INTRODUCTION

“Discourage litigation, persuade your neighbours to compromise whenever you can point out to
them how the normal winner is often a looser in fees, expenses, cost and time. As a peace maker,
the lawyer has a superior opportunity of being a good man. There will be business enough.”

- Abraham Lincoln (1809-1865).

Justice system of a nation is not the out come of one man or of one day struggle, rather it stands
for the cumulative efforts of the endeavour, experience and consistent thoughtful planning of
many individuals. To know and recognize the present legal system satisfactorily, it is inevitable
to acquire background knowledge of the course of its growth and development. It is not to lay the
lessons of the past, before the future.1 History enlightens present and the present will enlighten
the future2.

Law is the foundation of universe everything in this world is based on laws. Law maintains and
ensures progress and welfare of all: it is promulgated in the form of commands; it is made for the
welfare and happiness of the people and the State is entrusted with the responsibility of enforcing
law in pursuit of human happiness: it ensures the upliftment of living being (that is social
justice)3. A uniform society would only come in existence if everyone would act according to
law.

In the earlier days disputes were resolved through the intervention of elders and this gave rise to
a system of panchas. It was believed that God spook through panchas and their decision-making
was traditionally accepted as divine process and therefore, the panchas who gave their verdict
were gradually deemed as divine agents and their decisions was accepted without
demur.4Mahatma Gandhi wrote in 1909: “India’s salvation consists in unlearning what she has

1
See M. P. Jain,“Indian Constitutional Law”, 5th Edition (1990), pg.1.
2
See Winston Churchill, “The Gathering Storm”, (1950). pg. 7.
3
See K. L. Bhatia, “Judicial Review And Judicial Activism: A Comparative Study Of India And Germany From An
Indian Perspective”, (1997). pg. 3 & 4.
4
See T. S. Mishra, “Alternatives to the Present System of Settling Villages Disputes of Civil Nature”, (1980), pg. 210.
learnt during the last fifty years. English Jurisprudence is good for England, but it will ruin us if
we go on copying it blindly.”5 In spite of warning given by Mahatma Gandhi about a century
ago, we are still carrying on our shoulders the white man’s burden of laws of British India. 6 The
time is ripe to take a fresh look at the outdated legal system, which is out of tune with the modem
concepts.7 Due to lack of vision, even the known mighty societies have perished.

Half of Indian population still lives below the subsistence line8 and these poor have been kept out
of justice system. A large number of poor people are unable to approach the courts of Justice and
suffer in silence.As stated by Shri S. N. Joshi – “cost of litigation has removed the justice far
beyond the reach of poor’s tiny hands, and has virtually thrown them into the merciless jaws of
tyranny, inequality, silence sufferance and unheard condemnation. More so, justice is neither
handy nor cheap. It is neither substantial nor speedy. It is, therefore, imperative here to add a
note of caution that no democracy can survive if justice becomes a mirage to majority”.9

In the Salem Advocate Bar Association of Tamil Nadu v. Union of India10 challenging the 2002
Amendments to the Civil Procedure Code, the Supreme Court in its judgement in August 2005
directed the Central Government to conduct “judicial impact assessment” and provide finance
and infrastructure to deal with additional cases every time, when a new law is enacted. It is
reported that till the year 2009, 55,000 cases are pending with the Supreme Court, 42 Lakh with
High Courts and 2.9 crore subordinate courts. Pendency has increased by 148% in the Supreme
Court, 53% in High Courts and 36% in subordinate courts in the last 10 years. Between October
2009 and October 2010, subordinate courts settled 1.73 Crore cases as compared to 1.24 crores
in 1999, an increase of 49 Lakh. During the same period, the fresh cases filed increased by 52
lakhs. The Union Law Minister in a reply to a question in Lok Sabha mentioned the following
reasons for increase in pendency of cases: Increase in institution of fresh cases; inadequate
number of judges and vacancies unfilled; inadequate physical infrastructure and staff and
frequent adjournments.11

5
See Justice M. L. Shirimal, “Delay in the Administration of Justice” (1982) pg. 46.
6
Ibid.
7
See Chief Justice Sabyasachi Mukherji in Gas-leak Case.
8
See N. A. Palkhivala, “We, the people: India, the largest democracy”, (1984) pg. 5.
9
See S. N. Joshi, “Programme and Movement of Legal Aid to the Poor’ (1981).
10
2003 1 SCC 49
11
The Hindu, July 2nd, 2010.
As said “justice delayed is justice denied”. Hence in what way the justice may be secured
quickly without delay is a crucial issue. The solution is to make speedy justice and bring some
innovative modification in the judicial system so as to make it possible to keep pace with the
growth of litigation in the country. Today in spite of establishing numerous fast track courts, we
are still unable to overcome the problem of pendency of cases. Keeping in mind the needs of the
poor, helpless, disabled, socially and economically disadvantaged persons, those who are unable
to approach the court of law and being fully aware and conscious of the fact that law and justice
are not for preserving the few privileged ones but it’s a common heritage of all. State has been
put under obligation to ensure that the legal system secures justice and shall, in particular,
provide free legal aid by suitable legislation or schemes or any other way, to ensure that equal
opportunities for securing justice are not denied to any citizen by reason of economic or other
disabilities.12

The need of current hour is that to make a comprehensive enquiry into the roots of the existing
judicial system and to suggest ways to evolve a vibrant judiciary. With economic liberalization
and the opening up of the market, there was a phenomenal growth of international trade:
commerce, investment, transfer of technology, developmental and construction works, banking
activities. To cope with the changing scenario, India has updated its arbitration legislation in
order to provide a level playing field for both domestic and foreign entrepreneurs. History has
proved that it is one of the very efficient and important ADR mechanisms available and most
suited to Indian environment, culture and societal interests. Indian arbitration law ensures
fairness and justice to all the concerned parties.

Economic reforms initiated in 1991 and increase of national & international business transaction
has further pushed some major reforms relating to international commercial arbitration and
domestic arbitration making our law more effective and efficient, pioneering and palliative
alternative mode of dispute settlement which is accepted as a viable, economic, efficient,
informal, expeditious form of resolution of disputes. It involves a blend of negotiation,
conciliation, participation along with less judicial intervention based on the United Nations
Commission on International Trade Law (UNCITRAL) a Model Law on international

12
Article 39A of the Constitution of India reads: Equal justice and free legal aid- The State shall secure that the
operation of the legal system promotes justice, on a basis of equal opportunities 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”.
commercial arbitration. These facts make arbitration as an effective ADR Mechanism, which is
beneficial for both the disputant parties, but majority of the litigant parties are still not coming
before these bodies. Why it is so? What are the factors that are acting as obstacles in making this
system more familiar among the people at large? Hence there is a need to study the legal status
of ADR system and identify the factors, which affect its efficient functioning.

THE PROBLEM
The present traditional adjudicatory system has failure to provide easy, cheap and expeditious
access to justice. As a result of which, a common man has started looking it, as a foe rather than
a friend. On the other hand India is the largest Democratic Republic Secular State, which has
adopted and followed the doctrine of Welfare State. Consequently Parliament has enacted a
number of legislations to protect poor litigant from inordinate delay, even then there is no change
in the position and there is no speedy disposal of cases and the courts are suffocated by an
already large number of pending cases.

HYPOTHESIS
It is hypothesised that the existing Indian judicial system has some structural defects and it can
be strengthened by creating an alternative forum to settle the pending cases amicably outside the
court hall, with assistance of arbitration and other alternate dispute resolution systems and
thereby regaining faith in judiciary and that the cases can be solved without delay and without
much cost.

OBJECTIVES OF THE STUDY

The present study had the following objectives:

1. The primary objective is to make a critical analysis of the present judicial system, to
understand the reasons for its failure and examine the need to make a paradigm shift in
the dispensation of justice through innovative methods.
2. To study the evolution of Indian judicial system and trace the phases of its growth.
 3. To study the present Indian judicial system in order to ascertain factors which cause delay
in the disposal of pending cases.
4. To study alternative dispute resolution methods existing under the present Indian judicial
system, in order to ascertain their scope and usefulness.
5. Lastly to make apt suggestions for improving the system of administration of justice.

METHODOLOGY
The methodology adopted for the study is completely doctrinal, involving content analysis, for
which original sources were consulted for critical appraisal. Relevant books, articles, empirical
studies, reports, statistical data etc., have been studied to get the true picture of the problem and
to outline the remedial measures for it. The standard forms of citations and references are used in
the study.

IMPORTANCE OF THE STUDY

The importance of the study lies in the fact that it analyses the inherent defects present in Indian
judicial system and offers valuable suggestions for its improvement. It explores the ways by
which alternative disputes resolution methods could be appropriately employed for securing
justice and promise harmony in the society. It is believed that the study will be to be useful to
advocates, judges, litigants, academicians, social activists, especially voluntary organizations in
terms of settling dispute in speedy way without incurring much cost and thereby reduce
unnecessary delay in resolving the dispute which is presently found in the present Indian judicial
system. Lastly, the importance of the study lies in the fact it makes original contribution in the
field of law and serves the cause of justice on the basis of equality.

SCHEME OF THE STUDY

The investigation into the problem is planned and spreads in following chapters:

CHAPTER-1: Introduction –This Chapter elucidates the problem, the objectives of the study,
importance and the methodology.
CHAPTER -2: Evolution of the Indian Judicial System – In this chapter an attempt has been
made to trace the origin and development of Indian judicial system through different periods i.e.
the ancient India, the Mughal and the British India period. Further the study also focuses on
nature, gradation, jurisdiction, composition, powers and functions of courts of ancient India.
Apart from this, the study also focuses upon the procedure which was followed by these courts.

CHAPTER-3: The Present Indian Judicial System: An Analysis –In this chapter the present
Indian judicial system has been analysed with reference to the hierarchy of the courts. Further the
study also focuses upon the judicial procedure followed by these courts, scope for ADR in the
existing administration of justice, the lacunae existing in the present Indian judicial system,
which cause inordinate delay in the disposal of cases.

CHAPTER-4: An Overview of Alternative Dispute Resolution System - Under this chapter

different ADRs Mechanisms like negotiation, mediation, conciliation, and arbitration, Lok
Adalats and Permanent Lok Adalat, Mini- Trial, Med- Arb, E.N.E, DRB & DAB along with
lacunae involved in these mechanisms have been analysed thoroughly and critically.

CHAPTER- 5: Mediation & Conciliation – This chapter elaborately deals with two ADR
mechanisms i.e. mediation & conciliation. This chapter first of all explains the concept and
process involved in both mechanism, there advantages and disadvantages. In the end of the
chapter issues and concerns pertaining to mediation and conciliation are also analysed.

CHAPTER- 6: Lok Adalats and Permanent Lok Adalats – Chapter 6 elaborately deals with
Lok Adalats and Permanent Lok Adalats as ADR mechanisms. This chapter, in the beginning
explains the concept, evolution, law, practices and procedures of Lok Adalats and Permanent
Lok Adalats along with the advantages offered by them as ADR fora.
CHAPTER- 7: Arbitration –This Chapter deals with the adjudicatory ADR mechanism –
Arbitration. This chapter first of all gives an insight of the concept of arbitration, types of
arbitration and the historical background of arbitration in India. It then expounds the process of
arbitration, which is governed by the Arbitration and Conciliation Act, 1996, referring to the
relevant statutory provisions and the significant judicial pronouncements.

CHAPTER- 8: Alternative Dispute Resolution under Section 89 of the Code of Civil

Procedure, 1908 –It expounds the contribution of section 89 CPC to ADR jurisprudence. In the
beginning it explains the nature and ambit of section 89 CPC and highlights the reasons for
incorporating section 89 CPC in the statute book. This chapter then proceeds to outline the
procedure enshrined under section 89 CPC and also gives an insight into the role of referral
judges in ensuring that the salutary objective behind the incorporation of section 89 CPC is
accomplished. This chapter then proceeds to discuss and analyse the available ADR mechanisms
under section 89 CPC with special reference to Judicial Settlement as an ADR mechanism.

CHAPTER- 9: Conclusion & Suggestion –In the first part of this chapter an earnest attempt
has been made to assimilate the broad and generalized propositions and conclusions embodied in
all the preceding chapters with brevity and precision. The second part of the chapter
comprehensively expounds some of the plausible legislative, administrative and other allied
remedial measures for rectifying the flaws observed during the research and also contains an
exposition of a whole gamut of other suggestions for the better and effective implementation and
systematic growth of ADR in India from a pragmatic point of view.