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The relationship between Constitutional Jurisprudence and ADR mechanisms

The relationship between Constitutional Jurisprudence and ADR mechanisms

“It is the spirit of law and not its form which keeps justice alive” LJ Earl Warren

The concept of conflict management has found a new tool in the form of Alternative Dispute Mechanism techniques like Arbitration, Mediation, Conciliation, Negotiation and Lok Adalats. The ADR mechanism is a much expeditious and cost-effective process of justice dispensation as compared to litigation.Having said that, ADR is not a novel concept for India and it has been prevalent since primitive times. It has indeed undergone a metamorphosis from discussing issues under a banyan tree to dispute resolution in appropriate forums and institutions.

The concept of Rule of Law, given by Dicey implies supremacy of law and equality before law. This concept of Rule of Law is imbibed in Article 14 of the Constitution which guarantees equal protection of laws and protection against arbitrariness to each and every citizen of this country. The Supreme Court has also held Rule of Law to be part of Basic Structure of Constitution. As there have been progressions in law, right to access to justice has also become a part of Article 14 which not only includes the right to litigate or defend a right but also the right to access such forums and therefore, an equal right to seek redressal like other litigants.

Due to expansive interpretation of Article 21 in various judicial precedents, Article 21 also includes right to free legal aid and a speedy trial. Even Article 39A, one of Directive Principles of State Policy ensures that it is the responsibility of the state to provide equal opportunity to attain justice by specifically providing free legal aid. Legal aid is regarded in various forms and at various stages for seeking guidance through courts and tribunals or through ADR techniques. Therefore, ADR mechanisms help achieve the objective of Article 39A, introduced by the 42nd Amendment to the Constitution, of providing free legal aid to all citizens so that justice is not denied by reason of economic or any other disabilities.

Article 40 directs the State to take steps to organize Village Panchayats and bestow them with such powers and authority that they can effectively function as a unit of self-government at the grass root level of this country. Furthermore, 73rd Amendment to the Constitution has introduced Part IX (Article 243A- 243O) on ‘Panchayats’ to encourage democratization of the villages.

Article 51(d) directs the state to promote international peace and security by encouraging settlement of international disputes by arbitration. Arbitration will facilitate amity and peaceful relations with other countries rather than arduous litigation battles leading to rupture of harmonious relationships. However, like other countries of the world, India does not prefer to resolve international disputes through Arbitration. It has enacted various statutes like Arbitration and Conciliation Act, 1996 and Legal Services Authorities Act,1987, in case the parties choose ADR over litigation.

To conclude, we can say that ADR is complementary to our Constitution. Therefore, State has also enacted various statues governing Arbitration, Conciliation, Lok Adalats and so on and so forth. However these statutes will continue to be toothless tigers unless and until Dtate takes steps for proper implementation of them. It is pertinent to note that ADR provides a ladder to justice to the underprivileged sections of the society. India can only move towards the ray of light judicial equality if the burden on our courts is reduced considerably. Citizens should be made more aware of ADR mechanisms so that they can utilize them instead of taking the more painful and grueling path of litigation.

  • Article 14 and 21
  • Article 39A
  • Article 40 and 51(d)

BY : Astha Dhawan

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