Gujarat government is not serious about expeditious disposal of arbitration cases: Former Justice Harsha Devani

Born in Amreli district of Gujarat, Justice Harsha Devani’s path to the judiciary was anything but conventional. 

After completing her schooling across Assam, Bihar and Gujarat, she earned her MSc in Microbiology before pursuing an LL.B. at Sir LA Shah Law College, Ahmedabad. She enrolled as an advocate with the Bar Council of Gujarat in 1992. She served as an assistant government pleader and additional public prosecutor, mastering constitutional, civil, and criminal law. 

Justice Devani was elevated to the Gujarat High Court bench on October 8, 2004 and confirmed as a permanent judge in 2007. She served with distinction until her retirement in March 2020.

She continues to be a sought-after judge even long after retirement. Today, her deep expertise and humanity make her a revered voice in commercial dispute resolution.

In this candid chat with Bar & Bench's Neha Joshi, Justice Devani offers sharp, pragmatic insights into India's evolving legal landscape. She critiques the operational realities of the Gujarat High Court Arbitration Centre, unpacks systemic flaws in senior advocate designations and evaluates Gujarat’s potential to emerge as a premier commercial arbitration hub.

Neha Joshi (NJ): What inspired you to pursue a career in law?

Justice Harsha Devani: I completed my post-graduation in microbiology in 1981, got married the same year and was a homemaker for several years, but I decided to join the legal profession purely on an impulse. My father was advising my younger brother - who is 8 years younger than me and had just graduated as an engineer - to study law because he believed that knowledge of law was essential regardless of whether one practised or not. I happened to be standing there and asked my brother to get an admission form for me as well. That was the starting point of my legal career.

I was too shy to go to law college alone, so I attended with my brother. When I joined law college, most of my classmates were 10 to 12 years younger than me. I enrolled in the LL.B. program at the age of 31 in 1989, graduated in 1992 and started practising law in the chambers of Mr Krishnakant Vakharia. I then went on to join the office of the government pleader in 1995 and was fortunate to be elevated to the High Court bench in 2004.

Upon my elevation in 2004, despite having no prior background in tax law, I was assigned to the tax bench immediately after my initial sitting. I sat on the division bench with a senior judge continuously for a year and 3 months. I got the opportunity to learn taxation thoroughly and was subsequently recognised as a tax judge.

NJ: How does institutional arbitration at the Gujarat High Court Arbitration Centre differ from standard ad-hoc arbitration?

Justice Harsha Devani: The Gujarat High Court Arbitration Centre (GHAC) currently operates more as a facility provider rather than a full-fledged institutional arbitration body like the Mumbai Centre for International Arbitration (MCIA). Under its rules, the Director manages administrative procedures up to the stage of framing issues - such as issuing notices for statements of claim, defence, rejoinders and terms of reference -after which the arbitrator steps in.

The fee structure follows the Fourth Schedule of the Arbitration Act, but with a unique tiering system: Supreme Court judges receive the Fourth Schedule rate, High Court judges receive ₹10,000 less and district judges receive ₹20,000 less. In ad-hoc arbitrations with a three-member tribunal, all arbitrators typically receive equal fees regardless of their former judicial rank, whereas the GHAC enforces this tiered structure.

NJ: What administrative improvements or institutional features are still required at the Centre?

Justice Harsha Devani: The Centre is currently at a rudimentary stage. Unlike institutional setups like MCIA, it lacks award-vetting systems and the ancillary infrastructure required to manage follow-up actions.

The primary reason why ad-hoc arbitrations are preferred over the Centre is that a judge's principal private secretary (PPS), with whom one shares a comfort level, is available to assist with drafting small routine orders, recording minutes and tracking hearing dates and stages. 

At the Centre, one has to rely on assigned stenographers whose competence varies. There is also a lack of automated tracking and reminders for draft orders or expiring mandates. Every routine order, as well as the minutes of the meetings, has to be dictated by the concerned arbitrator, which consumes a lot of time.

NJ: Would vetting of arbitrators discourage judges from taking up arbitration work?

Justice Harsha Devani: Not at all; vetting arbitrators would only help improve the system. Commercial arbitrations can be high-stakes and very complex, requiring specialised knowledge. Currently, if parties do not agree on the appointment of a particular arbitrator, anyone on the panel may be appointed by the Chief Justice or his/her nominee, without assessing whether the judge concerned has the requisite knowledge or competence to handle that specific subject.

NJ: How does judicial intervention by High Courts impact ongoing arbitration proceedings?

Justice Harsha Devani: Courts generally do not interfere during proceedings, but when an interim order (such as rejecting an application under Section 16 of the Arbitration and Conciliation Act, 1996, or production of additional documents, etc) is challenged before the High Court, it is usually under Article 226 of the Constitution of India. While the petition is entertained, the High Court generally does not stay the proceedings. 

Without an explicit stay order, the tribunal's mandate clock keeps running while the parties request to pause hearings pending the court's decision. I would prefer courts to explicitly stay proceedings so that the litigation period is legally excluded from the tribunal's mandate, preventing parties from having to file applications for an extension of time under Section 29A of the Arbitration Act.

NJ: Would establishing a specialised arbitration bench in the High Court help?

Justice Harsha Devani: Certainly, because a specialised bench would decide applications much faster.

NJ: If the State encourages its departments to get into arbitration instead of going for litigation, would that help?

Justice Harsha Devani: In Gujarat, there is a special enactment under which a Works Contract Tribunal has been constituted. The definition of a works contract is very wide, so most arbitrations go to that Tribunal, which lacked the necessary infrastructure and personnel to manage cases for a considerable period, resulting in huge backlogs. Members of the Tribunal were often not appointed in time; hence, there is a massive pendency of cases, some of which are more than 20 years old. 

Despite this situation, municipal corporations, municipalities and panchayats have also been brought within the purview of the Tribunal. Thus, it appears that the government is not serious about the expeditious disposal of arbitration cases. In view of the statutory provisions, even contracts containing an arbitration clause that permits parties to appoint an arbitrator of their choice have to go to the Works Contract Tribunal and join the queue. 

I have heard that the government is contemplating deleting arbitration clauses from government contracts altogether, but this is merely hearsay.

NJ: Although the Gujarat government was saying that it wants to push more arbitration.

Justice Harsha Devani: Yes, there appear to be contradictory stances. On the one hand, they want to encourage arbitration, but on the other, they do not seem happy with the quality of awards and want to avoid arbitration. 

NJ: Having started as a judge and now as an arbitrator, how varied is the experience? 

Justice Harsha Devani: I personally find it more difficult to write an award than a judgment because an award involves many facts, with pleadings and documents running into volumes. While dictating an award, there is a lot of back-and-forth. As far as judgments are concerned, we normally dictate them in open court immediately after arguments conclude, while everything is fresh in mind. In arbitration proceedings, a hearing is often fixed a week, a fortnight, or even a month later, making it difficult to keep track of facts when hearing a case piecemeal. 

This happens because Gujarat lacks a dedicated arbitration Bar, making it difficult for parties to agree on consecutive dates. Consequently, at the time of writing the award, the entire record has to be reviewed again and intermittent hearings for other arbitrations break the continuity. 

NJ: The Gujarat High Court has more female judges compared to designated senior female advocates. Do you think there should be some structural interventions required to support more retention of women lawyers?

Justice Harsha Devani: I don't think so. As far as I know, there are fewer female senior advocates, probably because we lack a pool of female advocates with that level of seniority. While it is true that some very deserving female advocates have not been designated - much to everyone’s disappointment - there are also many deserving male advocates who have been left out. 

To be designated, one has to apply. Unfortunately, some very deserving female and male advocates who applied were not designated. So, the process itself is flawed somewhere. Nonetheless, I will add that women lawyers do face discrimination compared to male lawyers, but that also applies in the judiciary.

NJ: With GIFT City being pushed so much as a business center, do you think Gujarat can come up as a competing hub for arbitration?

Justice Harsha Devani: Unless we set up an arbitration centre that carries out institutional arbitrations in the true sense, rather than merely providing facilities, the chances of Gujarat emerging as a competing arbitration hub are remote. However, all stakeholders seem inclined to improve the system, establish a proper institutional arbitration centre and take active steps toward it. 

If this momentum continues, they can achieve this goal quickly. Gujarat generates a high volume of commercial arbitrations compared to many other states and with genuine commitment from all parties involved, achieving this goal is entirely possible.