Alternative Dispute Resolution and Access to Justice

Access to justice is not satisfied by the existence of a court. It requires a forum the litigant can reach, a process he can afford, and a decision he can obtain within a useful time. Measured by that standard, the Indian system fails a large part of the population, and alternative dispute resolution has been developed in this country principally as an answer to that failure rather than as a commercial convenience. The connection is made in the statutes themselves: the same Act of 1987 that organises free legal aid also creates the Lok Adalat, and both are traced to Article 39A of the Constitution.

1. What Access to Justice Means

The right had been built up in stages. In Hussainara Khatoon (IV) v. Home Secretary, State of Bihar, (1980) 1 SCC 98 the Supreme Court held that a speedy trial is an essential ingredient of the right to life and personal liberty under Article 21. In M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544 and in the decisions that followed, the Court held that legal assistance to a person unable to afford counsel is implicit in a fair procedure. Article 39A, inserted by the Constitution (Forty-second Amendment) Act, 1976, directs the State to secure that the operation of the legal system promotes justice on a basis of equal opportunity and to provide free legal aid so that no citizen is denied justice by reason of economic or other disability.

The four facets of access to justice and the mechanisms answering each

2. The Statutory Machinery of Access

The Legal Services Authorities Act, 1987 gives effect to Article 39A through a structure running from the National Legal Services Authority down to the taluk level. Section 12 lists the persons entitled to free legal services, which include members of Scheduled Castes and Scheduled Tribes, women and children, victims of trafficking, persons with disabilities, victims of mass disaster and industrial workmen, persons in custody and persons whose annual income falls below the prescribed limit. The same authorities organise Lok Adalats under Chapter VI, run legal literacy programmes and, since the amendment of 2018 to the Commercial Courts Act, 2015, administer pre-institution mediation under Section 12A of that Act.

Three features of the Lok Adalat serve access directly. No court fee is payable, and the fee already paid is refunded on settlement. No appeal lies, so the dispute genuinely ends. And the forum sits at the taluk level and in camps, which answers the facet of physical accessibility on which litigants in rural districts most often fail.

3. How Each Facet Is Addressed

3.1 A forum that can be reached

Distance and unfamiliarity keep litigants away from courts as effectively as cost. Lok Adalats sit locally and periodically, including National Lok Adalats held on a single day across the country under the direction of the National Legal Services Authority. Chapter X of the Mediation Act, 2023 provides for community mediation by a panel of three mediators in disputes likely to affect the peace and harmony of the residents of an area, a form designed for neighbourhood and locality disputes rather than for commercial claims. Section 30 of the same Act permits mediation to be conducted online with the written consent of the parties, which removes distance altogether for disputes capable of being handled on documents.

3.2 A process that can be afforded

Beyond the exemption from court fee in the Lok Adalat, Section 16 of the Court Fees Act, 1870 requires a refund of the fee where a suit is settled under Section 89 of the Code of Civil Procedure, 1908. Court-annexed mediation centres provide the mediator free or at a nominal charge. Representation is not necessary in the Lok Adalat, and a party entitled to free legal services under Section 12 of the Legal Services Authorities Act, 1987 receives counsel at the expense of the State. The comparison must be honest, however: arbitration is not an access-enhancing process for a poor litigant, and where an arbitration clause is contained in a standard form contract it may operate as a barrier rather than a route.

3.3 A process that is speedy

The statutory time limits have been noticed elsewhere in this series: twelve months from the completion of pleadings for a domestic arbitral award under Section 29A of the Arbitration and Conciliation Act, 1996, six months in a fast track reference under Section 29B, 120 days extendable by 60 for mediation under Section 18 of the Mediation Act, 2023, and disposal on the day of the sitting in a Lok Adalat. Section 24 of the Mediation Act, 2023 protects the litigant who attempts settlement by excluding the period spent in mediation in computing limitation, so that the attempt costs him nothing if it fails.

3.4 A forum that decides in a language and form the litigant understands

Informality is itself a component of access. There are no pleadings in a Lok Adalat, the proceedings are conducted in the local language, the parties speak for themselves, and the outcome is expressed in terms they have themselves accepted. For a litigant who is illiterate or unfamiliar with procedure, this difference is more significant than the saving in fees.

4. Compulsory Settlement and the Right of Access

A requirement to attempt settlement before suing raises the question whether access is being improved or obstructed. Section 12A of the Commercial Courts Act, 2015 requires a plaintiff in a commercial suit of a specified value that does not contemplate urgent interim relief to exhaust pre-institution mediation, and the Supreme Court in Patil Automation (P) Ltd. v. Rakheja Engineers (P) Ltd., (2022) 10 SCC 1 held the provision to be mandatory, so that a suit filed in breach of it is liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure, 1908.

The requirement survives scrutiny for two reasons. It compels an attempt, not a settlement, so the right to have the dispute adjudicated remains. And it is excluded where urgent interim relief is contemplated, which preserves the remedy in the class of cases where delay would defeat the claim. It is significant that Parliament, on the recommendation of the Parliamentary Standing Committee, made pre-litigation mediation voluntary under Section 5 of the Mediation Act, 2023 rather than compulsory as the Bill had proposed, and confined compulsion to commercial suits of a specified value.

5. The Criticisms

A complete treatment must state the objections, which are serious and are made by writers sympathetic to the reform.

1. Second-class justice. If disputes involving the poor are routinely diverted to informal fora while the courts are reserved for those who can afford them, the result is two systems of justice rather than wider access to one. The answer lies in ensuring that the choice of forum is genuinely the litigant's.
2. Settlement under pressure. Where a Lok Adalat sitting is driven by disposal figures, or where a claimant faces years of delay if he refuses, the consent recorded may be formal rather than real. The rule that a Lok Adalat has no power to decide, laid down in State of Punjab v. Jalour Singh, (2008) 2 SCC 660, is the safeguard, and it requires enforcement in practice as well as in principle.
3. Inequality of bargaining power. Settlement assumes parties able to assess and protect their own interests. Where an individual faces an insurer, a bank or an employer with repeat experience of the process, the assumption is doubtful, and the case for free representation in the settlement process is as strong as in the trial.
4. Loss of precedent. Disputes resolved privately produce no reported decisions. Over time the public law that governs a field, and on which the private processes themselves rely, ceases to develop, which is a loss to future litigants who were never parties to the choice.
5. Diversion from reform. The causes of delay are judicial vacancies, infrastructure and procedural practice. Settlement mechanisms relieve symptoms, and there is a risk that success in relieving them reduces the pressure to address the causes.

6. The Direction of Development

Three developments will decide whether the promise is realised. The first is the building of the institutional framework under the Mediation Act, 2023: the Mediation Council of India was established by notification dated 27 August 2026 and is charged with the registration and grading of mediators and the recognition of institutes and service providers, on which the quality of the process ultimately depends. The second is online dispute resolution, which is recognised for mediation by Section 30 of that Act and which offers the only realistic route for very large numbers of small claims. The third is ratification of the United Nations Convention on International Settlement Agreements Resulting from Mediation, the Singapore Convention, which India signed on 7 August 2019 and has not yet ratified, and which would extend the enforceability of mediated settlements across borders.

7. Related Topics and Provisions