The wheels of justice, everyone knows, grind slowly. But if the pace is glacial, as it is, then it is justice denied. A good example is the recent judgment by a two-judge bench in the Delhi High Court on the long-drawn and indeed scandalous saga of the Escorts Heart Institute and Research Centre (EHIRC). This was a charitable trust registered in Delhi to begin with. It was then merged with a non-charitable trust of the same name in Chandigarh, and then converted into a limited company which was finally sold off for a considerable sum to the Fortis Group—which arguably was the purpose of the entire exercise. Anil Nanda, one of the two sons of the late HP Nanda who as Escorts chairman founded EHIRC, was a trustee who objected and filed a case against his brother Rajan; he wanted EHIRC to be restored as a charitable trust. A single-judge bench rejected his plea on technical grounds but, a few days ago, a two-judge bench overturned this and asked that the single judge examine the case on its merits. Given how long cases take to be heard, and the inevitable appeal that will be filed, before a larger bench of the same high court and/or the Supreme Court, only the naïve will believe this case is anywhere near being settled.
Consider the consequences. If the final judgment, whenever that comes, says EHIRC has to be restored to what it originally was, how is that to be done at this stage? Escorts has received the sale money and used it to repay debt. What if Escorts says that it cannot undo the sale because it has no money with which to repay Fortis? And what if it argues that EHIRC does not today have the same value that it did at the point of sale, given that many well-known doctors have left? The honourable judges rejected the defendants’ argument that the property had already been transferred and that Fortis, which would be affected by the judgment, had not even been made a party to the case. A fraud, if there was one, the judges argued, couldn’t be left unchecked just because the deed had been done.
While that is easy to agree with, there are instances of judges accepting defeat in the face of what are called facts on the ground, or the balance of convenience. When the privatisation of the Delhi Vidyut Board was challenged on various grounds, including that the concessions given to Tata and Reliance were irregular, the Delhi High Court agreed and said they were ‘unsustainable in law and (are) ultra vires the provision of the Delhi Electricity Reforms Act 2000’, but it did not do much beyond making the declaration. The case took five years to reach conclusion, by which time the exclusive arrangements between the Delhi government and the new power companies had come to an end anyway, and the Delhi Electricity Regulatory Commission was regulating these companies. The court therefore made some observations on how the deal was structured and the behaviour of the Delhi government, and left it at that.
One obvious solution in such cases would be to issue a stay order so that no new ‘facts on the ground’ get created and complicate the original case. In the fight between the two Reliance groups on the supply of gas, such a stay order has been in force despite the fact that the gas is probably ready to be pumped out, for the benefit not just of the producer but also a variety of downstream users. Where such orders are not issued, the long-drawn process involved in getting a judicial verdict means that, for all practical purposes, the case becomes infructuous. And when a stay order is issued, the legal delays could mean considerable economic loss. Either way, the solution is to speed up judicial verdicts.
