With examples, discuss the significance of alternative dispute resolution mechanisms in light of costly
and time-consuming litigation process in India.
Approach:
- Briefly discuss about the costly and time-consuming nature of litigation process in India.
- Define alternative dispute resolution mechanisms and discuss its significance.
Answer:
Litigation process in India is currently marred by high cost and time delays due to various reasons like
poor judge to population ratio which is further aggravated on account of unfilled vacancies in courts,
several unavoidable reasons and procedure for delay like multiple rounds of appeals and revision,
dependency on lawyers due to complex techniques of a court of law and high fees charged by lawyers
and courts.
Alternative Dispute Resolution (ADR) provides an alternative approach to traditional process of dispute
resolution through litigation. It provides accessible, useful, informal, voluntary, speedy and inexpensive
justice to contesting parties. ADR mechanisms in India inter-alia include arbitration, mediation/
conciliation, Lok Adalats and Consumer Dispute Redressal system.
Significance of ADR mechanisms - It facilitates speedier justice and the parties involved have control over the eventual outcome. This
results in quick implementation of the decisions taken. - Mediation can play a very useful role in amicable resolution of matrimonial and family matters.
- Most ADR processes are based on integrative approach. They are more corporative and less
competitive than the usual method of litigation. - It makes justice more accessible through counseling or arbitration centers.
- The proceedings in ADR are informal and do not involve the formalities and complexities as involved
in a Court of law like hiring a lawyer. - Disputes amongst the government departments and agencies can be best resolved through out of
court mediation rather than litigation. - It can be used any time, even when a case is pending before a court of law.
- ADR is often less stressful than expensive and lengthy process of litigation; most people have
reported high degree of satisfaction with ADR. - As pointed out by Malimath Committee, ADR plays an important role in doing away with delays and
congestions in court proceedings.
ADR mechanisms are being incorporated in developing countries in order to strengthen the judicial
system. Adoption and popularizing ADR in India is a major step for achieving the much cherished goal of
achieving justice for all in India.
2.
Explain why the Indian Constitution has been argued to have created a ‘federation with a centralising
tendency’.
Approach:
- Briefly discuss the fundamental basis of Federation in Indian Constitution.
- Discuss the main federal features of the Indian Constitution which makes it closer to Federal state.
- Discuss the reasons why India is described as federation with a centralizing tendency.
Answer:
The debate whether India has a ‘Federal Constitution’ and ‘Federal Government’ has been grappling us
since the conception of our Constitution. In India, Federalism is considered as a basic feature of the
Constitution, even though the word is not mentioned anywhere in the Constitution.
The main features of the Indian Constitution which makes it closer to Federal state are as follows: - Written Constitution and supremacy of the Constitution- Written Constitution ensures that there is
a clear division of powers between the central and state governments. - Rigid Constitution: All the provisions of the Constitution concerning Union-State relations can be
amended only by the joint actions of the State Legislatures and the Union Parliament. - Division of Powers: The Seventh Schedule divides the subjects of administration into Union, State
and Concurrent Legislative Lists. - Independent Judiciary: The Constitution establishes an independent judiciary headed by the
Supreme Court. - Bicameral Legislature: A bicameral system is considered essential in a federation because it is in the
Upper House alone that the units can be given equal representation. - Dual Government Polity: In a federal State, there are two governments, one at the centre and the
other at the state level.
But the Indian Constitution also has some unitary features which can be argued to have created a
federation with centralizing tendency: - Strong Centre: The division of powers is in favour of the Centre and highly inequitable from the
federal angle. For instance, the Union List contains important and higher number of subjects than
the State List. - Special powers: The Parliament can make laws on subjects of state list under certain circumstances.
For instance, under article 249, Parliament can make laws even on any of the state list matter. - Emergency Provisions: During the time of emergencies the Federal apparatus transforms into
unitary system without any formal amendment to the Constitution. - States not indestructible: The states in India have no right to territorial integrity. The Parliament can
by unilateral action change the area, boundaries or name of any state.
- Role of governors: The Governor is appointed by the President on the advice of central government
and his/her actions are viewed as interference by the centre in the functioning of the state
government. - Financial Powers: There is concentration of financial powers in the hands of the union as more
revenue generating items are under the control of the central government. Besides, the union
government also uses its discretion to give grants and loans to the states.
It is true that the union has been assigned larger powers than the state governments, but this is a
question of degree and not quality, since all the essential features of a federation are present in the
Indian Constitution. According to K.C. Wheare, in practice the Constitution of India is quasi-federal in
nature and not strictly federal. It is a union or a composite of a novel type. Thus, it can be safely said that
the Indian Federalism is unique in nature i.e. ‘federation with a centralising tendency’ and is tailored
according to the specific needs of the country.
