Alternative Dispute Resolution and Article 39A of the Constitution

Article 39A directs the State to secure a legal system that 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. It is the provision from which the entire modern machinery of legal services and Lok Adalats in India is derived. The connection between the Article and alternative dispute resolution is direct: the Legal Services Authorities Act, 1987, enacted to give effect to the Article, creates both the legal aid structure and the Lok Adalat, and treats them as two limbs of a single programme of access.

1. The Provision

The Article was inserted by the Constitution (Forty-second Amendment) Act, 1976 and placed in Part IV among the Directive Principles of State Policy. Its immediate background lies in two reports: the report of the committee on legal aid chaired by Justice V.R. Krishna Iyer in 1973, and the report on national juridicare prepared by the committee chaired by Justice P.N. Bhagwati in 1977. Both treated legal aid as something wider than the provision of counsel, and both recommended informal machinery, including settlement camps, for disputes which the ordinary courts could not reach. The Committee for Implementing Legal Aid Schemes, constituted in 1980, carried the programme forward until the statute of 1987.

Two expressions in the Article do the work. The first is equal opportunity, which makes the guarantee comparative: it is not enough that a forum exists if one party can use it and the other cannot. The second is economic or other disabilities, which extends beyond poverty to illiteracy, distance, disability, custody and social position.

2. From Directive Principle to Enforceable Content

Article 39A is not enforceable by a court by virtue of Article 37. Its content has nevertheless been given effect by reading it with Articles 14 and 21, which are enforceable, and the Supreme Court has consistently used it as an aid to the construction of the fair procedure guaranteed by Article 21.

The same reasoning was extended to the civil side. In Anita Kushwaha v. Pushap Sudan, (2016) 8 SCC 509 the Court held access to justice to be a fundamental right flowing from Articles 14 and 21, with four essential facets: an adjudicatory mechanism, a forum reasonably accessible in terms of distance, a speedy process, and a process the litigant can afford. Articles 14 and 21 supply the right; Article 39A supplies the obligation to build the machinery through which it is realised.

3. The Machinery Built under the Article

From the directive principle to the institutions that implement it

The Legal Services Authorities Act, 1987 states in its preamble that it is enacted to constitute legal services authorities to provide free and competent legal services to the weaker sections of society, and to organise Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity. The words are taken almost directly from Article 39A. The structure runs from the National Legal Services Authority through the State authorities and district authorities to the taluk legal services committees, with corresponding committees attached to the Supreme Court and the High Courts.

• Section 12 lists the persons entitled to free legal services, including members of Scheduled Castes and Scheduled Tribes, victims of trafficking, women and children, persons with disabilities, victims of mass disaster, industrial workmen, persons in custody and persons whose annual income falls below the prescribed limit.
• Section 13 provides that a person entitled under Section 12 receives services if the authority is satisfied that he has a prima facie case to prosecute or defend.
• Sections 19 to 21 provide for the organisation of Lok Adalats, their jurisdiction over pending and pre-litigation matters, and the effect of the award, which is deemed to be a decree of a civil court, is final and carries a refund of the court fee.
• Chapter VI-A provides for Permanent Lok Adalats in disputes relating to public utility services, with power to decide on merits where conciliation fails.

4. Why Settlement Serves the Article

The four facets identified in Anita Kushwaha explain the connection precisely. A Lok Adalat sitting at the taluk level answers the facet of physical accessibility. The exemption from court fee and the refund on settlement, together with free representation under Section 12, answer affordability. Disposal on the day of the sitting, and the statutory time limits in Section 18 of the Mediation Act, 2023 and Section 29A of the Arbitration and Conciliation Act, 1996, answer speed. And the informality of the proceeding, conducted in the local language without pleadings, answers the disability of unfamiliarity, which is as real a barrier as poverty.

The legislative pattern since 2015 has extended the same idea beyond the legal services structure. Section 12A of the Commercial Courts Act, 2015 places pre-institution mediation in the hands of the legal services authorities. Chapter X of the Mediation Act, 2023 provides for community mediation by a panel of three mediators for disputes affecting the peace and harmony of an area, and Section 30 of that Act recognises online mediation, which removes distance altogether for disputes that can be handled on documents.

5. The Limits of the Argument

The criticism that the settlement machinery risks creating a separate and inferior system of justice for the poor is a criticism made in the name of Article 39A rather than against it. The Article speaks of equal opportunity, and the test of any settlement mechanism under it is whether the litigant using it is better placed than he would have been without it, with the right to an adjudication remaining available to him if he declines to settle.

6. Related Constitutional Provisions

7. Related Topics and Provisions