[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.

Burning Issues- Unprecedented Pre Monsoon Storms

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UNPRECEDENTED PRE-MONSOON STORMS IN INDIA

How can we say that the pre-monsoon season in 2018 has witnessed unprecedented storm activity?

  1. Since February this year India has experienced 44 storms all over the country (16 States)
  2. The wind speed, many times, exceeded 130 km per hour (when the threshold speed for storms is 90-100 km per hour).
  3. Even though storms are common for North and north western region of India occurring in the months of April to June, but they are generally accompanied with little or no rain. But this time it was heavy rain, hails and strong winds which increased the intensity and impact of the storm
  4. The severe impact of this storm on the lives, livelihood, livestock of the people has made it unprecedented

What was the impact of this surge in storms?

  1. The storms caused massive damage to the property – around 5000 houses collapsed
  2. Massive loss of life – More than 400 deaths and over 700 injured
  3. The dust storm affected people’s livelihood besides killing their livestock and destroying their crops
  4. There is lack of basic infrastructure – water and electricity – as the electric poles are uprooted due to storms and people cannot use the water pumps in the absence of electricity

Reasons behind the phenomena

Unusually hot conditions

  • Temperatures of over 40 degree Celsius have been observed in northwest, central and east and north peninsular India. Maximum temperature was upto 8 degrees celsius above normal. This led to an intense heat wave.
  • Interaction of hot air near the surface with colder winds from the western disturbances gave rise to intense and widespread storms
  • For example, in Rajasthan, one of the worst affected states 46 degree Celsius temperatures were recorded and  a record-breaking 50 degree Celsius was recorded in neighboring Pakistan

Western Disturbances (WD)

  • These are extra tropical or temperate cyclones originating in the Mediterranean region that brings sudden winter rain to the northwestern parts of the Indian subcontinent
  • While the western disturbances normally peak between December and February, a greater number of active WD have been observed in spring and summer months
  • Instead of the normal 2-3 active WD seen during the month of April and May, over the past month and a half at least 10 separate active WDs have been observed.
  • WDs carry high-velocity winds that agitate the atmosphere and aggravate storm conditions

Cyclonic circulations

  • Swirling motion of the winds caused due to low-pressure area is called cyclonic circulations
  • In the build-up of the massive storms at the beginning of May, five separate cyclonic circulations were observed across the country

Troughs

  • A trough is an extended area of low pressure.
  • This is where moisture laden winds from the Bay of Bengal met hot and dry air from central and western India. These winds also came in contact with the cold front that develops due to active WDs.
  • The confluence of these different winds culminated in intense and widespread storms across the Indo-Gangetic plain.
  • Similarly, a North-South trough was formed from Bihar to Northern Tamil Nadu along which stormy weather was observed in Telangana, Andhra Pradesh and some parts of Karnataka

Easterly winds

  • Easterly winds from the Bay of Bengal carry moisture and is associated with pre-monsoon thunderstorms in the eastern coast. But this usually happens in the winter months. This year, the easterlies have continued well into May and have interacted with the WDs owing to the east-west trough. This fuelled intense activity over large parts in south india.

Anomalies at sea surface

  • The anomalies in sea surface temperatures (i.e 1-2 degree warmer waters) over the Bay of Bengal and the Arabian sea have spurred greater moisture transfer than usual by the easterly and westerly winds (respectively) causing the spate of storms.

Why are these storms climatologically atypical?

  1. While the timing of the storms was as expected, their extent and intensity surprised many a scientist (explained above)
  2. Unusually hot weather conditions ushering in heat waves across north, northwest and central India (explained above)
  3. An unexpected activity of Western disturbances (explained above)        
  4. The surprising behavior of Easterly winds (explained above)   
  5. The anomalies in the sea surface temperatures over Bay of Bengal (explained above)

Why were the forecasts by IMD inaccurate?

Outdated forecasting models

  • India uses the (obsolete) NowCast model.
  • Switch to the contemporary ‘Unified Model’ is hamstrung by lack of data.

Inadequate Doppler radars

  • IMD has installed only 25 doppler radars so far across the country
  • These cover only 12.5% of India’s land area.

Poor maintenance and upkeep of instruments.

  • Some of the Doppler radars were not functioning when the storms hit.

The differences in the nature of the storms over the Indian region made the predictions difficult

  • Unlike the climatic-scale storms seen in the Middle-East, the recent storms in India had weaker vertical torque but strong horizontal torque.

Way ahead for India

  • Many initiatives have been taken by countries who face similar challenges to control the effects of a dust storm. India needs to learn from their experiments.
  • Example- The great green wall that has been developed by China along the Mongolian drylands, this massive corridor of vegetation purportedly acts as a windbreak for intense sandstorms emanating from the north and reduces the transport of dust further south thereby limiting the possibility of desertification
  • Besides learning from the interventions of other countries the most important step for India is to develop its weather forecasting and monitoring infrastructure