“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:

1. 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.
2. 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

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