India litigation guide
Rahul Chaudhry
Lall Lahiri & Salhotra
Tel: +91 124 2382202; Fax: +91 124 4036823; Website: www.lls.in
India is one of the largest and most stable democratic countries in the world. Emerging from its colonial past, it is seen as being on its way to becoming an economic, military and political power. The economy of India has seen a steady growth this past decade, and is now the fourth largest in the world. The reason for this growth can be attributed to legislative and regulatory reforms of the government, and also upon confidence building measures undertaken to ensure that foreign investors feel secure about investing in India.
The judiciary of any country has an important role to play in ensuring social justice, economic growth and overall well-being of the citizens of that country. Despite the judiciary’s several short-comings, the confidence of the general public in judicial actions remains immense. Recent efforts to modernise and reform the judicial set-up are slowly and steadily reaping results.
The short-comings of the judicial system, for which the judiciary is often maligned, are most commonly the result of misunderstanding and mis-use of the system. Our judges have the authority and the willingness to go beyond merely their duty in order to ensure justice. As has been shown time and time again, the multi-faceted activism of the judiciary has helped in: protecting the environment; granting rights and dignity to under-trials; upholding the rights of women, children, aged and disabled; ensuring proper functioning of business organisations and public sector units; and taking action on curtailment of our right to speak and express ourselves.
One of the biggest obstacles is that a large majority of the population, even today, remains uneducated. However, in order to ensure that the weakest persons are allowed access to justice, several reforms were undertaken during the 1980s and the 1990s that can still be viewed as being helpful. The Legal Services Authorities Act and public interest litigation are now tools well entrenched in the judicial set-up that have allowed thousands of the country’s poorest and most vulnerable access to courts. The formation of informal courts and quasi-judicial fora to hear disputes is a feature that is, in several respects, unique to the country and is often the forum of choice for minor litigations.
India’s judicial set-up can, at times, be seen as an extension of the system prior to 1947. At the time, the number of courts and available judges were few and inadequate, while procedural formalities were complex and numerous. Since then, several legislative, executive and judicial efforts have been made to ensure that access to justice, the ratio of judges to the population of an area, and the time taken to conclude litigation, are such as to ensure easy and swift justice for all.
It was in order to bring about a change in the pace of judicial action that reform was introduced in 2002 through amendment to the Civil Procedure Code. Although legal matters in the country could historically run into years before being finally concluded, most courts have been able to reduce this duration considerably. It is visible from the judicial mood in the country that judges today take a strict view of unnecessary delays for which they are ably aided by new procedural laws.
It is also now much easier, and more profitable, to conduct business in India, as demonstrated by the inflow of foreign businesses and investors. A major contributing factor to this is the presence of not just viable policies and regulations but also the presence of a reliable and just mechanism for dispute settlement. India houses not just specialised tribunals, for areas such as labour and tax disputes, but also a judicial set-up that is constitutionally mandated to balance the various public interests with business interests. This in turn has facilitated the sustainable growth and development of business.
The Arbitration and Conciliation Act of 1996 has provided for alternate measures for dispute settlement and recognises not just Indian but also foreign arbitral awards. Provisions to appeal against arbitration and also to allow members of courts to aid in conducting arbitration are also present. In order to enable swift agreement-based solutions, and move away from a long confrontational approach, the courts encourage litigants to engage in mediation or arbitration. A recent example of this was evident during the recent dispute involving the Ambani brothers, where national interests were at stake with the natural gas of the Krishna Godavari basin. Here the court offered to aid in mediation to arrive at a solution and only thereafter proceed with litigation.
The Constitution of India has provided adequate provisions to ensure independence of the judiciary. As a result, Indian courts are often seen as pioneers in upholding cause of justice in all walks of life.