[Burning Issues] Government Litigation

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Why in News?

Prime Minister Narendra Modi had flagged his concern over the fact that government departments work in silos and two departments of the same government confront each other in court to settle disputes.

Present status of litigation in India

Overall

  • 3.2 cr cases were pending in the Indian judicial system (SC + HCs + Subordinate Courts)

Supreme Court

  • Over 30% of cases in the Supreme Court are more than five-year-old.
  • Those waiting for disposal for more than 10 years constituted 1,550 cases (2% of cases).

High Court

  • A total of 38 lakh cases are pending in 23 high courts. Out of these almost 22%, were 5 to 10 years old. 19% were more than 10 years old. Combined together, 40 per cent pending cases in the high courts have been waiting disposal for at least 5 years now.

Subordinate Courts

  • 2.6 Crore cases pending in subordinate courts across country. This figure does not include cases pending in Arunachal Pradesh, Nagaland, Puducherry and Lakshadweep. Despite all the measures adopted, the backlog has shown no sign of decline.

Government Litigation

  • Government is regarded to be the biggest contributor to litigation in India. Approx 46% of the total pending cases in courts pertains to the government. This includes cases relating to Public Sector Undertakings and other autonomous bodies.
  • Government litigation includes service matters, disputes with private entities as well as inter-se disputes between two government departments and disputes between two PSUs
  • The top 5 central ministries that filed cases were railways, finance, communications, home and defence.

Concerns over Government Litigation

Popular Misconception

  • A misconception regarding government litigation is that the government itself is a source of all cases involving the government. This is why existing policies attempt to address the issue of “government being a compulsive litigant” and do not consider cases where the government is a respondent. Only 7% of fresh cases filed before the court in 2014 were filed by the Central government.
  • Nearly 80% of the cases against the govt are filed against a combination of the State Government; parastatal agencies such as the State Road Transport Corporation, universities, etc.; and local bodies. Most of these petitions filed against the State government are in relation to service, land revenue, land acquisition and education. Those against parastatal agencies are in relation to service and labour-related matters, while those against local bodies are service, land acquisition and tax-related.
  • This necessitates a multi-pronged approach to tackle the issue (as per VIDHI Centre of Legal Policy).

Public and Private Costs

    • Government litigation proves costly to the public exchequer.
  • 126th Law Commission Report highlighted that besides litigation cost the state bears the additional expenses of setting up courts and related manpower. This prevents the executive from performing its primary role of governance.
  • Economic Survey 2017-18  also pointed out that cost of various PPP projects increase due to litigation pending in court.

Power Imbalance

  • Government litigation is an encounter of unequals where an ill-equipped individual person or entity fights against a massive government machinery
  • Also, 110th Report of Law Commision of India states that procedural law benefits government as compared to litigant which further delays dispensation of justice.

Absence of Monitoring Body

  • 126th Law Commision Report highlights how the absence of monitoring body allows govt departments to initiate and pursue litigation against each other. This further overburdens the exchequer.

No Uniform Administrative Control

  • Both 100th and 126th Law Commision Reports recommended setting up of a ‘Litigation Ombudsman’ in every state and to create a ‘Grievance Redressal System’ within departments, specifically to manage disputes between the government and its employees.
  • National Litigation Policy 2010 proposed to set up a national and regional level monitoring system to minimize litigation. Also to monitor the case burden in each department, ‘Nodal Officer’ was designated to “actively” monitor litigation and track court cases. But no efforts have been made till date in this regard.

National Litigation Policy (NLP), 2010

  • In 2010, the government introduced the NLP with a mission to transform government into an ‘Efficient and Responsible litigant’, so as to achieve the goal of reducing the  average pendency time from 15 years to 3 years.
  • The policy attempts to provide a framework to handle various aspects of government litigation, such as government representation, litigation practices such as seeking adjournments, filing pleadings and appeals, exploring alternative dispute resolution mechanisms etc.
  • The 2015 review was supposed to remove the weaknesses of the NLP 2010 by including fines for govt officers engaging in frivolous litigation.
  • But till date, nothing concrete has been achieved i.e the NLP remains unimplemented.

Way Forward

Economic Survey 2018

  • Expanding judicial capacity in the lower courts and reducing the existing burden on high court and Supreme Court.
  • Need to downsize original and commercial jurisdiction of High courts and enabling the lower judiciary to deal with such cases. Reducing the size of original side jurisdiction has allowed the court to reduce its overall pendency.
  • Courts need to revisit the size and scale of their discretionary jurisdictions and have to avoid resorting them unless it is deemed necessary.
  • Courts need to consider prioritizing stayed cases and should impose strict timelines within which cases can disposed off with temporary injunctions, especially when they involve government infrastructure projects.
  • To free up the judicial time, initiatives like Crown Court Management Services of the UK that are dedicated to the management and handling of administrative duties may be considered.
  • Need to create more subject matter and stage specific benches that will allow the courts to build internal specializations and efficiencies in combating pendency and delay.

LIMBS (Legal Information Management and Briefing System), a web based application created by the Department of Legal Affairs under the Ministry of Law and Justice, is an initiative to make the legal data available at one single point and streamline the procedure of litigation matters. This initiative should be strengthened.

Benefits of LIMBS in the long run

  • It will help the government in achieving its objectives of “Minimum government, maximum governance”, “Digital India”, “Ease of doing business” and enhance the Transaction Capacity Governance of the government with an efficient legal framework for speedy resolution of disputes.
  • It provides a low cost web technology access to all the stakeholders involved in a court case in a coordinated way whereby it provides inputs which are available seamlessly on 24×7 basis as per the defined access rules.
  • It helps  in organizing scattered Information at one single database and also create a professional base available for expert advice
  • It reduces the huge expenditures involved in resolving the cases, saves time and makes the working of different departments under a ministry

Recommendations by Law Ministry’s Department of Justice

  • Appointment of a nodal officer in every department at the Joint Secretary Level to coordinate effective resolution of the disputes.
  • Nodal Officer to regularly monitor the status of the cases
  • Promotion of alternative dispute resolution mechanisms- encourage mediation as the preferred form of dispute resolution in service related matters ,Appropriate guidelines in this regard may be drafted by the Government
  • Avoid unnecessary filing of appeals- Appeals should not be filed in routine matters-only in cases where there is a substantial policy matter.
  • An Intuitional ADR mechanism could be considered for resolution of cases between the government and private bodies.
  • All agreements to mandatorily include a reference to either arbitration or mediation.
  • Vexatious litigation should be immediately withdrawn

Civil Society (VIDHI Centre for Legal Policy) Suggestion – A multi-pronged approach

    • A multi-pronged approach needs to be adopted to tackle the issue of “government litigation”, depending on the kind of litigation.
    • For example, to reduce writ petitions filed under service and labour classifications, the state must put in place robust internal dispute resolution mechanisms within each department which inspire confidence in its workers as a means of addressing their grievances against the management.
  • On the other hand, in land acquisition matters, the state must either ensure that quasi-judicial authorities are judicially trained or create a separate class of judicial officers to discharge quasi-judicial functions.
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