By Vijay L. Kelkar & Pradeep S. Mehta
Last time (tinyurl.com/y58cfcny), we wrote about the need of a national litigation policy so that state agencies in India curb their endless filing of appeals, which acts as a barrier to the ease of running a business and adds to delays in our justice system. The challenge is for the Centre and states to cut down litigation and unclog our adjudicatory system.
Following recommendations of the 13th Finance Commission and National Consultation on Strengthening the Judiciary in 2009, it was resolved that a national litigation policy would be formulated and state governments encouraged to draft their own. The Union government asked state governments to do so, but, in many cases, a failure to implement a state litigation policy (SLP) and apathy shown by key stakeholders has reflected poorly on state administrations.
A significant contributing factor to this problem is the presence of overly broad directives and complex procedures within SLPs. One such example is the case of Lakshmi Prasad Yadav & Others vs The State of Bihar & Others (9 March 2015), where the government did not even file a counter affidavit for eight years after the writ petition was filed. Similarly, in the case of Prabhat Kumar Sinha vs The State of Bihar & Others, the case was before the Patna high court, which found that the district magistrate was ignorant of the existence of any such policy at the state level.
The implementation status of SLPs varies widely across different states in India. While some states have actively implemented and updated their policies to address issues related to government litigation, others may have faced challenges in effectively implementing these policies.
All states have dedicated departments or agencies responsible for overseeing litigation management and ensuring compliance with policy guidelines. They may also conduct regular reviews and assessments to identify areas for improvement and refine their strategies accordingly.
Data-sets such as those provided by the National Judicial Data Grid offer a comprehensive overview of case types and their pendency at various tiers of the government, but does not provide disaggregated data for states and/or the Union government.
While some states have a litigation policy, Karnataka has taken a step forward by adopting a law, the Karnataka Conduct of Government Litigation Act, 2023, which provides a binding framework for state agencies to follow. The law is quite elaborate, but it is also freshly enacted, making it too early for anyone to comment on its success. Nevertheless, Karnataka’s binding policy is welcome.
Rajasthan too has the Rajasthan State Litigation Policy of 2018, which strives to develop a comprehensive framework and effective strategies to enhance the management and conduct of litigation by the state. Similarly, Madhya Pradesh drafted a state litigation policy in 2018.
It has updated its Law and Legislative Affairs Department Manual too, outlining various powers and duties, including the advisory, legislative and other duties of officers, etc. Likewise, the Maharashtra State Litigation Policy, 2014, builds on foundations laid by the draft National Litigation Policy, outlining comprehensive guidelines for the litigation strategy to be adopted by the state and its agencies.
Indian ground reality, however, reveals that most SLPs suffer from a lack of explicit guidelines, effective accountability measures, impact evaluations and consequences for non-compliance. Hence, these policies have not been as effective as expected by those who drafted them.
The recent case of State of Rajasthan and Others vs Gopal Bijawat involved the state and a poor litigant who was compelled to file repeated litigation to obtain benefits awarded by the Labour Court. The district magistrate, who heads the district’s legal affairs committee, was unable to handle it and the matter went to the Rajasthan high court before it landed in the country’s Supreme Court. The apex court imposed a fine of ₹10 lakh on the State of Rajasthan for what it deemed as harassment of the poor litigant by dragging the case on for years and through various layers of the judiciary.
This decision underscores the Supreme Court’s stance against unnecessary legal actions that burden individuals, particularly those with limited resources, and the Indian judicial system. Such cases go on to show that overall, the status of SLP implementation across different states remains far from satisfactory, which, in turn, underscores the need for sustained efforts to promote effective litigation management and improve the functioning of the justice system. Also, we need to publicize alternate dispute resolution methods, like conciliation, etc, which offers another avenue to reduce the burden on our courts and tribunals.
Indian data on litigation indicates that the state is the primary party involved in a majority of court cases and is responsible for a significant portion of pending litigation. Estimates of the financial cost of such litigation are hard to come by, but surely, it runs into multiple crores annually.
The core of the problem revolves around the fact that many SLPs contain excessively broad instructions and intricate procedures. In conclusion, we need a nationally convergent approach to reduce government litigation at all levels, so that everyone benefits.
(Arima Pankaj of CUTS has contributed to this article.)
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