Insights into Editorial: Time to move towards a new litigation policy
Judicial system in India is in the process of undergoing reforms. However, a National Litigation Policy is long overdue. Both executive and the judiciary have understood the need for such policy.
Why it is necessary to have a National Litigation Policy?
- Government litigation reportedly constitutes nearly half of all litigation in the Indian judiciary. It acts as a constraint on the public exchequer. It has also contributed to judicial backlog, thus affecting justice delivery in India.
- A National Litigation Policy would reduce the trivial litigations in which the government is also a party and would make the government a responsible litigant, which could use alternate dispute resolution mechanisms to bring an end to various litigations.
- The policy also helps to reduce the number of cases, thus reducing the burden of the judicial system, which currently has to deal with a large number of cases. The Supreme Court, since the 1970s, has berated successive governments for being callous and mechanical in pursuing litigation.
- The Law Commission of India also studied this problem in its 126th Report in 1988, and made appropriate observations on this front.
Attempts so far:
The Law Minister in the United Progressive Alliance government had launched a “National Litigation Policy” (NLP) in 2010 to transform the government into a “responsible and efficient” litigant. The policy aimed at not only reducing average pendency of cases, but also placing compulsive restraint on the government from approaching courts for petty claims or serious ones.
This concept of a national litigation policy has been explored by other countries as well. The Australian Taxation Office, for example, conducts its litigation in accordance with the PS LA 2009/9 Conduct of Tax Office Litigation, which is an elaborate set of guidelines obligating the government to be a model litigant.
Why it failed?
The policy failed as an initiative due to ambiguity.
- The policy is seen as a replete with rhetoric and generic phraseology which has no scope for implementation. Instead of being an analytical policy document attempting to address the causes of excessive government litigation, it appears to have been drafted on anecdotal notions of the problem, with no measurable outcomes or implementation mechanism.
- The policy fails to provide a yardstick for determining responsibility and efficiency. The policy then idealistically states that there should be greater accountability regarding governmental litigation, and mandates “suitable action” against officials violating this policy. However, the text does not define this “suitable action”, or prescribe any method to conduct any disciplinary proceedings.
- The NLP 2010 also creates “Empowered Committees” at the national and regional levels, apparently to regulate the implementation of the policy. But there is ambiguity about their role and powers, resulting in lack of transparency in their functioning. While these committees are intended to be integral to the accountability mechanisms under the policy, the ambiguity in their roles and functions make them susceptible to a constitutional challenge.
- The NLP 2010 also lacks any form of impact assessment to evaluate actual impact on reducing government litigation. This absence of a monitoring mechanism is evident from the fact that there is no data available even today to accurately verify the extent of government litigation in India. Without such evaluation, this litigation policy remains a theoretical, ambiguous and fairly inadequate document on the pretext of policy reform.
What has the new government done in this regard?
The new government at the centre proposed, in September 2015, a national litigation policy for out-of-court settlement of cases among government departments, public sector undertakings and other government bodies. However, no concrete decision has been taken yet in this regard.
The ongoing revision of the NLP needs to ensure certain critical features are not missed out:
- It must have clear objectives that can be assessed.
- The role of different functionaries must be enumerated.
- The minimum standards for pursuing litigation must be listed out.
- Fair accountability mechanisms must be established.
- The consequences for violation of the policy must be provided.
- A periodic impact assessment programme must be factored in.
What else needs to be done?
- All the state governments have already notified state litigation policies to reduce government litigation. The law ministry should take up the matter now.
- To further bring down pendency of cases in courts, both the Centre and states should withdraw “frivolous and ineffective cases”.
- States and central government departments should set up empowered panels and suggest withdrawal of frivolous cases, particularly those of petty offences and traffic challans.
- To discourage future litigations, the government should compulsorily introduce arbitration and mediation clauses in work contracts of its staff and public sector employees.
PM Modi recently expressed greater political will to deal with the problem of pending cases. Now, government response to the problem needs to be much more dynamic and resourceful. A litigation policy can have a profound effect on how the government thinks about itself as a litigant, and can help curb the problem, provided it is a constructed with a thorough understanding of the problem and offers solutions based on evidence rather than conjecture.