THE CULTURE OF ADR IN INDIA

BY
PRAVEEN DALAL*

The aim of this article is to analyse the existence and culture of alternative dispute
resolution mechanism (ADRM) in India. At the same time, a special emphasis has
been laid down upon the online dispute resolution mechanism (ODRM) as applicable
in India. The work is further analysing the use of both ADRM and ODRM for
effectuating and promoting the right to speedy trial as provided by Article 21 of the
Constitution of India.

I. Introduction

Article 21 of the Constitution of India declares in a mandatory tone that no person

shall be deprived of his life or his personal liberty except according to procedure
established by law. The words “life and liberty” are not to be read narrowly in the sense
drearily dictated by dictionaries; they are organic terms to be construed meaningfully.
Further, the procedure mentioned in the Article is not some semblance of a procedure but
it should be “reasonable, fair and just”.1 Thus, the right to speedy trial has been rightly
held to be a part of right to life or personal liberty by the Supreme Court of India.2 The
Supreme Court has allowed Article 21 to stretch its arms as wide as it legitimately can.3
The reason is very simple. This liberal interpretation of Article 21 is to redress that
mental agony, expense and strain which a person proceeded against in criminal law4 has
to undergo and which, coupled with delay, may result in impairing the capability or
ability of the accused to defend himself effectively. Thus, the Supreme Court has held the
right to speedy trial a manifestation of fair, just and reasonable procedure enshrined in
Article 21. A speedy trial encompasses within its sweep all its stages including
investigation, inquiry, trial, appeal, revision and re-trial. In other words, everything
commencing with an accusation and expiring with the final verdict falls within its ambit.

The constitutional philosophy propounded as right to speedy trial has though

grown in age by almost two and a half decades, the goal sought to be achieved is yet a

1
© Praveen Dalal. All rights reserved with the author.
* Arbitrator, Consultant and Advocate, Supreme Court of India.
Mail to: pd37@rediffmail.com/ perry4law@yahoo.com
Contact at: +91 9899169611.

Maneka Gandhi v. U.O.I, AIR 1978 SC 597.

2
Hussainara Khatoon (1) v. Home Secretary, State of Bihar, (1980) 1 SCC 81.
3
Article 21 is a Fundamental Right that can be directly enforced in the Supreme Court under Article 32 of
the Constitution of India. Fundamental Rights, as incorporated in Part III of the Constitution, are different
from Constitutional Rights that cannot be directly enforced U/A 32. All Fundamental Rights are
Constitutional Rights but not vice-versa.
4
This agony is equally present in civil cases where the proceedings are dragged to numerous years before
their completion.
far-off peak. The failures of prosecuting agencies and executive5 to act and to secure
expeditious and speedy trial have persuaded the Supreme Court in devising solutions
which go to the extent of almost enacting by judicial verdict bars of limitation beyond
which the trial shall not proceed and the arm of law shall lose its hold.6 The validity or
justness of those decisions is not the matter to be decided but the seriousness of delay in
the conclusion of criminal and civil matters must be appreciated at the earliest. This
seriousness was appreciated and accepted by many7, including the Constitutional Courts8,
long before. The same has got recognition from the “legislature” as well in the form of
introduction of “Alternative Dispute Resolution” (ADR) Mechanism (ADRM) through
various statutes.

There is a growing awareness among the masses as well regarding ADR and
people are increasingly using the same for getting their disputes settled outside the court.
This will also reduce the “backlog problem’ that India is facing. It is now universally
accredited that ‘Justice delayed is Justice denied’. The existing justice system is not able
to cope up with the ever-increasing burden of civil and criminal litigation. There is
growing awareness that in the majority of cases court action is not an appropriate remedy
for seeking justice. We have to formulate effective Alternative Dispute Resolution
Mechanisms to ease the present burden of judicial functioning. The backlog of cases is
increasing day by day but criticising judiciary for the same is a wrong practice. It must be
noted that the backlog is a product of “inadequate judge population ratio” and the lack of
basic infrastructure. The government has to play a pro-active role in this direction.

II. Legislative efforts in India

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, 1996 and the second one is the incorporation9 of section 89 in the
traditional Civil Procedure Code (CPC).
The adoption of the liberalised 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 legislature10 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 minimise the role of the courts

5
The Executive wing of the Indian Constitution.
6
P.Ramachandra. Rao v. State of Karnataka, (2002) 4 SCC 578.
7
Justice Malimath Committee in 1990 stressed the importance of ADRM to supplement the legal forum
with a view to decrease the burden of traditional courts.
8
The Supreme Court and the High Courts.
9
With effect from 2002 amendment.
10
The Legislative wing of the Indian Constitution.
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.I11, 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.12 All these efforts are aimed at
securing the valuable right to speedy trial to the litigants.

III. The premier mode of ADR

In India, varied ADR mechanisms exist for resolving disputes outside the courts.
The choice of the ADR method largely depends on the nature of the dispute and relation
of the parties. The general ADR methods of resolving disputes are arbitration,
conciliation, mediation, negotiation, consumer forums etc. Thus, there are sufficient ADR
mechanisms in India and the only requirement is their application in true letter and spirit.
Arbitration is the most commonly used method in India for resolving and adjudicating
various disputes.13 The Arbitration and Conciliation Act, 1996 governs the “arbitration
procedures” in India. Section 5 of the Act provides that notwithstanding anything
contained in any other law for the time being in force, in matters governed by Part I
(Sections 2 to 43), no judicial authority shall intervene except where so provided in the
said part. This clearly indicates the legislative intent to minimise supervisory role of
courts to ensure that the intervention of the court is minimal. Section 4 is a deeming
provision, which lays down that where a party proceeds with the arbitration without
stating his objection to non-compliance of any provision of Part I from which the parties
may derogate or any requirement under arbitration agreement, it shall be deemed that he
has waived his right to so object. Section 7 provides that the arbitration agreement shall
be in writing and such an agreement may be in the form of an arbitration clause in a
contract or in the form of a separate agreement. Sub-section (4) of Section 7 provides the
conditions under which a document or exchange of letter or exchange of statement of
claim and defence may amount to an arbitration agreement. Section 11 of the Act
provides for appointment of arbitrators and sub-section (6) thereof empowers the Chief
Justice of the High Court or any person or institution designated by him to make such an
appointment on the happening of certain conditions enumerated in clauses (a), (b) or (c).
Section 16 of the Act is important and it provides that the arbitral tribunal may rule on its
11
Writ Petition No.496 of 2002 decided on 25.10.2002
12
New Law of Arbitration and Conciliation: Recent Elucidation and Interpretation by the Supreme Court;
(2002) 4 Co.LJ.220
13
The other methods like conciliation, mediation, etc are also available but arbitration is generally used to
resolve the disputes.
own jurisdiction, including ruling on any objections with respect to the existence or
authority of the arbitration agreement.14 Thus, the base provided by the Act, if
supplemented by a sound e-governance infrastructure, is sufficient to accommodate the
mandates of online dispute resolution mechanism (ODRM) in India.

IV. Online dispute resolution in India

The swift growth of e-commerce and web site contracts has increased the
potential for conflicts over contracts which have been entered into online. This has
necessitated a solution that is compatible with online matters and is netizens centric. This
challenging task can be achieved by the use of ODRM in India. The use of ODRM to
resolve such e-commerce and web site contracts disputes are crucial for building
consumer confidence and permitting access to justice in an online business environment.
These ODRM are not part and parcel of the traditional dispute resolution machinery
popularly known as “judiciary” but is an alternative and efficacious institution known as
ADRM. Thus, ADR techniques are extra-judicial in character. They can be used in
almost all contentious matters, which are capable of being resolved, under law, by
agreement between the parties. They have been employed with very encouraging results
in several categories of disputes, especially civil, commercial, industrial and family
disputes. These techniques have been shown to work across the full range of business
disputes like banking, contract performance, construction contracts, intellectual property
rights, insurance, joint ventures, partnership differences etc. ADR offers the best solution
in respect of commercial disputes. However, ADR is not intended to supplant altogether
the traditional means of resolving disputes by means of litigation. It only offers
alternatives to litigation. There are a large number of areas like constitutional law and
criminal law where ADR cannot substitute courts. In those situations one has to take
recourse of the existing traditional modes of dispute resolution.

The ADR mechanism can be effectively used to settle online disputes by

modifying it as per the need. It is time effective and cost efficient. It can also overcome
the geographical hurdles. However, there are certain issues revolving around ADR
mechanism like need for personnel with knowledge of IT, ADR and law; technical
concerns; legal sanctity of proceedings; industry support etc. But these hurdles are just a
passing phase. The use of ADR mechanisms for resolving online disputes is increasing
day by day. A number of web-sites provide for some type of online dispute resolution
method like arbitration, negotiation, mediation etc. and also certain conflict management
services. These services fall into the general categories of complaint handling,
negotiation, mediation and arbitration. These services will be in great demand in the
future since the 1996 Act has given paramount importance to “party autonomy” by
accepting the intention of parties as a platform for dispute resolution. Thus, what law will
be applicable will depend on the intention of parties. If the parties have adopted the
mechanism of ODRM then it will definitely apply with necessary minor modifications.
The language used in various sections of the Arbitration Act give options to the parties to
opt for the procedure as per their agreement during the arbitral proceedings before the

14
Shree Subhlaxmi Fabrics Pvt. Ltd. v. Chand Mal Baradia, Civil appeal no: 7653 of 2004.
arbitrator15. Thus, it is high time that we must build a base for not only offline ADRM but
equally ODRM in India. It must be noted that every new project needs time to mature and
become successful. Thus, the success of ADRM and ODRM depends upon a timely and
early base building.

V. E-justice system in India

The judicial response vis-à-vis information technology is positive and technology

friendly.

In M/S SIL Import, USA v M/S Exim Aides Silk Exporters16 the words "notice
in writing", in Section 138 of the Negotiable Instruments Act, were construed to include a
notice by fax. The Supreme Court observed: "A notice envisaged u/s 138 can be sent by
fax. Nowhere is it said that such notice must be sent by registered post or that it should be
dispatched through a messenger. Chapter XVII of the Act, containing sections 138 to 142
was inserted in the Act as per Banking Public Financial Institution and Negotiable
Instruments Laws (Amendment) Act, 1988.Technologiacl advancements like Fax,
Internet, E-mail, etc were on swift progress even before the Bill for the Amendment Act
was discussed by the Parliament. When the legislature contemplated that notice in writing
should be given to the drawer of the cheque, the legislature must be presumed to have
been aware of the modern devices and equipments already in vogue and also in store for
future. If the court were to interpret the words "giving notice in writing" in the section as
restricted to the customary mode of sending notice through postal service or even by
personal delivery, the interpretative process will fail to cope up with the change of time.
So if the notice envisaged in clause (b) of the proviso to section 138 was transmitted by
Fax, it would be compliance with the legal requirement".

Thus the requirement of a written notice will be satisfied if the same is given in
the form of a fax, e-mail etc, using the information technology. It must be noted that a
notice by e-mail can be send instantaneously and its delivery is assured and
acknowledged by a report showing the due delivery of the same to the recipient. This
method is more safe, accurate, economical and lesser time consuming as compared to its
traditional counterpart, popularly known as "Registered A.D".

In Basavaraj R. Patil v State of Karnataka17 the question was whether an

accused need to be physically present in court to answer the questions put to him by the
court whilst recording his statement under section 313. The majority held that the section
had to be considered in the light of the revolutionary changes in technology of
communication and transmission and the marked improvement in the facilities of legal
aid in the country. It was held that it was not necessary that in all cases the accused must
answer by personally remaining present in the court. Once again, the importance of
information technology is apparent. If a person residing in a remote area of South India is
required to appear in the court for giving evidence, then he should not be called from that
15
Praveen Dalal, “Online dispute resolution in India”, http://praveendalal.blogspot.com/2005/11/online-
dispute-resolution-in-india.html
16
AIR 1999 SC 1609.
17
(2000) 8 SCC 740.
place, instead the medium of "video conferencing" should be used. In that case the
requirements of justice are practically harmonised with the ease and comfort of the
witnesses, which can drastically improve the justice delivery system.

In State of Maharashtra v Dr.Praful.B.Desai18 the Supreme Court observed:

"The evidence can be both oral and documentary and electronic records can be produced
as evidence. This means that evidence, even in criminal matters, can also be by way of
electronic records. This would include video conferencing. Video conferencing is an
advancement in science and technology which permits one to see, hear and talk with
someone far away, with the same facility and ease as if he is present before you i.e. in
your presence. Thus, it is clear that so long as the accused and/or his pleader are present
when evidence is recorded by video conferencing that evidence is recorded in the
"presence" of the accused and would thus fully meet the requirements of section 273,
Criminal Procedure Code. Recording of such evidence would be as per "procedure
established by law". The advancement of science and technology is such that now it is
possible to set up video conferencing equipments in the court itself. In that case evidence
would be recorded by the magistrate or under his dictation in the open court. To this
method there is however a drawback. As the witness is not in the court there may be
difficulties if commits contempt of court or perjures himself. Therefore as a matter of
prudence evidence by video conferencing in open court should be only if the witness is in
a country which has an extradition treaty with India and under whose laws contempt of
court and perjury are also punishable".

This judgment of the Supreme Court is a landmark judgment as it has the

potential to seek help of those witnesses who are crucial for rendering the complete
justice but who cannot come due to "territorial distances" or even due to fear, expenses,
old age, etc. The Courts in India have the power to maintain anonymity of the witnesses
to protect them from threats and harm and the use of information technology is the safest
bet for the same. The testimony of a witness can be recorded electronically the access to
which can be legitimately and lawfully denied by the Courts to meet the ends of justice.

The above discussion shows that the judiciary in India is not only aware of the
advantages of information technology but is actively and positively using it in the
administration of justice, particularly the criminal justice. Thus, it can be safely
concluded that the "E-justice system" has found its existence in India. It is not at all
absurd to suggest that ODRM will also fine its place in the Indian legal system very soon.

VI. Conclusion

The right to speedy trial is not a fact or fiction but a “Constitutional reality” and it
has to be given its due respect. The courts and the legislature have already accepted it as
one of the medium of reducing the increasing workloads on the courts. The same is also
gaining popularity among the masses due to its advantages. The management and
maintaining of a welfare state is no doubt the task of the three sovereign organs of the
Constitution and speedy disposal of cases is also one of the tasks on their agenda. The
18
2003 (3) SCALE 554.
same, however, cannot see the light of the day unless citizens also “participate” in that
movement. The citizens can help in the achievements of these benign objectives by
restraining themselves while invoking jurisdictions of the “traditional courts” where the
matter in dispute can be conveniently and economically taken care of by ADR
mechanisms. We need “private initiatives” for not only establishment of ADR facilities in
India but equally a “liberal use” of the same by the citizens and netizens. It must be noted
that an ADR mechanism cannot be effective unless it is amalgamated and merged with
the information technology. The benefits of online dispute resolution mechanism are far
more and convincing enough to switch to that method. All that is needed is initiatives of
private persons and institutions for the facilitation of their maximum and proper use. It
cannot be doubted that ADRM is a much better platform to redress grievances of civil
nature. This is more so when ODRM is used because it is not only instantaneous but
equally cheap and convenient. The companies and individuals engaged in the business of
e-commerce and web dealings must avail its services as soon as possible. In the future
every “electronic dealing” will inevitably carry an “ODRM clause” and that situation
requires a base of qualified “techno-legal” experts who can make the “right to speedy
trial” a “Constitutional reality”.