Alternate Dispute Resolution Notes | B.A. LL.B. (Five Year Course) Semester 7 | Mumbai University | munotes

In one line

Alternative Dispute Resolution, almost always shortened to ADR, means settling a dispute by some route other than a judge deciding it in open court after a trial.

In exam wording: ADR is the collective name for the processes by which parties resolve a legal dispute outside the ordinary hierarchy of courts, principally arbitration, conciliation, mediation, negotiation and the Lok Adalat, either voluntarily or on a reference made under a statute.

Why the law needs an alternative at all

A civil suit in India is not quick. It is filed, summons go out, written statements come in, issues are framed, witnesses are examined, arguments are heard, and a decree follows. Then there is an appeal, and often a second appeal. A dispute about a boundary wall between neighbours can outlive the wall.

That is not because judges are idle. It is arithmetic. There are only so many courts, and every case that is filed joins a queue behind every case already in it. A system that decides disputes one at a time, thoroughly, cannot absorb an unlimited number of them.

Two consequences follow, and both of them are what this subject is about.

The first is that justice delayed is, for many people, justice refused. A person owed twenty thousand rupees will not spend six years recovering it. They simply give up, and the law becomes something that exists on paper for people who cannot use it.

The second is that a trial is not always the right tool. A trial produces a winner and a loser. That is exactly what is wanted where a serious crime has been committed or a difficult point of law has to be settled. It is a poor fit where two businesses want to keep trading with each other, or where a couple has to keep speaking because they share a child.

ADR exists because of both. It is faster and cheaper, which answers the first, and it can produce an agreement rather than a verdict, which answers the second.

The words you will need, defined once

Every one of these is used loosely in ordinary speech and precisely in this subject. Learn them here and the rest of the book becomes readable.

Adjudication means a decision imposed by somebody with authority to impose it, whether a judge or an arbitrator. The parties do not have to agree with it; they are bound by it.

Settlement means an outcome the parties themselves agree to. Nobody imposes it. The role of any third person is to help them reach it.

Binding means a party can be made to comply, ultimately by execution through a court. An outcome that is not binding is only a suggestion.

In one line

A person too poor to pay for a lawyer still has a right to one, because the Constitution says a procedure that takes away liberty must be fair, and a trial without a lawyer is not fair.

In exam wording: the right to free legal services is an essential ingredient of the reasonable, fair and just procedure that article 21 requires, and it is reinforced by article 39A, which directs the State to secure that the operation of the legal system promotes justice on a basis of equal opportunity and to provide free legal aid so that justice is not denied to any citizen by reason of economic or other disability.

Why this chapter comes before the Act

Students meet the Legal Services Authorities Act 1987 and assume it created legal aid in India. It did not. By the time Parliament passed it, the Supreme Court had already held free legal aid to be a fundamental right, and the Act was passed to give that right an organisation, a budget and a permanent home.

That order of events matters for two reasons.

It changes what the right depends on. A right under article 21 does not depend on a statute, and cannot be taken away by amending one. If the Act were repealed tomorrow, the constitutional right in the cases below would still be there.

It is also how examiners test the topic. A question that asks about legal aid is usually asking about both: the constitutional foundation and the statutory machinery. An answer with only the Act in it is half an answer.

The constitutional provisions, in the order they matter

Article 39A, the direction to the State

Article 39A was inserted by the Constitution (Forty-second Amendment) Act 1976 and reads that the State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall in particular provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

Two things about it are examinable.

It is a Directive Principle, in Part IV of the Constitution, so by article 37 it is not enforceable by any court by itself. A citizen cannot sue on article 39A alone.

But it is not therefore useless, and this is the point students miss. The Supreme Court used article 39A to give content to article 21, which is enforceable. Read the two together and the Directive Principle becomes effective through the fundamental right.

Notice how closely the long title of the Legal Services Authorities Act 1987 tracks the words of article 39A: "to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities". The Act is the "suitable legislation" article 39A asked for, and it says so in its own opening sentence.

In one line

The Legal Services Authorities Act 1987 is the statute that builds a four-tier network of legal services authorities to give free legal help to people who cannot afford it, and that gives the Lok Adalat its legal existence.

In exam wording: Act 39 of 1987 is an Act to constitute legal services authorities to provide free and competent legal services to the weaker sections of society, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, and to organise Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity.

What the long title tells you, and it is worth reading

That sentence is not decoration. The long title of an Act is part of the Act, and courts use it to work out what the Act was for. This one announces two jobs, and the whole statute divides along that line.

The first job is legal services. Constitute authorities, and have them provide free and competent legal services to the weaker sections. Chapters II to V of the Act do that.

The second job is Lok Adalats. Organise them, so that the legal system promotes justice on a basis of equal opportunity. Chapter VI does that, and Chapter VIA, added fifteen years later, adds the Permanent Lok Adalat.

Notice the word competent. The Act does not promise a lawyer; it promises a competent one. That single adjective is what NALSA's regulations on free and competent legal services are built on, and chapter 80 works through what it means in practice.

Dates, and why there are three of them

Students routinely give the wrong year for this Act, because it has more than one.

11 October 1987 is the date the President assented to it. That is the date printed under the Act number, and it is why the Act is called the Legal Services Authorities Act, 1987.

9 November 1995 is the date it came into force. Section 1(3) says the Act comes into force on such date as the Central Government may appoint by notification, and different dates may be appointed for different provisions and for different States. The notification is S.O. 893(E) dated 9 November 1995, published in the Gazette of India, Extraordinary, Part II, section 3(ii).

So there is an eight-year gap between the Act being passed and the Act becoming law. An answer that says legal services authorities have existed since 1987 is wrong. This is the same distinction, between assent and commencement, that runs through the whole of this book: it decides whether the Mediation Act 2023 is in force in chapter 620, and whether Part IA of the Arbitration Act is in force in chapter 440. Check commencement, never assume it.

In one line

The National Legal Services Authority, always called NALSA, is the body at the top of the legal services system, and it lays down the policies and schemes that every authority below it carries out.

In exam wording: NALSA is the Central Authority constituted by the Central Government under section 3 of the Legal Services Authorities Act 1987 to exercise the powers and perform the functions conferred on or assigned to the Central Authority under the Act.

Why the Act builds a pyramid rather than one office

Legal aid has to be delivered where the person is. Somebody in a district court in Nanded cannot be helped by an office in Delhi, and somebody arguing an appeal in the Supreme Court cannot be helped by a taluk committee.

So the Act creates a chain, and the chain has one important property: policy flows down and delivery happens at the bottom. NALSA frames the policies and schemes; the State Authorities give effect to them; the District Authorities and Taluk Committees actually meet the people. Sections 4, 7 and 10 are drafted to say exactly that, in almost the same words at each level.

Notice that the two Committees, at section 3A and section 8A, sit beside the pyramid rather than inside it. They exist because litigation in the Supreme Court and the High Court needs its own machinery, and neither a State Authority nor a District Authority is placed to run it.

Section 3: how NALSA is constituted

Section 3(1) is a duty, not a power. The Central Government shall constitute a body called the National Legal Services Authority to exercise the powers and perform the functions conferred on or assigned to the Central Authority under the Act.

Section 3(2) says who is on it.

• The Chief Justice of India, who shall be the Patron-in-Chief.
• A serving or retired Judge of the Supreme Court, to be nominated by the President in consultation with the Chief Justice of India, who shall be the Executive Chairman.
• Such number of other members, possessing the experience and qualifications prescribed by the Central Government, nominated by the Government in consultation with the Chief Justice of India.

Read those three together and one design choice stands out: the judiciary is built into the structure. The head of the Indian judiciary is the Patron-in-Chief and a Supreme Court Judge runs it. Legal aid in India is not administered by the executive alone, and that is deliberate, because much of what legal aid does is press the executive to do better.

In one line

Each State has its own Legal Services Authority, built on exactly the same pattern as NALSA, whose job is to carry out NALSA's policy in that State, and each High Court has a Committee of its own for cases in that High Court.

In exam wording: a State Legal Services Authority is constituted by the State Government under section 6 to exercise the powers and perform the functions conferred on a State Authority by the Act, and its primary duty under section 7(1) is to give effect to the policy and directions of the Central Authority.

Why the second tier looks like the first

Read sections 3 and 6 side by side and you will notice the second is almost a copy of the first with the words changed. That is deliberate, and it is worth seeing, because once you know one tier you know the others.

The pattern to remember is this: the head of the judiciary at that level is the Patron-in-Chief, a judge of that court runs it, and a judicial officer of that level administers it. It holds at the national level, at the State level, and, with a change of name, at the district level too.

Section 6, clause by clause

Section 6(1) places a duty on every State Government to constitute a body called the Legal Services Authority for the State.

Section 6(2) gives its composition: (a) the Chief Justice of the High Court, who shall be the Patron-in-Chief; (b) a serving or retired Judge of the High Court, nominated by the Governor in consultation with the Chief Justice of the High Court, who shall be the Executive Chairman; and (c) such number of other members with prescribed experience and qualifications, nominated by the State Government in consultation with the Chief Justice of the High Court.

Section 6(3) requires the State Government, in consultation with the Chief Justice, to appoint the Member-Secretary, who must belong to the State Higher Judicial Service and be not lower in rank than a District Judge. A proviso allowed a person who was Secretary of a State Legal Aid and Advice Board immediately before the State Authority was constituted to be appointed even if not otherwise qualified, for up to five years. That proviso is spent now, and it tells you something useful: the Act took over an existing structure of Legal Aid and Advice Boards rather than starting from nothing.

In one line

The District Legal Services Authority is the office in each district that actually delivers legal aid and runs Lok Adalats, and the Taluk Legal Services Committee does the same one level further down.

In exam wording: a District Legal Services Authority is constituted for every district by the State Government in consultation with the Chief Justice of the High Court under section 9, with the District Judge as its Chairman, and its duty under section 10(1) is to perform such of the State Authority's functions in the district as are delegated to it.

Why the bottom of the pyramid is the part that matters

NALSA writes policy. A State Authority carries it into the State. Neither of them meets a poor litigant. The District Authority does, and so does the Taluk Committee, and almost every Lok Adalat in the country is organised by one of them.

If you remember one practical fact from Module I, make it this one: a person who needs legal aid goes to the District Legal Services Authority at the district court complex, and there is one in every district in India.

Section 9: the District Legal Services Authority

Section 9(1) requires the State Government, in consultation with the Chief Justice of the High Court, to constitute a District Legal Services Authority for every District in the State.

Note who does it. NALSA is constituted by the Central Government, a State Authority by the State Government, and a District Authority also by the State Government but in consultation with the Chief Justice. The consultation requirement is what keeps the judiciary in the loop at every level.

Section 9(2) gives the composition, and it breaks the pattern of the two tiers above in one respect worth noticing.

• (a) The District Judge, who shall be its Chairman.
• (b) Such number of other members with prescribed experience and qualifications, nominated by the State Government in consultation with the Chief Justice of the High Court.

There is no Patron-in-Chief at the district level, and the head is called Chairman rather than Executive Chairman. The District Judge holds the office ex officio, meaning by virtue of the post, so there is no separate nomination to make.

Section 9(3): the State Authority, in consultation with the Chairman of the District Authority, appoints the Secretary, who must belong to the State Judicial Service and be not lower in rank than a Subordinate Judge or Civil Judge posted at the seat of the District Judiciary.

The full-time officer here is called Secretary, not Member-Secretary. NALSA and the State Authority have a Member-Secretary; a District Authority and the two Committees have a Secretary. Examiners do notice.

In one line

Eight categories of person can get free legal services under this Act, and once a person falls inside one of them the only further question is whether they have a case worth running.

In exam wording: section 12 lays down the criteria for giving legal services by naming eight classes of person, and section 13 provides that a person who satisfies all or any of those criteria is entitled to receive legal services provided the concerned Authority is satisfied that he has a prima facie case to prosecute or to defend.

Why the Act uses categories rather than a means test alone

The obvious way to write a legal aid statute is to set an income limit and stop. Parliament did not do that, and the reason is in the Constitution: article 39A speaks of economic "or other disabilities".

Poverty is one barrier. A woman in a village who cannot leave the house alone faces another. A person in custody cannot walk into a lawyer's office whatever their bank balance. A worker in an unregistered factory has neither time nor standing. So section 12 names classes of people whose difficulty is structural and adds an income clause at the end for everybody else.

That structure is the single most useful thing to understand about section 12: seven of the eight clauses have nothing to do with income at all, and a person inside one of them qualifies however much they earn.

Section 12: the eight criteria

Section 12 opens with words worth quoting exactly: "Every person who has to file or defend a case shall be entitled to legal services under this Act if that person is", and then the list runs.

(a) A member of a Scheduled Caste or Scheduled Tribe.

(b) A victim of trafficking in human beings or begar as referred to in article 23 of the Constitution. Article 23 prohibits traffic in human beings and begar, which means forced labour exacted without payment. Both words carry their article 23 meaning.

(c) A woman or a child.

Clause (c) is the widest in the Act and the one students most often understate. Every woman is entitled, and every child is entitled, regardless of income. There is no means test in it. A student who writes that legal aid is for poor women has narrowed the section by adding a word Parliament did not write.

(d) A person with disability, as defined in clause (i) of section 2 of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995. This clause was substituted by Act 1 of 1996 with effect from 7 February 1996. The 1995 Act it names has since been replaced by the Rights of Persons with Disabilities Act 2016, and the clause has not been redrafted to say so.

In one line

Legal service means both fighting a case for somebody and simply advising them, and in practice it means a lawyer paid for by the Authority, plus the court fees, the copies, the translations and the process costs that go with the case.

In exam wording: "legal service" is defined by section 2(1)(c) of the Legal Services Authorities Act 1987 to include the rendering of any service in the conduct of any case or other legal proceeding before any court or other authority or tribunal, and the giving of advice on any legal matter.

Why MU gives "Services" a label of its own

MU's Module I lists six topics, and the second is a single word: Services. The Act answers it in one line, section 2(1)(c), and then leaves the detail to NALSA. So this chapter has to do what the Act does not: say what a person actually gets.

The source for that is the National Legal Services Authority (Free and Competent Legal Services) Regulations 2010, made under section 29, and amended most recently in 2019. They are what turn a statutory phrase into a lawyer sitting across a table.

The statutory definition, and its two halves

Section 2(1)(c) is an inclusive definition, so what follows is not exhaustive. It has two limbs.

Limb one: rendering any service in the conduct of any case or other legal proceeding before any court or other authority or tribunal. This is representation, and it is what everybody expects.

Limb two: the giving of advice on any legal matter.

Limb two is the one students forget, and it is the more important of the two. A person entitled under section 12 can walk in with no case at all and ask what the law is. They do not need to be suing anybody. Advice may be all they need, and it is often the cheapest and best thing the system can give: a person told that their claim is time-barred has been saved a great deal of money.

Notice also how wide the forum words are. Not "court", but "any court or other authority or tribunal", read together with the very wide definition of "court" in section 2(1)(aaa), which chapter 30 works through. Legal service therefore extends to proceedings before consumer commissions, motor accidents claims tribunals, rent authorities and the rest.

What a person actually receives

The Act does not itemise this, and the regulations do. Taken together with the funds provisions in sections 15 to 17, the services provided in practice are these.

A lawyer. The core of it. A Panel Lawyer is a legal practitioner empanelled under regulation 8, and a Retainer Lawyer is a panel lawyer designated as such under regulation 8(9), who is available at the institution rather than waiting to be briefed.

In one line

Parliament votes money to NALSA, NALSA keeps it in the National Legal Aid Fund and passes it down to the States, the States pass it down to the districts, and the Comptroller and Auditor-General audits all of it.

In exam wording: Chapter V of the Legal Services Authorities Act 1987 provides for grants by the Central Government under section 14, three legal aid funds at the national, State and district levels under sections 15 to 17, and accounts and audit by the Comptroller and Auditor-General of India under section 18.

Why five sections about money belong in a book about ADR

Because a right without a budget is a promise. Chapter 20 shows that free legal aid is a constitutional right; Chapter V of this Act is what pays for it, and it is also what pays for every Lok Adalat organised in the country.

There is also a distinction here that students get wrong in the tier chapters. Administrative expenses and legal aid expenses come from different places. The salaries of an Authority's own officers come from the Consolidated Fund of India or of the State, under sections 3(6), 6(7) and 9(7). The cost of a poor litigant's lawyer comes from the legal aid funds in sections 15 to 17. Two different pockets.

Section 14: grants by the Central Government

The Central Government shall, after due appropriation made by Parliament by law in this behalf, pay to the Central Authority by way of grants such sums of money as it may think fit, to be used for the purposes of the Act.

"After due appropriation made by Parliament" is not decoration. It is article 266(3) of the Constitution at work: money cannot leave the Consolidated Fund of India except under an appropriation made by law. So NALSA's funding is voted, annually, like any other item of expenditure.

Sections 15, 16 and 17: the three funds

The three sections are built on the same pattern, and the pattern is easier to learn as a table than as three lists.

In one line

A Lok Adalat is a sitting arranged by a legal services authority at which disputes are settled by agreement between the parties, with a bench that persuades rather than decides.

In exam wording: a Lok Adalat is organised under section 19 of the Legal Services Authorities Act 1987 by a State Authority, District Authority, the Supreme Court Legal Services Committee, a High Court Legal Services Committee or a Taluk Legal Services Committee, at such intervals and places and for such areas as it thinks fit, and it has jurisdiction to determine and arrive at a compromise or settlement between the parties to a dispute.

What the name means, and what it does not

Lok Adalat translates as "people's court". The translation is the source of the commonest misunderstanding in this whole Module, so deal with it at once: it is not a court. It holds no trial, hears no evidence to decide anything, and cannot pronounce that one side is right.

What it is instead is a settlement forum with statutory teeth. The parties settle; the Act then treats their settlement as a decree of a civil court. That combination, an entirely consensual outcome carrying entirely binding force, is what makes it distinctive and is what chapter 120 works through.

The idea is older than the Act. Lok Adalats were being organised in Gujarat and elsewhere from the early 1980s as voluntary camps. What section 19 did in 1994, when Act 59 of 1994 replaced sections 19 and 20, was give an existing practice a statutory home.

Section 19(1): who may organise one

Every State Authority, District Authority, the Supreme Court Legal Services Committee, every High Court Legal Services Committee, and every Taluk 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.

Two things follow, and both are examinable.

A Lok Adalat is not a permanent body. It is convened. When the sitting ends, that Lok Adalat has ceased to exist. Contrast the Permanent Lok Adalat of Chapter VIA, which is standing, and that contrast is chapter 140.

A Lok Adalat is not confined to the lowest courts. All five levels can organise one, so cases pending in the High Court and even the Supreme Court can go to a Lok Adalat. Section 7(2)(b) makes the same point in the words "including Lok Adalats for High Court cases".

Section 19(2) to (4): who sits on it

Section 19(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 body organising it.

In one line

A case gets to a Lok Adalat in one of two ways: a court sends it there, or, if no case has been filed at all, the legal services authority takes it up on one party's application.

In exam wording: section 20 of the Legal Services Authorities Act 1987 provides for cognizance of cases by Lok Adalats, sub-section (1) governing the reference of a pending case by the court and sub-section (2) the reference of a pre-litigation matter by the Authority or Committee organising the Lok Adalat.

The two doors, and why they are drafted so differently

Section 19(5) gave the Lok Adalat jurisdiction over two kinds of thing: a case pending before a court, and a matter within a court's jurisdiction that nobody has brought. Section 20 says how each of them arrives, and the drafting differs because the gatekeeper is different.

For a pending case, the gatekeeper is the court, because the case is the court's. For a pre-litigation matter, there is no court involved yet, so the gatekeeper is the Authority or Committee organising the Lok Adalat.

Keep those two columns separate and section 20 is easy. Mix them and nothing in it makes sense.

Section 20(1): a pending case, referred by the court

Where a case is one referred to in section 19(5)(i), that is, one pending before a court, the court shall refer the case to the Lok Adalat if either of two situations arises.

Situation one, section 20(1)(i). Either (a) the parties agree, or (b) one of the parties makes an application to the court for referring the case, and the court is prima facie satisfied that there are chances of such settlement.

Situation two, section 20(1)(ii). The court is satisfied that the matter is an appropriate one to be taken cognizance of by the Lok Adalat.

Read the condition carefully, because students misstate it constantly. The "chances of settlement" requirement attaches to clause (i), the party-driven route. Under clause (ii) the court acts on its own satisfaction that the matter is appropriate.

The proviso is the protection: no case shall be referred under sub-clause (b) of clause (i) or under clause (ii) except after giving a reasonable opportunity of being heard to the parties.

Notice which route is left out of the proviso. Where both parties agree under clause (i)(a), no hearing is needed, because there is nothing to hear: everybody wants it. The hearing is required exactly where somebody may not, that is, where only one party applied or where the court is moving on its own.

Regulation 10(2) of the NALSA (Lok Adalats) Regulations 2009 adds a duty on the referring court that is easy to miss and easy to get marks for: "A mechanical reference of pending cases to Lok Adalat shall be avoided", and the referring court shall prima facie satisfy itself that there are chances of settlement and that the case is appropriate. Regulation 10(1) also confirms that a Lok Adalat gets jurisdiction over a case only when a competent court orders it referred, in the manner prescribed by section 20 or under section 89 of the Code of Civil Procedure 1908.

In one line

When a Lok Adalat records what the parties have agreed, that record counts as a decree of a civil court, binds everybody, and cannot be appealed against.

In exam wording: section 21(1) of the Legal Services Authorities Act 1987 provides that every award of a Lok Adalat shall be deemed to be a decree of a civil court or, as the case may be, an order of any other court, and section 21(2) provides that 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.

Why one short section carries the whole institution

Everything else about a Lok Adalat is arrangement: who organises it, who sits, how a case gets there. Section 21 is the reason any of it is worth doing.

Without it, a settlement reached at a Lok Adalat would be a contract. A party who broke it could be sued, and the innocent party would be at the start of a fresh case, which is exactly what they came to avoid. Section 21 removes that step. The settlement is already a decree, so the other party goes straight to execution.

State that trade-off in any answer on this section. The parties get enforceability at once, and they give up the right to appeal. Both halves are in the section, and the second is the price of the first.

Section 21(1): the deeming provision, and the refund

The sub-section does two things in one sentence.

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 other court.

Note the second limb, "an order of any other court". It is there because section 2(1)(aaa) defines "court" to include tribunals and quasi-judicial authorities. A matter that came from a consumer commission produces something that is deemed an order of that commission, not a civil decree.

And where a compromise or settlement has been arrived at by a Lok Adalat in a case referred to it under section 20(1), the court fee paid in such case shall be refunded in the manner provided under the Court Fees Act 1870.

Read the condition. The refund attaches to a case referred under section 20(1), that is, a pending case. In a pre-litigation matter under section 20(2), nothing was filed and no court fee was paid, so there is nothing to refund.

A "deeming provision" is a statutory instruction to treat one thing as though it were another. It is not saying the award is a decree. It is saying the law will proceed as if it were, and the consequences that attach to a decree attach to it.

In one line

A Lok Adalat can summon witnesses and call for documents like a civil court, and can make up its own procedure, but none of that lets it decide anything.

In exam wording: section 22 of the Legal Services Authorities Act 1987 confers on a Lok Adalat or Permanent Lok Adalat, for the purposes of holding any determination under the Act, the same powers as are vested in a civil court under the Code of Civil Procedure 1908 in respect of five specified matters, together with the power to specify its own procedure, and deems its proceedings to be judicial proceedings.

Why a settlement forum needs any powers at all

If a Lok Adalat only records what the parties agree, why does it need the power to summon a witness?

Because agreement is not reached in a vacuum. Parties settle when they can see where the case is going, and to see that somebody may need a document neither of them has brought: the accident report, the bank's record of the cheque, the municipal file. Section 22 lets the bench get it.

The powers are therefore facilitative, not adjudicatory. They exist so that the parties can be persuaded on an informed basis, and regulation 9 of the NALSA (Lok Adalats) Regulations 2009 puts the limit in one line: a Lok Adalat has the power only to help the parties arrive at a compromise, and while doing so shall not issue any direction or order in respect of the dispute.

Section 22(1): the five civil court powers

For the purposes of holding any determination under the Act, a Lok Adalat or Permanent Lok Adalat has the same powers as a civil court under the Code of Civil Procedure 1908 while trying a suit, in respect of:

• (a) the summoning and enforcing the attendance of any witness and examining him on oath;
• (b) the discovery and production of any document;
• (c) the reception of evidence on affidavits;
• (d) the requisitioning of any public record or document, or a copy of one, from any court or office; and
• (e) such other matters as may be prescribed.

Two observations that earn marks.

The list is the ordinary "powers of a civil court" formula that Parliament attaches to tribunals and commissions all over Indian law. Recognising it tells you what it does and does not do: it is about gathering material, not about deciding on it.

Clause (e) is open. Further matters can be added by rules without amending the Act.

Section 22(2): its own procedure

Without prejudice to the generality of sub-section (1), every Lok Adalat or Permanent Lok Adalat has the requisite powers to specify its own procedure for the determination of any dispute coming before it.

In one line

A Permanent Lok Adalat is a standing three-member body, set up for public utility services like transport, electricity, water and insurance, which a person can approach before going to court.

In exam wording: a Permanent Lok Adalat is established under section 22B of the Legal Services Authorities Act 1987 by the Central Authority or a State Authority, by notification, at such places and for such areas and in respect of one or more public utility services as the notification specifies.

Why Parliament created a second kind of Lok Adalat

Chapter VI's Lok Adalat has one structural weakness, and it is a serious one. It works only if both sides want it to. A Lok Adalat can record a settlement and nothing else, so a party who simply refuses to settle defeats the process by doing nothing.

For most disputes that is acceptable; the case goes back to court. But there is a class of dispute where it is not, and it has three features:

• The amounts are small and the litigant is an ordinary consumer.
• The other side is an institution that faces thousands of such complaints and has no particular incentive to settle any one of them.
• The subject matter is a service people cannot do without: electricity, water, transport, the telephone, a hospital, an insurance policy.

For that class, an ordinary Lok Adalat is no help. Chapter VIA was inserted by Act 37 of 2002, with effect from 11 June 2002, to answer it, and the heading Parliament gave the Chapter says what it is for: "Pre-litigation conciliation and settlement".

The design has two moves. First, it makes the forum permanent, so a person can go to it any day rather than waiting for a Lok Adalat to be convened. Second, and this is the part that changes everything, it lets the forum decide if conciliation fails. That is section 22C(8) and it is chapter 150.

Section 22A: the two definitions that decide jurisdiction

Section 22A defines two expressions, for Chapter VIA and for sections 22 and 23.

"Permanent Lok Adalat", in clause (a), means a Permanent Lok Adalat established under section 22B(1).

"Public utility service", in clause (b), is the definition that decides whether a given dispute can go there at all, and it must be known by heart. It means any:

• (i) transport service for the carriage of passengers or goods by air, road or water;
• (ii) postal, telegraph or telephone service;
• (iii) supply of power, light or water to the public by any establishment;
• (iv) system of public conservancy or sanitation;
• (v) service in hospital or dispensary; or
• (vi) insurance service,

and includes any service which the Central Government or the State Government, in the public interest, by notification, declares to be a public utility service for the purposes of this Chapter.

In one line

A person takes a public utility dispute to a Permanent Lok Adalat before going to court; the forum first tries to get the parties to agree, and if they will not, it decides the case itself and the decision is final.

In exam wording: section 22C of the Legal Services Authorities Act 1987 governs cognizance of cases by a Permanent Lok Adalat, sub-section (8) empowering it to decide the dispute where the parties fail to reach an agreement and the dispute does not relate to an offence; section 22D prescribes the principles that guide it; and section 22E makes its award final and binding and deems it a decree of a civil court.

The distinction the whole of Module I turns on

An ordinary Lok Adalat may only record a settlement. State of Punjab v. Jalour Singh holds that it has no adjudicatory or judicial functions at all, and that an order it imposes is void.

A Permanent Lok Adalat may decide. That is the difference, it is deliberate, and everything in this chapter follows from it.

If you take one sentence from Module I into an examination, take this: an ordinary Lok Adalat can only settle; a Permanent Lok Adalat settles if it can and decides if it cannot.

Section 22C(1) and (2): getting there, and being stuck there

Section 22C(1): any party to a dispute may, before the dispute is brought before any court, make an application to the Permanent Lok Adalat for the settlement of the dispute.

That opening condition is fundamental. Chapter VIA is headed "Pre-litigation conciliation and settlement", and this is where the words bite. Once a case is in court, the Permanent Lok Adalat is closed to it. Contrast section 20(1), where a court refers a pending case to an ordinary Lok Adalat.

Three provisos follow.

First proviso: the Permanent Lok Adalat shall not have jurisdiction in respect of any matter relating to an offence not compoundable under any law. This is the same bar as the proviso to section 19(5).

Second proviso: the Permanent Lok Adalat shall also not have jurisdiction in the matter where the value of the property in dispute exceeds ten lakh rupees.

Third proviso: the Central Government may, by notification, increase the limit of ten lakh rupees specified in the second proviso, in consultation with the Central Authority.

The third proviso matters, and here the sources conflict, so state the position carefully. NALSA's own website says on one page that "The jurisdiction of the Permanent Lok Adalats is upto Rs. One Crore", and on another page that it is "upto Rs. Ten Lakhs". Both were read on the same day. The Act itself still prints ten lakh rupees, because a notification under the third proviso does not change the printed text of the section.

In one line

The legal aid system trains ordinary people, and law students, to spot legal problems where they happen and bring them to the system, because most people who need a lawyer do not know that they do.

In exam wording: para-legal training and legal literacy are functions of the legal services authorities under section 4 of the Legal Services Authorities Act 1987, given effect through the National Legal Services Authority (Legal Services Clinics) Regulations 2011, which establish legal services clinics staffed by para-legal volunteers and provide for clinics attached to law colleges and law universities as part of clinical legal education.

Why a legal aid system needs volunteers rather than only lawyers

Consider what the earlier chapters have built. There is a District Legal Services Authority in every district, a front office, panel lawyers, a free application form and a right that does not depend on income for most people.

And almost none of it reaches the person who needs it most, for a reason that no amount of funding fixes: they do not know they have a legal problem. A woman whose wages are short by a third does not think "section 22 of the Minimum Wages Act". A family whose child has been out of school for two years does not think "right to education". They think this is how life is.

Legal literacy exists to change that, and para-legal volunteers exist because a lawyer in a district headquarters cannot do it. The person who notices is somebody who lives there.

That is why MU gives this its own topic, and it is also why this belongs on a clinical paper rather than a theory paper. The reader of this book may end up doing it.

Where it comes from in the Act

The Act itself says surprisingly little, and what it says is scattered through the functions clauses.

Section 4(l) requires NALSA to take appropriate measures for spreading legal literacy and legal awareness amongst the people and, in particular, to educate weaker sections of society about the rights, benefits and privileges guaranteed by social welfare legislation and other enactments as well as administrative programmes and measures.

Section 4(e) requires it to organise legal aid camps, especially in rural areas, slums or labour colonies, with the dual purpose of educating the weaker sections about their rights and encouraging the settlement of disputes through Lok Adalats.

Section 4(k) requires NALSA to develop, in consultation with the Bar Council of India, programmes for clinical legal education, and to promote, guide and supervise the establishment and working of legal services clinics in universities, law colleges and other institutions.

Section 4(d) empowers it to give training to social workers in legal skills for the purposes of social justice litigation.

In one line

The Act names only one thing called a Lok Adalat, but in practice the system runs several kinds, and the biggest of them is the National Lok Adalat, held on one day across the whole country.

In exam wording: the varieties of Lok Adalat, National, Mega, Continuous, Daily and Mobile, are administrative forms developed by the legal services authorities in exercise of their powers under sections 4, 7 and 10 of the Legal Services Authorities Act 1987; all of them are Lok Adalats organised under section 19 and every award they make takes effect under section 21.

Why a chapter on something the Act does not mention

Search the Legal Services Authorities Act for the phrase "National Lok Adalat" and it is not there. Nor are "Mega Lok Adalat", "Mobile Lok Adalat" or "e-Lok Adalat".

That is not a gap. It is how the Act was designed to work.

Section 19(1) lets an authority organise Lok Adalats "at such intervals and places and for exercising such jurisdiction and for such areas as it thinks fit". That is a very wide discretion, and the varieties below are what the system has done with it, supported by section 4(a) and 4(b), which give NALSA the job of laying down policies and framing the most effective and economical schemes.

So a student answering a question on Lok Adalats needs both halves. The sections say what a Lok Adalat is and what its award does. The practice says what actually happens. A person who knows only the sections cannot say what a Lok Adalat day looks like, and a person who knows only the practice cannot say why the outcome binds.

The National Lok Adalat

A National Lok Adalat is held on a single day across the country, in all courts from the Supreme Court down to the taluk level, with cases disposed of in very large numbers on that day. NALSA describes them as being held at regular intervals, and states that since February 2015 they have been held on a specific subject matter.

The practical rhythm is quarterly, on a Saturday. NALSA publishes a disposal report for each sitting on its website, and the sittings recorded there include those held on 13 September 2025, 13 December 2025, 14 March 2026 and 9 May 2026.

Three things make the National Lok Adalat work, and each is a statutory provision met earlier in this Module.

It can be held on a holiday. Regulation 8 of the NALSA (Lok Adalats) Regulations 2009 lets Lok Adalats be organised on such days, including holidays, as the organiser thinks appropriate, and regulation 6A provides a Special Duty Allowance for the presiding judges, members and staff when they sit on a holiday or beyond court hours.

In one line

The last chapter of the Act protects the people who run the system, gives the Act priority over other laws, and says who may make the rules and regulations that fill in the detail.

In exam wording: Chapter VII of the Legal Services Authorities Act 1987 contains the miscellaneous provisions, sections 23 to 30, dealing with the status of members and staff as public servants, protection of action taken in good faith, the overriding effect of the Act, the power to remove difficulties, the rule-making powers of the Central and State Governments, the regulation-making powers of the Central and State Authorities, and the laying of rules and regulations before the legislature.

Why cover a chapter no topic label names

Because a syllabus label is a description of a subject, not a boundary around it. Section 25 in particular decides real cases, and a student who has never read it cannot answer what happens when this Act collides with another. The rest is short, and reading it once closes the Act.

Section 23: everyone in the system is a public servant

The members, including the Member-Secretary or Secretary, of the Central Authority, the State Authorities, the District Authorities, the Supreme Court Legal Services Committee, the High Court Legal Services Committees and the Taluk Legal Services Committees, together with their officers and other employees, and the members of the Lok Adalats or the persons constituting Permanent Lok Adalats, shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code 1860.

The words "or the persons constituting Permanent Lok Adalats" were substituted by Act 37 of 2002, alongside the insertion of Chapter VIA.

Why it matters, and it cuts both ways. Being a public servant brings the protections that attach to that status, and it brings the liabilities: an offence such as taking gratification is available against a person who abuses the position. Read it with section 22(3), which exposes a member who corruptly makes an order to section 219 of the Penal Code.

The Indian Penal Code 1860 has since been replaced by the Bharatiya Nyaya Sanhita 2023. Section 23 has not been redrafted, so it is read with the general rule that a reference to a repealed enactment is a reference to the corresponding provision of its replacement. Cite it as the section stands.

Section 24: protection of action taken in good faith

No suit, prosecution or other legal proceeding shall lie against the Central or State Government, or against the Patron-in-Chief, Executive Chairman, members, Member-Secretary, officers or other employees of the Central Authority or of a State Authority, or the corresponding office-holders of the other bodies under the Act, for anything which is in good faith done or intended to be done under this Act or under any rule or order made under it.

In one line

The Arbitration and Conciliation Act 1996 is the single statute that governs arbitration and conciliation in India, and it was written to match a model law the United Nations recommended so that arbitration here would look the same as arbitration everywhere else.

In exam wording: Act 26 of 1996 is an Act to consolidate and amend the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards, as also to define the law relating to conciliation and for matters connected therewith or incidental thereto.

Why MU's one line is a whole module

The University prints Module II as a single sentence: "2.1 The Arbitration and Conciliation Act, 1996."

That is not a topic. It is a statute of eighty-seven sections in four Parts, with a fifth Part inserted in 2019, and eight Schedules. Under house rule 1.3 the whole of it is what you can be asked about, so this Module works through it section by section. Do not be misled by how little the syllabus prints.

What the law was before, and why it was replaced

Until 1996 arbitration in India was governed by three separate statutes: the Arbitration Act 1940 for domestic arbitration, the Arbitration (Protocol and Convention) Act 1937 for Geneva Convention awards, and the Foreign Awards (Recognition and Enforcement) Act 1961 for New York Convention awards. Sections 85 and 86 of the present Act repealed them, and chapter 445 works through the repeal.

The 1940 Act had a reputation, and it is worth knowing because it explains almost every design choice in the 1996 Act. Under it an award had to be filed in court and a decree obtained on it, so every arbitration ended in litigation; courts could remit or set aside awards on wide grounds; and a party who wanted to delay could do so almost indefinitely. Arbitration under it took as long as a suit.

The preamble, and what it commits India to

The Act's preamble is unusually long and it recites five things, each beginning "whereas". Read together they are the Act's own explanation of itself.

• The United Nations Commission on International Trade Law, UNCITRAL, adopted the UNCITRAL Model Law on International Commercial Arbitration in 1985.
• The General Assembly recommended that all countries give due consideration to that Model Law, in view of the desirability of uniformity of the law of arbitral procedures and the specific needs of international commercial arbitration practice.
• UNCITRAL adopted the UNCITRAL Conciliation Rules in 1980.
• The General Assembly recommended the use of those Rules.
• The Model Law and the Rules make significant contribution to the establishment of a unified legal framework for the fair and efficient settlement of disputes arising in international commercial relations.

In one line

Section 2 says what the words in Part I mean, and one of its sub-sections decides the single biggest question in Indian arbitration: whether Part I applies at all.

In exam wording: section 2(1) of the Arbitration and Conciliation Act 1996 defines the expressions used in Part I, including "arbitration", "arbitral award", "arbitral tribunal", "Court" and "international commercial arbitration", and section 2(2) provides that Part I shall apply where the place of arbitration is in India.

Why a definitions section deserves a chapter

Two of these definitions decide real cases before any other question is reached.

"Court" decides where you file. Get it wrong and the application is returned.

"International commercial arbitration" decides which court, what law the tribunal applies to the substance, and how narrowly an award can be attacked. It is the fork the whole Act turns on.

And section 2(2) decides whether Part I applies at all, which is the question that produced the most important line of arbitration cases India has.

Section 2(1): the definitions

(a) "Arbitration" means any arbitration whether or not administered by permanent arbitral institution.

That short clause carries the distinction between ad hoc and institutional arbitration, and the Act covers both. Ad hoc arbitration is run by the parties and the tribunal themselves. Institutional arbitration is administered by a body with its own rules, a panel of arbitrators and a fee schedule. Indian practice has been overwhelmingly ad hoc, and promoting institutional arbitration is the stated purpose of Part IA and of the India International Arbitration Centre Act 2019.

(b) "Arbitration agreement" means an agreement referred to in section 7. Chapter 230.

(c) "Arbitral award" includes an interim award. An inclusive definition, so an interim award is an award for the purposes of the Act, including for setting aside under section 34.

(d) "Arbitral tribunal" means a sole arbitrator or a panel of arbitrators. So "tribunal" in this Act does not imply plurality.

(e) "Court", and this one must be known exactly, because it is two different things:

• in an arbitration other than international commercial arbitration: the principal Civil Court of original jurisdiction in a district, including the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject matter of the arbitration had they been the subject matter of a suit; but not any civil court of a grade inferior to that principal civil court, and not any Court of Small Causes;
• in international commercial arbitration: the High Court in exercise of its ordinary original civil jurisdiction having such jurisdiction, and in other cases a High Court having jurisdiction to hear appeals from decrees of courts subordinate to it.

In one line

Four short sections that decide when a notice counts as received, when a party has lost the right to complain about a breach of procedure, and when a court may step into an arbitration at all.

In exam wording: sections 3 to 6 of the Arbitration and Conciliation Act 1996 are the general provisions of Part I, governing the receipt of written communications, waiver of the right to object, the extent of judicial intervention, and administrative assistance.

Why four sections nobody sets an essay on still matter

Because two of them win cases.

Section 4 is how a party who sat silent through an irregularity is stopped from raising it after losing.

Section 5 is the sentence a court is shown whenever somebody tries to bring an arbitration into court by a route the Act does not provide.

Section 3: when a communication is received

Section 3(1), unless otherwise agreed by the parties:

• (a) any written communication is deemed to have been received if it is delivered to the addressee personally, or at his place of business, habitual residence or mailing address; and
• (b) if none of those places can be found after making a reasonable inquiry, a written communication is deemed received if it is sent to the addressee's last known place of business, habitual residence or mailing address by registered letter or by any other means which provides a record of the attempt to deliver it.

Section 3(2): the communication is deemed to have been received on the day it is so delivered.

Section 3(3): the section does not apply to written communications in respect of proceedings of any judicial authority. So service of court process is governed by the Code of Civil Procedure, not by this section.

The point of clause (b) is that a respondent cannot defeat an arbitration by disappearing. Once a reasonable inquiry has been made, sending to the last known address by a means that records the attempt is enough, and the communication counts as received even though nobody read it. Note the two conditions: reasonable inquiry first, and a means that provides a record.

Everything in section 3 opens with "unless otherwise agreed by the parties", so an arbitration agreement or a set of institutional rules may provide differently, including for service by electronic means.

Section 4: waiver of the right to object

A party who knows that:

• (a) any provision of Part I from which the parties may derogate, or
• (b) any requirement under the arbitration agreement,

has not been complied with, and yet proceeds with the arbitration without stating his objection to that non-compliance without undue delay, or within any time limit provided for the objection, shall be deemed to have waived his right to so object.

In one line

An arbitration agreement is a written agreement between parties to send their disputes to arbitration, and without one there can be no arbitration at all.

In exam wording: section 7 of the Arbitration and Conciliation Act 1996 defines an arbitration agreement as an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.

Why everything rests on this section

Arbitration is consensual. A judge's authority comes from the State; an arbitrator's comes from the parties' agreement and from nowhere else. So section 7 is the foundation of Part I: no agreement, no tribunal, no award, nothing to enforce.

It is also the section that is litigated first, because a party who does not want to arbitrate attacks the agreement before anything else.

Section 7(1): the definition, taken apart

An arbitration agreement means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.

"All or certain disputes." The parties may send everything to arbitration or only some categories. A clause covering "any dispute regarding payment" does not cover a dispute about the quality of goods.

"Which have arisen or which may arise." Both are covered. An agreement made before any dispute, which is the ordinary arbitration clause, and an agreement made after a dispute has already arisen, sometimes called a submission agreement.

"In respect of a defined legal relationship." There must be an identified relationship. Two people cannot agree that any dispute they ever have about anything goes to arbitration.

"Whether contractual or not." The relationship need not be a contract. A relationship arising from a trust deed, or from a statutory arrangement, can be the defined legal relationship.

Section 7(2): a clause or a separate agreement

An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

Both forms are equally valid. The everyday form is the clause; a separate agreement is common where the dispute has already arisen.

Section 7(3) and (4): it must be in writing, and what counts as writing

Section 7(3): an arbitration agreement shall be in writing. This is mandatory. An oral agreement to arbitrate is not an arbitration agreement under this Act.

Section 7(4) then defines writing generously. An agreement is in writing if it is contained in:

• (a) a document signed by the parties;
• (b) an exchange of letters, telex, telegrams or other means of telecommunication, including communication through electronic means, which provide a record of the agreement; or
• (c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.

In one line

If a party sues in court on a matter covered by an arbitration agreement, the other side can ask the court to send them to arbitration instead, and the court must do it unless there is prima facie no valid agreement.

In exam wording: section 8 of the Arbitration and Conciliation Act 1996 requires a judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement to refer the parties to arbitration, on the application of a party or a person claiming through or under him made not later than the date of submitting his first statement on the substance of the dispute, unless it finds that prima facie no valid arbitration agreement exists.

Why the section exists

Section 7 makes the agreement. Section 8 enforces it against the party who ignores it.

Without section 8, an arbitration agreement would be worth very little: a party could simply file a suit, and the other side's only remedy would be to sue for breach of the agreement to arbitrate. Section 8 gives a direct answer instead. The court stops and sends them where they agreed to go.

Section 8(1), clause by clause

"A judicial authority", not "a court". The expression is wider, and it is used on purpose: a tribunal or forum that is not a civil court can still be required to refer.

"Before which an action is brought in a matter which is the subject of an arbitration agreement." Two conditions: an action must have been brought, and the matter must fall within the agreement.

"Shall ... refer the parties to arbitration." Mandatory in form. It is not a discretion to be exercised on the balance of convenience.

"If a party to the arbitration agreement or any person claiming through or under him, so applies."

Two things here were changed by the 2015 amendment. The words "or any person claiming through or under him" were added, which widens who may apply beyond the signatories themselves. And a court cannot act on its own: somebody must apply. A judge who notices an arbitration clause and refers without an application has acted outside the section.

"Not later than the date of submitting his first statement on the substance of the dispute." This is the deadline and it is strict. Once a defendant has filed a written statement dealing with the merits, the right to be referred is gone. The phrase does not mean "the first document filed": an application for time, or an appearance, is not a statement on the substance.

"Notwithstanding any judgment, decree or order of the Supreme Court or any Court." Also inserted in 2015, and remarkable drafting: Parliament used a non obstante clause aimed squarely at judicial decisions, to displace the case law that had grown up on the earlier text.

In one line

Some disputes cannot be arbitrated no matter what the parties agreed, because the law reserves them to the courts.

In exam wording: arbitrability is the question whether the subject matter of a dispute is capable of settlement by arbitration; section 2(3) of the Arbitration and Conciliation Act 1996 preserves any other law by virtue of which certain disputes may not be submitted to arbitration, and section 34(2)(b)(i) makes it a ground for setting aside an award that the subject matter of the dispute is not capable of settlement by arbitration under the law for the time being in force.

Why party agreement is not enough

Everywhere else in this Module, the parties' agreement is what creates the arbitrator's power. Arbitrability is the limit on that. However clearly two people agree to arbitrate, some questions are not theirs to hand to a private tribunal.

The reason is that arbitration is private and binds only the parties. That is exactly what makes it attractive for a commercial dispute, and exactly what makes it unsuitable where an outcome must bind the world, or where the State has an interest beyond the two litigants, or where a statute has given a particular forum exclusive jurisdiction to protect a weaker party.

Where the Act deals with it, which is barely

The striking thing is how little the Act says. It nowhere lists non-arbitrable subjects. It deals with the question in three indirect places:

Section 2(3): this Part shall not affect any other law for the time being in force by virtue of which certain disputes may not be submitted to arbitration. So the Act defers to other laws rather than making its own list.

Section 8, as chapter 240 explains, is where the objection is first taken: a court asked to refer will not send the parties to arbitration on a dispute the law does not permit to be arbitrated.

Section 34(2)(b)(i): an award may be set aside if the court finds that the subject matter of the dispute is not capable of settlement by arbitration under the law for the time being in force. Note that this is a ground the court may take on its own, unlike the grounds in section 34(2)(a) which a party must prove. The same appears for foreign awards in section 48(2)(a).

So the content of the doctrine is judge-made, and Booz Allen is where it was assembled.

Booz Allen: the categories, and the reasoning behind them

Booz Allen & Hamilton Inc v. SBI Home Finance Ltd, decided 15 April 2011.

The Court began from the position that where a dispute is inarbitrable, a court where a suit is pending will refuse to refer the parties to arbitration under section 8 even if the parties had agreed upon arbitration as the forum. It then set out what it called the well recognised examples of non-arbitrable disputes:

In one line

A party can go to court for an urgent protective order connected with an arbitration, even before the arbitration has started and even after the award has been made.

In exam wording: section 9 of the Arbitration and Conciliation Act 1996 permits a party, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced under section 36, to apply to a court for the appointment of a guardian or for an interim measure of protection in respect of the matters specified in the section.

Why an arbitration needs a court at all

An arbitral tribunal has no coercive power. It cannot attach a bank account, and until it exists it cannot do anything, because there is no tribunal until one is appointed. Both gaps are real:

• Before the tribunal exists, a respondent who can see the claim coming may sell the goods, empty the account or encash the bank guarantee.
• After the award, there is a period before enforcement in which assets can disappear.

Section 9 covers both, and section 5's rule that a court may intervene only where the Part provides is precisely why this section had to be written.

Section 9(1): who, when, and for what

Who: a party, defined in section 2(1)(h) as a party to the arbitration agreement.

When: before or during arbitral proceedings, or at any time after the making of the arbitral award but before it is enforced in accordance with section 36. Three windows, and the third is easily forgotten.

For what, and the list is closed except for its last item:

• (i) the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or
• (ii) an interim measure of protection in respect of:
• (a) the preservation, interim custody or sale of any goods which are the subject matter of the arbitration agreement;
• (b) securing the amount in dispute in the arbitration;
• (c) the detention, preservation or inspection of any property or thing which is the subject matter of the dispute or as to which any question may arise, and authorising any person to enter upon land or a building in the possession of a party, or authorising samples to be taken, observations made or experiments tried, necessary or expedient for obtaining full information or evidence;
• (d) an interim injunction or the appointment of a receiver;
• (e) such other interim measure of protection as may appear to the Court to be just and convenient.

And the closing words: the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.

In one line

The parties choose how many arbitrators there are and how they are appointed, and if that breaks down a court appoints one for them.

In exam wording: section 10 leaves the number of arbitrators to the parties provided it is not an even number, and section 11 provides the appointment procedure, including the power of the Supreme Court or the High Court, or a person or institution designated by such Court, to make the appointment where the agreed procedure fails.

Section 10: the number, and the odd-number rule

Section 10(1): the parties are free to determine the number of arbitrators, provided that such number shall not be an even number.

Section 10(2): failing such determination, the arbitral tribunal shall consist of a sole arbitrator.

Two things. The reason for the odd-number rule is practical: an even-numbered tribunal can deadlock, and section 29 decides by majority. And the default is one, not three, which surprises students: silence in the clause means a sole arbitrator.

A clause providing for two arbitrators is not automatically void. Indian courts have generally read such a clause as workable by treating the two as required to appoint a third, rather than striking the arbitration agreement down. Be careful how you state this; the safe formulation is that section 10(1) prohibits an even number and that the consequence of a clause providing for two is a question the courts have answered by preserving the arbitration where they can.

Section 11: the appointment machinery

Section 11 is the longest section in Part I and it has been amended twice. Work through it in order.

Section 11(1): a person of any nationality may be an arbitrator, unless otherwise agreed by the parties.

Section 11(2): subject to sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators. Party autonomy comes first.

Section 11(3): failing such agreement, in an arbitration with three arbitrators, each party shall appoint one, and the two so appointed shall appoint the third, who shall act as the presiding arbitrator.

Section 11(4): if that default procedure applies and (a) a party fails to appoint within thirty days from receipt of a request from the other party, or (b) the two appointed arbitrators fail to agree on the third within thirty days from their appointment, the appointment is made on the request of a party by the Supreme Court or the High Court, or any person or institution designated by such Court.

Section 11(5): failing agreement, in an arbitration with a sole arbitrator, if the parties fail to agree within thirty days of a request by one party, the appointment is made in the same way.

In one line

An arbitrator must be independent and impartial, must say in writing anything that might make a party doubt it, and if his relationship with a party falls in a listed category he cannot be an arbitrator at all.

In exam wording: section 12 of the Arbitration and Conciliation Act 1996 requires a prospective arbitrator to disclose in writing any circumstances likely to give rise to justifiable doubts as to his independence or impartiality, permits a challenge on that ground or for want of agreed qualifications, and, by sub-section (5), renders a person ineligible for appointment where his relationship with the parties, counsel or subject matter falls within the Seventh Schedule.

Why this section was rewritten in 2015

Indian arbitration had a habit that would look extraordinary anywhere else. Government and public sector contracts routinely provided that the arbitrator would be a serving officer of the party itself, often the very department the dispute was with, or that the Managing Director of one party would appoint the arbitrator.

The 2015 amendment attacked this directly. It rewrote section 12(1), inserted section 12(5), and added three Schedules: the Fifth listing grounds that guide justifiable doubts, the Sixth prescribing the form of disclosure, and the Seventh listing relationships that make a person ineligible.

The design is worth stating because it is the answer to a question: why two Schedules? The Fifth Schedule is a warning list; the Seventh Schedule is a bar. A Fifth Schedule circumstance guides whether there are justifiable doubts, and the arbitrator may still act if nobody successfully challenges. A Seventh Schedule relationship makes the person ineligible outright.

Section 12(1): the duty to disclose, before appointment

When a person is approached in connection with his possible appointment, he shall disclose in writing any circumstances:

• (a) such as the existence, either direct or indirect, of any past or present relationship with or interest in any of the parties or in relation to the subject matter in dispute, whether financial, business, professional or other kind, which is likely to give rise to justifiable doubts as to his independence or impartiality; and
• (b) which are likely to affect his ability to devote sufficient time to the arbitration, and in particular his ability to complete the entire arbitration within a period of twelve months.

Clause (b) is the one students forget, and it is the link to section 29A. The Act asks a prospective arbitrator not only whether he is independent but whether he is available, measured against the twelve month limit chapter 360 works through.

Explanation 1: the grounds in the Fifth Schedule shall guide in determining whether circumstances exist which give rise to justifiable doubts.

In one line

A party who objects to an arbitrator tells the tribunal, and if the tribunal rejects the objection the arbitration carries on to an award, which the objector may then attack in court.

In exam wording: section 13 provides the procedure for challenging an arbitrator, section 14 governs the termination of a mandate for failure or impossibility to act, and section 15 covers the remaining ways a mandate ends and the appointment of a substitute arbitrator.

Section 13: the challenge procedure, and its surprising design

Section 13(1): subject to sub-section (4), the parties are free to agree on a procedure for challenging an arbitrator. Party autonomy first, as everywhere in Part I.

Section 13(2): failing agreement, a party who intends to challenge shall, within fifteen days after becoming aware of the constitution of the tribunal, or after becoming aware of any circumstance referred to in section 12(3), send a written statement of the reasons for the challenge to the arbitral tribunal.

Note who receives it: the tribunal, not a court. And note the trigger: fifteen days from awareness, not from the appointment.

Section 13(3): unless the challenged arbitrator withdraws or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.

This is the design that students find strange and it is worth pausing on. The tribunal decides a challenge to its own member, and where there is a sole arbitrator, he decides whether he himself should go. That looks wrong until you see the alternative: letting a party run to court every time it dislikes an arbitrator would hand any respondent a delaying tactic, which is exactly what the 1996 Act was written to end.

Section 13(4): if a challenge under an agreed procedure or under sub-section (2) is not successful, the tribunal shall continue the arbitral proceedings and make an arbitral award.

So an unsuccessful challenge does not stop the arbitration and there is no immediate appeal. The remedy is deferred.

Section 13(5): where an award is made under sub-section (4), the party who challenged may apply for setting aside that award under section 34.

Section 13(6): where an award is set aside on such an application, the Court may decide whether the arbitrator who was challenged is entitled to any fees.

Sub-section (6) is a small provision with sharp teeth. An arbitrator who wrongly refuses to step down risks conducting the whole reference for nothing.

The relationship with section 12(5) must be kept straight. Section 13 is the route for a challenge on the section 12(3) grounds. A person ineligible under section 12(5) is a different case: he cannot hold office at all, and the remedy has been treated as an application to terminate the mandate, or an application under section 11 for a valid appointment, rather than a section 13 challenge that the ineligible arbitrator himself would decide.

In one line

An arbitral tribunal can decide for itself whether it has any power to decide, and an arbitration clause survives even if the contract containing it turns out to be void.

In exam wording: section 16 of the Arbitration and Conciliation Act 1996 embodies the doctrines of kompetenz-kompetenz and separability, empowering the arbitral tribunal to rule on its own jurisdiction, including on objections to the existence or validity of the arbitration agreement.

Two Latin-adjacent ideas, defined before they are used

Kompetenz-kompetenz, a German expression used untranslated in arbitration law, means competence as to competence: the tribunal's power to decide the extent of its own power. Without it, any respondent could paralyse an arbitration by saying "you have no jurisdiction" and forcing everybody to court before a word of evidence was heard.

Separability, sometimes called severability, means that an arbitration clause inside a contract is treated as an agreement separate from the rest of that contract. Without it, arbitration would collapse in exactly the cases where it is needed: if a party says the contract is void, and the arbitration clause is part of the contract, then the clause would be void too and there would be nobody to decide.

The two are related but distinct. Separability says the clause survives; kompetenz-kompetenz says the tribunal may decide whether it does.

Section 16(1): the power, and the two rules that make it work

The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose:

• (a) an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and
• (b) a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

"Ipso jure" means by the law itself, automatically. So clause (b) is saying: even where the tribunal holds the main contract void, the arbitration clause does not automatically fall with it.

Notice how wide the power in the opening words is. The tribunal may rule on objections to the existence as well as the validity of the arbitration agreement. That is the counterpart of section 11(6A), which confines the court at the appointment stage to the existence of an agreement, and of In Re: Interplay, which sends the stamping objection to the tribunal.

Section 16(2) and (3): when an objection must be taken

Section 16(2): a plea that the tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence; however, a party shall not be precluded from raising such a plea merely because he has appointed, or participated in the appointment of, an arbitrator.

In one line

The arbitral tribunal can make the same kind of urgent protective orders a court can, and since 2015 those orders are enforceable as if a court had made them.

In exam wording: section 17 of the Arbitration and Conciliation Act 1996 empowers a party, during the arbitral proceedings, to apply to the arbitral tribunal for the appointment of a guardian or for an interim measure of protection, and sub-section (2) deems any such order to be an order of the Court, enforceable under the Code of Civil Procedure 1908 as if it were one.

Why this section was nearly useless before 2015

Read the old section 17 and it looked adequate: the tribunal could order interim measures. The problem was what happened when a party ignored the order.

A tribunal has no power to punish. It cannot commit for contempt and it cannot execute. So an interim order was, in practice, a request. A respondent who wanted to sell the goods sold them, and the claimant's only real answer was to go to court under section 9 instead, which is exactly what parties did.

The 2015 amendment fixed it in two moves: it rewrote sub-section (1) to give the tribunal the same list of powers as a court has under section 9, and it added sub-section (2), which makes the order enforceable as a court order. Sub-section (2) is the whole reform.

Section 17(1): the powers, which mirror section 9

A party may, during the arbitral proceedings, apply to the arbitral tribunal:

• (i) for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or
• (ii) for an interim measure of protection in respect of:
• (a) the preservation, interim custody or sale of any goods which are the subject matter of the arbitration agreement;
• (b) securing the amount in dispute in the arbitration;
• (c) the detention, preservation or inspection of any property or thing which is the subject matter of the dispute or as to which any question may arise, with power to authorise entry upon land or a building in a party's possession, and the taking of samples, making of observations or trying of experiments necessary or expedient for obtaining full information or evidence;
• (d) an interim injunction or the appointment of a receiver;
• (e) such other interim measure of protection as may appear to the arbitral tribunal to be just and convenient.

And the closing words: the arbitral tribunal shall have the same power for making orders as the court has for the purpose of, and in relation to, any proceedings before it.

Compare that list with section 9(1) in chapter 260 and it is the same list, word for word, with "the Court" replaced by "the arbitral tribunal". That symmetry is deliberate: Parliament wanted the tribunal to be a real substitute, not a lesser forum.

In one line

The tribunal must treat the parties equally and hear them both; beyond that it is free of the Code of Civil Procedure and the Evidence Act and can run the case as it thinks fit.

In exam wording: section 18 requires the parties to be treated with equality and each to be given a full opportunity to present his case; section 19 frees the tribunal from the Code of Civil Procedure 1908 and the Indian Evidence Act 1872; and sections 20 to 22 govern the place of arbitration, the commencement of proceedings and the language.

Section 18: the one rule that cannot be bent

The parties shall be treated with equality and each party shall be given a full opportunity to present his case.

One sentence, and it is the most important in Chapter V.

Everything else in the conduct of an arbitration is flexible. This is not. Section 18 is the arbitral expression of natural justice, and it is what stops "freedom from procedure" becoming "freedom from fairness". Note the two limbs, because they are different duties:

Equality of treatment. Whatever is allowed to one side must be allowed to the other. If one party gets three weeks to file evidence, so does the other.

A full opportunity to present his case. Not a token one. Enough notice, enough time, and a real chance to answer the other side's material.

Section 18 has no "unless otherwise agreed by the parties". Almost every other section in this chapter does. That absence is the strongest signal in the Act that the provision is mandatory: the parties cannot contract out of it, and section 4's waiver rule does not reach it, because it is not a provision from which the parties may derogate.

Where it bites. Section 34(2)(a)(iii) makes it a ground for setting aside an award that a party was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case. Chapter 400 works that through. In practice this is the commonest real complaint about an arbitration.

Section 19: free of the Code and the Evidence Act

Section 19(1): the arbitral tribunal shall not be bound by the Code of Civil Procedure 1908 or the Indian Evidence Act 1872.

Section 19(2): subject to this Part, the parties are free to agree on the procedure to be followed.

Section 19(3): failing agreement, the tribunal may, subject to this Part, conduct the proceedings in the manner it considers appropriate.

Section 19(4): that power includes the power to determine the admissibility, relevance, materiality and weight of any evidence.

This is where arbitration's speed comes from. There is no framing of issues, no rule against hearsay, no requirement that a document be proved through a witness who made it. The tribunal decides what to look at and what it is worth.

In one line

Each side puts its case in writing, the tribunal decides whether to hold hearings, and a party who stays away does not automatically lose.

In exam wording: section 23 governs the statements of claim and defence, section 24 the holding of oral hearings and written proceedings, and section 25 the consequences of a party's default.

Section 23: the pleadings

Section 23(1): within the time agreed by the parties or determined by the tribunal, the claimant shall state the facts supporting his claim, the points at issue and the relief or remedy sought, and the respondent shall state his defence in respect of those particulars, unless the parties have agreed otherwise as to the required elements.

Three ingredients in a statement of claim, and they are worth remembering as a list because they are what a student would have to draft on a clinical paper: the facts, the points at issue, and the relief sought.

Section 23(2): the parties may submit with their statements all documents they consider relevant, or may add a reference to the documents or other evidence they will submit.

Section 23(2A), inserted by the 2015 amendment: the respondent may also submit a counterclaim or plead a set-off, which shall be adjudicated upon by the arbitral tribunal, if such counterclaim or set-off falls within the scope of the arbitration agreement.

This settled a real doubt. Before it, a respondent with a cross-claim was sometimes told to start a separate arbitration. Note the condition: the counterclaim or set-off must fall within the scope of the arbitration agreement.

Counterclaim and set-off are not the same. A set-off is a defence: it reduces or extinguishes what the claimant can recover. A counterclaim is an independent claim that can exceed the claim and produce an award in the respondent's favour.

Section 23(3): unless otherwise agreed, either party may amend or supplement his claim or defence during the proceedings, unless the tribunal considers it inappropriate having regard to the delay in making it.

Section 23(4), inserted by the 2019 amendment: the statement of claim and defence shall be completed within a period of six months from the date the arbitrator or all the arbitrators, as the case may be, received notice in writing of their appointment.

Section 23(4) is what makes section 29A workable. Chapter 360 explains: the twelve month period for making the award runs from the completion of pleadings, and section 23(4) puts an outer limit of six months on that stage. Six plus twelve is the intended shape of an Indian arbitration.

Section 24: hearings

Section 24(1): unless otherwise agreed, the tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials.

In one line

The tribunal can appoint its own expert, and where it needs a witness or a document it cannot itself compel, it borrows the court's power.

In exam wording: section 26 empowers the arbitral tribunal, unless otherwise agreed, to appoint experts to report on specific issues, and section 27 permits the tribunal, or a party with its approval, to apply to the Court for assistance in taking evidence.

Section 26: the tribunal's own expert

Section 26(1): unless otherwise agreed by the parties, the tribunal may:

• (a) appoint one or more experts to report to it on specific issues to be determined by the tribunal; and
• (b) require a party to give the expert any relevant information, or to produce or provide access to any relevant documents, goods or other property for his inspection.

Note the difference from a court. In a suit each side calls its own expert and the judge chooses between them. Here the tribunal appoints an expert of its own, on issues it identifies, and can compel the parties to give that expert access. In a construction or engineering dispute this is often the fastest route to the truth.

Section 26(2): unless otherwise agreed, if a party so requests or if the tribunal considers it necessary, the expert shall, after delivering his written or oral report, participate in an oral hearing where the parties have the opportunity to put questions to him and to present expert witnesses to testify on the points at issue.

This is the fairness safeguard, and it is the reason section 26 does not offend section 18. A party can insist that the tribunal's own expert be questioned, and can call its own expert against him.

Section 26(3): unless otherwise agreed, the expert shall, on the request of a party, make available to that party for examination all documents, goods or other property in his possession with which he was provided in order to prepare his report.

So a party can see the material the expert worked from. Read sections 26(2) and (3) with section 24(3), under which any expert report the tribunal may rely on must be communicated to the parties. Together they mean a tribunal cannot decide on an expert's view that a party has not been able to test.

Section 27: borrowing the court's coercive power

Here is the gap the section fills. A tribunal can order the parties to do things, because they agreed to its authority. It has no authority at all over a stranger: the bank that holds the account, the government office that holds the file, the eyewitness who never signed anything.

Section 27(1): the arbitral tribunal, or a party with the approval of the arbitral tribunal, may apply to the Court for assistance in taking evidence.

In one line

A tribunal sitting in India must decide a domestic dispute by Indian substantive law, must respect the contract and trade usages, and where there are three arbitrators the majority decides.

In exam wording: section 28 of the Arbitration and Conciliation Act 1996 prescribes the rules applicable to the substance of the dispute, and section 29 provides that in proceedings with more than one arbitrator any decision shall be made by a majority of all its members.

Why an arbitrator is not free to do what he thinks is fair

Students often assume that arbitration means deciding by broad justice rather than by law. In India it does not, and section 28 is why.

The tribunal is not a court, but it is applying law, and an award that ignores the law can be attacked. Section 28 sets out which law, and it splits at the same fork as section 2(1)(f): domestic arbitration on one side, international commercial arbitration on the other.

Section 28(1)(a): domestic arbitration

Where the place of arbitration is in India, in an arbitration other than an international commercial arbitration, the arbitral tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for the time being in force in India.

Note the word shall. In a purely domestic arbitration the parties cannot choose a foreign law to govern the substance. Two Indian companies cannot agree that their contract is governed by Singapore law and have that applied by a tribunal sitting in India under this section.

And note what "substantive" excludes. Section 19(1) frees the tribunal from the procedural law, the Code of Civil Procedure, and from the Evidence Act. Section 28(1)(a) binds it to the substantive law: the Contract Act, the Sale of Goods Act, the law of limitation and the rest.

Section 28(1)(b): international commercial arbitration

Where the place of arbitration is in India and the arbitration is an international commercial arbitration:

• (i) the tribunal shall decide the dispute in accordance with the rules of law designated by the parties as applicable to the substance of the dispute;
• (ii) any designation by the parties of the law or legal system of a given country shall be construed, unless otherwise expressed, as directly referring to the substantive law of that country and not to its conflict of laws rules; and
• (iii) failing any designation by the parties, the tribunal shall apply the rules of law it considers to be appropriate given all the circumstances surrounding the dispute.

Clause (ii) is a small provision that saves a great deal of trouble. Conflict of laws rules, sometimes called private international law, are the rules a legal system uses to decide which country's law applies. If a choice of "French law" were read as including France's conflict rules, those rules might point back to some third country, and so on. Clause (ii) cuts that off: choosing a country's law means its substantive law.

In one line

A domestic arbitration must produce its award within twelve months of the pleadings closing, extendable by six months with consent and after that only by a court, which can cut the arbitrators' fees for delay.

In exam wording: section 29A of the Arbitration and Conciliation Act 1996 imposes a time limit for making the arbitral award and provides for its extension by consent and by the Court, and section 29B provides an optional fast track procedure.

Why a statute fixes a deadline at all

Almost every other provision in Part I is about fairness or jurisdiction. Section 29A is about speed, and it exists because arbitration in India had lost its main advantage. References ran for years, hearings were adjourned, and the parties had no lever at all.

Section 29A was inserted by the 2015 amendment and gives them one: a statutory deadline, with the loss of the arbitrator's mandate as the sanction and a reduction of fees as the penalty for causing the delay.

The change in 2019 that most notes miss

State the period from the right starting point or the answer is wrong.

As inserted in 2015, section 29A(1) required the award to be made within twelve months from the date the arbitral tribunal enters upon the reference.

As substituted by the 2019 amendment, it requires the award in matters other than international commercial arbitration to be made within twelve months from the date of completion of pleadings under section 23(4).

The change was sensible. Running the clock from the tribunal's first sitting meant it started before anybody had pleaded, so much of the twelve months went on exchanging documents. Running it from the completion of pleadings gives the tribunal a full year to hear and decide, and section 23(4) separately caps the pleading stage at six months from the arbitrators receiving written notice of appointment.

The Jammu and Kashmir and Ladakh State amendment keeps the old rule. There, sub-section (1) is substituted to read twelve months from the date the arbitral tribunal enters upon the reference, with an Explanation deeming that to be the date all the arbitrators received written notice of their appointment, and the second and third provisos to sub-section (4) are omitted.

International commercial arbitration is treated differently

The proviso to section 29A(1): the award in the matter of an international commercial arbitration may be made as expeditiously as possible and endeavour may be made to dispose of the matter within a period of twelve months from the date of completion of pleadings.

Read the words. For a domestic arbitration the award shall be made within twelve months. For an international commercial arbitration it is an endeavour, not a mandate. The distinction was introduced in 2019, in recognition that a foreign party will not accept a statutory guillotine on its arbitration.

In one line

An arbitrator is allowed to try to get the parties to settle, and if they do, the settlement can be turned into an award that is enforced like any other.

In exam wording: section 30 of the Arbitration and Conciliation Act 1996 provides that it is not incompatible with an arbitration agreement for an arbitral tribunal to encourage settlement of the dispute, permits the tribunal with the agreement of the parties to use mediation, conciliation or other procedures for that purpose, and provides for an arbitral award on agreed terms.

Why the section had to be written at all

The problem section 30 solves is a real one and it is worth seeing before reading the text.

An arbitrator is an adjudicator. If he starts urging the parties to settle, and hears from each of them what they might accept, he has learned things about their positions that a judge would never hear. If the settlement then fails and he goes on to decide the case, the losing party will say he was influenced by what he was told in the settlement discussions, and will attack the award for want of independence under section 12 and for breach of section 18.

So without a provision like section 30, a cautious arbitrator would never encourage settlement at all, and the parties would lose the cheapest outcome available to them.

Section 30(1): permission, and the words that matter

It is not incompatible with an arbitration agreement for an arbitral tribunal to encourage settlement of the dispute and, with the agreement of the parties, the arbitral tribunal may use mediation, conciliation or other procedures at any time during the arbitral proceedings to encourage settlement.

Take it apart.

"It is not incompatible with an arbitration agreement." This is the answer to the objection above. Encouraging settlement is not a departure from the arbitrator's role; the Act says so.

"To encourage settlement of the dispute." The tribunal may encourage. It cannot compel, and section 18 stops it pressing a party into terms.

"With the agreement of the parties." This condition attaches to the second half, the use of mediation, conciliation or other procedures. Encouraging settlement is permitted generally; actually conducting a mediation or conciliation requires the parties' agreement.

"May use mediation, conciliation or other procedures." The Act names both, and by "other procedures" leaves room for anything else that works.

"At any time during the arbitral proceedings." Early, late, or after the evidence.

This is the clearest statutory recognition in Indian law that the ADR methods are not rivals. A student asked how arbitration, conciliation and mediation relate to each other can answer from the statute: section 30 lets one proceeding use all three.

In one line

An award must be written, signed, dated and reasoned, must say where it was made, and a signed copy must go to each party; and the tribunal decides interest and costs.

In exam wording: section 31 of the Arbitration and Conciliation Act 1996 prescribes the form and contents of an arbitral award, and section 31A establishes a regime for costs applying to both the Court and the arbitral tribunal.

Section 31(1) and (2): writing and signature

Section 31(1): an arbitral award shall be made in writing and shall be signed by the members of the arbitral tribunal.

Section 31(2): in proceedings with more than one arbitrator, the signatures of the majority of all the members shall be sufficient so long as the reason for any omitted signature is stated.

Sub-section (2) is the practical answer to the arbitrator who refuses to sign, or who has died or become unavailable. The award still stands on the majority's signatures, provided the reason for the missing signature is stated in it. Leaving the reason out is a defect in the award itself.

Section 31(3): reasons, and the two exceptions

The arbitral award shall state the reasons upon which it is based, unless (a) the parties have agreed that no reasons are to be given, or (b) the award is an arbitral award on agreed terms under section 30.

The default is reasoned, which is one of the biggest differences from the 1940 Act, under which unreasoned awards were common and almost impossible to review intelligently.

Why reasons matter here more than they look. An unreasoned award cannot really be tested under section 34 at all: a court cannot see whether the tribunal went outside the reference, ignored the contract, or decided on a ground nobody argued. Reasons are what make the limited review in section 34 meaningful.

The exceptions are narrow. Agreement that no reasons be given, which is rare and unwise; and an award on agreed terms, where the parties' agreement is the reason.

Section 31(4) and (5): date, place, and delivery

Section 31(4): the award shall state its date and the place of arbitration as determined in accordance with section 20, and the award shall be deemed to have been made at that place.

The deeming matters. Wherever the tribunal physically signed, the award is made at the seat, which chapter 320 distinguishes from the venue. That in turn fixes which courts supervise it.

Section 31(5): after the award is made, a signed copy shall be delivered to each party.

Small provision, large consequences. The date of receipt of the signed copy starts the thirty day clock in section 33 for correction, and the three month clock in section 34(3) for setting aside. Delivery to an advocate or an employee may not be delivery to the party; this is a recurring source of limitation disputes.

In one line

An arbitration ends with the final award, and for thirty days afterwards the tribunal can still fix slips, explain a point, or decide a claim it forgot.

In exam wording: section 32 provides how arbitral proceedings are terminated and when the tribunal's mandate ends, and section 33 permits the correction of errors, the interpretation of a specific point or part of an award, and the making of an additional award.

Section 32: how an arbitration ends

Section 32(1): the arbitral proceedings shall be terminated by the final arbitral award or by an order of the arbitral tribunal under sub-section (2).

Section 32(2): the tribunal shall issue an order for termination where:

• (a) the claimant withdraws his claim, unless the respondent objects to the order and the arbitral tribunal recognises a legitimate interest on his part in obtaining a final settlement of the dispute;
• (b) the parties agree on the termination; or
• (c) the tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.

Clause (a)'s exception is the interesting one and it is easy to see the point once stated. A claimant who realises it is going to lose might withdraw, wait, and start again. The respondent, who has spent two years and a great deal of money, may have a legitimate interest in a final settlement of the dispute rather than a withdrawal that settles nothing. Where the tribunal recognises that interest, the arbitration continues to an award.

Clause (c) is a residual power and it covers the practical dead ends: the subject matter has ceased to exist, a party has been dissolved, or the claim has been overtaken by events.

Section 32(3): subject to section 33 and section 34(4), the mandate of the arbitral tribunal shall terminate with the termination of the arbitral proceedings.

This is the sentence that explains the whole chapter. Once the proceedings end, the tribunal is functus officio, a Latin expression meaning that it has discharged its office and has no further authority. It cannot reconsider, add to, or improve its award.

Two exceptions are built into the sub-section, and they are the reason sections 33 and 34(4) exist:

• Section 33, which lets the tribunal correct, interpret or supplement the award within a short window; and
• Section 34(4), under which a court hearing a setting aside application may adjourn and give the tribunal an opportunity to resume proceedings or take such action as will eliminate the grounds for setting aside. Chapter 400 works through it.

Section 33: the short window after the award

Section 33 gives three different remedies with three different time limits. Keep them apart.

In one line

An award can be challenged in court, but only by an application to set it aside, only on a short closed list of grounds, and only within three months.

In exam wording: section 34 of the Arbitration and Conciliation Act 1996 provides that recourse to a Court against an arbitral award may be made only by an application for setting aside the award, on the grounds specified in sub-section (2) and, for domestic awards, sub-section (2A), within the period prescribed by sub-section (3).

The three words that shape the section

"Recourse ... may be made only by an application for setting aside." There is no appeal against an arbitral award. A court cannot vary it, improve it, or substitute its own view. The only thing it can do under this section is set the award aside, wholly or in part.

"May be set aside by the Court only if." The grounds are exhaustive.

And a distinction inside sub-section (2) that decides who has to prove what. Under clause (a) the party making the application must establish the ground, and since the 2019 amendment must do so on the basis of the record of the arbitral tribunal. Under clause (b) it is enough that the Court finds the ground, so the court may act on its own.

Section 34(2)(a): the five grounds a party must establish

The applicant must establish, on the basis of the record of the arbitral tribunal, that:

• (i) a party was under some incapacity;
• (ii) the arbitration agreement is not valid under the law to which the parties subjected it, or, failing any indication, under the law for the time being in force;
• (iii) the applicant was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings, or was otherwise unable to present his case;
• (iv) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission, with a proviso that where the decisions on matters submitted can be separated from those not submitted, only that part which contains decisions on matters not submitted may be set aside; or
• (v) the composition of the tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless that agreement conflicted with a provision of Part I from which the parties cannot derogate, or, failing such agreement, was not in accordance with Part I.

Three of these repay attention.

Ground (iii) is the natural justice ground and it is the commonest genuine complaint. It is section 18 in the form of a remedy, and it has two limbs: no proper notice, or otherwise unable to present his case.

In one line

An award is final and is enforced like a decree of a court, and since 2015 merely filing a challenge no longer freezes it.

In exam wording: section 35 makes an arbitral award final and binding on the parties and persons claiming under them, and section 36 provides for its enforcement in accordance with the Code of Civil Procedure 1908 as if it were a decree of the court, subject to a stay granted on a separate application.

Section 35: finality

Subject to this Part, an arbitral award shall be final and binding on the parties and persons claiming under them respectively.

Three words to notice.

"Subject to this Part." The finality is not absolute; it yields to section 34.

"Final and binding." There is no appeal on the merits, as chapter 400 explains.

"And persons claiming under them." The award binds not only the parties but those who claim through them, such as an assignee or a legal representative. Compare section 2(1)(g)'s definition of legal representative.

Section 36 before 2015: the automatic stay

To understand section 36 you have to know what it replaced, because the whole story is a reaction to it.

Under the original section 36, an award became enforceable only when the time for a section 34 application had expired, or such application had been made and refused. So filing a section 34 application automatically suspended enforcement.

The consequence was predictable and it hollowed out arbitration in India. Every losing party filed under section 34, whatever its merits, because filing alone stopped the award. The successful party then waited years for the challenge to be heard, with nothing in hand. An award was, in practice, a piece of paper until the courts had finished with it.

Section 36 as it now stands

Section 36(1): where the time for making a section 34 application has expired, then, subject to sub-section (2), the award shall be enforced in accordance with the Code of Civil Procedure 1908, in the same manner as if it were a decree of the court.

Note what the award is not. It is not a decree; it is enforced as if it were one. There is no need to file a suit on the award, and no separate decree is drawn up.

Section 36(2): where a section 34 application has been filed, the filing of such an application shall not by itself render that award unenforceable, unless the Court grants an order of stay of the operation of the award in accordance with sub-section (3), on a separate application made for that purpose.

This is the reform, in one sentence. Filing a challenge no longer stops the award. The challenger must make a separate application for a stay and persuade the court to grant it.

In one line

Only five kinds of order can be appealed under this Act, there is no second appeal, and the right to go to the Supreme Court under the Constitution survives.

In exam wording: section 37 of the Arbitration and Conciliation Act 1996 provides an exhaustive list of appealable orders, appeals lying to the Court authorised by law to hear appeals from original decrees of the Court passing the order, and bars any second appeal while preserving the right of appeal to the Supreme Court.

A section that exists to stop appeals

Most appeal provisions are written to give a right. This one is written to confine it, and the drafting shows it: "an appeal shall lie from the following orders (and from no others)."

Read section 37 together with section 5, chapter 220. Section 5 says a judicial authority shall not intervene except where Part I provides. Section 37 is one of those provisions, and its parenthesis makes clear that it provides for these orders and nothing else.

Section 37(1): appeals from orders of a Court

Notwithstanding anything contained in any other law for the time being in force, an appeal shall lie from the following orders (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order:

• (a) refusing to refer the parties to arbitration under section 8;
• (b) granting or refusing to grant any measure under section 9;
• (c) setting aside or refusing to set aside an arbitral award under section 34.

Take each in turn, because the asymmetries are examinable.

Clause (a) is one-way. An appeal lies from an order refusing to refer. There is no appeal from an order referring the parties to arbitration. The logic is the same as section 16's: an order referring the parties sends the dispute to the forum they chose and the objection can be revisited later, while a refusal keeps them in court in defiance of their agreement.

Note also that the non obstante clause at the start, "notwithstanding anything contained in any other law", was inserted by the 2019 amendment. It closes off attempts to find a right of appeal in some other statute, such as a Letters Patent.

Clause (b) is two-way. Both the grant and the refusal of a section 9 interim measure are appealable, which is right, since a wrongly granted injunction and a wrongly refused one are equally damaging.

Clause (c) is two-way. Setting aside and refusing to set aside are both appealable. This is the ordinary route by which a section 34 decision is reviewed, and it is worth being precise: the appeal is against the court's order on the section 34 application, not against the award.

In one line

The tail of Part I covers who pays the tribunal in advance, what happens if a party dies or goes insolvent, which court keeps the case, whether an arbitration is confidential, and how limitation applies.

In exam wording: sections 38 to 43 of the Arbitration and Conciliation Act 1996 are the miscellaneous provisions of Part I, dealing with deposits, the tribunal's lien, the effect of death and insolvency, the jurisdiction of a single court, confidentiality, protection of the arbitrator, and the application of the Limitation Act 1963.

Section 38: deposits

Section 38(1): the tribunal may fix the amount of the deposit or supplementary deposit as an advance for the costs under section 31(8) which it expects to be incurred in respect of the claim. A proviso allows separate deposits for the claim and the counterclaim.

Section 38(2): the deposit is payable in equal shares by the parties. First proviso: where one party fails to pay his share, the other party may pay it. Second proviso: where the other party also does not pay, the tribunal may suspend or terminate the proceedings in respect of that claim or counterclaim.

Notice the structure. The claimant who wants its claim heard can carry the respondent's share, and if nobody pays, the claim or counterclaim concerned can be suspended or terminated. The sanction is targeted: a respondent who refuses to fund the counterclaim loses the counterclaim, not the defence.

Section 38(3): on termination, the tribunal shall render an accounting of deposits received and return any unexpended balance.

Section 39: the tribunal's lien

Section 39(1): subject to sub-section (2) and to any contrary provision in the arbitration agreement, the tribunal shall have a lien on the arbitral award for any unpaid costs of the arbitration.

A lien is a right to retain something until a debt is paid. So the tribunal may hold back the award until its costs are paid, which is a powerful practical tool and the only real security an arbitrator has.

Section 39(2): if the tribunal refuses to deliver the award except on payment of the costs it demands, the Court may order that it deliver the award to the applicant on payment into Court of the costs demanded, and may then, after such inquiry as it thinks fit, order that only such sum as the Court considers reasonable be paid out to the tribunal, with the balance refunded to the applicant.

That is the safeguard against an excessive demand: the party gets the award, and the Court decides what the arbitrator is actually worth.

Section 39(3): such an application may be made by any party unless the fees demanded have been fixed by written agreement between him and the tribunal, and the tribunal is entitled to appear and be heard.

In one line

Parliament created a national body to grade arbitral institutions and accredit arbitrators, the law creating it has been in force since October 2023, and the body itself has never been set up.

In exam wording: Part IA of the Arbitration and Conciliation Act 1996, sections 43A to 43M, was inserted by the Arbitration and Conciliation (Amendment) Act 2019 and provides for the establishment and incorporation of the Arbitration Council of India, its composition, duties and functions.

Why Parliament wanted a Council

Indian arbitration has been overwhelmingly ad hoc, which chapter 210 explains: run by the parties and the tribunal themselves rather than administered by an institution with rules, a panel and a fee scale.

Ad hoc arbitration has costs that are easy to see once listed. Every appointment goes to court under section 11 because there is no institution to make it. Fees are negotiated case by case. There is no quality control over who calls himself an arbitrator. And India loses work to Singapore and London, where institutional arbitration is the norm.

The 2019 amendment's answer was a national body to grade institutions, accredit arbitrators, and take over appointments from the courts. Part IA is that body.

The commencement, which is the fact most notes get wrong

Part IA is in force. The footnote to the Part in the consolidated text reads:

Ins. by Act 33 of 2019, s. 10 (w.e.f. 12-10-2023).

So sections 43A to 43M have been law since 12 October 2023, four years after the amending Act was passed. It is not a dead letter, an unnotified provision, or a proposal.

And the Council does not exist. On 6 February 2026, answering Lok Sabha Unstarred Question No. 1223, the Minister of State for Law and Justice told Parliament, of the seven-member body Part IA provides for:

The Arbitration Council of India has not been constituted as yet.

Say both, in that order. A student who says only the first is wrong about the facts, and one who says only the second is wrong about the law. The correct statement is that the enabling law is in force and the institution has not been established.

What Part IA provides

Section 43A: definitions. Defines "Chairperson", "Council", "Member", "arbitral institution" and "prescribed" for the Part.

Section 43B: establishment and incorporation. The Central Government shall, by notification, establish for the purposes of the Act a Council to be known as the Arbitration Council of India. It shall be a body corporate with perpetual succession and a common seal, able to acquire, hold and dispose of property, contract, and sue and be sued. Its head office shall be at Delhi, and it may, with the prior approval of the Central Government, establish offices elsewhere in India.

In one line

The last six sections of the Act make rules, repeal the old statutes, and include one provision that is printed in the Act and is not law.

In exam wording: Part IV of the Arbitration and Conciliation Act 1996 contains the supplementary provisions, sections 82 to 87, dealing with rule-making by the High Courts and the Central Government, the removal of difficulties, the repeal of the earlier arbitration statutes and of the 1996 Ordinance, and section 87.

Why a chapter on the housekeeping

Because one of the six sections is the clearest example a law student will meet of something that is printed in a statute and is not law, and because sections 85 and 86 are what date the whole subject.

Section 82: rules by the High Court

The High Court may make rules consistent with this Act as to all proceedings before the Court under this Act.

Short and practical. It is the source of the arbitration rules a High Court applies to section 9, 11, 34 and 37 matters: the form of applications, fees, and listing. Read with section 11(14), chapter 270, under which a High Court may frame rules for the fees of the tribunal having regard to the Fourth Schedule.

Section 83: removal of difficulties

Section 83(1): if any difficulty arises in giving effect to the Act, the Central Government may, by order published in the Official Gazette, make such provisions, not inconsistent with the Act, as appear necessary for removing the difficulty, with a proviso that no such order be made after the expiry of two years from the commencement of the Act.

Section 83(2): every such order shall be laid before each House of Parliament as soon as may be after it is made.

The Act commenced on 22 August 1996, so the power expired on 22 August 1998 and section 83 is spent. Compare section 26 of the Legal Services Authorities Act 1987, chapter 180, which is spent for exactly the same reason. Clauses of this kind are always time-limited, because they let the executive alter the working of a statute.

Section 84: rules by the Central Government

Section 84(1): the Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of the Act.

Section 84(2): every rule made shall be laid before each House of Parliament, in the usual form, and is subject to modification or annulment.

Distinguish the three rule-making powers in this Act, which examiners like: section 82, a High Court, for proceedings before the Court; section 84, the Central Government, generally; and section 11(14), a High Court, for arbitrators' fees. Part IA adds the Council's power to make regulations under section 43L.

In one line

The Act keeps its lists in eight Schedules: two Conventions on foreign awards, a fee table, two lists about arbitrator independence, a disclosure form, and one Schedule that was deleted in 2021.

In exam wording: the Arbitration and Conciliation Act 1996 has eight Schedules, of which the First, Second and Third reproduce the New York and Geneva Convention texts, the Fourth prescribes model fees, the Fifth and Seventh govern the independence and eligibility of arbitrators, the Sixth prescribes the form of disclosure, and the Eighth was omitted by the 2021 amendment.

Why a chapter on the Schedules

Because two of them decide cases. A Schedule is part of the Act, and the Fifth and Seventh Schedules in particular are not background reading: they are the operative content of section 12, which chapter 280 works through. A student who knows section 12 but has never looked at the Seventh Schedule knows only half of it.

The eight, at a glance

The First, Second and Third Schedules: the Conventions

These reproduce the treaty texts that Part II gives effect to, and they belong to Module III.

The First Schedule is the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, the New York Convention of 1958, referred to in section 44. Chapters 500 to 530 work through the scheme built on it.

The Second Schedule is the Protocol on Arbitration Clauses of 1923 and the Third Schedule the Convention on the Execution of Foreign Arbitral Awards of 1927, the Geneva instruments, both referred to in section 53. Chapter 540 works through them.

Reproducing a treaty as a Schedule is how India gives a treaty domestic effect. It also means the treaty text itself is available to a court construing Part II, which is why article I of the New York Convention, printed in the First Schedule, is worth reading beside section 44.

The Fourth Schedule: model fees

Referred to in section 11(14), under which a High Court may frame rules for determining the fees of the arbitral tribunal after taking into consideration the rates specified in the Fourth Schedule.

The Schedule is a table of model fees graded by the sum in dispute, beginning at Rs. 45,000 for a sum in dispute up to Rs. 5,00,000, and rising in bands, each band adding a fixed sum plus a percentage of the claim amount.

In one line

An award made in another country is enforced in India under Part II, which has two separate schemes because India is party to two different treaties on the subject.

In exam wording: Part II of the Arbitration and Conciliation Act 1996 deals with the enforcement of certain foreign awards, Chapter I governing New York Convention awards as defined in section 44 and Chapter II governing Geneva Convention awards as defined in section 53.

The problem a Convention solves

Start with why any of this is necessary.

An award made by a tribunal sitting in Paris has no force in India by itself. India's courts execute Indian decrees; a foreign arbitral award is, to an Indian court, a piece of paper produced by a private tribunal in a country whose law it does not administer.

If that were the end of it, international arbitration would be pointless. A party would win an award and be unable to touch the assets, which are usually in the loser's own country.

A treaty is the answer, and the technique is reciprocity. States agree with one another that each will recognise and enforce awards made in the others' territories, on limited and agreed grounds of refusal. A party then knows before it contracts that its award will travel.

That is what makes arbitration, rather than litigation, the normal way of resolving international commercial disputes. A foreign arbitral award is easier to enforce across borders than a foreign court judgment, because there is no comparable global treaty on judgments. It is worth stating that in an answer, because it explains why so much international business chooses arbitration.

The two Conventions, and why India has both

The Geneva scheme came first. The Protocol on Arbitration Clauses, Geneva, 1923 and the Convention on the Execution of Foreign Arbitral Awards, Geneva, 1927. They are reproduced in the Second and Third Schedules to the Act.

The New York Convention replaced it. The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, 1958, reproduced in the First Schedule.

The 1958 Convention was drafted precisely because the Geneva scheme did not work well enough, and the central defect it cured is worth knowing by name.

Double exequatur. Under the Geneva scheme, the party seeking enforcement had to show that the award had become final in the country where it was made, which in practice meant obtaining a decision there first and then a second one in the enforcing country. Two rounds of litigation in two countries, and the burden was on the party who had already won.

The New York Convention reversed the burden. The award-holder produces the award and the agreement, and the party resisting enforcement must prove one of the listed grounds. That single change is why the 1958 Convention is one of the most successful commercial treaties ever made.

In one line

A court asked to try a dispute covered by a foreign arbitration agreement must send the parties to arbitration, and a party who then wants to enforce the award produces three things to a High Court.

In exam wording: section 45 requires a judicial authority seized of an action in a matter covered by a section 44 agreement to refer the parties to arbitration, section 46 makes a foreign award binding for all purposes, and section 47 prescribes the evidence to be produced on an application for enforcement.

Section 45: the foreign-award counterpart of section 8

Notwithstanding anything contained in Part I or in the Code of Civil Procedure 1908, a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, unless it prima facie finds that the said agreement is null and void, inoperative or incapable of being performed.

Compare it with section 8, chapter 240, because the differences are examinable.

Three points.

The three-fold formula is taken straight from article II(3) of the New York Convention, printed in the First Schedule. Null and void means invalid from the start. Inoperative means it was valid but has ceased to operate, for instance because the parties abandoned it. Incapable of being performed means something makes it impossible to carry out, such as the death of a named sole arbitrator with no replacement mechanism.

The words "unless it prima facie finds" were substituted by the 2019 amendment. Before that the section read "unless it finds". The change aligns section 45 with the reference-stage philosophy that chapters 240 and 270 describe: a shallow look, with the tribunal deciding the rest.

There is no express deadline corresponding to section 8's "first statement on the substance", although a party who takes part in the action without objecting may face difficulties of a different kind.

Section 46: when a foreign award binds

Any foreign award which would be enforceable under this Chapter shall be treated as binding for all purposes on the persons as between whom it was made, and may accordingly be relied on by any of those persons by way of defence, set off or otherwise in any legal proceedings in India, and any references in this Chapter to enforcing a foreign award shall be construed as including references to relying on an award.

In one line

A foreign award is refused enforcement only on a short list of grounds, most of which the resisting party must prove, and the public policy ground is narrower here than it is for an Indian award.

In exam wording: section 48 of the Arbitration and Conciliation Act 1996 sets out the conditions for enforcement of foreign awards, sub-section (1) listing five grounds which the party against whom the award is invoked must prove and sub-section (2) two grounds which the Court may find.

The structure, which mirrors section 34 and is not identical to it

Section 48 has the same shape as section 34: grounds the resisting party must prove, and grounds the court may find of its own motion. That is not a coincidence; both derive from article V of the New York Convention, and section 34 was drafted from the same model.

But the two are not the same, and the differences are where the marks are. Set them out at the end of the chapter and the whole topic falls into place.

Section 48(1): the five grounds the resisting party must prove

Enforcement may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the court proof that:

• (a) the parties to the section 44 agreement were, under the law applicable to them, under some incapacity, or the agreement is not valid under the law to which the parties have subjected it or, failing any indication, under the law of the country where the award was made;
• (b) the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitral proceedings, or was otherwise unable to present his case;
• (c) the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission, with a proviso that if the decisions on matters submitted can be separated from those not submitted, that part which contains decisions on matters submitted may be enforced;
• (d) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or
• (e) the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.

Three observations that carry marks.

"Only if that party furnishes proof." The burden is on the resister and the grounds are exhaustive. This is the New York Convention's central achievement, chapter 500.

In one line

Once the court is satisfied a foreign award is enforceable, the award is simply deemed to be a decree of that court, and only a refusal can be appealed.

In exam wording: section 49 of the Arbitration and Conciliation Act 1996 provides that where the Court is satisfied that a foreign award is enforceable under Chapter I, the award shall be deemed to be a decree of that Court; section 50 lists the appealable orders; section 51 is a saving; and section 52 excludes the Geneva chapter.

Section 49: the deeming provision, and the single word that matters

Where the Court is satisfied that the foreign award is enforceable under this Chapter, the award shall be deemed to be a decree of that Court.

Compare that with section 36(1) for a domestic award, chapter 410, which says the award shall be enforced in accordance with the Code of Civil Procedure in the same manner as if it were a decree.

The difference is real. A domestic award is enforced as if it were a decree; a foreign award, once the court is satisfied, is deemed to be a decree of that court. So there is no separate enforcement order, no suit on the award, and no execution proceeding distinct from the enforcement application: the successful applicant emerges holding a decree of a High Court.

Note the single-stage character of the enquiry, which is the New York Convention's design showing through. The court considers the section 47 evidence and the section 48 objections together; if it is not persuaded to refuse, the award is a decree. There is nothing further to apply for.

Section 50: appeals

Section 50(1): notwithstanding anything contained in any other law for the time being in force, an appeal shall lie from the order refusing to:

• (a) refer the parties to arbitration under section 45;
• (b) enforce a foreign award under section 48,

to the court authorised by law to hear appeals from such order.

Section 50(2): no second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court.

Look at what is appealable and what is not, because the asymmetry is the same one as in section 37 and it is examinable.

The policy is consistent with section 37, chapter 420: an order that stops the arbitral process is appealable; an order that gives effect to it is not. Enforcing an award gives effect to it, so no appeal lies; refusing enforcement destroys it in India, so one does.

In one line

The Geneva scheme is the older way of enforcing a foreign award, and it is harder for the winner: the award must be final where it was made, and the applicant must prove the conditions rather than the loser proving the objections.

In exam wording: Chapter II of Part II of the Arbitration and Conciliation Act 1996, sections 53 to 60, gives effect to the Geneva Protocol on Arbitration Clauses 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards 1927, set out in the Second and Third Schedules.

How to study this chapter

Do not learn Chapter II as a separate scheme to be memorised. Learn it as the contrast with Chapter I, because that is how it is examined and because the contrast is what makes the New York Convention's achievement visible.

Every section here has a counterpart in Chapter I, and in each case the Geneva version asks more of the winner.

Section 53: the definition, recalled

Chapter 500 works it through. A foreign award under this Chapter is an award on commercial differences under Indian law, made after 28 July 1924, in pursuance of an agreement to which the Geneva Protocol of 1923 applies, between persons of whom one is subject to the jurisdiction of one declared Power and the other to the jurisdiction of another, and in a territory declared by the Central Government.

Note again the extra requirement about the persons, which section 44 does not have.

Section 54: reference to arbitration

Notwithstanding anything contained in Part I or in the Code of Civil Procedure 1908, a judicial authority, on being seized of a dispute regarding a contract made between persons to whom section 53 applies and including an arbitration agreement, whether referring to present or future differences, which is valid under that section and capable of being carried into effect, shall refer the parties on the application of either of them or any person claiming through or under him to the decision of the arbitrators; and such reference shall not prejudice the competence of the judicial authority in case the agreement or the arbitration cannot proceed or becomes inoperative.

Two differences from section 45. The agreement must be valid and capable of being carried into effect, put as a positive requirement rather than as an exception. And the closing words expressly preserve the court's competence if the arbitration cannot proceed or becomes inoperative, so the reference is not a final surrender of jurisdiction.

Section 55: when binding

Word for word the same as section 46. An award which would be enforceable under the Chapter is binding for all purposes between the persons as between whom it was made, may be relied on by way of defence, set off or otherwise, and references to enforcing include references to relying on the award.

In one line

Conciliation is a neutral third person helping two parties reach their own settlement, and in India it has a complete statutory code of its own in Part III of the arbitration Act.

In exam wording: Part III of the Arbitration and Conciliation Act 1996, sections 61 to 81, applies to the conciliation of disputes arising out of legal relationships, whether contractual or not, section 62 governing the commencement of proceedings and sections 63 and 64 the number and appointment of conciliators.

What conciliation is, and how it differs from what surrounds it

Conciliation is a process in which a neutral third person, the conciliator, assists the parties to reach an amicable settlement of their dispute. The conciliator decides nothing. Whatever emerges is what the parties themselves agree.

Set that against the two things it is most often confused with.

Against arbitration. An arbitrator adjudicates: he hears both sides and makes an award that binds them whether they like it or not. A conciliator cannot impose anything. Chapter 10 makes the general distinction.

Against mediation. This is harder in India than elsewhere, and chapter 590 works it through properly. In the international literature a mediator is often described as purely facilitative, helping the parties talk, while a conciliator may be more active and propose terms. Indian law reflects that: section 67(4) expressly permits a conciliator to make proposals for a settlement at any stage. But the two words have also been used interchangeably in Indian statutes for decades, so do not build too much on the label alone.

The reason Part III matters is that it makes conciliation worth doing. A settlement reached in an unstructured negotiation is a contract; a settlement reached under Part III has, by section 74, the same status and effect as an arbitral award on agreed terms, which means it is enforceable as a decree. Chapter 570 works that through.

Section 61: what Part III applies to

Section 61(1): save as otherwise provided by any law for the time being in force and unless the parties have otherwise agreed, this Part shall apply to conciliation of disputes arising out of legal relationship, whether contractual or not, and to all proceedings relating thereto.

Section 61(2): this Part shall not apply where by virtue of any law for the time being in force certain disputes may not be submitted to conciliation.

Three points.

"Whether contractual or not" matches section 7(1) for arbitration agreements. The relationship need not be a contract.

"Unless the parties have otherwise agreed" makes Part III a default code. Parties may adopt their own conciliation rules, or an institution's.

Section 61(2) is the conciliation counterpart of section 2(3), chapter 250. Just as some disputes cannot be arbitrated, some cannot be conciliated, and the Act defers to other laws rather than making its own list.

In one line

The conciliator collects each side's case, meets them together or separately, and may put forward his own proposals for settling, but he must tell each side what the other has told him unless it was given in confidence.

In exam wording: sections 65 to 72 of the Arbitration and Conciliation Act 1996 govern the conduct of a conciliation, section 67 defining the role of the conciliator and empowering him to make proposals for a settlement at any stage.

Section 65: the statements

Section 65(1): the conciliator, upon his appointment, may request each party to submit a brief written statement describing the general nature of the dispute and the points at issue. Each party shall send a copy to the other party.

Section 65(2): the conciliator may request a further written statement of the party's position and the facts and grounds in support, supplemented by documents and other evidence. Again each party shall send a copy to the other party.

Section 65(3): at any stage, the conciliator may request a party to submit such additional information as he deems appropriate.

Explanation: in this section and all the following sections of this Part, the term "conciliator" applies to a sole conciliator, two or three conciliators, as the case may be.

Note the drafting: "may request". Nothing here is compulsory in the way section 23 is for an arbitration. And note the repeated obligation to copy the other party, which is the first appearance of the transparency principle that section 70 completes.

Section 66: free of the Code and the Evidence Act

The conciliator is not bound by the Code of Civil Procedure 1908 or the Indian Evidence Act 1872.

Identical in effect to section 19(1) for an arbitral tribunal, chapter 320, and for the same reason: a settlement process cannot be run on the rules of a trial.

Section 67: the role, and the four sub-sections that define conciliation

This is the central section of Part III.

Section 67(1): the conciliator shall assist the parties in an independent and impartial manner in their attempt to reach an amicable settlement of their dispute.

Read the words carefully. He assists; the attempt is theirs; the outcome is an amicable settlement, not a decision. That single sentence tells you he is not an adjudicator.

Section 67(2): he shall be guided by principles of objectivity, fairness and justice, giving consideration to, among other things:

• the rights and obligations of the parties;
• the usages of the trade concerned; and
• the circumstances surrounding the dispute, including any previous business practices between the parties.

Compare section 28(3) for an arbitral tribunal, chapter 350, which requires it to take into account the terms of the contract and trade usages. The conciliator's list is wider and softer: it includes previous business practices between these parties, which no court would treat as governing a contract but which is exactly what makes a commercial settlement possible.

In one line

When the parties sign a conciliation settlement, it becomes as good as an arbitral award, which means it can be enforced like a decree.

In exam wording: section 73 of the Arbitration and Conciliation Act 1996 prescribes the procedure by which a settlement agreement is formulated, signed and authenticated, and section 74 provides that it shall have the same status and effect as if it were an arbitral award on agreed terms rendered under section 30.

Section 73: four steps, and every one of them matters

Section 73(1): when it appears to the conciliator that there exist elements of a settlement which may be acceptable to the parties, he shall formulate the terms of a possible settlement and submit them to the parties for their observations. After receiving the observations of the parties, the conciliator may reformulate the terms of a possible settlement in the light of such observations.

Section 73(2): if the parties reach agreement on a settlement of the dispute, they may draw up and sign a written settlement agreement. If requested by the parties, the conciliator may draw up, or assist the parties in drawing up, the settlement agreement.

Section 73(3): when the parties sign the settlement agreement, it shall be final and binding on the parties and persons claiming under them respectively.

Section 73(4): the conciliator shall authenticate the settlement agreement and furnish a copy thereof to each of the parties.

Set the steps out as a sequence, because that is how the case below tests them:

1. The conciliator formulates terms of a possible settlement and submits them to the parties for observations.
2. He may reformulate in the light of those observations.
3. The parties draw up and sign a written settlement agreement; he may draw it up or assist if requested.
4. On signature, it is final and binding on the parties and those claiming under them.
5. He authenticates it and furnishes a copy to each party.

Notice where the binding force comes from. Not from the conciliator's view, not from his formulation, not from his authentication: from the parties' signatures under sub-section (3). Authentication under sub-section (4) is a duty that follows; it is not what creates the agreement.

Notice also the direction of travel in sub-section (1). The conciliator submits terms to the parties for their observations, and may then reformulate. He is not handing down a decision; he is testing a draft.

Section 74: the effect, in one sentence

The settlement agreement shall have the same status and effect as if it is an arbitral award on agreed terms on the substance of the dispute rendered by an arbitral tribunal under section 30.

This is the most consequential sentence in Part III, and it works by a chain of references that a good answer sets out explicitly:

In one line

What is said in a conciliation stays there, the conciliator can never later be the arbitrator or a witness, and either party can walk out at any time.

In exam wording: sections 75 to 81 of the Arbitration and Conciliation Act 1996 govern confidentiality, the termination of conciliation proceedings, resort to arbitral or judicial proceedings, costs and deposits, the role of the conciliator in other proceedings, and the admissibility of evidence in other proceedings.

Why these seven sections are the ones that make conciliation work

Chapter 560 explained that a conciliator may meet one party alone, and may propose terms. That only works if the parties can speak freely, and they will only speak freely if they know two things:

• that what they say will not be repeated, which is section 75; and
• that what they say cannot be used against them if the conciliation fails, which is sections 80 and 81.

Without those, no sensible party would make a concession in a conciliation, because every concession would be evidence of weakness in the litigation that follows.

So this chapter is not housekeeping. It is the reason the process is capable of producing settlements at all.

Section 75: confidentiality

Notwithstanding anything contained in any other law for the time being in force, the conciliator and the parties shall keep confidential all matters relating to the conciliation proceedings. Confidentiality shall extend also to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.

Three points.

It binds the conciliator and the parties, and it covers all matters relating to the proceedings, not merely what was said at a meeting.

It extends to the settlement agreement itself, with one exception: disclosure necessary for purposes of implementation and enforcement. A party enforcing the settlement obviously has to produce it.

The non obstante clause puts it above other laws.

Compare section 42A for arbitration, chapter 430, inserted only in 2019 and drafted in almost the same words. Conciliation has had a confidentiality provision since 1996; arbitration waited twenty-three years for one. That is worth a sentence in an answer about the design of the Act.

Section 76: how a conciliation ends

The proceedings shall be terminated:

• (a) by the signing of the settlement agreement by the parties, on the date of the agreement;
• (b) by a written declaration of the conciliator, after consultation with the parties, that further efforts at conciliation are no longer justified, on the date of the declaration;
• (c) by a written declaration of the parties addressed to the conciliator that the proceedings are terminated, on the date of the declaration; or
• (d) by a written declaration of a party to the other party and the conciliator, if appointed, that the proceedings are terminated, on the date of the declaration.

In one line

Mediation is a neutral third person helping two parties reach their own settlement, and in India it is the hardest of the ADR words to pin down because our statutes have used it and conciliation almost interchangeably.

In exam wording: mediation is a voluntary process in which a neutral third person, the mediator, assists the parties to a dispute to reach an amicable settlement, without any power to adjudicate or to impose an outcome.

The definition, and where it now comes from

Until 2023 no Indian statute defined mediation. Section 3(h) of the Mediation Act 2023 now does, describing mediation as a process, whether referred to by expressions such as mediation, pre-litigation mediation, online mediation, community mediation, conciliation or an expression of similar import, whereby parties seek an amicable resolution of their dispute with the assistance of a third person, the mediator, who does not have the authority to impose a settlement upon the parties.

Read the words in the middle: the definition expressly includes conciliation within mediation. Parliament, drafting in 2023, treated the two as the same family rather than trying to separate them. That is the best guide a student has, and it is the safest thing to say in an answer.

But section 3 of the Mediation Act is itself in force while the operative sections around it are not, which is chapter 620's subject. Use the definition; do not assume the Act's machinery is running.

The classical distinction, and how far it holds in India

The textbook distinction is between two models of what a neutral does.

Facilitative mediation. The mediator manages the conversation, tests each side's case privately, and helps the parties construct their own solution. He does not offer a view on the merits and does not propose terms.

Evaluative mediation, and conciliation. The neutral goes further: he assesses the strengths and weaknesses, tells the parties what he thinks, and may put forward terms.

Indian statute reflects that split in one place, and it is the sentence to cite: section 67(4) of the Arbitration and Conciliation Act 1996 provides that the conciliator may, at any stage, make proposals for a settlement, and that those proposals need not be in writing and need not be accompanied by reasons. Chapter 560 works it through. A purely facilitative mediator would not do that.

Do not overstate it. Three things cut against a clean division in India:

• Section 30 of the 1996 Act, chapter 370, lets a tribunal use "mediation, conciliation or other procedures", treating them as alternatives of the same kind.
• Section 89 of the Code of Civil Procedure lists both as separate options, and, as chapter 600 shows, the Supreme Court found its definitions of two of them to have been interchanged by a drafting error.
• The Mediation Act 2023 definition folds conciliation into mediation outright.

In one line

A civil court that thinks a case might settle must formulate terms, give them to the parties, and send the dispute to arbitration, conciliation, a Lok Adalat, judicial settlement or mediation.

In exam wording: section 89 of the Code of Civil Procedure 1908, inserted by the Code of Civil Procedure (Amendment) Act 1999 with effect from 1 July 2002, empowers a court to refer a dispute for settlement outside the court by any of the four modes it specifies.

Why this section ties the whole subject together

Every other chapter in this book teaches one method. Section 89 is the door through which a pending case reaches any of them.

Look at what one sentence of the Code can do. A suit in a civil court can be sent to arbitration under the 1996 Act, Module II; to conciliation under Part III of the same Act, chapters 550 to 580; to a Lok Adalat under the Legal Services Authorities Act 1987, Module I; to judicial settlement; or to mediation. It is the single provision that makes the syllabus one subject rather than four.

Section 89(1): what the court must do

Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for:

• (a) arbitration;
• (b) conciliation;
• (c) judicial settlement including settlement through Lok Adalat; or
• (d) mediation.

Notice the opening words. They are taken almost verbatim from section 73(1) of the Arbitration and Conciliation Act, chapter 570: "when it appears to the conciliator that there exist elements of a settlement which may be acceptable to the parties, he shall formulate the terms of a possible settlement and submit them to the parties for their observations."

And that borrowing is itself a difficulty, which chapter 570's structure explains. Section 73 describes what a conciliator does at the end of a conciliation, when he already knows the case. Section 89 asks a judge to do it at the beginning, before evidence. Afcons, below, is the case that made the section workable in the face of that.

Section 89(2): what happens after the reference

• (a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act 1996 shall apply as if the proceedings were referred for settlement under that Act;
• (b) to Lok Adalat, the Court shall refer it in accordance with section 20(1) of the Legal Services Authorities Act 1987, and all other provisions of that Act shall apply;
• (c) for judicial settlement, the Court shall refer it to a suitable institution or person, and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authorities Act shall apply as if the dispute were referred to a Lok Adalat; and
• (d) for mediation, the Court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.

In one line

A commercial suit that does not need an urgent interim order cannot be filed at all until the plaintiff has tried mediation, and a plaint filed without it must be rejected.

In exam wording: section 12A of the Commercial Courts Act 2015, inserted by the Commercial Courts (Amendment) Act 2018 with effect from 3 May 2018, requires a plaintiff who does not contemplate urgent interim relief to exhaust the remedy of pre-institution mediation before instituting a suit.

Why this is the exception to everything else in the Module

Every other form of ADR in this subject depends on consent. A conciliation cannot start without a written acceptance, chapter 550. A Lok Adalat can only record what the parties agree, chapter 120. Even an arbitration rests on an agreement, chapter 230.

Section 12A is different. It makes mediation a condition precedent to the right to sue. A plaintiff who has not tried it does not get through the door.

And it is the clearest illustration of a point chapter 10 makes: "alternative" does not mean optional.

Section 12A(1): the requirement

A suit, which does not contemplate any urgent interim relief under this Act, shall not be instituted unless the plaintiff exhausts the remedy of pre-institution mediation in accordance with such manner and procedure as may be prescribed by rules made by the Central Government.

Three elements.

"A suit ... under this Act." It applies to a commercial dispute of a Specified Value under the Commercial Courts Act, not to civil suits generally.

"Which does not contemplate any urgent interim relief." This is the exception and it is where the litigation is. A plaintiff who genuinely needs an urgent interim order may file at once. A plaintiff who pleads urgency to escape mediation is doing something the courts examine closely.

"Shall not be instituted unless the plaintiff exhausts the remedy." Not "should try", but exhausts. The plaintiff must go through the process; it is not enough to have offered.

Section 12A(2): who conducts it

The Central Government may, by notification, authorise the Authorities constituted under the Legal Services Authorities Act 1987 for the purposes of pre-institution mediation.

This is why the chapter belongs to Module I as much as Module III. The mediation is not run by a private mediator or a commercial institution: it is run by the legal services authorities whose constitution chapters 40 to 60 set out, under the machinery Module I teaches. The Government confirmed the same thing to the Lok Sabha in February 2026, describing the mechanism as one under which the parties must first exhaust pre-institution mediation before approaching the court.

Section 12A(3): the time limits

Notwithstanding anything contained in the Legal Services Authorities Act 1987, the Authority shall complete the process of mediation within a period of three months from the date of application made by the plaintiff under sub-section (1).

In one line

India now has a standalone mediation statute, and the part of it that actually does the mediating has never been brought into force.

In exam wording: the Mediation Act 2023, Act 32 of 2023, received assent on 14 September 2023 and provides a comprehensive framework for mediation in India; by notification S.O. 4384(E) dated 9 October 2023 only certain of its provisions were brought into force under section 1(3).

Start with the commencement, because everything depends on it

This is the most important paragraph in Module III, and almost every free set of notes on this subject gets it wrong.

Section 1(3) provides that the Act shall come into force on such date as the Central Government may, by notification, appoint, and that different dates may be appointed for different provisions.

The footnote to that sub-section in the consolidated text records the whole of what has been done:

9th day of October, 2023, vide notification No. S.O. 4384(E), for Ss.1, 3, 26, Ss.31 to 38 (both inclusive), Ss. 45 to 47 (both inclusive), Ss. 50 to 54 (both inclusive), and Ss.56 to 57 (both inclusive), dated 9th October, 2023, see Gazette of India, Extraordinary, Part II, sec. 3(ii).

Set that list against the Act's own arrangement of sections and see what is missing:

So sections 4 to 25 are not in force, and they are the subject. That is the mediation agreement, pre-litigation mediation (s.5), disputes not fit for mediation (s.6), reference by a court (s.7), the appointment and conduct provisions (ss.8 to 18), the mediated settlement agreement (s.19), confidentiality (s.22), and termination and costs (ss.24, 25). Sections 27 to 30, enforcement, challenge, limitation and online mediation, are not in force either.

What is in force is the institutional half: the definitions, and the Mediation Council with its Fund, rules and regulations.

The Government's own confirmation

The consolidated print is dated "as on the 6th October, 2025", so it cannot by itself prove the position today. Two answers in Parliament, four months more recent, do.

In one line

Negotiation is the parties settling a dispute by talking to each other, with no neutral in the room, and it is the only ADR method with no statute behind it.

In exam wording: negotiation is a consensual process in which the parties to a dispute, by themselves or through their representatives, communicate directly with a view to reaching a mutually acceptable settlement, without the intervention of any third person.

Why a law syllabus teaches a skill

Because it is the one every lawyer uses every week and almost nobody is taught.

Look at the other methods in this book. Mediation and conciliation are negotiation with help. A Lok Adalat is negotiation with a bench encouraging it. Even an arbitration usually ends in a settlement, and section 30 of the Arbitration and Conciliation Act 1996, chapter 370, exists to let the tribunal encourage one. Negotiation is what all of them are made of.

And this is a clinical paper, so the examiner may fairly ask what a lawyer actually does, not only what the process is called.

No statute, and what follows from that

There is no Negotiation Act. Nothing prescribes how it is conducted, who may do it, or how long it takes.

Three consequences, and each is examinable.

Nothing said in a negotiation is protected by any statutory confidentiality. Contrast section 75 of the 1996 Act for conciliation, chapter 580, and section 81, which keeps admissions and proposals out of later proceedings. A negotiation has neither, unless the parties create the protection themselves by agreement or by marking correspondence appropriately.

Nothing that emerges binds until it becomes a contract. Contrast a conciliation settlement, which by section 74 takes the status of an arbitral award, chapter 570; a Lok Adalat award, which by section 21 of the Legal Services Authorities Act is deemed a decree, chapter 120; and a section 12A settlement, chapter 610.

And nobody can be compelled to negotiate, or to continue.

So the whole legal content of this topic is at the two ends: protecting the discussion, and making the outcome stick. The middle is skill.

The two approaches

Distributive negotiation, sometimes called positional or zero-sum. The parties treat the dispute as a fixed quantity to be divided: every rupee one gains the other loses. Each opens high, concedes slowly, and they meet somewhere. Most money-only claims are negotiated this way.

Integrative negotiation, sometimes called principled or interest-based. The parties look behind their stated positions to their underlying interests, and try to find terms that serve both. It works where more than money is available.

The distinction that makes integrative negotiation possible is position against interest. A position is what a party says it wants. An interest is why it wants it. Two parties can have irreconcilable positions and compatible interests, and that gap is where settlements are found.

In one line

Counselling is the lawyer sitting with a client, finding out what has actually happened and what the client actually wants, and advising on the options, one of which is always not to sue.

In exam wording: counselling, in the sense in which it appears in a clinical legal education syllabus, is the process by which a legal practitioner interviews a client, identifies the legal and non-legal dimensions of the problem, advises on the available courses of action and their consequences, and assists the client to make an informed choice.

Why it closes Module III

Look at the order of MU's topics: foreign awards, conciliation, mediation and negotiation, and then counselling.

The first four are all things done after a dispute has been framed as a dispute. Counselling is what happens before any of them, and it is where the choice between them is made. A client does not arrive asking for arbitration. A client arrives upset. Turning that into a legal problem, and then into the right process, is the lawyer's first task and the subject of this chapter.

It is also the point at which the whole of this book becomes usable. A lawyer who knows Modules I to III and cannot counsel a client will send every case to court.

Counselling and advice are not the same

Legal advice is telling the client what the law is: your claim is time-barred; this clause is an arbitration agreement; the notice was bad.

Counselling is wider. It includes the advice, and adds the process by which the lawyer:

• finds out the facts, including the ones the client did not think mattered;
• identifies what the client actually wants, which is often not what the client first asks for;
• sets out the options, legal and non-legal, with their cost, time and risk; and
• helps the client decide, without deciding for them.

Nor is it therapy. A client in a matrimonial or family dispute may need emotional support, and the lawyer is not qualified to supply it. The boundary is at the end of this chapter.

Where it appears in the statutes this book teaches

There is no Counselling Act, but the idea appears in three places already met, and citing them shows the examiner this is a legal topic and not a soft one.

Section 2(1)(c) of the Legal Services Authorities Act 1987, chapter 80: "legal service" includes the rendering of any service in the conduct of any case ... and the giving of advice on any legal matter. A person entitled under section 12 can come for advice alone, with no case at all. That is counselling, funded by the State.

In one line

A law article answers one question that the law has not yet settled, argues one position on it, and proves every step from sources the reader can check.

In exam wording: legal writing is the presentation of legal analysis in a form that can be verified by the reader, and an article differs from an essay in that it advances a claim which the author accepts could be shown to be wrong.

What an article is not

Start here, because the commonest failure in a student article is not bad writing. It is that no claim was made.

It is not a summary of the law. A description of what section 89 of the Code of Civil Procedure says is a note, not an article. If a reader can get the same content from the bare Act, nothing has been written.

It is not a collection of what other people have said. Ten paragraphs beginning "According to Sharma" and ending "thus we can see" is a literature review, and even that has to end somewhere.

It is not an opinion piece. "Arbitration in India is very slow and something must be done" states a mood. An article states a proposition, and the proposition has to be one that a reader could disagree with on the law.

It is not neutral. An article that carefully sets out both sides and then stops has done half a job. A judgment is neutral until the end; an article takes a position from the beginning and spends its length defending it.

The one thing an article must have: a research question

Everything else follows from this, so get it right before writing a sentence.

A research question is a question about the law that:

• can be answered, so not "is arbitration fair";
• is not already answered, so not "is a Lok Adalat award appealable", which section 21 of the Legal Services Authorities Act settles in a line;
• is narrow enough to answer in the space you have, so not "should India reform arbitration";
• and matters to somebody, so the article can say who is affected by the answer.

Compare three attempts at the same subject:

The third is a real article. Notice that it names the section, states two possible answers, and could be got wrong.

In one line

A case comment takes one judgment, states exactly what it decided, and then says whether the court was right and what follows.

In exam wording: a case comment is a short critical analysis of a single decision, distinguishing the material facts, the issue, the ratio decidendi and the obiter dicta, and evaluating the reasoning and its consequences.

The four things a comment must do

A comment that does the first two and stops is a summary, and that is the mark students most often lose.

1. Report what the court decided, accurately and briefly.
2. Separate the ratio from the rest, which is the technical skill being tested.
3. Evaluate the reasoning: is it right, is it consistent with what came before, does it prove what it claims.
4. Say what follows: for litigants, for lower courts, for the statute, for the next case.

Ratio and obiter: getting this right is the whole exercise

Ratio decidendi is the rule of law on which the decision actually rests. It is what binds under Article 141 of the Constitution.

Obiter dictum is anything the court said that the decision did not need. It persuades; it does not bind.

The practical test is subtraction. Take the proposition out. Could the court still have reached the same result? If yes, it is obiter. If the result collapses, it is ratio.

Two traps:

The headnote is not the ratio. Headnotes are written by reporters, not judges, and they compress. A comment that argues with a headnote argues with a stranger.

Length is not weight. A court can spend twenty paragraphs on history and one on the point that decides the case. Chaufal spends most of its length on the three phases of public interest litigation, and its operative holding is eight numbered directions near the end.

The shape of a comment

Journals vary; this shape is safe.

1. Heading. Case name, citation, court, date, bench. Nothing else.

2. Facts, in a paragraph. Only the material facts, meaning the ones the decision turns on. If a fact could change without changing the outcome, leave it out.

3. The issue, as a question. One sentence, framed so it can be answered yes or no or in one of two ways. Getting the issue wrong makes everything after it wrong.

4. The decision and the reasoning. What the court held and why, in its own structure. Quote sparingly and exactly.

5. Analysis. The part that makes it a comment. Was the reasoning sound? Does it fit the earlier authorities? Did the court answer the question it set itself? Was there a better route to the same result?

6. Consequences. What changes now.

7. Conclusion. Two or three sentences.

In one line

Editing a law journal means deciding what gets published, making sure it is true, making sure it is the author's own, and getting the issue out on time.

In exam wording: the editorial function comprises selection, peer review, substantive and technical editing, enforcement of house style and citation format, screening for plagiarism, and production of the issue.

Why this is on a law syllabus at all

Two reasons, one of which surprises students.

Most law colleges run a journal, and the editorial board is made of students. This is one of the few topics in the course that a reader may have to do next month.

And an advocate is expressly permitted to do it. Rule 51 of the Bar Council of India Rules, in the Section headed "Restriction on other Employments", provides that an advocate may review Parliamentary Bills for a remuneration, edit legal text books at a salary, do press-vetting for newspapers, coach pupils for legal examination, set and examine question papers, and, subject to the rules against advertising and full-time employment, engage in broadcasting, journalism, lecturing and teaching.

Read that against Rule 47, which says an advocate shall not personally engage in any business, and Rule 49, which says he shall not be a full-time salaried employee of anyone while he continues to practise. Editorial work is one of the narrow things the Rules carve out. It is legitimate professional activity for an advocate, and chapter 780 explains why the carve-out has to be read strictly.

Who does what

A journal is not one job. Learn the roles, because an exam question on "editing a law journal" is usually asking for them.

Patron or Chief Patron. Usually the Vice Chancellor or Principal. Lends standing; does not edit.

Editor in Chief. Answerable for what is published. Decides in the last resort, sets the direction of the volume, and takes the consequences when something goes wrong.

Editorial Board. Academics and practitioners, often from other institutions. Their names on the masthead are a claim about quality, so a board that never meets is a misrepresentation.

Managing Editor. Runs the process: the calendar, the submissions, the correspondence with authors, the printer. This is the job that decides whether the issue appears.

Peer reviewers or referees. Outside experts who assess a submission on its merits. Usually anonymous.

Copy editors. Style, grammar, citations, consistency.

Student editors. In a college journal, most of the above. In many Indian law schools the journal is entirely student run, with a faculty adviser.

The submission's journey

This sequence is the answer to "describe the editorial process".

1. Submission and acknowledgement. Log it, give it a number, acknowledge receipt with a date. An unacknowledged submission is how a journal loses an author permanently.

In one line

Public interest litigation is a case brought by someone who has suffered no injury himself, on behalf of people who have and who cannot come to court.

In exam wording: public interest litigation is the exercise by the Supreme Court under Article 32 and by the High Courts under Article 226 of their writ jurisdiction at the instance of a public spirited person acting pro bono publico, the traditional requirement of locus standi having been relaxed for persons unable by reason of poverty, helplessness, disability or a socially or economically disadvantaged position to approach the court themselves.

The problem it was invented to solve

The old rule was simple: only a person whose own legal right has been infringed may sue. It has an obvious virtue, which is that it keeps strangers out of other people's disputes.

It also has an obvious consequence. The people whose rights are violated most severely are the least able to come to court. An undertrial who has been in jail longer than his maximum sentence cannot file a writ petition. A bonded labourer in a stone quarry cannot instruct counsel. If only the injured may sue, and the injured cannot sue, the right is real and the remedy is not.

Public interest litigation is the answer the Supreme Court gave to that. Everything else about it follows from this one problem, and an answer that starts anywhere else has started in the wrong place.

The constitutional text it is built on

Read the words, because two of the leading cases turn on them.

Article 32(1): the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

Article 32(2): the Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by Part III.

Article 226(1): notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs, including the five writs, for the enforcement of any of the rights conferred by Part III and for any other purpose.

Three things to notice, and each is worth a mark:

Article 32(1) says "appropriate proceedings" and stops. It prescribes no form. That is the hook on which the whole jurisdiction hangs, and Bandhua Mukti Morcha says so expressly.

Article 32 is itself a fundamental right. It sits in Part III, and Article 32(4) says the right shall not be suspended except as the Constitution provides.

In one line

Researching a public interest petition means proving four things before you draft: that the facts are true, that a legal duty has been broken, that the person bringing it may bring it, and that no court is already dealing with it.

In exam wording: research for public interest litigation consists in the establishment of the factual foundation by documentary and official sources, the identification of the constitutional or statutory duty breached, the verification of the petitioner's standing and bona fides, and the ascertainment of prior or parallel proceedings, before the petition under Article 32 or Article 226 is drawn.

Why this is a research problem and not a drafting problem

In an ordinary suit the plaintiff knows the facts. He was there. He has the contract, the notice, the receipt.

In a public interest petition the petitioner was not there. He read about it, or was told, or noticed a pattern. The people who know the facts are the ones who cannot come to court. So the whole difficulty of the exercise sits in the first stage, and everything else follows from it.

And since Balwant Singh Chaufal, chapter 730, this is not merely good practice. Direction 3 requires the court to prima facie verify the credentials of the petitioner, direction 4 to be prima facie satisfied regarding the correctness of the contents of the petition, and direction 5 to be fully satisfied that substantial public interest is involved. A petition that cannot survive those three questions at the threshold will not be entertained, however serious the grievance behind it.

The five stages

Stage 1: state the wrong in one sentence

Before any research, write the wrong as a single sentence naming who is affected, what is being done or not done, and by whom.

• Weak: "There is a problem with sanitation in municipal schools."
• Strong: "Children in the 41 municipal schools of X ward have had no functioning toilets since June 2025 because the municipal corporation has not renewed the cleaning contract."

The strong version can be researched. Each of its three parts is checkable, and each will need a document. The weak version cannot be researched at all, because nothing in it is capable of being proved or disproved.

Stage 2: establish the facts

A newspaper report is a starting point, not a fact. It tells you where to look. A petition annexing only press clippings invites the court to ask direction 4's question and get no answer.

Sources that carry weight, in roughly descending order:

1. The public authority's own records: sanction orders, tender documents, inspection reports, budget allocations and utilisation, minutes. These are the best evidence there is, because the respondent cannot dispute its own file.
2. Statutory returns and published data: audit reports, annual reports, data the authority is required by law to publish.
3. Reports of statutory or constitutional bodies: the Comptroller and Auditor General, a Human Rights Commission, a Law Commission.
4. Affidavits of the persons affected, or of those who work with them. First-hand, and the only source that speaks to conditions rather than paperwork.
5. Photographs, video and site records, with the date and place established.
6. Press reports, as corroboration and as evidence that the matter is in the public domain.

In one line

The skill is not searching. The skill is knowing which of the results is the law, and whether the copy in front of you is the current one.

In exam wording: the professional use of computers and the internet in legal work consists in the identification of authoritative primary sources, the verification that a statutory text is the amended and commenced text, and the confirmation that a judgment relied on has not been overruled or stayed.

The hierarchy of sources

Learn this before any website, because it decides what a search result is worth.

Primary sources. The law itself: the bare Act as published by the Government, the Gazette notification, the rules, and the judgment as delivered. These are the only things you may cite as the law.

Secondary sources. Commentary about the law: textbooks, journal articles, Law Commission reports, case digests, headnotes. They help you understand and they help you find. A headnote is a secondary source, which is why chapter 710 says never to argue with one.

Neither. Blog posts, exam guides, coaching notes, summary websites, question banks, and the output of a language model. These may point you to a source. They are not one, and a citation to them in a court, a journal or an answer script is worth nothing.

The rule that follows: a search finds a pointer; the citation must be to what the pointer points at. Every one of the failures below is a version of somebody skipping that step.

The free official sources, in order of usefulness

Each of these was used to build this book, and each was checked as working on the date this chapter was written.

India Code, indiacode.gov.in. The Government's repository of central Acts, in consolidated form with amendment footnotes. This is where a bare Act should come from.

The Supreme Court of India, sci.gov.in. Judgments, cause lists, case status and the Court's own rules.

eCourts judgment search, judgments.ecourts.gov.in, and the eCourts services portal at services.ecourts.gov.in. District and High Court judgments and case status.

The National Judicial Data Grid, njdg.ecourts.gov.in. Pendency statistics by court, useful when a petition or an article needs a figure about delay.

The e-Gazette, egazette.gov.in. Where a commencement notification actually lives. This is the source of last resort for whether a section is in force, and chapter 620 exists because of it.

Ministry and department sites, such as the Department of Justice at doj.gov.in and the Legislative Department at legislative.gov.in, for policy documents, parliamentary answers and draft legislation.

NALSA, nalsa.gov.in, for the regulations and schemes behind Module I of this book.

PRS Legislative Research, prsindia.org. Not official, but it tracks Bills through Parliament and is the fastest way to see the legislative history of an Act.

In one line

An electronic record satisfies a legal requirement of writing, an electronic signature satisfies a requirement of signature, and that is what makes filing and hearing a case online possible at all.

In exam wording: sections 4 and 5 of the Information Technology Act 2000 confer legal recognition on electronic records and electronic signatures respectively, and the e-Courts project of the Government of India, implemented under the e-Committee of the Supreme Court, provides the infrastructure for case information, electronic filing, virtual courts and hearings by video conferencing.

Why an Act of 2000 is the foundation

Every legal system runs on two requirements that predate computers: that certain things be in writing and that documents be signed. Neither is satisfied by a file on a screen unless a statute says so.

Section 4, legal recognition of electronic records. Where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, that requirement shall be deemed to have been satisfied if the information or matter is:

• (a) rendered or made available in an electronic form; and
• (b) accessible so as to be usable for a subsequent reference.

Read clause (b) carefully, because it is the condition students omit. An electronic record does not satisfy the requirement merely by existing. It must be accessible so as to be usable for a subsequent reference, which is why a format nobody can open later, or a document that cannot be retrieved, is not a record for this purpose.

Section 5, legal recognition of signatures. Where any law provides that information or any matter shall be authenticated by affixing the signature, or that a document shall be signed or bear the signature of a person, then, notwithstanding anything in such law, that requirement is deemed satisfied if the information or matter is authenticated by means of an electronic signature affixed in such manner as may be prescribed by the Central Government.

Explanation to section 5: "signed", with its grammatical variations and cognate expressions, means, with reference to a person, affixing of his hand written signature or any mark on any document, and "signature" is construed accordingly.

The word that changed: digital to electronic

This is a small point of legislative history worth knowing, because it is the difference between the Act as printed in 2000 and the Act as it stands.

As enacted, section 5 was headed "Legal recognition of digital signatures" and spoke of a digital signature. Section 2 of the Information Technology (Amendment) Act 2008, Act 10 of 2009, substituted the words "electronic signature" for "digital signature" in a table of provisions, of which entry 2 is "section 5 and its marginal heading".

In one line

A law office is a system for making sure that every file has an owner, every date is in a diary, and the client's money is never mixed with the office's.

In exam wording: law office management comprises the organisation of case files and records, the maintenance of a cause and limitation diary, the keeping of client accounts in accordance with the Bar Council of India Rules, conflict checking, engagement and fee terms, and the supervision of staff and juniors.

Who may run one: the statutory frame

Three sections of the Advocates Act 1961 define who is in the office at all.

Section 29: subject to the Act and the rules, there shall, from the appointed day, be only one class of persons entitled to practise the profession of law, namely, advocates.

Section 30: every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which the Act extends, (i) in all courts including the Supreme Court; (ii) before any tribunal or person legally authorised to take evidence; and (iii) before any other authority or person before whom such advocate is by or under any law entitled to practise.

Section 33: except as otherwise provided in the Act or in any other law, no person shall be entitled to practise in any court or before any authority or person unless he is enrolled as an advocate under the Act.

Section 49 is the power under which the Bar Council of India makes the rules that govern the office, including, by section 49(1)(c), the standards of professional conduct and etiquette to be observed by advocates.

Read section 33 against section 30 and the practical consequence for an office appears at once. Clerks, paralegals, article assistants, interns and typists are not advocates. They may prepare, draft, index, file, diarise and organise. They may not practise, and they may not appear. Chapter 780 takes up what happens when an office lets them.

The file

The unit of work in a law office is the file, and the discipline is that a file must be intelligible to somebody who has never seen it. That is not a counsel of perfection; it is the condition under which an office survives a person leaving, falling ill, or being briefed at short notice.

One matter, one file, one number. The file number is how the matter is referred to in the diary, the accounts and the correspondence.

What a file contains, kept in separate parts:

1. The index and the file note. The first page. What the matter is, who the parties are, the court and case number, the stage, the next date, and what is to be done next.
2. Client papers, as received, unaltered, with the date of receipt. Originals separately, and receipted.
3. Pleadings and court documents, in order.
4. Correspondence, chronological.
5. Research and drafts, marked as drafts.
6. The engagement letter and fee record.
7. Accounts, or a cross-reference to the client account ledger.
8. Attendance notes: what the client said, what advice was given, on what date. Below.

In one line

Running a law office is regulated: an advocate may not advertise, may not share a fee with a non-advocate, may not take a share of the result, and may not repeat what a client told him, and section 35 is what happens when he does.

In exam wording: the standards of professional conduct and etiquette prescribed by the Bar Council of India under section 49(1)(c) of the Advocates Act 1961 bind an advocate in the conduct of his practice, and a breach is professional misconduct punishable by the disciplinary committee of the State Bar Council under section 35, subject to appeal under sections 37 and 38.

Advertising: Rule 36, in full

This is the rule students are asked about most, and it is worth having exactly.

Rule 36, in the Section headed "Duty to Colleagues":

An advocate shall not solicit work or advertise, either directly or indirectly, whether by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing or inspiring newspaper comments or producing his photographs to be published in connection with cases in which he has been engaged or concerned. His sign-board or name-plate should be of a reasonable size. The sign-board or name-plate or stationery should not indicate that he is or has been President or Member of a Bar Council or of any Association or that he has been associated with any person or organisation or with any particular cause or matter or that he specialises in any particular type of worker or that he has been a Judge or an Advocate General.

Notice how much is prohibited beyond an advertisement: circulars, touts, unwarranted interviews, inspiring newspaper comment, and publishing photographs in connection with cases. Notice also the second half, which is about the name-plate and stationery and which students routinely forget: no claim to office in a Bar Council or association, no claim of association with a cause, no claim to specialisation, and no reference to having been a Judge or an Advocate General.

The website proviso, added in 2008

The Rule continues:

That this Rule will not stand in the way of advocates furnishing website information as prescribed in the Schedule under intimation to and as approved by the Bar Council of India. Any additional other input in the particulars than approved by the Bar Council of India will be deemed to be violation of Rule 36 and such advocates are liable to be proceeded with misconduct under Section 35 of the Advocates Act, 1961.

The print records that this was added vide Resolution No. 50/2008 dated 24 March 2008.

The Schedule lists what a website may carry:

1. Name
2. Address, telephone numbers, e-mail id
3. (a) Enrolment Number; (b) Date of Enrolment; (c) Name of State Bar Council where originally enrolled; (d) Name of State Bar Council on whose roll the name stands currently; (e) Name of the Bar Association of which the Advocate is a Member
4. Professional and Academic Qualifications
5. Areas of Practice (the Schedule's own example: Civil, Criminal, Taxation, Labour, etc.)