INDIA Law and Practice Contributed by: Aditya Jalan, Urvashi Misra, Bhagya K. Yadav and Sushrut Garg, AZB & Partners
concern. A conscious effort is being made by Courts to reduce pendency. India has witnessed a significant shift in opting for alternative dispute resolution mechanisms as opposed to traditional litigation. Apart from the judiciary’s pro- arbitration approach, India has also moved towards establishment of arbitral institutions, introducing reforms to the law to be updated with international standards. This also includes the enactment of the Mediation Act which promotes and facilitates media- tion, especially institutional mediation, for resolution of disputes, commercial or otherwise, enforce medi- ated settlement agreements, provide for a body for registration of mediators, to encourage community mediation and to make online mediation as accept- able and cost effective process and for matters con- nected therewith or incidental thereto. The government of India, through the Department of Justice (DoJ), in collaboration with the eCommittee of the Supreme Court and the High Courts of Delhi, Bombay, Karnataka and Calcutta, has undertaken concerted efforts to ensure the timely disposal of commercial disputes by expanding and strengthen- ing the network of Dedicated Commercial Courts across the country. Recognising that an overburdened docket is the principal impediment to the expeditious resolution of commercial litigation, 14 High Courts have established Dedicated Commercial Courts within their respective jurisdictions, with pecuniary jurisdic- tion extending up to ₹3 lakh, so as to distribute the caseload more equitably and reduce the pressure on individual judges. Another significant approach is the issuance of the Directive for the Efficient and Effective Management of Litigation by Government of India (“Directive”) rep- resents a great step towards ensuring good govern- ance, ensuring public welfare and increasing efficien- cy of the judicial system. This specifically tackles the persistent issue of the government being one of the biggest litigants in India and provides for recommen- dations for government ministries and departments. Key themes from the Directive include: Streamline the administrative processes involved in the conduct of litigation; Reduce litigation of recurrent nature; Reduce anomalies/inconsistencies in statutory or
non-statutory notifications and administrative orders; Reduce unnecessary appeals against orders of the court; Adoption of a sound Knowledge Management System. The Directive is a step in the right direction towards furthering the goals of the B-Ready report. As high- lighted in the B-Ready report, “[a] well-functioning dispute resolution system is therefore essential for a healthy business environment”. While this primarily refers to an effective court system, unnecessary litiga- tion by the government is another source for investor scepticism. Importantly, litigation involving the gov- ernment accounts for 50% of the litigation in India. 2. Litigation 2.1 Limitation Periods The law of limitation in India is primarily governed by the Limitation Act, 1963 (the “Limitation Act”): • for contractual claims, the limitation period is gen- erally three years from the date of breach. Claims in tort generally have for a limitation period of one to three years, depending on nature of injury; • claims for movable property and most commercial transactions generally have a three year limitation period, While immovable property claims range from 12–30 years; • certain claims like defamation must be filed within one year; and • consumer disputes under the Consumer Protection Act, 2019 must generally be filed within two years from the cause of action, with delays condonable for sufficient cause. 2.2 Court Structure The Supreme Court of India is the apex court with original, appellate and advisory jurisdiction as well as wide powers under Article 142 of the Constitution of India, to ensure complete justice. The decisions of the Supreme Court are binding on all lower courts. High Courts are established for each State which exercise appellate and supervisory jurisdiction over all subordinate courts within its territory. Certain High Courts such as Delhi, Bombay, Calcutta, Madras, and
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