ARTICLE

Pendency of Cases: A Bar On Right to Access of Justice

Shubham Singh*
Shobhan Srivastava**

INTRODUCTION
The term access to justice cannot be defined precisely as it has a very wide scope. The scope of
this phrase is intertwined with justice. Therefore On its turn, the definition of justice depends
on the context it is being used. For every society the term has a different significance. The
notion of justice evokes the cognition of the rule of law, of the resolution of conflicts, of
institutions that make law and of those who enforce it. It expresses fairness and the implicit
recognition of the principle of equality.1However, a concept common to all definitions of justice
is its intrinsic nexus with the dispute resolution because the primary goal of a dispute resolution
mechanism is to do justice. The dispute resolution mechanism chosen by a society reflects the
concept of justice in that society2. Judiciary plays the major role in this therefore for securing
right of access to justice in a society there needs to be a proper balance between the speed and
efficiency of justice dispensation mechanisms. Pendency of cases in courts puts bar on this
mechanism and hence prohibits Access to Justice in society. Hence time has come to think the
strategies to clear judicial arrears and to guard right to access to justice by efficient and effective
resolution of disputes.Time has come for ustothink solutions to reduce the pendency of cases in
various courts in the country.The model of judiciary followed in India was designed during
1800's. During that period, only a small section of the population relied on English modelled

1Rawl, J., A Theory of Justice, Cambridge, Cambridge University press, Edition 1997,
at 11
2International Journal of Humanities and Social Science Invention,Access to justice:
a critical analysis of alternate dispute resolution mechanisms in India Volume 2
Issue 5 PP.46.

courts for justice. A research paper by PRS Legislative Research3 places the current pendency of
cases as of 30th September 2010 at 32 Billion cases pending in various courts in India, of which
28 Billion cases are in lower courts and 4.2 billion cases are in High Courts and 55000 cases are
pending in Supreme Court. Approximately 9% of these cases are pending before courts for over
10 years and 24% are pending for over 5 years. Statistics also shows that Pendency has increased
by 148% in the Supreme Court, 53% in High Courts and 36% in subordinate courts in the last 10
years. The reasons given by the Government for this increase include increase in institution of
fresh cases, inadequate number of judges and vacancies, inadequate physical infrastructure and
staff and frequent adjournments.4Alternative Dispute Resolution is the answer to this need of our
Indian Society. ADR includes dispute resolution processes and techniques that act as a means for
disagreeing parties to come to an agreement short of litigation. It is a collective term for the ways
that parties can settle disputes, with or without the help of a third party.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.E.g. Mediation in matrimonial disputes. The rising
popularity of ADR can be explained by the decreasing 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.5 A healthy democracy should have proper mechanisms to settle
disputes between citizens both formally and informally. Alternative Dispute Resolution
Mechanisms should be seen as complimentary and not as a substitute for formal judicial process,
for it has to be understood that human attitudes and thought processes are so diverse and beyond
taming, through any normal process. There are many people who need and settles only for an
authoritarian intervention for their disputes, and on the other hand there are also others, who
could not be convinced about the relative injustice of their stands even after authoritarian judicial
3(http://www.prsindia.org/administrator/uploads/general/1310014291~~Vital
%20Stats%20-%20Pendency %20of%20Cases%20in%20Indian%20Courts
%2004Jul11%20v5%20-%20Revised.pdf accessed on 26/10/2011.
4LokSabhaUnstarred Question No. 2569 (November 25, 2010)
5Totaro, Gianna., "Avoid court at all costs" The Australian Financial Review Nov. 14
2008.

pronouncements. In order to cater to both these sections of the population, an effective

combination of both conventional and alternate dispute resolution mechanisms need to be
employed. This could be made possible by strengthening the existing ARD mechanisms, as well
as by find new ADR mechanisms, to work supplemental to the conventional dispute resolution
mechanism of courts.
CONVENTIONAL METHODS OF ACCESS TO JUSTICE
The conventional method of access to justice is the recourse to formal adjudication mechanisms
as provided by the State, i.e. approaching the courts. The present legal system in India is based
on British legal system. Initially it was confined to the four presidency towns of British ruled
India, the system started expanding with the inclusion of Indian states in the British Empire.
Since the primary concern of the Colonial masters was draining the economic resources of the
country to Britain, thought it was tried to develop a sui generis legal model which could suit the
need of Indian society6. The community justice system as well as inquisitorial litigation model as
prevalent in India prior to the advent of British was alien to the English legal system. Thus the
legal system based on common law was imposed on India. A consequence of such imposition
was that the bodies of justice administration which earlier existed in India were thrown in cold
oblivion and their place was taken by the court type adjudication of disputes. This model of
litigation is also known as the adversarial model of litigation. In this model, the State acts an
uninterested umpire of the dispute between the private parties. If it is a criminal case, then the
proceedings are launched by the State, whereas in civil cases the onus of initiating the
proceedings is on the private individuals. It is a known fact that multitude of cases that reach the
courts are of civil nature. Thus for a breach of contract or deprivation of a right, which would
have happened due to the States fault, still the proceedings are to be launched by the private
individuals. It is pertinent to mention that in British period, no fundamental rights were
recognized and thus if any violation of fundamental rights took place, still the State was not
liable. However, with the Constitution of India coming into force, the fundamental policy choice
of the nation changed. The people of India, through their representatives in Constituent

6International Journal of Humanities and Social Science Invention, Access to justice:

a critical analysis of alternate dispute resolution mechanisms in India Volume 2
Issue 5 PP.47.

Assembly, resolved to secure for all its citizens Justice- social, economic and political. 7 Apart
from this solemn affirmation in the preamble, Article 14 of the Constitution makes it incumbent
on the State not to deny to any person equality before law or equal protection of law. Thus the
State is under a duty to ensure that every person is given equal protection of laws and breach of
this duty will be a violation of the mandate in Article 14. In addition, Article 256 casts a duty on
the State governments to ensure compliance with every law made by the Parliament and every
existing law. Thus under the Constitution, a strict duty is cast on the State to ensure that there is a
compliance with every law. Violation of a private right is undoubtedly a breach of law and as
such if such a breach occurs, the presumption is that the State has failed in its duty of ensuring
compliance with every law and giving equal protection of laws to every person. Thus it should be
incumbent on the State to initiate proceedings against the faulting party and follow the principle
of restitution in interim.8 Thus as per the Constitutional scheme, adversarial model, wherein the
Courts perform the role of an arbiter and are not interested in ascertaining truth, has been
discarded and impliedly an inquisitorial model has been chosen. Under this model, the Court
itself, with help of the officers appointed for this purpose, undertakes investigation, determines
which issues are to be taken up during the proceedings and the judge has substantial discretion in
doing away with the procedural technicalities. However, the aforementioned constitutional
scheme has not seen the light of the day in practical working. The colonial hang-over is still
haunting our legal system insomuch so that we are still following the adversarial model of
litigation. Following this alien model has led to a lot of problems. Likethe general lack of
awareness of legal rights and remedies acts as a formidable barrier to accessing the formal
adjudication machinery, the language of the law, invariably in very difficult and complicated
English, makes it unintelligible even to the literate or educated person. And this is the language
that courts and lawyers are comfortable with. Very little attempt has been made at
vernacularizing the language of the law and making it simpler and easily comprehensible to the
person engaging with the FLS. Due to the adversarial model, the expediency of the litigation
process has been sacrificed. In an average, a civil case takes 20 years to settle. This problem of
7Preamble to the Constitution of India, 1950.
8Restitution in integrum means to restore the parties to their original position or
status. It means to put the party into the condition they would otherwise have been
but for the non-performance of the State executive powers

delay is due to the extended role of advocates in the litigation process. Despite being officers of
the Court, they do not have any accountability towards expedient disposal of cases. Similarly
there is no accountability of the judges to dispose of cases as early as possible.The cost of
litigation in India is very high. This is also a repercussion of the adoption of adversarial model of
litigation. Since the court cases drag on for years, the costs increases manifolds.
ALTERNATIVE DISPUTE RESOLUTION METHODS
Equality is the basis of all modern systems of jurisprudence and administration of justice in so
far as a person is unable to obtain access to a court of law for having his wrongs redressed or for
defending himself against a criminal charge, justice becomes unequal and laws which are meant
for his protection have no meaning and to that extent fail in their purpose. 9Alternative dispute
resolution encompasses arbitration, mediation, conciliation, and other methods short of formal
litigation for resolving disputes. Alternative dispute resolution offers several advantages over a
lawsuit. It is less adversarial and in some cases can be faster and less expensive. It can also
reduce court workloads. For these reasons its use is being promoted by court reformers in many
developing and transition economies.10 When we adopt a model of alternative dispute resolution,
we have to see that there is a parity of power between the parties to the dispute. Thus a good
dispute resolution method should be such which minimizes the advantage of money and pelf. In
addition, a good alternative dispute resolution mechanism should pass the acid test of
conforming to all the bands in the power spectrum as enunciated by Prof. Julius Stone. 11 ADR
today falls into two broad categories: court-annexed options and community-based dispute
resolution mechanisms. Court annexed ADR includes mediation/conciliation the classic method
where a neutral third party assists disputants in reaching a mutually acceptable solution as well
as variations of early neutral evaluation, a summary jury trial, a mini-trial, and other techniques.
9 Law Commission of India, 14th Report on Reform of Judicial Administration, at 587.
10Mnookin, Robert H., Alternative Dispute Resolution, in Peter Newman (ed.), the
New Palgrave Dictionary of Economics and the Law. vol. 1, London: MacMillan
Reference, 1998, at 236.
11Stone Julius, Social Dimensions of Law and Justice. Stanford: Stanford University
Press, 1966. The bands are coercion band, ethical band, influence band, interest
affected band, head count band and time count band.

Supporters argue that such methods decrease the cost and time of litigation, improving access to
justice and reducing court backlog, while at the same time preserving important social
relationships for disputants. Some definitions of ADR also include commercial arbitration:
private adversarial proceedings in which a neutral third party issues a binding decision.ADR is
generally classified into at least four types: negotiation, mediation, collaborative law, and
arbitration.Alternative Dispute Resolution 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. There are in addition free-standing and or independent
methods, such as mediation programs and ombudsman offices within organizations. The methods
are similar, whether or not they are pendant, and generally use similar tool or skill sets, which are
basically sub-sets of the skills of negotiation.ADR includes informal tribunals, informal
meditative processes, formal tribunals and formal meditative 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 meditative
process is referral for mediation before a court appointed mediator or mediation panel. Structured
transformative mediation as used by the U.S. Postal Service is a formal process. Classic informal
methods include social processes, referrals to non -formal authorities such as a respected member
of a trade or social group and intercession. 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.
"Alternative" dispute resolution is usually considered to be alternative to litigation. It also can be
used as a colloquialism for allowing a dispute to drop or as an alternative to violence.
In recent years there has been more discussion about taking a systems approach in order to offer
different kinds of options to people who are in conflict, and to foster "appropriate" dispute
resolution. That is, some cases and some complaints in fact ought to go to formal grievance or to
court or to the police or to a compliance officer or to a government IG. Other conflicts could be
settled by the parties if they had enough support and coaching, and yet other cases need
mediation or arbitration. Thus "alternative" dispute resolution usually means a method that is not
the courts. "Appropriate" dispute resolution considers all the possible responsible options for
conflict resolution that are relevant for a given issue.

ADR can increasingly be conducted online, which is known as online dispute resolution (ODR,
which is mostly a buzzword and an attempt to create a distinctive product). It should be noted,
however, that ODR services can be provided by government entities, and as such may form part
of the litigation process. Moreover, they can be provided on a global scale, where no effective
domestic remedies are available to disputing parties, as in the case of the UDRP and domain
name disputes. In this respect, ODR might not satisfy the "alternative" element of ADR.
BENEFITS
ADR has been increasingly used internationally, both alongside and integrated formally into
legal systems, in order to capitalise on the typical advantages of ADR over litigation:
Suitability for multi-party disputes

Flexibility of procedure - the process is determined and controlled by the parties to the

dispute
Lower costs
Less complexity ("less is more")
Parties choice of neutral third party (and therefore expertise in area of dispute) to direct

negotiations/adjudicate
Likelihood and speed of settlements
Practical solutions tailored to parties interests and needs (not rights and wants,as they

may perceive them)

Durability of agreements
Confidentiality
The preservation of relationships and the preservation of reputations
Modern era

Traditional people's mediation has always involved the parties remaining in contact for most or
all of the mediation session. The innovation of separating the parties after (or sometimes before)
a joint session and conducting the rest of the process without the parties in the same area was a
major innovation and one that dramatically improved mediation's success rate.
Traditional arbitration involved heads of trade guilds or other dominant authorities settling
disputes. The modern innovation was to have commercial vendors of arbitrators, often ones with
little or no social or political dominance over the parties. The advantage was that such persons
are much more readily available. The disadvantage is that it does not involve the community of

the parties. When wool contract arbitration was conducted by senior guild officials, the arbitrator
combined a seasoned expert on the subject matter with a socially dominant individual whose
patronage, good will and opinion were important.
Private judges and summary jury trials are cost- and time-saving processes that have had limited
penetration due to the alternatives becoming more robust and accepted.
Alternative dispute resolution in India is not new and it was in existence even under the previous
Arbitration Act, 1940. The Arbitration and Conciliation Act, 1996 has been enacted to
accommodate the harmonisation mandates of UNCITRAL Model. To streamline the Indian legal
system the traditional civil law known as Code of Civil Procedure, (CPC) 1908 has also been
amended and section 89 has been introduced. Section 89 (1) of CPC provides an option for 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.
Due to extremely slow judicial process, there has been a big thrust on Alternate Dispute
Resolution mechanisms in India. While Arbitration and Conciliation Act, 1996 is a fairly
standard western approach towards ADR, the LokAdalat system constituted under National
Legal Services Authority Act, 1987 is a uniquely Indian approach.

Arbitration
The process of arbitration can start only if there exists a valid Arbitration Agreement between the
parties prior to the emergence of the dispute. As per Section 7, such an agreement must be in
writing. The contract regarding which the dispute exists, must either contain an arbitration clause
or must refer to a separate document signed by the parties containing the arbitration agreement.
The existence of an arbitration agreement can also be inferred by written correspondence such as
letters, telex, or telegrams which provide a record of the agreement. An exchange of statement of
claim and defense in which existence of an arbitration agreement is alleged by one party and not
denied by other is also considered as valid written arbitration agreement.
Any party to the dispute can start the process of appointing arbitrator and if the other party does
not cooperate, the party can approach the office of Chief Justice for appointment of an arbitrator.

There are only two grounds upon which a party can challenge the appointment of an arbitrator
reasonable doubt in the impartiality of the arbitrator and the lack of proper qualification of the
arbitrator as required by the arbitration agreement. A sole arbitrator or a panel of arbitrators so
appointed constitute the Arbitration Tribunal.
Except for some interim measures, there is very little scope for judicial intervention in the
arbitration process. The arbitration tribunal has jurisdiction over its own jurisdiction. Thus, if a
party wants to challenge the jurisdiction of the arbitration tribunal, it can do so only before the
tribunal itself. If the tribunal rejects the request, there is little the party can do except to approach
a court after the tribunal makes an award. Section 34 provides certain grounds upon which a
party can appeal to the principal civil court of original jurisdiction for setting aside the award.
The period for filing an appeal for setting aside an award is over, or if such an appeal is rejected,
the award is binding on the parties and is considered as a decree of the court.

CONCILIATION
Conciliation is a less formal form of arbitration. This process does not require an existence of
any prior agreement. Any party can request the other party to appoint a conciliator. One
conciliator is preferred but two or three are also allowed. In case of multiple conciliators, all
must act jointly. If a party rejects an offer to conciliate, there can be no conciliation.
Parties may submit statements to the conciliator describing the general nature of the dispute and
the points at issue. Each party sends a copy of the statement to the other. The conciliator may
request further details, may ask to meet the parties, or communicate with the parties orally or in
writing. Parties may even submit suggestions for the settlement of the dispute to the conciliator.
When it appears to the conciliator that elements of settlement exist, he may draw up the terms of
settlement and send it to the parties for their acceptance. If both the parties sign the settlement
document, it shall be final and binding on both.
Note that in USA, this process is similar to Mediation. However, in India, Mediation is different
from Conciliation and is a completely informal type of ADR mechanism.

LOK ADALAT
Etymologically, LokAdalat means "people's court". India has had a long history of resolving
disputes through the mediation of village elders. The current system of LokAdalats is an
improvement on that and is based on Gandhian principles. This is a non-adversarial system,
whereby mock courts (called LokAdalats) are held by the State Authority, District Authority,
Supreme Court Legal Services Committee, High Court Legal Services Committee, or Taluk
Legal Services Committee, periodically for exercising such jurisdiction as they thinks fit. These
are usually presided by retired judge, social activists, or members of legal profession. It does not
have jurisdiction on matters related to non-compoundable offences.
While in regular suits, the plaintiff is required to pay the prescribed court fee, in LokAdalat, there
is no court fee and no rigid procedural requirement (i.e. no need to follow process given by
[Indian] Civil Procedure Code or Indian Evidence Act), which makes the process very fast.
Parties can directly interact with the judge, which is not possible in regular courts.
Cases that are pending in regular courts can be transferred to a LokAdalat if both the parties
agree. A case can also be transferred to a LokAdalat if one party applies to the court and the court
sees some chance of settlement after giving an opportunity of being heard to the other party.
The focus in LokAdalats is on compromise. When no compromise is reached, the matter goes
back to the court. However, 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 of the Constitution of India [which
empowers the litigants to file Writ Petition before High Courts] 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.
Permanent LokAdalat for public utility services
In order to get over the major drawback in the existing scheme of organization of LokAdalats
under Chapter VI of the Legal Services Authorities Act 1987, in which if the parties do not arrive
at any compromise or settlement, the unsettled case is either returned to the back to the court or

the parties are advised to seek remedy in a court of law, which causes unnecessary delay in
dispensation of justice, Chapter VI A was introduced in the Legal Services Authorities Act, 1987,
by Act No.37/2002 with effect from 11-06-2002 providing for a Permanent LokAdalat to deal
with pre-litigation, conciliation and settlement of disputes relating to Public Utility Services, as
defined u/sec.22 A of the Legal Services Authorities Act, 1987, at pre-litigation stage itself,
which would result in reducing the work load of the regular courts to a great extent. Permanent
LokAdalat for Public Utility Services, Hyderabad, India
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. 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.
Main condition of the LokAdalat is that both parties in dispute should agree for settlement. 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.LokAdalat is a boon to the litigant
public, where they can get their disputes settled fast and free of cost.

CONCLUSION
A healthydemocracy should have proper mechanisms to settle disputes between citizensboth
formally and informally. Alternative Dispute Resolution Mechanisms shouldbe seen as
complimentary and not as a substitute for formal judicial process, forit has to be understood that
human attitudes and thought processes are sodiverse and beyond taming, through any normal
process. There are many peoplewho need and settles only for an authoritarian intervention for
their disputes, andon the other hand there are also others, who could not be convinced about
therelative injustice of their stands even after authoritarian judicial pronouncements.In order to
cater to both these sections of the population, an effectivecombination of both conventional and
alternate dispute resolution mechanismsneed to be employed. This could be made possible by

strengthening the existingARD mechanisms, as well as by find new ADR mechanisms, to

worksupplemental to the conventional dispute resolution mechanism of courts. Forthis the Legal
Service Authorities, which are giving the legal support to ADRmechanisms in India need to be
strengthened. Legal Service Authorities shouldalso move beyond the existing unwritten
boundaries drawn by collectivebargaining strength of lawyers and should think of more effective
mechanisms forresolution of disputes, like online dispute resolution platforms, tapping
resourcesoutside legal profession for dispute resolution like establishing dispute resolutioncells
in law schools so that law students graduate out with proper training indispute resolution
processes and philosophy, coordinating dispute resolutionstrategies around various sectors
involving persons knowledgeable in therespective sector(for example, establishing monitoring
and researching onspecialised dispute resolution mechanisms in medical institutions,
necessarilyinvolving

medical

professionals

along

legal

professionals,

would

enable

theinstitutions to settle most of the issues arising in medical institutions through themechanism
without need to take the dispute to conventional courts. ), utilising theresources identified
through National Judicial Talent Search process for disputeresolution, so that the resources can
make sufficient earning through an effectivecombination of conventional and non-conventional
dispute resolution methods,without compromising their integrity.