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INTRODUCTION Alternative dispute resolution (ADR) includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. ADR basically is an alternative to a formal court hearing or litigation. It is a collective term for the ways that parties can settle disputes, with (or without) the help of a third party. ADR are ways and methods of resolving disputes outside the judicial process or court. ADR is a process distinct from normal judicial process. ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties' cases to be tried. The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute. The primary object of ADR movement is avoidance of vexation, expenses and delay and promotion of the ideal of access of justice for all. ADR system seeks to provide cheap, simple, quick and accessible justice. Under this, disputes are settled with the assistance of third party, where proceedings are simple and are conducted, by and large, in the manner agreed to by the parties. ADR stimulates to resolve the disputes expeditiously with less expenditure of time, money with the decision making process towards substantial justice, maintaining to confidentiality of subject matter. So, ADR aims at provide justice that not only resolves dispute but also harmonizes the relation of the parties. The word Litigation in common parlance is used to refer to a controversy before a law court or simply put a lawsuit, but with the total pendency at last count exceeding 30 million cases, in a country characterized by grave economic conditions like ours it has become a luxury which few can afford. The litigation process in India is based on common law. It is largely based on English common law because of the long period of British colonial influence during the British system. The Right to Litigate or Right to get Access to Justice, has been amply provided in our Constitution & other national as well as international instruments, but David Porter of US

Navy puts Litigation as the basic legal right that guarantees every corporation its decade in court obviously he said that in context of the Courts of America, but the situation is no better here, rather worse, decade is replaced by 15 years (which according to one study is the average life span of a case in India), clearly do not mean to endorse or even acquiesce with such pessimistic views but the level of implementation or the justice delivery system required to give life to these provisions, are grossly inadequate, & are fraught with various imperfections & evils such as Corruption, Delays etc., with delay being the major dent in the credibility of the system, as a famous saying goes Justice Delayed is Justice Denied and due to these delays even after the most elaborately devised system of rights & obligations of people, being present, justice still remains a distant dream for the laymanbut the silver lining is that Judiciary remains the most honest & trusted of the three governmental organs, & measures up remarkably well on the yardsticks of independence, fairness & acts as the custodian of the rights of the common man, it was meant to be & still commands respect, but the confidence it used to inspire among the people is corroding, the main reason behind the wounded credibility are the delays in justice delivery system. This delay would generate a feeling of frustration among the litigants and erode their faith in the judiciary. This could lead to crumbling of our democratic system. Delay in disposal of case threatens justice. The lapse of time blurs truth, weakens memory of witnesses and makes presentation of evidence difficult. This leads to loss of public confidence in the judicial process which in itself is a threat to Rule of Law and consequently to the Democracy. The rising costs of litigation can also be said to be attributable to delay which in turn causes the litigants to either abandon meritorious claims or compromise for a lesser or unjust settlement out of court. Alternative Dispute Resolution wads thought of as a weapon to meet the challenge of delayed justice. The average waiting time, both in the civil and criminal subordinate courts can extend to several years. This negates fair justice. The delay in the judicial system results in loss of public confidence on the concept of justice.

REASONS OF DELAY An essential requirement of justice is that it should be dispensed as quickly as possible. It is well-known maxim that justice delayed is justice denied. However, delay in litigation is equally proverbial and, though it may sound paradoxical, the fact remains that the very provisions of the Code which are designed to facilitate smooth and speedy trial of cases are misused and abused in order to delay cases indefinitely and ultimate success in the cause often proves illusory. The result is that cases pile up and huge backlog accumulates in all courts causing pending suits, also known as lis pendens.

The main reasons behind this huge pendency, or to be exact the influx of a large number of cases, are recent socio-economic advances and the resultant sensitization regarding legal rights, have led to a flood of people, increasingly approaching the courts of law, for the realization of their rights, but the existing Indian Judicial System has not kept up with the huge population & educational boom, & is fraught with problems such as low judge to population ratio, and as a large portion of these cases are against the government, disputes which could have been resolved at the outset with the authorities itself, due to improper governmental administration, these disputes also end up coming before the courts, as to this matter Dr.Manmohan Singh in a discussion, referred to the survey conducted in Karnataka according to which in 65% of civil cases the Government was a litigant and in 95% the appeals filed by it failed, the great villainous role played by the governmental administration becomes apparent by this, Couple this with the rampant corruption, Shortage of Funds, Staff, Infrastructural shortcomings, and you have the perfect recipe of a disaster or more succinctly put a litigants nightmare.

Coming to the solution, The Intellectuals at Law Commission coming out with a fantastic & realistically sound solutions every now & then & the implementing authorities & the people

in power not paying the slightest heed to it, has become needless to say almost customary now, the same happened in the present context too, the Law Commission in its 120th report, submitted way back in 31-7-1987 recommended optimum figure of 107 judges per million by 2000, the ratio achieved by USA in the year 1981. It also recommended ratio of 50 judges per million of population, within a period of 5 years which was endorsed by the Standing Committee of Parliament headed by Shri Pranab Mukherjee, in its 85th report submitted in February 2002. The Supreme Court also directed increase in judges strength to 50 per million in a phased manner. But despite all this, the strength of judges has not been increased, that is why also the judiciary is facing difficulties in tackling the problem of mounting arrears, the sorry state of affairs is apparent from the fact that India still has fewer judges than 15 per million, if compared to Canada [about 75 per million] & the USA [104 per million] it sounds drastically inappropriate to deal with the situation, furthermore The Law Commission in its 125th Report (1988) recommended introducing shift system in the Supreme Court. In 1999, the then Law Minister, thought of shift system in all courts, but could not implement it. Shift system is in vogue in industrial establishments and some educational institutions because of necessity. With minimum cost, the shift system can yield maximum output, providing immense relief to lakhs of helpless litigants, endlessly waiting for justice, but in its entirety this system was never realised.

Another reason for the same is that judiciary accounts for just a mere meagre portion in the allocation of expenditure, for e.g. In the tenth plan the judiciary was allocated a mere 0.078 per cent of the total expenditure, a small crumb more than the 0.071 per cent assigned in the Ninth Plan.

The following number of grounds seem to be responsible for such delay in litigation are as follows1:1) Increase in litigation The Courts are overflooded with cases and through increasing number of courts is not sufficient to keep pace with the number of cases.The figures of total pendency of cases in District Courts in the country are:-

Year 2006 2007 2008 2009

Pending Cases 2,50,79,618 2,54,18,165 2,64,09,011 2,72,75,953

2) Insufficient number of Judges There are insufficient number of Judges to deal with the increasing work. It can be seen through date that even existing vacancies in various High Courts remain unfilled for an unduly long time. By March 2010, the total number of Judges that can be appointed in various High Courts of India is 895 but still there was vacancy of 267 Judges and in the District Court, there was vacancy of 2785 out of 16,880 Judges. 3) Violation of the provisions of the Code Much of delay occurs because the provisions of the Code are not properly observed and followed. After filing a plaint, the process fee is not paid for a long time so that summons to the defendant is not served in time. After a defendant makes hi appearance, his advocate often seeks long adjournments to file the written statement. After the pleadings are closed, there comes the stage of producing documentary evidence before issues are settled but nobody bothers to produce documentary evidence at this stage. Thus, little use is used of such provisions and if these provisions are properly used, the controversy between the parties can often be narrowed before the parties go to trial which effects the countless hours of the Court.
1 th

Civil Procedure - C. K. Takwani 6 Ed.- Eastern Book Company, Page No. 740-742.

4) Question regarding interpretation of the legislative enactment It is a matter of common knowledge that in a large number of cases coming before the Supreme Court and the High Courts, the dispute is about the interpretation of the legislative enactment in question. The increase in number of cases is due to the several reasons. There has been a vast expansion of the functions and activities of the State in all spheres with a corresponding increase in the number of laws enacted every year. Unfortunately, however, the laws are often hastily drafted with the result that the drafting is often loose and leave great scope for lawyers to raise arguments about their interpretation. The difficulty of interpreting laws is often compounded by frequent and thoughtless amendments which, though intended to clarify the intention of the legislatures, often fails to achieve the designed object on the contrary results in greater confusion. The words of a statute are not inaugural words but words of valediction2. In the case of Zinabhai v. State of Gujarat,3 considering the provisions of Gujarat Panchayats Act, 1961, Gujarat High Court rightly observed that it is an extraordinary and unique piece of legislation framed without much scientific accuracy of language and many of its provisions are so unhappily worded that it is difficult to penetrate their confusion and obscurity. 5) Expenses and Cost The considerable delay in reaching the conclusion in any litigation adds to the cost and makes the absence of an effective mechanism for the recovery of litigants more problematic. 6) Attitude of lawyers - The attitude of some lawyers is also to some extent responsible for delay. In many cases, where the plaintiff had obtained interim or ad interim relief, he is naturally interested in delaying the proceeding so that stay or injunction is continued as far as possible. Similarly, where the defendant has no defence, he is naturally interested in prolonging the trial with a view to put off the evil day as long as possible. Lawyers are also known to apply for frequent adjournments on flimsy grounds. When a particular ground such as his sickness or personal problem, is advanced by the advocate, it is usually not possible for a judge to examine whether the ground is genuine or not and it is in the fitness of the thing that he should normally accept as true what an advocate says. 7) Justice is not Easily Accessible Justice is not at doorstep but at at distance creating problems to litigants. 8) Awareness The lack of awarenees of legal rights and remedies among common people acts as a formidable barrier to accessing the formal legal system.

2 3

Ibid. (1972) 13 Guj LR 1


Section 9 of the Code of Civil Procedure, 1908 provides that the Courtv shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is ither expressly or impliedly barred. For Example, ADR can be used in specific suits of Central Administrative Tribunal, State Administrative Tribunal, Income Tax, Motor Vehicle Act etc. ADRs Alternative Dispute Resolution Mechanisms The philosophy of ADR systems is amply stated in the words of Abraham Lincoln Discourage litigation, persuade your neighbors to compromise whenever you can. Point out to them how the normal winner is often a loser in fees, expenses, cost and time, as a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough. Litigation through the courts and tribunals established by the State is one way of resolving the dispute which is an adversarial method of dispute resolution which leads to win-lose situation whereas in Alternative Disputes Resolution what is tried to be achieved is win-win situation for both the parties to the case. There is nobody who is loser and both parties feel satisfied at the end of the day. The ADR mechanisms include arbitration, negotiation, mediation and conciliation. Section 89 of the Code of Civil Procedure has been amended w.e.f. 1-7-2002 with a view to bring alternative systems into the mainstream. The challenge that we are facing today is bringing about awareness among the people about the utility of ADR and simultaneously developing personnel who will be able to use ADR methods effectively with integrity. This will not only provide speedy and inexpensive justice and reduce litigation, but will also bring peace and harmony in the society. Corporate entities & establishments are already reaping the benefits of ADRs, but its high time these ADRs are introduced in day-to-day litigation as well. It deals withi) Settlement inside Court. ii) Settlement outside Court. Section 9 speaks of settlement inside court. Here, CPC was bifurcated regarding the subject matter of dispute.

Fast Track Courts Fast Track courts have proved their mettle, & their importance cannot be emphasized enough, on the recommendation of the 11th Finance Commission, 1734 Fast Track Courts of Sessions Judges were sanctioned for disposal of old pending cases and the said scheme was to end on 31-3-2005. Out of 18,92,583 cases, 10,99,828 have been disposed of by these courts. Keeping in view the performance of Fast Track Courts and contribution made by them towards clearing the backlog, the scheme has been extended till 31-3-2010. In view of the contribution made by the Fast Track Courts of Sessions Judges towards clearing of backlog, and number of huge pendency of cases triable by Magisterial Courts being 1,66,77,657 as on 31-12-2006, there is an urgent need to formulate a similar scheme for setting up of Fast Track Courts of Magistrates in each State and Union Territory. Mobile courts Mobile courts that help taking justice to the door-step of the rural would significantly help in fighting the backlog, Mobile courts are also being set up which would not only educate the rural folk about their rights and responsibilities and provide swift justice and create a feeling of law and judiciary being very close to them, but will also help de-clog the expanding docket of our overburdened courts. Lok Adalats In order to achieve the objective enshrined in Article 39 A of the Constitution of India, the Legal Services Authorities Act, 1987 was enacted to provide free and competent legal service to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. To achieve that objective, Lok Adalats are being held at various places in the country and a large number of cases are being disposed of with lesser costs. Mobile Lok Adalats are presently in place in different parts of the State of Bihar and on the lines of steps taken by the High Court of Patna of holding mobile Lok Adalats, the other High Courts need also work on the same lines so that speedy and affordable justice could be made available to the litigants at their doorsteps. Setting up of Gram Nyayalayas Ministry of Law & Justice is going to draw a Gram Nyayalayas Bill with an objective to secure justice, both civil and criminal, at the grass-root level to the citizens, which would be the lowest court of subordinate judiciary and shall provide easy access to justice to litigant through friendly procedures, use of local language and mobile courts wherever necessary.

Plea bargaining With the insertion of new Chapter XXI-A in the Code of Criminal Procedure by Act 2 of 2006, the concept of Plea Bargaining became a reality and part of our criminal jurisprudence. The practice of plea bargaining is prevalent in western countries, particularly the United States, the United Kingdom and Australia. In the United States, plea bargaining has gained very high popularity, whereas it is applied only in a restricted sense in the other two countries. Plea bargaining benefits both the State and the offender; while the State saves time, money and effort in prosecuting the suspects, the latter gets a lenient punishment by pleading guilty. One of the merits of this system is that it helps the court to manage its load of work and hence it would result in reduction of backlog of cases. Plea bargaining apart, if the list of compoundable offences is widened and more offences are included therein and made compoundable, it too will help in making a dent in the mounting arrears and saving time of the courts.


NECESSITY OF ESTABLISHING ADRs Article 39A of the Constitution of India directs the State to ensure that the operation of the legal system justice, on the basis of equal opportunity, and in particular to 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 disability. The Supreme Court also recognized the right to speedy trial as being inflicit in Article 21 of the Constitution in the case of Hussainara Khatoon v. Home Secy. of Bihar4 LEGAL RECOGNITION OF ALTERNATIVE DISPUTE RESOLUTION The formal acceptance of ADR not just as an alternative means, but as an additional method utilized by the Courts has never been more apparent than it is via Section 89 of the Code of Civil Procedure. The purpose of bringing Section 89 in the body of the Code has been so stated in the object clausewith view to implement the 129th report of Law Commission of India and to make conciliation scheme effective, it is proposed to make it obligatory for the Court to refer the dispute after issues are framed, for settlement either by way of arbitration, conciliation, mediation, judicial settlement or through Lok Adalat. Due to this clause, at the very stage of framing of issues the judge can use his discretion to find the most appropriate means of resolution of a matter before him and if necessary refer the matter to Arbitration Conciliation Judicial Settlement including Lok Adalats, Mediation etc Section 89 of CPC is a new provision and even though arbitration or conciliation has been in place as a mode for settling the disputes, this has not really reduced the burden on the courts. Supreme Court of India in Salem Advocate Bar Association, T.N. Vs. Union of India had observed that modalities have to be formulated for the manner in which section 89 of CPC and, for that matter, the other provisions which have been introduced by way of amendments, may have to be in operation. A Committee was constituted by Supreme Court so as to ensure that the amendments made become effective and result in quicker dispensation of justice. Section 89 of CPC has been inserted to try and see that all the cases which are filed in court need not necessarily be decided by the court itself. Keeping in mind the laws delays and the limited number of judges which are available, it has now become imperative that resort

AIR 1979 SC 1360


should be had to ADR mechanism with a view to bring to an end litigation between the parties at any early date. The ADR mechanism as contemplated by section 89 of CPC is arbitration or conciliation or judicial settlement including settlement through Lok Adalat or mediation. As can be seen from Section 89 of CPC, its first part uses the word shall when it stipulates that the court shall formulate terms of settlement. The use of the word may in later part of Section 89 of CPC is that where it appears to the court that there exists an element of a settlement which may be acceptable to the parties, they, at the instance of the court, shall be made to apply their mind so as to opt for one or the other of the four ADR methods mentioned in the Section and if the parties do not agree, the court shall refer them to one or the other of the said modes. In other words section 89 of CPC is provision in law to facilitate introduction of court annexed ADR. The CPC has clear provisions regarding ADR and the people have started to reap the benefits of the system. Civil court can introduce ADR under the provisions of the Civil Code for settling the disputes. Whenever a suit is filed under Civil Procedure Code, Civil Court instead of settling the case has an obligation to settle dispute outside court through nay of the processes. The provisions contained in Order X when a party to the institution of a suit like Civil court, the Presiding Officer in order to compromise the dispute has a discretion to put questions relating to his case. The court had discretion to ask the litigant. The purpose is in such manner that if legal remedies are available, they are qualified without the order which was more suitable. Therefore, the amendment in Order X Rule 1 by making provision for solution in dispute and so section 89 was added to provide relief to the person knocking door of the court. Role of ADR A special feature of the Arbitration and Conciliation Act, 1996 is Settlement Agreement in conciliation proceedings. If the settlement agreement is signed by the parties and authenticated by the conciliator, it will attain the status of a decree of a Court of law under section 74 of the Arbitration and Conciliation Act, 1996. The District Legal Services Authorities in the districts in India can play a very crucial role in this respect and several disputes can be resolved by conciliationsettlement agreements, so that the disputants need not move a court fore resolution of their disputes. They have to move courts only for execution of proceedings if necessary.



Thus, judiciary obviously owes an obligation to deliver quick and inexpensive justice irrespective of the complicated procedures but it cannot be hurried to be buried. Cases should be decided for imparting justice not for the sake of its disposal. Secondly, Arbitration procedure must be utilized as a better option for quick disposal of cases. Thirdly, to conclude with the words of Lord Hewet as it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. On the basis of above analysis it is apparent that the ADR is the best and most effective solution to reduce the Himalayan pendency in various courts of our country. It is not to forget that the ADR is more effective as it is an amicable solution and both parties are in win win position and brings about harmonious relationship between both the parties unlike in the conventional courts, thus it is permanent solution to any dispute, as it dont lead to appeal or revision, and hence reducing the burden of appellate courts as well and also it saves valuable time and energy of the courts which can be utilized erstwhile in other matters pending before court and it renders justice on time (Justice delayed is justice denied, but ADR saves time and timely judgment is possible). As a judge it is our duty as envisaged by the new CPC to encourage the ADR, in civil maters in the interest of justice. Despite many advantages of using Alternative dispute resolution mechanisms, our society has been reluctant to give it its due recognition. The predominant reason being that a litigation ridden society is generally unable to explore consensual dialogue or arrive at an amicable solution. The ADR practitioner therefore acts like a healer of conflicts rather than a combatant. It is similar to the Panchayat system we have in our villages. The resolution of disputes is so effective and widely accepted that Courts (In sitanna v. Viranna5, the Privy Council affirmed the decision of the Panchayat and Sir John Wallis observed that the reference to a village panchayat is the time-honoured method of deciding disputes) have more often recognized them. It avoids protracted litigation and is based on the ground realities verified in person by the adjudicators and the award is fair and honest settlement of doubtful claims based on legal and moral grounds. ADR cannot be used as a panaceaa cure all for all legal disputes. ADR can only be adopted when there is no statutory bar and further if parties agree to. The Court invoking section 89 of CPC must be cautious of this fact.

AIR 1934 SC 105


Hurdles in the effective implementation of ADR are many which include the following : Lawyers and Judges should together play a pivotal role

Lack of infrastructural facilities

Lack of awareness and legal literacy

Further, it has always been argued that arbitration sometimes proves to be more costly than court litigation. Hence care should be taken that in letter and spirit the arbitration and conciliation must prove to be cost effective and highly qualitative in results. The quality of ADR should maintained by the person handling it. The Arbitration and Conciliation Act in this regard provides for the Courts intervention at the appropriate situation so that ADR is not misused resulting in miscarriage of justice. The approach to implement ADR would facilitate in curing the damage already caused by the prevailing legal system. The future of India lies in cost effective and time saving Alternative Dispute Resolution Mechanisms.



Books Referred 1. Justice C K Takwani, Civil Procedure -6th Ed., Eastern Book Company, Lucknow (2011)

3. LL.B. Entrance Examination, Universal Law Publishing Co., New Delhi


Newspapers Referred 1. Justice Delayed is Justice Denied- Hindustan Times, 23rd December, 2010 (Lucknow)

Online Research




4. www. 5. www.