Blaming the Judiciary is as easy as it is lazy. But it’s also misinformed, misplaced, and irresponsible. Here is why.
A Member of the Prime Minister’s Economic Advisory Council (EAC-PM) called the judiciary the “biggest hurdle” to India’s realization of the “Viksit Bharat” aspirations not so long ago, and tried to back his ragtag “opinion” with frayed and tired tropes of judicial pendencies and court vacations, and topped it with an awfully ill-informed diatribe against the customary practice of addressing the judges as “my lords” and calling the relief clause in court filings “prayer”.
But for the sake of argument, let’s allow a wide berth to the PM’s advisor, assuming he might have a point — however minor, obscure and inconsequential — somewhere in what sounded like a chaotic mishmash of assorted general impressions rather than an informed, constructive critique of judicial functioning and possible lapses therein, as might be expected of a man occupying a position as critical and responsible in the policy architecture of the nation. Besides, the issues, questions, and concerns raised, annoyingly misinformed as they are, deserve to be engaged with in larger interests.
Speaking at the Nyaya Nirmaan 2025 conference on September 19, 2025, the member of the EAC-PM, lowered his eyes, took a breath, and carefully read out from a paper: “The judicial system and the legal ecosystem, but the judicial system in particular, is now, in my view, the single biggest hurdle to becoming Viksit Bharat and growing rapidly.” I underscore the point of its being a carefully prepared and articulated statement to emphasize that it was not an off-the-cuff, heat-of-the-moment statement.
The first issue raised was the enforcement of contracts, by which the speaker was quite obviously referring to the enforcement of commercial contracts in the context of “Viksit Bharat”, which is why he refers to pre-litigation mediation and Section 12A of the Commercial Courts Act 2015, the newly enacted legislation that deals specifically with commercial disputes. Section 12A, the member of the EAC-PM emphatically — and rightly — pointed out, makes pre-litigation mediation mandatory in cases of commercial dispute before the matter can go to the commercial court for trial.
Sharply criticizing the very idea of pre-litigation mediation for the lack of efficacy, the Advisor said it was hugely problematic and pointless. Based on the data he claimed to have collected from “two main commercial courts” of Mumbai for the last five years (2020-2024), he said the pre-litigation mediation fails in about 98% to 99% cases before the matter goes to the court for trial after having wasted about six months in the fruitless process.
The criticism is absolutely valid, because if the parties are willing to settle the matter amicably, they can always seek mediation at any stage of the trial through the court, which no court ever declines in any civil case anyway. So, a legislatively forced pre-litigation mediation indeed makes no sense, and is a criminal waste of crucial time, especially in a commercial dispute where large sums of money are at stake. Besides, courts are very welcoming of mutually satisfactory settlements and prefer them over acrimonious litigation that results in a decree, which has to be coercively enforced in many cases.
But who is to blame for that? Section 12A was inserted in 2018 by the Commercial Courts (Amendment) Act, 2018 (Act 28 of 2018), and came into force on May 3, 2018, with the rules notified on July 3, 2018. And the mandatory nature of the provision compelled the Supreme Court to rule in M/s. Patil Automation Private Limited & Ors. v. Rakheja Engineers Private Limited, (2022) 10 SCC 1, that any commercial suit instituted in violation of the mandate of Section 12A was liable to be rejected by the Commercial Court under Order VII Rule 11.
The Apex Court, in the interest of justice, made the ruling applicable prospectively to the date of judgment, and further clarified that the mandate of pre-litigation mediation did not apply to commercial suits contemplating urgent interim relief, as Section 12A provides.
So, the courts are just following the letter and spirit of the law, as enacted by the Legislature, as they are supposed to. And if that causes avoidable delays, the fault does not lie with the judiciary, for it is not the enactor of the laws.
Interestingly, the critiquing Advisor, being a member of the EAC-PM, supposedly advises the Prime Minister whose party controlled the Legislature that enacted the Commercial Courts Act in 2015, as well as amended it by the 2018 Amendment, inserting Section 12A. And nothing stops the Legislature, which is still under the control of the same party, from taking Section 12A off the statute.
Thus, the Advisor seems to be “addressing” the wrong tree, when he can — and should — do his policy-advising, as he is supposed to, at the right place and to the high offices he advises.
Despite the provision that delays the proceedings by about six months, the duration of trial in commercial cases has been cut down by roughly 50%, down to between 1.7 and 2 years in major commercial hubs like Delhi and Mumbai, as per the official government data supplied by the Department of Justice.
The Hindu, reported on August 22, 2021, that the duration of dispute resolution in commercial cases in India that used to take 1,095 days in 2020 as per the World Bank’s ‘Doing Business’ report, has come down to 424 in Delhi and 306 days in Mumbai, as per the data made public by the Department of Justice in the Law Ministry. The Economic Times reported on August 22, 2022, that the reduction in the disposal time for commercial cases by 50% boosted the rise of India’s ease of doing business ranking from 142nd to 63rd (among 192 economies) in 2020.
And all this while the litigation in commercial cases remained hamstrung by Section 12A. If one takes the six months taken by pre-litigation mediation, the trial duration could easily come down to 1.2 to 1.5 years. So what’s the complaint with the judicial process, again, Mr. Advisor?
But disputes are not resolved only through the courts. There is Arbitration, too. That’s also why the average time taken for commercial dispute resolution is higher than the average time taken by the commercial courts alone, as the data includes disputes settled through arbitration as well, with arbitration proceedings now taking longer on average than the court process.
For at least a decade and a half now, an overwhelming majority of commercial contracts carry an arbitration clause, so much so that a 2019 report by Cyril Amarchand Mangaldas starts with the categorical and accurate declaration: “Arbitration is now the default setting for commercial dispute resolution in India.” A contract with an arbitration clause is subject to the Arbitration and Conciliation Act, 1996, which bars the jurisdiction of the civil courts, including commercial courts.
The parties consent to the appointment of an independent arbitrator or arbitration tribunal, the award by which is binding on the parties, and can only be challenged under Section 34 of the Act on a handful of limited grounds of procedural defects or patent illegality on the face of the record.
Notably, the court does not enter upon the issue of the appreciation of evidence by the arbitral tribunal, or the sufficiency of evidence to hold one way or the other, and for that reason, does not act as the appellate court, but only as a venue to reverse patent legal defects to ensure a fair and just outcome. An appeal under Section 37 from a court decision under Section 34 is decided on the same limited grounds, and there are no further appeals save for the Special Leave Petition (SLP) before the Supreme Court under Article 136 of the Constitution.
An arbitration award is executable as a decree by a civil court of competent jurisdiction, and by the same legal machinery. A NITI Ayog Report of 2016 referred to in the 2019 report by Cyril Amarchand Mangaldas, put the average duration for the conclusion of arbitration proceedings in the construction sector at 5 years, with an additional two and a half years taken by legal challenges to the awards before the courts. While what applies to the construction may not apply to all sectors, it’s nevertheless a reasonably good indicator of the average duration of arbitration proceedings.
To make the process smoother and faster, several amendments were introduced to the Arbitration Act in 2015, 2018, and 2019. The “public policy” ground for the challenge to an arbitration award was tightened and expressly restricted to “fraud, corruption, or conflict with the fundamental policy of Indian law”, and the ground of “patent illegality appearing on the face of the award” was made explicitly inapplicable to the International Commercial Arbitrations (ICAs), reserving the ground for for domestic awards. And there is no automatic stay on the enforcement of the award on challenge under Section 34.
Very well. The courts enforced the law as it stood before the amendments earlier, and enforce the law as it stands now.
The fact, however, is that complicated commercial disputes with high stakes take a while to be adjudicated, but most of them are tried by the arbitral tribunals and not the courts. The arbitral tribunals, on average, take around 5 years to decide, whereas commercial courts take about two. Quite clearly, the delay has nothing to do with how the judiciary functions, for it’s demonstrably not confined to the commercial disputes adjudicated by the courts.
Also, the Judiciary enforces the law enacted by the Legislature. If there is a problem with the law itself, like mandatory pre-litigation mediation under Section 12A, blaming the enforcement of it by the Judiciary makes no sense. Should the Judiciary start picking and choosing which laws to enforce according to its own view and understanding of public welfare? Obviously not, because you can’t ask the Judiciary not to do what it’s supposed to do under the constitutional scheme.
Blaming court vacations for judicial delays is not only misinformed and misplaced but also lazy and irresponsible. There are judicial delays, but vacations are not the cause.
In 2022, Europe had an average of 22 judges per 100,000 inhabitants, which totals to 220 judges per million inhabitants, as per the Council of Europe report of 2024 on the Efficiency and quality of justice in Europe. The United States has 150 judges per million inhabitants, the New York Times reported on January 13, 2024.
Law Commission Report of 1987 recommended the 50 judges per million as far back as 1987.
Yet, the Vishwaguru India (or the Viksit-aspirant Bharat of the Advisor’s fond imagination) has, on average, a mere 21 judges per million of the population across the country. That’s fewer than 50% (42% to be exact) of the 50 judges per million we needed in 1987. And the figure comes from one of the most reliable sources in this respect. The Ministry of Law and Justice, responding to a formal, categorical question, told Lok Sabha on February 9, 2024: “At present, the judge-population ratio in the country works out to be approximately 21 Judges per million population.”
But actually, it’s even fewer than 21 judges per million because we are now a nation of roughly 1.4 billion people. Accordingly, the 2025 India Justice Report noted: “For 1.4 billion people, India has 21,285 judges, or approximately 15 judges per million population. This continues to be significantly below the 1987 Law Commission’s recommendation of 50 judges per million population.”
The biggest litigant in India is the government by far, being a party to anywhere from 45% to 50% of cases. As recently as February 2025, Rajya Sabha was told by Law Minister Arjun Ram Meghwal that the central government alone was party to around 7 lac cases across the courts, with the Finance Ministry being a litigant in about 2 lac of them. And then there are state governments and government instrumentalities, which routinely challenge court orders in appeals, thus choking the appellate courts.
The Supreme Court has repeatedly questioned the tendency of the government to routinely challenge any and every court order without giving much thought to the merits or the fairness of the challenge, and such frivolous appeals filed by the government, both state and central, are regularly dismissed with penal costs, but only after wasting precious judicial time and adding to the pendency.
It was in this backdrop that, in October 2009, the Ministry of Law and Justice formulated the National Litigation Policy, 2010, with the specific purpose of reducing unnecessary government litigation to lighten the burden of the courts. And then, in 2015, the Law Ministry brought it out of the cold storage as the National Litigation Policy, 2015. In June 2017, the “Action Plan to Reduce Government Litigation” called for appeals only in cases involving significant policy matters. In July 2023, after 13 long years, Law Minister Arjun Ram Meghwa, told Lok Sabha that “the National Litigation Policy is yet to be finalised”.
The government, the biggest litigant, being a party to around 50% of all cases, turns into a colossus before the Supreme Court, with a staggering 73% of litigation initiated by or against the government before the apex court.
And the tendency of the government to relentlessly appeal is not new. A few months back, I wrote about a now-deceased friend, Naveen Gupta,1 whose induction to the Indian Army was cleared by the Army’s own Appellate Medical Board, and then ordered by the Allahabad High Court. But the government came back in appeal and obtained a stay. By the time the appeal came to be heard, much time had passed. The result: a brilliant man could not be an officer, and the Army lost a bright officer to the tendency to appeal. And that, when we have had a dearth of officers in the Army for a long time now. Who won?
The UK Supreme Court decides 45 to 60 cases every year on average (decided 43 in the 2024-25 financial year) and the US Supreme Court decides about 70 to 80 cases every year on average (decided 63 in 2021, 66 in 2022, and 64 in 2023). The equivalent highest courts (the Highest Instance Courts) in Europe decide on average about 4,200 cases every year, based on the median of 0.8 resolved cases per 100 inhabitants as per CEPEJ 2024 Report.
The Supreme Court of India decides 50,000 cases every year on average (decided 52,191 cases in 2023, and 57,972 in 2024), which averages to somewhere between 250 and 300 cases every working day. Of all apex judicial bodies in the world, the Indian Supreme Court hears and decides, by far, the greatest number of cases every year.
Constitutional courts across the world are picky, and elect to hear only cases of substantial constitutional significance, as they should, and as the Indian Supreme Court, too, is supposed to do. But India’s apex court is truly a “people’s court” in that it gives an open-court hearing to nearly all Special Leave Petitions (SLPs) filed. So, you might not always win a challenge at the top, but you do get a fair and patient hearing, and also relief in fitting cases. But the real cause of pendency before the Supreme Court is the tendency of the government, both state and central, to endlessly appeal judicial verdicts right to the Supreme Court.
But since judicial vacations are the pet peeve of many, let’s turn to them.
In a year, the US Supreme Court has 68 sitting days, UK Supreme Court has 149 days, the Australian Supreme Court 97 days, the Supreme Court of South Africa 128, the Supreme Court of Israel 159 days, the Supreme Court of Bangladesh 183 days, and the Supreme Court of Singapore 208 days.
The Supreme Court of India holds court for 190 days every year, which is the second-highest number of days after the Supreme Court of Singapore at 208 days. Conversely, the Indian Supreme Court, at 175 days, has the second-lowest number of non-sitting days after the Supreme Court of Singapore (157), with the US Supreme Court topping the chart with 297 days.
Therefore, not only are judicial vacations not the actual reason for the judicial backlog, but the narrative of excessive judicial vacations is also demonstrably untrue.
Comparing judges with doctors and policemen, like the Advisor does, is like asking why can’t the doctors patrol the borders or soldiers perform surgery. Chalk and cheese? Apples and oranges?
As for vacations, nobody wants speedy disposal by tired judges at the cost of just, well-considered adjudication. Besides, vacations are not just for the judges; they are for the lawyers, too. Also, both lawyers and judges spend a good part of their holidays working on the cases to be dealt with after the vacations. Indian judges, as a matter of fact, are hugely overworked, and the Advisor to the PM rues whatever rest they can get. If anything, the vacations provide the necessary cooling off, without which judicial efficiency cannot be ensured.
In the end, I am left wondering if this policy advisor’s misinformed diatribe is informed policy, or just happened to be misplaced and disingenuous.
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Hemraj Singh, “A Loss to Remember – I to A Loss to Remember – V,” Street Lawyer, Lawyers Update XXXI,
nos. 2–6 (February–June 2025)
