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CLASS & SECTION : BBALLB V (A+B)

SUBJECT NAME : Alternative Dispute Resolution (ADR)
SUBJECT CODE : LLB 309
FACULTY : Ms. Deepanjali Kashyap

Unit-1

CONCEPT OF ADR

Meaning, Nature and Genesis of Alternative Dispute Resolution Origin of

Alternative Dispute Resolution System in India

Ancient India:

It was since the ancient India; law of arbitration was very popular and were highly
accessible. While dealing with such cases on arbitration, the awards were known as
decisions of Panchayats, commonly known as Panchats. The decisions of
Panchayats were of binding nature in law in force in those times. The head of a
family, the chief of a community or selected inhabitants of a village or town might
act as Panchayat.

In words of Martin, C.J., “arbitration was indeed a striking feature of ordinary

Indian life and it prevailed in all ranks of life to a much greater extent than was the
case of England. To refer matters to a Panch was one of the natural ways of
deciding many disputes in India”.

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The Hindu idea of Panchayats was that a Panchayat was the lowest tribunal and as such
its award was subject to appeal. The Bengal Regulation of 1781 imported the idea that it
was the tribunal of the parties’ own choice. This caused the respectable persons to be
reluctant to become Panches and the Panchayat system fell in disuse or public infancy.
Then the Regulation of 1787 empowered the Courts to refer certain suits to arbitration,
but no provision was made in the Regulation for cases wherein difference of opinion
among the arbitrator arose. The Bengal Regulation of 1793 (XVI of 1793) empowered
courts to refer matters to arbitration with the consent of the parties where the value of the
suit did not exceed Rs. 200/- and the suits were for accounts, partnership, debts, non-
performance of contracts, etc. In this Regulation, the procedure for conducting an
arbitration proceeding was also provided. Regulation XV of 1795 extended the
Regulation XVI of 1793 to Benaras. Similarly, the Regulation XXI of 1803 extended the
Regulation XVI of the territory ceded the Nawab Vazeer.
Since by then the Madras Regulation IV of 1816 and V of 1816 empowered the
Panchayats to settle disputes by them. In Bombay Regulations IV and VII of 1827
similar provisions were made.

British Period:

Thereafter, the Civil Procedure Code, 1859; the Indian Contract Act, 1872 and the
Specific Relief Act, 1877 mandated that no contract to refer the present or further
differences to arbitration could specifically enforce. A party refusing to reform his
part of the contract was debarred from bringing a suit on the same subject-matter.
An appeals and the Code of Civil Procedure aforesaid was not applicable to matters
covered by the Arbitration Act, or the second schedule to the Code of Civil
Procedure. The Code of Civil Procedure, 1859 (VII of 1859), was the first Civil
Code of British India. The law relating arbitration was incorporated in Chapter VI
of the Code (Sections- 312 to 327). It was, however, not applicable to the Supreme

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Court or to the Presidency Small Cause Courts or to non- Regulation Provinces.
This Act was repealed by Act X of 1877 which consolidation the law of Civil
Procedure which was further replaced by Act XIV of 1882. This Code of Civil
Procedure also was replaced by the Code of Civil Procedure, 1908 (V of 1908), the
present Code. The Second Schedule of the Code comprised the law regarding
arbitration.
The law of Arbitration in the British Rule in India was comprised in two
enactments. One was the Indian Arbitration Act, 1899, which was based on the
English Arbitration Act, 1899. Many sections of the Indian Act were the verbal
reproduction of the schedule to the Code of Civil Procedure Code, 1908. The
Arbitration Act, 1899 extended to the Presidency Towns and to such other areas as
it might be extended by the appropriate Provincial Government. Its scope was
confined to ‘arbitration’ by agreement without the intervention of a Court. Outside
the scope of operation of Arbitration Act 1899, the Second Schedule to the Code of
Civil Procedure Code, 1908 was applicable. The Schedule related mostly to
arbitration in suits.
The Arbitration Act, 1940 consolidated and amended the law relating to Arbitration
very exhaustively. This Act repealed Section 89, clauses (a) to (f), of sub-section (1)
of Section 104 and the Second Schedule to the Code of 1908. The Civil Justice
Committee had recommended various changes in the Arbitration Law. Since the
Arbitration Act of 1899 was based on the English Law then in force, to which
several substantial amendments were affected by the Amendment Act of the British
Parliament in 1934. The recommendations of the Civil Justice Committee were
scrutinized together and the Arbitration Bill sought to consolidate and standardise
the law relative to arbitration throughout British India in details. This Bill received
the assent of the Governor-General on 11th March, 1940 and was called the
Arbitration Act, 1940. This Act was passed mainly to consolidate and amend the
law relating to arbitration.

The Arbitration Act, 1940 had been described in the oft-quoted passage from the

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Guru Nanak Foundation vs. Rattan Singh and Sons as follows- “However, the
way in which the proceedings under the act are conducted and without an exception
challenged in courts, has made lawyers laugh and legal philosophers weep.

The system of resolving disputes by an Arbitrator was not only confined to India
but elsewhere in the world also. Since ages, the practice was prevalent in several
parts of the world. Greek and Romans attached greater importance to arbitration.
The Arbitration Act, 1940 dealt with only domestic arbitration. In so far as
international arbitration was concerned, there was no substantive law on the subject.
However, enforcement of foreign awards in this country was governed by two
enactments, the Arbitration (Protocol and Convention) Act, 1937 and the Foreign
Awards (Recognition and Enforcement) Act, 1961. These two statutes, in their
entity, except for Section 3 (in both of them) did not deal with international
arbitration as such but merely laid down the conditions for ‘enforcement of foreign
awards’ in India.

The Arbitration Act of 1940, though a good piece of legislation, in its actual
operation and implementation by all concerned – the parties, arbitrators, lawyers
and the courts- proved ineffective.
A few years later, the Court suggested simplification of the law of arbitration
releasing the law from the shackles of technical rules of interpretation.

The law of arbitration should be simple, less technical and more responsible to the
actual realities of the situations, but must be responsive to the canons of justice and
fair play and make the arbitrator adhere to such process and norms which will
create confidence, not only by doing justice between the parties, but by creating
sense that justice appears to have been done.

Modern India:

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The Arbitration Act, 1940 was holding the field for nearly half a century but with
the phenomenal growth of commerce and industry the effect of globalization
required substantial changes. The Alternative Dispute Redressal mechanism was
increasingly attracting serious notice and that led to the enactment of Arbitration
and Conciliation Act, 1996 and the incorporation of Section 89 of the Code of Civil
Procedure, 1908 i.e. 1st July, 2002 as a part of this mechanism.
The Supreme Court in several cases repeatedly pointed out the need to change the
law. The Public Accounts Committee too deprecated the Arbitration Act of 1940.

In the conferences of Chief Justices, Chief Ministers and Law Ministers of all the
States, it was decided that since the entire burden of justice system cannot be borne
by the courts alone, an Alternative Dispute Resolution system should be adopted.

Trade and industry also demanded drastic changes in the 1940 Act. The
Government of India thought it necessary to provide a new forum and procedure for
resolving international and domestic disputes quickly.
Alternative Dispute Resolution is today being increasingly acknowledged in the
field of law as well as in the commercial sector. The very reasons for origin of
Alternative Dispute Resolution are the tiresome processes of litigation, costs and
inadequacy of the court system.

It broke through the resistance of the vested interests because of its ability to
provide cheap and quick relief. In the last quarter of the previous century, there was
the phenomenal growth in science and technology.
It made a great impact on commercial life by increasing competition throughout the
world. It also generated a concern for consumers for protection of their rights.
It offers to resolve matters of litigants, whether in business causes or otherwise,
who are not able to start any process of negotiation and reach any settlement.

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Alternative Dispute Resolution has started gaining its ground as against litigation
and arbitration.
In modern India for the first time where Alternative Dispute Resolution as a
method of conciliation has been effectively introduced and recognised by law was
in Labour Law, namely Industrial Dispute Act, 1947. Conciliation has been
statutorily recognized as an effective method of dispute resolution in relation to
disputes between workers and the management.

All parties to an industrial dispute who have had the misfortune of going through
litigation knew that it is a tedious process and one which could go well beyond the
life time of some of the beneficiaries. It is this factor that has contributed greatly to
the success of conciliation in industrial relations.

Thus "The Arbitration and Conciliation Act, 1996"came into being. The law
relating to Arbitration and Conciliation is almost the same as in the advanced
countries. Conciliation has been given statutory recognition as a means for
settlement of the disputes in terms of this Act. In addition to this, the new Act also
guarantees independence and impartiality of the arbitrators irrespective of their
nationality. The new Act of 1996 brought in several changes to expedite the process
of arbitration.

The emergence of alternative dispute resolution has been one of the most significant
movements as a part of conflict management and judicial reform, and it has become
a global necessity. Such specially devised machinery can also be described as
“Appropriate Dispute Resolution” or “Amicable Dispute Resolution” so as to stress
upon its non-adversarial objectives. In disputes arising across national frontiers
covering the field of private international law ADR is of special significance to
combat the problems of applicability of laws and enforcement.

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ADR has thus been a vital, vociferous, vocal and vibrant part of our historical past.
Undoubtedly, the concept and philosophy of Lok Adalat or “People’s Court
Verdict” has been mothered by the Indian contribution. It has very deep and long
roots not only in the recorded history but even in pre-historical period. It has proved
to be a very effective alternative to litigation. People’s Court is one of the fine and
familiar fora which has been playing an important role still today in settlement of
disputes.

Modern ADR is a voluntary system, according to which the parties enter a

structured negotiation or refer their disputes to a third party for evaluation and/or
facilitation of resolution. Especially in the light of the facts that the justice system is
flooded by disputes of variable importance and complexity, and that the parties are
almost invariably intimidated by the atmosphere in the courtroom.

FORMS OF ADR MECHANISM

The five different methods of ADR can be summarized as

follows: -

1. Arbitration

2. Conciliation

3. Mediation

4. Judicial Settlement &

5. Lok Adalat

ARBITRATION:

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Arbitration, a form of alternative dispute resolution (ADR), is a technique for the

resolution of disputes outside the courts, where the parties to a dispute refer it to one
or more persons – arbitrators, by whose decision they agree to be bound. It is a
resolution technique in which a third party reviews the evidence in the case and
imposes a decision that is legally binding for both sides and enforceable.

There are limited rights of review and appeal of Arbitration awards. Arbitration is
not the same as judicial proceedings and Mediation. Arbitration can be either
voluntary or mandatory. Of course, mandatory Arbitration can only come from
statute or from a contract that is voluntarily entered into.
The advantages of Arbitration can be summarized as follows: -

a) It is often faster than litigation in Court.

b) It can be cheaper and more flexible for businesses.

c) Arbitral proceedings and an arbitral award are generally nonpublic, and can be
made confidential.
d) In arbitral proceedings the language of arbitration may be chosen, whereas in
judicial proceedings the official language of the competent Court will be
automatically applied.
e) There are very limited avenues for appeal of an arbitral award.
f) When the subject matter of the dispute is highly technical, arbitrators with an
appropriate degree of expertise can be appointed as one cannot choose judge in
litigation.

However, there are some disadvantages of the Arbitration,

which may be summarized as follows: -
a) Arbitrator may be subject to pressures from the powerful parties. b) If the
Arbitration is mandatory and binding, the parties waive their rights to access

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the Courts.
c) In some arbitration agreements, the parties are required to pay for the
arbitrators, which add an additional cost, especially in small consumer disputes.

d) There are very limited avenues for appeal, which means that an erroneous
decision cannot be easily overturned.

e) Although usually thought to be speedier, when there are multiple arbitrators on

the penal, juggling their schedules for hearing dates in long cases can lead to
delays.

f) Arbitration awards themselves are not directly enforceable. A party seeking to

enforce arbitration award must resort to judicial remedies.

In view of provisions of Section 89 of the Civil Procedure Code, if the matter is

referred to the Arbitration then the provisions of the Arbitration and Conciliation
Act, 1996 will govern the case.

CONCILIATION:
Conciliation is an alternative dispute resolution process whereby the parties to a
dispute use a conciliator, who meets with the parties separately in order to resolve
their differences. They do this by lowering tensions, improving communications,
interpreting issues, providing technical assistance, exploring potential solutions and
bring about a negotiated settlement.
It differs from Arbitration in that. Conciliation is a voluntary proceeding, where the
parties involved are free to agree and attempt to resolve their dispute by
conciliation.

The process is flexible, allowing parties to define the time, structure and content of

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the conciliation proceedings. These proceedings are rarely public. They are interest-
based, as the conciliator will when proposing a settlement, not only take into
account the parties'legal positions.

Conciliation involves discussions among the parties and the conciliator with an aim
to explore sustainable and equitable resolutions by targeting the existent issues
involved in the dispute and creating options for a settlement that are acceptable to
all parties.
The conciliator does not decide for the parties, but strives to support them in
generating options in order to find a solution that is compatible to both parties.

The process is risk free and not binding on the parties till they arrive at and sign the
agreement. Once a solution is reached between the disputing parties before a
conciliator, the agreement had the effect of an arbitration award and is legally
tenable in any court in the country.

Most commercial disputes, in which it is not essential that there should be a binding
and enforceable decision, are amenable to conciliation. Conciliation may be
particularly suitable where the parties in dispute wish to safeguard and maintain
their commercial relationships.
The following types of disputes are usually conducive for Conciliation:

• Commercial.

• Financial.

• Family.

Apart from commercial transactions, the mechanism of Conciliation is also adopted

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for settling various types of disputes such as labour disputes, service matters,
antitrust matters, consumer protection, taxation, excise etc. Conciliation
proceedings:
Either party to the dispute can commence the conciliation process. When one party
invites the other party for resolution of their dispute through conciliation, the
conciliation proceedings are said to have been initiated. When the other party
accepts the invitation, the conciliation and justice, and by the usage of the trade
concerned and the circumstances surrounding the dispute, including any previous
business practices between the parties. The conciliator is not bound by the rules of
procedure and evidence. The conciliator does not give any award or,order. He tries
to bring anacceptable agreement as to the dispute between the parties by mutual
consent. The agreement so arrived at is signed by the parties and authenticated by
the conciliator. In some legal systems, the agreement so arrived at between the
parties resolving their dispute has been given the status of an arbitral award.

Conciliation has received statutory recognition as it has been proved useful that
before referring the dispute to the civil court or industrial court or family court etc,
efforts to concile between the parties should be made. It is similar to the American
concept of court-annexed mediation. However without structured procedure &
statutory sanction, it was not possible for conciliation to achieve popularity in the
countries like USA & also in other economically advanced countries.
MEDIATION:

Now, worldwide mediation settlement is a voluntary and informal process of

resolution of disputes. It is a simple, voluntary, party centered and structured
negotiation process, where a neutral third party assists the parties in amicably
resolving their disputes by using specified communication and negotiation
techniques. Mediation is a process where
it is controlled by the parties themselves. The mediator only acts as a facilitator in
helping the parties to reach a negotiated settlement of their dispute. The mediator

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makes no decisions and does not impose his view of what a fair settlement should
be.

In the mediation process, each side meets with a experienced neutral mediator. The
session begins with each side describing the problem and the resolution they desire –
from their point of view. Once each sides’respective positions are aired, the mediator
then separates them into private rooms.

However, the term Judicial Settlement is defined in Section 89 of the Code. Of

course, it has been provided therein that when there is a Judicial Settlement the
provisions of the Legal Services Authorities Act, 1987 will apply. It means that in a
Judicial Settlement the concerned Judge tries to settle the dispute between the
parties amicably.

If at the instanceofjudiciary any amicable settlement is resorted to and arrived at in

the given case then such settlement will be deemed to be decree within the meaning
of the Legal Services Authorities Act, 1987.

The Chief Advantages of the Mediation are: -

1. The agreement which is that of the parties themselves;

2. The dispute is quickly resolved without great stress and

expenditure; 3. The relationship between the parties are preserved; and
4. The confidentiality is maintained.

JUDICIAL SETTLEMENT:

Section 89 of the Civil Procedure Code also refers to the Judicial Settlement as one
of the mode of alternative dispute resolution. Of course, there are no specified rules

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framed so far for such settlement.. However, the term Judicial Settlement is defined
in Section 89 of the Code. Of course, it has been provided therein that when there is
a Judicial Settlement the provisions of the Legal Services Authorities.

Legal Services Authorities Act, 1987. Section 21 of the Legal Services Authorities
Act, 1987 provides that every award of the Lok Adalat shall be deemed to be a
decree of the Civil Court. There are no written guidelines prescribed in India as to
judicial settlement. But in America, ethics requiring judicial settlement has been
enumerated by Goldschmidt and Milford which are as under:

JUDICIAL SETTLEMENT GUIDELINES

The following are guidelines for judicial settlement ethics:

1. Separation of Functions: Where feasible, the judicial functions in the settlement

and trial phase of a case should be performed by separate judges.

2. Impartiality and Disqualification: A judge presiding over a settlement

conference is performing judicial functions and, as such, the applicable provisions
of the code of judicial conduct, particularly the disqualification rules, should apply
in the settlement context.

3. Conference Management: Judges should encourage and seek to facilitate

settlement in a prompt, efficient, and fair manner. They should not, however, take
unreasonable measures that are likely under normal circumstances to cause parties,
attorneys, or other representatives of litigants to feel coerced in the process. The
judge should take responsibility in settlement conferences.

4. Setting Ground Rules on Issues Such as Confidentiality,

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Disclosure
establish ground rules at the onset, either orallyor in writing, informing parties and
their attorneys of the procedures that will be followed. The rules should include
ground rules governing issues such as confidentiality, disclosure of facts and
positions during and after conferences, and ex parte communications.

5. Focusing the Discussions: A judge should use settlement techniques that are
both effective and fair, and be mindful of the need to maintain impartiality in
appearance and in fact.

6. Guiding or Influencing the Settlement: The judge should guide and supervise
the settlement process to ensure its fundamental fairness. In seeking to resolve
disputes, a judge in settlement discussions should not sacrifice justice for
expediency.

7. Sanctions or Other Penalties Against Settlement Conference Participants: A

judge should not arbitrarily impose sanction or other punitive measures to coerce or
penalize litigants and their attorneys in the settlement process.

LOK ADALAT:

The concept that is gaining popularity is that of Lok Adalats or people’s courts as
established by the government to settle disputes through conciliation and
compromise. It is a judicial institution and a dispute settlement agency developed
by the people themselves for social justice based on settlement or compromise.

Civil Procedure Code also provides as to referring the pending Civil disputes to the

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Lok Adalat. When the matter is referred to the Lok Adalat then the provisions of
the Legal Services Authorities Act, 1987 will apply. So far as the holding of Lok
Adalat is concerned, Section 19 of the Legal Services Authorities Act, 1987
provides as under: -

Section 19 Organization of Lok Adalats . (1) Every State Authority orDistrict

Authority or the Supreme Court Legal Services Committee or every High Court
Legal Services Committee or, as the case may be,Taluka Legal Services Committee
may organise Lok Adalats at such intervals and places and for exercising such
jurisdiction and for such areas as it thinks fit.

(2) Every Lok Adalat organised for an area shall consist of such number
of:-
(a) serving or retired judicial officers; and
(b) other persons, of the area as may be specified by the State Authority or the
District Authority or the Supreme Court Legal Services Committee or the High
Court Legal Services Committee, or as the case may be, the Taluka Legal Services
Committee, organising such Lok Adalat.

(3) The experience and qualifications of other persons referred to in clause (b) of
sub-section (2) for Lok Adalats organised by the Supreme Court Legal Services
Committee shall be such as may be prescribed by the Central Government in
consultation with the Chief Justice of India.

(4) The experience and qualifications of other persons referred to in clause (b) of
An
such as may be prescribed by the State Government in consultation with the Chief
Justice of the High Court.

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(5) A Lok Adalat shall have jurisdiction to determine and to arrive at a compromise
or settlement between the parties to a dispute in respect of –
(i) any case pending before it; or
(ii) any matter which is falling within the jurisdiction of, and is not brought before
any court for which the Lok Adalat is organised :

Provided that the Lok Adalat shall have no jurisdiction in respect of any case or
matter relating to an offence not compoundable under any law.

The Lok Adalat is presided over by a sitting or retired judicial officer as the
chairman, with two other members, usually a lawyer and a social worker. There is
no court fee, thus making it available to those who are the financially vulnerable
section of society. In case the fee is already paid, the same is refunded if the dispute
is settled at the Lok Adalat.

The Lok Adalat are not as strictly bound by rules of procedure like ordinary courts
and thus the process is more easily understood even by the ,uneducated or less
educated. The parties to a dispute can interact directly,with the presiding officer,
which is not possible in the case of normal court proceedings. Section 21 of the
Legal Services Authorities Act, 1987 is also required to be referred to here which
runs as follows: -

Section 21 Award of Lok Adalat.

(1) Every award of the Lok Adalat shall

be deemed to be a decree of a civil court or, as the case may be, an order of any An
Adalat in a case referred to it under subsection (1) of section 20, the court-fee paid

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in such case shall be refunded in the manner provided under the Court Fees Act,
1870 (7 of 1870).

(2) Every award made by a Lok Adalat shall be final and binding on all the parties
to the dispute, and no appeal shall lie to any court against the award. In view of the
aforesaid provisions of the Legal Services Authorities Act, 1987 if any matter is
referred to the Lok Adalat and the members of the Lok Adalat will try to settle the
dispute between the parties amicably, if the dispute is resolved then the same will
be referred to the concerned Court, which will pass necessary decree therein.

The decree passed therein will be final and binding to the parties and no appeal will
lie against that decree. On the flip side, the main condition of the Lok Adalat is that
both parties in dispute have to be agreeable to a settlement. Also, the decision of the
Lok Adalat is binding on the parties to the dispute and its order is capable of
execution through legal process. No appeal lies against the order of finality attached
to such a determination is sometimes a retarding factor for however be passed by
Lok Adalat, only after obtaining the assent of all the parties to dispute. In certain
situations, permanent Lok Adalat can pass an award on merits, even without the
consent of parties.

Lok Adalat is a definite boon to the litigant public, where they can get their disputes
settled fast and free of cost. The appearance of lawyers on behalf of the parties, at
the Lok Adalats in not barred.

Lok Adalat are not necessarily alternatives to the existing courts but rather only
supplementary to them. They are essentially win-win systems, an alternative to
‘Judicial Justice’, where all the parties to the dispute have something to gain. There
are certain hybrids of Alternative Dispute Resolution that also deserve a mention.

These processes have evolved in combination of various Alternative Dispute

Resolution mechanisms with the ultimate objective of achieving a voluntary

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settlement. The purpose of many of these hybrids is that the principle objective of
achieving a settlement is kept in mind and all permutations and combinations
should be utilized towards that objective to reduce the burden of the adjudicatory
process in courts. The different Alternative Dispute Resolution processes and their
hybrids have found solutions to different nature of disputes and thus the knowledge
of these processes can be a significant aid.

LEGAL AID

Article 39A of the Constitution of India provides for free legal aid to the poor and
weaker sections of the society and ensures justice for all. Article 14 and 22(1) of the
constitution also make it obligatory for the State to ensure equality before law.

The National Legal Services Authority (NALSA) has been constituted under the
Legal Services Authorities Act, 1987 to monitor and evaluate implementation of
legal services available under the Act.
Hon'ble Mr. Justice K.G. Balakrishnan, the Chief Justice of India is the Patron-in
Chief and Hon'ble Mr. Justice S.B. Sinha, Judge Supreme Court of India, is the
Executive Chairman of the Authority.

In every State, a State Legal Services Authority and in every High Court, a High
Court Legal Services Committee has been constituted. District Legal Services
Authorities and Taluka Legal Services Committees have been constituted in the
Districts and most of the Talukas in order to give effect to the policies and
directions of the NALSA and to provide free legal services to the people and
conduct Lok Adalats in the State. The State Legal Services Authorities are chaired
by Hon'ble Chief Justice of the respective Districts and the Taluk a Legal Services
Committees are chaired by the Judicial Officers at the Taluka Level.
Supreme Court Legal Services Committee has been constituted to administer and
implement the legal services programme in so far as it relates to the Supreme Court

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of India.

National Legal Services Authority (NALSA)

Functioning of NALSA
The NALSA issues guidelines for the State Legal Services Authorities to
implement the Legal Aid Programmes and schemes throughout the country.
Primarily, the State Legal Services Authorities, District Legal Services Authorities,
Taluka Legal Services Committees, etc. have been asked to discharge the following
two main functions on regular basis:
∙ To Provide Free Legal Services to the eligible persons; and

∙ To organize Lok Adalats for amicable settlement of

disputes.

Free Legal Services

The Free Legal Services include:

∙ Payment of court fee, process fees and all other charges payable or
incurred in connection with any legal proceedings;
∙ Providing Advocate in legal proceedings;

∙ Obtaining and supply of certified copies of orders and other documents in

legal proceedings;
∙ Preparation of appeal, paper book including printing and translation of
documents in legal proceedings.

Eligible persons for getting free legal services include:

• ∙Women and children;

• ∙ Members of SC/ST;

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• ∙ Industrial workmen;

• Victims of mass disaster;

• Disabled persons; ∙ Persons in custody;

• Persons whose annual income does not exceed Rs. 50,000/- ∙

• Victims of Trafficking in Human beings.

NALASA Schemes

• The NALSA has formulated the following schemes to perform its functions under
the Legal Services Authorities Act, 1987;

Legal and Counsel Scheme

• NALSA has initiated Legal Aid Counsel Scheme to provide meaningful legal
assistance to under-trial prisoners who, on account of lack of resources or other
disabilities, cannot engage a counsel to defend them. Now, Legal Aid Counsel
have been attached to each Magisterial Court who provide assistance and defend a
person who is not able to engage a counsel, right from the stage he/she is
produced in the court by the police.

Permanent and Continuous Lok Adalat Scheme

• A Permanent and Continuous Lok Adalat Scheme has been formulated and
implemented to establish Lok Adalats under Section 19 of the Act in all the
districts of the country. Under this scheme, the Lok Adalats are now organized
regularly at designated venues.

Counseling and Conciliation Scheme

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NALSA has formulated a Counseling and Conciliation Scheme to encourage the
settlement of disputes by way of negotiations and conciliation. Under this scheme,
Counseling and Conciliation Centres are being set up in all the Districts of the
country for guiding and motivating the migrants to resolve their disputes amicably.
Such Centres have been set up in most of the Districts.

Legal Literacy Programme

NALSA has formulated a strategy to provide basic and essential knowledge to the
vulnerable groups so that they can understand the law and know the scope of their
rights under the law and eventually assert their rights as a means to take action,
uplift their social status and being in social change.

NALSA has been organizing the Legal Aid Camps through State Legal Services
Authorities, Taluka Legal Services Committees, NGOs. etc. in the rural area and
slum areas for educating the weaker sections as to their rights and for encouraging
them to settle their disputes through ADR Mechanism. The people are
educated/made aware of their rights, benefits and privileges guaranteed by social
welfare legislations, administration programmes and measures etc.

The NALSA has been organizing meetings, seminars and workshops connected with
legal services programmes in different parts of the country.

Accreditation of Voluntary Social Service Institutions

NALSA has formulated a scheme for accreditation of Voluntary Social Service

Institutions to establish a nation wide network of voluntary agencies in order to
spread legal literacy, legal awareness and publicity for legal services throughout the
nook and corner of the country. All the State Legal Services Authorities have been
urged to identify Social Service Institutions in all Districts and give them

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accreditation.

Scheme on supporting the implementation of National Rural Employment

Guarantee Scheme (NREGS) through the State Legal Services Authorities
A scheme on Supporting the Implementation on NREGS through State Legal
Services Authorities has been formulated by NALSA for generating awareness
through Legal Literacy and Awareness Campaign and to establish a grievance
redressal forum by Organising Lok Adalats to resolve the disputes/complaints or
legal problems of any person in respect of implementation of the scheme and
employment guaranteed under NREGA.

State Legal Awareness Programmes in the States on the following laws :-

• Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

• Gram Nyayalaya Act.
• Protection of Women From Domestic Violence Act, 2005.

• Persons with Disabilities (Equal Protection of Rights and Full Participation) Act.
• National Trust Act.

• Laws relating to Marriage.

• Labour Laws.

• Environmental Protection Laws.

• Consumer Protection Laws.

• Campaign against Female Infanticide.

• Campaign against Human Trafficking.

• Cooperation with National Commission for Women at the Centre and associating

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the activities of State Legal Services Authorities with the State Women's
Commissions.
Lok Adalats: Widening the network of Lok Adalat to Government Departments,
Petitions pending before Women's Commissions, various Tribunals, Labour Courts,
Industrial Tribunal and Tax Tribunals etc., setting-up Special Lok Adalats in all
Family Courts.

Legal aid may be taken to mean free legal assistance to the poor persons in any judicial
proceedings before the Court, Tribunals or any authority. It intends to provide free legal
assistance to the poor persons who are not able to enforce the rights given to them by
law. Justice P.N. Bhagwati has clearly stated that legal aid means providing an
arrangement in the society which makes the machinery of administration of Justice easily
accessible and in reach of those who have to resort to it for enforcement of rights given to
them by law.

He has rightly said that the poor and the illiterate should be able to approach the courts
and their ignorance and poverty should not be an impediment in the way of obtaining
justice from the Courts. The constitution of India gives much importance to rule of law.
In India, it is regarded as a part of the basic structure of the Constitution and also of
natural justice. Free legal aid to the poor and weak persons has been held to be necessary
adjunct of the rule of law.

Legal Aid In India

The preamble of the Indian constitution aims to secure to the people of India justice –
socio economic and political. Article 38 and 39A of the Indian constitution are notable.

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Article 38(1) states- the State shall promote the welfare of the people by securing and
protecting the social order including justice and Article 39-A of the constitution states
that the state shall in particular, provide free legal aid, by suitable legislation or schemes,
to ensure that opportunities for securing justice are not denied to any citizen.

In Sheela Barse vs. State of Maharashtra, it was held that legal assistance to a poor
accused who is arrested and put in jeopardy of his life or personal liberty is constitutional
imperative mandated not only by article 39-A but also by article 21 and 14 of the
constitution.

Article 21 clearly says that every person has an equal right to life and liberty except
according to the procedure established by the law. It was said in the case of Hussainara
khatoon vs. State of Bihar, that if any accused is not able to afford legal services then he
has a right to free legal aid at the cost of the state.

Also in Sukhdas vs. Union Territory of Arunachal Pradesh, it was held, in case an
accused is not told of his right and therefore he remains unprecedented by a lawyer, his
trial is vitiated by constitutional infirmity and any conviction as a result of such trial is
liable to be set aside. Similarly article 14 also talks about equality before law.

Section 304 of CrPC imposes an obligation on the courts to provide legal aid at the
expense of the state to an accused, who has no sufficient means and finances to engage
an advocate. There cannot be any real equality in criminal cases unless the accused gets a
fair trial of defending himself against the charge and a professional assistance.

Obstacles To Legal Assistance

At present the legal aid movement in India is unorganized, diffused and sporadic. There
is lack of co-ordination in it. The ideal of equal access and availability of legal justice has
reached almost breakdown point. There is a wide gap between the goals set and met.

One law firm recently commented in a survey, We no longer do pro bono work, we are

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too busy trying to survive .

Lawyers don't engage themselves in pro bono activities because of various reasons.
There is lack of financial resources. The legal education imparted earlier did not provide
social education.

Therefore they do not understand or accept their obligation to do so, also the members of
the profession do not regularly come into contact with members of the community who
need legal assistance.

Illiteracy is also a major obstacle to legal aid. Now it is common knowledge that about
70% of the people living in rural areas are illiterate and even more then that are not aware
of the rights conferred upon them by law. It is the absence of legal awareness which leads
to exploitation and deprivation of rights and benefits of the poor.

Sd/-
Ms. Deepanjali Kashyap

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