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M J Antony: Grin and bear delays

Courts and arbitrators may take their time, but grumbling is prohibited

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Litigants and society in general have become inured to . Decades-old cases no longer shock anyone. Like climate change, the deceleration of the wheels of justice is hardly discernible to the naked eye.

Two judgments delivered last week stood the hackneyed saying, “justice delayed is justice denied”, on its head. The stated that 37 years of prosecution is not sufficient in itself to conclude that the accused people have been deprived of their to speedy trial.

Employing tongue-twisting words appropriate for such reasoning, the court stated that “presumptive prejudice is not a long dispositive of speedy trial claim and must be balanced against other factors...A lengthy delay, which is presumptively prejudicial, triggers the examination of other factors.” Dismissing the petitions of the accused people in the case, vs , the court ordered resumption of the trial. Most witnesses have died and the case file has so far changed the hands of 22 trial judges who could not stop the slide in time. The court has blamed the accused for causing the delay, but if they could manipulate so many judges for so long, the tail can wag the dog.

If this is so in criminal cases, the record of civil courts is worse. Property and partition suits take a lifetime of visiting the courts. In a judgment delivered by the Delhi High Court last week, delays in arbitration was the main argument for quashing the award ( Ltd vs Ltd).

Oil India contended that the arbitral tribunal delivered its verdict three years after the hearings and when there is such an unexplained delay it will give rise to “unnecessary speculations in the minds of parties to a case”. The Supreme Court has criticised high courts for such delays on their parts, sometimes running to many years. Such judgments have been set aside on the grounds of delay alone. If that was the case with high courts, it is applicable with even more force in the case of arbitration, it was contended.

Essar’s reply was that if Oil India had a grievance about the delay, it should have raised the issue earlier, invoking the rules of the Indian Council of Arbitration. By failing to do so, Oil India should be deemed to have waived such objection. The high court agreed with this contention.

The judgment stated that after the reserved the award, and when no award was pronounced for over a year thereafter, the aggrieved company could have persuaded the tribunal to expedite the pronouncement of the award. If that was unsuccessful, it could have filed an application in the court under of the to seek the termination of the mandate of the tribunal on the grounds that there was unreasonable delay in the pronouncement of the award. Section 14 (1) (a) specifically refers to the failure of the arbitrator to act “without undue delay”.

The Supreme Court has dealt with this problem in one of the leading cases, ONGC vs Saw Pipes Ltd (2003). It stated that “it is for the parties to take appropriate action of selecting proper arbitrator(s) who could dispose of the matter within reasonable time fixed by them. It is for them to indicate the time-limit for disposal of the arbitral proceedings. It is for them to decide whether they should continue with the arbitrator (s) who cannot dispose of the matter within reasonable time.”

In the Oil India case, the arbitrators were two former chief justices and one retired puisne judge. There could have been no better choice of legal talent. But they seemed to prove the Supreme Court’s wry remark in a recent judgment, Sanjeev Kumar vs Raghubir: “There is no doubt there is a prevalent opinion that the cost of arbitration becomes very high in many cases where retired judges are arbitrators.”

Long delays keep important issues out of sight and out of mind. For instance, some urgent questions in arbitration law have been referred to a Constitution Bench of the Supreme Court in the 2002 Bhatia International case, but the court has shown no haste to resolve them. Instead, it gave precedence to the problem of incorrect legal reporting mooted by an offended foreign telecom major, and spent two months over it. There are several economic issues crying for early court decision for decades.

These gross cases render the rubric of speedy trial mere rhetoric. Who remembers the appeal lying in the Delhi High Court about the attempted murder of a former Chief Justice of India? It was there for nearly four decades. The trial in the 1993 Bombay blast cases is trundling along in the special court, with no end in sight. All these will climb up the judicial ladder in due time. But remember, no grumbling, and inordinate delay will not be heard as a ground to close the dog-eared files.

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