“The state should act as an enlightened litigant and not as a common man and
should not plead cases just because the vanity of a particular official is hurt.
Statutory bodies should not raise unfounded and unfair objections, nor act
callously and condescendingly and cannot behave like some private litigants.” - V.R.
Krishna Iyer, J.
The problem and its causes:
Court records are clogged with lawsuits brought or contested by the government,
both state and central and public enterprises. The administration of justice is
still not considered a social overhead in a developing economy, and therefore
investment in the administration of justice is generally insufficient and
inadequate. While resorting to litigation by government institutions and public
sector undertakings is wonderful, when it comes to grants for the administration
of justice, they are styled as unplanned expenditure and are left behind. This
led to the remark that while the government buys them courts and judges, they
are wasteful with litigation.
The government is India's largest litigant, responsible for nearly half of the
three million cases pending in courts across the country, despite plenty of
advice and recommendations to reduce its share of litigation. Government at
various levels has been identified over the years as the trigger happy litigant
who compulsively appeals. Unfortunately, however, efforts to change this nature
of state litigation have moved as slowly as petitions through the court system
Government disputes include service matters, disputes with private entities, and
disputes between government departments and two PSUs. Citing data available on
the LIMBS (Legal Information Management and Briefing System) website, the
document said that as of June 12, 2017, 1,35,060 government cases and 369
contempt cases were pending in courts.
Railways have the highest number of pending cases with 66,685 cases. Out of the
total number, 10,464 cases are pending for more than 10 years. The Panchayati
Raj Department with 3 cases has the least backlog among the Govt. department.
The document makes it clear that since LIMBS is a dynamic website, the data is
constantly changing.
One category of such disputes involves civilians suing either the Center or
their state governments. These vary from labor disputes and taxation to retired
workers fighting for their pensions and farmers seeking compensation. The fact
that so many Indian citizens have grievances against the state is a result of
bad governance.
The second category of cases where both parties to the dispute belong to the
state, whether at the central or state level, is more avoidable. In other words,
scarce judicial bandwidth is clogged with one branch of government suing
another, sometimes over frivolous procedural or protocol matters that can easily
be resolved by internal arbitration. In a country where there are only 17 judges
for every 10 million people and nearly three million people languish in prison
without being proven guilty as their trials proceed at a glacial pace in the
courts, the prosecuting state should be severely curtailed.
"I won't take any chances" - this attitude is one of the main reasons why the
government is a party to thousands of court cases. Most of the litigations
involving the public sector undertaking/Government arise out of the unhealthy
attitude of the administrator not to act in accordance with the principles of
natural justice in the exercise of the power vested in him. Even the Law
Commission of India studied this problem in its 126th Report of 1988191 and made
appropriate observations on this front. Apart from being a drain on the
exchequer, government litigation has contributed to judicial backlogs, affecting
the administration of justice in India.
Unauthorized litigation by governments and statutory bodies basically stems from
two general unfounded assumptions made by their officials. They are:
- All claims against the government/statutory bodies should be treated as illegal and should be resisted and fought all the way to the highest court of the land.
- If it is possible to avoid a decision on a matter, then it is reasonable not to decide the matter and leave the aggrieved party to approach the Court and secure a decision.
The reluctance to accept decisions or the tendency to challenge all orders
against them is not a policy of governments or statutory bodies, but can be
attributed to some officials responsible for decision-making and/or officials
responsible for litigation. Their reluctance stems from an instinctive tendency
to protect themselves against any future accusation of wrong decision-making, or
worse, wrong motives for making any decision at all.
Unless their uncertainty
and fear is addressed, officials will continue to transfer responsibility for
decision-making to courts and tribunals. The central government is now trying to
address this problem by formulating realistic and practical standards for
defending cases filed against the government and for filing appeals and
corrections against adverse decisions, thereby eliminating unnecessary
litigation. However, it is not enough for the central government alone to
undertake such an exercise. State governments and statutory bodies which have
more litigation than the central government should also make genuine efforts to
eliminate unnecessary litigation.
For too long, vexatious and unnecessary
litigation has clogged the wheels of justice and made it difficult for courts
and tribunals to provide easy and speedy access to bona fide justice to needy
litigants.
Justice T. S. Thakur, former Chief Justice of India, criticized the government
for being "the biggest litigant" and stated that the large number of cases
against the government "cannot bode well for good governance".
He goes on to say:
“A large number of cases coming to court is a good sign in the sense that people
still have faith in the judiciary and its effectiveness in settling matters, but
a large number of cases coming against the government cannot be a good sign of
good governance, why should the government system not respond to has prevented
litigation where it can be rationally and logically avoided, the government is
the largest litigant in the country.
We have been dealing with the problem of
large-scale litigation involving the government for several years.
India's government litigation system needs to be revolutionized. It is bad
enough that the individual is forced to go to court against the state, the worst
part is the government's tendency to automatically refer to the decision of its
adversary and then relentlessly pursue this lawsuit all the way to the highest.
attainable judicial system of courts.
Sec 80 of the Code of Civil Procedure of 1908 and the report of the 126th Law
Commission:
The activities of government and public sector enterprises cover a vast area and
spread in many directions. He may not learn of the threatened action until it is
initiated. It was assumed that the government would not engage in frivolous
litigation or litigation for extraneous or irrelevant reasons. In order to give
an opportunity to the government/public sector undertakings, it has been
statutorily decided to serve on it a notice of the intended cause of action, so
that if the government/public sector undertaking wishes to correct a mistake or
reconsider its decision, it has full opportunity before being dragged to court.
This was the raison d'etre of provisions such as section 80 of the Code of Civil
Procedure.
If Section 80 CPC is to continue to retain its place in the statute, the
approach to notification on behalf of the Government, public servant or public
sector undertaking must undergo a total and fundamental change. Upon receipt of
the notice, the party serving the notice must be promptly informed that the
point raised by him is being considered and a decision will be made as soon as
possible.
This should result in public money and time not being wasted in
unnecessary litigation and the government and civil servant should be given a
reasonable opportunity to investigate the claim made against them so that they
are not drawn into avoidable litigation. The purpose of law is the advancement
of justice. The provisions of section 80 of the Code of Civil Procedure are not
intended to be used as bait against ignorant and illiterate persons.
If this warning is not heeded, there is no doubt about the fate that could
befall Section 80. As it appears so far that the previous recommendation that
the section deserves deletion has not met with the government's approval, as it
has been deducted from its continued retention on the statute book, it would be
better to strip it of some undesirable features.
GOVERNMENT TENDENCY CONTROVERSY: AN OBSTACLE IN ACCESS TO JUSTICE
Justice is a consumer product and therefore must stand the test of trust,
reliability and dependability like any other product if it is to stand the
scrutiny of the market. It exists for citizens, 'in whose service only the
system of justice must function.
One of the main disadvantages arising from excessive litigation between and
against public sector enterprises is that the expenditure required to cover the
costs of litigation increases the cost of products produced by public sector
enterprises and as a result the cost of products grows high and the profit it
sinks low. Thus, the capital outflow ratio is directly affected by the
increasing costs that public sector enterprises have to spend on litigation.
The
money in the treasury is the main source for meeting the expenses that have to
be spent on litigation and disputes against public sector enterprises. It is
nothing but a waste of precious funds raised through the public's hard earned
money, used only for the whims and caprices of certain over-enthusiastic
government departments and certain public sector undertakings to continue
litigation for frivolous reasons like prestige issue etc. It also heavily
clutters court dockets and his arrears graph climbs.
The courts have also pointed out that a fight between an individual on the one
hand and a government or a public sector enterprise on the other is in every
respect an unequal fight because the individual's resources are limited and the
state or public enterprises in the industry have unlimited resources to invest
in futile lawsuits to exhaust and infuriate the individual who took the
initiative to bring the case to court. The right has been described as one
between Goliath and a dwarf in such a situation.
Civil remedies for
administrative misconduct as follows:
Depends on the actions of individual citizens. In such an action, the position
of the individual against the state is always an unequal opponent.
Nor does the individual have the few procedural remedies which the common law imports into criminal actions to attempt to redress the balance. At their own expense, they must challenge a wide range of state power, with all its resources in personnel, money, and legal talent, with a civil action for a declaratory judgment or an extraordinary remedy—an injunction, injunction, or injunction. prohibition.
Even low-paid, lowest grade employees are not spared the tortuous litigation,
exposure of the arrogance and superiority complex of public sector
enterprise/government executives; almost notice how a junior employee can
challenge their decision. Apart from employees in service or position, the
treatment of retired employees by public sector undertakings and the government
is far more to blame.
There are several cases older than 10 years in some ministries/departments.
Every year the database of various courts shows many pending cases which are in
court for years and even then the chance of justice being served is very slim
for various reasons which will be discussed later. This delay in the
administration of justice is due to various reasons.
This may be due to the
lengthy procedural model followed by the Indian legal system. This may be due to
the irresponsibility of lawyers who focus on seizing more money from their
clients, thereby delaying the case for a longer period of time. This may be due
to the irresponsibility of judges who do not deal with cases as quickly as
possible. In this regard, reference may be made to the remarks of eminent lawyer Nani A. Palkiwala- Legal redress is time-consuming enough to be infinitely
comprehensible.
The trial that once began in India is the nearest thing to
eternal life that has ever been seen on this earth....... I know of no country
in the world where lawsuits have been going on as long as in India. Our cases
drag on for so long that eternity is understandable. The law may or may not be a
donkey, but it is certainly a snail in India and our cases move at a pace that
would be considered unreasonably slow in the snail community. Justice must be
blind, but I see no reason why it should also be lame: here it only staggers and
can hardly walk.”
It is a known fact that in the transaction of government affairs no one is
personally responsible and decisions are taken at different levels. It is not
unusual for a delay in the filing of an appeal or review by the government to be
deliberately caused to favor the other party in the proceedings; even more so
when the stakes are high or if the individuals are well connected/influential or
for obvious reasons. Courts therefore do not adopt a strict standard of proof of
daily delay.
Many people end up going to court because they cannot find alternative forums
where parties can resolve disputes without going to court. To make matters
worse, there is a prevailing culture where the state mechanically appeals to the
highest possible level. Government litigation pushes private citizens out of the
court system.
LESSONS FROM OTHER COUNTRIES
There is a need to be inspired by other countries that follow a model approach
to government disputes.
France in particular, which has effectively achieved a system of government
dispute resolution where the distinction between service responsibility and
personal responsibility is clearly established and the government carries out
state activities in the interest of the entire community and offers redress even
if the government is not proven guilty.
Dr. IP Commenting on the French system dealing with governmental accountability,
Massey criticized common law countries for not striving to achieve the same
effectiveness:
“At a time when the common law jurisdictions were still lost in the darkness of
the feudal principle of governmental immunity, a progressive idea of
governmental responsibility flourished in France which recognized the principle
of governmental responsibility.58 It is rather unfortunate that not only in
India but also in the United Kingdom and the USA the courts have not attempted
to develop any public law principle of government liability, but are still busy
extending private law principles into an area for which they were not designed.
Modern French law on state liability for tortious acts is based on the
distinction between faute de service (error of service) and faute personalle
(personal culpability). Here, due to the liberal construction of these terms,
the courts have led to the government official being liable even for acts, from
from which common law systems usually exempt government officials.
Brown & Garner clarified the position of the law in the French system regarding
government liability in the following words:
"The activity of the state is carried out in the interest of the whole
community; the burden it carries should not weigh more heavily on some than on
others. If the actions of the state would result in individual damage to
specific citizens, the state should make amends, regardless of whether it is
misconduct on the part of the public officials concerned or not. The state is in
some respects the insurer of what is often called social risk…”
Australia has also been a model litigator in recent times, with its government
emphasizing the need to follow model litigants by the government and thus
litigate responsibly. The Judiciary Act 1963 is the overriding law dealing with
this and therefore the concept of "the King can do no wrong" is irrelevant in
Australia.
Recently the Attorney General, Hon. Robert McClelland stated that "any breach of
the Model Litigation Duty would be unacceptable as the Australian Government is
committed to achieving the highest professional standards in the handling of
claims and litigation".
The remarks were welcomed by the Rule of Law Institute of Australia, which said
in a press release that "it is important that the message comes from the highest
levels of government that
The Crown must act as a model litigant when investigating and taking legal
action against its citizens. The Australian Institute for the Rule of Law has
called on the federal government to immediately commission an independent agency
to undertake a thorough and consultative review of both the model litigant
conduct rules and their administration.
England
An important new responsibility for the head of government arose when Britain
joined the European Communities in 1973 under the European Communities Act 1972.
As a result of a breach of any obligation to the community, the government is
liable to pay compensation or damages under the rules of the European Court of
Justice. in Luxembourg. These Community obligations could arise from an EU
treaty or from a treaty
Regulations, directives and decisions of the EU Council or the EU Commission.
The Human Rights Act of 1998 opened up new perspectives of accountability for
public authorities; already on the day this law became effective, as expected,
there was a large flow of proceedings against public authorities.203 This law
contains detailed provisions on remedies, especially against public authorities
in general courts and at the initiative of individual plaintiffs. , for
violations of Convention rights.204 Citizens can now bring claims against a
public body in a competent court or tribunal and in any legal proceeding,
provided they meet the Convention requirement of being a "victim" of an alleged
violation.
United States
Even in a republican country like the United States, the state enjoyed
immunities similar to those in monarchical England.206 Until detailed
legislation was enacted in 1946, The Federal Tort Claims Act of 1946, which made
the state liable for the tort of property, life and human.
"The United States shall be liable in the same manner and to the same extent as
a private person under similar circumstances." As to statutory duties, the
United States is not liable for any torts committed in the performance of such
duties, provided that the duties are performed with due diligence.
Government of India. it can learn from these countries and can find a solution
to the problem it faces in the form of a large number of lawsuits on its side.
References:
Articles:
- Ameen Jauhar, Time to Move towards a new litigation Policy (18/11/2016), The Hindu, accessed from- http://www.thehindu.com/opinion/columns/time-to-move- towards-a-new-litigation policy/Article16666713.ece on 24/11/17
- Betwa Sharma, India's Biggest Litigant Is Doing Little To Unclog The Courts (28/04/2016), The Huffington Post, accessed from- http://www.huffingtonpost.in/2016/04/28/the-indian government- is-_n_9776988.html on 24/11/2017
- Gaurav Vivek Bhatnagar, Government is the Biggest Litigant, says Modi but Little is Done to lessen the burden of Judiciary (22/01/2017), The Wire, accessed from https://thewire.in/101808/government-biggest-litigant-says-modi- little-done-lessen-burden-judiciary/ on 24/11/2017
- K. Mukundan, Supreme Court as Final Appellate Court of Administrative Justice: Operational Dynamics, The Academy Law Review (1985) vol. 9:1
- Nirmal Chopra, Does Article 136 of the Constitution needs to be revisited? AIR 2010 (Jour) p. 164
- T. Kochu Thomman, Arrears in Courts : Measures to contain them (1983)3 SCC 15 (Jnl)
Websites and Links:
- http://www.thehindu.com/migration_catalog/Article16297232.ece/ BINARY/R.K.%20Jain%20Memorial%20Lecture%20by%20K.K.
%20Venugopal%20(109Kb - http://www.dnaindia.com/india/report-sc-judge-accuses- government-of-being-the-biggest-litigant-2060534
- http://www.nortonrosefulbright.com/knowledge/publications/5575 0/the-model-litigant-policy-in-the-spotlight
- https://www.limbs.gov.in/
Award Winning Article Is Written By: Mr.Vaibhav Yadav
Authentication No: AP347142881039-15-0423
