Chapter -2

Evolution of the concept of ADR with historical

prospective

“Although the legal and ethical definitions of right are the antithesis of
each other, most writers use them as synonyms. The confuse power with
goodness, and mistake law of justice.” ……

Charles T. sprading, Freedom and its fundamental.

ADR is nothing new. This is informal quasi judicial system is as old

civilization. Different forms of ADR have been in existence for thousands
of years.

2.1 Fight & Might system

There was no structured scheme for the legal resolution of disputes

in all premature early societies, it can effortlessly discovered that the
administration of justice was a “private affairs‟ settled by fight and might.
Even though, with the evolution of powerful society, regulation relating
to conduct of the individual were adhered to social discipline was of
overriding consideration as, any violation of these social law were dealt
with strict action and deviator were punished and set as an example per the
prospective path breakers.45

2.2 King ship system

In India, there is no authentic account “available per the judicial

and political institution and civilization period prior to Aryans. The

45
An Introduction to Alternative dispute resolution system by Dr. Anupam Kurlwal.

48
available indigenous literature pertaining to that period is contained in
Vedas and sacred religious books.

In ancient India, Justice was administered by the king, it is found

that the supreme duty of the kind was considered to be, punishing the
wicked and protecting the righteous. Manu and Narada have compared
the position of the king to that of a surgeon. The Mahabharta says that the
kind who is also the one who dispenses justice should not back off from
the course of truth and he should be a sophisticated person with a
scholarly bent of intelligence. The major stages of development were
46
vedic, that is, the pre-mauriyan, Mauryan and Gupta periods.

In the vedic period, the king in return for the taxes padi to him by
the people, peformed the duty of a judge.47 In those early time, and
ministration of justice did not form a part of a state‟s Duty. 48 In the pre-
mauryan stage, it is possible to determine the true state of law as the
vedic and Dharmsutra periods. In vedic period, the sabha and samiti play
a important roll in the legal field. In primeval India justice was
administered according to the smrities and was one of the most
significant and mandatory occupations of a king. In primordial era,
according to Vinogradoff, more prominence was laid on solving problem
than on the exploration for truth.49

We can find out the condition of people were very miserably from
the study of ancient literature of India, where the aggrieved party himself
had to take steps as he could in order to get the wrong redressed. The
public devoured one another as the strong fish devour the weaker once in

46
An Introduction to Alternative dispute resolution system by Dr. Anupam Kurlwal.
47
Birendra Nath, Judicial Administration in Ancient India (1979), Page 27.
48
Dr. A.S. Altekar, State and Government in Ancient India (1977), Page 245.
49 rd
B.R. Agarwala, Our Judiciary, pp. 1-3 3 Edn., Published National Book Trust, India.

49
the water.50 This situation could not go for long. Because this method was
not satisfactory and there was a need to interference of the office of kings
against the situation of weaker being exploited by the stronger one and
there upon Lord Brahma is said to have introduced Kingship upon Manu.
The people agreed to pay certain taxes and prayed that in turn the King
should destroy their enemies to enable them to lead a peaceful life.51 The
Vedic King as the head of the Judiciary claimed himself as the upholder
of Dharma. Thus, the origin of judicial system in India can be traced from
pre-historic Vedic times more than 3000 odd years old, if not older still .52

The times was passed and now the King used to impart Justice with
the aid of his Ministers and Legal experts and the references to this is
found in the Manusmriti. The King became the holder of Law and was
not a source of law. He was guided by Dharma. He was expected to live
upto the ideals of Kingship as laid down in the Dharmasastra. The
Dharmasastra and Nitisastra regarded the King as the fountain source of
all Justice. The King was the highest Court of appeal and was expected to
decide cases according to Law.53 The Ancient Hindu period of Indian
legal system can be discussed chronologically under the following heads
of Vedic or per Sutra period, Dharma Sutra period and the Post Smriti
54
period.

2.3 Position of ADR in Ancient India

Dispute resolution outside of courts is not new, societies world –

over have long used non- judicial, indigenous methods to resolve conflict
what is new is the extensive promotion and proliferation of ADR models,

50 rd
B.R. Agarwala, Our Judiciary, pp. 1-3 3 Edn., Published National Book Trust, India.
51
S.K.De, The Cultural Heritage of the India.(1969,Vol.II),p 497.
52
P.B.Mukherji,The Hindu Judicial System,p434.
53
R.C.Majumdar, The History and Culture of the Indian People: The Vedic Age (1965), p475.
54
S. Varadachariar, The Hindu Judicial System, p 10.

50
wider use of court – connected ADR, and the increasing use of ADR as to
tool to realize goals broader than the settlement of specific dispute.55
Alternate Dispute Resolution system is not a new experience for the
people of this country also. It has been prevalent in India since time
immemorial. Legal history indicates that down the ages man has been
experimenting with procedure for making it easy, cheap, unfailing and
convenient to obtain justice.56

Alternative Dispute Resolution mechanisms is no way a modern

technique, nevertheless it has been structured on more systematic and
scientific shape, articulated in new lucid terms and providing more wide-
ranging resolution in recent years than before. The derivation of
arbitration may be devised back to the element method of village
Panchayats widespread in Primordial India.

Ancient system of dispute resolution made a considerable

contribution, in reaching resolution of disputes relating to family, social
groups and also minor disputes relating to trade and property. Village
level institutions played the leading role, where disputes were resolved by
elders, comprising council of village, popularly called Panchayats. The
pronouncements of Panch while sitting together as Panchayat
commanded immense approbation for the reason of the well – accepted
faith that they were the quintessence of voice of God and for that reason
had to be received and complied with unquestionably with time this style
of marvelous dispensation of justice through Panch Parmeshwar (Five
Gods).57

55
Alternative Dispute Resolution, Practitioners‟ Guide, Centre for Democracy and Governance,
Washington, 1998.
http://www.usaid.gov/our_work/democracy_and_governance/publications/pdfs/pnacb895.pdf.
56
Dr. Shraddhakara Supakar, Law of Procedure and Justice in Ancient India, Deep & Deep
Publication, New Delhi 1986.
57
Dr. N.V. Pranjape “Arbitration Conciliation Act” second edition 2002, CLA Allahabad.

51
2.3.1 Vedic or Pre-sutra Period

We can find out the vedic or pre-sutra period under the Aryan
Civilization. Pre-vedic or early vedic period was the period in which
Rigveda, the oldest literacy work, was composed. In the Vedic period
law, religion and justice were closely interconnected and there was no
clear cut demarcation. The Vedas are said to be four in number namely
Rig-Veda, Yajur Veda, Sama Veda and Athurva Veda. Of these Vedas,
Rig-Veda explains the structure of the society and the social and political
institutions that existed in the Vedic period.

There was absence of central control of organized government in

the modern sense. The whole territory was divided into small Kingdoms
ruled over by the King, and the king was the head of the State and not of
the Society. The State and the Society had distinct sphere of activities.
National life and activities in the earliest times as on record were
expressed through popular assembles and institutions .58 There were a
gradation of Courts and the King was the highest Court of appeal. Appeal
lay from the lower Courts to higher Courts. The three most important and
popular bodies were Parishad, Samiti, and Sabha.

All the religious matters advised by the “Parishad” but it also

discharged some judicial functions. „Samiti‟ was the body for general
deliberations where all kinds of policy matters were discussed. This body
also discharged legislative and judicial functions .It was the assembly of
whole of the People. The most important function of Samiti was the
election and re-election of the King. The King considered himself duty
bound to participate in the deliberations of the Samiti and thus emerged to
be the sovereign body. The „Sabha‟ was a body of selected persons

58
Dr. Radha Kumul Mookerjee, Local Government in Ancient India, p22.

52
presided by the king himself. Sabha was the national judicature, due to
the reasons that the resolutions of the Sabha were considered to be
binding on all the persons.59

The system, of Arbitration was probably known to the people of

the early vedic age. The arbitrator or mediator of dispute called
Madhmasi.

2.3.1.(i) Dispute Settlement during Vedic age

Generally it is presumed that the commonly prevalent system of

Government in Ancient India was monarchy and instance of republic
were either exceptions or aberrations. The view is based on the apparent
perception that of monarchy.60 In the Starting of the vedic age the people
were not civilized and there life were not settled but the development of
agriculture had started in groups. The first – Civilization in India was
Indus valley arose about in 2,600 BC.

It actually straddle modern India and Pakistan in 6,500 BC the

people of the area had begun farming pottery had invented by 5,500 BC.
By about 2,600 BC a prosperous farming society had grown up. The
farmers used bronze tools. They grew what, barley and peas. Now they
also raised cattle, goats and sheep. Water buffalo were used to pull carts.
The people spun cotton and they traded with other cultures. Some of the
people of the Indus valley began to live in towns.61 The Indus valley
script remains unreadable to the present day, the numerous seal
discovered during excavations, as well as statuary and pottery, not to

59
K.P.Jaiswal Hindu Polity P 21,14.
60
http://www.samarthbharat.com/files/republic.pdf
61
http://www.localhistories.org/india.html

53
mention the ruins of numerous Indus valley cities, have enabled scholars
to construct a reasonably plausible account of Indus valley civilization.

First democracy developed in Harappa. Very little evidence has

been found of a king in the Indus valley, except the one white priest king
idol and a silver crown, not enough to establish that the “royalty” were
the rulers instead the empire was divided into regions with half a dozen
cities functioning as capitals and was governed by a group of people.

Archeologist Jonathan Mark observed that “the Harappa rulers,

were merchants, ritual specialists and individuals controlling important
resources, instead of just one social group controlling the rest. From the
construction of the cities however it does appear there were some social
classes, as the citadel is usually 20 feet higher than middle and lower
town.”62

The arrival of Aryans in India was the reason of decline of Indus

Valley civilization. From their original settlements in the Punjab region,
they gradually began to penetrate eastward, clearing dense forests and
establishing “tribal” settlements along the Ganga and Yamuna plains
between 1500 B.C. and 800 B.C. By around 500 B.C., most of northern
India was inhabited and had been brought under cultivation, facilitating
the increasing knowledge of the use of iron implements, including ox-
drawn plows, and spurred by the growing population that provided
voluntary and forced labour. As riverine and inland trade flourished,
many towns along the Ganga became centers of trade, culture and
luxurious living. Increasing population and surplus production provided

62
http://www.hyperhistory.net/apwh/essays/comp/cw02summeriansharappans34100118.htm.

54
the basis for the emergence of independent states with fluid territorial
boundaries over which disputes frequently arose.63

The glimpse of the dispute resolution system prevalent in ancient

times reveals that the philosophy of amicable and speedy ADR based on
the premise participatory justice in family entrenched in the legal of
history of India. Ancient Hindu Jurists laid more importance on the
determination of dispute by the arbitrators or tribunals not established by
the king. Yajnavalkaya and Narada state that village councils (Kulani)
Corporation (sreni) and assemblies (Puga) used to decide law suits.64

In ancient times, disputes were peacefully decided by intervention

of kulas (family or clan assemblies), srenis (guilds of men following the
same occupation), parishads (assemblies of learned men who knew law)
before the king came to adjudicate on disputes.65 The Initially political
system of the Aryans was amazingly complex, though quite ingenious.
They hung around together in small village settlements (which later grew
to kingdoms) and the basis of their political and social organization was,
not surprisingly, the clan or kula. Being of somewhat militant nature, this
was very much a patriarchal society, with the man in the house expected
to keep his flock in control. Groups of kulas together formed a Grama or
village, which was headed by a Gramina. Many villages formed another
political unit called a Visya, headed by a Visyapati. The Visyas in turn
collected under a Jana, which was ruled by a Rajana or king. However,
the precise relationship between the grama, the visya and the Jana has not
been clearly defined anywhere.

63
http://www.thisismyindia.com/ancient_india/ancient-india-government.html.
64
P.V. Kane, History of Dharmshastra Volume-III page 42.
Chanbasappa Vs. Baslingyya AIR 1927 Bom.
65
http://www.sethassociates.com/alternative_dispute_resolution.php.

55
 There were several category of arbitration in ancient India for
example Puga, Sreni, Kula. The Puga or a board of persons who belonged
to different sects and tribes but lived in the same locality; the Sreni or
assemblies of tradesmen and workers belonging to different tribes and
trade but connected in some way with each other, and the other was, Kula
or groups of persons bound by family ties. From the starting, the
decisions of Panchayats were accepted as binding. According to
Colebrooke (an English scholar and commentator on ancient Hindu law),
Panchayats were different systems of arbitration subordinate to the
regular courts of law. The decision of a Kula group was subject to
revision by the Sreni which could be revised by the Puga. Appeal was
maintainable, from the decision of the Puga, to Pradvivaca and finally to
the sovereign and the prince.

In ancient times there was mainly three types of court and that
were, the Kula, sreni and Gana, each succeeding one being more
important than the preceding one. The king or his officers were only
when and where these three failed to administer proper justice interfere.
Unfortunately Sukra does not explain the nature of the above three types
of courts. But if we see the evidence of the Mitakshara, we can say that
kula court consisted of a group of relations near or distant.

It is important to note that in ancient India joint families were the

order of the day and they were usually very large. When a disagreement
or dispute used to take place between two members of a family, it was
usually settled by its elders. If the elders failed to bring about any
settlement between the family members, the sreni or the guild courts used
to intervene. Srenis or guilds became a prominent feature of commercial
life in ancient India from 500 B.C. They were well organized and had
their own executive committees of four or five members. The nature of

56
the Gana Court is difficult to ascertain. Probably it was identical with the
Puga Court of Yajnavalkya, which consisted of persons of different castes
and professions but residing in the same place. It was obviously the
popular panchayat courts.66

The noble conception of resolution or patching up to dispute by

reference to the authority of their choice was very much known in
ancient India. Even the divine kings came to decide the dispute by these
community bodies.

Diverse Categories of Courts in Ancient India

The court chaired by a king was the uppermost court. There were
some other courts chosen by the king, and others which were people‟s
courts documented by the Smritis as having the power to administer
justice.

(i) Kula (Gathering or Family Council)

Kula (Gathering or Family Council) used to to be an

assembly of unbiased persons belonging to the family or caste of
the litigants, which functioned as Panchayatdars or Panchayat
Mandalis and decided disputes among those belonging to the same
family or caste.

(ii) Shrni (Corporation)

Shreni (Corporation) as in commercial society arbitration,

these courts were made of corporation of persons following the
identical craft, profession or trade.

(iii) Gana (Area Assembly)

66
P.B. Udgaonkar, Political Institutions and Administration, Motilal Banarsidass Publishers Pvt. Ltd.,
New Delhi, 1986, p. 209.

57
 Gna (Area Assembly) were congregations of persons who
belonged to one place but were or diverse castes and followed
dissimilar vocations.

(iv) Adhikrita

These were courts appointed by the king.

(v) Nripa

They were also identified as courts of the king.

(vi) Pratistitha

It was a Court established at a particular village or town. The

Pratistitha was a mobile court, which moved from village to
village.

(vii) Mudrita

Mudrita was a court appointed by the king and certified to use the
royal seal.

(viii) Sasita

67
The Sasita was the court over which the king preside.

2.3.1.(ii) Ancient India Trade – Guilds System

In ancient Indian guilds was the unique and multi-faceted form of

organization, which combined the functions of a democratic government,
a trade union, a court of justice and a technological institution.68 We can
find out the references the guild system of Ancient India by “Srenya”, a
Sanskrit writer. This term means a fraternal organization of a group of

67
An Introduction to Alternative dispute resolution system by Dr. Anupam Kurlwal.
68
http://www.infinityfoundation.com/mandala/h_es/h_es_shah_m_sreni_frameset.htm.

58
labourers or artisans. A Srenya is thus primarily a combination of manual
workers for some common purposes. The early Hindu, Jain and
Buddhistic traditions often refer to the Srenyas.69

The workers manually associated due to the communistic spirit of

Indian civilization. Persons of the same profession and so of the same
caste had that common caste feeling, which brought them together. When
once these organizations came into being, the cohesive forces added
strength and they became corporate bodies with a separate existence and
personality of their own. These bodies had the sanction of religion for
their existence and hence they occupied such a large place in the socio-
economic structure of the Hindu States. These bodies gradually acquired
some influence in the political affairs of the tribes to which they
belonged.

The political organization had also to change, when the transition

from small petty kingdoms to huge empires had taken place. There was
more of centralization and all political power tended to be concentrated in
the hands of the king and of the Royal Council. The territories of the
empire were often so wide as to preclude effective supervision by the
king from his far-off capital. Decentralization was necessary for the
administration.

The guilds would have gain something from this decentralization

process. By reason of their corporate character and organization, they
would have been vested with a certain amount of administrative
functions. Thus often the king would have endowed the guilds with
judicial functions. In the 4th and 3rd centuries B.C., the guilds settled
disputes among their members. Form its sentence however there was an

69
H.S Bhatia, Society, Law and Administration in Ancient India, Vol. 3, Deep & Deep Publications
Pvt. Ltd., New Delhi, 1992, (2nd Ed.), p. 179.

59
appeal to the Royal Courts. Disputes between several guilds were settled
by means of arbitration. A characteristic feature of the ancient trade
guilds system of India was that the dispute between or within the guilds
settled by the arbitrator.

In the judicial arrangements of the state, the guilds occupied a

prominent place and should have performed the duties of a subordinate
judiciary subject to the supervision of royal authority. In this lies one of
the unique features of the Indian trade-guild system.

The Somadeva, who flourished in the 10th century, observes that

the royal courts could be approached only after a case was decided by the
town or village court. The village court he refers to must obviously have
been the Gana court of the Narada and Sukara. Had it not been
functioning, Somadeva could hardly have laid down that the royal courts
should come in the picture only after a case was decided by the village
court. It is clear that the village panchayat also played an important part
throughout the long course of Indian history.

They flourished in India not due to anarchy as was propounded by

Sir Henery Maine but, because the central government was itself refusing
to entertain any suit at the first instance and were deliberately referring all
of them back to the village panchayat. Thus the village panchayat reduced
the burden of the central government, helped the cause of justice and
encouraged the principle of self government.

2.3.1.(iii) Dharma-sutra Period

Most Important period of ancient age is the Dharma sutra period which is
also called as the golden period of Indian Legal History. With the
advancement of time and society, the people progressed towards
Civilization. The law propounded by the Smriti writers was more

60
systematic and comprehensive in nature and laid down certain sets of
principles to be followed by the people and the King alike. The Dharma
Sutra are the principal Sutras of Gautama and Baudhyana, Sutras of
Apastamba, Harita, Vashista, and Visnu. The areas that were mainly dealt
by the Sutras were rules of civil and criminal Law, marriage, inheritance,
succession interest and partition.70

Manu Smriti, Yajnavalkya Smriti, Narada Smriti, Brihispati Smriti

and the Katyana Smriti are the most important smrities which contributed
immensely towards the development. The study of Arthasastra of Kutilya
reveals that there were two types of Courts viz., Dharmasthiya or the
Civil Courts and Kantakasodhana of Criminal Courts.

To avoid delay the administration of Justice was decentralized and

other complications connected with the investigation of cases. Kautilya
and Manu have given different system of gradation of Courts. Kautilya
71

has given much importance to Popular Courts and in his scheme Courts
were instituted at Sangrahana, Dronamukha, Sthaniya and where the
District met. According to the scheme of Manu that was adopted by
Yajnavalkya, Narada, Brihaspati and Katyayana, the Sabha system
formed the basis of forming and grading Courts. The Courts were known
as Popular Courts and were termed as Kula, Sreni, and Gana Courts and
the idea behind these Courts was to enable each and every person to
receive justice without delay.72

Different level of courts were also seen in the Sutra and the Smiriti
period. At the apex of the Judicial hierarchy was the Royal Court called
„Sabha‟. It was staffed by experienced Councilors who advised the King

70
Dr. S.K.Puri , Indian Legal and Constitution History(1980) ,P2,3.
71
S.D.Sharma , Administration of Justice in Ancient India(1988),p71,p72.
72
Mulla,Hindu Law,(1974),p15,16,23.

61
on the Points of Law in accordance with the law laid down in the sacred
textbooks and the local customs. There were certain traditional
obligations and customary limitations were also imposed upon the ruler
of ancient India who administered justice. They had to take into
consideration the laws of the guilds in administering justice. Secondly, all
were not equal in the eyes of law. The punishment for the offences
depended on the social status of the offender. The cast of the offender
also influenced the judgments.73

According to the Yajnavalkya there was three types of Popular

Courts namely the Kula, Shreni, and the Pugha. The „Kula‟ was the
assembly of persons of the same family or community tribe, cast or race
and charged with the function to decide the disputes amongst the persons
who felt equality bound by its decisions. The „Shreni‟ was the assembly
or association of persons following the same avocations or trade and the
„Pugha‟ is interpreted in three senses namely companies of traders,
association of persons differing in castes and the riders on the elephants
and horses. The existence of jury system is specifically mentioned in the
Smritis. It was the duty of the jury to consider the truth or the cause
before the Court.74

The existence of People‟s Court in ancient India finds mention in

Narada Smriti. The Jurors in ancient India were selected from the higher
classes and those who were the most respectable in the society. The main
qualification for the person to be juror was that, he was well versed with
the question of law and fact involved in the dispute referred by the
parties.75

73
H.V. Sreenivasa Murthy, V.S. Elizabeth ,History of India,p8.
74
P.V.Kane, History of Dharmasastra(1973),p281
75
K.P.Jaiswal Hindu Polity P 312.

62
2.3.1.(iv) The Epic age

The two great epics namely, Ramayana and Mahabharata were

written during this period. The epic age is roughly estimated around 500
BC and 200 BC during the period of epics, there well large number of
states in India. The ordinary form of government was the kingship but
there were also republics. The king respected the laws of pugas or village
communities, srenes or guilds of a particulars occupation, kulas or
assembly of members of a clan, jatis or castes and Janapadas or region.
The Sabhas i.e. popular courts continued to flourished in the epic age too
because their decisions were usually upheld by the kings. The system of
arbitration seems to have been popular in this period.

2.3.1.(v) The post smriti period

The post smriti period was mainly related to Nibandhakars and

Digest writers. From the study of Kutilya‟s Arthashastra reveals that the
Courts of Dharmasthas were located at the junction of two territories or
Janapadas and the Head quarters of 800, 400 and 10 Villages called
Sthaniya, Samgrahana and Dronamukha respectively. There was
decentralization of Judiciary to a great extent. The rights, duties and
responsibility of the King, in the administration of the State including
judicial administration were dealt by Arthashastra of Kautilya.

The systematic and exclusive treatment of law was a distinct

feature of Arthashastra. The Nibandahas and Tikas commentaries had
significant part in the development of law and it even flourished in India
during the Muslim Period. It gave rules as to, in case of conflict the Suriti
will prevail over Smriti, and whenever there was conflict between the two
texts in Suritis or Smritis then the text that was supported by reason and

63
usage would prevail. Thus, it can be said that the task was to lay down the
rules of interpretation with guidelines.

The object of every judicial administration is to be just, honest and

make available speedy remedy to the aggrieved persons who as a last
resort seek the assistance of the Courts. It is noted from the above study it
is enlightened that the entire judicial administration in ancient India
functioned under the supervision of the King and the Courts derived their
authority from King. The Hindu system was not prepared to trust the
judgments of a single individual, how so ever learned and eminent he
might have been.76

The King performed his judicial function with the help and
assistance of his ministers, Purohit and Sabhyas. Later on times, the King
can deputed the learned Brahmins to take his place and do justice, when
he was unable to attend personally to the judicial functions except in
some special circumstances. In order to give speedy and proper Justice,
there existed well set principles which governed the proceedings in the
Courts. In the ancient India the existing courts also enjoyed discretionary
powers to deliver justice to the aggrieved persons.

The study of the ancient Indian dispute redressal system reveals

that, India was conversant with many of the modern judicial system. The
success of any dispute redressal system depends on the two basic
elements, firstly a well– regulated system of Courts following a simple
and orderly procedure and secondly a definite, easily ascertainable and
uniform body of law. Thus, these two basic elements certainly formed the
basis of ancient Indian Judicial system.

76
Dr.V.C. Sarkar , Epics of Hindu Legal History, Pg 83(1958).

64
 The aggrieved person, followed the procedure for doing Justice,
not very technical. The basic considerations were upholding dharma and
to avoid needless and vexatious litigations compounding. Withdrawing
the complaint was treated as cheating the King. The cases of social
interest were not sustainable in the Courts. Thus, these are the indication
to say that different forms of dispute redressal machineries and People‟s
Court existed, continued to function down to the eighteenth century, and
existed in India thereafter.

The Panchayat and the Village Courts played a significant role in

settling local disputes, both in ancient and medieval times in India. It is
significant to note that the Law Commission of India, in its 14th report
(1958) has mentioned that the functioning of such different alternative
arrangements like People‟s Courts as dispute redressal mechanisms along
with the Courts had successfully reduced the burden of the central
judicial administration.77

2.3.2 Dispute settlement during Mauryan Dynasty

Chandragupt Maurya became the king of the powerful and highly

centralized of state of Magadha of India in 322 BC. With the help of his
advisor kautilya Chandragupt Maurya created an empire. After the death
of Alexander the Great his empire had split up. Seleucos took eastern.

He attempted to reclaim the Indian provinces once ruled by

Alexander. However his army was stopped by Chandragupta in 305 BC.
Seleucos was then forced to surrender most of Afghanistan to
Chandragupta, who also conquered parts of central India. This new
empire was rich because all the trade developed well in his period. Its

77
Dr.A.S.Altekar , State and Government in Ancient India (1977), p 252 ;Law Commission of India,
14th report (1958)II,p874

65
capital was one of the largest cities in the ancient world. In 296 B.C.
Chandragupta abdicated in favour of his son Bindusara who pushed the
frontier of the empire further south. He was succeeded by the greatest
Mauryan ruler was Ashoka or Asoka (269-232 BC).

He conquered Kalinga (modern day Orissa). Afterwards he

declared he was appalled by the suffering caused by war and decided
against any further conquest. The Mauryan Empire declined, after his
death. It suffered an economic decline and political instability as different
brothers strived to become king. A general assassinated the last Mauryan
ruler in 185 BC. The general then took over running the empire and
founded the Shunga dynasty. However in 73 BC the last Shunga ruler
was, in turn, assassinated.

They were replaced by the Kanva dynasty which ruled from 73-
28BC. The influence of the Mauryans punctured into Southern India. In
the time of the Mauryans the farmers there became more advanced. In the
first century BC now organized kingdoms had grown up and trade and
commerce were flourishing there.

In Mauryans dynasty the king was the head of justice-the head of

law and all matters whether civil or criminal consequences were decided
by him. At the local level, there were courts formed by citizens, apart
from courts formed by trade guilds and village assemblies. There were
special courts in the cities and villages presided over by the pradesika,
mahamatras and rajukas.

There were two kinds of courts in Mauryans dynasty :-

1. Kantakasodhana deciding cases of a criminal nature. The criminal

courts were special tribunals presided over by three amatyas or
pradestris aided by spies and informers.

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2. Dharmastheya which dealt with civil matters and was presided over
by three amatyas and three dharmasthas.

At least one court and one police head office was set up in all
important cities and headquarters. Besides these courts petty cases in the
villages were settled by the village elders in their panchayats. In civil
cases the Hindu code of law, as envisaged in the shastras, was
administered.78

According to Kautilya, the main sources of law were dharma

(accepted principles), vyavahara (legal codes current at the time) charitra
or customs and rajasasaru (the king's decree). Cases were registered and
witnesses were produced. Arbitrators was taken a decision, with a system
of appeal to the king. Megasthenes‟ account seems to indicate that theft
was a rare occurrence in the Mauryan kingdom. But it actually appears
that crime and breach of laws were common at the time. Punishments
mentioned by the Arthashastra, ranging from „mild‟ to „severe‟.

Megasthenes mentions the punishment of mutilation for false

evidence and death for harming the artisans attached to the royalty. Those
who enforced the law had to face punishments if they themselves broke
the law. The penalties mentioned in the Arthashastra were graded
according to Varna hierarchies. Scholars have noted that a shudra was
punished more severely than a Brahman for the same type of offence.

2.3.3 Dispute settlement during kushan Dynasty

The most interesting Dynasty which ruled over the land of Jammu
& Kashmir was Kushan Empire. After the disintegration of the Mauryan
Empire in the second century B.C., South Asia became a collage of

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rulersindia.html

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regional powers with overlapping boundaries. India‟s unguarded
northwestern border again attracted a series of invaders between 200 B.C.
and A.D. 300. In the process of their conquest and settlement the invaders
became “Indianized.” This period also witnessed remarkable intellectual
and artistic achievements inspired by cultural diffusion and syncretism.

The Indo-Greeks, or the Bactrians, of the northwest contributed to

the development of numismatics; they were followed by another group,
the Shakas (or Scythians), from the steppes of Central Asia, who settled
in western India. Still other nomadic people, the Yuezhi, who were forced
out of the Inner Asian steppes of Mongolia, drove the Shakas out of
northwestern India and established the Kushana Kingdom (first century
B.C.-third century A.D.). The parts of Afghanistan and Iran, controlled by
the Kushan Kingdom and in India the realm stretched from Purushapura
(modern Peshawar, Pakistan) in the northwest, to Varanasi (Uttar
Pradesh) in the east, and to Sanchi (Madhya Pradesh) in the south. For a
short period, the kingdom reached still farther east, to Pataliputra.79

In 78-123 AD, the Kushan Kingdom has seen its highest rise.
Kanishka was the famous King of the kingdom. Kanishka was the
legendary ruler of ancient India and according to most historians the
greatest ruler of Kushan dynasty. He and his descendents called
themselves „Devputra‟ which means son of god, who ruled Aryavarta, the
India. He established an era, commonly known as Shaka era, starts from
78 AD. Shaka era is still in use in India.

Kanishka I succeeded by Huvishka. He was founder of a city

Hushka in Kashmir named after him (described by Kalhan in
Rajatarangini). Kushana Empire was at its heights during Kanishka‟s and

79
http://www.gatewayforindia.com/history.htm#Golden period of Indian History.

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Huvishka‟s reign. Vasudeva I took control of this dynasty after
Huvishka‟s reign, which by then had lost control over regions beyond
Bactria or perhaps the Bactria itself. The Kushan dynasty had been totally
assimilated in Indian culture. Vasudeva I was the last great king of the
dynasty when Kushana empire was at it‟s height of splendor and
prosperity.

After the death of Vasudeva, the decline of Kushan Empire had

started. Vasudeva was succeeded by his son Kanishka II, who lost all the
territories west of river Indus to Sassanians. Vasudeva II, Vashishka, and
Shaka are the kings who followed after the Kanisha II. The Kushan
Empire had completely disintegrated into few small kingdoms, after
Vashishka. By fourth century AD this dynasty went into total obscurity
with advent of mighty Gupta emperors.80

2.3.4 Dispute settlement during Gupta Age

The golden age of India is known Gupta age. It existed

approximately from 320 to 550 AD. The Gupta‟s administrative system
was similar to that of the Mauryan Empire. The King was the highest
authority to enable the smooth functioning of the empire. During the
Gupta period, the empire was classified into separate administrative
divisions like Rajya, Rashtra, Desha, Mandala, etc. The provinces were
divided into numerous districts or Vishayas.

Gupta kings were not autocrats. Kings shared their powers with
ministers and other high officers. A large number of powers were
delegated to the local bodies such as village Panchayats and town
councils. Kalidas also pointed out that there were three ministers- foreign
minister, finance minister and the law minister. Office of minister in

80
http://www.gloriousindia.com/history/kushans.html.

69
charge of law and order was called Vinayasthiti Sthapaka. 81 The Gupta
Empire had a separate judicial system. The village assembly or trade
guild was the lowest level of the judicial system.

These were the councils appointed to settle the disputes between

the parties that appear before them. The King appointed the separate
councils to decide various matters that came before them. Thus, if people
could not reach to any amicable settlement, it was resolved by the
councils. The highest appeal heard only by the king. In discharging his
duty, the King was assisted by judges, ministers, priests, etc. Inscriptions
of Gupta‟s refer to such judicial officers as „Mahadanda nayaka‟,
„Mahakshapatalika‟ etc. Probably, „Mahadandanayaka‟ combined the
duties of a judge and a general. The „Mahadandanayaka‟ was probably
the „Great keeper of Records‟. It appears that the „Kumaramatya‟ a
„Bhondapashika‟ and the „Uparika‟ had each his separate „Adhikarna‟ or
„court or office‟ where the transactions pertaining to land were decided.
The judicial matters were also decided there. The Capital punishment was
given in very rare cases. However, the testimony of Fa-Hien is not
accepted and it is pointed out by the Kalidas, Visakhadatta that
punishments were pretty harsh in the Gupta period-such as death, death
by elephant etc. Four kinds of ordeals seemed to have been employed to
ascertain the guilt or innocence of a person. These are by water, by fire,
by weighing and by poison.

The decision or the judgment of the court was based on the legal
texts, the social customs prevailing during those times, or upon the
decision of the King.

81
http://www.theindianhistory.org/Gupta/gupta-empire-administration-and-administrative-
system.html

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2.4 POSITION OF ADR IN MUGHAL PERIOD

From the study of the Indian legal history we can reveals that the
recognized Hindu period changed with the invention of Muslims in India.
Now the society in India was broadly divided in to two parts Hindus and
Muslims. In Medival period the Muslim invasion was made by
Mohammudbin- quasim in 712 AD. He came to India only as invader and
returned thereafter. Qutub-uddin Aibek was the real founder of Muslim
rule in India. He in reality established himself firmly in India after waging
series of wars.

Akbar was the most famous ruler of the Mughal Empire. The
administrative system of the Mughal Empire was largely the work of
Akbar. Jalal ud-Din Mohammad Akbar laid the foundation of the Muslim
dynasty in Hindustan. Babur and Humayun, the two early Mughal Kings,
did not done any major implements in their period. In 1556, Akbar
became the king of Hindustan after the death of his father, Humayun.

At that time, Akbar was only 13 years old. Akbar was the only Mughal
king to ascend to the throne without the customary war of succession.

Akbar‟s action ultimately provided the Indian landmass with a

more efficient form of government than it had survived under earlier
Muslim dynasties. Muslim rules had striven tooth and nail for more than
three centuries to impose their authority over the majority of Hindu
population. That was the rise of Muslim rule in India. Nothing like
modern legislation, or a written code of laws, existed in the Mughal
period.

Thereafter, the Muslims continued to rule over India until 1857

when the Britishers overruled the last Mughal King Bahadhadur Shah

71
Zafar. The Hindus and Muslims governed by their holy books, certain
rules of practices and traditions in their social relations and political
organization. The judicial structure, which existed in India during Muslim
rule, is studied under the „Sultanate Period‟ from 1206 AD to 1526 AD
and under the „Mughal Period‟ starting from 1526 AD that lasted up to
1680 AD.82

In Medival period the king appointed the Brahmans for hearing the
general problems and cases of the civil nature of Hindus while the cases
of Muslims were tried according to Islamic Law. The revenue cases were
tried according to the local tradition.

The Muslim Rulers did not interfere with the customs and
traditions of Hindus and Hindus continuously governed by their own laws
in personal matters. Village Panchayat Played a vital role In the
settlement of dispute during Medival India. Panchayat were the lowest
trial courts and their findings were final in small causes cases. The basic
characteristic of that period was that the Sultan was the Supreme Court of
Justice in his Kingdom. The administration was held in the name of the
Sultan in three capacities – Firstly, as the arbitrator in the disputes of his
subjects, he dispensed justice through the Diwan-e- Qaza. It is secondly
the head of the bureaucracy.

He dispensed justice through the Diwan-e- Mazalim. Finally, as the

Commander-In-Chief of Forces, through his military commanders who
constituted Diwan-e- Siuasat , tried the rebels and those charged with
high treasons. During the Muslim rule all were not treated as equals in the
eyes of law and the Hindus as well as poor were discriminated against the

82
M.B.Ahmad, The Administration of Justice in Medieval India, Pg 98.

72
Muslims and the rich respectively. This feature was not found in Ancient
India.83

The culture of the ruler, who was Muslim and the subjects, who
was Hindu were different materially but there was great affinity with
regard to the law as both the system had their origins in the religion.
Therefore, the dispute of Hindus related to property and the civil nature
were settled according to their personal laws but the criminal matters
were dealt only with the Muslim law. The punishment was also inflicted
upon criminals in accordance with the provisions of the criminal law
governing Mohammedan.84

When the Muslim ruler pronouns judgment it was presumed by

themselves that they worked as a subordinate of God. Mohammad, the
Prophet of Islam, also preached this message. It is important to be noted
that they considered the administration of justice as an essential
responsibility which must be fulfilled by every king.

When the court decided the dispute they got assistance and
guidance from the following authorities. Firstly, the sacred book of
Muslims the Quran; it collected the revelations of Mohammed in a
definite written form. The Mohammedans were and are still governed by
this sacred book. Secondly, the Sunna, which is the words, deeds, and
silent approval of prophet during his lifetime, which were reduced to
writing, and came to be termed as Sunna or traditions. These traditions
gradually laid the foundations of Islam.85

Thirdly, the concurrent opinion of the Prophet‟s companions called

the Ijma, literal meaning of it is “agreeing upon”, and the court was called

83
H.Beveridge, History of India (1914),p102.
84
Dr.V.C.Sarkar, Epichs in Hindu Legal History,Pg.200-203, (ed.1958)
85
Sir.A.Rahim, Mohammedan Jurisprudance, Pg. 59.

73
Fatwa – Alamigiri. The disputes were settled on the basis of all these
scared books, these judgments to be regarded as a valid source of law.
Finally, judgments according to the individual discretion of the Judge
based on the doctrine of Justice, Equity and Good Conscience guided the
function of resolution of disputes.

2.4.1 Different category of Muslim Courts under Muslim

Administration

We can seen there was very systematic classification of the Courts

during the Muslim Rule in India. The Central Court were six in number
namely, the King‟s Court , Diwan-e- Risalat, Diwan-e- Muzalim, Sadre
Jahan‟s Court, and Diwan-e- Siyasat Chief Justice Court. The Provincial
Courts were five in number namely, Adalat Nazim Sabha, Adalat Qazi-e-
Subah, Governor‟s Bench (Nizam-e- Subha), Diwas-e- Subah and Sader
Subah. Qazi, Dadbaks or Mir Adils, Faujdaris, Sader Amirs and Kotwals
were performing the function of court at district level. At each Parghnah
headquarter two Courts were established namely Qazi - e- Parganah and
Kotwal. According to Abu Hanifah, the Quazi could act on the Principle
of Istihsan (Public good) Istislah (Public policy) or Istishab
(Concordance). A Parganah was further divided into the village assembly
or Panchayat, which were vested with enormous powers to decide civil
and criminal cases of purely local character.86 The lowest on the ladder of
hierarchy of Courts were the village council which popularly known as
Lok Adalat of today. The Qazi were primarily dealt with both civil and
criminal administration at first instance, and their counter parts in the
provinces and districts. Nevertheless, it cannot be denied that there
existed qazis who were well known for their character, integrity and
sound knowledge of law.
86
W.Briggs, Rise of the Mohammedan Power in India, (1829), III, p420.

74
 The courts of secular law were not under the thumb of the Qazi.
Political cases were tried political court, like rebellion, rioting, theft,
robbery, murders, etc. They were presided over by Subahdars, Faujdars
Kotwals, etc. Akbar was highly interested to deliver speedy justice to its
citizens. The justice system placed even senior officers within the law,
and perhaps the only person really above the law was the emperor
himself. The Mughal emperors were very keen on justice, but the
procedure of appealing to the emperor was very complicated in Mughal
period.

Two notable exceptions were Akbar and Jehangir, who allowed

subjects to directly petition them. There was also other officers in charge
of justice in addition to the emperor. The chief justice was known as the
Quazi-ul-Quazat. He was in charge of maintaining the judicial system
throughout the empire. For this purpose he was responsible for the
appointment and management of Quazis all over the empire. Under them
there were no lower courts.

2.4.2 Judicial Administration under Vijaya Nagar Empire

In Vijaya Nagar, the king was the fountain of justice and decided
all important cases. At the provincial level, similar power were enjoyed
by the Governor. In the Villages, the cases were decided by the village
assembly. The laws applied were mainly based on custom and tradition.

2.4.3 Judicial Administration under Arabs

The justice given to the people by the Arabs although ready was
rough. There was no uniformity of law or uniformity of courts. There was
a Qazi at the capital and there were similar Qazis in the district towns.
They all decided cases according to Islamic law. Punishments for the

75
Hindus were severe. If Hindu committed a theft, he was burnt to death.
The Hindus decided there dispute regarding marriage, inheritance and
other social matters in there panchayats.

2.4.4 Judicial administration under Sultans

The Judicial administration under the sultan was highly centralized.

The king was the fountain head of justice and decided the most Important
cases personally. The sultan was assisted in Judicial administration by
chief sadr and the Chief Qazi. The formal official assisted the king in
deciding the religious cases in accordance with the shara, while the latter
assisted the king in deciding the cases of secular character. In the
provinces, the Governor and the Qazi decided the cases. In the villages,
the panchayats exercised judicial functions. The dispute were decided in
accordance with the Quaranic law. Even in the cases between the
Muslims and non-muslims the Quranic law was applied.

2.4.5 Judicial Administration under the Marathas

The Administration of Justice of Marathas was simple and it was

according to the situation prevailed during that time. There was no
codified laws. The procedure was not certain and it was mostly informal.
Dharma shastras, Vijnanesvara, Vyavaharamayukha and the
Dhanakamalakara were the basic authorities of Marathas Justice. While
Manu, Hemadri, Madhava were also considered as Judicial Authorities
there were some special books also which embodying caste – Laws such
as Jati-nirnaya and Vyvahar-nirnaya which were consulted in deciding
caste dispute.

There are several silent feature of the Judicial Administration of the

Marathas which are as under :-

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1- Marathas Judicial System was based on old custom which
prescribed the trial by ordeal. The Maratha judges allowed the
offender to undergo the ordeal of fire and water. They also
believed in the divine intervention and taking oath in sacred
temple.

2- It depended upon the old Sanskrit treatises like Mitakshara school

of thought and Manu‟s codes for legal theories.

3- They gave all the facilities or chances to the suitor or complainants

to prove his case.

4- The Marathas were the followers of the old laws. They were little
softer on the enforcement of the civil suits and emphasized on the
amicable settlement of these disputes.

5- The Marathas also showed some consideration to the defeated

party or defend to ensure the good relations between the parties the
parties in future.87

Shivaji was the famous King of Maratha Kingdom. The situation of

Judiciary was not satisfactory in Shivaji‟s Kingdom. The courts were
established according to the old prevalent system in the neighboring
states neither it was a modern judicial system.

Panchayat was the first instrument of the civil administration of

justice under the Marathas.

The Judicial administration under the Marathas was even not well
organized and up to date. It was rather simple, crude and primitive. There
was no codified law, no set procedure for trial of cases. The emphasis
was on amicable settlement of disputes. The highest court was the court
87
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77
of the king known as “Hazr Majlis”. Most of the important cases were
decided by this court. The court also heard appeals against the decisions
of the lower courts. Next to this court was the court of the Nyayadhish or
chief Justice. It decided both civil and criminals cases and heard appeals
from the lower courts. But the day to-day administration of justice were
carried on by the village panchayats.

2.4.5.(i) Panchayat System

Panchayat was systematically introduce in the period of Marathas

King Shivaji. Panchayats historically have been one of the original and
basic institution is in village life of India. The word Pancha means five
and the panchayat would iin general be a body of odd numbers, mostly
five, in order to authorized a majoirity decision to prevail. The Panchayat
were popularly called Panch parmeshwar and the panchas were often
addressed as Ma-Bap.

The Panchayat was the main instrument of civil justice. They were
authorized to impose fines, public degradation, reprimands or ex
communication, but they could not pass a sentence of imprisonment or
death. The panchas were believed to posers the heavy quality of rendering
true justice and their authority was more ethical than strictly legal or
administrative public opinion was the key sanction behind their authority.
The administration of justice by Panchayats was also respected by early
British administrator of in India.88

The decision of the Panchayat was binding on the parties in appeal

from the decision of the village. An appeal from the decision of the
village Panchayat key to the Malatdas (representative of peshwas in the
district) could assemble a panchayat outside the village of disputant. In

88
Article by Balu Anil Kumar, Evolution of Alternative dispute resolution in India.

78
such suit the panchayat‟s decision was subject to an appeal to the
peshwas (Prime Minister).

The elders of the village enjoyed respected and therefore they

decided the disputes on the basis of local customs, usages, practices,
faiths and popular beliefs. The search for the exploration of truth was
genuine and there was not much complexity in arriving at the truth,
because people in the villages knew what had occurred and they preferred
to resolve cases on the basis of truth. In Marathas administration it was
the duty of the patil in each village and Mahajan in the town and market
places to appoint a panchayat to adjudicate cases of simple and minor
nature. An agreement was signed by the parties regarding the rules and
regulation of the Panchayat.

The Panchayat passed their judgment impartially after the study of

the case without any bias to any party. The Judgment was confirmed by
the Mamlatdar, the higher officer in the succession of Judicial
administration. In case, the patil refused to conduct lighter judgment or
appoint a Panchayat or the disputing parties declined the adjudication of
the dispute in their village, it was the duty of the Mamlatdar to arrange
for Panchayat at another village with the help of Patil and get the dispute
adjudicated.
The Mamlatdar was to conduct the hearing of the case if any matter
was beyond the jurisdiction of the patil. He was finalized it in a fair
manner. Generally, the Panchayat and the Patil adjudicated the matters
which were upheld by the Maratha Government. It was noteworthy that
the party protested the judgment which was delivered in his absence.
Such judgment was appealable to the government and quashed in the
appeal by the Government on the request of the party. At that time
Panchayat were handled the small scale civil cases at the village level

79
while criminal cases were handled by the patil. Nyayadhish entertained
all the appeals whether civil or criminal.

The Maratha Supreme Court was called Hazir Muzlis, king himself
gave judgment in major cases. Shivaji did relentless efforts to provide
justice to the needy people. There were no written rules in Maratha
Kingdom. The judgments were given according to the Hindu religious
books and ritual. The minor crimes were fined and the criminal were sent
to the prison. During the medical period we come across several Maratha
kings, refusing to entertain any case at the first instance. Thus when the
dispute about the Patilki-watan of Ravet in Poona Pa pargana was taken
to Shahaji, the father of Shivaji, he ordered that ht e panchayat of the
place concerned should decided the case.

Shivaji also makes an interesting statement while declining to

entertain the case of the Ramji Krishna, which is very important, he said
to the plaintiff “if you so wish, I shall send your case to your own village
panchayat if that will meet your desire or I shall refer it to the district
panchayat, if that course itself recommends itself to you. Let me know
what you like.” It is noted that here Shivaji put a number of alternatives
before the plaintiff and he referred to the possibility of the trial of the case
by himself or by any office officer.

The same practice was followed by Shivaji‟s Son Rajaram. When a

dispute involving the rights of more than twenty villages was referred to
king, he immediately directed to the local Panchayat to decide it. During
the period of Marathas, Chhatrapati Pratap Sinha, the ruler of Satara,
prepared the list of procedural customs, which prevailed during that time,
which is popularly known as YADI. The ruler emphasized on the
amicable settlement, he further says that the parties should move to the

80
arbitrator and get satisfactory settlement in case where the parties failed
to settle their dispute amicably.

In this case the arbitrator should adjudicate the issue impartially,

without fear and favour of any party. The Maratha king was the fountain
of justice and honour like the king of England. In towns. There were
learned judge, well versed in almost all shastras were appointed for
exercising the judicial duties. These judges were popularly known as
Nayadhish. In short the theory of separation of power of the Executive,
the legislature and the judiciary was not observed.

2.5 Position of ADR during British Period

Before the commencement of British in India, India recognized as

“Sone ki Chidiya” the simple meaning of which that we had sufficient
means of trade and resources. Trade of India flourished in every part of
world. The circumstances of trade and business like whether and
resources were in the favour of India. India got balance of trade with
other countries of western world. Mostly the trade was carried on through
land routes. Sea route was not common at that time. Sea route was
founded by Portuguese and they were the pioneers in finding the new sea
route.

The cape route was discovered by Vasco-Da-gama when he landed

at Calicut. Portuguese had supremacy over the India ocean, and that was
the main reason of spectacular success of Portuguese which attracted the
other European countries and the Dutch also. The English and French
also had competition with Portuguese.

The British East India Company also came India for trade after
receiving the charter from Queen Elizabeth in 1600. They opened their
first trading center at Surat, Gujrat in 1612, after making agreement with

81
emperor Jahangir, which was called Farman. That became the chief
settlement of the company in India.

The first major interference in the internal politics and

administration of India was when the Britisher supported Mir- Kasim, the
Military Head of the Minister, against Siraj –ud-daula, the Nawab of
Bangal. The result was that the Nawab Shiraj-ud-daula was defeated by
his own military by the joint action of Military and Robert clive‟s “in
Battle of Plassy. That was the turning point for India when British finally
and formally entered in Indian Politics and administration. Now they
made hold over the Administration of princely states of India and
managed the politics of India either directly using force or by giving
military support.

Till 1856, the British were successfully establishing their

paramount in India. Thus, the British India Company was supreme from
Himalaya‟s or Kanayakumari and from Sind to Burma. They brought
Punjab under their control in 1849. Along with they also brought North
West frontier province which is now under Pakistan. Now all the state,
which had not legitimate heir, they apparent to the crown under the
British rule. Udaypur, Jhansi, Tanjore, Nagpur, Oudh were some princely
state which did not had their legitimate heir so these state were annexed
by British crown. After the death of Tipu Sultan they also annexed
Malabar too.

The impact of west, brought the significant change in Indian

politics and administration, was not anticipated by the Europeans. The
major step of Britisher was that they replaced the Sanskrit Language with
English language, which was difficult to accept for Indians. It is
important to point out that, it was through this medium the first fifteen

82
years of the Indian National movement was confined to those, who had
learned and mastered the English Language and were brought up
essentially in the Western style.89

The system of dispute redressal were start functioning during the

beginning of British Raj. The Britisher were unaware from the local
language of the people so they delegate their power to the native people
to resolute the dispute. The Britishers also had the fear that the act of the
punishment of the members of the native population could lead to
agitation at any time.90

Judicial administration during British Period

Britishers changed the Judicial administration of Mughals. The

current Judicial system of India is very close to the Judicial system as
prevailed during British period.

The two Judicial systems were continued to operate parallel to each other,
the traditional institution worked as recognized system of administration
of Justice and on the other hand the alternatives of the formal justice
system established by the Britishers.91

The alternative dispute resolution mechanism was found not only

in the procedure of working of judiciary but was also seen as a politically
safe and significant in the period of British Raj. The British Government
reorganized three presidency town of judicial administration namely, the
Bombay presidency, Madras Presidency and the Calcutta presidency.

89
H.V. Sreenivasa Murthy, V.S. Elizabeth ,History of India,p 9,to 14.
90
R.C..Majumdar, An Advanced History of India, (1977), p553.
91
Sarvesh Chandra, ADR: Is Conciliation the Best Choice, in P.C. Rao and William Sheffield (eds.),
Alternative Dispute Resolution: What it is and How it Works, Universal Law Publishing Co., New
Delhi, (1197) p.85

83
 First time a uniform Judicial system was introduced, by the
commencement of the charter act of 1726, by the creation of Mayors
court in each of the presidency towns namely Bombay, Madras and
Calcutta.

In 1772, Warran Hasting became the Governor of Bengal, Orrissa

and Bihar and the established a well organized and systematic Judicial
system. The main attractive feature of their judicial system (Adalat
system) was that there were two separate courts for civil cases and
criminal cases. Civil court was known as Mofussil Diwani Adalat and the
criminal Court known as Mofussil Fauzadari Adalat. Court of the Head
Farmer Parganas use to deal with petty civil cases and while sadar Diwani
Adalat was to hear appeals from the decision passed by Mofussil Diwani
Adalat and Sadar Nizamat Adalat was given power to hear the appeals of
the orders of Mofussil Nizamat Adalat.

Along with the adjudication through court, the British ruler also
made some regulations which played an important role in the survival of
alternative method for resolving the dispute. ADR in the present form
picked up pace in the country, with the coming of East India company.
The Bengal Registration Act, 1772 provided that all the dispute related to
accounts were submitted to the arbitrator and the decision of arbitration
was final.

The Regulation of 1781 were designed to encourage arbitration.92 it

provided that judges has discretionary power that they recommended the
cases for arbitration when the parties mutually agreed upon that and the
verdict shall be binding on both the parties. Thus, there were several

92
Nripendra Nath Sircar, Law of Arbitration in British India (1942), p. 6 cited in 76‟th Report of Law
Commission of India, 1978, p. 6, para 1.14

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Regulations and litigations were brought in resulting considerable
change.

The Regulation of 1787 gave the power to court to refer the suits to
arbitration with the consent of parties of the dispute. The Regulation of
1793 laid down the procedure of the arbitration proceedings. After the
several regulations containing provision related to arbitration act VIII of
1857 codified the procedure of civil court which contained section 312 to
325 dealing with arbitration in suits. These provision not followed by the
courts established by the Royal Chater. The Madras presidency
Regulation VII of 1816 authorized the District Munsif to convene district
Panchayat for civil suits relating to real and personal property.93

The Madras Presidency Regulation VII of 1827 provided that the

suits of civil nature were settled arbitration. Before the commencement of
the charter act, 1833 in the administration of Justice in India was
governed by the combination of conflicting law. But the act was codified
the laws and that was the beginning of judicial and legal reforms in India.
The acts were enacted time to time for the betterment of judicial system
in India.

Finding the first Indian Arbitration act was passed in 1899 but it
was totally based on English arbitration act. It was the first substantive
law on the subject of arbitrator. But the act was not fit for the
circumstances of India because it was based on English law that was the
reason that it suffered for many defects and was faced so many criticism.

That was the main reason that in 1908 the civil procedure code was
again enacted and the Arbitration act, 1940 replaced the act of 1899 on

93
Epoch, Hindu Legal History, (1958), p335.

85
the basis of recommendations of the civil justice committee.94 Section 89,
clause (a) to (f) of section 104(1) and second schedule of C.P.C 1908 was
replaced by the new act of arbitration. Thus, Arbitration act 1940 finally
amended and consolidated the law relating to arbitration in British India
and it was remained a comprehensive law on Arbitration even in the
Republican India until 1996.

2.6- Position after Independence

When we got freedom the main question before the law makers
were that how to provide speedy, inexpensive and substantial justice and
how to satisfy the wounded people of India. The object of drafters of the
constitution was to make the judicial system more organized, equal and
speedy justice to all the people of the India.

It is the primary duty of the government to provide an equal and

fast justice to people. The preamble of the Indian Constitution also
highlighted the aspect of Political, Social and economic justice of the
people.95The New article, inserted in Indian Constitution,96 Article 39-A,
and also secure the operation of legal system and promote justice on the
basis of equal opportunity, so that citizen can be denied access to justice
on account of financial or other disability.

On 26 January 1950, with the enforcement of Constitution, the

federal court converted into the Supreme Court and all the judges of
federal court became the judges of Supreme Court. The Supreme Court of
India has original, appellate and advisory jurisdiction in all the
Constitutional, Civil and Criminal matters. There is also provision of

94
Salil K. Roy Chowdhury,H.K .Saharay, Arbitration Law ,(III Ed),p6,7.
95
V.N.Shukla,Constitution Of India(2003),p 1.
96
Ins.by the Constitution (42nd Amendment) Act , 1976, S.8 (w.e.f. 3-1-1977)

86
establishment of High Court in each state or a group of Union territory
and the states in our Constitutional.

Every District consist the District Court, sub-courts and the Munsif
Courts for civil matter. 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.97

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.98

97
Dr. Singh Avtar, Law of Arbitration and Conciliation (including ADR Systems), Eastern Book
Company, Lucknow, 7th Edition(2006), p. 393
98
Deshmukh Raosaheb Dilip, J. “Efficacy Of Alternative Disputes Resolution Mechanisms In
Reducing Arrears Of Cases”, NYAYA DEEP- Vol. X, Issue: 2, April 2009, pp. 26-27

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