Legal help and Arbitration in India

         India is country with diverse culture and ethnicity. This diversity has been developed with the years old traditions and change in time. India which has been known and established as ARYAVRTA and the justice system is as old as the era of King Vikramaditya in which people had been preached with the concept of Justice, fairness and equity with the stories of Vikrama and Betal. Where Betal gives the questions of legal interpretation to king and king answers them all with his conscience and knowledge. A system where kings were imposed with the duty to maintain wellbeing of the people, where way to get justice was the words of GOD the Supreme Being and kings were their representatives on earth sent to “let the citizens of their kingdom prevail with justice”. Which later shifted to the policies of Chankaya which during the empire of Mauryas. Even those regions that didn’t have monarchy they had republican system where justice was led by the group of elected representatives, Vaiji being the one of the earliest example. With invasion of Mughals salami system was brought to India in which the party is allowed to be forgiven when victim forgave the accused on providing compensation.  

          But with the arrival of British Rule system entirely changed the system which was focused on the welfare of people and moral values shape-shifted to revenue based system and the sole purpose of introduction was generating money, a system which lead to more tax for British. Stamp duties were imposed on people even to get a sight to their matters in a system, moral and value based system was entirely vanished. This system continued even after the independence and served India as the basic framework of Legal Justice System.   

Legal Help and Alternate Dispute Resolution

         In general English help word means the act of assistance to a person, which makes their work easier. Same way, Legal help in general made up of two words, legal i.e. related to law and help which denotes that the help and assistance, provided to a person in the field of law is said to be a legal help.

          On the other hand, Arbitration denotes moving to the alternate methods of resolution of disputes regardless to the English system. The word Arbitration means the mode of settlement of dispute outside the court, whether before or after commencement of a suit. The person who is providing the decision is known as arbitrator. Arbitrator looks into the subject matter and provides his decision on the merits and the decisions such provided is called as Arbitral Award. This award is binding to the parties [1]and non-appealable. But an arbitral award is enforceable by court in the same manner as a civil decree[2]. Also, the key highlights of arbitration is that it focus on providing the parties with a solution which is accepted by both the parties referred as arbitration agreement.

          In general the method is supported by mediation, conciliation[3] many a times it include negotiation as well whether as an independent or supplementary process to others modes, where parties to suit may dissolve their dispute by amicable means and the decision is as per the voluntary will of the parties. It allows the parties to resolve the dispute outside the court on their own terms. Which was indeed the root of the ancient Indian Justice System.

Provisions in India

The constitution makers were well aware of traditional Indian system and its relevance in the context of legal justice system. They tried to develop legal help as an obligation to make legal justice available to all. Provisions regarding the legal help and process of arbitration are governed under following acts and laws in India:

  1. Constitution of India: It is the utmost document of the country. It governs and provides all the basic laws of the country. It is the grund norm of the country from which all laws, rules, regulations etc. finds their power. The Constitution of India has provisions mentioned below to support the legal help in Criminal Justice System:
  2. Preamble: India being a DEMOCRATIC, REPUBLIC it secures its citizens JUSTICE at various levels, these levels being – social, economic and political. Which provides a duty to the State for the welfare of the people have access for justice.
  3. Fundamental Rights: These rights been ensured by the Constitution of India and Apex court been assigned with the duty to safeguard the rights a citizens of the country. These ensure the rights below:
14Equality before law
15Prohibition of discrimination on ground of religion, race, caste, sex and place of birth
21Protection of Life and personal liberty
21-ARight to education [4]
29Protection of Rights of Minorities
32Remedies for enforcement of rights conferred by Part III.

            All these are legally enforceable and secures the legal rights of a person in India Judicial System. Provisions that supports enforceability are provided in the form of writs. These writs are named as Habeas Corpus, Mandamus, Certiorari, Prohibition and Quo Warranto. Any person whose rights been infringed can urge the Apex court[5] or High Court[6] when his rights have been curtailed. Similarly, Public Interest Litigation (PIL) allows public spirited persons to move to the court for rights of socially and financially deprived section of society, with only limitation that such PIL shall not be to serve personal interests.      

  • Directive Principle of State Policies: DPSPs are the moral values of the Constitution of India. Article 39-A provides ‘Equal Justice and free legal aid’ it states:

‘That the operation of legal justice system shall ensure free legal aid on the basic of equal opportunity, and so to be done by suitable legislation and schemes for the persons of legal disabilities, it provides.’

  • Code of Civil Procedure:

Code defines settlement of disputes outside the court, it elaborates that when court finds such elements at which the parties to suit agree, court shall try to formulate the terms at which settlement can be made. This settlement shall be any of the following means as per the section:

  1. Arbitration
  2. Mediation
  3. Judicial settlement including settlement through Lok Adalat
  4. Mediation
  • Code of Criminal Procedure:

The general provisions propound that alternate dispute resolution is not a method of deciding a criminal case. [7] Yet Chapter XXI-A defines the procedure of PLEA BARGAING. The chapter mentions:

“A person accused of an offence may file application for plea bargaining in the court in which such offence is pending for trial.” [8]

  • Legal Services Authority Act and Alternate Dispute Resolution Act

These acts allow and support the provisions of Arbitration in various cases. Formation of NALSA, SLSA and DLSA is the unique feature of Legal Services Authorities Act which legalises and introduces the process of Arbitration between the parties in conventional system. The act also put-forth concept of Lok Adalat where arbitration can be used as a mean to solve the dispute.

       On the other hand, Alternate Dispute Resolution Act 1996 defined the terms related to ADR system and states the powers and areas of function followed under the ADR. The act also mention arbitration and conciliation as statutory provisions and ensures their enforceability. The act propound definitions of Arbitration Award, Arbitration Agreement [9]and provisions related to the appointment of Arbitrator[10]

  • Contract:

The contracts are also now a days are being formed with the clause of arbitration where parties to contract shall decide that when the dispute arises which process they will opt out to resolve it, also the parties may decide the arbitrators as well. The decision shall be binding to the parties on invocation of Arbitration Clause.

Current scenario in India

India is a huge population with a diverse culture, people has various opinions and even the local laws and believes are numerous. Which results in conflict among people and generally conflicts ends up in litigation as an outcome Indian courts faces a huge pendency of cases. Justice N.V. Ramana stated that “at present, pendency of cases in India is around 4.7 crore, out of which 87.4% are in Subordinate courts, 12.4% are in High Courts. While nearly 1,82,000 cases are pending for more than 30 years.” Studies also revealed that last 3 years the backlog has shown a raise of 27%[11]. This backlog and huge pendency seems to have no end in formal litigation process as data also states the number of judges to resolve these are so less.

In contrast to these the weaker and poor section whose rights are actually being curtailed are unable to reach the court. The main reason for the same is that whether they aren’t aware of their rights or they are not of amicable means to exercise their rights. Even in many a cases such section of the society is impuissant to understand complex and gigantic processes and procedures of the Legal Justice System. Which makes them blunt when it comes to exercising the legal rights. Also, not being from an adequate means people of such section are at a loss to take legal advices and legal support.

Utilization of Arbitration

If we closely look into the definition of Arbitration it is the dispute settlement approach that allow the parties to resolve the issue with harmony at their own terms by agreement. The Arbitration and Conciliation Act provides “arbitration means any arbitration whether or not administered by permanent arbitral institution.” [12] Even the procedure for obtaining the arbitral award is much easier and faster than the conventional method.

        All these benefits makes the Arbitration an important instrument to deal with the issues which Indian Legal Justice System is facing now-a-days. Provisions of Civil Procedure Code allow the pending cases to be settled in arbitration that can support the collapsing pendency of the courts. Further, the appointment of arbitrator is at the will of parties and qualifications of arbitrator are also bare minimal. Example- he/she has to be of sound mind [13]and parties must agree to him/her being arbitrator.   

        Even, the highest pendency rate is shown at lower courts where arbitration is way easier. It will reduce the burden of higher courts in future as no appeal lie form as award of arbitration except the provisions of section 59[14]. Similarly, in the process of arbitration there is no provision of court fee which makes justice available to all, leading the ends of justice to reach all sections of society.       

Merits of Arbitration

Though other methods of resolving the dispute are also mentioned in Code of Civil Procedure but main reason for opting out arbitration as cynosure are following:

  1. Arbitration legalises the decision provided by the Arbitral Award. Once the award is signed and sealed by the arbitrator it is binding to the parties.
  2. Arbitration is easier, faster and essentially less costly method of solving the dispute.
  3. Arbitration has very less technicalities, which makes it easier for all to go through the process.
  4. Arbitration is much closer to formal and traditional methods where arbitrator hear the parties and provides an award on its merits.
  5. It is more acceptable method as parties settle dispute amicably leaving no burden on hearts. Which maintains the harmony between them.    
  6. Arbitrator can be chosen at the will of parties or by the court.
  7. Arbitrator has no input in the process, the major role is played by the parties which results in an agreement parties wish to have.

Way forward

‘Change is the law of Nature’. When the conventional system was introduced it was a fit for the time. But as time passed needs, requirements and essentials have been changed which mandates that new ways to resolve the old dispute are brought to the table and arbitration with all its pros can be a linchpin. It can modernised and homogenized to meets the present needs of Legal Justice System to resolve the current barriers in service of justice. Further suggestions are as follows:

  1. Arbitration can be utilised with negotiation to provide better and effective outcomes.
  2. Permanent Arbitration Centres can be opened to promote arbitration.
  3. At present one can’t enter to arbitration directly, methods for filing applications of arbitration to be formed so that same way a plaint or FIR is filed an arbitration application can be chosen as well.
  4. A consolidated provision can be made that mentions all about arbitration and its procedure is a precise way in order to make it widely acceptable. 

[1] The Arbitration and Conciliation Act (Act 26 of 1996), s 35

[2] The Arbitration and Conciliation Act (Act 26 of 1996), s 36

[3] The Code of Civil Procedure (Act 5 of 1908), s 89

[4] Inserted by The Constitution(Eighty-Sixth Amendment) Act, 2002

[5] The Constitution of India, art, 32.

[6] The Constitution of India, art, 226.

[7] Afcons infrastructure and Ors. v. Cherian Varkey Construction and Ors, 2010(8) SCC 24

[8] The Code of Criminal Procedure (Act 2 of 1974), s 265-B  

[9] The Arbitration and Conciliation Act (Act 26 of 1996), s 2

[10] The Arbitration and Conciliation Act (Act 26 of 1996), s 11

[11] The Hindu, May. 13, 2022

[12] The Arbitration and Conciliation Act (Act 26 of 1996), s 2(a)

[13][13] The Arbitration and Conciliation Act (Act 26 of 1996), s 11

[14] The Arbitration and Conciliation Act (Act 26 of 1996), s 59

Author: Vaishali Verma

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