Neutral Citation Number of W.P.(C)-1793/2020 : 2022/DHC/005472

W.P.(C) 1793/2020

Page 1 of 16

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 09^th December, 2022

IN THE MATTER OF:

+

W.P.(C) 1793/2020 & CM APPL. 6242/2020

ABHISHEK AGARWAL

..... Petitioner

Through:

Mr. Gaurav Rana, Advocate

versus

UNION OF INDIA & ANR

..... Respondents

Through:

Mr. Kirtiman Singh, CGSC with

Ms.Manmeet Kaur Sareen, Advocate

for UOI

CORAM:

HON’BLE THE CHIEF JUSTICE

HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD

JUDGMENT

1.

The instant Public Interest Litigation has been filed by one, Mr.

Abhishek Kumar, a Lawyer, challenging the constitutional validity of

Section 5 (‘Impugned Section’) of the New Delhi International Arbitration

Centre Act, 2019 (‘Act’).

2.

The Act was promulgated on 26.07.2019 and came into force from

02.03.2019. The Act envisages the creation of New Delhi International

Arbitration Centre (‘NDIAC/Centre’). The purpose of the Act is to create an

independent and autonomous regime for institutionalised arbitration. The

Act is also meant for revamping the pre-existing International Centre for

Alternate Dispute Resolution and to utilise its infrastructure, and other

facilitates.

3.

The Impugned Section deals with the composition of members of the

Centre, and their appointment. It reads as under: -

Digitally Signed

By:RAHUL SINGH

Signing Date:12.12.2022

12:46:05

Signature Not Verified

Neutral Citation Number of W.P.(C)-1793/2020 : 2022/DHC/005472

W.P.(C) 1793/2020

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namely: —

(f) Chief Executive Officer—Member, ex officio.”

4.

Section 14 of the Act empowers the Centre to maintain a panel of

accredited arbitrators, conciliators, and mediators. Section 28 of the Act lays

down the procedure for the empanelment of such arbitrators, in the

following manner: -

“14. The objects of the Centre shall be—

Digitally Signed

By:RAHUL SINGH

Signing Date:12.12.2022

12:46:05

Signature Not Verified

Neutral Citation Number of W.P.(C)-1793/2020 : 2022/DHC/005472

W.P.(C) 1793/2020

Page 3 of 16

(d) to maintain panels of accredited arbitrators,

conciliators and mediators both at national and

international level or specialists such as surveyors

and investigators;

28. (1) The Centre shall, establish a Chamber of

Arbitration which shall empanel the Arbitrators and

also scrutinise the applications for admission in the

panel of reputed arbitrators to maintain a permanent

panel of arbitration.

Digitally Signed

By:RAHUL SINGH

Signing Date:12.12.2022

12:46:05

Signature Not Verified

Neutral Citation Number of W.P.(C)-1793/2020 : 2022/DHC/005472

W.P.(C) 1793/2020

Page 4 of 16

(3) The Centre shall by regulations lay down the

criteria for admission to the panel of the cadre so as

to maintain a pool of reputed arbitrators having

expertise in international commercial arbitration and

arbitration other than international commercial

arbitration.

Arbitration.”

(emphasis supplied)

5.

In sum and substance, it is the case of the Petitioner that since the

Centre is going to discharge functions of great judicial importance it must be

insulated from political and other influences to ensure it is an independent

and impartial body. The Petitioner states that the Centre predominantly

consists of employees of Central Government. He, therefore, contends that

such Members of the Centre cannot make a panel of Arbitrators, where one

of the two litigants will be the Central Government itself. It is stated that if

such Government representatives are be permitted to appoint their

representatives as Arbitrators it will raise an apprehension of bias thereby

vitiating the process. On the basis of this, the Petitioner has challenged

Section 5 on the ground that it is violative of Section 12(3)(a) of the

Arbitration and Conciliation Act, 1996 Act (‘Arbitration Act’), which deals

with the independence and impartiality of arbitrators.

6.

Per contra, it has been argu