Litigation Policy

In discussing litigation policy, one obviously has in mind the most frequent litigant in the country, namely, the government. There are, in fact, quite a few reasons why the government has become the most frequent litigant in the country. In the first place, the government has no lack of advocates or counsel, since there is no limit to the expenses that can be incurred every time the government becomes a litigant. The other important reason why the government is the most frequent litigant is that people are often involved in disputes with the government and are left with no alternative but to take the government to court since the government is never too keen to avoid litigation or to ensure speedy remedies to even routine disputes. The government is involved in so many legal cases because it has never been too eager to settle disputes departmentally and thus avoid needless litigation. There is no dearth of officers in the government who are not averse to dragging on cases through appeals for adjournment mainly because it is the government that pays for such delays. If anything, there is, in many cases, a perverse sense of pleasure derived from what a government without any limits set for legal expenses can do to a litigant with limited means who has had the misfortune of being forced to sue the government for justice because all other means of securing justice (or a semblance of it) have proved to be fruitless.

The government itself is not unaware of its unfair advantages over individual litigants and of the time and money spent quite needlessly on meaningless litigation that really serves no purpose. In fact, the Supreme Court has berated the Union government for engaging in frivolous litigation at taxpayers’ expense and simultaneously seeking judicial reforms “in the garb of ease of doing business”.

“The website of the Department of Justice shows that the National Litigation Policy, 2010, is being reviewed and formulation of the National Litigation Policy, 2015, is under consideration. When this will be finalized is anybody’s guess... There is also an action plan to reduce government litigation which was formulated on 13th June, 2017. Nothing has been finalized by the Union of India for the last almost eight years and under the garb of ease of doing business, the judiciary is being asked to reform. The boot is really on the other leg,” a bench of Justices Madan P. Lokur and Deepak Gupta said in the judgement.

The scathing judgement, delivered on April 24, 2018, came at a time when fresh tension was brewing between the judiciary and the executive. The Supreme Court collegium is now about to finalize its response to elevate Justice K. M. Joseph as a Supreme Court judge. As far as the litigation policy is concerned, the Supreme Court mentioned a period that also covers a part of the UPA-II regime. However, the phrase “ease of doing business” has come to be associated in our collective psyche with Prime Minister Narendra Modi because of the exceptional stress that is being associated with the topic. The National Litigation Policy, 2010 was aimed at reducing the average litigation duration or “pendency time” from 15 years to three years. This gives people a clear idea of the long time that the Union government has been taking over the years to conclude cases in which the Centre is involved. After all, by no rational standards can 15 years be regarded as reasonable “pendency time”. It is hardly surprising, therefore, that in writing the judgement for the aforesaid hearing, Justice Lokur should have had occasion to remark: “None of the pious platitudes of the National Litigation Policy have been followed.” The court was ruling in a case that underscored the need for two vital points in the action plan: avoid appeals in routine matters and quickly withdraw vexatious litigation. It will be recalled that in December 2017, the court had directed the government to grant benefits to certain armed services personnel. The Centre then filed a fresh appeal, which was dismissed with a fine of Rs 1 lakh in March this year. Quite undeterred by the Supreme Court’s verdict, the Centre had filed an appeal in a related matter on the same set of facts and figures. On April 24, the Supreme Court dismissed this petition and imposed another fine of Rs 1 lakh. The observations of Justice Lokur on the developments are significant. He said: “Unfortunately, the Union of India has learnt no lesson and has continued its non-cooperative attitude. The union of India must appreciate that by pursuing frivolous or infructuous cases, it is adding to the burden of this court and collaterally harming other litigants.” The court also noted that for the batch of appeals on the same issue, the Centre had engaged the services of 10 lawyers.

There is little need for more convincing pointers to the casual, reckless and extravagant attitude of the Centre in the matter of dealing with litigation where the Centre is involved as a defendant in appeals against the injustice of the government to its employees or to citizens in diverse ways of inflicting punishment, mainly because the government has seemingly bottomless coffers in order to undertake frivolous litigation as well as officers who are permitted to abandon their normal duties to pursue such litigation that is pointless as far as the government is concerned. The Supreme Court as well as lay citizens are becoming increasingly aware of the government’s penchant for wasting precious time and money on cases that need not have gone to court but could have been sorted out by the department concerned. Given the attitude of government officers and their vindictive approach in some cases, it is far more important for the Centre to dissuade officers from getting involved in litigation as far as possible and to resolve disputes departmentally. Making a score or two officers pay for such frivolous litigation should go a long way in preventing such wasteful activity.