Fix government litigation to unclog courts Print
Wednesday, 02 May 2018 05:56
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Sarthak edit

There are many reasons why India’s justice delivery is sclerotic—there are over 3.2 crore cases pending across courts, of which over a quarter are pending for over five years at the district courts and the high courts. Judicial-strength gaps are one. The government clogging the courts with mindless litigation, on which the Supreme Court made some caustic observations last week, are another. The apex court said that “the couldn’t-care-less and insouciant attitude of the Union government has gone a little too far” after it came across the third batch of appeals filed by the Centre over a similar question of law in the same matter—the SC had dismissed the first batch on December 8 last year, and the second batch on March 8, when it had slapped a `1 lakh fine on the government. The fact that 46% of all pending cases have been filed by the Centre and state governments makes the State the most prolific litigant in the country.

Noting how frivolous and prolific litigation by the government has clogged justice delivery for ordinary litigants by delaying the hearing of their cases, the SC advised the Union government to be mindful of the burden on ordinary litigants who have to fork out “a small fortune” to get justice, thanks to long drawn trials. To be sure, fixing the government’s ‘predilection’ for litigation needs a raft of policy changes.

The Damocles sword of CVC/CBI/CAG probes/censure at a future date still hangs over government officers—the Prevention of Corruption (Amendment) Bill that would have offered some measure of protection, by requiring “prior approval” for prosecution of a public authority, couldn’t be passed in the Budget session earlier this year, with Parliament barely functioning. So, bureaucrats will likely keep appealing court decisions, especially in pecuniary matters, that are not in the government’s favour. The Centre has done well to impose curbs on the taxman filing arbitrary demands and litigating these to the ultimate appellate level. Even so, taxation remains a large source of government litigation.

The National Litigation Policy 2010—which talked of making the government an “efficient and responsible” litigant and reducing the pendency at courts from 15 years to three—is hanging fire. The SC, in the present instance, raised this issue, saying that though the policy that was supposed to be tweaked to reviewed in 2015, “… nothing has been finalised by the Union government for the last almost eight years”.

The 2015 review was supposed to remove the anomalies of the 2010 proposal, by including provisions such as fines for officers engaging drawing the government into needless litigation. But with the policy itself pending, there seems no template with which the flow of government litigation can be fixed. The state litigation policies, as FE columnist Bibek Debroy has noted, are also vague, lacking recommendations on specific action.

The Supreme Court noted that the ultimate fate of many an appeal could be “imagined on the basis of existing orders” in similar cases. To that end, the Legal Information Management & Briefing System, that can be used to access court orders and judgments is an useful tool, though it is still in its infancy.