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Constitutional Jurisprudence and the Growth of Alternative Dispute Resolution
Constitutional Jurisprudence and the Growth of Alternative Dispute Resolution:
Alternative dispute Resolution (ADR) contains the effective mechanism to provide speedy and cost effective justice. It also has the potential to trim the huge arrears of cases to size. The major techniques of ADR are extra-Judicial in nature.
Rule of Law:
The Rule of law has been given by Prof. Dicey, the expression the guarantee of equality before the law .The rule of law embodied in Article 14 is the “Basic feature” of the Indian Constitution. Hence, it cannot be destroyed even by an amendment of the constitution under Article 368 of the Constitution. It means that No man is above and all are equal in eye of law. And uniformity will be applied for all. Every organ of the state under the Constitution of India is regulated and controlled by the rule of law. Absence of arbitrary Power has been held to be the first essential of rule of law. The rule of law requires that the discretion conferred upon the executive authorities must be contained within clearly define limits. However, in the recent theories, with the emergence of the welfare state, the right to access to justice has gained grounds.
Thus, from a passive right, the right to access to justice has become an effective right wherein not only the right to litigate or defend a claim, but also right to access such forums and have parity of power with the other litigants.
Article 21- Right To Life And Personal Liberty:
Article 21 declares that no person shall be deprived of his life or his personal liberty except according to procedure established by law. The right to free legal aid and speedy trial are guaranteed fundamental rights under Article 21. Article 39 A provides “ equal Justice” and “free legal aid”. It means Justice according to law.
Legal aid is regarded in many forms and at various stages, for obtaining guidance for resolving disputes in courts, tribunals or other authorities such as arbitration, conciliation, mediation and lok Adalat and collectively called as Alternative Dispute resolution (ADR). It is a mandatory rule that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
Regarding the right to free legal aid, Krishna Iyer, J; declared, “This is the state’s duty and not Governments’ charity. The Supreme Court held that “ right to a speedy trial” a fundamental right is implicit in the guarantee of life and personal liberty enshrined in Article 21 of the Constitution. Speedy trial is the essence of criminal Justice. The Supreme Court has allowed Article 21 to stretch aims as wide as legitimately can. Article 21 is fundamental right that can be directly enforced in the SC under Article 32 of the Constitution of India.
Fundamental Rights Incorporated In The Constitution:
The attainment of the common goal as distinguished from the good of individual is the essence of justice. Legal Justice is the part of social justice. As whenever the legal justice is denied, the society gets disturbed . A legal system is part of state which maintains social harmony through dispute resolution that provides timely and effective justice and enforcement of their legal and fundamental rights. This can be effectively achieved by applying the mechanisms of Alternative Dispute Resolution.
The Constitution of India guarantees the right to equality ( Equality before law) through Article 14. The Court has been unfolding the vast potentialities of this article as a restraint on the legislative power of the legislature as well as administrative power of the administration. Article 14 bars discrimination and prohibits discriminatory laws but the fact remains that all persons are not equal by nature, attainment or circumstances, and therefore ,a mechanical equality before the law may result in injustice.
The varying needs of different classes or section of people require differential and separate treatment. The legislature is required to deal with diverse problems arising out of an infinite variety of human relations. The Principle of equality of law thus means not that the same law which includes (Procedure and treatment) should apply to everyone but that law should deal alike with all in one-class, that there should be an equality of treatment under equal circumstances. It means “that equals should not be treated unlike and unlike should not be treated alike. Likes should be treated alike”.
Directive Principles of State Policy:
The idea of welfare state envisaged by our constitution can only be achieved if the state endeavours to implement them with a high sense of moral duty. Under Article 39 A, the directives require the state to provide free legal aid to deserving people so that justice is not denied to anyone merely because of economic disability. Under Article 40 of the constitution of India, gives a directive to the state to take steps to organize village Panchayats and endow them with such power and authority as may be necessary to enable them to function as unit of self-government. The objectives laid down in Article 40 have been fulfilled by enacting the constitution 73rdAmendment Act, 1992, Part IX (Article 243 A to 243 O) on “The Panchayat”. This Amendment provides constitutional sanction to democracy at the grass root level.
- Rule of Law
- Article 21- Right To Life And Personal Liberty
- Directive Principles of State Policy
