SERVICES AUTHORITY ACT, 1987

LEGAL
which was inserted by the
39-A of the
Constitution Constitution (Forty second) Amendment Act,
Article
obligation onthe: to secure that the operation
State
casts an of thelegal system promotes justice

abasis of equal opportunity, and in particular, provide free legal aid by suitable legislation or schemes
rin any other way, to ensure that the opportunities for securing justiceare not denied to any citizen by
son of economic or other disabilities. Besides, the right to free legal aid has now been included as
tolife andpersonal libertyguaranted under Article 21 the Constitution.
part of right
of

Wth a view to accomplishing this objective, the Government of India appointed, a commíttee for
imolementing the legal aid schemes in 1980. This committee was headed by Mr. Justice [Link].
The committee prepared a draft-legalaid programme which could be applicable throughout India. It is on
the basis of the recommendations and the draft outlined by this Committee that the Legal Services
Authorities Act, 1987, was passed to establish Statutory Legal Services [Link] also contained

provisions relating to Lok Adalats.

Object of the Act: The main object of the Legal Services AuthoritiesAct, 1987 is to provide free and
competent legal services to the poor and weaker sections of the society so as to ensure that they are
not denied the opportunities for securing justice by reason of economic or other disabilities and to
to secure that the operation of the legal system promotes justice
on the basis of
organise Lok Adalats
equalopportunity.

Entitlement to Legal Services : Services AuthoritiesAct, 1987 provides that

Section 13 of the Legal
persons who satisfy all or any of the criteria specified in Section
12 shallbe entitled to avail legal
person has a prima facie
services provided that the concerned Legal Aid authority is satisfied that such
an affidavit stating that he is
case to prosecute or to defend. The person concerned is required to file
entitled to legal services under the Act.

persons who are entitled to legal services. These

Section of the Act enumerates the categories
12 of

are as follows -
a) Aperson who is a member of Scheduled Caste or Scheduled Tribe:

b) A victim of traficking in human beings or beggar as referred to in Article 23 of the Constitution of

India,

c) Awoman or a child;

A person who is disabled as defined in Section 2(0) of the Persons with Disabilities (Equal
Opportunities,Protection of Rights and Full Participation) Act, 1995:
e) A vicüm ofamass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industl
disaster,

an industrial workman;

g) a person who is incustody under the Immoral Traffic (Prevention) Act, 1956; Juvenile Jueke
(Protection and care and children) Act, 2000, Mental Health Act, 1987;

h) Aperson whose annual income is less than Rs.9,000/-or a higher amount asmay be prescibed
by the State Govemment, and less than Rs.12,000/-hen the case is before the Supreme Court

In addition to the above, legal servicesmay also be granted in cases of great public importance and in

special cases which are considered deserving of legal services.

Cases for which legal aid is not available : The cases coming under any of the following category
shall not entitle a person to receive legal aid from the
State:

1) Cases involving the offence of defamation, malicious prosecution, contempt of Court, perjury
etc.

2) Proceedings relating to elections;

3) Cases in which the fine imposed is not more than Rupees fifty,

4) Economic offences and offences againstsocial laws;

5) Cases where the person seeking legal aid is not directly concerned with the proceedings and
whose interests willnot be affected, if not
represented properly.

Withdrawal of Legal Aid/Services The

services granted to a person under
:
Legal Aid Committee has the power to withdraw the legal aid
the following circumstances :

1) Where the aid is obtained through misrepresentation

or fraud;
2) Any material change occurs in the circumstances of the person to whom such legal aid was
granted;

3) In case of misconduct,
misbehaviour or negligence on the part of the aided person;
4) Where the aided person does not
co-operatewith the allotted lawyer or
counsel;
5) If the aided person appoints
another legal practitioner,
6) In case of death except in civil cases;
7) Where the proceedings amount to misuse of the process of law or of legal services .
Where the legal sevices are withdrawn,the Le0al
granted. However, the person aggrieved has a
Aid Committee may recoverthe cost
right to appealbefore the
y Aid
Committee. Chairman Of ue

Organisation

peaceful Iresolution
of Lok Adalats : Lok Adalats are judicial bodies set up for the
purpose
of an
of facilitating
ordinary
Civil

of disputes between thelitigating have the powers

parties. They
 examining. taking evidence etc. These Adalats
as summonig. can
resolve
CNtsuch matters except
are non compoundable.
that
nal
cases
the Lok under the Legal
Adalats
has been assigned to Services Authorities
status effect from 9h November, 1995. The said Act, 1987,
Soa into force
with
Act
wch has
come
Adalats.
The Lok Adalat shall now have : provides the statutory base

2lot. vestedIin a under the Code

same powers as are civil court of

The Civil Procedure,1908;

before a Lok Adalat shall be deemed to be judicial

Al proceedings proceedings within the

meaning of sections 193, 219 and 228 of the Indian Penal Code:

Evey Lok Adalat shall be deemed to be civil court for the purpose of section 195 and chapter
3)

XXM of the Code of Criminal Procedure, 1973:

4)
The members of the Lok Adalats, interms of the provisions of Section 23 of the Act, shall be
deemed to be public servants with in the meaning of section 21 of the Indian Penal Code; and

5) Every award made by a Lok Adalat shall be final, binding and non-appeable.

Lok Adalat under the Act shallhave jurdisction to detemine and to arrve at a compromise or settlement
between the parties to a dispute in respect of :

Any case pending before : or [Link] which is falling within the jurisdiction of and is not brought
before any court for which the Lok Adalat is organízed.

TheLok Adalat shall, however, have no jurisdiction in respect of any case of matter relating to an offense

not compoundable under any law.

Adispute can now be referred to Lok Adalats by(a) Mutual consent;or (b) at the request of one of the
paries, or (c) by the Court suo motu. So, even private cases can be referred toany decided by Lok
Adalats.

National Legal Services Authority :The National Legal ServicesAuthority consists of Chief Justice of
India as Patron-in-Chief, a sitting or retired judge of the Supreme Court as Executive Chairman and a
Committee constituted by Chief Justice of India. Equaly, in each state, Chief Justice of the High Court is
patron-in-Chief, a sitting or retired High Court Judge is Executive Chaiman and acommittee constituted
inthat behalf. In each district there is a District Authority presided over by the Principal Distric Judge
and a Committee. At Taluka or Mandal level for each Taluka or Mandal or a group of Taluka or Mandals.
a commitee would be constituted with a Principal Subordinate Officer as Chairman. Thus,the Lok
Adalat system is now uniform andcourt-oriented programme.
a

Both types of cases, that is, pre-litigative cases as well as post-litigative cases now be brought before
the Lok Adalats for determination. The Lok Adalats, it would be seen, are court-oriented programme as
supplement ADR to the regular trial procedure.

The At provides incentive with regard to refundof court fee initially paid at the time of the institution of
the case,if the case is eventually settled through the Lok Adalats.

The suCcess of the Lok Adalat asa social institution isthe massive literacy programme in advance. The
general consciousness are basic requirements for
empowerment of people, awareness of ights and
extensive expenditure and delay.
successful resolution of disputes without resorting to

61
 The programme,though widespread and widely appreciated, is not continuously successful
becauseof
several reasons. They are:

it is not institutionalized

b. conceptsare not clarified

C. infra-structurewas not properly developed

d
no training for personnel

no minimum standardsprescribed

It should appear fair and just in all aspectsas Lok Adalat is supposed to be a substitute to judicial
process. The LokAdalat is a para judicial institution.

The Legal ServicesAuthority Act 1987 was brought

into force in 1995 after an amendment
When Jodhpur experimentcould not be
in 1994
because of 40 days strike by
continued
subordinate judicial officers, which ended ministerial staff and
in settlement which led to
till [Link]
need for institutionalizing stoppage of Lok Adalat experiment
the Lok Adalat and providing
continue the movement was felt for legal sanctity and authority
arnd the Act of 1987 was to

has been merely an illusion for the [Link] was long

poor and [Link] is strange, overdue as justice
years after it was made. that the Act was
brought into force eight

The Object The :

object of the Act is to
create authorities to
provide free andcompetent
to the weaker sectíons of the
society to ensure that legal services
any citizen for reason of opportunities for securing
justice are not denied to
economic or other disabilities
operation ofthe legal
and to organise Lok
system promotes justice Adalats to secure that the
on basis of equal
opportunity.
The Authorities under the Law: It
created National
Legal Service (under Section3), State
Authorities with the power
to organize Lok (S-T)and District (S-9)
over by Judicial and Adalats. Each Lok
Non-Judicial member. The Adalat has to be presided
Court and without award of Lok Adalat is
provision for Appeal. For deemed to be a Decree of Civil
of Civil Court and the purposeof
its proceedings determination, the
are deemed to be LokAdalat will have
powers
crimínal court, judicial
proceedingswith the
revenue courts or any jurisdiction of civil and
tribunal. At the
decides policy for the national level National
Legal ServícesAuthority
nation, while atstate
Court Legal Services level, there is State
Legal Services
At District and Taluk Committee and High CourtLegal ServicesCommittee Authority. The
Supreme
level also Legal will promote
the Lok Adalat.
(S 11A)was envísaged by Services Committees are constituted.
(TheTaluk level Commitee
1994 amendment) Al
to detemine these authorities are
and amve at a compromise
cases pending before or
o
settiement between the
empowered to organíze LokAdaat
parties to a dispute in
falling withín respect
jurisdiction of the
respective courts.
For Whom?:
Section 12 entitled
everyperson who has
person belongsto tofile or defenda case to
,
or child a person with
victim ofa mass
Scheduled Caste or tribe,a
disability, a person under
victim of Trafficking in
human
circumstancesof undeserved
being
legal services, f

or beggar, a woia
at
disaster, ethníc
violence, caste atrocity, want such as belng
or, an industrial flood, drought,
workman, in custody, earthquakeor índustrial
including custodyin a disas
hospital or psychiatric protectíve home,
nursing home, or a juveníle home, psye
nine thousand if the case is person who has in receipt of annual
before Supreme Court, and if income less than ruP
Supreme Court and less than Rupees the case is hefore a court
other tnan ui
twelve thousand rupees or
such ofher higher amount as
presu

62
 In cases before Supreme Court, the Center and in cases before
Government. other courts the
by the a higher amount as eligibility
may prescribe criterion to receive
services under this
government
state
the main eligibility is that the person mentioned under Section 12
criterion
One of should have a
and the Authority should be satisfied
prosecute or to defend
Act.
facie case to about that factor
prima
(according
to S 13). The income criteria can be satisfied by an affidavit from a person
seeking legal

service.

National Legal Aid Fund is created under Section 15. Similarly the State fund under Section 16 and
created.
District Fund under Section 17 was

Constitution and Jurisdictionof Lok Adalat : Section 19says that every authority is empowered to
organize Lok Adalats at such intervals and places and for exercising such jurisdiction and for such
areas as it The Lok Adalat consists of a serving or retired judicial officer and other persons on
thinks fit.

its bench. The Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement

between the parties to a dispute in respect of, ()any case pending before or any matter which is faling
within the jurisdiction of and is not brought before any court for which the Lok Adalat is organized. has It

no jurisdiction in respectto an offence which is not compoundable under any law (S 19).

The Lok Adalat takes cognizance of a case referred if the parties agree, or one of the parties thereof
makes an application to the court for referring the case to Lok Adalat and if such court is prima facie
satisfied that there are chances of such settlement; or the court is satisfied that the matter is an
appropriate one to be taken cognizance by the Lok Adalat (Section20). The reference of any case to Lok
Adalat by the court has to be done only after a due opportunity is given to the party which has not applied
for reference. After such reference is made,the Lok Adalat has toproceed to arrive at a compromise or

settlement between the parties, with utmost expedition. has to be guided by the principles of justice
It

equity, fair play and other legal principles. If the compromise or settlement could not be arived at, the
case will return to the Court.

The Section21 is a significant one as

it provided status of decree to the award of Lok Adalat, and legal
sanctity forthe proceedings before it. Every award of the Lok Adalat is deemed to be a decree of a civil
court, and the court fee paid shall be refunded in the manner
provided under Court-fees Act. Every such
award shall be binding on allthe parties to the dispute and no appeal
shall lie to any court (S 21). Refund
of court fee is an incentive for parties to
negotiate for settlement. The Lok Adalat is
of civil court, with powers to
vested with powers
summon and enforcethe attendance of any witnesses, for
production of any document, the
discovery and
reception of evidence in affidavits, to
requisition of any public record
from any court or office, etc. It can specify
its own procedure for
before it All the proceedingsbefore it shall be determinationof any dispute coming
deemed to be judicial proceedings,and Lok Adalat shall
md
to be a civil court (S
22). All the officers and persons
concerning the Lok Adalat and
Athorities are regarded as publG SevantS as
per Section 23 which was substituted by 1994
.. :
all districts and moffusl Courts, the Lok Adalats
amendment
were constituted and functioning in
Lok Adalat is not a permanent seat of settlement. It has to reuer
intervals. yet the be constituted
to constitute. by authority
whenever it feels necessary
The [Link] is a very
The Permanent Lok Adalat: useful
experimentthat
success is one of the main succeeded in
That reasonsfor transforming clearing the
long pending cases.
retains the character If it

special Lok Adalat

into a permanent
institution.
of courtoccasional, specific or
for consensus dispute annexed
center, and provides resolution Alternative
Dispute Resolution (PLA). National process, there is
Lok Adalats Legal Services
in creating Permanent Authority nothing
Wrong Act was recently
63
 amended in Juty 2002 and Supreme Court found its earliest opportunity to
hold it
constitutionally valid,
and now there is no hitch in launching the PLAs. Bar Council of India opposed the change and the
structure of the PLA The NALSA Act was passed in 1987 to provide free legal services to weaker
sections of society and to ensure that they are not denied justice by reason of economic or other
disabilities. Under Section 19 to 22 of the NALSA Act, any matter pending before any court or tribunal
may. if the parties make a joint application indicating their intention to compromise, be transferedto a
Lok Adalat

To tackie the baffing figures of pending cases the Judiciary and Legislature are making all possible

eforts and efoming the law. The Civi Procedure Code was drasticaly amended despite the fundamental
objections raised by the lawyering community. The State is promoting Altemative Dispute Resolution
mechanisms by all means. The changed CPC makes it an obligation of the Courts to refer to ADR
methods before it decided to
finally adjudicate upon (Section 89 of CPC).
Amendment 2002:Chapter VIAof the Legal ServiceAuthorities (Amendment) Act 2002
provided for
establishment of Pemanent Lok Adalat in the name of providing for
pre-litigation conciliation and
settlement Pemanent LokAdalat is headed by either fomer or
sitting district judge or additional district
judge or officer of rank higher than district [Link] will
have twO members with adequate experience in
Public Utility Service". The PLA would decide by
majority. Public Utility Service means any
transport
service,postal, telegraph, or telephone,power
supply. Public conservancy or sanitation, hospital or
insurance serviceagency. Thus any fomer
employee of the above public utility service can be
asthe members of the PLAand if they can fom unity appointed
they can decide any case in any manner
the chaiman who is a judicial ignoing
member. These PLAs can take up any matter
where the value of the
property in dispute is up to Rs.10 lakhs.
The PLAhas to conduct conciliation proceedings
dispute on merit and in doing so it has to or decide a
be guided by the principles of natural justice,
play, equíty and other principles of justice and shall not objectivity, fair
be bound under the Code of Civil Procedure,
1908 and the Indian Evidence Act,
m1872. Two non-judicial members of the PLA
anyopportunity either to learm or practice natural must have never had
principles of justice. The Chaiman of
judicial person could be expected PLA being the
and experienced to have practiced the natural
could be of great help to the principles of justice. He
other two non-judicial members
provided they agree with him. If
disagree and they constitute majority they will have they
entire power to decide the case
Scope for Consensual Process : Before ths Amendment the two
disputants have tomake a joint
seeking resolution of dispute before
anplication
ot t refer the case to Lok Adalat, the Court [Link] one party alone makes an
can dó SO if it is satisfied that
application to the

sefflement Before such reference, the there are chances of

court is Obliged to grve a
which did not agree to refer the dispute to Lok reasonable opportunity to the party
Adalat. Ihough the conciliation or
nrocess the court can still impose the mediation is consensual
process based on is Satistaction that there is
an element of
settlement in the dispute.

Under the amendment the permanent Lok Aaalat

an lake up tne case even if one of the disputants
onnliesforsetlement before it. Another major chnge
broughtin is that the resolution process. need not
he consensual. It can be imposedymerTm puaml Could resolve thedisoufe hy conciiation
process, there is no problem. But when they fal to resolve in consensual process. the PIA bas the
authority to decide case on merits without applyng CPGandEvidence Act, and impose it [Link]
narties have no authority to take it in appeal, which means, one of disputants can seek resoution by
A evPn if they fail to aive at, he may have o
accepr me oeCision even when was decided by it

maiorityof non-iudiciary members and be satisTIed witn tS decsion which has the legal vale ofdecree

64
 [Link]
for: injustice is hurried, the
any Scope disputant must be happy that he got it for
having
without
in remarkabletíme with remarkable speed.
it was achieved

and Individuals: As all the disputes worth .10lakhs

Rs.
concerning a public utility dispute
Institutions either by ADR or ad judicatory prOcesses in reasonable speed, the
to be resolved, undoubtedly, if

have like RTC seeks a dispute, which is worth of Rs.10 lakhs, PLA decides to
service initiate
public
utility

that person and RTC fail to conciliate,the PLA's both non-judicial

proceedings. If members
conciliation

the case for RTC 2-1 majority (even if judicial member who is also a chairman decides infavour
decide
RTC, the individual has to shut his claim as that would be a final settlement as he
against
ofindividual.

could not goin appeal. Section 21 (E)(1) makes the award ofthese PLAs final and no appeal lies.

The permanentLok Adalatwould have been províded for consensual process, or the adjudication by
natural principles of justice, appointed a bench of three members including one publicutility service
member with scope for justice and justice based majority, instead of such an unjustified composition of
permanent Lok Adalat as provided by the Amendment. It is surprising that this provision against Natural
Principles of Justice which may even lead to a seriousunconstitutionality was not effectively noticed.

Either or the State Government can declare, in public interest,any serviceas public utility service.
Union
The moment such declaration is made, all the disputesin such a service, worth of which not exceeding
Rs.10 lakhs would be made over to [Link] major objection raised by the Advocates is that the
very purpose of Legal ServicesAuthority Act is to províde legal servicesto weaker sectionsof society,

where as the new Amendment makes no such discrimination andevery litigant in dispute with any pubic
utility service would get the benefit of the quíck disposal.
Every dispute except non compoundable
and disputes beyond value of Rs.10 lakhs, every other civil or criminal case can be decided by
offences,
PLA. There is no qualification prescritbed for being appointed as the
non-judicial members of PLA.
Because of these reasons the BAR is opposing the Amendment saying that the
Government has
introduced innovative alternative justice redressal
system forgetting the fact that litigants approach the
courts for getting justice and not for mere
disposal of cases.

The Supreme Court has validated the Amendment and the

constitution of Permanent Lok Adalats as
prescribed under the new Amendment to
LSAAct.
It is true that existing legal
system ís rídden with flaws and procedural
deficiencies, either because of
law or practices. and attitude of bench and bar are responsíble for loss
If practíces
of credibility of
adjudication process, practices could be changes and
practices be reformed.A sincereeffort is made
to amend the porocess by two controversial amendmens oV
FrOCedure. t is a known f fhot
attitudes and aradually discredited systems cannot be reTormed
by amendments to law Hh i
backdrop,a law that inherently provides for bias and application ofnatural principles of iusfie ths
recommendatory possibility, how could justice be renderea? Inis Snows that both the judiciany
legislative are interested in clearing the pending files by disposing them by some or the and
without rendering justice.

The Lok Adalat contemplated under

new regulation is neither an adjudicating process no
this
alternative dispute resolutionprocess. It hasimbibed deficiencies of adjudicating procesS and
removed
consensus allowingimposition of unappealable [Link] Supreme
Court
the role of also hoped
that
only persons of integrty would be appointed in Lok Adalats. People too hope persons alone sch
it mean that persons with integriy are
not avajlabl
WOuld be appointed levels of
in courts
all Does
stated that the Act
courts and are available for Lok Adalats? Surprisingly the
Supreme Court would
Adalat works has
With what
speedLok to be a
ensure thejustice tolitigatnts speedily andimpartially.

65
 had already become a casualty, with above
referred
waited and observed whereas impartiality deficiencies.
be made is they either silently suffered fro
With regard to lawyers' opposition, only remark that could

and the ordinary clients to hopeless situations. The same fate awaite
exploited those loopholes left

poor clients even in public utility courts headed by former judges.

ALTERNATIVE DISPUTE RESOLUTION SYSTEM

Introduction :In a society, the among the individuals or difference of opinion resutino
conflict of interest

in differences regarding the interest, rights and liabilities is an essential evil which may result in a

dispute. Every dispute was to be resolved at earliest level from growing into a very serious [Link]

the disputes are on rise, there is need to develop adispute resolution technology to meet the demands
of increased litigation and to protect the relationships. To resolve such disputes we have structured
judicial system which incorporates rule of law (as explained by "Le Principe Legalite i.e., governance not
by persons but by a system or by the developed constitution) and principles of natural
principles or
justice i.e., fairmess, equity, equality and reasonableness in
the process to administerjustice. We have
formal and rigid court system. Courts are
empowered to decide the cases in accordance with;justice,
equity and good conscience. In the present scenariodue
to the rapid economic growth and
in the society, the traditional judicial
development
process has turned out to be overburdened. To help
or assist the
judiciary in the administration of justice, there
must be an alternative mechanism.
The Emergence of Need of ADR : The need to
resort to alternatives has emerged from these
problems of litigation, such as unordinary
delay, escalating costs of
corruption and inequalities in
litigation, mounting arrears, pervasive
system,failing of nayaya [Link]
nobelservice oriented legal professionceased to
profession and is operating to
be a
market principle of demand and
carrying fortheneed for
justice. The system ignored
supply,without
their legitimate interests of
down to the techniques, rules and the people and boggled
unreasonable levels of interpretation.
alienated from system and This led to people being
they avoidedlitigation.
is now widely
It
acknowledged that our litigation
system requires drastic curb on
minimise the role our couts, [Link] is not to
the superior courts, play in the
especially
Generallyspeaking,except promotion of the rule of law.
litigants who stand to gain
perhaps enjoy taking recourse by delaying the process of
to litigation that justice, others do not
consumes innumerable number of years
amounts by way of expenses. There and considerable
is always a great
rush for interim orders of courts.
affairs make people This stateof
cynical about the judicial
process,often subjecting it to
ridicule.
We have no other choice but to
vigorously and quickly devise
ease the presentweight of judicial effective alternative
options to litigation
business. Of course, India is to
arrears of court cases. not the only country which
Even the developed is buffeted by
countries such as the
United Kingdom suffer from United States of America
this problem,albeit
on a lesser scale. The and the
severalcountries,
including Australia,
USA and following its
Canada, Germany, Holland, inspiration,
Africa, Switzerland
and U.K. have used over Hong Kong, New Zealand,
the last 20 years or so South
"Alternative Dispute Resolution" what is
(ADR) popularly known as
that encouraged the disputants to
understandingwith a minimum of outside help. arrive at a negotiated
What is ADR?
As alkernative to traditional
litigation or administrative
agency complaint process is
consensual, voluntary processes where there ADR. It includes
no judge or decisíon makers
is
meditationand (such as negotiation
facilitation), as wellas adjudicative process where the
parties hire a private iudge or

66
 [Link] have been
are extrajudicial in

maker:
ADR techniques of
employed with very
categories disputes, especially
civil. commercial.
decision in several industial and family
resuts
encouraging these techniques have been shown to work across the full range of business
n particular. and interpretation. construction
disputes. contract, contract performance contracts, intellectual
banking. differences,
disputes: ventures. insurance liability. partnership personal injury. product
joint liablity.
nights.
property
estate and securities.
real

atogether the means of resolving disputes by means

not intendedto supplant
traditional of

S
ADR There are still a large number of important areas,
It ooffers only alternative options to litigation.
itigation.
law and criminal law. in respect of which there is no substitute for court decisions.
incuding constitutional
for every dispute even in other areas: even if [Link] can not be
ADR may not be appropriate
inyoked unless both parties to a dispute are genuinely interested in a settlement.

nis phiosophical perception, ADR be the mode in which the dispute resolution
process is considered to

orocess is qualitatively distinct from the judicial process. It is a process where disputes are settled with

the assistance of a neutral third person generallyof parties' own choice, where the neutral is generally

famiiar with the nature of the dispute and the context in which such disputes normaly arise,where the

proceedings are informal, devoid of procedure technicalities and are conducted by and large. in the
manner agreed to by the parties, where the dispute is resolved expeditiously and with less expenses,
where the confidentiality of the subject-matter of the dispute is maintained to a great extent, where
decision making process aims at substantial justice. keeping in view the interests involved and the

contextual realities. In substance the ADR process aims at rendering justice in the fom and content
which not only resolves the dispute but tends to resolve the conflict in the relationshipof the parties
which has given rise to that dispute.

History :
of ADR in India In India the origin of ADR could be traced to the
origin of political institutions
on the one hand and trade and commerce on the
other hand. In rural India Panchayats (assembly
of elders and respected inhabitantsof a
village) decided almost all disputes between the
inhabitants
of the village, while dispute between the
members of a clan continued to be decided by the elders
of cdan.

ADR in India :Dr. Priyanath Sen in his book "The General Hindu Jurisprudence' has given
Principles of
an exposition of the dispute resolution ínstitutions prevalent during the period of Dharmashastras. He
refers to the resolution of disputes between members of a particular clan or occupation or between
members of a particular by Kulas (assembly
locality, the members of of a clan), Srenis (guilds of a
particular occupation) and Pugas (neighbourhood assemblies).
One of the main characteristics of these traditional institutions is thatthey were recognised system of
administration of justice and not merely 'alternatives' to the formaljustice system
established by
feudal lords, kazis, the system introduced by the British
and the existing the
sovereign-the adalat
system. Thetwo systems continued to operate parallel to each other. But as court
regards the
the nature proceedings these institutions were very much similar to the procedure and
of
ADR
informal,inexpensive and quick, and the decisions were based not on abstract
procedures-simple,
notions
the prevalent norms of expected behaviour. The procedure followed by the of
justice but
traditional on
that artbitration
of and conciliation, depending on the nature of dispute,
exceptthat institutions was
not chosen by the parties. decision
makers were
of administration of justice introduced during the
The formal system British
the traditional rule
feudal set up. But
of dispensing justice through institutions
replacedthe
such as old
Kula, system
Srenis and
67
 to play their role of dispute resolution though not known bytheir old names.
Pugas continue Thus, we
being settled by that biradari. We
have disputes between members of a clan or biradari
still
have several
providing for settlement of the disputes their of

traders and other commercial associations members

Srenis and we have Panchayats to resolve disputes
between those
inter se which is similar to residing
its territorial imits. The justice process of these institutions is similar, in its essential
within features, to

that of ADR procedures. Disputes are settled quickly, at affordable costs, with participation of the

parties,in informal manner and these institutions are preferred as alternative to court system
because
of the law's unfamiliarity to the parties or its unsuitability to resove the particular type of the disputes
However, these traditional modes of disputes resolution were not suited for settlement of commercial
and other contractual disputes involving high monetary claims founded on statutory laws. At the same
time the traders could illafford the luxury of time involved in normal litigation in courts. The British had

already a well established arbitration system with statutory backing and had no difficulty in introducing
the same in India.

Over the years, largely due to the development of and commerce, arbitration came to be recognísed
trade
as an effective alternative to formaljudicial system. Due to its own merit of being adjudicatory in nature
resulting in bindíng decision held the field of a widely practised alternative to
it
court system. The legal
professionwas soon attracted by the popularity and volume of arbitration in India. The
result was
obvious. The arbitral proceedings tended to be more and
more formalised on the pattern of judicial
adjudication in courts. The itigious nature of
parties, encouraged by the legal
profession and judge
arbitrators who are mentally trained only in the judicial process, further contributed to judicialisation of
arbitral [Link]'s intervention, before, during, and after arbitration, made arbitration as dilatory as
the court system.

The various ADR techniques now wellrecognized are :

Negotiation :A non-binding procedure
involving direct interaction of the
disputing parties wherein a
party approaches the other with the
offer of a negotiated settlement based on an objective assessment
of each other's position. A
trade-off of other interests not
involved in the dispute is not
negotiated uncommon in a
settlement. Objectivity and wilingness to
arrive at a negotiated
the parties are essential characteristics of settlementon the part of both
negotiation.

Mediation/Conciliation A
parties
: procedure in which a neutral third party assists
non-binding
the disputing
in mutually reaching an agreed
settlement of the dispute. Mediation and
inter-changeableexpressions. In both the conciliation are
procedures a successfulcompletion of the
results in a mutually agreed proceedings
settlement of dispute between the parties
though, in some jurisdictions,
mediation is treated as distínct from
conciliation inasmuch as in
more positive role of the neutral third party than mediation the emphasis is on
in conciliation. However, this
factor should not make
mediation distinct from conciliation because
the scope of the role that a mutual third
party can play
depends on the nature of the dispute, the degree of
willingness of the parties and the skill of the
individual neutrals.

Mediation Arbitration (MED-ARB) :A procedure where the parties agree to settle their
dispute first by
attempting a conciliation withín a specified time, failing which by arbitration. This is distinct from
conciliation
in the course of arbitral proceedings where, ifa settlement is reached, the arbitration proceedingsare
terminated by making an award on agreed terms.

Mini-trial :A non-binding procedure where the disputing parties present their respective cases before
their seniorexecutives who are competent to take decisions and who are assisted by a neutral third

68
 Thus, the executives have an objective assessment of the dispute and, if possible, they can
party.
at an amícable settlement.
arrive
mutually

Arbitration
:Abinding procedure where the disputeis submitted for adjudication by an arbitral tribunal
nsisting of a sole or an odd number of arbitrators. which aives its decision ín the form of an award that
settles the dispute
and is binding on the
finally parties.

East-track Arbitration :A binding procedure where parties aaree to accelerated arbitral proceedings
resulting in rendering the arbitral award in a short time.