1. Litigation policy: Out on several limbs, says Bibek Debroy

Litigation policy: Out on several limbs, says Bibek Debroy

As of June 2017, in LIMBS database, there are 1,35,060 government cases pending, with 369 contempt cases. The Railways has the most and the Panchayati Raj the least

By: | Published: August 24, 2017 5:30 AM

A specific Legal Information Management & Briefing System is better than a vague Litigation Policy. (IE)

Earlier this year, the Union minister of law and justice wrote a letter to other Union ministers and chief ministers of the states. “As you are aware that the government is a major litigant and it is a party to about 46% of the 3.14 crore cases pending in various courts in the country, ranging from service matters to indirect taxes … The government must cease to be a compulsive litigant, and executive power should be made use to reduce the grievance of the future litigant.” Although share depends on the level of court (Supreme Court, High Court, Lower Courts), in aggregate, two-thirds of cases are criminal. A crime is committed against society. Therefore, by definition, the government will be a party in criminal cases, depending on how the government is defined. With this lens, 46% is low. 46% cannot refer to all cases. It must mean civil cases. I doubt robust data exist to substantiate the figure. It is probably a guess, though it figures in the Department of Justice’s June 2017 Action Plan to reduce government litigation. But one can live with the guess that half of civil litigation involves the government, as petitioner or respondent.

That’s high and the government’s proclivity to litigate crowds private citizens out from accessing justice. At least two of the Prime Minister’s speeches mentioned this undesirable trait. The first was on October 31, 2016, at the 50th anniversary of the Delhi High Court, and the second was on January 20, 2017, when the actual theme was tourism. In the first, he referred to the government as a litigant. In the second, he mentioned the phenomenon of two government departments litigating against each other. After consultations in 2009, there was a National Litigation Policy (NLP) in 2010. This started with a laudable promise. “The National Litigation Policy is based on the recognition that the government and its various agencies are the predominant litigants in courts and tribunals in the country. Its aim is to transform the government into an efficient and responsible litigant.” The NLP had a lot of laudable statements and there was nothing to disagree. There were platitudes in plenty, but nothing to pin down. There has been talk of a new version of NLP. If this is old wine in an old bottle, it’s not worth it.

As a specific, let me cite Order 27, Rule 5B from the CPC (Civil Procedure Code). “(1) In every suit or proceeding to which the government, or a public officer acting in his official capacity, is a party, it shall be the duty of the court to make, in the first instance, every endeavour, where it is possible to do so consistently with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject matter of the suit. (2) If, in any such suit or proceedings, at any stage, it appears to the court that there is a reasonable possibility of a settlement between the parties, the court may adjourn the proceeding for such period as it thinks fit, to enable attempts to be made to effect such a settlement.” This also applies to situations where the government is litigating on both sides. Mandatory invoking of this is specific, not vague. But, unless done through executive action, courts can’t do much. There are specifics that go back to the Law Commission’s 126th report (1988) on a litigation policy and strategies for the government and PSUs. “To illustrate, an officer having been satisfied that the claim against the government or the public sector undertaking, is genuine, yet, to avoid taking an affirmative decision by a policy of do nothingness, the litigation is invited. Once, the court intervenes, it is assumed that the concerned department or the undertaking should not take any decision and leave it to the court to adjudicate the claim … The indifference arising out of a lack of social audit encourages such officer to prefer an appeal if the decision is adverse and by vertical movement, the matter generally reaches the apex court.” I am surprised the Law Commission’s report didn’t mention Section 13 of the Prevention of Corruption Act (PCA). A clause in this guarantees risk-aversion. Add to that the inability of the government to pin down responsibility for decision-making and variance between the government’s perceived costs (not just monetary) of litigation and social costs. Obviously, a Litigation Policy (LP) also has to do with states. Following 2010, all states have LPs. But most are like long playing records, with motherhood statements.

A specific LIMBS (Legal Information Management & Briefing System) is better than a vague LP. LIMBS is in its infancy. Therefore, data are imperfect. Nevertheless, one has data (which will improve) to track Union government ministries/departments. As of June 2017, in the LIMBS database, there are 1,35,060 government cases pending, with 369 contempt cases. The Railways has the most and Panchayati Raj the least. In some ministries/departments, there are several cases more than 10 years old. To state the obvious, there must be better ways of resolving service-related disputes. In the June 2017 document, the Department of Justice proposed an online platform with, progressively, mediation and neutral third-party arbitration. Naturally, service-related matters are somewhat different from tax litigation CBDT or CBEC confront. In December 1991, the Cabinet Secretariat set up what later came to be called a Committee on Disputes. The intention was prevention of government litigating against government, without it being first examined by the Committee. This Committee was later scrapped, because it only added layers, without resolving anything. However, that 1991 intention now finds some traction in 2017.

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