Q.1) Alternative dispute resolution (ADR), Meaning concept &need and development of ADR in India?

Ans: Alternative Dispute Resolution (ADR) is the procedure for settling disputes without litigation, such as arbitration, mediation,
or negotiation. ADR procedures are usually less costly and more expeditious. They are increasingly being utilized in disputes that
would otherwise result in litigation, including high-profile labour disputes, divorce actions, and personal injury claims.

One of the primary reasons parties may prefer ADR proceedings is that, unlike adversarial litigation, ADR procedures are often
collaborative and allow the parties to understand each other's positions. ADR also allows the parties to come up with more
creative solutions that a court may not be legally allowed to impose. Typically denotes a wide range of dispute resolution
processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation: a collective
term for the ways that parties can settle disputes, with the help of a third party. However, ADR is also increasingly being adopted
as a tool to help settle disputes alongside the court system itself.

Despite historic resistance to ADR by many popular parties and their advocates, 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 (indeed the European Mediation Directive
(2008)

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. Since the 1990s many American courts have also
increasingly advocated for the use of ADR to settle disputes. However, it is not clear as to whether litigants can properly identify
and then use the ADR programmes available to them, thereby potentially limiting their effectiveness.

Development of ADR in India

The concept of ADR is not new to India. The very ancient and significant dispute resolving forum is panchayat system more
precisely nyayapanchayat in villages. It consists of five elderly persons to whom the dispute is submitted. The direction of those
persons is binding on the parties who have to strictly adhere to it. However, the nyayapanchayats have become inactive now.
After the advent of the British, the modern arbitration law was introduced through the Bengal Regulation Act of 1772 and it was
introduced in Bombay and Madras presidencies through the Bombay Regulation Act 1799 and the Madras Regulation Act 1802
respectively.
In 1899, Arbitration act was enacted, which was in line with the provisions of British Arbitration Act, and was applicable only to
the presidency towns. Later on, provisions facilitating arbitration were incorporated in the Code of Civil Procedure, 1908,
thereby extending its force other parts of British India.
Until 1996, the law governing arbitration in India consisted mainly of three statutes
1. The 1937 Arbitration (Protocol and Convention) Act,
2. The 1940 Indian Arbitration Act, and
3. The 1961 Foreign Awards (Recognition and Enforcement) Act. The latter two acts were enacted to enforce foreign arbitral
awards.
After Independence, the need for legal aid without financial burdens was felt and hence, the Legal Services Authorities Act was
passed in 1987 under which LokAdalat was statutorily recognized. The act also mandated the establishment of authorities at
national, state and other levels to administer justice.
Subsequently, as the 1940 act was outdate, the Government of India enacted Arbitration and Conciliation Act in 1996, which
was in line with UNCITRAL (United Nations Commission on International Trade Law) Model Law, repealing the previous
enactments. With certain amendments, this enactment is still governing ADR system in India. Laws regarding ADR in India There
are two main enactments relating to ADR in India. They are Legal Services Authorities Act, 1987 and the Arbitration and
Conciliation Act, 1996. The 1987 act statutorily recognized LokAdalats for dispute resolution. It provided for establishing
authorities at national, state, district and taluk level for the purpose of providing legal aid to all sections of people. It also
mandates a separate fund at national, state and district level to facilitate the said objective.
The Arbitration and Conciliation act is the only live document dealing exclusively with ADR. This act repealed all the previous
acts. The act, unlike the previous one, incorporated principles of natural justice, fairness etc. it established ADR system as a
separate dispute resolving mechanism free from judicial intervention/control. The act does not only cover domestic arbitration
or conciliation but also extends to international arbitration and conciliation. The award granted in arbitration has the same
status as a civil court’s decree. The act also provides for enforcing the foreign arbitration awards. An amendment to the Act in
2015, which makes the arbitrator responsible for the delay, makes the dispute resolution process quick and impartial.
Apart from these two laws, the Code of Civil Procedure 1908 also contains provisions relating to ADR. Amendment Act of 1999
incorporated section 89 to the code which provides that a court can direct parties to a case to go for alternate dispute resolution
mechanism to reach a settlement rather than proceeding with it in the court.

Needs: Alternative dispute Resolution methods are being increasingly acknowledged in the field of law and commercial sectors
both at National - 18 - and International levels. Its diverse methods can help the parties to resolve their disputes at their own
terms cheaply and expeditiously. Alternative dispute Resolution techniques are in addition to the Courts in character. Alternative
dispute Resolution techniques can be used in almost all contentious matters, which are capable of being resolved,
under law, by agreement between the parties. Alternative dispute Resolution techniques can be employed in several categories
of disputes, especially civil, commercial, industrial and family disputes1 . From the study of the different alternative dispute
Resolution techniques in the proceeding chapters it is found that, alternative dispute Resolution methods offer the best solution
in respect of commercial disputes where the economic growth of the Country rests. Alternative Dispute Resolution originated in
the USA (United States of America) in a drive to find alternatives to the traditional legal system, felt to be adversarial, costly,
unpredictable, rigid, over professionalized, damaging to relationships, and limited to narrow rights based remedies as opposed
to creative problem solving. The American origins of the concept are not surprising, given certain features of litigation in that
system, such as: trials of civil actions by a jury, lawyers' contingency fees, lack of application in full of the rule "the loser pays the
costs".

Salient features:Alternative dispute resolution (ADR) is generally classified into at least four types: negotiation, mediation,
collaborative law, and arbitration. Sometimes, conciliation is included as a fifth category, but for simplicity may be regarded as a
form of mediation. ADR can be used alongside existing legal systems such as Sharia courts within common law jurisdictions, such
as the UK.

ADR is of two historic types. First, methods for resolving disputes outside of the official judicial mechanisms. Second, informal
methods attached to or pendant to official judicial mechanisms..

ADR includes informal tribunals, informal mediative processes, formal tribunals and formal mediative processes. The classic
formal tribunal forms of ADR are arbitration (both binding and advisory or non-binding) and private judges (either sitting alone,
on panels or over summary jury trials). The classic formal mediative process is referral for mediation before a court-appointed
mediator or mediation panel. The major differences between formal and informal processes are (a) pendency to a court
procedure and (b) the possession or lack of a formal structure for the application of the procedure.

For example, freeform negotiation is merely the use of the tools without any process. Negotiation within a labour arbitration
setting is the use of the tools within a highly formalized and controlled delivering respect, for example, affirming the feelings of a
visitor, while staying explicitly neutral on the facts of a case, active listening, serving as a sounding board, providing and
explaining information, one-on-one, for example, about policies and rules, and about the context of a concern, receiving vital
information, one-on-one, for example, from those reporting unacceptable or illegal behaviour, Reframing issues, Helping to
develop and evaluate new options for the issues at hand, Offering the option of referrals to other resources, to "key people" in
the relevant department, and to managers and compliance offices, helping people help themselves to use a direct approach, for
example, helping people collect and analyze their own information, helping people to draft a letter about their issues, coaching
and role-playing, Offering shuttle diplomacy, for example, helping employees and managers to think through proposals that may
resolve a dispute, facilitating discussions,

Offering mediation inside the organization, "Looking into" a problem informally, Facilitating a generic approach to an individual
problem, for example instigating or offering training on a given issue, finding ways to promulgate an existing policy, Identifying
and communicating throughout the organization about "new issues", Identifying and communicating about patterns of issues,
Working for systems change, for example, suggesting new policies, or procedures, Following up with a visitor, following up on a
system change recommendation.

Q. 2) Define different forms/methods of ADR.

Negotiation: Negotiation has been defined as any form of direct or indirect communication whereby parties who have opposing
interests discuss the form of any joint action which they might take to manage and ultimately resolve the dispute between
them. Negotiations may be used to resolve an already-existing problem or to lay the groundwork for a future relationship
between two or more parties.

Negotiation has also been characterized as the “preeminent mode of dispute resolution”, which is hardly surprising given its
presence in virtually all aspects of everyday life, whether at the individual, institutional, national or global levels. Each
negotiation is unique, differing from one another in terms of subject matter, the number of participants and the process used.

Given the presence of negotiation in daily life, it is not surprising to find that negotiation can also be applied within the context
of other dispute resolution processes, such as mediation and litigation settlement conferences.

Characteristics of a negotiation Negotiation is:

Voluntary: No party is forced to participate in a negotiation. The parties are free to accept or reject the outcome of negotiations
and can withdraw at any point during the process. Parties may participate directly in the negotiations or they may choose to be
represented by someone else, such as a family member, friend, a lawyer or other professional.

Bilateral/Multilateral: Negotiations can involve two, three or dozens of parties. They can range from two individuals seeking to
agree on the sale of a house to negotiations involving diplomats from dozens of States (e.g., World Trade Organization (WTO)).
Non-adjudicative: Negotiation involves only the parties. The outcome of a negotiation is reached by the parties together
without recourse to a third-party neutral.

Informal: There are no prescribed rules in negotiation. The parties are free to adopt whatever rules they choose, if any.
Generally they will agree on issues such as the subject matter, timing and location of negotiations. Further matters such as
confidentiality, the number of negotiating sessions the parties commits to, and which documents may be used, can also be
addressed.
Confidential: The parties have the option of negotiating publicly or privately. In the government context, negotiations would be
subject to the criteria governing disclosure as specified in the Access to Information Act and the Privacy Act . For general
information on the privileged nature of communications between solicitor and client during the course of negotiations, please
refer to the Department of Justice Civil Litigation Desk book.

Flexible: The scope of a negotiation depends on the choice of the parties. The parties can determine not only the topic or the
topics that will be the subject of the negotiations, but also whether they will adopt a positional-based bargaining approach or an
interest-based approach.

Arbitration: Arbitration is an ADR (alternative dispute resolution) method where the disputing parties involved presents their
disagreement to one arbitrator or a panel of private, independent and qualified third party “arbitrators.” The arbitrator(s)
determine the outcome of the case. While it may be less expensive and more accessible than trial, the arbitration process has
well-defined disadvantages. Some of disadvantages include the risk losing, formal or semi-formal rules of procedure and
evidence, as well as the potential loss of control over the decision after transfer by the parties of decision-making authority to
the arbitrator. By employing arbitration, the parties lose their ability to participate directly in the process. In addition, parties in
arbitration are confined by traditional legal remedies that do not encompass creative, innovative, or forward-looking solutions
to business disputes.

The processes of appeal also demonstrate the differences between binding and non-binding arbitration. An arbitration decision
generally has the force of law behind it, but does not set a legal precedent. A determination arrived at through binding
arbitration (arbitrator ritual) can be appealed only when a party wishes to seek revocation, and, when appropriate, can be done
by a third party objection in front of ordinary judge (I.C.P.C § 827 ). A third party objection is the usual procedure that extends
the length of the overall arbitration proceedings, essentially becoming a double procedure, private at the beginning and then in
the enforcement phase. When a determination is made through non-binding arbitration (arbitrator non-ritual), the decision can
be appealed only in exclusive and limited cases involving sentences that can be enforced by an equity judgment. The appeal
must be heard by new arbitrators, who must be chosen with an increasingly selective eye in regards to their experience and
competency- a process, of course, which involves more money and time.

Ultimately, the power of an arbitrator or panel of arbitrators is granted directly by the parties. By including contractual
arbitration clauses, parties are agreeing to the resolution of their disputes through a process that consists of very simple
proceedings, which are similar, but not equal to the traditional route of litigated settlements. The arbitral award that concludes
a dispute has the same value as an ordinary judicial judgment, on the condition that parties will proceed with the next formal
step of registering this private decision with the Italian Court of Appeal.

Mediation: Mediation is an ADR method where a neutral and impartial third party, the mediator, facilitates dialogue in a
structured multi-stage process to help parties reach a conclusive and mutually satisfactory agreement. A mediator assists the
parties in identifying and articulating their own interests, priorities, needs and wishes to each other. Mediation is a “peaceful”
dispute resolution tool that is complementary to the existing court system and the practice of arbitration.

Arbitration and mediation both promote the same ideals, such as access to justice, a prompt hearing, fair outcomes and reduced
congestion in the courts. Mediation, however, is a voluntary and non-binding process - it is a creative alternative to the court
system. Mediation often is successful because it offers parties the rare opportunity to directly express their own interests and
anxieties relevant to the dispute. In addition, mediation provides parties with the opportunity to develop a mutually satisfying
outcome by creating solutions that are uniquely tailored to meet the needs of the particular parties. A mediator is a neutral and
impartial person; mediators do not decide or judge, but instead becomes an active driver during the negotiation between the
parties. A mediator uses specialized communication techniques and negotiation techniques to assist the parties in reaching
optimal solutions.

Mediation is a structured process with a number of procedural stages in which the mediator assists the parties in resolving their
disputes. The mediator and the parties follow a specific set of protocols that require everyone involved to be working together.
This process permits the mediator and disputants to focus on the real problems and actual difficulties between the parties.
Moreover, the parties are free to express their own interests and needs through an open dialogue in a less adversarial setting
than a courtroom. The main aim of mediation is to assist people in dedicating more time and attention to the creation of a
voluntary, functional and durable agreement. The parties themselves posses the power to control the process- they reserve the
right to determine the parameters of the agreement. In mediation, the parties also reserve the right to stop anytime and refer a
dispute to the court system or perhaps arbitration.

In addition to economic and legal skills, mediators are professionals who possess specialized technical training in the resolution
of disputes. A mediator plays a dual role during the mediation process- as a facilitator of the parties’ positive relationship, and as
an evaluator adept at examining the different aspects of the dispute. After analyzing a dispute, a mediator can help parties to
articulate a final agreement and resolve their dispute. The agreement at the end of the mediation process is product of the
parties’ discussions and decisions. The aim of mediation is to find a mutually satisfactory agreement that all parties believe is
beneficial. Their agreement serves as a landmark and reminds parties of their historical, confrontational period, and ultimately
helps them anticipate the potential for future disputes.
There are some particular advantages that exist in choosing an alternative method of dispute resolution (ADR) such as mediation
or arbitration, as opposed to pursuing ordinary judicial proceedings. The first advantage concerns the all-important
consideration of economics and the daunting costs of resolving disputes; arbitration and mediation proceedings are by far
cheaper in monetary expense than ordinary judicial proceedings. Mediation fees vary in accordance with the hourly rate of the
mediator and the length of the mediation session, and are usually shared equally by the parties participating in the mediation.
Another important advantage of alternative dispute resolution proceedings is in the decreased time these proceedings
customarily take as opposed to the traditionally litigated dispute. Mediation is regarded to be more time-efficient than even
arbitration, since proceedings have the potential to come to a productive close in under 3 hours. Mediation is not as formal as
arbitration, and there are a variety of mediation techniques available and employed depending on the mediator’s personality,
the parties’ personalities, and the complexity of the dispute; mediation is an incredibly flexible yet functional process. What
substantially sets mediation apart from traditional judicial proceedings and even arbitration is that the parties strive personally
to find common ground, and they work to develop mutually agreeable solutions directly with each other and without any
exterior imposition of a decision by a judge or arbitrator. The efficiency of the mediation process is evident in that it aims to
avoid further complication of the dispute and animosity between the parties- a mediator actively uses specialized
communication and negotiation techniques to guide the parties to the realization of a mutually beneficial agreement. Another
advantage of mediation, specifically, is that is seeks to generate an agreement that is realistic, which takes into consideration the
financial condition of the parties as well as all other relevant circumstances and factors. Again, mediation is a voluntary process
and often it produces such desirable results because it permits parties to express their own interests and anxieties directly, while
helping them to create a suitable solution.

Another important difference between arbitration and mediation exists in regards to choosing the neutral party. In choosing an
arbitrator, the parties seek to select an individual that possesses particular legal skills, knowledge and competence. With the
exception of non-binding arbitration in Italy, the arbitrator determines that outcome of the dispute according to traditional legal
principles, so the arbitrator must be highly knowledgeable in the relevant area of law. In mediation, the selection of a mediator
can be made among individuals with a variety of degrees and particular experience or specialized training in the mediation of
disputes. Mediators are often described as experts in the process (of mediation), although it is generally helpful to designate a
mediator with some degree of subject matter knowledge as well. Ultimately, mediation is a collaborative effort by all involved,
and to arrive at a satisfactory outcome, it includes the willing cooperation and respect of all parties.

The mediation process is both informal and confidential. In contrast to arbitration and its relatively formal rules of evidence and
procedure, mediation is flexible in terms of evidence, procedure, and formality. Both procedures are confidential as the parties
allow a neutral third- party to discuss or decide the dispute without the exposing the parties’ dealings to public scrutiny or
judgment. Specifically, the statements of a party during mediation are confidential and may not disclose without written
consent. Generally, confidentiality in mediation also extends to documents specifically prepared for mediation, such an
mediation briefs. Confidentiality is paramount to the effectiveness of the mediation process--it creates an atmosphere where all
parties are increasingly comfortable to discuss their dispute without fear that their words will be used against them at a later
date. Confidentiality promotes open communication about the issues involved between the parties.

One unique feature of mediation is that any party, unilaterally, can decide to stop the mediation at anytime if they believe the
process is not productive, as opposed to an arbitration proceeding, which needs a common approval to discontinue. To be
effective, mediation must be considered by the parties as a tool or instrument that the parties can use to manage directly the
resolution of their disputes between one another. The focus is their direct, active participation as opposed to the increasingly
detached role the parties play in an arbitration proceeding “run” by an arbitrator. In Italy, because mediation is new and
generally unregulated by legislators, the parties will sign a confidentiality agreement prior to the commencement of a mediation
session. The pre-mediation confidentiality agreement will have the force and effect of a contract acknowledging confidentiality
as an integral element of the mediation process.

Conciliation: Conciliation is another dispute resolution process that involves building a positive relationship between the parties
of dispute; however, it is fundamentally different than mediation and arbitration in several respects. Conciliation is a method
employed in civil law countries, like Italy, and is a more common concept there than is mediation. While conciliation is typically
employed in labour and consumer disputes, Italian judges encourage conciliation in every type of dispute . The “conciliator” is an
impartial person that assists the parties by driving their negotiations and directing them towards a satisfactory agreement. It is
unlike arbitration in that conciliation is a much less adversarial proceeding; it seeks to identify a right that has been violated and
searches to find the optimal solution.

Conciliation tries to individualize the optimal solution and direct parties towards a satisfactory common agreement. Although
this sounds strikingly similar to mediation, there are important differences between the two methods of dispute resolution. In
conciliation, the conciliator plays a relatively direct role in the actual resolution of a dispute and even advises the parties on
certain solutions by making proposals for settlement. In conciliation, the neutral is usually seen as an authority figure that is
responsible for the figuring out the best solution for the parties. The conciliator, not the parties, often develops and proposes
the terms of settlement. The parties come to the conciliator seeking guidance and the parties make decisions about proposals
made by conciliators. In this regard, the role of a conciliator is distinct from the role of a mediator. The mediator at all times
maintains his or her neutrality and impartiality. A mediator does not focus only on traditional notions of fault and a mediator
does not assume sole responsibility for generating solutions. Instead, a mediator works together with the parties as a partner to
assist them in finding the best solution to further their interests. A mediator’s priority is to facilitate the parties’ own discussion
and representation of their own interests, and guide them to their own suitable solution- a good common solution that is fair,
durable, and workable. The parties play an active role in mediation, identifying interests, suggesting possible solutions, and
making decisions concerning proposals made by other parties. The parties come to mediator seeking help in finding their own
best solution.

Also the role of the attorneys is different in mediation. Attorneys are more active in mediation in generating and developing
innovative solutions for settlement. In conciliation, they generally offer advice and guidance to clients about proposals made by
conciliators.

Conciliation and mediation both look to maintain an existing business relationship and to rekindle a lost balance of power
between two parties. These concepts are sometimes used as synonyms, but they do indeed vary substantially in their
procedures. In mediation, the mediator controls the process through different and specific stages: introduction, joint session,
caucus, and agreement, while the parties control the outcome. By contrast, in conciliation the conciliator may not follow a
structured process, instead administering the conciliation process as a traditional negotiation, which may take different forms
depending on the case.

Conciliation is used almost preventively, as soon as a dispute or misunderstanding surfaces: a conciliator pushes to stop a
substantial conflict from developing. Mediation is closer to arbitration in the respect that it”intervenes” in a substantial dispute
that has already surfaced that is very difficult to resolve without "professional" assistance. The parties approach mediation as an
alternative method to resolve their dispute, due to the fact that they both recognize that the conflict has grown potentially
serious enough for litigation. Mediation may be used, however, any time after the emergence of a dispute, including the early
stages.

No 3.Difference between Arbitration, Conciliation and Negotiation.

Ans: Alternative dispute resolution is a settlement of dispute between the parties; it provides a confidential and alternative
method of tackling the problems which avoids going to courts. There are various methods of alternative dispute resolution like:
Arbitration, Conciliation, Mediation, and Negotiation.
Arbitration: It is a process in which disputes resolve between the parties by appointing a independent third party who is
impartial and neutral person called arbitrator. Arbitrator hears both the parties before arriving at a solution to their dispute.
Conciliation: It is a process in which disputes resolve between the parties by appointing a conciliator who help (amicable) the
disputed parties to arrive at a negotiated settlement. Settling the dispute without litigation, it is informal process. He does by
lowering tensions, improve communication, interpreting issues, providing technical help.
Negotiation is a process where two parties in a conflict or dispute (fight) reach a settlement between themselves that they can
both agree on. Negotiations are reached through discussions made between the parties or their representatives without an
involvement of the third party. Each party should consult or see a lawyer before settling down the matter, so that they are well
aware of their rights and duties in respect to the matter or dispute they are willing to solve:
1. The person appointed for the process of arbitration is called arbitrator. Appointment of Arbitrator is done under provision of
section 11 of Arbitration and Conciliation act 1996. While, the person appointed for the process of Conciliation is called
conciliator. Appointment of conciliator is done under the provisions of section 64 of Arbitration and Conciliation act 1996.
2. An arbitrator has the power to enforce his decision. While, the person appointed to settle the dispute don't have power to
enforce the decision taken by him.
3. To settle the dispute through the process of arbitration, prior agreement is required. While, to settle the dispute through the
process of Conciliation no prior agreement is required.
4. Arbitration is available for existing and future dispute as well but conciliation is available for existing disputes only, it don't
focus on the future dispute.
5. Arbitration is a legal proceeding while conciliation is not a legal proceeding.
Both arbitrator and conciliator guiding by the principle of objectivity, fairness, and justice. They conduct the proceedings in such
a manner which consider appropriate. They help to settle the dispute between the parties.
Mediation means the process in which a neutral (means not supporting any one side) third party assists the parties in conflict to
reach a solution. The third party is called the mediator and the mediator facilitates communication between the parties. The
mediator manages communication process between the parties fairly, honestly and impartially. The mediators do not take sides,
give legal advice or provide counselling. They do not act as Judge or arbitrator. They assist by clarifying the issues in dispute and
identifying the underlying concerns. They assist in each party to understand the other party’s interests. Mediators sometimes
have the parties meet face to face. Other times, a mediator may shuttle back and forth between parties in separate locations.
They also assist in the searching of a resolution (a formal expression of opinion or intention made) to the problem but will not
impose a solution.
Mediation takes place in private and the decisions reached are private. A Memorandum of Agreement MOA is a cooperative
agreement or a document written between the parties to cooperate on the agreed terms and conditions. The basic purpose of
MOA is to have a written understanding of the agreement between the parties. is written up by the Mediator outlining the
details of the solutions reached by the parties. The parties should have their respective legal counsel (legal counsel is the person
representing the party to the dispute) review the Memorandum of Agreement. Each party is encouraged to consult with their
lawyers before mediation so that they know their legal rights.
Negotiation and Mediation is less expensive and less time consuming than the Court action. An agreement is encouraged but the
parties are free to pursue other processes if they cannot reach an agreement.

Q. Advantages and dis advantages of ADR

Advantages of ADR
 Reduced time in dispute- It takes less time to reach a final decision.
 Reduced costs in relating to the dispute resolution- It requires less money i. it is cheap.
 Flexibility-Parties have more flexibility in choosing what rules will be applied to the dispute. They have the freedom to do so.
 Produce good results- settlement rates of up to 85 percent.
 Improved satisfaction with the outcome or manner in which the dispute is resolved among
disputants. Increased compliance with agreed solutions.
 A single procedure – Parties can agree to resolve in a single procedure a dispute involving intellectual property.  Party
autonomy- Because of its private nature, ADR affords parties the opportunity to exercise greater control over the way their
dispute is resolved than would be the case in court litigation. In contrast to court litigation, the parties themselves may select
the most appropriate decision-makers for their dispute. In addition, they may choose the applicable law, place and language of
the proceedings. Increased party autonomy can also result in a faster process, as parties are free to devise the most efficient
procedures for their dispute. This can result in material cost savings.  Neutrality – ADR is neutral to the law, language and
institutional culture of the parties, thereby avoiding any home court advantage that one of the parties may enjoy in court based
litigation.  Confidentiality- ADR proceedings are private. Thereby, the parties can agree to keep the actions confidential. This
allows them to focus on the merits of the dispute without concern about its public impact.
 Finality of Awards- Unlike court decisions, which can generally be contested through one or more rounds of litigation, arbitral
awards are not normally subject to appeal.
 Enforceability of Awards- The United Nations Convention for the Recognition and Enforcement of Foreign Arbitral Awards of
1958, known as the New York Convention, generally provides for the recognition of arbitral awards on par with domestic court
judgments without review on the merits. This greatly facilitates the enforcement of awards across borders.  Preserves
relationship- Helps people cooperate instead of creating one winner or one loser.
Disadvantages of Alternative Dispute Resolution
It can be used as a stalling tactic.
Parties are not compelled to continue negotiations or mediation.
Does not produce legal precedents.
Exclusion of pertinent parties weakens final agreement.
Parties may have limited bargaining power. Parties do not have much of a say.
Little or no check on power imbalances between parties.
May not protect parties’ legal rights. The rights of the parties may not be protected by
alternative dispute resolution.
Your case might not be a good fit– Alternative dispute resolutions resolve only
issues of money or civil disputes. Alternative dispute resolution proceedings will not
result in injunctive orders. They cannot result in an order requiring one of the parties
to do or cease doing a particular affirmative act.
There are limits to the discovery process– You should also be aware that you are
generally preceding without the protections offered parties in litigation, such as those
rules governing discovery. Courts generally allow a great deal of latitude in the
discovery process, which you will not have in an alternative dispute resolution.
There is no guaranteed resolution. With the exception of arbitration, alternative
dispute resolution processes do not always lead to a resolution.
Arbitration decisions are final. With few exceptions, the decision of a neutral
arbitrator cannot be appealed. Decisions of a court, on the other hand, usually can be
appealed to a higher court.
Participation could be perceived as weakness. While the option of making the
proceeding confidential addresses some of this concern, some parties still want to go
to court “just on principle.”
Q. NEGOTIATION
Consiliaomniaverbispriusexperiri, quam armissapientemdecet -An intelligent man would prefer negotiation before using arms.

What Is Negotiation?
Negotiation is the process which helps people settle their differences and disputes. It is the method by which amicable
agreement is reached avoiding arguments.
The term 'Negotiation' can be defined as a direct or indirect form of communication through which the parties with conflicting
interest deliberate a form of Joint Action aiming to resolve the dispute between them. Negotiation can be used either to resolve
any existing problem or for a future relationship between two or more parties by setting a ground work.

The presence of negotiation can be found at all aspects of everyday life whether at individual level, Institutional level, National
level or global level. Negotiation therefore has been characterized as the preeminent mode of dispute resolution. In compliance
to the presence of negotiation in daily life it is not astounding to find that negotiation can be applied to other dispute resolution
processes for example mediation and litigation settlement conferences.

Scope Of Negotiation:
The history of negotiation can be traced back to the times of Monarch era where Kings used to negotiate at the time of ongoing
Wars in order to prevent the bloodshed in war. After the two great World Wars in the 20th century the negotiation rounds
resulted into the creation of League of Nations followed by United Nations.

The scope of negotiation has increased over the time. The major objective behind negotiation is that the parties involved wishes
to settle the dispute outside the court. The litigation process has its own disadvantages such as: bulky paperwork, excessive
time, delays in process, costly- expensive and unfavorable decision.

Because of such reasons alternative dispute resolution gained fame and with increase in fame of negotiation the demand for
experienced negotiators also increased. Negotiation is considered to be alternative dispute resolution as an informal process
which helps the parties to resolve that differences through mutual understanding and agreement.

Characteristics of Negotiation Process:

1. Voluntary:
Process of negotiation is conducted through free consent of parties. No party is forced to participate in the process. The
outcome of negotiation can be freely accepted or rejected at the will of parties. Also, at any point of process it can be
withdrawn. The parties can directly negotiate or they may choose anyone to be represented.

2. Bilateral/ Multilateral:
The process of negotiation can involve two or more parties. The parties can range from two individuals seeking to agree on sale
of house to negotiation involving diplomate from dozens of States.

3. Non-Adjudicative:
Negotiation is an informal process which only involve the parties. The outcome is amicable reached by the parties together
without any records to a third party through mutual understanding.

4. Informal:
Unlike arbitration negotiation is an informal process which has no prescribed rules and regulations. The parties get a free will to
adopt whatever rules they choose if any. Generally, the parties agree on the issues such as the subject matter timing and
location for the process. Other rules may include metals such as confidentiality number of negotiating sessions and which
documents may be used can be addressed.

5. Flexible:
The scope of negotiation is dependent upon the choice of parties where determine not only the topic which will be the subject
matter of negotiation but also if they will adopt a positional based bargaining approach or interest-based approach.

Stages of Negotiation (Process)

Each negotiation has its own unique characteristics. Therefore, there is no such uniform and exclusive method of negotiation
and bargaining session. A structured approach has to be followed in order to come at a desired outcome. Therefore, various
steps have to be followed in the negotiation process so that the parties with conflicting ideas and differences reach to an
amicable solution.

The process includes following stages:

1. Preparation
2. Discussion
3. Clarification of goals
4. Negotiate towards a Win-Win outcome
5. Agreement
6. Implementation of course of action
Preparation/ Initial Assessment
The process of negotiation begins with the signal of communication from one party to the other showing a willingness to
bargain. As negotiation is a voluntary process it is of primary importance to know that whether the other party is interested in
negotiation or not.

Some of the important factors should be ensured before moving on. They are:
 if there is desire to resolve the dispute
 the credibility of other parties
 the willingness of parties to preserve or establish the relationship
 whether there is disparity between the parties that it would be impossible to bargain equal or not
 desirability of using any other form of dispute resolution system.
This stage involves ensuring the important facts of the dispute and its situation in order to clarify the position of both the
parties. Before any negotiation takes place, a decision shall be taken as to when and where the meeting for negotiation shall
happen and as to who will attend the discussion and negotiation sessions. During this time setting of a limited timescale can help
prevent this agreement continuing.

Discussions
Once it has been established that negotiation is the appropriate course of action the further arrangement shall be made in that
course with the other party included. The arrangement must include:
 outlining the scope of negotiation
 forming a time table as to whether or not that will be a fixed duration of negotiation
 ensuring that all the interested parties are identified and have been consulted
 choosing a location Which is feasible to both the parties.
During this stage the parties of other side put forth their case as they see it and try to understand the vice-versa situation.
Clarification as to misunderstandings and disagreements shall be spoken and heard. An equal opportunity shall be granted to
both the side.

Clarification Of Goals
From the second stage of discussion whatever goes interest and viewpoints of the parties of this agreement needs to be
clarified. To clarification it becomes easy and possible to identify and establish a common ground post settlement. Clarification is
one of the crucial parts of negotiation process is without a doubt the misunderstanding and disagreements are likely to continue
which main result to cause problems and barrier in reaching a beneficial outcome.

This can lead to harmonizing and Reconcile the bearing and competing interest of the parties.

Negotiating Towards A Win-Win Situation

It is not always possible to reach to a Win-Win situation but it shall be the ultimate goal. this stage focuses on which can be
termed as Win-Win outcome wherein both the parties may have the satisfaction that they have gained something positive
through the process and both the parties may feel that their point has been considered.

Agreement
A proper agreement can be achieved only when both the parties understand each other�s point of view and interest are
considered simultaneously. Every member involved in the negotiation process it is essential to keep an open mind so that an
acceptable solution can be reached full stop such agreement needs to be clearly communicated so that no for the dispute can
occur.

Implementation Of Action: Once agreement is reached a proper course of action has to be implemented so that the decision
can be carried out.

Advantages of Negotiation
1. Party-based Dispute Resolution:
One of the primary reasons for success of negotiation is that it only involves the stakeholders and does not involve any other
party as a result of which the process remains a private affair and confidential. The parties decide the subject matter duration of
process locations papers to be referred etc.
2. Freedom of Parties:
The parties are at freedom to choose agendas of the choice in addition to ensure your objective that negotiation is achieved.
3. Consent of Parties:
The negotiation process ensures that both the parties involved in negotiation have free will in participating and that no one is
forced to engage in the process. this freedom also ensure that all the parties are at equal footing and there is no play of powers.
4. No Third-Party Intervention:
Unlike most of the radius system which requires a neutral third party for dispute resolution such is not the case with
negotiation.

5. Comfortable Process:
Negotiation is an informal process. It is normally a speedy process whose decisions are not binding upon the parties. Latest a
completely self-build process wherein the decision can either be accepted or rejected by the parties at their own win all the
process can be withdrawn at any point of time.
6. Improvement in Relations:
Once the negotiation process is successfully completed that is a scope of improvement in the relation between the parties. And
it also facilitates the process of negotiation for any further education.
Disadvantages Of Negotiation
1. Power Tactic:
It is not always necessary that the parties to negotiations are of equal stature and power. Therefore, in the absence of a neutral
third party the party whichever is in the position to dominate the other uses the dominance over the consent of other party and
come at an agreement. This leads to an unfair agreement which is ultimately useless.
2. Impasse:
Sometimes the difference is and disagreement between the parties may lead to a deadlock situation. And Impasse situation
occurs during the negotiation process where at any discussion the parties are stand still and cannot have any for the discussion.
This stage is very frustrating when no possible successful outcomes can happen. This generally happens when any one party is so
rigid over its goal that no middle ground can be achieved. This ultimately results into a walkout situation.

Backing Off:
The unsuccessful negotiation leads to creation of bad relations between the parties along with termination of any business are
contractual relations afterwards. It also happens that sometimes the parties lose confidence in the process of negotiation as a
dispute resolution and consider the other options. Not all issues are Negotiable:
There are various cases which involve multiple stakeholders for home negotiation process cannot be made applicable and such
cases can directly go to the court for the decisions.

Q. MEDIATION

Mediation is a voluntary, party-centered and structured negotiation process where a neutral third party assists the parties in
amicably resolving their dispute by using specialized communication and negotiation techniques. In mediation, the parties retain
the right to decide for themselves whether to settle a dispute and the terms of any settlement. Even though the mediator
facilitates their communications and negotiations, the parties always retain control over the outcome of the dispute. Mediation
is also voluntary. The parties retain the right to decide for themselves whether to settle a dispute and the terms of settlement of
the dispute. Even if the court has referred the case for the mediation or if mediation is required under a contract or a statute,
the decision to settle and the terms of settlement always rest with the parties. This right of self-determination is an essential
element of the mediation process. It results in a settlement created by the parties themselves and is, therefore, acceptable to
them. The parties have ultimate control over the outcome of mediation. Any party may withdraw from the mediation
proceedings at any stage before its termination and without assigning any reason.
ELEMENTS OF MEDIATION
1. Mediation is voluntary. The parties retain the right to decide whether to settle a dispute and the terms of settlement of the
conflict. Even if the court has referred the case for the mediation or if mediation is required under a contract or a statute, the
decision to settle and the terms of settlement always rest with the parties. The parties have ultimate control over the outcome
of mediation. Any party may withdraw from the mediation proceedings at any stage before its termination and without
assigning any reason.
2. Mediation is a party-centred negotiation process. The parties and not the neutral mediator are the focal point of the
mediation process. Mediation encourages the active and direct participation of the parties in the resolution of their
dispute. Though the mediator, advocates, and other participants also have active roles in mediation, the parties play a
crucial role in the mediation process. They are actively encouraged to explain the factual background of the dispute,
identify issues and underlying interests, generate options for agreement and make a final decision regarding a
settlement.
3. Though the mediation process is informal, it is not governed by the rules of evidence and formal rules of procedure. It is
not a spontaneous or casual process. The mediation process itself is structured and formalised, with clearly identifiable
stages. However, there is a degree of flexibility in following these stages.
4. Mediation, in essence, is an assisted negotiation process. Mediation addresses both the factual legal issues and the
underlying causes of a dispute. Thus, mediation is broadly focused on the parties' facts, law, and underlying interests,
such as personal, business/commercial, family, social and community Mediation Training Manual for Refresher Course
interests. The goal of mediation is to find a mutually acceptable solution that adequately and legitimately satisfies the
parties' needs, desires, and interests.
5. Mediation provides an efficient, effective, speedy, convenient and less expensive process to resolve disputes with dignity,
mutual respect and civility.
6. Mediation is conducted by a neutral third party- the mediator. The mediator remains impartial, independent, detached
and objective throughout the mediation process. In mediation, the mediator assists the parties in resolving their
dispute.
 7. In Mediation, the mediator works together with parties to facilitate the dispute resolution process and does not
adjudicate a dispute by imposing a decision upon the parties. A mediator's role is both facilitative and evaluative. A
mediator facilitates when he manages the interaction between the parties, encourages and promotes communication
between them, manages interruptions and outbursts, and motivates them to arrive at an amicable settlement.
8. The mediator employs specific specialised communication skills and negotiation techniques to facilitate productive
interaction between the parties to overcome negotiation impasses and find mutually acceptable solutions. 9. Mediation is a
private process, which is not open to the public. Mediation is also confidential, which means that statements made during
mediation cannot be disclosed in civil proceedings or elsewhere without the written consent of all parties. Any statement
made or information furnished by either of the parties and any document produced or prepared for/during mediation is
inadmissible and non-discoverable in any proceeding. Further, any information given by a party to the mediator during the
mediation process is not disclosed to the other party unless expressly permitted by the first party.
10. Any settlement reached in a case referred for mediation during litigation is required to be reduced to writing, signed by
the concerned parties and filed in Court to pass an appropriate order. A settlement reached a pre-litigation stage is a
contract, which is binding and enforceable between the parties.
11. In the event of failure to settle the dispute, the mediator's report does not mention the reason for the loss. The
information will only say "not settled".
12. The mediator cannot be called upon to testify in any proceeding or to disclose to the court what transpired during the
mediation process.
13. Mediation in a particular case need not be confined to the dispute referred but can go beyond and proceed to resolve
all other connected or related arguments.

Stages of mediation
1. Introduction: - Mediator introduces himself to the parties, explains the mediation process and establishes his neutrality. He
explains the ground, rules and initiates the confidential process of dispute resolution.
2. Joint Session: - Mediator gathers information about the factual background and interests of the parties establishes interaction
between them and creates a suitable environment for an amicable settlement.
3. Individual (Separate) Sessions: - When it becomes necessary, a mediator allows the disputing parties to further explain their
grievances, continues to gather information, persuades individual parties to share confidential information and helps them to
create options for an amicable settlement.
4. Agreement:- Mediator confirms and clarifies the terms of settlement and reduces the settlement into a clear, complete,
concise and binding agreement

Q 4. Give a brief account of object and Salient features of Arbitration and Conciliation Act, 1996.

Ans: The Arbitration and Conciliation Act, 1996 improves upon the previous laws regarding arbitration in India namely the
Arbitration Act, 1940, the Arbitration (Protocol and Convention) Act, 1937 and the Foreign Awards (Recognition and
Enforcement) Act, 1961.Further, the new statute also covers conciliation which had not been provided for earlier. The Act also
derives authority from the UNCITRAL Model law on International Commercial Arbitration and the UNCITRAL rules on
conciliation. The Model law on International Commercial Arbitration was framed after taking into consideration provisions
regarding arbitration under various legal systems. Thus, it is possible to incorporate the model law into the legal system of
practically every nation. The Act of 1996 aims at consolidating the law relating to domestic arbitration, international commercial
arbitration, enforcement of foreign arbitral awards and rules regarding conciliation.

The main objectives of the Act are as follows:

To ensure that rules are laid down for international as well as domestic arbitration and conciliation.

To ensure that arbitration proceedings are just, fair and effective.

To ensure that the arbitral tribunal gives reasons for its award given.

To ensure that the arbitral tribunal acts within its jurisdiction.

To permit the arbitral tribunal to use methods such as mediation and conciliation during the procedure of arbitration.

To minimise the supervisory role of courts.

To ensure that an arbitral award is enforceable as a decree of the court.

To ensure that the result of conciliation proceedings may be treated as arbitral awards on agreed terms.

To treat awards given in a foreign country to which any one of the two international conventions apply as followed by India as
being a foreign arbitral award.

Salient Features of the Arbitration and Conciliation Act, 1996

 1. In addition to arbitration, conciliation has also been recognised as a means of settling commercial disputes. 2. The
arbitration award and the settlement arrived at during conciliating proceedings have been treated at par with the decree of
the court.
3. Powers of the court have been considerably curtailed.
4. The act contains salutary provisions making it mandatory for the arbitrator to give reasons for the award. 5. The act no
longer requires the parties to make an application to the court to make the award and this provision helps in saving
considerable time to the litigants in execution of arbitral award.
6. The act contains the provision relating to the interim measures which empower the arbitrator or arbitral tribunal to pass
interim orders in respect of the subject matter of the dispute at the request of the party.
7. The act is more exhaustive and it deals with arbitration, conciliation, enforcement of foreign arbitral awards basing on the
model Law of arbitration and rules of conciliation of the Uncitral and deals with both Geneva Convention ours and New
York convention awards.
8. The act specifically defines the term international commercial arbitration as an arbitration relating to disputes arising out
of legal relationship whether contractual or not, considered as commercial under the law enforce in India and where at
least one of the parties weather an individual, or a body corporate.
9. The act has abolished the Umpire system.
10. The ACT insists on the qualification of the arbitrators who are really competent and well versed in such matters.
11. The act is a comprehensive legislation on domestic as well as international or inter-state arbitration. 12. The act
provides detailed procedure for conduct of arbitrations and awards
13. The rule of institutions in promoting and organizing arbitration has been recognized.
14. The time limit for making awards has been deleted. The act after amendment provides fast track arbitration for quick
disposal of disputes.
15. There is a standard arbitration clause in the act which is more useful for the parties entering in to international
commercial transactions.

No 5. Composition of the arbitral tribunal

Under Section 10 of the act the parties are free to determine the number of arbitrators. Failing such determination, the number
of arbitrators shall be three.The arbitrators shall be impartial and independent of the parties and shall be qualified for the office.
The parties shall if possible appoint the arbitrators jointly.

If the arbitral tribunal is to comprise three arbitrators and the parties fail to agree on its composition, each party shall
appoint one arbitrator. The time-limit for making the appointment shall be one month after the party received the request to
appoint an arbitrator. The two arbitrators thus appointed shall within one month jointly appoint the third arbitrator who shall
act as chairman of the arbitral tribunal. If the arbitral tribunal cannot be established pursuant to the agreement or subsections 2
or 3, each of the parties may ask the court to appoint the remaining arbitrator or arbitrators. Such appointment shall not be
subject to any appeal.

Section 12 of the act deals with grounds for challenge of arbitrators

When a person is approached in connection with his possible appointment as an arbitrator, he shall of his own accord
disclose any circumstances likely to give rise to justifiable doubts about his impartiality or independence. From the time of his
appointment and throughout the arbitral proceedings, an arbitrator shall immediately disclose any new such circumstances to
the parties.

An arbitrator may only be challenged if there are circumstances that give rise to justifiable doubts about his impartiality or
independence or if he does not possess the qualifications agreed on by the parties. A party may challenge an arbitrator in whose
appointment he has participated only for reasons of which he became aware after the appointment was made.

Challenge procedure sec (section 13)

Unless the parties have agreed to a different procedure, a challenge of an arbitrator shall state the reasons for the
challenge and shall be submitted in writing to the arbitral tribunal within fifteen days after the party became aware of the
appointment of the arbitrator and the circumstances on which the challenge is based. Unless the challenged arbitrator
withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.

If a challenge is unsuccessful and the parties have not agreed to a different procedure, the challenging party may bring the
issue before the courts within one month after he received notice of the decision rejecting the challenge. The court shall
determine the issue by way of interlocutory order. The interlocutory order shall not be subject to appeal. The challenge may not
subsequently be invoked as grounds for invalidity or an objection to recognition and enforcement of the award. While such issue
is pending before the courts, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and
make an award.

Failure by an arbitrator to perform his functions (Section 14)

If an arbitrator becomes de jure or de facto unable to perform his functions or if an arbitrator for other reasons fails to act
without undue delay, his mandate shall terminate if he withdraws from his office or if the parties agree on the termination.
Otherwise, any party may ask the courts to decide by way of interlocutory order whether the mandate shall terminate for one of
the said reasons. The interlocutory order shall not be subject to appeal. The withdrawal by an arbitrator from his office or an
agreement between the parties to terminate the mandate pursuant to subsection 1 or section 15 subsection 1 shall not imply
acceptance of the validity of any challenge pursuant to subsection 1 or section 14 subsection 2.

Appointment of substitute arbitrator

Where the mandate of an arbitrator terminates pursuant to sections 15 or 16 or because of his withdrawal from office for
any other reason or because of the revocation of his mandate by agreement of the parties or in any other case of termination of
his mandate, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the
arbitrator to be replaced. If a substitute arbitrator is appointed, all previous arbitral proceedings that form part of the basis for
the ruling in the case shall be repeated.

POWERS OF AN ARBITRATOR

1. The arbitrator has a power to administer an oath to the parties. It is necessary for him to act as a quasi-judicial authority. He
also could issue interrogatories to the parties if he thought it necessary to do so

2.Power to take interim measures According to Section 17 of this Act, when any party during the arbitration proceeding or at
any time after making of the arbitral award, may seek the interim measure before the arbitration tribunal. The arbitration
tribunal has the power to take an interim measure relating to:

 Appointment of guardian for minor or person of unsound mind;

 For the protection of:-

1. Interim custody and sale of goods which are subjected to the arbitration agreement;
2. Securing amount which is disputed in the arbitration;
3. Detention, prevention or inspection of any property or thing which is subjected to arbitration;
4. Appointment of receiver;
5. Such other interim measure is necessary for the eyes of the Court.

3. According to section 25, an arbitrator has a power to proceed to ex-parte: The arbitrator has the power to proceed to ex parte
i.e. in the favour of one party if another party contravenes any provision of this Act. According to Section 25, there are three
conditions under which the court may pass an ex- parte award:

1. When the claimant fails to communicate his statement of claim in accordance with Section 23(1) of the Act. 2. When
the respondent fails to communicate his statement of claim in accordance with Section 23(1) of the Act. 3. When any
party fails to appear at an oral hearing or to produce the document or to produce documentary evidence.

The court, however, doesn’t precede ex-parte against any party without giving him the notice regarding the court’s intention to
proceed ex parte on a specific date, time and place.

4. Power to appoint an expert: According to Section 26 of the Act, the arbitrator has the power to appoint one or more experts
to report to him on a specific issue, if he finds it necessary in any case. The arbitrator also has the power to give the expert any
relevant information or documents or property for the purpose of his inspection. If necessary the arbitrator also has the power
to appoint the expert as a participant in a hearing but in order to appoint an expert, the expert must have to show the parties
that he has expertise in matters related to this case.

5. Power to make awards the rules applicable in arbitration proceeding is:

 In matters related to international commercial arbitration, the arbitral dispute shall be decided according to the rules
of proceeding which is decided by the parties but if they fail to decide it, then the arbitrator himself decides the
rules which are applicable.
 In other matters, the arbitral tribunal shall have to decide the rule which is in accordance with the substantive law.

However, with such aforesaid power, at the time of making such an award, the arbitrator also has the duty to consider the
following necessary aspects:

 The party who is entitled to costs;

  The party who pays the cost;
 The amount and method of determining those costs;
 The manner in which the costs shall be payable;
 The cost of the arbitration proceeding or any other expenses fixed by the arbitration tribunal

If the number of arbitrators is more than one, then the decision must be signed either by all the arbitrators or by the majority of
them.

Duties and responsibilities of an arbitrator in an arbitration

1. Duties to be independent and impartial

Section 12 and Section 18 of The Arbitration and Conciliation Act, 1996 imposed an important duty on the arbitrator that in any
arbitration preceding that he must have to be independent and impartial. By being independent it means that there is no such
personal or professional relationship between the arbitrator or parties which may affect the final judgment, however, by
impartial, it means that the arbitrator should neither favour nor oppose any party and should give equal treatment to both
parties.
2.Duty to determine time and place of arbitration

According to Section 20 of this Act, it is the duty of the arbitrator to appoint the time and place of arbitration if the parties have
failed to decide it amongst themselves. But at the time of determination, the arbitrator must keep in mind the circumstances
including the convenience of the parties. The arbitrator unless otherwise agreed by the parties, also has the power to decide
other places to hear the witness or expert or to an inspection of documents, goods, and other property.

3.Duty to disclosure

According to Section 12 of this Act, there is an obligation on an arbitrator to disclose all the relevant facts which are required to
be known by both parties at the time of his first encounter with them.

In the case of Steel Authority of India v. British Marine 2016, the Court said that the arbitrator must have to disclose all such
facts which are likely to affect impartiality or which might create an appearance of partiality or bias.

4.Duty to effectively resolve the dispute

The arbitrator should have to make effective decisions without doing any misconduct. However, there is no guideline of
misconduct that is given under the Act, its scope is to develop by case to case. The acts which are generally considered as
misconduct on the parts of the arbitrator are:

 Fails to comply with terms, that is expressly or impliedly given;

 Making awards that oppose public policy;
 To be bribed or corrupted;
 Breach the rule of natural justice.

5.Duty to determine the rule of procedure

According to Section 19, the arbitration procedure is not bound by any code of procedure. Earlier parties are free to agree on
the procedure that may be followed by the arbitration tribunal, It always depends upon the will of the parties but if they do not
have any prior agreement on this, then the arbitrator has all the power to decide the procedure for such a case. This power
includes the power to determine the admissibility, relevance, materiality or weight of any evidence.

6.Duty to interpret or correct the award

According to Section 33 of this Act, it is a duty of the arbitrator to correct or interpret the award passed by himself within 30
days from the date of receipt:
  A party with notice to another party may request arbitration tribunal to correct any error like any typographical,
computation, clerical, or any other error of similar nature;

A party with a notice to another party may request to interpret any specific part or parts of the award.

Qn 6 what are the Essential elements of an Arbitral award and termination of proceedings?

Ans. According to the Arbitration and Conciliation Act, 1996 an Arbitral Award:

Shall be in writing;

Shall be signed by members of Arbitral Tribunal;

Shall state the reasons on which the Award is based;

Date and place of arbitration;

The Act provides that after passing the Award, a signed copy of the Award shall be delivered to each party. The Tribunal if
required can also pass an interim arbitral award.
Correction and Interpretation of Arbitral Award- Section 33 of the Act deals with the correction and interpretation of Arbitral
award. It provides that the Tribunal may correct the award within 30 days from the receipt of award. If the Tribunal finds the
request for correction to be reasonable, then it shall make a correction or interpretation of a specific point or part of the award
within 30 days of the receipt of request. However, if the Tribunal deems it necessary it can also extend the period of time within
which it will make correction in the Award or interpretation of the Award.

The Act also makes provision for Additional Award– It states that unless otherwise agreed by the Parties, a party with notice to
the other party may request the Tribunal for passing an Additional Award as to the claims presented in the Arbitral proceedings
but erroneously omitted from the Arbitral Award.

Enforcement of Arbitral Award– Section 36 of the Act provides that if the time for making application to set aside an award
under Section 34 has expired or the application has been refused then the Award shall be enforced under the Code of Civil
Procedure in the same manner as a decree of a Court.

SETTING ASIDE OF ARBITRAL AWARD

Recourse to a court against an arbitral award may be made only by an application for setting aside such award in accordance
with sub-section (2) and sub-section (3).

Section 34 of the Act provides for setting aside of an Arbitral Award by the Court. The Act provides a comprehensive list of
circumstances under which an Arbitral Award can be set aside by the Court and they are:

The party is under some incapacity;

Arbitration agreement between the parties is not valid;

Lack of notice of appointment of arbitrator or of holding of arbitral proceeding;

Arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration or it
contains decisions on matters beyond the scope of submission of arbitration;

Composition of arbitral tribunal or arbitral procedure was not in accordance with the agreement of the parties;

The Court finds that the subject matter of the dispute is not capable of settlement by arbitration under the Law;

The Award is in conflict with the Public Policy

Termination of proceedings.

1. The arbitral proceedings shall be terminated by the final arbitral award or by an order of the arbitral tribunal under sub-
section (2).

2. The arbitral tribunal shall issue an order for the termination of the arbitral proceedings where a. the

claimant withdraws his claim, unless the respondent objects to the order and the arbitral tribunal

recognises a legitimate interest on his part in, obtaining a final settlement of the dispute,
b. the parties agree on the termination of the proceedings, or

c. the arbitral tribunal finds that the continuation of the proceedings has for any other mason become unnecessary or
impossible.

3. Subject to section 33 and sub-section (4) of section 34, the mandate of the arbitral tribunal shall terminate with the
termination of the arbitral proceedings.

No 7.Conduct of Arbitral Proceedings

Ans: Conduct of arbitral proceedings under following section of Arbitration act

Equal treatment of parties. - The parties shall be treated with equality and each party shall be given a full opportunity to present
his case. Bias is the enemy of equality. The arbitrators should free their mind from any kind of bias which may affect their
decision.

Determination of rules of procedure.-

(1) The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872.

(2) Subject to this Part, the parties are free to agree on the procedure to be followed by the arbitral tribunal in
conducting its proceedings.

(3) Failing any agreement referred to in sub-section (2), the arbitral tribunal may, subject to this Part, conduct the
proceedings in the manner it considers appropriate.

(4) The power of the arbitral tribunal under sub-section (3) includes the power to determine the admissibility, relevance,
materiality and weight of any evidence.

Place of arbitration.-

(1) The parties are free to agree on the place of arbitration.

(2) Failing any agreement referred to in sub-section (1), the place of arbitration shall be determined by the arbitral tribunal
having regard to the circumstances of the case, including the convenience of the parties.

(3) Notwithstanding sub-section (1) or sub-section (2), the arbitral tribunal may, unless otherwise agreed by the parties,
meet at any place it considers appropriate for consultation among its members, for hearing winners, experts or the parties,
or for inspection of documents, goods or other property.

Commencement of arbitral proceedings.- Unless otherwise agreed by the parties, the arbitral proceedings, in respect of a
particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the
respondent.

Language.

(1) The parties are free to agree upon the language or languages to is used in the arbitral proceedings.

(2) Failing any agreement referred to in sub-section (1), the arbitral tribunal shall determine the language or languages to
be used in the arbitral proceedings.

(3) The agreement or determination, unless otherwise specified, shall apply to any written statement by a party, any
hearing and any arbitral award, decision or other communication by the arbitral tribunal.

(4) The arbitral tribunal may order that any documentary evidence shall be accompanied by a translation into the
languages agreed upon by the parties or determined by the arbitral tribunal.

Statements of claim and defence.-

(1) Within the period of time agreed upon by the parties or determined by the arbitral tribunal, the claimant shall state
the facts supporting his claim, the points at issue and the relief or remedy sought, and the respondent shall state his
defence in respect of these particulars, unless the parties have otherwise agreed as to the required elements of those
 statements.

(2) The parties may submit with their statements all documents they consider to be relevant or may add a reference to
the documents or other evidence they will submit.

(3) Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence during the course
of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow the amendment or supplement
having regard to the delay in making it.

Hearings and written proceedings.-

(1) Unless otherwise agreed by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the
presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents
an other materials;

Provided that the arbitral tribunal shall hold hearings, at an appropriate stage of the proceedings, on a request by a party,
unless the parties have agreed that no oral hearing shall be held.

(2) The parties shall be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the
purposes of inspection of documents, goods or other property.

(3) All statements, documents or other information supplied to, or applications made to, the arbitral tribunal by one party
shall be communicated to the other party, and any expert report or evidentiary document on which the arbitral tribunal
may rely in making its decision shall be communicated to the parties.

Default of a party.- Unless otherwise agreed by the parties, where, without showing sufficient cause,—-

(a) the claimant fails to communicate his statement of claim in accordance with sub-section (1) of section 23, the
arbitral tribunal shall terminate the proceedings;

(b) the respondent fails to communicate his statement of defence in accordance with sub-section (1) of section 23, the
arbitral tribunal shall continue the proceedings without treating that failure in itself as an admission of the allegations
by the claimant.

(c) a party fails to appear at an oral hearing or to produce documentary evidence, the arbitral tribunal may continue the
proceedings and make the arbitral award on the evidence before it.

Expert appointed by arbitral tribunal.- (1) Unless otherwise agreed by the parties, the arbitral tribunal may—

(a) appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal, and

(b) require a party to give the expert any relevant information or to produce, or to provide access to, any relevant documents,
goods or other property for his inspection.

(2) Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert
shall, after delivery of his written or oral report, participate on an oral hearing where the parties have the opportunity to put
questions to him and to present expert witnesses in order to testify on the points at issue.

(3) Unless otherwise agreed by the parties, the expert shall, on the request of a party, make available to that party for
examination all documents, goods or other property in the possession of the expert with which he was provided in order to
prepare his report.

Court assistance in taking evidence.-

(1) The arbitral tribunal, or a party with the approval of the arbitral tribunal, may apply to the Court for assistance in taking
evidence.

(2) The application shall specify—-

(a) the names and addresses of the parties and the arbitrators.

(b) the general nature of the claim and the relief sought;
 (c) the evidence to the obtained, in particular,—-

(i) the name and address of any person to be heard as witness or expert witness and a statement of the subject-matter of the
testimony required;

(ii) the description of an document to be produced or property to be inspected.

(3) The Court may, within its competence and according to its rules on taking evidence, execute the request or ordering that
the evidence be provided directly to the arbitral tribunal.

(4) The Court may, while making or order under sub-section (3), issue the same processes to witnesses as it may issue in suits
tried before it.

(5) Persons failing to attend in accordance with such process, or making any other fault, or refusing to give their evidence, or
guilty of any contempt to the arbitral tribunal during the conduct of arbitral proceedings, shall be subject to the like
disadvantages, penalties and punishments by order of the Court on the representation of the arbitral tribunal as they
would incur for the like offences is suits tried before the Court.

(6) In this section the expression Processes includes summonses and commissions for the examination of witnesses and
summonses to produce documents.

Qn 8) What is a foreign award? Discuss the procedure of foreign award before commencement of the Arbitration and
Conciliation Act 1996 ?

Ans: According to Section 44 of the Act a foreign award means an arbitral award on disputes arising between parties to
arbitration, whether in contractual or non-contractual relationship, considered as commercial under Indian laws enacted on or
after the 11th day of October, 1960. But the country must be a signatory to the New York Convention and recognised by the
Central Government of India as a Convention country and the award shall be passed in the territory of another contracting
country which is a reciprocating territory, i.e. the Central Government of India has notified it as Convention country in its Official
Gazette. Section 45 of the Act empowers a judicial authority to refer the parties to arbitration at the request of one of the
parties or any person claiming through or under him except in the situation when the agreement is found to be void, inoperative
or incapable of being performed. Section 46 of the Act provides that any foreign award which would be enforceable under this
Chapter shall be treated as binding for all purposes on the persons as between whom it was made. It may be relied upon by the
parties in any legal proceedings in India. of the Act a person seeking to enforce a foreign arbitral award shall make an application
to a court, i.e. high court having jurisdiction in the matter as per the provisions of the Amendment Act, 2015 and provide the
original award or its certified copy; original arbitration agreement or its duly certified copy; and if the award or agreement is in a
foreign language, the party seeking to enforce must produce a certified copy of a foreign award translated into English and/or
any other evidence to establish that the award is a foreign award. The burden of proof is on the party seeking to enforce the
foreign arbitral award to prove that it is a genuine foreign award and the aforesaid documents form a prima facie evidence to
establish the same.

CONDITION FOR ENFORCEMENT OF FOREIGN AWARDS

As per section 48 (1) of the Act, a foreign award may not be enforced in India if it is proved by the party against whom it is
sought to be enforced that:

the parties to the agreement were under some incapacity to perform under the law to which they were subjected to and in the
absence of any mention of such law, the law of the country where the award was made, i.e. the place of arbitration, or,

the agreement was invalid under the law to which the parties have subjected it and in the absence of any mention of such law,
the law of the country where the award was made, or,

a fair trial was not conducted by the tribunal passing the award by failing to adhere to the principles of fair hearing, or,

the award passed was partly or wholly beyond the scope of the arbitration agreement, in which case the part of the award
exceeding the scope of submission to arbitration may be separated from rest of the award, or,

the composition of the arbitral tribunal or authority and/or the procedure of its appointment was not in accordance with the
arbitration agreement or in the absence of any mention of the same in the agreement, it was not in accordance with the law of
the country where the arbitration proceedings were held, i.e. the place of arbitration, or,

the award has not yet been made binding on the parties or has been set aside or suspended by a competent authority of the
country which is either the place or seat of arbitration.

Prior to 1937, foreign awards and foreign judgments based on foreign awards were enforceable in British India on the same
grounds and in the same circumstances as they were in England under the common law, on the grounds of justice, equity and
good conscience. In 1937 the Arbitration (Protocol and Convention) Act 1937 was enacted to give effect to the Geneva Protocol
on Arbitration Clauses 1923 and the New York Convention on execution of Foreign Arbitral Awards 1958, enabling them to
become operative in India. The way foreign arbitral award was defined in the 1937 Act and the 1996 Act were however not
much different. Both emphasizes on the dispute being commercial in nature further Section 4(2) of the Act says“ Any foreign
award which would be enforceable under this Act shall be treated as binding for all purposes on the persons as between whom
it was made and may accordingly be relied on by any of those persons by way of defence, set off or otherwise in any legal
proceeding in [India], and any references in this Act to enforcing a foreign award shall be construed as including references to
relying on an award.”Further, on satisfaction about the enforceability of the award, the Court shall order the award to be filed
and shall proceed to pronounce judgment according to the award. During the 1937s there were certain local Arbitration Laws in
effect as well, which the parties were free to choose. However post enactment of the 1937 Act, the issue whether a matter was
governed under the local Arbitration Act or the Arbitration (Protocol and Convention) Act 1937 became a question of law and
could not be determined by the conduct of the parties. Now, the provisions of the 1937 Act have also been repealed by the
Arbitration and Conciliation Act 1996 except that they still apply in relation to arbitral proceedings which commenced before the
1996 Act that came into force unless otherwise agreed upon by the parties. The present Act deals with enforcement of foreign
arbitral award under part II. Although due to a recent Supreme Court decision the difference between Part II and Part I have
become blurred. The provisions of part II gives effect to the New York and the Geneva conventions (although the provisions of
the Geneva Conventions are literally otiose now) India is not a party to the ICSID convention or any other conventions pertaining
to enforcement of foreign arbitral awards.

Effect of Foreign Awards: Subject to the statutory restrictions, a foreign award is enforceable in India as if it were an award
made on a matter referred to arbitration in India. Any foreign award which would be enforceable under the Foreign Awards
(Recognition and Enforcement) Act 1961 is to be treated as binding for all purposes on the persons as between whom it is made,
and may accordingly be relied on by any of those persons by way of defence, set off or otherwise in any legal proceedings in
India and any references in the 1961 Act to enforcing a foreign award are to be construed as including references to relying on
an award. If a foreign award is enforced it is necessarily recognized. It is open to a party to apply only for recognition as a shield
against re-agitation of issues with which the award deals.

Q 9.New York Convention Awards.

Ans: United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958)
Article I

1. This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than
the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons,
whether physical or legal. It shall also apply to arbitral awards not considered as domestic awards in the State where their
recognition and enforcement are sought.
2. The term "arbitral awards" shall include not only awards made by arbitrators appointed for each case but also those made by
permanent arbitral bodies to which the parties have submitted.
3. When signing, ratifying or acceding to this Convention, or notifying extension under article X hereof, any State may on the
basis of reciprocity declare that it will apply the Convention to the recognition and enforcement of awards made only in the
territory of another Contracting State. It may also declare that it will apply the Convention only to differences arising out of legal
relationships, whether contractual or not, which are considered as commercial under the national law of the State making such
declaration.

Article II
1. Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all
or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether
contractual or not, concerning a subject matter capable of settlement by arbitration.
2. The term "agreement in writing" shall include an arbitral clause in a contract or an arbitration agreement, signed by the
parties or contained in an exchange of letters or telegrams.
3. The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement
within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that
the said agreement is null and void, inoperative or incapable of being performed.
Article III
Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of
the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed
substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which
this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.

Article IV
1. To obtain the recognition and enforcement mentioned in the preceding article, the party applying for recognition and
enforcement shall, at the time of the application, supply:

(a) The duly authenticated original award or a duly certified copy thereof;
(b) The original agreement referred to in article II or a duly certified copy thereof.
2. If the said award or agreement is not made in an official language of the country in which the award is relied upon, the party
applying for recognition and enforcement of the award shall produce a translation of these documents into such language. The
translation shall be certified by an official or sworn translator or by a diplomatic or consular agent.

Article V
1. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that
party furnishes to the competent authority where the recognition and enforcement is sought, proof that:
(a) The parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity, or the
said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law
of the country where the award was made; or
(b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the
arbitration proceedings or was otherwise unable to present his case; or
(c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it
contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters
submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on
matters submitted to arbitration may be recognized and enforced; or
(d) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties,
or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or
(e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the
country in which, or under the law of which, that award was made.

2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where
recognition and enforcement is sought finds that:

(a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or
(b) The recognition or enforcement of the award would be contrary to the public policy of that country. Article VI

If an application for the setting aside or suspension of the award has been made to a competent authority referred to in article V
(1) (e), the authority before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on
the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other
party to give suitable security.

Article VII
1. The provisions of the present Convention shall not affect the validity of multilateral or bilateral agreements concerning the
recognition and enforcement of arbitral awards entered into by the Contracting States nor deprive any interested party of any
right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the
country where such award is sought to be relied upon.
2. The Geneva Protocol on Arbitration Clauses of 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards
of 1927 shall cease to have effect between Contracting States on their becoming bound and to the extent that they become
bound, by this Convention.

Article VIII
1. This Convention shall be open until 31 December 1958 for signature on behalf of any Member of the United Nations and also
on behalf of any other State which is or hereafter becomes a member of any specialized agency of the United Nations, or which
is or hereafter becomes a party to the Statute of the International Court of Justice, or any other State to which an invitation has
been addressed by the General Assembly of the United Nations.
2. This Convention shall be ratified and the instrument of ratification shall be deposited with the Secretary-General of the United
Nations.

Article IX

1. This Convention shall be open for accession to all States referred to in article VIII.

2. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.
Article X
1. Any State may, at the time of signature, ratification or accession, declare that this Convention shall extend to all or any of the
territories for the international relations of which it is responsible. Such a declaration shall take effect when the Convention
enters into force for the State concerned.
2. At any time thereafter any such extension shall be made by notification addressed to the Secretary-General of the United
Nations and shall take effect as from the ninetieth day after the day of receipt by the Secretary-General of the United Nations of
this notification, or as from the date of entry into force of the Convention for the State concerned, whichever is the later.
3. With respect to those territories to which this Convention is not extended at the time of signature, ratification or accession,
each State concerned shall consider the possibility of taking the necessary steps in order to extend the application of this
Convention to such territories, subject, where necessary for constitutional reasons, to the consent of the Governments of such
territories.

Article XI

In the case of a federal or non-unitary State, the following provisions shall apply:
(a) With respect to those articles of this Convention that come within the legislative jurisdiction of the federal authority, the
obligations of the federal Government shall to this extent be the same as those of Contracting States which are not federal
States;
(b) With respect to those articles of this Convention that come within the legislative jurisdiction of constituent states or
provinces which are not, under the constitutional system of the federation, bound to take legislative action, the federal
Government shall bring such articles with a favourable recommendation to the notice of the appropriate authorities of
constituent states or provinces at the earliest possible moment;
(c) A federal State Party to this Convention shall, at the request of any other Contracting State transmitted through the
Secretary-General of the United Nations, supply a statement of the law and practice of the federation and its constituent units in
regard to any particular provision of this Convention, showing the extent to which effect has been given to that provision by
legislative or other action.

Article XII
1. This Convention shall come into force on the ninetieth day following the date of deposit of the third instrument of ratification
or accession.
2. For each State ratifying or acceding to this Convention after the deposit of the third instrument of ratification or accession,
this Convention shall enter into force on the ninetieth day after deposit by such State of its instrument of ratification or
accession.

Article XIII
1. Any Contracting State may denounce this Convention by a written notification to the Secretary-General of the United Nations.
Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General.
2. Any State which has made a declaration or notification under article X may, at any time thereafter, by notification to the
Secretary-General of the United Nations, declare that this Convention shall cease to extend to the territory concerned one year
after the date of the receipt of the notification by the Secretary-General.
3. This Convention shall continue to be applicable to arbitral awards in respect of which recognition and enforcement
proceedings have been instituted before the denunciation takes effect.

Article XIV
A Contracting State shall not be entitled to avail itself of the present Convention against other Contracting States except to the
extent that it is itself bound to apply the Convention.

Article XV

The Secretary-General of the United Nations shall notify the States contemplated in article VIII of the following:
(a) Signatures and ratifications in accordance with article VIII;

(b) Accessions in accordance with article IX;

(c) Declarations and notifications under articles I, X and XI;

(d) The date upon which this Convention enters into force in accordance with article XII;

(e) Denunciations and notifications in accordance with article XIII.

Article XVI
1. This Convention, of which the Chinese, English, French, Russian and Spanish texts shall be equally authentic, shall be
deposited in the archives of the United Nations.
2. The Secretary-General of the United Nations shall transmit a certified copy of this Convention to the States contemplated in
article VIII.
Legal aid and history of lokadalat

Introduction

The concept of legal aid has spanned across centuries, going back to the year 1919, when Reginald Heber Smith, in his book
Justice and Poor, promoted the concept of legal aid and disparaged the legal profession saying that access to justice should be
open to all without any obligation to pay. Without equal access to law, he wrote, the system robs the poor not only of their only
protection but places it in the hands of the oppressors, the most powerful weapon ever invented.

Even the code of Hammurabi attempts to limit the charges paid for services to poor men. The code described three processes,
by way of which the society can move towards social engineering through free legal aid.

The first step of free legal aid was to grant assistance to the vulnerable communities, the second was to put restrictions upon
the exercise of privileges accorded by law to those who are well off, and the third was to strip the rich of their amenities and put
the rich and poor on the same footing.

Mosaic Law gave to the poor many privileges, for he was poor. For example, if the creditors took a poor man’s cloak as a pledge,
then he must return it by nightfall otherwise he wouldn’t have anywhere to sleep. Prompt payment of wages to the poor was
also seen as essential.

History of Legal Aid in India

The adversarial system that came in India, with the advent of the British ended the informal dispute resolution system. This new
system was more complex and required prior knowledge to be used.

In M.H Hoskot v. State of Maharashtra , the Supreme Court held that our legal system that has been mounted by the Anglo
American models which heavily uses legal technology, compel the collaboration of lawyer power or steering the wheels of equal
justice under law. The adversarial model has been characterized by the technical nature of law, because of proper proceedings
in court and the prevalence of lawyers and subsequent fee, hence it became imperative for the proper and fair adjudication of
justice that Legal Aid be incorporated into the Constitution.

The 42nd Amendment Act inserted Article 39-A to the Constitution, hence making equal justice and free legal aid a directive
principle of state policy. As pointed out by Granville Austin, the portions dealing with Fundamental Rights and Directive
Principles of State Policy are meant for social revolution.

The working of Article 39-A reiterates that kind of social justice being prevalent in society.

How free legal aid was introduced in India

The 14th Report of the Law Commission of India mooted the idea of providing free legal aid to the poor by the State. The Report
highlighted the responsibility of the legal community to administer the legal aid scheme and the State to fund legal
representation 174 to the accused in criminal proceedings, appeals, and jails. In 1960, the Union Government initiated the
national legal aid scheme which faced financial shortages and died a natural death. In 1973, in the second phase, the Union
Government constituted a committee under the chairmanship of Justice Krishna Iyer to develop a legal aid scheme for states.
The Committee devised a strategy in a decentralized mode with legal aid committees in every district, state, and center. A
committee on judicature was set up under the chairmanship of Justice P N Bhagwati to implement the legal aid scheme.
This Committee suggested legal aid camps and nyayalayas in rural areas and recommended the inclusion of free legal aid
provision in the Constitution. In 1980, the Committee on National Implementation of Legal Aid was constituted with Justice
Bhagwati as its head. Subsequently, the Parliament enacted the Legal Services Authorities Act, 1987.

Legal provisions providing for legal aid

Section 340(1) of the Code of Criminal Procedure, 1898, provided that when a man was charged with an offence punishable with
death, the court could provide him with counsel upon his request.

This was subject to twisted interpretation by the court, as the court regarded this as a privilege rather than a right in Tara Singh
v. State of Maharashtra. However in the Code of Criminal Procedure of 1973, this was made a statutory rule and it was provided
that in a trial before a session Judge if the accused does not have sufficient means to employ pleaders, the court shall do so at its
own expense.
Origin of LokAdalats The concept of LokAdalat goes back to the pre-independence or the British period. It served as an effective
system amongst the litigants. This was one of the most suitable methods for the Indian environment, culture and social interest.

A. NyayaPanchayats
India has a long tradition of resolving disputes through conciliation efforts outside of the formal legal system.

Accordingly, LokAdalats evolved from and were influenced by Village Based Courts called NyayaPanchayats. From ancient times
to the twentieth century, NyayaPanchayats resolved disputes through informal tribunals headed by Village Elders. This was
advantageous because the elders intimately knew the disputants, the issues, and the traditions of the Village. A Ruling by an
elder was considered well-informed and highly respected based on the elder's position within the community. In Village life,
informal resolutions like conciliation were emphasized.

Popularity and use of the NyayaPanchayats declined as the British System Of Justice was established beginning in the mid-1800s.
However, after India's independence in 1947, members of the Ruling Party, the Indian National Congress, sought to replace the
formal British Adversarial System with a structure that promoted harmony and reconciliation. They wanted Formal Courts
replaced by the traditional NyayaPanchayats, which had been providing Justice for hundreds of years.

Despite this support, Lawyers, Judges, and notably the Chair of the Constitution's Drafting Committee strongly opposed
institutionalizing Informal Court Systems. Consequently, although NyayaPanchayats were included in the new Constitution, they
were not given much power and quickly became defunct.

NyayaPanchayats, as envisioned by the new Constitution, differed from their older and more traditional predecessors. This new
iteration of NyayaPanchayats brought unwanted formalism to the system, such as requiring that certain cases be heard only in
the NyayaPanchayats, whereas, before people had the option of going to the Formal Court System. During this time, the
NyayaPanchayats quickly receded in use and popularity. Caseloads of the NyayaPanchayats declined steadily while those of the
Formal Courts continued to rise.

Early History of LokAdalats The early history of LokAdalats can be defined by the struggle to provide legal aid in India. This
movement was spurred by the concerns of legal scholars and the Judiciary who believed that the general population would not
have adequate legal representation without access to free legal services.
Former Chief Justice of the Supreme Court of India P.N. .Bhagwati led the first formal and comprehensive inquiry into this
dilemma. In 1949, Bhagwati's Committee on Legal Aid & Legal Advice concluded that legal aid was a "governmental
responsibility" and that equal protection of the laws placed a duty on the Government to provide free legal aid as per Article 14
of the Constitution of India. In the three decades after the Report's Release, many more Committees and Official Government
Reports studied the need for legal aid.
The Bhagwati Report of 1976 (Officially titled The Report on National Juridicare) was the one of the most important instances in
which a group of individuals envisioned a Court System in the image of LokAdalats. The State of Gujarat was the first major State
to acknowledge and establish legal aid because it commissioned the Bhagwati Report of 1976, written by a group of jurists
including former Supreme Court Justice PrafullachandraNatwarlalBhagwati.

The Bhagwati Report argued that poverty was intimately related to the lack of legal assistance and access to Courts. One way to
improve socio-economic conditions through the law, the Report argued, was through public-interest litigation that promoted
certain rights. Advocates of using public-interest litigation in this way argue that the legal system should be a mechanism for
providing social Justice. Advocates also argue that the Judiciary should play an active role in expanding the legal system.

After the Bhagwati Committee Report, the Government of India commissioned a report on legal services. This Report was the
first to explicitly mention Conciliation & Informal Dispute Resolution as a factor in a National Legal Aid Scheme. The Report even
invoked NPs as a way to provide Dispute Resolution & Promote Conciliation. UpendraBaxi, a prominent Indian Legal Scholar &
Researcher, was one player in promoting LokAdalats. He documented a Guru's 50 private experiment with Informal Dispute
Resolution in the Northern Indian Village of Rangpur.

The founder of the Ashram, Harivallabh Parikh, heard mainly intra-village disputes where he and representatives of the
disputants rendered a decision subject to the approval of the Local Assembly News of the success of the ashram in Rangpur
spread quickly and was a model for the first State-backed LokAdalat experiment, which took place in Gujarat.

In response to the influence of the Bhagwati Report &UpendraBaxi's study of the ashram in Rangpur, both of which had been
released in the same year and about the same State in India, Gujarat began holding LokAdalats in conjunction with legal aid
conferences. As news of the success of Gujarat LokAdalats spread, other States began following its example. Between 1986 &
1988, LokAdalats were highly promoted by Politicians, Government Officials, and the Judiciary. LokAdalats were created with
greater frequency and hundreds of thousands of cases were settled.
At this point, LokAdalats were at the height of their popularity and effectiveness as evidenced by this description in laid down in
Shiraz Sidhva, LokAdalats: Quick, Informal Nyaya, LEX ET JURIS, Dec. 1986, at 38, 40�41: When a particular matter is called up
for hearing, either the petitioner or the lawyer representing him can explain his problem. The case is discussed informally, and
the mediators can intervene at any point in the proceedings, as can the opposite party. Issues are clarified, and it is aimed to
arrive at a fair settlement. . . . [The judge's] task is merely to clarify the law, and by methods of persuasion, make each party
realise how he stands to benefit from a particular settlement arrived at. . . . On some occasions, the compensation amount is
made available to the parties on the same day, thereby making the lokadalats popular.

During this period, LokAdalats were conducted in an informal manner as compared to the formal court system. LokAdalats could
hear any type of case because there were no jurisdictional limitations. They addressed, inter alia, civil matters, minor criminal
cases, and motor vehicle accident cases. Disputes were resolved with speed and ease.

Legitimization and Modern Times The Government passed the National Legal Services Authorities Act in 1987. The Act affected
LokAdalats in three important ways.

First, it conferred statutory authority to LokAdalats.

It allowed the States to organize LokAdalats as they saw fit. It also gave LokAdalats the jurisdiction to: [D]etermine and to arrive
at a compromise or settlement between the parties to a dispute in the respect of:

i. any pending case; or

ii. any matter which is falling within the jurisdiction of, and is not brought before, any court for which the LokAdalat is
organized.

Second, it permitted pending cases in the formal Courts to be transferred to LokAdalats by direct application of one or both
parties. If conciliation was not achieved, then the case could move back to the formal Court from which it came.

Third, the Act made awards given out by LokAdalats enforceable. Any awards issued were considered equivalent to decrees of a
Civil Court. Also significant was that the award issued was binding on both the parties and could not be appealed.

Despite the demand for legislation on LokAdalats, however, there was strong opposition to the Legal Services Act. Critics of the
Legal Services Act thought it defeated the informal and grassroots nature of LokAdalats, which resulted from the popular desire
to settle disputes through conciliation. Former Supreme Court Justice Krishna Iyer, a prominent Indian Jurist who was
instrumental in the LokAdalat movement, was disappointed with the Act's insistence that Judicial Officers and lawyers have
ultimate responsibility for LokAdalat Courts, and that decisions in those Courts be made according to common law principles.

In 1999, the Government of India further legitimized LokAdalats by adding Section 89 to the Civil Procedure Code of India.
Section 89 allows a Court, when it appears that there is the possibility of a settlement, to formulate the terms and submit them
to the parties for their comments. Most importantly, on receiving a response from the parties, the Court may formulate a
settlement and refer the case to ADR, including LokAdalats.

In 2002, there was an amendment to the Legal Services Authority Act that specifically affects LokAdalats. This amendment
established permanent LokAdalats for specific types of disputes.

For example: LokAdalats were set up to resolve disputes concerning Public Utilities Services. This is an important transition
because, previously, if two parties could not come to a resolution they would go back into the Formal Justice System. This was
seen as a delay in the dispensation of Justice and was used to that end by many lawyers. However, with permanent LokAdalats,
Judges have the authority to make decisions based on the merits, as well as to compel conciliation.

Modern LokAdalats can be traced back to the advent of NyayaPanchayats in ancient India. However, as the Justice system and
the country have evolved, LokAdalats have become a very different mechanism of Justice than the original NyayaPanchayats.

Conclusion
The quest for equal, fair and even handed justice has been the passionate demand of human being from the emergence of the
society in all civilisations. Therefore, the right of effective access to Justice has developed as the most basic human rights of a
legal system which purports to guarantee the legal, social, political, cultural and economic rights in a country.

The term access to Justice connotes the ability of a person to participate in the Judicial process for the protection and
enforcement of his rights. It covers more than bare Court entry and includes the ability to reach the lawyers, police,
enforcement machinery and capacity to bear the costs and time of litigation. In this backdrop, the right to access to Justice
through efficacious Justice Delivery Mechanism, is imperative to secure Justice under the Constitution.

The introduction of LokAdalats added a new chapter to the Justice Dispensation System of this country and succeeded in
providing a supplementary forum to the litigants or disputants for satisfactory settlement of their disputes. It is a major aspect of
legal aid programme because it intends to provide equal protection of law and equal access to Justice to all people, particularly
the poor who lack means to knock at the door of Justice.

Qn 11) What is the meaning lokadalat? Discuss the importance of lokadalats in the present day scenario.

AnsLokAdalat is one of the alternative dispute redressal mechanisms, it is a forum where disputes/cases pending in the court of
law or at pre-litigation stage are settled/ compromised amicably

• The LokAdalat is presided over by a sitting or retired judicial officer as the chairman, with two other members, usually a lawyer
and a social worker.

• Main condition of the LokAdalat is that both parties in dispute should agree for settlement. • There is no court fee.

• If the case is already filed in the regular court, the fee paid will be refunded if the dispute is settled at the LokAdalat.

The procedural laws and the Evidence Act are not strictly followed while assessing the merits of the claim by the LokAdalat The
decision of the LokAdalat is binding on the parties to the dispute and its order is capable of execution through legal process.

No appeal lies against the order of the LokAdalat. LokAdalat is very effective in settlement of money claims. Disputes like
partition suits, damages and matrimonial cases can also be easily settled before LokAdalat, as the scope for compromise through
an approach of give and take is high in these cases.
A LokAdalat has the jurisdiction to settle, by way of effecting compromise between the parties, any matter which may be
pending before the court, as well as matters at pre- litigative stage i.e. disputes that have not been formally instituted in any
court of law

2. Statutory Provisions: Eminent judges of the Supreme Court and High Courts have many a time emphasized the need for free
legal aid to the poor. Legal Aid is a kind of human right in the context of conflicts and contradictory interests. The Central
Government, taking note of the need for legal aid for the poor and the needy, had introduced Article 39 (A) in the Constitution in
February 1977.Article 39 A of the Constitution of India provides for equal justice and free legal aid. It is, therefore clear that the
State has been ordained to secure a legal system, which promotes justice on the basis of equal opportunity. The language of
Article-39 A is understood in mandatory terms. This is made more than clear by the use of the word “shall” in Art-39 A. It is
emphasized that the legal system should be able to deliver justice expeditiously on the basis of equal opportunity and provide
free legal aid to ensure that opportunities for securing justice are not denied to any citizens by reasons of economic or other
disabilities. It was in this context that the Legal Services Authorities Act, 1987 has been enacted by the Parliament. One of the
aims of this Act is to organize LokAdalats to secure that the operation of legal system promotes justice on the basis of equal
opportunity. Chapter VI of the Act deals with LokAdalats. The Act created National, State and District Legal Service Authorities
with the power to organize LokAdalats. The poor and resourceless persons need justice, they require for that, an access to
justice. Mere recognition of rights does not help them, without providing for necessary infrastructure to secure them justice
whenever needed. Even if the infrastructure is created, if he does not get the ‘legal aid’ to reach it, the purpose of entire justice
system suffers a defeat.

3. Cases Suitable For LokAdalats:LokAdalats have competence to deal with a number of cases like:

· Compoundable civil, revenue and criminal cases.

· Motor accident compensation claims cases

· Partition Claims
· Damages Cases

· Matrimonial and family disputes

· Mutation of lands case

· Land Pattas cases

· Bonded Labour cases

· Land acquisition disputes

· Bank’s unpaid loan cases

· Arrears of retirement benefits cases

· Family Court cases

· Cases which are not sub-judice

4. Cognizance Of Cases By LokAdalats:ALokAdalat may take cognizance of cases, as per Section 20 of the Legal Services
Authority Act where:

(I) (a) the parties thereof agree; or

(b) one of the parties thereof makes an application to the court for referring the case to the LokAdalat for settlement and if such
court is prima facie satisfied that there are chances of such settlement; or

(II) the court is satisfied that the matter is an appropriate one to be taken cognizance of by the LokAdalat, the court shall refer
the case to the LokAdalat :

Provided that no case shall be referred to the LokAdalat by such court except after giving a reasonable opportunity of being
heard to the parties.

5. Need For LokAdalats Justice Ramaswamy says: “ Resolving disputes through LokAdalat not only minimizes litigation
expenditure, it saves valuable time of the parties and their witnesses and also facilitates inexpensive and prompt remedy
appropriately to the satisfaction of both the parties”.Advantages of LokAdalats:

1 Speedy Justice and Saving from the Lengthy Court Procedures Lokadalats ensure speedier justice because it can be conducted
at suitable places, arranged very fast, in local languages too, even for the illiterates. The procedural laws and the Evidence Act
are not strictly followed while assessing the merits of the claim by the LokAdalat. Hence, LokAdalats are also known as “People’s
Festivals of Justice ”The victims and the offender may be represented by their advocate or they can interact with the LokAdalat
judge directly and explain their stand in the dispute and the reasons thereof, which is not possible in a regular court of law.

.2 Justice At No Cost: Abraham Lincoln has observed:"Discourage litigation. Persuade your neighbours to compromise wherever
you can. Point out to them how the nominal winner is often a real loser - in fees, expenses, and waste of time. As a peacemaker,
the lawyer has a superior opportunity of being a good man. There will still be business enough."LokAdalat is the only
institutionalized mechanism of dispute resolution in which the parties do not have to bear any expenses. There is no court fee in
LokAdalat. If the case is already filed in the regular court, the fee paid is refunded in the manner provided under the Court Fees
Act if the dispute is settled at the LokAdalat. This kind of refund is an incentive given to parties to negotiate for settlement.
LokAdalat is a boon to the litigant public, where they can get their disputes settled fast and free of cost.Denial of free legal
services to the poor accused persons or under trial prisoners would vitiate the principle of “reasonable, just and fair” procedure
which is implied in the right to life and personal liberty under Article 21 of the Constitution.

3 Solving Problems Of Backlog Cases: Delivering the inaugural address at a seminar on judicial reforms, the President said:
“Delays render the common man’s knock on the temple of justice a frustrating experience. Litigants are not able to lead normal
lives being unsure of the verdict in their case.’’ Terming the pending cases as an “explosion of litigation,” she said the current
figures reveal that the arrears in HCs exceeded 40 lakh cases and in subordinate courts 270 lakh.The curse of backlogs in India is
well known and Andhra Pradesh High Court judge Justice V VRao has gone on to say that it will take 320 years for the Indian
Judiciary to clear its backlog.In a LokAdalat, if a compromise is reached, an award is made and is binding on the parties. It is
enforced as a decree of a civil court. An important aspect is that the award is final and cannot be appealed, not even under
Article 226 because it is a judgment by consent. All proceedings of a LokAdalat are deemed to be judicial proceedings and every
LokAdalat is deemed to be a Civil Court. Section 25 of the Legal Services Authority Act, 1987 provides that the provisions of the
act have an overriding effect notwithstanding anything which is inconsistent with any other law.

4 Maintenance of Cordial Relations: The main thrust of LokAdalats is on compromise. When no compromise is reached, the
matter goes back to the court. While conducting the proceedings, a LokAdalat acts as a conciliator and not as an arbitrator. Its
role is to persuade the parties to hit upon a solution and help in reconciling the contesting differences. LokAdalat cannot decide
the issues nor can it influence or force the parties to decide in a particular way. It encourages consensual arrangements. It is not
possible for lokadalat to decide upon any issue not acceptable to any of the parties.

LokAdalats are also required to follow the principles of natural justice and other legal principles. In KishanRao v. Bidar District
Legal Services Authority, the question raised was whether the LokAdalat could pass a decree when all the parties had not
appeared before the LokAdalat nor had notice been issued to them. The Karnataka High Court interpreted Section 20(3) of the
Legal Services Authorities Act to hold that all the parties to the suit must be present if the compromise was to be a valid one.
Thus the impugned decree was struck down as being a nullity by reason of violation of natural justice.

LokAdalats, as it has been again and again iterated throughout the paper, serve very crucial functions in a country due to many
factors like pending cases, illiteracy etc. The LokAdalat was a historic necessity in a country like India where illiteracy dominated
about all aspects of governance. The most desired function of lokadalats may seem to be clearing the backlog, with the latest
report showing 3 crore pending cases in Indian courts but the other functions cannot be ignored. The concept of LokAdalat has
been a success in practice. LokAdalats play a very important role to advance and strengthen “equal access tojustice”, the heart
of the Constitution of India, a reality. This Indian contribution to world ADR jurisprudence needs to be taken full advantage of.

Qn. 12 States the importance and salient feature of International commercial arbitration.

Ans: The UNCITRAL Model Law on International Commercial Arbitration was adopted by the United Nations Commission on
International Trade Law (UNCITRAL) on 21 June 1985, at the close of the Commission's 18th annual session. The General
Assembly, in its resolution 40/72 of 11 December 1985, recommended "that all States give due consideration to the Model Law
on International Commercial Arbitration, in view of the desirability of uniformity of the law of arbitral procedures and the
specific needs of international commercial arbitration practice".

2. The Model Law constitutes a sound and promising basis for the desired harmonisation and improvement of national laws. It
covers all stages of the arbitral process from the arbitration agreement to the recognition and enforcement of the arbitral award
and reflects a worldwide consensus on the principles and important issues of international arbitration practice. It is acceptable
to States of all regions and the different legal or economic systems of the world.

3. The form of a model law was chosen as the vehicle for harmonization and improvement in view of the flexibility it gives to
States in preparing new arbitration laws. It is advisable to follow the model as closely as possible since that would be the best
contribution to the desired harmonisation and in the best interest of the users of international arbitration, who are primarily
foreign parties and their lawyers.

I. Background to the Model Law: The Model Law is designed to meet concerns relating to the current state of national laws on
arbitration. The need for improvement and harmonisation is based on findings that domestic laws are often inappropriate for
international cases and that considerable disparity exists between them.

A global survey of national laws on arbitration revealed considerable disparities not only as regards individual provisions and
solutions but also in terms of development and refinement. Some laws may be regarded as outdated, sometimes going back to
the nineteenth century and often equating the arbitral process with court litigation. Other laws may be said to be fragmentary in
that they do not address all relevant issues. Even most of those laws which appear to be up-to-date and comprehensive were
drafted with domestic arbitration primarily, if not exclusively, in mind. While this approach is understandable in view of the fact
that even today the bulk of cases governed by a general arbitration law would be of a purely domestic nature, the unfortunate
consequence is that traditional local concepts are imposed on international cases and the needs of modern practice are often
not met.

II. Salient features of the Model Law: The principles and individual solutions adopted in the Model Law aim at reducing or
eliminating the above concerns and difficulties. As a response to the inadequacies and disparities of national laws, the Model
Law presents a special legal regime geared to international commercial arbitration, without affecting any relevant treaty in force
in the State adopting the Model Law. While the need for uniformity exists only in respect of international cases, the desire of
updating and improving the arbitration law may be felt by a State also in respect of non-international cases and could be met by
enacting modern legislation based on the Model Law for both categories of cases.

Substantive and territorial scope of application: The Model Law defines arbitration as international if "the parties to an
arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different States" (article
1(3)). The vast majority of situations commonly regarded as international will fall under this criterion. In addition, arbitration is
international if the place of arbitration, the place of contract performance, or the place of the subject-matter of the dispute is
situated in a State other than where the parties have their place of business, or if the parties have expressly agreed that the
subject-matter of the arbitration agreement relates to more than one country. As regards the term "commercial", no hard and
fast definition could be provided. Article 1 contains a note calling for "a wide interpretation so as to cover matters arising from
all relationships of a commercial nature, whether contractual or not". The footnote to article 1 then provides an illustrative list of
relationships that are to be considered commercial, thus emphasizing the width of the suggested interpretation and indicating
that the determinative test is not based on what the national law may regard as "commercial".

Another aspect of applicability is what one may call the territorial scope of application. According to article 1(2), the Model Law
was enacted in a given State would apply only if the place of arbitration is in the territory of that State. However, there is an
important and reasonable exception. Articles 8(1) and 9 which deal with recognition of arbitration agreements, including their
compatibility with interim measures of protection, and articles 35 and 36 on recognition and enforcement of arbitral awards are
given a global scope, i.e. they apply irrespective of whether the place of arbitration is in that State or in another State and, as
regards articles 8 and 9, even if the place of arbitration is not yet determined.

Composition of arbitral tribunal: Chapter III contains a number of detailed provisions on appointment, challenge, termination of
mandate and replacement of an arbitrator. The chapter illustrates the approach of the Model Law in eliminating difficulties
arising from inappropriate or fragmentary laws or rules. The approach consists, first, of recognizing the freedom of the parties to
determine, by reference to an existing set of arbitration rules or by an ad hoc agreement, the procedure to be followed, subject
to fundamental requirements of fairness and justice. Secondly, where the parties have not used their freedom to lay down the
rules of procedure or a particular issue has not been covered, the Model Law ensures, by providing a set of suppletive rules that
the arbitration may commence and proceed effectively to the resolution of the dispute. Where under any procedure, agreed
upon by the parties or based upon the suppletive rules of the Model Law, difficulties arise in the process of appointment,
challenge or termination of the mandate of an arbitrator, Articles 11, 13 and 14 provide for assistance by courts or other
authorities. In view of the urgency of the matter and in order to reduce the risk and effect of any dilatory tactics, instant resort
may be had by a party within a short period of time and the decision is not appealable.

A) Constitution/Composition of State Legal Services Authority (Section 6) Section 3 of the Legal Services Act 1987 Provides
That the Central Government shall constitute a Central Authority called the National Legal Services Authority. Further Section 6
of said Act provides constitution of State Legal Services Authority.
Section 7 of the said Act, deals with Functions of The State Authority.
1) Every State Government shall constitute a body to be called the Legal Services Authority for the State to exercise the powers
and perform the functions conferred on or assigned to, a State Authority under this Act.

2) A State Authority shall consist of -

The Chief Justice of the High Court who shall be the Patron-in-Chief; a serving or retired Judge of the High Court, to be
nominated by the Governor, in consultation with the Chief Justice of the High Court, who shall be the Executive Chairman; and
such number of other Members, possessing such experience and qualifications, as may be prescribed by the State Government,
to be nominated by that Government in consultation with the Chief Justice of the High Court.

3) The State Government shall, in consultation with the Chief Justice of the High Court, appoint a person belonging to the State
Higher Judicial Service not lower in rank than that of a District Judge, as the Member-Secretary of the State Authority, to
exercise such powers and perform such duties under the Executive Chairman of the State Authority as may be prescribed by that
Government or as may be assigned to him by the Executive Chairman of that Authority;

Provided that a person functions as Secretary of a State Legal Aid & Advice Board immediately before the date of constitution of
the State Authority may be appointed as Member-Secretary of that Authority, even if he is not qualified to be appointed as such
under this sub-section, for a period not exceeding five years.

4) The terms of office and other conditions relating thereto, of Members and the Member-Secretary of the State Authority shall
be such as may be prescribed by the State Government in consultation with the Chief Justice of the High Court.

5) The State Authority may appoint such number of officers and other employees may be prescribed by the State Government,
in consultation with the Chief Justice of the High Court, for the efficient discharge of its functions under this Act.

6) The officers and other employees of the State Authority shall be entitled to such salary and allowances and shall be subject to
such other conditions of service as may be prescribed by the State Government in consultation with the Chief Justice of the High
Court.
7) The administrative expenses of the State Authority, including the salaries, allowances and pensions payable to the Member
Secretary, officers and other employees of the State Authority shall be defrayed out of the Consolidated Fund of the State.

8) All orders and decisions of the State Authority shall be authenticated by the Member-Secretary or any other officer of the
State Authority duly authorized by the Executive Chairman of the State Authority.

9) No act or proceeding of a State Authority shall be invalid merely on the ground of the existence of any vacancy in, or any
defect in the constitution of the State Authority.

B) Functions of the State Authority According to Section 7 of Legal Services Authority Act Functions of the State Authority are as

Follows

1) It shall be the duty of the State Authority to given effect to the policy and directions of the Central Authority.

2) Without prejudice to the generality of the functions referred to in sub-section (1), the State Authority shall perform all or any
of the following functions, namely -

(a) give legal service to persons who satisfy the criteria laid down under this Act. (b) conduct LokAdalats, including LokAdalats

for High Court cases; (c) undertake preventive and strategic legal aid programmes; and

(d) perform such other functions as the State Authority may, in consultation with the Central Authority, fix by regulations.

According to Section 8 of the said Act, State Authority to act in co-ordination with other agencies and be subject to directions
given by Central Authority.... In the discharge of its functions the State Authority shall appropriately act in co-ordination with
other governmental agencies, non-governmental voluntary social service institutions, universities and other bodies engaged in
the work of promoting the cause of legal services to the poor and shall also be guided by such directions as the Central Authority
may give to it in writing.

Eligibility criteria for free legal aid

There was even an item on the committee’s (headed by Justice PN Bhagwati) agenda on the eligibility criteria for the people to
qualify for free legal aid, which has been also mentioned in the Code of Criminal Procedure, 1973 under Section 304 to provide
free and competent legal assistance to a marginalised member of the society at the expense of the state. As established in
HussainaraKhatoon v. State of Bihar (1979), legal aid will be provided at the expense and cost of the state to marginalised
groups within society, and the state is required to make such assistance available to the accused.

In a similar vein, the Supreme Court has also ruled in Suk Das v. Union Territory of Arunachal Pradesh (1986) that an accused
who cannot afford legal aid may have his or her conviction set aside on socio-economic grounds.

The following are the people eligible for free legal aid under Section 12 of the Act:

 a member of a Scheduled Caste or Scheduled Tribe;

 a victim of trafficking in human beings or beggars as referred to in Article 23 of the Constitution;

 a woman or a child;

 a person with a disability as defined in Section 2(i) of the Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995;

 a person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste
atrocity, flood, drought, earthquake or industrial disaster; or

 an industrial workman; or

 in custody, including custody in a protective home within the meaning of Section 2(g) of the Immoral Traffic
(Prevention) Act, 1956 or in a juvenile home within the meaning of Section 2(j) of the Juvenile Justice Act, 1986 or in
a psychiatric hospital or psychiatric nursing home within the meaning of Section 2(g) of the Mental Health Act,
 1987; or

 in receipt of annual income less than rupees nine thousand or such other higher amount as may be prescribed by the
State Government, if the case is before a court other than the Supreme Court, and less than rupees twelve
thousand or such other higher amount as may be prescribed by the Central Government, if the case is before the
Supreme Court.

Q. LokAdalat under Legal Services Authority Act, 1987

Section 19 of the Act provides for the establishment of LokAdalats. Legal service authorities at all levels, including the central,
state, and district levels, shall hold LokAdalats. LokAdalats serve as an alternate dispute resolution system. Their purpose is to
settle cases that are pending or that have not been heard in the courts. It consists of judicial officers or an authorized person
under the jurisdiction of the state, central government, or local government. Following the conciliation of disputes between the
parties and the agreement of the parties, the award is handed down by conciliators in accordance with Section 21 of the Act.
The award has the same legal effect as a court decision.

Scope of LokAdalat

Unlike the Supreme Court, LokAdalat is extremely broad to incorporate most of the cases pending before it as well as new cases
that will be filed in the near future to be settled. The LokAdalat does not have jurisdiction over cases relating to offences that
cannot be compounded under any law. The LokSabha does not refer such matters to committees without giving the other party
a reasonable opportunity to be heard. The LokAdalat proceeds to resolve any case referred to it and tries to negotiate a
mutually acceptable outcome between the parties involved with the case. Whenever a LokAdalat decides a case before it, it
adopts the most extreme efforts for a trade-off or settlement. The following points elaborate on the scope of LokAdalats:

 If no settlement or compromise is reached by the parties after the LokAdalat passes, no order is given.

 A reference will be sent automatically to the Court that drew up the reference for disposition. Those involved in the
dispute are urged to seek redressal in courts.

 If the terms proposed by the bench do not satisfy the parties, the LokAdalat cannot be forced to compromise or reach
a settlement. Orders from LokAdalats are definitive and restrict the parties.

 An order passed by a judge is a satisfactory means of stopping the proceedings that demand justice.

 LokAdalats have enough powers under the Act to make justice without compromising the quality of their awards. The
LokAdalat’s final order is considered judicial since it is given the status of a decree.

 A Civil Court recognizes it as a form of evidence and is given the power to summon, discover, and get an affirmation.
In the case of P.T. Thomas v. Thomas Job (2005), the Apex Court specifically explained what LokAdalat is. According to the Court,
LokAdalat is an ancient form of adjudicating system that once predominated in India, and its validity has not been questioned
even today. According to Gandhian principles, the term LokAdalat means “People’s Court”. It is an essential component of
alternative dispute resolution. If the dispute is resolved at LokAdala, there is no court fee, and if it is already paid, the fee will be
refunded.

According to the case of B.P. MoideenSevamandir and others v. AM Kutty Hassan (2008), the parties can communicate directly
through their attorneys, which is far more convenient than speaking in a regular courtroom. Because LokAdalats are dynamic,
they are able to balance the interests of both parties and pass orders that both sides find acceptable.

Functions of LokAdalat

The following are the functions of LokAdalat:

 LokAdalat members should be impartial and fair to the parties.

 LokAdalat is responsible for handling pending cases in court. In the case of a LokAdalat settlement, the court fee paid
to the court on the petition will be reimbursed

 When filing a dispute with LokAdalat, you do not have to pay a court fee.

Types of LokAdalat

LokAdalats can take the following forms:

National level LokAdalat
The LokAdalat held at the national level is held regularly throughout the country at the Supreme Court level and taluk level,
where thousands of cases are disposed of. Every month a different topic is discussed in this Adalat.

Permanent LokAdalat

The body is governed by Section 22B of the Act. There is a mandatory pre-litigation mechanism in Permanent LokAdalat that
settles disputes concerning public utilities such as transport, telegraph, postal service, etc. As a result of the case Abdul Hasan
and National Legal Services Authority v. Delhi Vidyut Board and other (1999), the courts directed that permanent LokAdalats be
established.

Permanent LokAdalats are charged with resolving public utility disputes quickly. Therefore, if parties neglect to show up at the
settlement or compromise, then it has a further advantage of choosing the dispute based on merit. In this way, the possibility of
postponement in the resolution of questions is eliminated. Rather than following the formal procedure for resolving disputes, it
is bound to follow the principle of natural justice in order to save time.

Thus, the establishment of the Permanent LokAdalat is fundamental to settling disputes with public utility administrations in a
quick and amicable manner. The awards of the Permanent LokAdalat made under this Act are conclusive and binding. In no case
will it be included as a defence in an original suit, application, or execution proceeding. Such actions are considered
announcements by a civil court. In case the Permanent LokAdalat makes an award, that award will be communicated to a civil
court having nearby jurisdiction, which will then execute the order as if it were a decree made by the particular court.

Permanent LokAdalats and LokAdalats are indistinguishable in their essential features. There have, however, been some
differences. The fundamental difference is that a common LokAdalat must convene periodically and not consistently whereas a
Permanent LokAdalat is a setup that functions like any other court or tribunal.

Despite the Legal Services Authorities Act, 1987, which set up the LokAdalats, the permanent LokAdalats were not established
right away. Through the Amendment Act of 2002, the foundation of the Permanent LokAdalat was enabled.

Mobile LokAdalat

Mobile LokAdalat is a method of settling disputes that travels from place to place. Over 15.14 lakh LokAdalats have been held in
the country as of 30th September 2015, and over 8.25 crore cases have been settled.

Mega LokAdalat

The Mega LokAdalat is an ad hoc body that is constituted at the state level on a single day in all courts.

Daily LokAdalat

On a daily basis, these LokAdalats are held.

Continuous LokAdalat

It is held continuously for a specific number of days.

Jurisdiction of LokAdalats

LokAdalats fall under the jurisdiction of the courts which organize them, thus, they cover any cases heard by that Court under its
jurisdiction. This jurisdiction does not apply to cases regarding offences which are not compoundable by law and the LokAdalats
cannot resolve these cases. The respective courts may accept cases presented to them by parties concurring that the dispute
should be referred to the LokAdalat. The Courts may accept such cases in situations where one party makes an application to the
court for the referral of the case to the LokAdalat and the court might consider that there is a possibility of compromise through
the Act.