SUPREME COURT Justice Indu Malhotra on Saturday said the judiciary is burdened, and that the solution lies only in having specialised benches to dispose of cases. She also spoke of how matters that go into arbitration sometimes remain pending for years, stating it was time for the bar and bench to work “in tandem in disposal of cases”.
Speaking at the central court of the Bombay High Court in the presence of many HC judges, senior advocates, advocates and law students, Justice Malhotra gave an overview of the changing landscape of arbitration in India.
She also said that while the judiciary is “overburdened”, the solution lies in having specialised benches to dispose of cases.
Justice Malhotra was elevated as a Supreme Court judge in 2018, after practicing as a senior advocate.
“India has done extremely well in the last three years, I must say with pride the World Bank has now rated us at number 77 in ease of business. The government of India has set a target which is to be at number 30,” she said, adding that arbitration would further help ease of doing business and help India meet its target.
Reading from quotations of Justice D A Desai in the Guru Nanak Foundation case, Justice Malhotra said the way arbitrations worked was “really poor”. She added that instead of arbitrations acting as an alternate disputes resolution system, such applications filed in courts remained pending for years.
“I remember coming across cases which have been pending in arbitration for 19-20 years, which is shocking… Arbitrators would only work for couple of hours and adjournments were sought and routinely given. And arbitrators, I must confess as a member of judiciary, would actually treat it as an income post retirement and would be easy to grant adjournment because they would charge by every hearing,” she said.
On the institutionalisation of arbitration, Justice Malhotra said, “We had recommended to set up a centralised flagship institution — the International Centre for Alternative Dispute Resolution now taken over by the government and being set up as New Delhi Arbitration Centre.”
Another recommendation was to train and accredit arbitrators, she said.
“…there are several retired judges of Supreme Court who are appointed to international commercial arbitrations, they get isolated on these tribunals. I was engaged by the Ministry of Petroleum in one of the cases and officers came and told me that India always loses in its arbitration. There are, I think, two-fold reasons — one is that the government is very slow and tardy for various reasons in giving instructions… The second reason is when you retire and become an arbitrator, you must take off the cloak of being a judge. If you remain a judge, you remain in seclusion,” she said.