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8. The question is one of moment. Detailed arguments were heard.

Counsel K.L. Varghese and Ramesh Chander have advanced detailed arguments. The arguments stretched over many days. As the concept is new, counsel were requested to research and assist the court. During that period I had occasion to hear Sri. Sreelal Warrier, Advocate, in a programme on the T.V. expressing confident opinion on the disputed question. He was requested to appear as Amicus Curiae and make his submissions also. He accepted the request of the court and has been good enough to express his point of view on the question of law after thorough research.

The crucial question to be decided, I repeat, is whether reference to Arbitrator can be made without the consent or volition of all the parties to a  dispute pending before court.

18. The counsel have advanced detailed arguments. The learned counsel for the petitioners, Sri. Ramesh Chander, formulated the following ten points in support of his contention, that no such reference for arbitration is possible unless the parties agree to such course.

19. Firstly it is emphatically asserted by Mr. Ramesh Chander that it is contrary to the fundamental concepts of law and justice in which we are groomed that a party who wants resolution of his dispute by properly constituted courts can be driven out of court because his advisary or the court thinks that arbitration would be a proper and perhaps the best mode of resolution of the dispute. By the very concept arbitration is resolution of disputes by a private Judge. Such Judge is chosen purely because of the trust and confidence of the parties in the arbitrator or in his dispute resolution skills. Notwithstanding the fact that such person may be appointed by the Chief Justice or his designate under Section 11 even without the consent of the parties the concept remains that the arbitrator is a private Judge chosen by the parties. The process of resolution by  arbitration, as well as the incumbent as arbitrator, must be opted and chosen by the parties in their volition. Agreement of all the contestants is hence fundamental and inevitable in any arbitration. It is so fundamental that an attempt to appoint an arbitrator under Section 89 or to refer the matter for arbitration against the volition or consent of a party who has never agreed to such course must be repelled and resisted. This requirement is non negotiable, he contends.

20. Secondly Mr. Ramesh Chander submits that under Section 9 of the C.P.C. the courts have the power and the citizens have the option to approach the regularly constituted courts to resolve their disputes. It is improper to read the amended Section 89 in such a manner as to deny such power to the court or such right to the litigant. Such an interpretation would amount to infringement of the right to get disputes resolved through court. In that process it would also affect the right to life under Article 21 of the Constitution. This piece of law, if that is the interpretation, cannot pass the test of Article 21 which insists that any law must be just, fair and reasonable and not fanciful, whimsical or arbitrary. Such an interpretation, which would lead to the conclusion that the statutory provision is  unconstitutional, may and must be avoided, submits the learned counsel.