and grueling path of litigation.