ALTERNATIVE DISPUTE RESOLUTION PROJECT

ROLE OF THE JUDICIARY IN PROMOTING ADR

SUBMITTED BY:

NEHMAT SETHI

ROLL NO. 1445

5TH YEAR (9TH Sem)

B.A. LLB

ARMY INSTITUTE OF LAW

1
 TABLE OF CONTENTS

Contents
INDEX OF AUTHORITIES...................................................................................................... 3

Cases ...................................................................................................................................... 3

Statutes ................................................................................................................................... 3

INTRODUCTION ..................................................................................................................... 4

NEED FOR ADR ....................................................................................................................... 5

POLICY CONSIDERATIONS FACTORED INTO JUDICIAL DECISION MAKING | A

PRO ADR TREND .................................................................................................................... 8

INFORMATION DISSEMINATION THROUGH JUDGES | CREATING AWARENESS &

INSTILLING CONFIDENCE ................................................................................................. 12

CASE MANAGEMENT & REFERENCE TO ADR.............................................................. 14

CONCLUSION ........................................................................................................................ 16

BIBILIOGRAPHY .................................................................................................................. 17

References ............................................................................................................................ 17

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 INDEX OF AUTHORITIES

List of Cases

1. Afcons Infrastructure Limited v. Cherian Varkey Construction Company, Civil Appeal No.
6000 of 2010.
2. BALCO v. Kaiser Aluminium, Civil Appeal No. 7019 of 2005.

3. Bhatia International v. Bulk Trading SA, (2002) 4 SCC 105.

4. Chhotelal v. Kamala Devi, AIR 1967 Pat 269.

5. Sakri v. Chhanwarlal, AIR 1975 Raj 134.

6. Sangeetha v. Suresh Kumar, JT 2000(8) SC 521.

7. TDM Infrastructure Private Limited v. UE Development India Private Limited, (2008) 14

SCC 271.

8. ONGC v. Collector of Central Excise, 1992 Supp2 SCC 432, [ONGC I].

9. ONGC v. Collector of Central Excise, 1995 Supp4 SCC 541 [ONGC II].

Statutes
1. The Arbitration and Conciliation Act, 1996.

2. Code of Civil Procedure, 1908.

3
 INTRODUCTION
Alternative Dispute Resolution (ADR) refers to a set of mechanisms which enable effective,
efficient dispute resolution outside of courtroom litigation. ADR is aimed at reducing
backlog, delay, conserving judicial resource and providing effective, accessible justice for
litigants. There are a considerable set of advantages of adopting ADR methods, as against a
negligible set of disadvantages, and the subsisting circumstances reveal that ADR methods
are the need of the hour in the Indian context. The reasons behind the need for the adoption
and proliferation of ADR methods in the Indian context are briefly explored in the beginning
sections of this paper.

This paper aims to analyse and examine the role of the judiciary in promoting these ADR
methods. The exercise will attempt to look at the various methods which the judiciary
espouses to further the cause of ADR mechanisms. The judiciary’s support towards the
promotion of ADR methods extends to beyond the mere referring of cases and disputes of a
certain character to these channels for resolution. The researcher has attempted to briefly
outline in addition to this primary method, the other methods adopted by the judiciary to lend
support to the cause.

Whether such promotion is normatively desirable is an issue and a question that is beyond the
scope of this paper, and concomitantly therefore debate and analyses over the nature of such
promotion is also beyond the scope of this paper. Some have argued that excessive and
mechanical promotion of such methods in matters of jurisprudential importance must be
avoided as it may adversely impact the interests of the nation and often causes undesirable
ramifications on the social and democratic fabric.1

The plurality of methods adopted by the judiciary towards promoting ADR is only reflective
and indicative of the favourable judicial temperament in this regard. Often the judiciary, in
addition to legislative wisdom, evaluates several policy considerations while grappling with
issues pertaining to ADR. Supplanting legislative prescriptions on occasion, the judiciary has
played a key role in the development of ADR in the Indian context.

1
M. Shridhar, The Initiative of the Supreme Court of India in Alternative Dispute Resolution: A Study of Two
Cases, 3(2), THE ICFAI JOURNAL OF ALTERNATIVE DISPUTE RESOLUTION, (2004).

4
 NEED FOR ADR
Justice R. C. Lahoti believed that the Indian judicial machinery suffered from certain inherent
weaknesses and drawbacks and that these deficiencies led to circumstances in which a need
was felt for the incorporation of effective methods to strengthen the institutional processes.
While making this claim, the former Chief Justice emphasized the significance of ADR
mechanisms; as such mechanisms help significantly in settling and resolving disputes while
simultaneously saving time, energy, and resource for numerous litigants.2

A prominent symptom of the failure of the Indian judicial machinery is the inability of the
machinery to deliver justice in a timely manner. The enormous pendency of cases and the
concurrent inordinate delay make it imperative to have effective ADR mechanisms in place.3
ADR methods are not only quicker but are also significantly more informal, and therefore
more user friendly than courts.4 Furthermore, the adoption of ADR methods leads to a
decrease in the workload experienced by the overburdened and understaffed courts of the
country, while simultaneously affording parties to a dispute the opportunity of accessing
more economical and effective justice delivery mechanisms.5

LEGISLATIVE EFFORTS IN INDIA

In Sitanna v. Viranna,6 the Privy Council affirmed the decision of the Panchayat and Sir John

Wallis observed that the reference to a village panchayat is the time-honoured method of

deciding disputes. It avoids protracted litigation and is based on the ground realities verified

in person by the adjudicators and the award is fair and honest settlement of doubtful claims

based on legal and moral grounds.

The legislative sensitivity towards providing a speedy and efficacious justice in India is

mainly reflected in two enactments. The first one is the Arbitration and Conciliation Act,

2
Y. F. Jayakumar, Conciliation and Family Dispute Resolution in Indian Legal System, 4(1), THE ICFAI
JOURNAL OF ALTERNATIVE DISPUTE RESOLUTION, (2005). See, R. C. Lahoti, Strengthening of the Judicial
System My Priority, THE HINDU, 25, (Hyderabad edn., May 29, 2004).
3
G. Singh, Mediation as a Dispute Settlement Mechanism in India, 5(1), THE ICFAI JOURNAL OF ALTERNATIVE
DISPUTE RESOLUTION, (2006). See also, Jayakumar, supra note 2.
4
S. B. Sinha, ADR and Access to Justice: Issues and Perspectives, TAMIL NADU STATE JUDICIAL ACADEMY,
available at http://www.hcmadras.tn.nic.in/jacademy/article/ADR-%20SBSinha.pdf, (Last visited on Sept 5,
2018).
5
Ibid.
6
AIR 1934 SC 105.

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1996 and the second one is the incorporation of section 89 in the traditional Civil Procedure

Code (CPC).

The adoption of the liberalized economic policy by India in 1991 has paved way for

integration of Indian economy with global economy. This resulted in the enactment of the

Arbitration and Conciliation Act, 1996 (new Act) by the legislature as India had to comply

with well-accepted International norms. It superseded the obsolete and cumbersome

Arbitration Act, 1940. The new Act has made radical and uplifting changes in the law of

arbitration and has introduced new concepts like conciliation to curb delays and bring about

speedier settlement of commercial disputes. The new Act has been codified on the lines of the

Model Law on International Commercial Arbitration as adopted by the United Nations

Commission on International Trade Law (UNCITRAL). One of the most commendable

objects of the new Act is to minimize the role of the courts in the arbitration process. The

Arbitration and Conciliation Act, 1996 laid down the minimum standards, which are required

for an effective ADRM.

Further, the recent amendments of the CPC will give a boost to ADR. Section 89 (1) of CPC

deals with the settlement of disputes outside the court. It provides that where it appears to the

court that there exist elements, which may be acceptable to the parties, the court may

formulate the terms of a possible settlement and refer the same for arbitration, conciliation,

mediation or judicial settlement. While upholding the validity of the CPC amendments in

Salem Advocate Bar Association v. U.O.I, the Supreme Court had directed the constitution of

an expert committee to formulate the manner in which section 89 and other provisions

introduced in CPC have to be brought into operation. The Court also directed to devise a

model case management formula as well as rules and regulations, which should be followed

while taking recourse to alternative dispute redressal referred to in Section 89 of CPC. All

these efforts are aimed at securing the valuable right to speedy trial to the litigants.

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ADR was at one point of time considered to be a voluntary act on the apart of the parties

which has obtained statutory recognition in terms of CPC Amendment Act, 1999, Arbitration

and Conciliation Act, 1996, Legal Services Authorities Act, 1997 and Legal Services

Authorities (Amendment) Act, 2002. The access to justice is a human right and fair trial is

also a human right. In India, it is a Constitutional obligation in terms of Art.14 and 21.

Recourse to ADR as a means to have access to justice may, therefore, have to be considered

as a human right problem. Considered in that context the judiciary will have an important role

to play.

The Supreme Court of India has also suggested making ADR as ‘a part of a package system

designed to meet the needs of the consumers of justice’. The pressure on the judiciary due to

large number of pending cases has always been a matter of concern as that being an obvious

cause of delay. The culture of establishment of special courts and tribunals has been pointed

out by the SC of India in number of cases. The rationale for such an establishment ostensibly

was speedy and efficacious disposal of certain types of offences.

Industrial Disputes Act, 1947 provides the provision both for conciliation and arbitration for

the purpose of settlement of disputes. In Rajasthan State Road Transport Corporation v.

Krishna Kant,7 the Supreme Court observed: “The policy of law emerging from Industrial

Disputes Act and its sister enactments is to provide an alternative dispute-resolution

mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and

unencumbered by the plethora of procedural laws and appeals upon appeals and revisions

applicable to civil courts. Indeed, the powers of the courts and tribunals under the Industrial

Disputes Act are far more extensive in the sense that they can grant such relief as they think

appropriate in the circumstances for putting an end to an industrial dispute.”

7
AIR 1995 SC 1715.

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Section 23(2) of the Hindu Marriage Act, 1955 mandates the duty on the court that before

granting relief under this Act, the Court shall in the first instance; make an endeavour to bring

about reconciliation between the parties, where it is possible according to nature and

circumstances of the case. For the purpose of reconciliation, the Court may adjourn the

proceeding for a reasonable period and refer the matter to person nominated by court or

parties with the direction to report to the court as to the result of the reconciliation. [Section

23(3) of the Act].

The Family Court Act, 1984 was enacted to provide for the establishment of Family Courts

with a view to promote conciliation in, and secure speedy settlement of, disputes relating to

marriage and family affairs and for matter connected therewith by adopting an approach

radically different from the ordinary civil proceedings. Section 9 of the Family Courts Act,

1984 lays down the duty of the family Court to assist and persuade the parties, at first

instance, in arriving at a settlement in respect of subject matter. The Family Court has also

been conferred with the power to adjourn the proceedings for any reasonable period to enable

attempts to be made to effect settlement if there is a reasonable possibility.

POLICY CONSIDERATIONS FACTORED INTO JUDICIAL

DECISION MAKING | A PRO ADR TREND
The judiciary, on various occasions has helped bolster the ADR cause through indirect
methods. An example of these methods is the policy considerations which the judiciary uses
as a guiding tool in decision making. On certain crucial issues, it can be reasonably inferred,
that the judiciary renders decisions which encourage and promote ADR methods at a policy
level itself. Certain examples would help illustrate and substantiate the claim.

8
In Bhatia International v. Bulk Trading SA (“Bhatia International”),8 among other things, the
Supreme Court laid down that the Indian judiciary was empowered to order interim measures
even in arbitrations which were seated in foreign countries. Quite obviously, the decision was
met with substantial criticism, primarily because it vehemently went against the freedom of
international arbitration from domestic Indian judicial involvement. In response to this set of
circumstances, with a view to rectify the reputation of being an “arbitration-unfriendly”
jurisdiction, the Supreme Court later adopted a pro-arbitration policy and overruled Bhatia
International9 by the landmark decision rendered in BALCO v. Kaiser Aluminium
(“BALCO”).10

By overruling Bhatia International11 in BALCO12 the Supreme Court clarified and explained
that territoriality was the primary premise underlying the operation of the Arbitration and
Conciliation Act13 and that therefore Indian courts would be precluded from asserting
jurisdiction, even in the form of interim relief orders, in offshore and international
arbitrations. Further, the Supreme Court held the Indian courts would not possess jurisdiction
to intervene in or modify, or set aside awards of arbitration tribunals in respect of arbitrations
seated outside India. By doing so the Supreme Court has unequivocally indicated the pro-
arbitration approach that is going to characterise judicial temperament in this regard.14

It is amply evident that the decision in BALCO was aimed at remedying the inconveniences
that were caused by preceding decisions like that of Bhatia International. A decision guided
by policy considerations, the Supreme Court’s verdict in BALCO was aimed at promoting
ADR methods and simultaneously alleviating the concerns of the international business and
legal communities alike in respect of Indian judicial interference in international arbitration

8
Bhatia International v. Bulk Trading SA, (2002) 4 SCC 105.
9
Ibid.
10
BALCO v. Kaiser Aluminium, Civil Appeal No. 7019 of 2005. See, P. Nair, On the road to becoming
arbitration friendly: The decision of the Indian Supreme Court in BALCO v. Kaiser Aluminium, 1(1), LCIA
INDIA NEWS, (2012).
11
Supra at note 6.
12
Supra at note 8.
13
The Arbitration and Conciliation Act, 1996.
14
Nair, supra note 8.

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proceedings. No doubt it does not address all the challenges seen with reference to arbitration
- for example, the rule laid down that in the Indian context that Indian parties cannot contract
out of Indian substantive law even if the contract provides for a foreign arbitration seat. 15 But
that notwithstanding, the decision certainly has been a great start in the pro-arbitration
direction.16

The landmark decision in Afcons Infrastructure v. Cherian Varkey Construction Company17

(“Afcons”) serves as yet another example of the judiciary rendering decisions aimed at
promoting the ADR movement. The 2010 Supreme Court decision considered certain
rigorously contested issues revolving around the requirement of consent among parties as a
pre-requisite for reference to arbitration under Section 89 of the Code of Civil Procedure. 18
While addressing this issue and ruling that prior consent is necessary in the context of
reference to arbitration but not in cases of reference to other ADR mechanisms, the Supreme
Court simultaneously observed that Section 89 of the Code, a significant provision in the
context of ADR, was inconveniently drafted. The drafting of the provision, in the opinion of
the apex court required substantial correction.19

Section 89, clumsily drafted, mixes up definitions of various ADR mechanisms, and
expressly imposes an obligation upon the courts that not only tremendously overburdens the
courts, but also defeats the very purpose of the provision in question. Section 89 requires
judges of trial courts, in cases wherein the judge believes that there may be a chance that the
parties could arrive at a settlement, to formulate terms of such settlement and forward these
terms to the parties for consideration and observation. After such consideration and making
of observations, the parties are to return the formulated settlement terms to the judge for

15
TDM Infrastructure Private Limited v. UE Development India Private Limited, (2008) 14 SCC 271.
16
A. Chugh, The Bharat Aluminium Case: The Indian Supreme Court Ushers in New Era, KLUWER
ARBITRATION BLOG, available at http://kluwerarbitrationblog.com/blog/2012/09/26/the-bharat-aluminium-case-
the-indian-supreme-court-ushers-in-a-new-era/, (Last visited on May 5, 2014). See also, Nair, supra note 8.
17
Afcons Infrastructure Limited v. Cherian Varkey Construction Company, Civil Appeal No. 6000 of 2010.
18
Sec. 89, Code of Civil Procedure, 1908.
19
Afcons Infrastructure Limited v. Cherian Varkey Construction Company, Civil Appeal No. 6000 of 2010.

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further reconsideration, and then the judge is to reframe these settlement terms before
referring the dispute to ADR methods mentioned in the provision.

Clearly, the provision imposes an unnecessary, redundant and cyclic obligation on the courts
which defeats the very purpose of the provision. Invoking doctrines of purposive
interpretation and other canons of statutory interpretation, the Supreme Court observed that
the only practicable way to correct the deficiencies and absurdities of Section 89 was to
comprehensively reformulate the provision. The Court did away with the inconvenient and
redundant requirement of framing and reframing possible terms of settlement. The Supreme
Court redefined the various ADR methods, outlined the procedure to be adopted in cases
which fell under Section 89 and provided numerous exhaustive guidelines in this regard.20

Supreme Court started issuing various directions as so as to see that the public sector
undertakings of the Central Govt. and their counterparts in the States should not fight their
litigation in court by spending money on fees on counsel, court fees, procedural expenses and
waiting public time.21

As was the case in the BALCO judgement, the Afcons decision is another such decision which
paves the way for a more ADR friendly legal environment and statutory framework. The
judiciary has systematically, with policy-based objectives in mind, rendered decisions which
clear several hurdles and statutory impediments which have and may come in the way of the
growth of the ADR movement, and as such thereby has been bolstering and promoting the
cause through rendering such decisions and creating a favourable legal climate.

22
In ONGC v. Collector of Central Excise , there was a dispute between the public sector
undertaking and Government of India involving principles to be examined at the highest
governmental level. Court held it should not be brought before the Court wasting public
money any time.

In ONGC v. Collector of Central Excise 23, dispute was between government department and
PSU. Report was submitted by cabinet secretary pursuant to Supreme Court order indicating
that an instruction has been issued to all departments. It was held that public undertaking to

20
Afcons Infrastructure Limited v. Cherian Varkey Construction Company, Civil Appeal No. 6000 of 2010.
21
see Oil and Natural Gas Commission v. Collector of Central Excise, 1992 Supp2 SCC 432, Oil and Natural
Gas Commission v. Collector of Central Excise, 1995 Supp4 SCC 541 and Chief Conservator of Forests v.
Collector, (2003) 3 SCC 472.
22
1992 Supp2 SCC 432, (ONGC I).
23
1995 Supp4 SCC 541, (ONGC II).

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resolve the disputes amicably by mutual consultation in or through or good offices
empowered agencies of govt. or arbitration avoiding litigation. Government of India directed
to constitute a committee consisting of representatives of different departments. To monitor
such disputes and to ensure that no litigation comes to court or tribunal without the
Committee’s prior examination and clearance. The order was directed to communicate to
every High Court for information to all subordinate courts.

In Chief Conservator of Forests v. Collector24 were relied on and it was said that state/union
govt. must evolve a mechanism for resolving interdepartmental controversies- disputes
between department of Government cannot be contested in court.

In Punjab & Sind Bank v. Allahabad Bank,25 it was held that the direction of the Supreme
Court in ONGC III146 to the government to setup committee to monitor disputes between
government departments and public sector undertakings make it clear that the machinery
contemplated is only to ensure that no litigation comes to court without the parties having had
an opportunity of conciliation before an in-house committee.

INFORMATION DISSEMINATION THROUGH JUDGES |

CREATING AWARENESS & INSTILLING CONFIDENCE
Judges have used alternate channels to promote the cause of ADR methods. While
emphasizing the issues plaguing the judiciary in the form of enormous backlog and pendency,
judges have, through formal and informal channels promoted ADR mechanisms. Justice
Sinha of the Supreme Court in his paper on ADR methods encouraged the use of such
methods citing the various advantages that such methods offer, including that of delivering
speedy and effective justice to litigants and simultaneously reducing court case burden. In his
paper, the Judge also explained that ADR methods can be best implemented if there was an

24
(2003) 3 SCC 472 ONGC I AND II.
25
(2006) (3) SCALE 557.

12
active and mandatory reference of cases to such methods by the judiciary, and effective case
management by judges.26

Justice Khanwilkar of the Bombay High Court in his paper on ADR methods outlines the
importance and benefits of ADR methods and proposes that in order to further the benefits
provided by such methods of dispute resolution it is imperative that in addition to providing
speedy justice through these channels, efforts are taken to ensure that the quality of justice is
also remains uncompromised. Further, to promote ADR methods, the Bombay High Court
has effected a unique form of case management. So not only does the High Court insist and
promote ADR methods by referencing cases to such mechanisms, but it also assures the
parties that in the event settlement by these ADR methods fails for any reason the case will
immediately be taken up for hearing by the court.27

Justice Chandrachud of the Bombay High Court has formulated certain strategies aimed and
developing the efficacy of mediation as an ADR tool and presented these strategies publicly
at conferences28 with a view to have such information percolate through various channels and
consequently enhance the quality, efficacy, and efficiency of mediation practice. Other
informal channels have also been utilised by senior members of the judiciary to promote the
cause of ADR.

The consequence of such information dissemination is that ADR mechanisms now enjoy the
endorsement of the judiciary and the judiciary regularly refers matters for resolution to such
channels. It is imperative that such ADR methods enjoy judicial backing in order to promote
confidence in such a system.29 Further, courts must take efforts to see to it that recourse is
taken to these ADR methods before litigation is invoked, specifically, negotiation and
conciliation before arbitration.30 A strenuous challenge that ADR methods face is the lack of
awareness and confidence in such systems. This lack of awareness and confidence can be
remedied by the judiciary’s consistent endorsement and encouragement.31

26
Sinha, supra note 4.
27
A. M. Khanwilkar, Need to Revitalise ADR Mechanism, 4(3), NYAYADEEP, (2005).
28
D. Y. Chandrachud, Mediation – Realizing the Potential and Designing Implementation Strategies, presented
at, Law Commission of India International Conference on ADR and Case Management, (New Delhi, May 3 to
May 4, 2003).
29
Singh, supra note 3.
30
Singh, supra note 3. See also, F. S. Nariman, Arbitration and ADR in India, in P. C. Rao and W. Sheffield,
ALTERNATIVE DISPUTE RESOLUTION: WHAT IT IS AND HOW IT WORKS, (1st edn., 1997).
31
Ibid.

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 CASE MANAGEMENT & REFERENCE TO ADR
A long list of statutory provisions incorporated by the legislature direct the courts, and
imposes a duty on the courts to take an effort towards resolving a dispute before them by
reference to ADR mechanism.32 Notwithstanding such legislative efforts, the judiciary has
suo-moto gone ahead and laid down several guidelines promoting the use of such ADR
methods for dispute resolution.

The Supreme Court in the Afcons decision laid down certain guidelines which would help
courts determine broad categories of disputes which could be referred to ADR methods for
resolution before trial. These include disputes which are related to trade and commerce,
money disputes, disputes of specific performance, disputes between builders and customers,
bankers and customers, cases pertaining to tortious liability, disputes between partners,
disputes relating to family law and so on.

The judiciary in consonance with legislative provisions and intent makes a significant and
sincere effort to refer matters that come before it to ADR mechanisms for resolution. As has
been seen in the Bombay High Court, the court actively promotes these methods by assuring
parties that in the event of failure of such ADR methods to resolve the dispute, the matter will
immediately be taken up for hearing by the court.33

Several statutory provisions urge to courts to endeavour to have the dispute before it resolved
through ADR mechanisms.34 In several cases, especially in matters pertaining to family law,
the judiciary has actively promoted the ADR mechanisms by referring these matters to be
resolved through such channels. In Sangeetha v. Suresh Kumar35 in a divorce and
maintenance dispute between a man and wife, the Supreme Court was of the opinion that

32
See, Jayakumar, supra note 2.
33
Khanwilkar, supra note 36.
34
See, Jayakumar, supra note 2.
35
Sangeetha v. Suresh Kumar, JT 2000(8) SC 521.

14
there was a possibility that the dispute could be resolved through means of reconciliation, and
accordingly referred the matter to conciliation and adjourned the proceedings.36

In Sakri v. Chhanwarlal37 the Rajasthan High Court remarked that the courts should
endeavour to bring about conciliation at the beginning of the proceedings, but in the event
that such efforts are not made at the beginning of proceedings, such efforts should be made
before granting relief. The efforts must be a reasonable human effort and should be made in
every case.38 Similarly, the Patna High Court in Chhotelal v. Kamala Devi39 observed that
before usual proceedings, the courts should endeavour to bring about conciliation and that
such effort must be made even if the advocates for the parties submit that such reconciliation
is not possible.40

The judiciary’s endorsement of such ADR methods is of tremendous significance and has
serious implications on the success of such methods. A significant impetus given to the ADR
movement by the judiciary was the 1984 experiment conducted by the Himachal Pradesh
High Court. Facing rising arrears in subordinate courts, the High Court implemented a project
which aimed at disposal of pending cases by mandating compulsory pre-trial conciliation in
new cases being brought before the courts. The experiment was on the lines of a similar
experiment conducted in Canada and was tremendously successful and commended,41 and it
was recommended that other states follow the Himachal Project in their courts as well.42

36
Sangeetha v. Suresh Kumar, JT 2000(8) SC 521. See, Jayakumar, supra note 2.
37
Sakri v. Chhanwarlal, AIR 1975 Raj 134.
38
Ibid. See, Jayakumar, supra note 2.
39
Chhotelal v. Kamala Devi, AIR 1967 Pat 269.
40
Ibid. See, Jayakumar, supra note 2.
41
Singh, supra note 3. The experiment was commended in the Law Commission of India 77 th and 13th Reports;
the Conference of Chief Ministers and the Chief Justices in their resolution in December, 1993; and the Calcutta
Resolution of the Law Ministers and Law Secretaries Meeting in 1994.
42
Singh, supra note 3.

15
 CONCLUSION
The role of the judiciary as far as promoting ADR is concerned is multidimensional. Through
the course of this paper, the different approaches to promoting ADR that the judiciary has
adopted have been examined and analysed. The need for the proliferation of ADR methods is
evident given the massive pendency and backlog of cases. In order to help reduce the burden
on the court system and to provide speedy, effective and efficient justice it is essential that
sustainable and robust ADR mechanisms are put into place.

On several occasions certain decisions rendered by the judiciary in the context of ADR seem
to be guided by policy considerations and seem to aimed at promoting ADR at a policy level.
The judiciary has repeatedly ironed out any impediments that may come in the way of ADR
movement. Whether in the international context, or domestic, the judiciary seems to be
handing out decisions which overcome legal hurdles, statutory in character or otherwise.
Some of these decisions even have larger implications in the context of international
commerce and business.

Judicial promotion of ADR has also been extended to other channels, somewhat epistemic in
nature. Senior members of the judiciary have authored several papers and articles delineating
the advantages of such methods of dispute resolution. These papers also often revolve around
strategies to help further the usage of these methods of dispute resolution more effectively.
Not only does such judicial endorsement create awareness of such methods, but it also
simultaneously instils the confidence of people in such methods of dispute resolution.

The judiciary has through a number of decisions laid down that cases must be referred to
ADR methods on a regular basis and to this end the courts shall endeavour to promote the
resolution of disputes that come before them through these methods. In fact, in certain cases
the courts have assured litigants that in the event of failure of such mechanisms, the matter
will be taken up immediately by the courts. It is amply evident that the judiciary has a
predominantly favourable attitude towards ADR methods, and through numerous channels
attempts to promote the cause of ADR.

16
 BIBILIOGRAPHY

References

1. A. Chugh, The Bharat Aluminium Case: The Indian Supreme Court Ushers in New Era,
KLUWER ARBITRATION BLOG, available at
http://kluwerarbitrationblog.com/blog/2012/09/26/the-bharat-aluminium-case-the-indian-
supreme-court-ushers-in-a-new-era/, (Last visited on May 5, 2014).

2. A. M. Khanwilkar, Need to Revitalise ADR Mechanism, 4(3), NYAYADEEP, (2005).

3. D. Y. Chandrachud, Mediation – Realizing the Potential and Designing Implementation

Strategies, presented at, Law Commission of India International Conference on ADR and Case
Management, (New Delhi, May 3 to May 4, 2003).

4. F. S. Nariman, Arbitration and ADR in India, in P. C. Rao and W. Sheffield, ALTERNATIVE

DISPUTE RESOLUTION: WHAT IT IS AND HOW IT WORKS, (1st edn., 1997).

5. G. Singh, Mediation as a Dispute Settlement Mechanism in India, 5(1), THE ICFAI JOURNAL
OF ALTERNATIVE DISPUTE RESOLUTION, (2006).

6. M. Shridhar, The Initiative of the Supreme Court of India in Alternative Dispute Resolution: A
Study of Two Cases, 3(2), THE ICFAI JOURNAL OF ALTERNATIVE DISPUTE RESOLUTION, (2004).

7. P. Nair, On the road to becoming arbitration friendly: The decision of the Indian Supreme
Court in BALCO v. Kaiser Aluminium, 1(1), LCIA INDIA NEWS, (2012).

8. R. C. Lahoti, Strengthening of the Judicial System My Priority, THE HINDU, 25, (Hyderabad
edn., May 29, 2004).

9. S. B. Sinha, ADR and Access to Justice: Issues and Perspectives, TAMIL NADU STATE
JUDICIAL ACADEMY, available at http://www.hcmadras.tn.nic.in/jacademy/article/ADR-
%20SBSinha.pdf, (Last visited on May 5, 2014).

10. Y. F. Jayakumar, Conciliation and Family Dispute Resolution in Indian Legal System, 4(1),
THE ICFAI JOURNAL OF ALTERNATIVE DISPUTE RESOLUTION, (2005).

17