"Justice delayed is justice denied: Increased importance of ADR for Indian litigation scene"

In the late 1800s, William Ewart Gladstone, former British Prime Minister famously said
‘justice delayed is justice denied’ and this adage has been accurately used to criticize the
pendency in the administration of justice in India. The litigant, seeking legal redress by
approaching the courts, when denied the same on time, is in a similar situation as having no
remedy at all. This scenario has plagued the Indian judiciary for decades with the primary
concern being the mounting arrears of cases in the courts, that has increased exponentially.
The recent statistics provided by the Ministry of Law and Justice, read along with the data by
the National Judicial Data Grid show that there are more than 4 crore pending cases in the
Hon’ble Supreme court of India, High courts, and District & subordinate courts. 1 The figures
from September compared with those released earlier this year 2 indicate a substantial rise in
pending cases and similar conclusions can be made when compared with the last
decade.3 The number of new cases filed each year has outpaced the number of cases that have
been disposed of. The significant causes for the colossal backlog in cases, as observed over
decades, include the multiplicity of laws, laws with loopholes and inherent contradictions, the
complexity of procedures, voluminous paperwork, low Judge population ratio, vacancy in
subordinate courts, lack of efficacy in the legal structure and organization of lower courts,
etc. It is owing to these bottlenecks that delayed justice has become a basic premise of the
Indian Judiciary and has remained a cause of great concern for the litigants as well as the
State. The stakeholders of the Indian Judiciary, addressing the issue of pendency in the courts
have deliberated upon various solutions looking to fulfill the mandate of speedy trial which is
a facet of the cherished right to life and liberty granted under Article 21 of the Constitution,
1950.4 These mooted solutions inter alia include the use of effective case management
techniques, technology, filling the staggering vacancy in the High court and lower courts,
Alternative Dispute Resolution (ADR), etc.

The ADR mechanism is considered to be a viable ‘panacea’ to this problem of judicial

pendency and has accordingly gained importance in the Indian litigation scene. It offers
flexibility in the procedure and thus provides the litigant with a cost and time effective
resolution of disputes while reducing the burden on the judiciary. Considering the benefits of
ADR and the severe backlog of cases, the Indian Parliament amended the Code of Civil

1
https://pqars.nic.in/annex/252/AU1381.pdf
2
http://164.100.24.220/loksabhaquestions/annex/173/AU686.pdf
3
https://www.prsindia.org/theprsblog/examining-pendency-cases-judiciary
4
Hussainara Khatoon v. Home Secretary, State of Bihar 1979 A.I.R. 1369.
Procedure to introduce Section 89 to enable the courts to refer disputes which are capable of
being settled between parties to alternate dispute resolutions covering arbitration, negotiation,
mediation, conciliation, and lok adalats. The intention was to make the court process as
effective and speedy as possible. In order to understand the importance of this time-bound
dispute resolution, the example of financial disputes may be considered. The long duration of
the financial disputes has tremendous consequences for the economy and the overall
functioning of businesses in the country. The longer that it takes to resolve a dispute, the
more resources are expended by the party seeking enforcement of the contract, and thereby
the ease and efficiency of doing business is compromised and justice is denied. Thus, the
irrefutable importance of ADR mechanisms in commercial transactions is evidenced by the
presence of arbitration clauses in the agreements, the practice of commercial mediations,
employed to settle the dispute quickly and amicably outside the courts. In this regard, the
Apex court has emphasized on several occasions the importance of mediation and remarked
that this is ‘ideal for parties faced with complex issues that they are willing to resolve through
negotiations.5 The Judges thus view ADR as an effective means to overcome the problem of
delays and encourage parties to take benefit of the same. The current Pandemic has further
highlighted the importance of these mechanisms, with Online Dispute Resolution(ODR)
providing the aggrieved a cost-effective remedy through the use of technologies such as
video conferencing. This ensures that despite the circumstances, the aggrieved is not denied
justice due to delay.

It can be concluded that these ‘legislatively and judicially sanctioned’ methods, despite
certain lacunae satisfy the fundamental requirements of a good judicial administration
mechanism, i.e accessibility, affordability, and speedy justice. The sense of confidence
injustice that is required to preserve the fabric of ordered liberty must, therefore, not be
destroyed by draining the value of the judgment due to unnecessary delay when such
alternative mechanisms may be employed. The Former Chief Justice P N Bhagwati
appropriately describes the effect of this delay in the Courts when he remarks that the only
persons who benefit from such delays are ‘the dishonest who can with impunity avoid
carrying out their legal obligations for years,’ and this is at the cost of public interest. 6 The
way forward is to institutionalize the mechanism, while not losing sight of the features that
i
led to the development of these mechanisms.

5
Afcons Infrastructure v. Cherian Varkey Construction, 2010
6
http://www.ebc-india.com/lawyer/articles/2004v1a1.htm
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References
1. Conference Proceedings of National Initiative to Reduce Pendency and Delay in Judicial System (2018)
Organized by Supreme Court of India
https://districts.ecourts.gov.in/sites/default/files/Proceeding_Book_SupremeCourt-min_0.pdf
2. Examining pendency of cases in India
https://www.prsindia.org/theprsblog/examining-pendency-cases-judiciary
http://www.ebc-india.com/lawyer/articles/2004v1a1.htm
3. https://law.asia/comparison-development-dispute-resolution/
4. https://www.arbitrationindia.com/argumentative_indian.html
5. National Judicial Data Grid
https://njdg.ecourts.gov.in/njdgnew/?p=main/pend_dashboard
6. Ministry of Law and Justice, Lok Sabha, 5th February 2020
http://164.100.24.220/loksabhaquestions/annex/173/AU686.pdf
7. Ministry of Law and Justice, Rajya Sabha, 22nd September 2020
https://pqars.nic.in/annex/252/AU1381.pdf