Alternative Dispute Resolution

Unit-I: Concept of ADR

Meaning, Nature and Genesis of
Alternative Dispute Resolution

Ancient India:
It was since ancient India; the law of arbitration was very popular and was
highly accessible. While dealing with such cases on arbitration, the awards
were known as decisions of Panchayats, commonly known as Panchats. The
decisions of Panchayats were of binding nature in law in force in those
times. The head of a family, the chief of a community or selected
inhabitants of a village or town might act as Panchayat.

In the words of Martin, C.J., “arbitration was indeed a striking feature of

ordinary Indian life and it prevailed in all ranks of life to a much greater
extent than was the case of England. To refer matters to a Panch was one of
the natural ways of deciding many disputes in India”.

The Hindu idea of Panchayats was that a Panchayat was the lowest tribunal
and as such its award was subject to appeal. The Bengal Regulation of 1781
imported the idea that it was the tribunal of the parties’ own choice. This
caused the respectable persons to be reluctant to become Panches and the
Panchayat system fell into disuse or public infancy. Then the Regulation of
1787 empowered the Courts to refer certain suits to arbitration, but no
provision was made in the Regulation for cases wherein difference of
opinion among the arbitrator arose. The Bengal Regulation of 1793 (XVI of
1793) empowered courts to refer matters to arbitration with the consent of
the parties where the value of the suit did not exceed Rs. 200/- and the
suits were for accounts, partnership, debts, non-performance of contracts,
etc. In this Regulation, the procedure for conducting an arbitration
proceeding was also provided. Regulation XV of 1795 extended the
Regulation XVI of 1793 to Benaras. Similarly, the Regulation XXI of 1803
extended the Regulation XVI of the territory ceded to the Nawab Vazeer.

Since then the Madras Regulation IV of 1816 and V of 1816 empowered the
Panchayats to settle disputes with them. In Bombay Regulations IV and VII
of 1827 similar provisions were made.

British Period:
Thereafter, the Civil Procedure Code, 1859; the Indian Contract Act, 1872
and the Specific Relief Act, 1877 mandated that no contract to refer the
present or further differences to arbitration could specifically be enforced. A
party refusing to reform his part of the contract was debarred from bringing
a suit on the same subject-matter. An appeal and the Code of Civil
Procedure aforesaid was not applicable to matters covered by the
Arbitration Act, or the second schedule to the Code of Civil Procedure. The
Code of Civil Procedure, 1859 (VII of 1859), was the first Civil Code of
British India. The law relating to arbitration was incorporated in Chapter VI
of the Code (Sections- 312 to 327). It was, however, not applicable to the
Supreme

Court or to the Presidency Small Cause Courts or to non- Regulation

Provinces. This Act was repealed by Act X of 1877 which consolidated the
law of Civil Procedure which was further replaced by Act XIV of 1882. This
Code of Civil Procedure also was replaced by the Code of Civil Procedure,
1908 (V of 1908), the present Code. The Second Schedule of the Code
comprised the law regarding arbitration.

The law of Arbitration in the British Rule in India was composed in two
enactments. One was the Indian Arbitration Act, 1899, which was based on
the English Arbitration Act, 1899. Many sections of the Indian Act were the
verbal reproduction of the schedule to the Code of Civil Procedure Code,
1908. The Arbitration Act, 1899 extended to the Presidency Towns and to
such other areas as it might be extended by the appropriate Provincial
Government. Its scope was confined to ‘arbitration’ by agreement without
the intervention of a Court. Outside the scope of operation of Arbitration Act
1899, the Second Schedule to the Code of Civil Procedure Code, 1908 was
applicable. The Schedule related mostly to arbitration in suits.

The Arbitration Act, 1940 consolidated and amended the law relating to
Arbitration very exhaustively. This Act repealed Section 89, clauses (a) to
(f), of sub-section (1) of Section 104 and the Second Schedule to the Code
of 1908. The Civil Justice Committee had recommended various changes in
the Arbitration Law. The Arbitration Act of 1899 was based on the English
Law then in force, to which several substantial amendments were affected
by the Amendment Act of the British Parliament in 1934. The
recommendations of the Civil Justice Committee were scrutinized together
and the Arbitration Bill sought to consolidate and standardize the law
relative to arbitration throughout British India in detail. This Bill received the
assent of the Governor-General on 11th March, 1940 and was called the
Arbitration Act, 1940. This Act was passed mainly to consolidate and amend
the law relating to arbitration.

The Arbitration Act, 1940 had been described in the oft-quoted passage from
the Guru Nanak Foundation vs. Rattan Singh and Sons as follows-
“However, the way in which the proceedings under the act are conducted
and without an exception challenged in courts, has made lawyers laugh and
legal philosophers weep.

The system of resolving disputes by an Arbitrator was not only confined to

India but elsewhere in the world also. Since ages, the practice has been
prevalent in several parts of the world. Greek and Romans attached greater
importance to arbitration. The Arbitration Act, 1940 dealt with only domestic
arbitration. In so far as international arbitration was concerned, there was
no substantive law on the subject. However, enforcement of foreign awards
in this country was governed by two enactments, the Arbitration (Protocol
and Convention) Act, 1937 and the Foreign Awards (Recognition and
Enforcement) Act, 1961. These two statutes, in their entity, except for
Section 3 (in both of them) did not deal with international arbitration as
such but merely laid down the conditions for ‘enforcement of foreign
awards’ in India.
The Arbitration Act of 1940, though a good piece of legislation, in its actual
operation and implementation by all concerned – the parties, arbitrators,
lawyers and the courts- proved ineffective.
A few years later, the Court suggested simplification of the law of arbitration
releasing the law from the shackles of technical rules of interpretation.
The law of arbitration should be simple, less technical and more responsible
to the actual realities of the situations, but must be responsive to the
canons of justice and fair play and make the arbitrator adhere to such
process and norms which will create confidence, not only by doing justice
between the parties, but by creating sense that justice appears to have
been done.

Modern India:
The Arbitration Act, 1940 was holding the field for nearly half a century but
with the phenomenal growth of commerce and industry the effect of
globalization required substantial changes. The Alternative Dispute
Redressal mechanism was increasingly attracting serious notice and that led
to the enactment of Arbitration and Conciliation Act, 1996 and the
incorporation of Section 89 of the Code of Civil Procedure, 1908 i.e. 1st July,
2002 as a part of this mechanism.

The Supreme Court in several cases repeatedly pointed out the need to
change the law. The Public Accounts Committee too deprecated the
Arbitration Act of 1940.
In the conferences of Chief Justices, Chief Ministers and Law Ministers of all
the States, it was decided that since the entire burden of the justice system
cannot be borne by the courts alone, an Alternative Dispute Resolution
system should be adopted.
Trade and industry also demanded drastic changes in the 1940 Act. The
Government of India thought it necessary to provide a new forum and
procedure for resolving international and domestic disputes quickly.

Alternative Dispute Resolution is today being increasingly acknowledged in

the field of law as well as in the commercial sector. The very reasons for the
origin of Alternative Dispute Resolution are the tiresome processes of
litigation, costs and inadequacy of the court system.
It broke through the resistance of the vested interests because of its ability
to provide cheap and quick relief. In the last quarter of the previous
century, there was phenomenal growth in science and technology.

It made a great impact on commercial life by increasing competition

throughout the world. It also generated a concern for consumers for
protection of their rights.
It offers to resolve matters of litigants, whether in business causes or
otherwise, who are not able to start any process of negotiation and reach
any settlement.

Alternative Dispute Resolution has started gaining its ground against

litigation and arbitration.
In modern India for the first time where Alternative Dispute Resolution as a
method of conciliation has been effectively introduced and recognised by law
was in Labour Law, namely Industrial Dispute Act, 1947. Conciliation has
been statutorily recognized as an effective method of dispute resolution in
relation to disputes between workers and the management.

All parties to an industrial dispute who have had the misfortune of going
through litigation knew that it is a tedious process and one which could go
well beyond the life time of some of the beneficiaries. It is this factor that
has contributed greatly to the success of conciliation in industrial relations.

Thus "The Arbitration and Conciliation Act, 1996"came into being. The law
relating to Arbitration and Conciliation is almost the same as in the advanced
countries. Conciliation has been given statutory recognition as a means for
settlement of the disputes in terms of this Act. In addition to this, the new
Act also guarantees independence and impartiality of the arbitrators
irrespective of their nationality. The new Act of 1996 brought in several
changes to expedite the process of arbitration.

The emergence of alternative dispute resolution has been one of the most
significant movements as a part of conflict management and judicial reform,
and it has become a global necessity. Such specially devised machinery can
also be described as “Appropriate Dispute Resolution” or “Amicable Dispute
Resolution” so as to stress upon its non-adversarial objectives. In disputes
arising across national frontiers covering the field of private international
law ADR is of special significance to combat the problems of applicability of
laws and enforcement.

ADR has thus been a vital, vociferous, vocal and vibrant part of our historical
past. Undoubtedly, the concept and philosophy of Lok Adalat or “People’s
Court Verdict” has been mothered by the Indian contribution. It has very
deep and long roots not only in recorded history but even in pre-historical
period. It has proved to be a very effective alternative to litigation. People’s
Court is one of the fine and familiar fora which has been playing an
important role still today in settlement of disputes.

Modern ADR is a voluntary system, according to which the parties enter a

structured negotiation or refer their disputes to a third party for evaluation
and/or facilitation of resolution. Especially in the light of the facts that the
justice system is flooded by disputes of variable importance and complexity,
and that the parties are almost invariably intimidated by the atmosphere in
the courtroom.

Forms of ADR Mechanism

The five different methods of ADR can be summarized as follows: -

1. Arbitration
Arbitration, a form of alternative dispute resolution (ADR), is a technique for
the resolution of disputes outside the courts, where the parties to a dispute
refer it to one or more persons – arbitrators, by whose decision they agree
to be bound. It is a resolution technique in which a third party reviews the
evidence in the case and imposes a decision that is legally binding for both
sides and enforceable.
There are limited rights of review and appeal of Arbitration awards.
Arbitration is not the same as judicial proceedings and Mediation.
Arbitration can be either voluntary or mandatory. Of course, mandatory
Arbitration can only come from statute or from a contract that is voluntarily
entered into.

Advantages
1. It is often faster than litigation in Court.
2. It can be cheaper and more flexible for businesses.
3. Arbitral proceedings and an arbitral award are generally nonpublic, and
can be made confidential.
4. In arbitral proceedings the language of arbitration may be chosen,
whereas in judicial proceedings the official language of the competent
Court will be automatically applied.
5. There are very limited avenues for appeal of an arbitral award.
6. When the subject matter of the dispute is highly technical, arbitrators
with an appropriate degree of expertise can be appointed as one cannot
choose to judge in litigation.

Disadvantages

1. Arbitrators may be subject to pressures from the powerful parties.

2. If the Arbitration is mandatory and binding, the parties waive their
rights to access the Courts.
3. In some arbitration agreements, the parties are required to pay for the
arbitrators, which adds an additional cost, especially in small consumer
disputes.
4. There are very limited avenues for appeal, which means that an
erroneous decision cannot be easily overturned.
5. Although usually thought to be speedier, when there are multiple
arbitrators on the penal, juggling their schedules for hearing dates in
long cases can lead to delays.
6. Arbitration awards themselves are not directly enforceable. A party
seeking to enforce an arbitration award must resort to judicial
remedies.

In view of provisions of Section 89 of the Civil Procedure Code, if the matter

is referred to the Arbitration then the provisions of the Arbitration and
Conciliation Act, 1996 will govern the case.

2. Conciliation
Conciliation is an alternative dispute resolution process whereby the parties
to a dispute use a conciliator, who meets with the parties separately in
order to resolve their differences. They do this by lowering tensions,
improving communications, interpreting issues, providing technical
assistance, exploring potential solutions and bring about a negotiated
settlement.

It differs from Arbitration in that. Conciliation is a voluntary proceeding,

where the parties involved are free to agree and attempt to resolve their
dispute by conciliation.

The process is flexible, allowing parties to define the time, structure and
content of the conciliation proceedings. These proceedings are rarely public.
They are interest-based, as the conciliator will when proposing a settlement,
not only take into account the parties legal positions.

Conciliation involves discussions among the parties and the conciliator with
an aim to explore sustainable and equitable resolutions by targeting the
existent issues involved in the dispute and creating options for a settlement
that are acceptable to all parties.

The conciliator does not decide for the parties, but strives to support them
in generating options in order to find a solution that is compatible to both
parties.

The process is risk free and not binding on the parties till they arrive at and
sign the agreement. Once a solution is reached between the disputing
parties before a conciliator, the agreement has the effect of an arbitration
award and is legally tenable in any court in the country.

Most commercial disputes, in which it is not essential that there should be a

binding and enforceable decision, are amenable to conciliation. Conciliation
may be particularly suitable where the parties in dispute wish to safeguard
and maintain their commercial relationships.

The following types of disputes are usually conducive for

Conciliation:

● Commercial.
● Financial.
● Family.
Apart from commercial transactions, the mechanism of Conciliation is also
adopted for settling various types of disputes such as labor disputes, service
matters, antitrust matters, consumer protection, taxation, excise etc.
Conciliation proceedings:

Either party to the dispute can commence the conciliation process. When
one party invites the other party for resolution of their dispute through
conciliation, the conciliation proceedings are said to have been initiated.
When the other party accepts the invitation, the conciliation and justice,
and by the usage of the trade concerned and the circumstances surrounding
the dispute, including any previous business practices between the parties.
The conciliator is not bound by the rules of procedure and evidence. The
conciliator does not give any award or order. He tries to bring an acceptable
agreement as to the dispute between the parties by mutual consent. The
agreement so arrived at is signed by the parties and authenticated by the
conciliator. In some legal systems, the agreement reached between the
parties resolving their dispute has been given the status of an arbitral award.

Conciliation has received statutory recognition as it has been proved useful

that before referring the dispute to the civil court or industrial court or
family court etc, efforts to reconcile between the parties should be made. It
is similar to the American concept of court-annexed mediation. However,
without structured procedure & statutory sanction, it was not possible for
conciliation to achieve popularity in countries like the USA & also in other
economically advanced countries.

3. Mediation
Now, worldwide mediation settlement is a voluntary and informal process of
resolution of disputes. It is a simple, voluntary, party centered and
structured negotiation process, where a neutral third party assists the
parties in amicably resolving their disputes by using specified
communication and negotiation techniques. Mediation is a process where

it is controlled by the parties themselves. The mediator only acts as a

facilitator in helping the parties to reach a negotiated settlement of their
dispute. The mediator makes no decisions and does not impose his view of
what a fair settlement should be.
In the mediation process, each side meets with a experienced neutral
mediator. The session begins with each side describing the problem and the
resolution they desire – from their point of view. Once each side's respective
positions are aired, the mediator then separates them into private rooms.

4. Judicial Settlement
Section 89 of the Civil Procedure Code also refers to the Judicial Settlement
as one of the modes of alternative dispute resolution. Of course, there are
no specified rules framed so far for such settlement.. However, the term
Judicial Settlement is defined in Section 89 of the Code. Of course, it has
been provided therein that when there is a Judicial Settlement the
provisions of the Legal Services Authorities.

Legal Services Authorities Act, 1987. Section 21 of the Legal Services

Authorities Act, 1987 provides that every award of the Lok Adalat shall be
deemed to be a decree of the Civil Court. There are no written guidelines
prescribed in India as to judicial settlement. But in America, ethics requiring
judicial settlement has been enumerated by Goldschmidt and Milford which
are as under:

JUDICIAL SETTLEMENT GUIDELINES

The following are guidelines for judicial settlement ethics:
1. Separation of Functions: Where feasible, the judicial functions in the
settlement and trial phase of a case should be performed by separate
judges.
2. Impartiality and Disqualification: A judge presiding over a
settlement conference is performing judicial functions and, as such,
the applicable provisions of the code of judicial conduct, particularly
the disqualification rules, should apply in the settlement context.
3. Conference Management: Judges should encourage and seek to
facilitate settlement in a prompt, efficient, and fair manner. They
should not, however, take unreasonable measures that are likely
under normal circumstances to cause parties, attorneys, or other
representatives of litigants to feel coerced in the process. The judge
should take responsibility in settlement conferences.
 4. Setting Ground Rules on Issues Such as Confidentiality,
Disclosure establish ground rules at the onset, either orally or in
writing, informing parties and their attorneys of the procedures that
will be followed. The rules should include ground rules governing
issues such as confidentiality, disclosure of facts and positions during
and after conferences, and ex parte communications.
5. Focusing the Discussions: A judge should use settlement techniques
that are both effective and fair, and be mindful of the need to maintain
impartiality in appearance and in fact.
6. Guiding or Influencing the Settlement: The judge should guide
and supervise the settlement process to ensure its fundamental
fairness. In seeking to resolve disputes, a judge in settlement
discussions should not sacrifice justice for expediency.
7. Sanctions or Other Penalties Against Settlement Conference
Participants: A judge should not arbitrarily impose sanction or other
punitive measures to coerce or penalize litigants and their attorneys
in the settlement process.

5. Lok Adalat
The concept that is gaining popularity is that of Lok Adalats or people’s
courts as established by the government to settle disputes through
conciliation and compromise. It is a judicial institution and a dispute
settlement agency developed by the people themselves for social justice
based on settlement or compromise.
Civil Procedure Code also provides for the pending Civil disputes to the Lok
Adalat. When the matter is referred to the Lok Adalat then the provisions of
the Legal Services Authorities Act, 1987 will apply. So far as the holding of
Lok Adalat is concerned, Section 19 of the Legal Services Authorities
Act, 1987 provides as under: -

(1) Every State Authority or District Authority or the Supreme Court Legal
Services Committee or every High Court Legal Services Committee or, as
the case may be,Taluka Legal Services Committee may organize Lok Adalats
at such intervals and places and for exercising such jurisdiction and for such
areas as it thinks fit.
(2) Every Lok Adalat organized for an area shall consist of such number of:
(a) Serving or retired judicial officers; and
(b) Other persons of the area as may be specified by the State
Authority or the District Authority or the Supreme Court Legal Services
Committee or the High Court Legal Services Committee or as the case
may be, the Taluka Legal Services Committee, organizing such Lok
Adalat.

(3) The experience and qualifications of other persons referred to in clause

(b) of sub-section (2) for Lok Adalats organized by the Supreme Court Legal
Services Committee shall be such as may be prescribed by the Central
Government in consultation with the Chief Justice of India.

(4) The experience and qualifications of other persons referred to in clause

(b) of An
such as may be prescribed by the State Government in consultation with the
Chief Justice of the High Court.

(5) A Lok Adalat shall have jurisdiction to determine and to arrive at a

compromise or settlement between the parties to a dispute in respect of –
(i) any case pending before it; or
(ii) any matter which is falling within the jurisdiction of, and is not brought
before any court for which the Lok Adalat is organized :

Provided that the Lok Adalat shall have no jurisdiction in respect of any case
or matter relating to an offense not compoundable under any law.

The Lok Adalat 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, thus making it available to those who are the
financially vulnerable section of society. In case the fee is already paid, the
same is refunded if the dispute is settled at the Lok Adalat.

The Lok Adalat are not as strictly bound by rules of procedure like ordinary
courts and thus the process is more easily understood even by the
,uneducated or less educated. The parties to a dispute can interact
directly,with the presiding officer, which is not possible in the case of normal
court proceedings. Section 21 of the Legal Services Authorities Act, 1987 is
also required to be referred to here which runs as follows: -

Section 21 Award of Lok Adalat.

(1) Every award of the Lok Adalat shall be deemed to be a decree of a civil
court or, as the case may be, an order of any An Adalat in a case referred to
it under subsection (1) of section 20, the court-fee paid in such case shall be
refunded in the manner provided under the Court Fees Act, 1870 (7 of
1870).

(2) Every award made by a Lok Adalat shall be final and binding on all the
parties to the dispute, and no appeal shall lie to any court against the award.
In view of the aforesaid provisions of the Legal Services Authorities Act,
1987 if any matter is referred to the Lok Adalat and the members of the Lok
Adalat will try to settle the dispute between the parties amicably, if the
dispute is resolved then the same will be referred to the concerned Court,
which will pass necessary decree therein.

The decree passed therein will be final and binding to the parties and no
appeal will lie against that decree. On the flip side, the main condition of the
Lok Adalat is that both parties in dispute have to be agreeable to a
settlement. Also, the decision of the Lok Adalat 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 finality attached to such a determination is
sometimes a retarding factor for however be passed by Lok Adalat, only
after obtaining the assent of all the parties to dispute. In certain situations,
permanent Lok Adalat can pass an award on merits, even without the
consent of parties.

Lok Adalat is a definite boon to the litigant public, where they can get their
disputes settled fast and free of cost. The appearance of lawyers on behalf of
the parties, at the Lok Adalats is not barred.

Lok Adalat are not necessarily alternatives to the existing courts but rather
only supplementary to them. They are essentially win-win systems, an
alternative to ‘Judicial Justice’, where all the parties to the dispute have
something to gain. There are certain hybrids of Alternative Dispute
Resolution that also deserve a mention.

These processes have evolved in combination of various Alternative Dispute

Resolution mechanisms with the ultimate objective of achieving a voluntary
settlement. The purpose of many of these hybrids is that the principle
objective of achieving a settlement is kept in mind and all permutations and
combinations should be utilized towards that objective to reduce the burden
of the adjudicatory process in courts. The different Alternative Dispute
Resolution processes and their hybrids have found solutions to different
nature of disputes and thus the knowledge of these processes can be a
significant aid.

Legal Framework: Legal Services

Authorities Act, 1987
● 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 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.
● Legal services authority in India
● In India, legal services exist at three levels i.e.- The center, state and
the district level. The central government establishes the National
Legal Services Authority (NALSA) and the Supreme Court Legal
Services Committee (SCLSC).
● The State Government establishes the State Legal Services Authority
(SLSA) and the High Court Legal Services Committee (HCLSC). The
 State government also established the District Legal Services Authority
(DLSA).
● 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.
● Section 11A and 11B of the Legal Services Authority Act deal with the
Taluk Legal Services Committee.
● Some functions are common to all authorities. These can be classified
into two types i.e.- Pre-litigation and post-litigation services. The
authorities intend to follow the principle that prevention is better than
cure, hence a large emphasis has been paid to pre-litigation services
through legal awareness, legal camps, legal advice, and legal
education.
● It is also the duty of all of these authorities to provide for
post-litigation services in the form of free of charge representation in
court and aid in other court related expenditure.

Legal Aid
The preamble of the Indian constitution aims to secure to the people of India
justice – socio economic and political. Article 38 and 39A of the Indian
constitution are notable.

Article 38(1) states- the State shall promote the welfare of the people by
securing and protecting the social order including justice and Article 39-A of
the constitution states that the state shall in particular, provide free legal
aid, by suitable legislation or schemes, to ensure that opportunities for
securing justice are not denied to any citizen.
In Sheela Barse vs. State of Maharashtra, it was held that legal assistance to
a poor accused who is arrested and put in jeopardy of his life or personal
liberty is a constitutional imperative mandated not only by article 39-A but
also by article 21 and 14 of the constitution.

Article 21 clearly says that every person has an equal right to life and liberty
except according to the procedure established by the law. It was said in the
case of Hussainara khatoon vs. State of Bihar, that if any accused is not
able to afford legal services then he has a right to free legal aid at the cost
of the state.

Also in Sukhdas vs. Union Territory of Arunachal Pradesh, it was held,

in case an accused is not told of his right and therefore he remains
unprecedented by a lawyer, his trial is vitiated by constitutional infirmity and
any conviction as a result of such trial is liable to be set aside. Similarly
article 14 also talks about equality before law.

Section 304 of CrPC imposes an obligation on the courts to provide legal

aid at the expense of the state to an accused, who has no sufficient means
and finances to engage an advocate. There cannot be any real equality in
criminal cases unless the accused gets a fair trial of defending himself
against the charge and a professional assistance.

Government has shown its concern over the existing position of the justice
delivery system. It has acknowledged the fact the poor and underprivileged
sections of society have suffered the worst under the present system. Need
for free legal aid to the poor has been realized. Therefore it has incorporated
legislative actions such as The Legal Services Authorities Act, 1987 and
set up bodies such as NALSA and SCLSC to ensure free legal aid to poor
and under privileged.15

The Legal Services Authorities Act, 1987 Judicial Contribution for the
Formation of the Act: By the constitutional 42nd Amendment Act of 76, a
new provision was incorporated in the Constitution under Article 39A, for
providing free Legal Aid and concept of equal justice found a place in our
constitution Article 39A which was incorporated under part IV-Directive
Principles of State Policy reads as under:
Equal justice and free legal aid-The State shall secure that the operation of
the legal system promotes justice, on a basis of equal opportunity, and shall,
in particular, provide free legal aid, by suitable legislation or schemes or in
any other way, to ensure that opportunities for securing justice are not
denied to any citizen by reason of economic or other disabilities".
Legal Services Authorities after examining the eligibility criteria of an
applicant and the existence of a prima facie case in his favor provide him
counsel at State expense, pay the required Court Fee in the matter and bear
all incidental expenses in connection with the case. The person to whom
legal aid is provided is not called upon to spend anything on the litigation
once it is supported by a Legal Services Authority. Supreme Court Legal
Services Committee To empower the marginalized sections of society by
promoting legal awareness with the ultimate objective of establishing a just
and equitable social order, the Supreme Court of India has set up Supreme
Court Legal Services Committee (SCLSC). The SCLSC is headed by a Judge
of the Supreme Court of India and has distinguished members nominated by
the Chief Justice of India.

Obstacles To Legal Assistance

At present the legal aid movement in India is unorganized, diffused and
sporadic. There is a lack of coordination in it. The ideal of equal access and
availability of legal justice has reached almost a breakdown point. There is a
wide gap between the goals set and met.
One law firm recently commented in a survey, We no longer do pro bono
work, we are trying to survive.

Lawyers don't engage themselves in pro bono activities because of various

reasons. There is a lack of financial resources. The legal education imparted
earlier did not provide social education.

Therefore they do not understand or accept their obligation to do so, also

the members of the profession do not regularly come into contact with
members of the community who need legal assistance.
Illiteracy is also a major obstacle to legal aid. Now it is common knowledge
that about 70% of the people living in rural areas are illiterate and even
more than that are not aware of the rights conferred upon them by law. It is
the absence of legal awareness which leads to exploitation and deprivation
of rights and benefits of the poor.
12 marker
Q. What is the meaning of ADR? Explain the amendment in Civil Procedure
Code of India and the modes of ADR recognized under it. What
interpretation was given by the Supreme Court of India to the provision of
CPC in the case of Afcon by Supreme infrastructure?
Q. "Legal aid is regarded as central in providing access to justice by ensuring
equality before the law, the right to counsel and the right to a fair trial". In
the light of above explain the concept and development of legal aid in India
with the help of statutory provisions and various committees.
Q. Give an account of development of ADR in India since 1996.
Q. Does Legal aid include ADR? Explain with the help of the provisions of
Legal Services Authorities Act 1987.

5 Marker
Q. Lok Adalat Under Legal Services Authorities Act\
Q. Meaning and Concept of ADR
Q. Why do people like to settle disputes out of court.