SHYAMBAZAR LAW COLLEGE

Subject : Practical training 3

Semester: 10th Semester
Name: Ria kundu
Roll: L09/LLB/162011
Registration No: L09-1221-0069-16
Session: 2016-2021
Topic :-
1. Every act of injustice corrodes the foundations of democracy”.
Critically analyse the judicial efficacy in the promotion of the
spirit of justice and the constitutional mandates in the domain of
equal justice with reference to judicial analysis.

2. “The ADR mechanisms provide complete justice engaged in

conflicts and legal disputes”. Critically analyse.

3. Analyse the need and efficacy of the UN-CITRAL model laws and
its application in the Indian legal system.

4. Discuss the efficacy of alternative mode of justice delivery

system in the process of modernization of law in the pre and
post constitutional era.

5. Critically evaluate the legislative mandate of Lok-Adalat system

and also analyse the Power of Judicial Review on the Award
passed by the Lok-Adalat.

6. Write Short Notes on the followings:

1. Arbitration.
2. Conciliation.
3. Arbitral Tribunal.
1. “Judicial independence can only be achieved when there are institutional
safeguards to limit outside influence.”
Discuss the above statement in the light of the Judgment of the Supreme
Court of India in Supreme Court Advocates-on-Record Association v. Union of
India & Others (National Judicial Appointments Commission Case) (2016)
5SCC 1.

Ans. Introduction
For a country whose part to democratization has been described as being in’ a state for
suspended animation’ it is necessary to conside ( and even interogate) what Institutions are
in place to ensure that the democratization process is through, genuine and progressive.
despite its retification of numerous human rights instruments that highlight both the role of
the judiciary in the protection of human rights and advancement of democracy, the
Judiciary of Cameroon has not regained it's appropriate position in ensuring that in advance
democracy and Human Rights in the country.

Even though cameroon's constitution has suffered numerous amendment over the decades,
the 1996 Constitution was a radical departure from earlier version of the Constitution as it
gave recognition to fundamental rights and freedom. the Constitution affirms its support for
the contents of the core International human rights instruments, especially the principles
enshrined in them. It blends civil, political ,economic ,social and cultural rights. Stipulated in
the Preamble, constitutional recognition of the fundamental rights and freedom signalled a
significant and colossal stride in the domestication of international Human Rights. in
addition to these rights, the constitution stipulated the democratic character of the
republic, with Emphasis that it will protect traditional values that conform to democratic
principles, human rights and the law, in addition, a closer look at the phraseology of the
Preamble reveal that the country is not limited to the right expressed their in.

A synoptic analysis of democracy human rights and the rule of law.

As discussed above , the concept of democracy, human rights and rule of law remain the
basis pillars of any democratic society in all these three concept the Judiciary has the crucial
role to play. in the absence of any of these , the democratic content of that society
 becomes questionable. these three concept as discussed below, have a relationship with
each other. in fact, they have some degree of interdependence which have been recognised
by some internationall Instruments. they constitute the three inseparable pillars of a
progressive and stable democracy.

Democracy and Human Rights ( core Civil and political rights):-

Democracy and Human Rights share a mutually inclusive relationship as there can be no human
rights without democracy and vice versa. The existence of this relationship is not new . it is
expressly stipulated in numerous International Human Rights instruments. The udhr provides
that everyone has the right to take part in the government of his country directly or through
freely choosen representatives. It further stipulates that equal access to public service in one’s
country is a right, adding that the will of the people shall be the basis of the authority of
government, this will shall be expressed in periodic and genuine elections which shall be by
Universal and equal suffrage and shall be held by secret vote or by equivalent free voting
procedures.

Their relationship resurfaces again in the International convenient on civil and political
rights( hereinafter referred to as the iccpr), wherein it is provided that every citizen shall have
the right and the opportunity ‘to take part in the conduct of public affairs, directly or through
freely chosen representatives’. in addition, it makes mention of the right to vote and to be
selected at genuine periodic election which shall be by universal and equal suffrage and shall be
held by secret ballot, guaranteeing the free expression of the will of the electors and for
everyone to have access, on general terms of equality , to public service in his country. The
achpr also recognises these relationship as expressly states that every citizen shall have the
right to participate freely in the Government of his country, either directly or through freely
chosen representatives in accordance with the provisions of the law in addition to this, the
achpr articulates the right of every citizen to equal access to public service of his country.

This recognition of the link between democracy and Human Rights is not limited to the African
continent. In addition to stipulating the relationship between democracy and Human Rights,
different regional inter- governmental organization have articulated these as some of their
primary goals. For example the inter-american democratic charter (herelin referred to as the
iadc), proclaimed by the General Assembly of the organisation of American States provide that
the peoples of the American have a right to democracy and their governments have an
obligation to promote and defend it. It also affirms the relationship between democracy and
Human Rights by stating that ‘democracy is indipensable for the effective exercise of
fundamental freedoms and Human Rights in their universality, indivisibility and
interdependence, embodied in the collective interpretations of States.

These different instruments both at Global and regional levels, do provide eloquent evidence
of the right two democratic government across the world. The effect of the substantive content
of these instruments and the right stipulated therein is another legal enlightment in
international law. These instruments provide not only a right to democratic governments. they
also make it an independent civil condition for validating government. this new legal
enlightenment has been created based in part on the customary practices of many states in the
world and partly on the collective interpretation of treaties.

It is difficult to talk a democracy without some level of protection of Human Rights. democracy
is not possible without some level of protection of human rights. For example, people would
not be in a position to participate in free election unless they do enjoy certain minimum of
fundamental Civil and political rights such as the rights of to life, security and liberty of the
persons .freedom of expression participation in government and political Association. respect
for these rights at a minimum, does create a refund environment for meaningful or effect is
political participation and competition.

The contents ,or most of the iccpt, are closely associated with the democratic process and are
intrinsic to democratic governments specially the right to participate in public affairs. This right
depends on the exercise of other rights (such as the right of freedom of expression and
freedom of association) and can only be effectively exercise is this few aforementioned Civil and
political rights are respected other rights related to the autonomy of agency and decision
making, including the right to freedom of thought and conscience and the right to privacy, are
also relevant to the exercise of political rights.

Political rights are essential in a true democracy. the respect for minority rights, the freedom of
individual thoughts and the formation and dissermination of opinion without fear of being
victimized, legal and political equality in state Institutions and processes, are all incidental to
democratic governance, which today, are universally considered to be core values ,if these are
perceived as universally important, any democracy worthy of the name must provide for
processes and institutions that recognise these values, and more importantly, the relationship
between democracy and human rights. Arguably ,as a scholar opines democracy itself is a
universally desirable value.
Democracy human rights and judicial power

The role of the judiciary in the protection of Human Rights is very important. event in systems
where the judges appear to be very weak against governments and Parliaments, judges play a
vital role to the effective protection of human rights for a few reasons. First, there seems to be
a global tendency of constitutional control of legislation, which in the area of Human Rights, has
been influenced by the development of the international human rights regime. Furthermore
judges are bound to interpret norms that are absolutely unequivocal. This is effect
approximates law making to the Judiciary. however there remains the distinction between a
legal provision and a Court decision this distinction may nonetheless, we live essential in the
case of court decisions related to human rights. therefore the decision of courts in human rights
cases are of tremendous significance in its jurisprudence and evolution as they make a
difference between a right, a right defended, and a right denied. In summation, they determine
the justifiability of a right.

But all of judiciary in promoting democracy and good governance

Basic structure theory:-
Judiciary is the final arbiter interpreting constitutional arrangements. It is in fact the guardian
and Conscience keeper of the normative values and rights that are authoritatively allocated by
the state in India the major source or for rights is constitution and it is mainly based on the
concept of AC rule of law. To ensure the rule of law in all governmental activities, higher
judiciary provided with us special power namely the judicial review power to monitor
governmental actions to put them within the limits of constitution.

In this journey Judiciary provided with Judicial review power to safeguard the rights of the
people from arbitrary action of the government to uphold the democratic spirit of the
constitution. But there were so many incidents happened in india, which are threat for
democratic governmence. Generally Government and governance are two very similar words
and people are often confused about the difference between the two. In fact Goverment is a
group of people who rules for run the administration of our country. On the other hand govern
in is the act of governing or exercising authority. Good governance is an intermediate term used
in international development Circles to describe how people Institutions conduct public affairs
and manage public resources. it involves the process of decision making and the process
through which decisions are implemented or not moreover good governance has some major
characteristics.

Conclusion

It is the duty of the government as a majority based representatives for people to protect the
democratic character of India, after that it is the duty of the opposition to protect autocracy of
the government. The opposition capitalized on the meteoric of political computation and the
important nuances of the courts decisions had no place amidst the anger against the incumbent
and the delirious support for the opposition, prime examples were the issues of black money
and coal allocation (where interestingly allocation wed cancelled across all governmental).
Search issues where sensationalized and caught the public imagination ending the region of the
Grand old party.The current regime however they cannot escape The urgent problems of
governmence ranging from regulator uncertainty in power sector, and issues pertaining to
manufacturing to those of acquisition of land, education reforms and the ever increasing
challenges in forest conservation and rising gender crime. Recently the Supreme Court has
reminded our democracy that the jubilance of an election victory has not allowed us to time
travel into our utopian land of prosperity.

The Chief Justice of India set up a special bench on issues of Social Justice. This bench would
look into matters of public interest especially regarding issues of the underprivileged, public
distribution of Food and Public Health. The opposition must realize that it has must respond to
new forms of Government and the need is constructive critique. Parliament is the quintessence
of democracy and the opposition the voice of dissent. The government will promote each bill
and policy as a step towards progress. At the same time it is also the duty of every citizen to
protect their country like a soldier, whenever there is a threat to constitutional sprit. if the
opposition and citizens fails to offer worked out alternatives, one can find the Judiciary being a
custodian of the constitution occupying the space in India's democracy to protect and promote
constitution and spirit and good governance. In a democracy, you need to have a strong judicial
system.

2. ‘The ADR mechanism provide complete justice engaged in conflict and legal
disputes’ critically analyse ?
Ans. INTRODUCTION:

The justice delivery system in any kind of civilization is an important aspect in order to maintain
peace and harmony amongst its people. It has an effective role in preserving public interests in
the society. There has always been the need to create some kind of system so has to maintain
order. The systems followed by different countries depend on the kind of history they had in
the past. For instance, in India the judicial system is highly influenced by the British system due
to the colonial rule that ranged for several centuries. Courts are integral part of this system and
they have over the years enabled us to be aware of our rights, liberties and liabilities as persons
residing in the society. Dispute resolution has always been part of human civilization since time
immemorial. Thus an effective justice delivery system is of utmost importance.

The Preamble to the Constitution of India highlights the importance of ‘social, economical and
political’ justice that needs to be provided to the fellow citizens. Although it has been a noted
fact that the litigation in our country takes years to be over and a lot of costs are incurred in the
meantime. It is rightly said that “Justice delayed is justice denied” and this happens to be the
experience by litigants in most of the cases. This in turn makes it difficult to achieve the goal set
by the Constitution of India as well. As Indians are becoming more conscious of their rights the
burden on the adversarial courts are increasing on a daily basis and it is getting difficult on their
part to cope with the ever increasing demand for material and human resources with
inadequate supply. The backlog of the cases seems to increase thus extending the years
required to close a case.

The role of ADR (Alternative Dispute Resolution) mechanism thus comes into picture whereby it
is poses itself as the need of the hour in dispensing justice. It has been observed by industry
practitioners and researched that the formal court system does not seem conducive in the
interests of public at large with the increasing change in the society. For example a brand which
is in a legal dispute in the courts of the country may lose its value in the eyes of the public. Here
comes the need to turn towards another or alternative dispute resolution mechanism. The
paper will try to trace the history of the ADR mechanism as well as explain the efficiency of it in
delivering justice in modern times like these.

BACKGROUND:
The justice delivery system in India consisted of courts when it was governed or controlled by
different empires. These King’s court usually laid down the decisions whenever any dispute
arose amongst its residents. After the East India Company took over India in the 1600 A.D.
there were several changes made to the social structure of the Indian society. The changes
were also done in case of the justice delivery system. The system that took the form was
‘adversarial’ in nature meaning the parties had to find substantial evidence to prove their point.
This system has been determined as costly and causing delay in the delivery of justice. This
constitutes a discouraging reason for citizens of the country to utilize legal recourse. Although
the Government has from time to time made an effort to bring about change in this system, the
problems have still persisted due to the ever changing landscape of trade and commerce. This
influences the lifestyle and choices made by individuals which have the potential to attract legal
recourse in case of failure.
The ADR in true sense uses the word ‘alternate’ or ‘another’ in the sense to differentiate
between the court room litigation and non-court dispute resolution. The increasing
bureaucratization, use of law and depersonalization of social life are the significant pointers for
the ADR movement. Gandhi too throughout his career had seemed to have advocated use of
mediation to resolve disputes among persons instead of resorting to the formal court structure.
The ADR mechanisms used in the country are not new to the Indians as it had been pre existing
before the advent of the British. The reintroduction of it and the influence of the West in the
statues render it a new concept. The ADR includes within itself mediation, negotiation,
arbitration, conciliation and such others. The main aim of these mechanisms is to settle the
dispute mutually and amicably between the disputants. Globalization has introduced several
changes in the way trade and commerce is been conducted and the alternative dispute
resolution stands in conformity with this changing nature of it. This will ensure that the formal
courts system are not over burdened with additional new cases and it will also enable the
disputants to have access to speedy trials. These methods do not have intention to replace the
already existing court structure but in fact are a source to lend a helping hand to make available
timely justice to the public.

ACCESS TO JUSTICE:

The Constitution of India guarantees each citizen an uninterrupted right to avail speedy justice.
Article 14 makes sure that all citizens are provided equality before law and given equal
opportunity as well. Whereas Article 39A ensures that legal system in the country promotes
justice without any kind of hindrance with regards to economic or other disabilities. In order to
constitute easy access to justice it is important that the disputants have access to courts, there
is a presence of effective decision making by the judges and that it is followed by proper
implementation of those judgments. Although this right was recognized by the Law Commission
of India according to its 14th report there have been deficiencies to comply with the same. The
foundation of the right to gain speedy justice has been laid down in the Supreme Court’s
judgment of Hussain are Khatoon vs. State of Bihar in which Justice Bhagwati states that “No
procedure which does not ensure a reasonably quick trial can be regarded as ‘reasonable, fair
or just’ and it would fall foul of Article 21 of the Constitution. There can, therefore, be no doubt
that speedy trial and by speedy trial we mean reasonably expeditious trial, is an integral and
essential part of the fundamental right to life and liberty enshrined in Article 21.”This
emphasizes on the need and importance of the right guaranteed by the Constitution of India.

HINDERANCES FACED BY SPEEDY JUSTICE:

Delay has been regarded as the most prominent reason to come in between of speedy and
efficient trial. This results into loss of public confidence in the justice delivery system. Hence
through ADR the State tries to make sure that the disputants are awarded justice and that the
neglect does not lead to plurality of cases further. The multiple appeals structure has also been
a detriment in order to cause delay in the justice delivery, inadequate judges resulting due to
lot of vacant positions in the Courts, unnecessary adjournments provided during a case are
some factors among several others. This is where the ADR mechanism comes into the picture to
take over the additional cases that come along while dispensing justice. Thus several statutes in
India have started providing an option to avail to these ADR mechanisms before knocking the
door of the courts.

SEC 89 OF CPC:
The Malimath Committee had recommended the need for including the ADR mechanisms into
it. The section was reintroduced by amending it in 2002 whereby the provisions made a
mention of judicial disputes through arbitration, conciliation and/ or court annexed mediation.
After which the challenge faced was to train the judges to deliver justice in consonance with
them. The mechanism in this provision needs to be encouraged by practicing lawyers and
judges. The people must be made aware of the availability of options in order to get effective
justice for the disputants in order to end it mutually. The Mediation rules had to be framed so
as to ensure its compliance with the judgment of Salem Bar Association case given by the
Supreme Court. The Courts before deciding any case have to make sure whether recourse can
be provided through ADR mechanism and if so it should be undertaken by them. If an
agreement consists of similar clauses then it is the duty of the Court to refer such cases to the
appropriate ADR mechanism. Along with this, there are several other provisions which express
the need to resort to ADR mechanism in case of dispute. They are Industrial Disputes Act, 1947,
Sec 23(2) of the Hindu Marriage Act, 1955 and Sec 9 of the Family Courts Act, 1984.
ARBITRATION:
The mode of Arbitration is available to disputants in India and it has been inserted in the statue
as well. It is a binding form of justice delivery mechanism. The award passed by an arbitral
tribunal is considered equivalent to that of a decree of a civil court. It was first introduced
through a statue in 1940 which was known as the Arbitration Act, 1940 but it suffered through
various deficiencies. Today we comply with the provisions laid down in Arbitration and
Conciliation Act, 1996 which has been found to be comprehensive and in compliance with
international treaties and conventions. There are four kinds of arbitration methods:

A. Ad hoc arbitration
B. Institutional arbitration
C. Statutory arbitration
D. Foreign Arbitration
In ad hoc there is no institution to administer the process whereas institutional arbitration
mostly involves it to administer the process. Statutory kind is due to the operation of law and
foreign is when it takes place outside India. The Act of 1996 governs both domestic as well as
international arbitration, enforcement of award or appeals in case needed. The Act contains
Schedules which lay down the qualifications of an arbitrator; provisions in case of foreign
conventions that are applicable are also mentioned in them. The recent amendment to the Act
of 2019 makes an attempt to make India the hub of arbitration proceedings like Singapore in
case of both domestic and international arbitration as well. The mode of arbitration is widely
used wherein the parties involved through a contract make a separate document or add a
arbitration clause in the agreement to express the desire to take the dispute in front of an
arbitrator (in case of single person) or arbitral tribunal whenever any dispute arises. This
method is similar to court procedure for a layman but in fact it does not include several
procedural aspects of law. The 2019 provision also makes the whole process time bound which
ensure speedy delivery of justice. This provision is said to increase the effectiveness of the ADR
mechanism.

CONCILIATION:
It is a non adjudicatory process whereby there is a presence of neutral third party who tries to
resolve the dispute between the parties involved amicably. The conciliator plays an active role
during which he gives his/her suggestions and views. The Industrial Disputes Act of 1947 makes
provisions for appointing conciliating officer or a board of conciliators. The Supreme Court in
Punjab & Sind Bank vs. Allahabad Bank, 2006 held that the directions given in ONGC III, 2004
have to be followed whereby the disputes between the government departments and public
undertakings come to litigation only after having the opportunity of conciliation before an in-
house committee. The outcome of the proceedings is such that they are not binding in nature.
The procedure as well does not strictly follow the provisions laid down in various other
enactments for example the provisions of Evidence Act may not be applied. This avoids
complexities of procedural laws in order to ensure that the disputants are made available
speedy redressal of their issue.

MEDIATION
It is a form of dispute resolution mechanism where there is a neutral facilitator appointed who
mediates and structures the process. A mediator uses special negotiation skills as well as
communication technique which help the parties to reach to a common outcome. This mode of
ADR is used in order to maintain cordial relations in the future as well. The main aim of the
process is to satisfy the interests of all parties involved. The provisions of Sec 89 provide an
option to the parties. The mediation process can be of two types:
A. Court annexed mediation
B. Private mediation
In the first kind the Court while deciding a matter asks the parties to use the method in order to
get the necessary results. The second kind is when the parties independently and voluntarily
resort to medium of Mediation without the intervention of the Court. The Supreme Court in the
Salem Advocate Bar Association vs. Union of India held that there should be a Committee
established to frame rules for mediations in order to reduce the burden on the regular courts.
The Mediation process has been formally introduced in India only after the year 2005. Court
annexed mediation in India mostly is faced with cases involving matrimonial and family disputes
such as divorce, restitution of conjugal rights and such others. The success of this mechanism
depends on the willingness of the parties involved. Thus enables them to be more problem
solving centric.

NEGOTIATION

It is another mode of ADR mechanism recognized in India even though there are no statutory
laws relating to it. Negotiation is a process wherein a neutral third party by analyzing the
different issues tries to bring the parties to sign a mutually agreed upon agreement. This
practice is mostly followed in businesses whereby in order to avoid further disputes the parties
through negotiations make changes in the existing contracts.

LOK ADALAT
The concept of Lok Adalat has always been a part of the Indian society but it existed in different
form. The Lok Adalat which literally means People’s Court is basically considered to have been
derived from Gandhian principles. The concept had lost its significance during the regime of the
British. The salient features of this mode of ADR are considered to be justice, fairness,
voluntariness, neighborliness, transparency and efficiency. It is a forum whereby the parties
come in order to settle their disputes. The first of its kind was organized in Gujarat on 14th
March 1984. The Legal Services Authorities Act, 1987 made it statutory in nature later. The
whole purpose of this ADR mechanism is to provide speedy and free legal aid to the people of
the society. These kinds of courts make sure that they provide long lasting solution to the
parties. The matters relating to family and matrimonial disputes, bank and insurance cases and
motor accident claims are usually looked over at Lok Adalat. They have proven to be efficient in
solving motor accident claims tribunal cases on a large scale and this has been supported by
several reports. But it is also observed that the lok adalats have fallen prey to providing speedy
justice because of which they try and force the decisions made by them on the litigants. This
violates the right of an individual to have a fair hearing. Many judges who are retired judges try
to impose their views and opinion on the parties of the dispute. This takes away the essence of
the whole mechanism.

EFFICIENCY
The ADR mechanism in India has mostly being considered efficient in itself through timely
amendments as they ensure that the justice is delivered to parties instantly as compared to the
regular court. The whole mechanism ensures that the interests of parties are treated as the top
most priority except in case of Arbitration and Lok Adalat through other modes the outcome is
somewhat determined by the disputant parties themselves. The ADR mechanism ensures the
parties a win-win situation to some extent. It is less time consuming and inexpensive when
compared to the formal court procedure. Various matters relating to matrimonial, intellectual
property rights, industrial disputes, family matters are taken up to the mechanism. This shows
that the over evolving nature of the India society is rightly recognized by the ADR mechanism to
be included with them. The atmosphere is usually cordial which enables the party to leave with
a satisfied outcome and there are no ill wills at the end of the dispute. The Lok Adalats have
proved to be an excellent mechanism to have settled large number of cases. Arbitration with its
reach in case of international commercial arbitrations has placed India on a global map in order
to dispense justice at all times. The efficiency in justice delivery throughout India has definitely
been effective by helping to dispose of large number of cases along with regular courts.

CONCLUSION
The ADR aspect in independent India has been taken from American jurisprudence where they
first started the process of entrusting the disputants to ADR mechanism. It is quicker cheaper
and more user friendly than the regular courts which increases the chances to utilize them. The
adversarial system of deciding cases usually does not end with an outcome that is satisfying for
both parties which seems to be the major drawback. The ADR mechanism do not try to replace
the formal structure of courts rather it is an alternate source to ensure that the large pendency
of cases are minimized and the individuals are ensured right to speedy justice as enshrined in
the Constitution. It saves time of the Court and makes up for the inadequate resources of the
justice delivery system. India with unprecedented times like these have to make sure that there
are provisions in future that will enable online dispute resolution. The ministry of justice has
facilitated e-courts along with which there must be platforms to carry out mediation via online
modes as well. It is also necessary to impart the required training and making judges and
lawyers aware for the need to resorting to ADR mechanism whenever possible. The changing
scope of inferred that the justice delivery mechanism in the form of ADR has been efficient
being in consonance with modern day law.

3. Analyse the need and efficiency of the UN-CITRAL model laws and its
application in the Indian legal system?

Ans. The United Nations Commission on International Trade Law (UNCITRAL) was established
by General Assembly resolution 2205 (XXI) on 17th December, 1996. The Commission’s object is
promotion of the progressive harmonization and unification of the law of international trade.
The Commission consists of 36 (thirty-six) States representing various geographic regions and
the principal economic and legal systems of the world. Ever since its inception, India has been a
member of this Commission. Largely at the instance of the Asian-African Legal Consultative
Committee and on the basis of extensive deliberations held in its Working Group on
International Contract Practices and consultations with arbitral institutions and individual
arbitration experts, the Commission adopted the Model Law on 21st June, 1985. The Model
Law is not a treaty and does not, therefore, require the State to enact its national law in terms
thereof. There are, of course, obvious advantages in following its terms in as close a manner as
possible as this will enable a country adopting the Model Law to integrate its legal system with
the emerging law of international trade.

The General Assembly, by its resolution 40/72 of 17th December, 1985, recommended that “All
states give due consideration to the Model Law on International Commercial Arbitration, in
view of the desirability of uniformity of law of arbitral procedures and the specific needs of
international commercial practice”. A number of countries including Australia, Bahrain,
Bermuda, Bulgaria, Canada (by the Federal Parliament and by the Legislatures of all Provinces
and Territories), Cyprus, Egypt, Finland, Hong Kong, Hungary, Mexico, Nigeria, Peru, Russian
Federation, Scotland, Singapore, Tunisia, Sri Lanka and within the United

States of America, California, Connecticut, Oregon and Texas have enacted law to give legal
force to the Model Law within their jurisdictions.

Some countries like Canada, Australia and Hong Kong have attached the Model Law as a
schedule to their enactments while giving the force of law to it within their jurisdictions. Some
others like the State of California in the United States and the Province of British Columbia in
Canada have used their own drafting formulations for giving legal effect to the Model Law.
Some countries like the Netherlands have enacted their arbitrations law that is claimed to be,
to a large extent, compatible with the Model Law. While drafting the Ordinance, the
International Commercial Arbitration Act, 1986, of British Columbia was taken as a model, for it
conformed largely to the Indian drafting style. Though the drafting style of the Act differs from
the Model Law, it does not differ in its language from the Model Law in any respect.

The ‘Act being based on the Model Law which is also broadly compatible with the Rules of
Arbitration of the International Chamber of Commerce [hereinafter (lie “CC Rules”]’, puts India
on the International map of arbitration. The most significant feature of this Ordinance is the
recognition it accords to the freedom of the parties with minimal restrictions in carrying out the
arbitration agreement between them. In certain respects, the Act constitutes an improvement
over the Model Law in as much as it nearly takes away the role of Courts except in very limited
matters. Though the Model Law was conceived in the context of internationally commercial
arbitration, the Ordinance uses it, with certain modifications, as the basis for domestic
arbitration of all arbitral disputes. It was felt that a wells conceived law for international
commercial arbitration would be equally appropriate i.e., for domestic arbitration. The
Secretary-General of the United Nations has also emphasized the desirability of a State avoiding
a dichotomy within its arbitration law between the law applicable on domestic arbitration on
the one hand and the law applicable on international commercial arbitration on the other.

The ICC definition of International Commercial Arbitration is wider and does not link up the
international character with the nationality of any individual or body or company etc. But the
European Convention of 1961 and the New York Convention of 1958 as well as the English Act
of 1975 link up the definition with nationality of the parties. The English Act of 1979 further
allows parties who conduct arbitration in England and give up the right of appeal to courts by
agreeing to such exclusion, if the arbitration is international. The word ‘commercial’ has a
restrictive meaning arid excludes disputes in regard to boundaries, political matters,
employment and family disputes. This aspect can be better understood by referring to the
jurisdiction of the English Commercial Court which deals with disputes arising out of trading and
other commercial relationships. The UNCITRAL Model Law however, treats an arbitration as
international on the basis of residence of party or of place of arbitration or place where
obligations are to be performed.

On the other hand, the English Arbitration Act in England defines ‘Arbitration Agreement’ in
general and provides a separate definition of ‘Domestic Arbitration Agreement’ as one where
none of the parties is a national or normally resident in a state other than U.K. or a body
corporate outside U.K.

Most arbitration laws states that the arbitral procedure including the constitution of the arbitral
tribunal shall be governed by the will of the parties and by the law of the country in whose
territory the arbitration takes place. Under section 20 of the Indian Arbitration Act, 1996, the
parties are free to agree on the place of arbitration failing which the place shall be determined
by the arbitral tribunal, having regard to the circumstances of the case including the
convenience of parties.

Section (3) of the English Arbitration Act deals with the ‘seat’ and is substantially the same. The
UNCITRAL Model Law speaks about the application of the provisions of law of the place of
arbitration. It is possible that an arbitration procedure may be agreed upon which could be
different from the one of the seat of arbitration. Again, ‘the fact that the meetings are held in
different countries is not relevant, if parties are otherwise agreed by the law or the seat of
arbitration. These principles are part of English law and also of the UNCITRAL Model Law.

Parties should make sure that the law so chosen permits the particular commercial dispute to
be resolved by arbitration for their countries which exclude arbitration in so far as copyright,
patent law, anti-trust matters etc., are concerned. They mandate adjudication on these subjects
through the regular national courts only. This question arises in the context of the validity of
the arbitration clause. The U.S. Supreme Court has however decided in the Mitsubishi case [473
U.S. 614 (1985)] in a liberal fashion, that a Sherman Act anti-trust claim may be subjected to
arbitration when the dispute arises in an international context.
It is also necessary to see that a particular country is chosen as the seat of arbitration, so that
the award passed in that country is by treaty or otherwise enforceable in the country where it is
to be executed (such as the 1958 New York Convention). It is also necessary to choose a
country where the award is reviewable by the courts, either liberally or rigidly as the parties
may desire.

The Section 19 of the Indian Arbitration Act, states that parties are not governed by the Code of
Civil Procedure, 1908 or the Indian Evidence Act, 1872 and that the parties are free to agree on
the procedure to be followed by the arbitral tribunal in conducting the proceedings, failing
which the tribunal could conduct proceedings in the manner it may be considered appropriate.
Section 34 (f) of the English Arbitration Act permits the parties to agree on which strict rules of
evidence are to apply or not.

Sections 17 and 18 of the English Act which lay down the procedure for appointment of
arbitrators appear to be rather complicated and might result in delaying the proceedings. The
provisions of the UNCITRAL model and of the Indian Arbitration Act, 1996, are comparatively
simpler and would seem to be more effective. Further, the Model Law and the Indian law have
no provision for an umpire while the English Arbitration Act retains such a provision for umpire
and the umpire is required to attend the various sittings along with the arbitrators.

The UNCITRAL Model Law contains the grounds for setting aside the award. Section 34 of the
Indian Arbitration Act is almost verbatim and the same applies to awards passed under
domestic law as well as to awards passed in India in relation to any ‘International Commercial
Contract’.

The Indian Arbitration Act contains a special provision that an award is to be deemed contrary
to ‘public policy’ if it is induced or affected by fraud or corruption or was in violation of section
75 (confidentiality) or section 81 (admissibility of evidence in other proceedings). The words
public policy of India in Section 34 are applicable for setting aside awards passed in India (in
relation to International Commercial Contracts). The words ‘public policy of India’ are also used
(section 48(2) (b)) in relation to execution and recognition of foreign awards subject to the New
York Convention. In respect of the foreign awards which are recognised or executed in India
under the Geneva Convention they should not be contrary to ‘public policy’ or the law of India.
These latter words also occurred in the 1961 Indian Act and were interpreted by the Supreme
Court in Renusagar& Co. v. G.E.C.
 In England before the 1979 Act, an appeal was available for an ‘error of fact or law on its face’
and there was the special case procedure. But under the English Act of Law, the provision for
appeal was wider and was allowed on a question of law under the English Arbitration Act. The
appeal under Section 67 is available in regard to substantive jurisdictional errors. Under Section
68 if any of the procedural irregularities enumerated exist and under Section 69 on questions of
law. Appeals can be brought by consent of all parties or with the leave of court.

The provisions of the English Arbitration Act are wider than the existing provisions under the
1979, where law are far more liberal. Under the 1979 Act as also under the English Arbitration
Act, if the award is not to contain reasons, there is no appeal. English courts have held that if
ICC Rules apply, providing that arbitral award shall be final, that excludes appeal (vide Arab
African Energy Corpn. Ltd., Vs Olieprodukten Nederland B.V.,), and parties could also agree to
exclude appear (Marine Contractor 's Inc. Vs Shell Petroleum Development Co. of Nigeria Ltd.,)

From the aforesaid discussion, it is clear that the various countries law in regard to international
commercial arbitration has made a great leap forward by following the UNCITRAL Model. The
existing law has been modified removing several bottle necks and the Act will certainly bring
about more confidence in the international commercial community.

4.The efficacy of alternative mode of justice delivery system in the process of

modernization of law in the pre and post constitutional era.

ACCESS TO JUSTICE IN INDIA

The present mode of access to justice through courts, followed in India is based on adversarial
legalism. The adversarial system of law is generally followed in common law countries, and is
characterized by the state's neutrality and in which the parties are responsible for initiating and
conducting litigation except in criminal matters wherein the state initiates the proceedings.5
This mode of access to justice is an inheritance from the British and was implemented by the
British government to exploit the Indian masses. The whole set up was for the benefit of the
power holders and not for the power addressees. In this method there was no parity of power
between the parties to the dispute and it was plagued by high cost, delay, uncertainty and
exploitation of parties by advocates. This mode of access to justice displaced the community
justice system as well as the last vestiges of the inquisitorial model, which was prevalent in
ancient India. This inherited mode of access to justice is unable to deliver as it is a relic of
colonial rule, was born out of the need of the colonial masters to perpetuate their dominance
and was thus primarily designed for the same, with 'justice' being more or less an afterthought.
It was fashioned to provide a semblance of justice so as to avoid dissent, which is but the
natural fallout of denial of the same. Real and effective justice, for obvious reasons, was not a
priority of the colonial masters. The system prevalent then, and unfortunately for us, still in
continuation is inherently partial to the well heeled. It discriminates on economic grounds,
creating disparities right at the outset, de facto denying to some even access to the institutions
of justice delivery. And the de facto denial is a consequence of us trying to work de jure
equality6 through a mechanism at odds with it, on account it being inherently iniquitous. After
the independence when the Constitution of India came into being the approach towards access
to justice was redesigned and modified, and an attempt was made to bring parity of power in
modes of dispute resolution. The preamble of the Indian Constitution resolves to secure for all
its citizens, justice-social, economic and political. Further, Article 14 of the Indian Constitution
reads as follows: “Equality before Law - The State shall not deny to any person equality before
the law and the equal protection of the laws within the territory of India.” The words “equal
protection of laws” indicates two things: Firstly that every person is entitled to protection of all
the laws of the land, and secondly, every person within Indian territory is equally entitled to
that protection. Article 14 casts a duty on the State to deliver the substantial promise of the
laws, in other words the state has been imposed with a duty of delivering justice to all the
people within the territory of India. In addition to this, Article 256 of the Indian Constitution
provides for two important things firstly, it obliges the State governments to implement the
laws, which are the laws passed by the State and Union Legislatures. Secondly, on failure to do
so, the Union government is under an obligation to direct the State government to implement
the laws.7 Thus under the Constitution, a strict duty is cast on the State to ensure that there is
compliance with every law. Therefore from the abovementioned, it is logical to conclude that
even the violation of a private right casts a duty upon the state to initiate proceeding against
the offender. Thus, from a reading of the abovementioned provisions one can infer that the
Constitution discarded the adversarial mode of adjudication and impliedly adopted the
inquisitorial mode. But that idea, unfortunately has not reified as yet, and the old model though
in dissonance with fundamental provisions of our Constitution is still operative.

ACCESS TO JUSTICE IN ANCIENT INDIA

In the ancient India, legal process was governed by the principles of Rajadharma, which was
akin to modern day Constitutional law. Rajdharma unequivocally stated the laws (dharmas)
precedence over the King. The law was the king of kings and nothing was superior to law. All
Dharmas merged into the philosophy of Rajadharma and it was therefore, the paramount
Dharma. The ancient polity could in fact serve as a classic example of a trans- personalized
power system. Rajadharma envisaged a mechanism wherein the mere fact of information of
violation was enough to set the law into motion. The King, under the codes of Rajdharma was
bound to take cognizance, and therefore bringing a matter to his notice was enough to render it
fit for judicial proceeding. Furthermore procedural law was not much emphasized in ancient
India and this in turn was in keeping with the rule that justice shall never be denied on account
of the mere technicalities of the law. Under the principles of Rajdharma the administration of
justice was accorded great importance for Rajdharma declared the same to be the personal
responsibility of the King. He was required to preside over the highest court and render justice
to the litigants, as well as punish the offenders in an impartial manner. “Law is the king of the
kings; nothing is superior to the law; the law aided by the power of the king enables the weak
to prevail over the strong.” The beauty of this verse is that it emphasis on the parity of power
between the parties and if there is no parity of power than it is the duty of the king i.e.,
executive to provide help to the disadvantaged so as effectuate the equality principle. Parity of
power between the parties was maintained under all circumstances. Kautilya stressed the
importance of personal attention to be given by the King at judicial work. “All urgent cases
should be heard once, but never be put off; for such postponement may complicate matters
and make the decision even more difficult.” The above verses hint that there should not be any
hindrance in access to justice and it is the duty of the state to provide easy access to justice.
The King was exhorted to ensure speedy justice and access was not restricted by any covert or
overt means. If any one injured on account of violation of a law of the Smiritis were to simply
inform the King, the matter would be fit for judicial proceeding.12 Thereafter the onus of
investigation in order to get to the bottom of the matter was the state's; which was then in
keeping with the concept of a welfare state of now. In the medieval period also during the rule
of Mughal Emperor Jahangir, Justice Delivery was regarded as the most important duty of the
state. To ensure easy and obstacle free access to justice, a gong was hung outside the palace of
the Emperor, a person seeking justice had to just pull the chain in order to have his grievances
redressed by none other than the Emperor himself. The whole process underscored the
importance of a mechanism that made possible equitable and unrestricted access to justice.

CONCLUSION

The Informal modes of access to justice are not to supplant the formal modes of access to
justice rather to supplement them. But as we have already discussed in this paper that the
Informal modes of access to justice which includes Nyaya Panchayats, lok adalats, Negotiation,
Mediation, Conciliation, Arbitration and Institution of Ombudsman working in India, are not
adhering to the principle of parity of power and are also not in consonance with the
constitutional mandate. The institution of Nyaya Panchayat is providing easy access to justice to
the people living in villages but it’s not only about an access to justice rather one should be able
to get justice. The problem is that the powerful factions of the villages are substantially using
the nyaya panchayats for their favour at the expense of justice. The lok adalats are also working
well and helping courts in relieving their burden but the approach of lok adalats towards the
dispute resolution is conciliatory which involves waiver of right and it is against the article 14 of
the constitution. The other mode of informal dispute resolution like negotiation, mediation and
conciliation are not effective because a mediator or a conciliator has no power to order a party
to appear and defend a claim. Nor can a mediator or conciliator compel the losing side to
comply with a decision. Moreover these mechanism of dispute resolution they involves waiver
of right which is against the article 14 of the Constitution. As far as Arbitration is concerned the
award of arbitrator is binding, thus satisfying the coercion count but as the Arbitration and
conciliation act provides for the waiver of the right it is against the principle enshrined in article
14 of the constitution. Another lacuna is that it is based on the adversarial model of litigation
which results in delay and high costs. The institution of ombudsman popularly known as office
of “lokayukta” is not provided with the requisite machinery and powers by the respective state
legislation and is thus not working effectively. Although these modes of informal access to
justice were premised on good intentions, their manifest effects are to the contrary. This is
confirmed by the facts as have been aforementioned in the course of this paper. The primary
and fundamental flaw being that despite making access to the instrumentalities involved easier,
the very quality of justice that they are employed to deliver is warped by their processes. As has
been reiterated time and again through this paper, these modes are inclined more to afford
convenience to the state than to deliver wholesome justice, and that holds true for the formal
modes as well. The quality of justice (the use of the word justice being malapropos here) in the
true sense is made ineffectual to a great extent by it being moored in inequitable postulates.
The apocryphal notion that the adversarial system sub serves the object of justice better is
exposed by its inherent inconsistency with Article 14, which is as compendious an articulation
of the principle of equity as possible. Article 14 impliedly advocates the implementation of an
inquisitorial system premised on the parity of power. We can also draw inspirations from the
principles of Rajadharma which is based on the inquisitorial pattern. What we need is model
which can suit our society and principle of Rajadharma answers the present problems of the
Indian society. The principles of Rajadharma are embedded in the Constitution also. Under the
Constitution it is the duty of the state to provide equal protection of laws and to enforce
compliance with every law. Thus a state has to play a pro-active role in providing justice; what is
required is a reading and enforcement of the Constitution in the true spirit.

5. Critically evaluate the legislative mandate of Lok Adalat system and also
analyse the power of Judicial review on the award passed by the Lok Adalat
Ans. The first Commandment to our legislative freedom fighters ought to be to bury these
codes and the Evidence Act but re-create a simple, spacious, modern, and business
management oriented code with scope for judicial initiative in doing justice to the people”.
…….Justice Krishna Iyer
The Indian Constitution is based on the concept of welfare state. It is the duty of the state to
secure access to justice to its citizens by ensuring judicial and non-judicial forums of dispute
resolution that provides timely and effective justice and enforcement of their legal and
fundamental rights. Ignorance, poverty and other social infirmities should never become
barriers to securing justice.
It is settled now that free legal service must be provided to the indigent person, who cannot
defend themselves in a court of law due to the financial reason and others and now it also
mandatory under Article 39-A and Article 21 of the Indian Constitution.
Delivering justice to the people, rich or poor is not a trivial problem but a question of
fundamental character. It is a duty of the State to provide a judicial system where its people are
enabled to have justice without any delay on the part of the judiciary. Moreover it is a true fact
that we are today badly fed-up with obsolete irritating and isolationist ways of administration
of justice.
We need a legal system which has the ability to deliver speedy justice at the least cost. We have
been compelled by the urgencies of time to look forward for new means and methods as an
alternative forum to the existing legal system.
The law has to help those poor who do not have means to fight their causes. The Constitutional
Mandate rescue operation began with justice V.R. Krishna Iyer and Justice P.N. Bhagwati’s
Committee Report, weaks section thus become enable to approach law court’s right from
Lower courts to the Supreme Court. CILAS (Committee for the implementation of Legal Aid
Services) also come on the scene. Based on this states adopted (through state legal Aid and
advice Boards) Lok adalat.

It is admitted fact that the Constitution of India, 1950 made the first promise to the republic is
the justice. It means that the state will execute the pledge of justice in favour of millions who
are republic.
The Preamble secures to all the citizens of India – Justice- Social, economic, and political. The
expression Justice briefly speaking its ―the and Legal Aid Camps, Family Courts, Village Courts,
Women Centres Consumer Protection Forums, etc which are but various facets of effective
Alternative Dispute Resolution system. Constitution of India103 is the ground-norm of this
country; it contains provisions which indicate promotion of justice harmonious reconcilement
of individual conduct with the general welfare of society.
Article 21 declares in a mandatory tone that no person shall be deprived of his life or his
personal liberty except according to procedure established by law.
The word ―life and liberty are not to be read narrowly it is very wide in its sense.
In Hussainara Khatoon Vs. Home Secretary, it has been interpreted that right to speedy trial is
also a part of the right to life and personal liberty. The Supreme court has allowed Article 21 to
stretch aims as wide as legitimately can.
Article 39-A obligates the State of secure that ―the operation of the legal system which
promotes justice, on a basis of equal opportunity, and shall in particular provide free legal aid,
by suitable legislation or schemes. Thus promotion of justice is most important function of a
state and ADR mechanisms helps in it. Hence much legislation like Arbitration and Conciliation
Act 1996; Section 89 of Code of Civil Procedure; Legal Services Authority Act 1987 have been
passed to promote justice.

The guarantee of equality before law gives hardly any satisfaction to a poor man if there is no
one to tell him what the law is or that the courts are open to him on equal terms as to other
persons. The bitter truth is that the philosophy of equality before law can really be made
meaningful only when the price of admission to opportunities for justice can be equally paid.
There can hardly be said equal access to justice where one litigant is rich and other poor
because the rich litigant may purchase justice with his heavy purse while the poor may not do
so. The philosophy of equality before law, therefore, can be put into action when the law is
loaded in favour of weak and can afford him an opportunity to have an access to courts vis-a-
vis, through agencies like Lok Adalats. Though Article 14 does not explicitly talk of Lok Adalats,
but it is implied from its spirit that State must create conditions whereby existing economic
disabilities are removed and social equality in its true perspective is established.
The Supreme Court of India, keeping in view the philosophy envisaged in our National Charter,
observed:
"The rule of law does not mean that the protection of laws must be available only to a
fortunate few or that the law should be allowed to be prostituted by the vested Interests for
protecting and upholding the status quo under the guise of enforcement of their civil and
political rights. The poor too have civil and political rights and the rule of law Is meant for them
also, though today It exists only on papers and not In reality.... So far the Courts have been used
only for the purpose of vindicating the rights of the wealthy and the affluent. It Is only those
privileged classes which have been able to approach the Courts for protecting their vested
interests, it Is only the moneyed who have so far had the golden key to unlock the doors of
Justice .... They have been crying for justice but their cries have so far been In the wilderness.
They have been suffering Injustice silently.... 8ut time has now come when the Courts must
become the Courts for the poor and struggling masses of this country..,. It Is true that there are
large arrears pending in the Courts, but that cannot be any reason for denying access to justice
to the poor and weaker section of the community. No State has right to tell Its citizens that
because a number of cases of the rich and the well-to-do are pending In our courts, we will not
help the poor to come to the courts for seeking justice until the staggering load of cases of
people who can afford, Is disposed of.".
Time has now come to realise that there is a dire need to make judicial system an effective
instrument of equal justice. Lok Adalat is playing a vital role in bringing about t
his change. It is through this novel system that the problems of the poor are coming to the fore-
front and the entire theatre of law is changing. There is a need to update Legal Justice to
legitimise progressive urges, discern the reality of social changes and design its delivery system,
so as to obviate the dominance of the poor by the rich and accelerate the people's access to
effective justice.
Lok Adalats are intended to provide quick justice at less expenditure. The Legal Services
Authorities Act, 1987 makes provisions in relation to the establishment, power and functions
etc., of Lok Adalats. Lok Adalats are organized to promote justice on a basis of equal
opportunity and not to deny the justice to any citizen by reason of economic or other
disabilities.
The Awards passed by the Lok Adalats are deemed to be the decrees of the Civil Courts or the
Order of any other Court and are binding on all the parties to the dispute. No appeal lies against
an Award. All categories of cases can be settled through Lok Adalats except criminal cases
which are not compoundable. Disputes at pre-litigative stage also can be taken cognizance of by
the Lok Adalat. Lok Adalats had so far resolved some 1,36,00,000/- cases.

Free legal aids is one of the fundamental rights guaranteed to all the citizens of the country.
Article 39 A of the Constitution of India provides for free legal aid to the poor and weaker
sections of the society, to promote justice on the basis of equal opportunities.
The modern version of Lok Adalat, therefore, arose out of the concern expressed by the
Committees set up to report on organising the legal aid to the needy and poor people and the
alarm generated by judicial circles on mounting arrears of cases pending for long at different
levels in the country system. These reports have given impetus to the Legal Aid movement in
general and concept of Lok Adalat in particular. The introduction of Lok Adalat may thus be said
an off-spring of the Reports of these Committees. It is in this background that we have been
compelled by the urgencies of time to look forward for new means and methods as an
alternative forum to the existing complexed Anglo-Saxon legal system. Frankly admitting, the
institution of Lok Adalat is a judge-aided and judge-guided strategy hammered out with an
objective to reduce the backlog arrears of cases. The philosophy behind the introduction of Lok
Adalats in India is that we need to prevent institutional miscarriage of justice which has
surfaced the whole legal system for a mere reason that we could not switch over to our
indigenous legal system which at one time was serving the need of justice on a wider scale
because of its simplicity. That is why Indian Parliament has enacted the Legal Services
Authorities Act, 1987. The Act has received the assent of the President on October 11, 1987.
This Act inter-alia makes, detailed provisions about the set-up of Lok Adalats and their
functioning etc. The objective of bringing this Act into existence is to devise more ways of
reaching the poor man and evolving speedy and less expensive system of administration of
justice. The intention of the Parliament to bring this legislation into existence is to carry out
suitable reform in judicial administration and provide golden opportunity of better access to
justice for even to the poorest of the poor. It cherishes the goal of justice contained in the
Preamble, Articles lA, 38, 39-A and 40 of our Constitution.

NALSA along with other Legal Services Institutions conducts Lok Adalats. Lok Adalat is one of
the alternative dispute redressal mechanisms, it is a forum where disputes/cases pending in the
court of law or at pre-litigation stage are settled/ compromised amicably. Lok Adalats have
been given statutory status under the Legal Services Authorities Act, 1987. Under the said Act,
the award (decision) made by the Lok Adalats is deemed to be a decree of a civil court and is
final and binding on all parties and no appeal against such an award lies before any court of
law. If the parties are not satisfied with the award of the Lok Adalat though there is no
provision for an appeal against such an award, but they are free to initiate litigation by
approaching the court of appropriate jurisdiction by filing a case by following the required
procedure, in exercise of their right to litigate. There is no court fee payable when a matter is
filed in a Lok Adalat. If a matter pending in the court of law is referred to the Lok Adalat and is
settled subsequently, the court fee originally paid in the court on the complaints/petition is also
refunded back to the parties. The persons deciding the cases in the Lok Adalats are called the
Members of the Lok Adalats, they have the role of statutory conciliators only and do not have
any judicial role; therefore they can only persuade the parties to come to a conclusion for
settling the dispute outside the court in the Lok Adalat and shall not pressurize or coerce any of
the parties to compromise or settle cases or matters either directly or indirectly. The Lok Adalat
shall not decide the matter so referred at its own instance, instead the same would be decided
on the basis of the compromise or settlement between the parties. The members shall assist
the parties in an independent and impartial manner in their attempt to reach amicable
settlement of their dispute.

Nature of Cases to be Referred to Lok Adalat

1. Any case pending before any court.
2. Any dispute which has not been brought before any court and is likely to be filed before
the court. Provided that any matter relating to an offence not compoundable under the law
shall not be settled in Lok Adalat.

3.Arbitral Award Form and contents of arbitral award

.— (1) An arbitral award shall be made in writing and shall be signed by the members of the
arbitral tribunal. (2) For the purposes of sub-section (1), in arbitral proceedings with more than
one arbitrator, the signatures of the majority of all the members of the arbitral tribunal shall be
sufficient so long as the reason for any omitted signature is stated. (3) The arbitral award shall
state the reasons upon which it is based, unless— (a) the parties have agreed that no reasons
are to be given, or (b) the award is an arbitral award on agreed terms under section 30. (4) The
arbitral award shall state its date and the place of arbitration as determined in accordance with
section 20 and the award shall be deemed to have been made at that place. (5) After the
arbitral award is made, a signed copy shall be delivered to each party. (6) The arbitral tribunal
may, at any time during the arbitral proceedings, make an interim arbitral award on any matter
with respect to which it may make a final arbitral award. (7) (a) Unless otherwise agreed by the
parties, where and in so far as an arbitral award is for the payment of money, the arbitral
tribunal may include in the sum for which the award is made interest, at such rate as it deems
reasonable, on the whole or any part of the money, for the whole or any part of the period
between the date on which the cause of action arose and the date on which the award is made.
(b) A sum directed to be paid by an arbitral award shall, unless the award otherwise directs,
carry interest at the rate of eighteen per centum per annum from the date of the award to the
date of payment. (8) Unless otherwise agreed by the parties,— (a) the costs of an arbitration
shall be fixed by the arbitral tribunal; (b) the arbitral tribunal shall specify— (i) the party
entitled to costs, (ii) the party who shall pay the costs, (iii) the amount of costs or method of
determining that amount, and (iv) the manner in which the costs shall be paid. Explanation.—
For the purpose of clause (a), “costs” means reasonable costs relating to— (i) the fees and
expenses of the arbitrators and witnesses, (ii) legal fees and expenses, (iii) any administration
fees of the institution supervising the arbitration, and (iv) any other expenses incurred in
connection with the arbitral proceedings and the arbitral award. Application for setting aside
arbitral award. — (1) Recourse to a Court against an arbitral award may be made only by an
application for setting aside such award in accordance with sub-section (2) and sub-section (3).
(2) An arbitral award may be set aside by the Court only if— (a) the party making the
application furnishes proof that— (i) a party was under some incapacity, or (ii) the arbitration
agreement is not valid under the law to which the parties have subjected it or, failing any
indication thereon, under the law for the time being in force; or (iii) the party making the
application was not given proper notice of the appointment of an arbitrator or of the arbitral
proceedings or was otherwise unable to present his case; or (iv) the arbitral award deals with a
dispute not contemplated by or not falling within the terms of the submission to arbitration, or
it contains decisions on matters beyond the scope of the submission to arbitration: Provided
that, if the decisions on matters submitted to arbitration can be separated from those not so
submitted, only that part of the arbitral award which contains decisions on matters not
submitted to arbitration may be set aside; or (v) the composition of the arbitral tribunal or the
arbitral procedure was not in accordance with the agreement of the parties, unless such
agreement was in conflict with a provision of this Part from which the parties cannot derogate,
or, failing such agreement, was not in accordance with this Part; or (b) the Court finds that— (i)
the subject-matter of the dispute is not capable of settlement by arbitration under the law for
the time being in force, or (ii) the arbitral award is in conflict with the public policy of India.
Explanation. —Without prejudice to the generality of sub-clause (ii) it is hereby declared, for
the avoidance of any doubt, that an award is in conflict with the public policy of India if the
making of the award was induced or affected by fraud or corruption or was in violation of
section 75 or section 81. (3) An application for setting aside may not be made after three
months have elapsed from the date on which the party making that application had received
the arbitral award or, if a request had been made under section 33, from the date on which
that request had been disposed of by the arbitral tribunal: Provided that if the Court is satisfied
that the applicant was prevented by sufficient cause from making the application within the
said period of three months it may entertain the application within a further period of thirty
days, but not thereafter. (4) On receipt of an application under sub-section (1), the Court may,
where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of
time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral
proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the
grounds for setting aside the arbitral award. Appealable orders. (1) An appeal shall lie from the
following orders (and from no others) to the Court authorised by law to hear appeals from
original decrees of the Court passing the order, namely:— (a) granting or refusing to grant any
measure under section 9; (b) setting aside or refusing to set aside an arbitral award under
section 34. (2) An appeal shall also lie to a Court from an order granting of the arbitral tribunal.
— (a) accepting the plea referred in sub-section (2) or sub-section (3) of section 16; or (b)
granting or refusing to grant an interim measure under section 17. (3) No second appeal shall
lie from an order passed in appeal under this section, but nothing in this section shall affect or
take away any right to appeal to the Supreme Court

. Legal value of Arbrital Award and its enforcement

 Power of Court, where arbitration agreement is ordered not to apply to a particular difference,
to order that a provision making an award a condition precedent to an action shall not apply to
such diffference. Where it is provided (whether in the arbitration agreement or otherwise) that
an award under an arbitration agreement shall be a condition precedent to the bringing of an
action with respect to any matter to which the agreement applies, the Court, if it orders
(whether under this Act or any other law) that the agreement shall cease to have effect as
regards any particular difference, may further order that the said provision shall also cease to
have effect as regards that difference.

6.A.Arbitration

Arbitration is like a court procedure because the parties submit evidence similar to a trial
where the third party hear the entire situation and give his decision which is binding upon the
parties. In the case of Collins v Collin, the Court held that “An arbitration is a reference to the
decision of one or more persons, either with or without an umpire, of some matter or matters
in difference between the parties.” an arbitrator listens to the evidence which is brought by
both parties and makes a decision which is generally binding upon both parties. Arbitration
means getting an arbitral award on an ongoing conflict, by the arbitrator. In the process of
arbitration, the cause is heard and determined between the parties in a dispute before the
person selected by the parties or appointed under statutory authority i.e., The Arbitration and
Conciliation Act, 1996. The objective of Arbitration is to settle the dispute which arose between
the parties by one or more arbitrators appointed by them by going through the documents and
evidences. According to Kurt Brenn “The objective of arbitration is not compromise but
adjudication through the parties are at liberty to comprise.” A wise arbitrator would certainly
promote such agreement, but as a rule there is no zest, if there is compromise in arbitral
awards. While taking a decision in arbitral matter, the arbitrator must consider the fact that the
decision imparted by him must be in the interest of principle of natural justice. Arbitration can
be done by voluntary or compulsory method. In Voluntary arbitration, if a dispute arose
between the two Parties and they are unable to resolve their differences by themselves,
thereby the parties agreeing to present their Dispute to the fair authority and the decision will
be binding upon both parties. Whereas Compulsory arbitration, is the method where the
parties are required to accept arbitration without any willingness on their part. When one party
in any industrial dispute feels aggrieved by the act of the other party, it may approach the
appropriate government to refer the dispute to any organization of adjudication for the
settlement. The arbitrator or arbitral tribunal consists of a neutral person or persons
responsible for resolving the dispute that the parties have submitted before them. The number
of arbitrators and their appointments are defined in Section 10 and 11 of Arbitration and
Conciliation Act, 1996. The person from any nationality can be appointed as arbitrator, unless
agreed by the parties. The number of arbitrators must be in odd number or there can be a sole
arbitrator. The parties in conflict are free to appoint the arbitrator or they can approach the
statutory authority for the same. In arbitration, if there are three arbitrators then each party
will choose one arbitrator and the two appointed arbitrator will choose one arbitrator who will
act as presiding officer. If the parties failed to appoint an arbitrator within 30 days as requested
by the other party or the appointed arbitrators have failed to come on same page in appointing
the arbitrator within 30 days or they have any kind of disagreement, then they can approach
the chief justice or the other person or institution nominated by him regarding the
appointment. The Fifth Schedule to the Act (Annexure-A) are enlisted with the grounds which
give rise to justifiable doubt as to the independence or impartiality of an arbitrator. The
Seventh Schedule (Annexure-B) consists of the grounds which make a person ineligible to be
appointed as an arbitrator. In International Commercial Arbitration, the arbitrators will be
appointed by the Chief Justice of India or by the person or institution nominated by him who
will be of a nationality other than the nationality of the parties. Arbitration, a form of
alternative dispute and its regulation(ADR), is a way to resolve disputes outside the judiciary cpurys
The dispute will be decided by one or more persons (the 'arbitrators', 'arbiters' or Arbitral), which
renders the 'Arbitration award An arbitration decision or award is legally binding on both sides
and enforceable in the courts, unless all parties stipulate that the arbitration process and decision
are non-binding Arbitration is often used for the resolution of commercial disputes, particularly
in the context of International commercial transactions. In certain countries such as the United
States, arbitration is also frequently employed in consumer and employment matters, where
arbitration may be mandated by the terms of employment or commercial contracts and may
include a waiver of the right to bring a class action claim. Mandatory consumer and
employment arbitration should be distinguished from consensual arbitration, particularly
commercial arbitration.

A large portion of the words we use today come from Latin roots. Many of these words
retain a meaning that is closely related to their Latin ancestor, although sometimes they will
drift a considerable distance from their roots (sinister, for instance, had the meaning of “on
the left side” in Latin, but also meant “unlucky, inauspicious”). In some instances, a single
Latin word will give rise to multiple words in English, some of which have strayed in meaning,
and others which have not.
An example of this may be found in our word arbiter. We trace it to the Latin root with the
same spelling, arbiter, meaning “eyewitness, onlooker, person appointed to settle a
dispute.” A number of English words stem from the Latin arbiter, many of which have to do
with judging or being a judge. An arbiter is a judge, and arbitration is the act of judging, or
serving as an arbiter. Yet the most common meaning of arbitrary is “existing or coming about
seemingly at random or by chance or as a capricious and unreasonable act of will,” which
seems to be quite a bit different in meaning from the other two words. Arbitrary does
indeed come from the same Latin root, and its oldest meaning in English was “depending on
choice or discretion particularly regarding the decision of a judge or a tribunal.” But over
time it developed additional senses that are somewhat removed from that initial meaning.

 The parties choose the arbitrator(s)

Under the WIPO arbitration rules the parties can select a sole arbitrator together. If they
choose to have a three-member arbitral tribunal, each party appoints one of the
arbitrators; those two persons then agree on the presiding arbitrator. Alternatively, the
Center can suggest potential arbitrators with relevant expertise or directly appoint
members of the arbitral tribunal. The Center maintains an extensive roster of arbitars
ranging from seasoned dispute-resolution generalists to highly specialized practitioners
and experts covering the entire legal and technical spectrum of intellectual property
.
 Arbitration is neutral

In addition to their selection of neutrals of appropriate nationality, parties are able to

choose such important elements as the applicable law, language and venue of the
arbitration. This allows them to ensure that no party enjoys a home court advantage.

6B.Conciliation

Conciliation means settling disputes without litigation. It is an informal process in which

conciliator i.e. third party tries to bring the disputants to agreement. He overcomes the
disputable issues by lowering the tension, improvement in communication, interpreting issues,
providing technical assistance, exploring potential solutions and bringing the negotiated
settlement before the parties. Conciliator adopts his own method to resolve the dispute and
the steps taken by him are not strict and legal. There is no need of agreement like arbitration
agreement. The acceptance of settlement is needed by both of the parties. Part III of the
Arbitration and Conciliation Act, 1996 deals with conciliation. it is a voluntary proceeding where
parties in dispute agree to resolve their dispute through conciliation. It is a flexible process
which allows the parties to decide the time and place for conciliation, structure, content and
terms of negotiations. In Conciliation, the conciliators are trained and qualified neutral person
who help the conflicting parties to make them understand the issues in dispute and their
interest to reach mutually accepted agreements. The conciliation process includes the
discussion between the parties which is made with the participation of the conciliator. It covers
many disputes like industrial disputes, marriage disputes, family disputes etc. This allows the
parties to control the output of their dispute. The result is also likely to be satisfactory. Arbitral
tribunal An arbitral tribunal or arbitration tribunal, also arbitration commission, arbitration
committee or arbitration council is a panel of unbiased adjudicators which is convened and sits
to resolve a dispute by way of arbitration. The tribunal may consist of a sole arbitrator, or there
may be two or more arbitrators, which might include a chairperson or an umpire. Members
selected to serve on a arbitration panel are typically professionals with expertise in both law
and in friendly dispute resolution (mediation). Some scholars have suggested that the ideal
composition of an arbitration commission should include at least also one professional in the
field of the disputed situation, in cases that involve questions of asset or damages valuation for
instance an economist. The parties to agree on arbitration are usually free to determine the
number and composition of the arbitral tribunal. Many jurisdictions have laws with general
rulings in arbitration, they differ as to how many arbitrators should constitute the tribunal if
there is no agreement.[2] In some legal systems, an arbitration clause which provides for an
even number of arbitrators is understood to imply that the appointed arbitrators will select an
additional arbitrator as a chairperson, to avoid deadlock arising.[citation needed] Arbitral
tribunals are usually constituted (appointed) in two types of proceedings: • ad hoc arbitration
proceedings are those in which the arbitrators are appointed by the parties without a
supervising institution, relying instead on the rules as been agreed upon by the parties and or
procedural law and courts of the place of arbitration to resolve any differences over the
appointment, replacement, or authority of any or all of the arbitrators; and • institutional
arbitration proceedings are those in which the arbitrators are appointed under the supervision
of professional bodies providing arbitration services, such as the American Arbitration
Association (which conducts international proceedings through its New York-based division, the
ICDR), the Australian Fair Work Commission, the LCIA in London or the ICC in Paris. Depending
on their establishing statutories or treaties, these kind of institutions can be capable of
supervising the appointment of arbitration commissions in one country or on an international
scale. This type of arbitration avoids the need for parties to involve local courts and procedures
in the event of disagreement over the appointment, replacement, or authority of any or all of
the arbitrators. Permanent arbitration committees tend to have their own rules and
procedures, and tend to be more formal. They also tend to be more expensive, and, for
procedural reasons, slower.

History

Historical conciliation is an applied conflict resolution approach that utilizes

historical Narratives to positively transform relations between societies in conflicts.
Historical conciliation can utilize many different methodologies,
including Mediation , Sustained dialogues apologies, acknowledgement, support of
public commemoration activities, and public diplomacy.
Historical conciliation is not an excavation of objective facts. The point of facilitating
historical questions is not to discover all the facts in regard to who was right or wrong.
Rather, the objective is to discover the complexity, ambiguity, and emotions

surrounding both dominant and non-dominant cultural and individual narratives of

history. It is also not a rewriting of history. The goal is not to create a combined
narrative that everyone agrees upon. Instead, the aim is to create room for critical
thinking and more inclusive understanding of the past and conceptions of “the other”.

Some conflicts that are addressed through historical conciliation have their roots in
conflicting Identiies of the people involved. Whether the identity at stake is their
ethnicity, religion or culture, it requires a comprehensive approach that takes people's
needs for recognition, hopes, fears, and concerns into account.
Some conflicts might be based in unmet needs for security or recognition, or thwarted
development. To learn more about the theory of basic human social needs and how
they give rise to conflict, please see John burton, Karen honerny, Hannan arendi,
and Johan galtung to name a few.

While the above historical summary speaks to some uses of conciliation, it is not the
only method and by itself cannot address the entirety of a system of protracted
historical conflict. A holistic approach to resolving deep-rooted violent conflict would
ideally employ all methods of conflict resolution - education, negotiation, analysis,
diplomacy, second track diplomacy, mass therapy, truth and reconciliation, cultural
inventory, leadership, peer mediation/facilitation. In short, to resolve a deeply rooted
prolonged crisis, it takes all of us, coming from our strengths and positive intentions,
and a willingness to allow everyone to come to the table.

For examples of applied conciliation from an historical context, look for Quaker efforts in
witness and peacemaking in London, New York and South Africa.

The process of
adjusting or settling disputes in a friendly manner through extra judicial means. Conciliation
means bringing two opposing sides together to reach a compromise in an attempt to avoid
taking a case to trial. Arbitration in contrast, is a contractual remedy used to settle disputes out
of court. In arbitration the two parties in controversy agree in advance to abide by the decision
made by a third party called in as a mediator, whereas conciliation is less structured.
Conciliation is used in labor disputes before arbitration and may also take place in several areas
of the law. A court of conciliation is one that suggests the manner in which two opposing
parties may avoid trial by proposing mutually acceptable terms. In the past, some states have
had bureaus of conciliation for use in divorce proceedings.The federal government has
established the federal mediation and conciliation service, an independent department devoted to
settling labor disputes by conciliation and mediation, or settlement of disputes through the
intervention of a neutral party.

C. Arbitral Tribunal

An arbitral Tribunal or arbitration tribunal, also arbitration commission ,arbitration

committee or arbitration Council is a panel of unbiased education which is convenient
and sits to resolve a dispute by way of arbitration .the Tribunal may consist of a sole
arbitrator which might include chairperson or an Empire members selected to serve on
a arbitration panel are typically professional with expertise in both law and in family
dispute resolution .some Scholars have suggested that the ideal composition of an
arbitration Commission should include at least also one professional in the field of the
disputed situation, in cases that involve questions of of asset or damages valuation for
instance and economist.

The parties to agree on arbitration usually free to determine the number and
Composition of the arbitral Tribunal . Many jurisdiction have laws with general ruling
with the arbitration. They differ as to how many arbitrators should constitutes the
Tribunal if there is no agreement. in some legal system an arbitration clauses which
provides for an even number of arbitrators is understood to imply that the appointed
arbitrators will select and additional arbitrators as a chairperson, to avoid deadlock

Duties of arbitral Tribunal

 Duties to give equal treatment to the parties. This section is based on principle
justice should not only be done but should appear to have been done .the
principle of natural justice now embodied in the section . Though the arbitral
Tribunal is not bound by strict rule of procedures or strict rule of evidence they
bound by principle of natural justice.
 Duty to sign the award .The arbitral award shall be made in writing and it shall be
signed by the members of arbitral Tribunal. In a arbitral proceedings where there
are more than one arbitrator, The signatures of majority of all members of the
arbitral Tribunal shall be sufficient for any omitted signature.
 Duty to act beyond his jurisdiction. Though arbitral Tribunal may make rule on its
own justice yet it cannot go beyond its own jurisdiction. The party aggrieved by
such award may make an application for setting aside such an arbitral award
under section 34 When-

1. The party was under some incapacity

2. The arbitration agreement entered into between parties is not valid under
the law to which the parties have subjected each or, falling any indication
thereon, under the law of the time being in force.