Judicial Interpretation of Section 89 of the Code of Civil Procedure: Success or Failure?

Abstract

The introduction of Section 89 of the Code of Civil Procedure, 1908 (CPC) under the Amendment Act of 1999, and its implementation in 2002, was among the most ambitious legislative interventions in Indian civil procedure law to institutionalize the ADR mechanisms within the judicial framework. An attempt to ease congestion in an overburdened court system and provide litigants with quicker access to remedy, the provision mandates referral for mediation, arbitration, conciliation, or Lok Adalat where there exists a possibility of settlement. But more than two decades on, the provision continues to be one of the most controversial, judicially rewritten and operationally inconsistent sections in the Code. The paper critically discusses the legislative purpose of Section 89, its judicial reading as determined in leading jurisprudence, the challenge in practice, and how and whether the provision has achieved the purposes it was established to accomplish. As seen through the analysis of the case law, committee reports, and empirical trends of ADR referrals in practice, this article contends that, as currently perceived and implemented, Section 89 embodies only a partial institutional success, its judicial interpretation has been insufficient, and the
provision is a critical procedural failure — which should be rectified urgently (that is, it calls for immediate legislative action and not ad hoc judicial manoeuvre).