SHIKHAR Mains Day 7 Model Answer - English

Updated : 14th Jun 2023

Q1: वैकल्पिक विवाद निवारण (ADR) से आप क्या समझते हैं?

What do you understand by Alternative Dispute Resolution? (8 Marks)

Approach:

· In introduction, define ADR mechanism, also provide constitutional provisions related to it.

· Then briefly explain different types of ADR mechanism.

· Further list its benefits.

· Conclude with highlighting the role of ADR mechanism in clearing the backlog of cases.

Alternative Dispute Redressal Mechanism-

Alternative Dispute Resolution (ADR) is a method of resolving disputes and disagreements between parties by negotiating and discussing a mutually acceptable settlement. It is an attempt to create a mechanism that is different from the usual techniques of resolving disputes.

The Alternative Dispute Resolution mechanism aims to assist in the resolution of business disputes and other disputes in which no discussion process or mutually acceptable solution has been initiated.

In India, Alternative Dispute Resolution is enshrined in Article 14 (Equality before the law) and Article 21 (Right to life and personal liberty) of the Indian Constitution. The ADR can also achieve the Directive Principles of State Policy (DPSP) of equal justice and free legal aid guaranteed by Article 39-A of the Indian Constitution. It can help courts reduce the burden of litigation even while providing a well-rounded and gratifying experience for the parties involved.

Types of ADR mechanism-

Alternative Dispute Resolution is usually divided into the following categories:

Arbitration:

Under this type of Alternative Dispute Resolution procedure.both parties involved in the dispute, choose the person who will hear and resolve their dispute through a consensus.
The case is brought before an arbitral tribunal, which renders a judgment on the case that is mostly binding on the parties.
It is less formal than a trial, and testimony requirements are frequently eased.
In most cases, there is no right of appeal against an arbitrator's judgement.
There is relatively limited scope for judicial intervention in the arbitration procedure, except for some interim procedures.
The Arbitration and Conciliation (Amendment) Act 2021 - to make the arbitration procedure more investor-friendly, cost-effective, and appropriate for quick case resolution.
Permanent Court of Arbitration (PCA)- The First International Peace Conference, held in The Hague, the Netherlands, in 1899, established the Permanent Court of Arbitration. The objective is “to facilitate the arbitration of international disputes”.

Conciliation

A non-binding procedure in which the parties to a disagreement are assisted by an impartial third party, the Conciliator, in finding a mutually satisfactory agreed settlement of the dispute.
The Conciliator is an active participant in the conciliation process, participating in discussions, negotiations, and reaching an acceptable settlement.
The parties have the option of accepting or rejecting the conciliator's recommendations.
However, if both parties accept the conciliator's settlement agreement, it will be final and binding on both parties.

Mediation

A neutral person known as a "mediator" assists the parties in attempting to obtain a mutually acceptable resolution of the disagreement through mediation.
The third-party does not make any decisions for the parties; instead, it serves as a facilitator who helps them improve their interaction.
The parties retain control of the outcome in mediation.

Negotiations

It is the most frequently utilized alternative dispute resolution method.
A non-binding procedure in which the parties commence negotiations without the involvement of a third party with the objective of obtaining a negotiated settlement of the issue.
Negotiation occurs in a variety of settings, including business, non-profit organizations, government branches, legal proceedings, international relations, and personal circumstances such as marriage, divorce, parenting, and everyday life.

Judicial Settlements Inclusive Of Lok Adalats

The Legal Services Authorities Act of 1987 paved the way for the development of the Lok Adalat system of dispute resolution in order to speed up the process. Disputes in the pre-litigation stage could be resolved amicably at Lok Adalats.
It is a component of the Alternative Dispute Resolution (ADR) system that provides informal, minimal, and expeditious justice to the general public.

Advantages Of ADR Mechanism

Dispute settlement is frequently done in private, which helps to retain confidentiality.
It is more feasible, cost-effective, and efficient.
Procedural flexibility saves time and money while removing the stress of a traditional trial.
The mechanism usually leads to innovative ideas, long-term results, increased satisfaction, and enhanced relationships.
The potential of having specialist competence in the form of an arbitrator, mediator, conciliator, or neutral adviser available on the tribunal.
It also gives more direct control over the outcome. Personal relationships may be spared as well.

ADR has proven successful in clearing the backlog of cases in various levels of the judiciary- Lok Adalats alone have disposed more than 50 lakh cases every year on average in the last three years. But there seems to be a lack of awareness about the availability of these mechanisms. The National and State Legal Services Authorities should disseminate more information regarding these, so they become the first option explored by potential litigants.

Q2: शक्ति के पृथक्करण सिद्धांत की अवधारणा को स्पष्ट कीजिए।

Explain the concept of separation of power.

Approach:

Briefly explain the concept of separation of powers.
Mention the Constitutional provisions that reflect separation of powers.
Explain if complete separation is practiced in the Indian context.
State judicial pronouncements regarding separation of powers.

Answer:

Generally, there are two commonly followed models of separation of powers between organs of state. One follows Montesquieu‟s dictum providing for rigid separation of powers. Other is Westminster model providing for looser separation and is based on the principle of the supremacy of Parliament.

Indian constitution, however, has provided for a unique separation of power. Thus, it provides for a third model of separation of power.

In India, separation of powers has been laid in the Constitution under the following provisions:

Article 50, which states that the state shall take steps to separate judiciary from the executive, to ensure independence of the judiciary.
As per Articles 122 and 212, validity of proceedings of the Parliament and State Legislatures respectively cannot be called into question in any court, thus, ensuring immunity of the members from judicial intervention.
According to Articles 121 and 211, judicial conduct of the judges of the Supreme Court and High Courts respectively cannot be discussed in the Parliament and State Legislatures.
As per Article 361, the President or Governors are not answerable to any court for the exercise and performance of their official duties.

Here, the constitution recognizes three organs of state but it does not expressly vest the different kinds of power in different organs. There is functional overlap in India which is reflected through the following:

Under the Indian Parliamentary system, members of political Executive are part of the Legislature too.
The Legislature exercises judicial powers in case of breach of its privilege, impeachment of the President and removal of judges.
The Executive exercises Legislature‟s law-making power under delegated legislation and also while passing ordinances.
Tribunals and other quasi-judicial bodies that are a part of the Executive discharge judicial functions and mostly have a member of the judiciary
The power of deciding the number of judges as well as appointing them is given to the president.
Under the power of judicial review, judiciary can give directions to executive in constitutional and statutory measures

Thus, a system of checks and balances is also prevalent to prevent arbitrary use of power by one organ. Further, the Supreme Court has reiterated the importance of separation of powers in several judicial pronouncements. In the Kesavananda Bharati case (1973), it stated that the doctrine of separation of powers is an integral part of the basic structure of our Constitution. The Supreme Court also rejected the National Judicial Appointments Commission Bill(2014) terming it unconstitutional and deemed it a threat to the independence of judiciary.

Thus, in India, system of separation of powers has acquired its own uniqueness with sufficient checks and balances to ensure that no organ of the government exercises arbitrary power.