An enriching discussion was hosted by The Law Forum and EBC on ‘Commercial Disputes Resolution-Challenges and Strategies’, wherein Justice (Retd.) Hemant Gupta, Former Judge, Supreme Court, delivered a captivating address. In this address, he not only delved into the challenges facing both the bar and the bench across the country but also provided personal anecdotes from his illustrious career.
At the outset, Justice Gupta underscored that the laws will come, but unless we change our mindset, we will not improve. He explained that the summary procedure now provided under the Commercial Courts Act, 2015 (the CC Act) was earlier available through Order 37 of the Code of Civil Procedure, 1908 (CPC). He noted that Order 37 was liberally used as it served as an effective tool for adjudicating commercial disputes.
Reflecting on his limited engagement with the CC Act, Justice Gupta recounted his experience during his tenure in Patna, where the Patna District Court had to be designated as a Commercial Court due to the paucity of commercial cases in Bihar. He remarked that Delhi did not represent the broader landscape of Indian litigation. Unlike most of the country, Delhi—being a privileged state and the commercial capital—had access to high-quality commercial litigation, a reality not shared by the rest of India.
He also recounted a peculiar practice of Madhya Pradesh wherein a bail condition was that the accused had to appear before the Court every 6 months. Upon inquiry, Justice Gupta discovered that this practice had evolved to encourage such litigants to pay junior lawyers every time they visited the Court.
Expanding on the disparities in legal practice across India, Justice Gupta highlighted the stark difference in the earnings of lawyers from one state to another. He emphasised that the realities faced by lawyers and litigants varied significantly across regions. Therefore, he argued, the Commercial Courts Act could not be conceived or evaluated solely from the vantage point of Delhi; instead, it must be understood and assessed through a broader, pan-Indian perspective.
He remarked that sometimes, even the parliament or the legislature thinks that they are making laws while keeping Delhi in mind, which makes up for less than 2 percent of the population of India. This was due to the mindset that Delhi is the State that influences the thought process, the legislators, the lawmakers, and the lawyers. Therefore, the ground-level situation had to be kept in mind.
“The lawyers and the Court are the two wheels of the justice dispensing system.”
Traversing the CCs from the Judges’ point of view, Justice Gupta spoke about the transferring system of the judiciary wherein judges are transferred every 3 years from one type of roster to another. Thus, he commented, “We have generalist judges, not specific judges because the system is that every three years, the judicial officer has to change.” He highlighted that this was the issue as there was no guarantee that a judge would continue to have the commercial division for the rest of his life.
Even though the CC Act requires a trained judge to preside over the CC, Justice Gupta expressed that there could not be a dedicated commercial judge because, despite training, he would be transferred every three years. He suggested that continuous mandatory awareness or training had to be provided to the judges to mitigate this concern.
From the lawyers’ perspective , he remarked that while earning a livelihood was always a key motivation, the nature of commercial litigation had undergone significant change. Traditional suits such as reversal suits, declaratory suits, custom suits, civil appeals, possession suits, and pre-emption suits were no longer as prevalent as they once were. As a result, lawyers today no longer needed to rely on prolonging a single case to sustain themselves, as the evolving landscape of litigation provided sufficient and continuous opportunities for legal work.
“If one litigation comes to an end, another litigation will prop up. We have such a huge population, and people will continue to fight. People will have disputes.”
“The nature of disputes may change, but there will be enough butter for everyone. India is a fertile ground for all kinds of litigation.”
Contributing to the topic of non-imposition of costs in India, Justice Gupta recounted that when costs would be imposed in the 1990s, the lawyers would advise the clients to file an appeal to get the cost factor deleted. Thus, there was an intolerance for cost in India. He illustrated that in the USA, people were deterred from litigation due to the high costs that were imposed while delivering the decision. However, in India, the mindset about cost has yet to be changed.
Regarding the issue of case management, he highlighted that though a Supreme Court judgment laid down the rules concerning the case flow arrangement, the problem remained that the legal fraternity wanted to continue working at their own pace. He remarked that the rules were good but not practical. In fact, even in arbitration, the schedules were not adhered to. Thus, it was perhaps the lack of commitment of the bar to the cause.
Lastly, Justice Gupta concluded by suggesting that the system would change with improvement in the legal fraternity’s mindset and change their working style in order to make litigation better.