By Pratyaksh Sikodia and Ishita Agarwal
“The couldn’t-care-less and insouciant attitude of the Union government with regard to litigation has gone a little too far.” 
The coronavirus pandemic has impacted Indian litigation in more ways than one. The period after this might witness increased government litigation, which is conventionally inferred to be a vertical encounter of unequal parties, where an ill-equipped individual person or entity is pitted against a massive government machinery with limitless resources. This litigation might be rooted in the financial and economic stress trailing the unprecedented pandemic. The economic slowdown has caused greater probe into the covenants and obligations by lenders, shareholders and regulators, as the outbreak has unfavorably impacted numerous industries and has sent shock waves across the financial markets. This might further lead to increase in legal action based on anticipatory breaches, as the pandemic has impelled the masses into a state of economic vulnerability, thereby pushing them to file cases in anticipation of future losses. Analysts believe that litigation trends seen during the 2007-08 financial crisis are now likely to repeat themselves in the COVID-19 context.
Further, there is an increased probability of litigation against the government in the wake of introduction of lockdown by an executive fiat, suspension of some key legislations and the imposition of prohibitory provisions. The lockdown, although necessary, did restrict the rights and liberty of the citizens to an extent, and the people, in exercise of their constitutional rights, are increasingly approaching courts for remedies. Hence, the future holds no respite for the judiciary from ever-mounting litigation against the government.
The National Litigation policy (“NLP”) which although defective, sought to provide a framework for the mitigation of vexatious litigation. It is evident that there would be no better time than now for the Indian government to re-introduce a structured and comprehensive NLP, overcoming the challenges that marred the implementation of the policy. This article delves into the concept and significance of NLP and the complications that obstruct its implementation. The authors evaluate some reforms that should be undertaken for the execution of the policy.
Still a Work in Progress?
The NLP has been touted as a ‘work in progress’ since its introduction in 2010. It was announced by Dr. M. Veerappa Moily, former Minister of Law and Justice in the UPA government, with the aim to transform the government into a ‘responsible and efficient’ litigant, so as to achieve the goal of reducing the average pendency time from 15 years to 3 years. This policy strives to provide a framework to manage various aspects of government litigation. It also imposes a responsibility on the government to protect and respect the fundamental rights of citizens. It provides for appointment of ‘Nodal Officers’, who are to be held responsible for active case management, which involves monitoring the cases to mitigate unnecessary delays. The policy mandates ‘suitable action’ against officials violating this policy and further, designs ‘Empowered Committees’, both at national and regional levels, palpably with an aim to regulate its implementation. However, due to the lack of proper evaluation of the cause behind the plethora of government litigations and its failure to provide a measure for determining responsibility, the policy as a whole has failed as an initiative.
In 2015, the NDA government had a discussion to review the NLP. It was supposed to eliminate the weaknesses of NLP 2010, by imposing fines on government officials indulging in frivolous litigation, as non-accountability and ambiguous phrasing of ‘suitable action’ was one of the main issues which plagued the policy. But till date, nothing concrete has been achieved, and therefore, the NLP remains unimplemented and ‘still a work in progress’.
Need for NLP
Administration of justice is not considered as a social overhead, resulting in an insufficient and inadequate investment upon its administration. As of in 2019, 59,867 cases are pending in the Supreme Court, 44.75 lakh cases in various High Courts, and a shocking 3.14 crore at the District and subordinate court levels. The Government in states and at the Centre are litigants in 46% of the total 3.14 crore cases in courts ranging from the districts to the Supreme Court. This makes the ‘government’, taken as a single entity, the biggest litigant in the country. This pendency is not only leading to delayed justice, but also imposes immense pressure on the judiciary as well as on the public exchequer. Therefore, it is imperative to enact a litigation policy as it will ultimately release some of the burden that is on the judiciary, since nodal officers encumbered by the minimum litigation criteria will have the onus of distinguishing the cases of significance from the trivial ones in accordance with given criteria, thereby reducing the time and money spent on Government Litigation.
The Supreme Court in State of Punjab v. Geeta Iron & Brass Works ltd, observed that the government should be made accountable for the expenditure wasted on litigation due to inaction and also suggested that the state should try to resolve governmental disputes, in a sense of peacemaking, rather than in a combative nature. Thus, the judgment further corroborates that there is indeed, a pressing need for a litigation policy to control the actions of the state in governmental litigation. Further, the 126th Law Commission Report highlighted the imbalance of bargaining power and the resultant unequal and uneven fight between an individual and the government or any public-sector undertaking on the basis of availability of resources, as the individual has limited resources whereas the government has unlimited resources at its disposal, to be invested in a fruitless litigation with an aim to win the case at any cost. Therefore, this attitude of the government as a litigant, needs to be ameliorated with the help of an adequate and efficient litigation policy.
It is the sheer ambiguity surrounding the policy which has proved to be the ultimate cause for the obstructions to its implementation since its inception. Stating that the policy is based on theoretical notions rather than the concrete reality of the problem, would be putting it lightly. The policymakers have failed to delve into the root causes of the government litigation, thereby formulating provisions based on their perceptions of what might mitigate the problem. It is almost ironic that the policy seeks to establish a “responsible” litigant, yet fails to formulate a touchstone for determining this responsibility. Such non-delineation widens the scope of misappropriation of power.
The policy lacks the core fundamentals of transparency prerequisite for making a policy functional. This is evidenced by the ambiguity regarding the roles and functions of the “Empowered Committees”, created for monitoring the implementation of the policy. It is paradoxical that the committees were established as an accountability mechanism, while they themselves cannot be held accountable. It is because there exists an interplay of authority and lack of accountability and the ambiguity with regard to the powers of the functionaries, that there is scope even for constitutional challenges.
The policy lacks a redressal mechanism to hold officers accountable for misappropriation of powers. Although it provides for ‘suitable action’ against functionaries found responsible of delinquency, this appears to be merely perfunctory as neither a specific definition of what this action might constitute is provided nor any procedure for such disciplinary proceedings is formulated. These shortcomings exhibit the policy gaps that act as roadblocks in the implementation of the policy. The policy does have the potential to mitigate the overwhelming litigative burden on the judiciary, provided that there is effective formulation and execution of the same.
NLP is a welcome step in the direction of minimising the arrears of court cases but necessary changes and reforms must be undertaken which can offer a bona fide solution for the upsurge in government litigation. The first order of business should be a thorough investigation into the causes of the escalating litigation against the government so that certain stipulations and provisions could be inserted to nip the problem in the bud. Most of the causes are rooted in systemic disregard for the core modalities of litigation. The analysis of petitions shows that a multipronged approach needs to be adopted, depending on the kind of litigation. For instance, to reduce writ petitions filed under labour and service classifications, the state must put in place a robust internal dispute resolution mechanism within each department to inspire confidence in its workers and as a means of addressing their grievances at the preliminary level, so that these do not transmute into petitions before courts. Therefore, it would be desultory to implement the policy without undertaking the initiative to evaluate the rationale behind the core litigative problem. Secondly, the policy should stipulate minimum qualifications for the nodal officers as the general phraseology of “legal background and expertise” does not ensure appointment of competent officers. The competency of nodal officers is paramount for the functioning of the policy as they are at the centre of implementation of the policy. Ineptitude might lead to a deleterious impact on the raison d’etre of the policy itself, by impairing the claimant’s right to speedy justice.
Thirdly, certain minimum standards should be outlined for modulating the pursuance of litigation. These standards will prove to be instrumental in circumscribing the power of decision-making for the pursuance of litigation that is in the hands of government officers by placing limits and mentioning qualifying criteria. The government representatives, in furtherance of their personal interests, prolong the litigation by playing the appeal game, with utter disregard for the plight of the people. This is evidenced by the fact that more than 90% of litigation against the Ministry of Defence comprised appeals filed against disability benefits by the country’s own maimed and disabled soldiers, at times involving amounts as small as a few hundred rupees, in matters already well settled by law. Criteria should be established which stipulate a bar on multiple appeals in cases involving damages below the provided minimum amount. This will lead to a significant decline in trivial and vexatious litigation, usually involving meagre amounts and petty claims, which nonetheless continue for years.
Finally, specific powers must be delineated to the functionaries to manifest accountability in the wake of misappropriation of such power. Further, a redressal mechanism should be placed to instil an apprehension and fear of consequences. Merely providing for an innocuous and ambiguous consequence of “suitable action” might not be a sufficient check on corruption of power by the Government’s representatives. There should be formulation of a proper procedure and mechanism which establishes what this action ensues. Since, these legal representatives are essentially the auxiliary facets of the government, it will be rather paradoxical if these officers, who are construed to be at the centre of a policy aimed at reducing litigation, are themselves the source. Therefore, there should be construction of an internal enquiry committee, comprising of ad hoc and retired members of judiciary as well as independent members (neither legislative nor executive officers), which will act as the determining step way to litigation.
Hence, the suggestions put forth might facilitate the transparency and responsibility that the policy lacks.
The authors, Pratyaksh Sikodia and Ishita Agarwal, are currently law students at the National Law University (NLUJ), Jodhpur.
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