08 Jan

Dispute Resolution in the Indian Context

History of the Separation of Powers

The Indian model of governance is three-fold consisting of the executive, legislature, and the judiciary. The judiciary occupies a prominent position as it mainly deals with the enforcement of the law. The separation of powers between the executive and the judiciary has been enshrined in Article 50 of the Indian constitution. The legislative organ of the state makes laws, the executive enforces them and the judiciary applies them to certain cases arising out of the breach. The base for this principle can be seen in the theories of Montesquieu who proposed that if there was no separation between the legislature and the executive, then it would lead to the executive having excessive power. Montesquieu believed that the concentration of excessive power in the hands of one organ would essentially result in tyranny. Therefore, the separation of powers between the legislature, executive and judiciary are imperative.

Conventional Modes of Dispute Resolution

The Indian constitution recognizes the judiciary as being one of the cornerstones of the three-fold structure. An elaborate system of courts exists in India under the ambit of the judiciary and quasi-judiciary where courts are the judicial authority and regulators like SEBI being quasi-judicial in nature. There are various methods of dispute resolution that are in use today. The foremost method is adopted by way of litigation through courts or tribunals. However, the cumbersome nature of litigation combined with the time and costs involved have fueled the use of alternate modes of dispute resolution especially of a commercial nature by companies.

Types of alternative dispute resolution

  • Arbitration

Arbitration is a process by which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. With regard to arbitration, parties can adopt a private dispute resolution instead of going to court.

  • Mediation

Mediation is another alternative dispute resolution available to parties. In mediation, disputing parties work with a neutral mediator to resolve disputes. The mediator resolves disputes by supervising the exchange of information and bargaining.

  • Conciliation

Conciliation is a manner of settling disputes through extra-judicial means. Conciliation refers to the process of bringing two opposing sides to reach an agreement such that the dispute can be settled out of court.

  • Lok Adalats

Lok Adalat is one of the alternative dispute resolution mechanisms in which a forum where disputes/cases pending in the court of law or at the pre-litigation stage are settled/ compromised amicably.

Hence, parties have various modes of dispute resolution at their disposal which can be opted to achieve speedy and cost-effective solutions.

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