Shashank Shekhar | Student of Campus Law Centre (shashankshekhar711@gmail.com)
26th November, 2023
An express mandate to secure Justice, Liberty, Equality and Fraternity is reflected by the Preamble to the Constitution of India. The fundamental idea behind the various ADR mechanisms revolves around these ideals. As the Constitution of India completes 75 years of its adoption[1], it becomes pertinent to dwell upon the constitutional basis of ADR.
Article 14 fortifies the mandate of equality through a widely worded provision, wherein it is implicit that the justice delivery system must view the dissimilarly placed people with the prism of intelligible differentia. Justice through the adversarial system often looks like a distant goal from the eyes of a poor human being. The ADR mechanisms offer the cheapest remedy with great efficiency for an amicable resolution of disputes, thereby making justice meaningful for the weak and the meek.
The institution of Lok Adalat is an embodiment of the equal justice and free legal aid directive provided by Article 39A of the Constitution. While dealing with the questions of free legal aid back then in 1981, Justice Bhagwati quoted the observations made by Justice Blackmun in Jackson v. Bishop[2] that “humane considerations and constitutional requirements are not in this day to be measured by dollar considerations”.[3] It is in this background that the jurisprudence of liberty rights has evolved under the umbrella of Article 21. The judgment in Minerva Mills[4] has settled the law that the harmony between the Fundamental Rights and the Directive Principles cannot be disrupted for giving effect to the later. It therefore becomes imperative that the state must adopt the means, which are in sync with the fundamental rights, to achieve the directives.
Article 51(d) mandates the state to encourage settlement of international disputes through Arbitration. The constitutional mandate regarding Arbitration has been codified through the Arbitration and Conciliation Act, 1996. Despite the various hurdles that plague the Arbitration mechanism, the world of commerce continues to rely on Arbitration for resolution of complex disputes. Party autonomy is the guiding principle in determining the procedure to be followed in an arbitration and the same has proven to be a great incentive driving the people to take recourse to arbitration.[5] The paradigm of Arbitration in India is gradually shifting from the ad-hoc arbitration of contractual nature to the Institutional Arbitration. The arbitrator is required to follow the rules of natural justice while conducting arbitration.[6]
The constitutional basis for mediation can be traced to the Preamble to the Constitution, wherein the ideal of fraternity has been enshrined. To look at mediation as an alternative forum is to undermine its efficacy. While the adversarial litigation focuses on determination of rights and liabilities while adjudicating cases, the mediation goes a step ahead in allowing the parties to have an amicable settlement. In travelling the path from resolution to dissolution of disputes, mediation guarantees to preserve fraternity in the society. The elements of party-centered approach and voluntariness have made Mediation a preferable forum for dispute resolution.[7] The enactment of the Mediation Act, 2023 is a positive step in the direction of ADR. The mandate for pre-litigation mediation in the new Act is a great step towards reducing the heavy backlog of cases.
After a reading of the Constitutional text and its underlying spirit, it can be inferred that the Constitution contains a mandate for amicable resolution of disputes to maintain peace and harmony in the society. While providing for an integrated judiciary, it also gives a clarion call for using all the alternative dispute resolution mechanisms through various provisions. A pro-active step by the state in this regard would ensure that the great ideals enshrined in the Preamble do not remain mere parchments to be viewed in a museum by the future generations. The statutory frameworks pertaining to ADR must be amended to the tune of the constitutional mandate for dealing with the novel kinds of disputes.
[1] The Constitution of India was adopted on 26th November, 1949.
[2] Jackson v. Bishop, 404 F.2d 571
[3] Khatri (2) v. State of Bihar, (1981) 1 SCC 627, para 5
[4] Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625
[5] Centrotrade Minerals & Metal Inc. v. Hindustan Copper Ltd., (2017) 2 SCC 228, para 40
[6] Oil & Natural Gas Commission Ltd. v. New India Civil Erectors Pvt. Ltd., 1996 (Suppl.) Arb LR 426
[7] Afcons Infrastructure Ltd. v. Cherian Varkey Construction Company Pvt. Ltd., (2010) 8 SCC 24
ADR Society, CLC 