India's Biggest Litigant Is Doing Little To Unclog The Courts

28/04/2016 10:48 AM IST | Updated 15/07/2016 8:26 AM IST
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The North Block of the building of the Secretariat. Seat of the Government of India, on Raisina Hill in New Delhi

NEW DELHI -- Chief Justice of India Tirath Singh Thakur caught the nation's attention with his emotional plea to Prime Minister Narendra Modi about doubling the number of judges in India to combat the largest backlog of cases in the world.

What is the less known is that the government is the largest litigant in India, responsible for nearly half of the three crore cases pending in courts across the country, despite a great deal of advice and recommendations on how to cut down its share of disputes.

The government at various levels have been identified over the years as a trigger happy litigant who appeals compulsively. But efforts to change this character of government litigation have unfortunately moved as slowly as a petition through the court system.

One category of such disputes involves civilians suing either the Centre or their state governments. These vary from labour disputes and taxation to retired employees fighting for their pensions and farmers seeking compensation. According to Thakur, the fact that so many Indian citizens have grievances against the State is a consequence of poor governance. But it could take a while before the country's layered and multi-dimensional problems of governance are fixed, and until then, the State must answer to its citizens in court.

More avoidable is the second category of cases in which both parties to the dispute belong to the State, either at the central or the state level. In other words, precious judicial bandwidth is clogged by one branch of the government suing another, sometimes for frivolous procedural or protocol matters, easily resolved through internal arbitration.

Venkatesh Nayak, who heads the Access to Information Program at the Commonwealth Human Rights Initiative in Delhi, said that coordination and harmony within departments is the responsibility of the Chief Ministers at the state level and the Prime Minister at the Centre, and they should be held responsible for failing to resolve these disputes internally.

"The government suing itself is completely absurd," he said. "Unless there is a constitutional issue which requires interpretation, why should the executive run to the judiciary to resolve petty disputes. The government doesn't want to take responsibility for the decision so it is easier to transfer responsibility."

In a country where there are only 17 judges for every 10 lakh people, and almost three lakh people are languishing in jail without having been proven guilty because their trials move at a glacial pace through the courts, the state suing itself ought to be heavily restricted.

READ: These Damning Figures About The Indian Judiciary Will Make You Want To Cry Too

Nobody Knows

The strange thing is, nobody is even sure how many cases involving the government is pending in the courts.

Under the union law ministry's legal affairs department, there exists a unit called the central agency section which deals with all of the litigation of the government. D.S. Mehra, an Additional Government Advocate in the section, said he didn't know the number of cases in which the Centre is a party.

"How do you expect me know about all the cases? The government of India is very big," he said.

The Indian government doesn't have a comprehensive record of exactly how many cases in which it is a party, but its share is estimated to be somewhere between 46 percent to 70 percent of all matters pending in courts in India.

"Till date, no centralized information is available," P.K. Malhotra, a former law secretary who retired this month, told HuffPost India.

Last year, the Law Ministry decided to set up "The Legal Information Management and Briefing System (LIMBS),"a web-based application, which aims to collect data from all the departments regarding the pendency and status of cases.

This internal database would allow officials to monitor the cases and weed out disputes which are not worth litigating, Malhotra said. "The process has been slow. So far, 60,000 cases have been uploaded, but there should be much more information in the next four to five months," he said.

Appeal After Appeal

Many people end up going to court because they can't find alternative forums where parties can resolve disputes without going to trial. To make matters worse, the prevailing culture is for the State to mechanically file appeals to the highest level possible.

"Government litigation crowds out the private citizen from the court system," former Prime Minister Manmohan Singh said in 2004, while revealing that the government was a litigant in 65 percent of civil cases in Kerala, sometimes on both sides.

Singh also said 95 percent of appeals by the Kerala government had failed, which suggests that those appeals should not have been filed at all.

In cases of dispute between government departments, Nayak from CHRI points out that instead of running to the courts, the Prime Minister and Chief Ministers can use the "Transaction of Business Rules."

Suggesting that the Prime Minister and Chief Ministers should discuss such matters at their weekly cabinet meetings, he said, "The Cabinet is not only responsible for taking decisions but to ensure the smooth functioning of the government."

Malhotra said that the Law Ministry as well as other departments "issue instructions from time to time to not litigate," and resolve disputes through internal mechanism or through consultation.

Implement The Policy Already

With the din over the staggering backlog in Indian courts growing louder over the years, the Indian government has made some feeble attempt at reforms.

In 2010, the Congress Party-led United Progressive Alliance government put in place the 2010 National Litigation Policy to reduce the cases pending in various courts in India, and to reduce the average pendency time from 15 years to three years.

Under the banner of "litigation will not be resorted to for the sake of litigating," NLP 2010 contained several measures to carry out "responsible litigation" such as not persevering with bad cases, not filing appeals in service matters if it involves "an individual grievance without any major repercussion," or in a revenue matter "if the stakes are not high."

Four years after the policy was announced, however, the Central Information Commission had to scold the Law Ministry for not responding to a Right To Information application which sought details on how the far this policy was implemented by the UPA government.

Information commissioner Sridhar Acharyulu wrote that the RTI application "gave an opportunity to the public authority to explain to the people about their efforts to reduce litigation and report the progress, for instance, how many cases or appeals are filed by state, how many of them are frivolous, how many were withdrawn...."

The 2010 NLP was never implemented, and now the Modi government is formulating its own policy which would include measures such as appointment of officers to closely scrutinize whether a matter is worth litigating, and encourage resolving disputes outside of courts.

'Utter Indifference And Callousness'

The government's decision to introduce arbitration and mediation clauses in work contracts of its staff will not only relieve the courts, but also save their employees from years of stress and anguish of the kind Shankar Das, a cash clerk in Delhi Milk Scheme, experienced for 23 years running from court to court until the Supreme Court determined that his dismissal was "whimsical."

In another case, Devaki Nandan Prasad, who worked in the Bihar Education Service for 39 years, ran from pillar to post for over a decade trying to get his pension.

In its 1988 report, the Law Commission of India cited "arrogance and superiority complex," and "utter indifference and callousness bordering on vendetta" as reasons for the government pursuing "tortuous litigation" against its employees and retired persons.

"The bureaucracy disclosed an attitude for which Bourbons in history were notorious, namely, they learn nothing and forget nothing," the commission said.

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