NEW DELHI: Observing that “infrastructure is inherently exposed to the unexpected”, Chief Justice of India Surya Kant on Monday called for a fundamental shift from retrospective justice to preventive justice in infrastructure development, saying the rule of law is not just about correcting the wrong but also about creating conditions where things go right.
Addressing the FIDIC Global Infrastructure Conference here, the CJI also said that the real measure of success is not simply how quickly disputes are resolved, but how well the projects are designed so that fewer disputes arise in the first place.
“Rule of law is not only about correcting what has gone wrong; it is also about creating the conditions for things to go right,” he said.
“What our infrastructure ecosystem therefore needs is a shift from retrospective justice to preventive justice: from questioning, after the project has been disrupted, to designing the contractual and institutional framework so that disagreements can be identified and addressed before they become disputes through communication and dispute avoidance mechanisms.
“After all, the finest compliment to a dispute resolution mechanism is not that it has resolved many disputes, but that the project it served had so little need to use it,” the CJI said.
Observing that as the chief justice, he has “profound faith in the courts”, Justice Kant, however, said, “But I have no hesitation in saying that a legal system should not measure its success only by how effectively it resolves disputes after they have arisen; it should also ask how effectively the institutions around a project prevent those disputes from arising in the first place.”
A bridge cannot pause construction while an arbitration proceeds, or a highway cannot wait for an appeal to run its course, he added.
The CJI said infrastructure development directly affects the lives of millions, with roads, bridges, water systems and other public assets shaping the everyday experiences of citizens.
Justice Kant noted that well-drafted contracts should do more than record commercial arrangements and they should establish a shared understanding of how parties would respond to unforeseen circumstances, including changes in ground conditions, regulatory developments and other risks.
The CJI said the allocation of risk is among the most important factors determining whether an infrastructure project has become a landmark or a liability.
He cautioned that when risks are assigned to parties ill-equipped to manage them, contractors tend to price defensively, while governments could end up bearing risks which they are not best placed to handle and such imbalances often result in disputes and litigation.
The CJI also stressed the importance of standardisation in infrastructure contracts, particularly as projects increasingly involve international capital, engineering expertise, construction companies and consultants from different jurisdictions.
He said standardisation could provide a common contractual vocabulary for dealing with issues such as payments, variations, extensions of time, unforeseen conditions and dispute resolution.
He urged the stakeholders from the government, industry and the legal profession to focus on five priorities: “clarity of obligations, balanced allocation of risk, sensible standardisation, early dispute avoidance, and swift and independent resolution of disputes”.
“These are not narrow legal technicalities confined to the small print of a contract. They are, in the fullest sense, instruments of good governance,” the CJI said.
