Mr Justice Ravi Nath Tilhari is currently a Judge of the Andhra Pradesh High Court. Before sitting on the Bench, he had an illustrious practice of 28 years in litigation. He was appointed as Additional Judge of Allahabad High Court on 12-12-2019 and took oath as a permanent Judge on 26-3-2021. Later on, he was transferred to the Andhra Pradesh High Court on 18-10-2021. Till today Justice has passed some significant judgments, including Badugu Panduranga Rao v. Legal Services Authority[1], where he held that the Legal Services Authorities Act of 1987, does not provide any jurisdiction to appoint a guardian; Amoda Iron Steel Ltd. v. Sneha Anlytics and Scientifics[2], which is a landmark judgment related to Commercial Courts Act; Pattam Gousha Bi v. Pattan John Shaida[3], where he held that when there can be no pronouncement of talaq, contrary to Mahomedan law, orally, it can also not be in the form of writing; Rentapalli Anand Mary v. Kankipati Kalyan Babu[4], where he held that rape is a crime against society and cannot be settled between the parties.
He has been interviewed by Ayush Shukla, EBC/SCC Online Student Ambassador who is currently pursuing law from TNNLU.
1. Please tell us about how your journey in the field of law started. Given that you are a 3rd generation lawyer, did you have any choice?
I would trace out the journey in the legal profession in the year 1918, when my grandfather, late Moti Lal Tilhari, joined the Bar and practised in the Commissioner Court of Awadh; in the Chief Court of Awadh at Lucknow, and after the amalgamation of the Chief Court of Awadh in the new High Court he practised in the new High Court at Lucknow. He dreamed that someone from his family, which hails from Tilhar, in District Shahjahanpur, would deliver justice to the poor and needy persons. It came true on the elevation of my father, late Mr Justice Hari Nath Tilhari as a Judge of the Allahabad High Court on 4-2-1992 and later on transferred to the Karnataka High Court.
I joined this noble profession on 23-3-1991. There is no question of any other choice as I entered the profession by my own choice. I never thought of entering any profession or service other than the legal profession. I feel proud, with all humbleness, to say that for more than 100 years, we have been rendering our services in the dispensation of justice as lawyers and as Judges, and the journey is still on.
2. To what extent have your law school or initial days of your practice contributed to what you are today, and from that experience, could you please tell our readers what all things one should remember during those days of their life?
My memories are still fresh of my Lucknow University days while studying law. I pay my regards and owe gratitude to my teachers who imparted the knowledge in law to make my basics strong.
The memories are also fresh from the day I entered this profession in the old High Court building campus at Lucknow. I found the Awadh Bar Association a family away from home, which has been through all my thick and thin and helped me grow into what I am today. Many senior advocates of that time extended their valuable guidance to me even in the courtroom while arguing a case when faced with the intricacies of the law. I feel privileged to be a part of one of the strongest and most amicable Bar of the High Courts, the Awadh Bar Association, which is rich in culture and heritage.
The youngsters should focus in their early days on utilising the time they have to read law journals to be acquainted with the latest ones. Spend more time in courtrooms, even if they have no brief of their own. They will learn a lot from the arguments going on in the courtroom, the observations made, and the courtcraft from the senior members.
3. Recently Chief Justice N.V. Ramana inaugurated the International Arbitration and Mediation Centre in Hyderabad, a function in which you were also an esteemed guest. In his speech, while being a strong advocate of the alternate dispute resolution process, Chief Justice Ramana has stated that “people should explore ADR options such as arbitration and mediation first, and approach courts only as a last resort”. So, what are your views about this statement and the alternate resolution mechanism?
Let me briefly state about the alternative dispute resolution mechanism. Resort to an alternative dispute resolution mechanism is intended to bring an end to litigation between the parties at an early date and amicably. Section 89 of the Code of Civil Procedure was inserted with this object to see that the court itself need not necessarily decide all the cases filed in court.
There are five types of well-known alternative dispute resolution measures arbitration, conciliation, judicial settlement, settlement through Lok Adalat, and mediation.
Arbitration is an adjudicatory process by a private forum governed by the provisions of the Arbitration and Conciliation Act, 1996. This can be recourse to when there is a pre-existing arbitration agreement between the parties. But, even if there is no pre-existing agreement, the court can refer the parties to the suit proceedings for the resolution of the dispute by the arbitrator with the consent of all the parties. Then, the case goes outside the stream of the court and becomes an independent proceeding before the Arbitral Tribunal, which ends in a decision, subject of course to the judicial proceedings provided under the Arbitration and Conciliation Act, 1996 itself.
The conciliation process is also governed by the Arbitration and Conciliation Act, 1996, for which there can be a valid reference if both the parties to the dispute have consented to negotiation with the help of a third party or third parties.
In conciliation, judicial settlement, or mediation, the dispute would not ipso facto go outside the judicial system, but if, despite efforts, it is not successful, the dispute will ultimately be decided by the court. Suppose the conciliation, mediation, or judicial settlement is successful. In that case, the settlement agreement will have to be placed before the court concerned for recording the settlement and disposal, as these processes are non-adjudicatory.
The Lok Adalats are of two types. One, the Lok Adalat constituted under Section 19 of the Legal Services Authorities Act, 1987. It has no adjudicatory function but discharges a purely conciliatory function. The second is permanent Lok Adalat which is established under Section 22-B(1) of the Act 1987, regarding specified public utility services, having both conciliatory and adjudicatory functions. On failure of conciliation, the permanent Lok Adalat proceeds to adjudicate the dispute on merits.
The awards of the Lok Adalat are also of two kinds: one, made in a direct reference by parties under Section 19(5) of the Act, 1987, without the intervention of the court, and the other made on a reference by a court in a pending proceeding. The award of the Lok Adalat made on a reference by a court has to be placed before the court for recording and disposal in terms of the award. The Lok Adalat award is deemed a decree of a civil court and is executable.
I am also a strong advocate of alternate dispute resolution mechanisms. During my practice days, I was an active member of the Mediation and Conciliation Centre, High Court at Lucknow. My first endeavour has always been to see if the dispute, having regard to its nature, can be amicably settled through an alternative dispute resolution mechanism and if it can be, all the efforts should be made to make it a success. This process helps in maintaining the harmony between the litigating parties and reduces the number of cases in the court that can be amicably resolved. It is cost-effective, less time consuming, and most importantly, particularly in a non-adjudicatory process, results in a win-win situation for both the litigating parties, as the settlement arrived at is voluntary with their consent and of their choice.
Therefore, I strongly believe that the people should explore ADR options before approaching the court. Even after they approach the courts, they should always be ready to take recourse to ADR for an amicable settlement of their dispute.
The establishment of the International Arbitration and Mediation Centre in Hyderabad is a welcome step and will undoubtedly lead to a productive outcome.
4. Why do you think we need arbitration centres? What is the importance or need of institutional arbitration, while there are ad hoc arbitrations, which are widely preferred?
As I have highlighted, in response to the earlier questions, the importance of the alternative dispute resolution measures in the dispensation of timely justice, it is the need of the hour that steps are taken to promote ADR-friendly culture in India. So, setting up arbitration centres is a step towards achieving that objective. The institutional arbitration centres have their set rules and regulations as opposed to the ad hoc arbitration, where these rules and regulations are to be negotiated before the session even starts and which at times becomes a point of dispute in itself. Moreover, the arbitration centres are assisted by a panel of experts in specified fields in which arbitration is to take place, making it more convenient to deal with matters of complexity. It would raise the people’s confidence in the ADR mechanism and make it preferable to the public by their choice.
5. Recently in an interview Justice A.K. Sikri (Retd) Judge, Supreme Court of India and an associate member of the 4 Pump Court, London has pointed out that one of the major obstacles in letting foreign companies prefer India as a seat of arbitration is the delay in adjudication of issues related to Section 34 of the Arbitration and Conciliation Act, 1996 which is related to setting aside of arbitral award, by the courts. So, what is your view of this, and how can the judiciary address this issue?
Section 34 of the Arbitration and Conciliation Act, 1996 provides for setting aside an arbitral award by the court on limited grounds contained in its sub-section (2). The recourse for setting aside an arbitral award can be made only by an application confined to the grounds under sub-section (2). The application must be made within three months from the date of receipt of the arbitral award, but an application filed beyond this period may be entertained within a further period of thirty days if the applicant was prevented by sufficient cause. After that, an application for setting aside award cannot be entertained. Further, as per sub-section (5), such an application shall be filed only after issuing a prior notice to the other party. This is to ensure that the time consumed generally in service of notice after the filing of the application is avoided and made good within three months prescribed for filing the application for setting aside the award. Sub-section (6) also provides that an application for setting aside the arbitral award shall be disposed of expeditiously and in any event within one year from the date of service of the notice on the other side.
The challenge to an arbitral award cannot be on merits. There is no power given to the court to modify the award or even remand the matter to the arbitrator after setting aside the award. Suppose the court finds it appropriate and it is so requested. In that case, the court may adjourn the proceeding for a definite period to give the Arbitral Tribunal an opportunity to resume the arbitral proceedings or take such other action as, in the opinion of the Arbitral Tribunal, will eliminate the grounds for setting aside the arbitral award.
The appeal under Section 37 is against the order of the court either setting aside or refusing to set aside an arbitral award. Any other order passed in proceedings under Section 34 has not been made appealable.
When it comes to the execution of the arbitral award, the execution court cannot enter any factual enquiry, which may have the effect of nullifying the decree itself. However, it can undertake a limited enquiry regarding jurisdiction issues going to the root of the decree, having the effect of rendering the decree a nullity.
Finality has been attached to the arbitral award even when the award is not enforced. Once an award is made on a subject-matter, no action can be started again on the original claim.
Thus, there are ample safeguards to ensure that the adjudication of issues related to Section 34 is not delayed. The only thing required, in my view, is to adhere to the statutory provisions.
6. What steps, according to you, can be taken to promote arbitration-friendly culture in India to make it an attractive seat for arbitration not only for domestic companies but also for foreign companies? Besides judiciary, what, according to you, should be the role of Government in achieving the same?
Making India a preferable seat for arbitration and developing an arbitration-friendly culture in India is not a one day process. It is a gradual process that will gain pace as the society of India moves forward with education and awareness about arbitration. Undoubtedly, setting up the International Arbitration and Mediation Centre at Hyderabad is a progressive step towards promoting the arbitration culture in India. There are already centres like Delhi International Arbitration Centre (DIAC) and Nani Palkhivala Arbitration Centre (NPAC), which are playing a significant role in strengthening the arbitration in India. Still, we need more such centres to promote healthy arbitration. An arbitration-friendly culture will attract better business opportunities in the country, as big multinational companies prefer arbitration over litigation for speedy remedies. So, if India adopts the arbitration culture, the chances of witnessing more business opportunities will increase. Moreover, the promotion of arbitration culture in India, as I have earlier said, needs awareness, and for this purpose, we must take steps. Here, major efforts should be made by the stakeholders of the legal fraternity.
7. You have been a part of one of India’s oldest and newest High Courts and have witnessed both going from physical to virtual hearing, and in this, you must have witnessed the changes that the system has undergone, which has its own merits and demerits. Could you please tell our readers what, according to you, are the merits and demerits of going virtual? Are there any infrastructural issues that need to be addressed in India?
I would like to briefly state the history of the Allahabad High Court. The Allahabad became the seat of the Government of North-Western Provinces, and the High Court was established in 1834. It was shifted to Agra, and then at Agra on 17-3-1866 under the High Courts Act, 1861, the High Court of Judicature for the North-Western Provinces was founded. It was shifted from Agra to Allahabad in 1875, and its name was changed to the High Court of Judicature at Allahabad from 11-3-1919. In Awadh, on 2-11-1925, the Awadh Judicial Commissioner Court was replaced by the Awadh Chief Court at Lucknow, by the Awadh Civil Court Act, 1925, and on 25-2-1948 the Chief Court of Awadh was amalgamated with the High Court of Allahabad, by the United Provinces High Court (Amalgamation) Order, 1948. Thus the new High Court, the present Allahabad High Court, was established with its seats at Allahabad and at Lucknow.
It is my proud privilege to be part of the Allahabad High Court not only because it is the biggest High Court in the country and one of the oldest High Courts but also because it has pronounced many fearless, landmark judgments upholding the Constitution, the democracy independence of the judiciary, the basic structure, as also the dignity of an individual. To mention a few, I may refer to Keshav Singh v. Speaker, Legislative Assembly[5]; Raj Narain v. Indira Nehru Gandhi[6]; and Rahmat Ullah v. State of U.P.[7] (known as Triple Talaq case).
The High Court of Andhra Pradesh was established in 1954 when the State was formed from the earlier Madras Presidency. However, post bifurcation of Andhra Pradesh new High Court was established on 1-1-2019 under the Andhra Pradesh Reorganisation Act, 2014. I cherish my journey from Allahabad High Court to Andhra Pradesh High Court and would work for its glory.
Regarding virtual hearing, I would not name it as “merits” or “demerits” but would prefer to say it as how habitual or familiar people want to be with the new set-up. This all depends upon the approach of the people towards a virtual hearing. The more positively the people react, the fewer demerits we will witness. Also, the merits of virtual hearing are permanent as opposed to its demerits, which are temporary and can be resolved by a change in approach as also with technological advancement. Still, to answer your question as per the present situation of the judiciary, the virtual system has helped a lot of the litigants to avail themselves of the services of many senior advocates, though far away from the court concerned. It has become more convenient for them to address the court without taking the pains of journey as also to connect to various courts in a single day. The difficulties I have experienced sometimes are in appreciating the arguments of counsels due to connectivity issues and seeing the documents referred by the counsels going from one page to another, but these difficulties are due to the introduction of the new system and are only a matter of time. Another issue that I have faced is that the people take unwarranted advantage of this convenient set-up by not following the dress code and not maintaining the discipline and decorum required to be maintained in courts. I am not saying it generally, but there are a few instances, you all know when the court had to take steps to ensure the functioning of the court in a dignified manner.
To sum up, I would like to say that people should be flexible enough to adapt to the changing conditions for proper judicial administration.
8. Finally, what will be your advice to the young law students and lawyers on how they should approach this field of law.
I would like to say that I am confident that the judiciary’s future is in safe hands, as the current generation is given not only academic classroom lectures but also good practical exposure by way of internships and mooting. With the help of online legal research websites and tools, research has become handier and more easily accessible. Today any judgment or journal is just a click away. However, besides all these technological enhancements and being a forever student of law, I would never say that anyone can master this profession because the law is dynamic and ever-evolving. Therefore, my advice to the youngsters will always be to remain updated with all the developments in the law. And for this, one should never stop reading and never shy away from reading voluminous documents and seeking guidance from their senior colloquies at the Bar, maybe on a very common or general point in law.
Please remember that this profession’s nobility lies in serving society and helping the poor and the needy. The profession deserves the utmost sincerity, decency, honesty, and hard work. There is no substitute for hard work and no shortcut to success.
The youngsters should also do some “pro bono” considering that the traditional litigation is from the weaker section of society.
Always be fair to your client, your opponent as well, and the most to the court. The future is yours.
Let this chariot of justice reach every corner and to one and all to deliver justice.