Section 75 of the Arbitration and Conciliation Act, 1996: Confidentiality in Conciliation Proceedings

Text of Section 75

Meaning of Section 75

Section 75 protects the privacy of statutory conciliation. Its opening non obstante clause gives the confidentiality obligation overriding force against inconsistent requirements under other laws, subject to the legal context in which disclosure is sought.

The phrase "all matters relating to the conciliation proceedings" is broad. It is not confined merely to formal statements or written proposals. The Supreme Court has treated the expression "relating to" as one of wide import when explaining the reach of Section 75.

Who Must Maintain Confidentiality?

The statutory duty expressly applies to both the conciliator and the parties. In practical terms, communications, proposals, admissions, documents and other material connected with the conciliation process should not be disclosed outside the process except where the law permits or requires it.

Confidentiality of the Settlement Agreement

Section 75 expressly extends confidentiality to the settlement agreement itself. However, the Act recognizes that absolute secrecy would make a settlement difficult to implement or enforce. The provision therefore allows disclosure when it is necessary for those purposes.

This should be read with Section 73, which governs the making and signing of a settlement agreement, and Section 74, which gives a qualifying settlement agreement the same status and effect as an arbitral award on agreed terms under Section 30.

Section 75 and Section 81

Section 75 deals with confidentiality. Section 81 separately restricts parties from relying on or introducing specified conciliation material as evidence in arbitral or judicial proceedings. These protections work together but address different questions.

• Section 75 concerns the duty to keep matters relating to conciliation confidential.
• Section 81 concerns the inadmissibility or non-use of specified settlement communications in later proceedings.
• Together, the provisions support candid settlement discussions by reducing the risk that conciliation communications will later be disclosed or used against a party.

Supreme Court Approach to Confidentiality

The Supreme Court has emphasized that confidentiality is central to conciliation and mediation processes. It has recognized that settlement discussions depend upon an atmosphere of trust and that disclosure of confidential communications may undermine the process.

In decisions considering Sections 75 and 81, the Court has also noted the breadth of the statutory wording and the importance of protecting matters connected with conciliation proceedings.

Current Legal Context: Mediation Act, 2023

The Mediation Act, 2023 creates a broader statutory framework for mediation and contains its own detailed confidentiality provisions. Section 22 of that Act protects mediation communications and restricts their use in subsequent proceedings, while allowing disclosure of a mediated settlement agreement where necessary for registration, enforcement or challenge.

The Mediation Act, 2023 also contains consequential amendments concerning the conciliation provisions of the Arbitration and Conciliation Act, 1996. For older or pending conciliation proceedings, transitional and saving provisions may be relevant. The applicable statutory framework should therefore be checked with reference to the date and nature of the proceeding.

Practical Effect of Section 75

• Conciliation discussions should ordinarily remain private.
• Documents and communications relating to the conciliation should not be disclosed casually or for unrelated purposes.
• The settlement agreement is also confidential.
• Disclosure of the settlement agreement is permitted where necessary for implementation or enforcement.
• Section 81 may independently prevent specified conciliation communications from being used as evidence in later proceedings.

Official Legal Sources

For the current statutory text, see the Arbitration and Conciliation Act, 1996 on India Code.

For the newer mediation framework, see the Mediation Act, 2023 on India Code.