Litigation
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This article is written by Varchaswa Dubey from JECRC University, Jaipur. This article is a work concerning civil litigation in concern with government and private parties and the need to have a reform in the system.

Introduction 

Civil litigation refers to the court process where civil matters are dealt with. The proceedings do not involve any type of criminal or crime itself but the violation of civil rights. The proceedings revolve around redressal, rights, compensation, and obligation to fulfil the contract, etc. 

The current article aims at providing a better understanding of civil litigation vis-a-vis government and private litigation and the alternative to eliminate the burden on litigation. The article also contains in depth study of civil litigation, government litigation, and private litigation.    

Civil Litigation 

  • According to Black’s law dictionary, litigation refers to the “Contest in a court of justice for the purpose of enforcing a right” while litigant refers to the party to a lawsuit, or one who is engaged in litigation. 
  • Civil litigation concerns actions that are challenged in the court of law, and involves a claim, a conflict of interests, a dispute of land, applications, reviewing of contracts, or conflict of any other kind. 
  • Civil litigation in India is usually governed by the Code of Civil Procedure, 1908 where all the significant aspects of litigation concerning civil matters are mentioned. 

Importance of civil litigation 

Litigation is considered as one of the basics in the court of law, where one party argues its case. The importance of having litigation is:

  • It has assisted in the better transformation of the school, prisons and its prisoners, health facilities, the administration, the government, and the overall society at large.
  • Litigation also makes the system transparent as various writs in courts are a part of litigation.
  • Litigation keeps checks and balances of the law and the law enacting authorities. 
  • It is also a human rights champion, when the human rights of a person are infringed, litigation is the most suitable option.
  • Litigation challenges such state policy which is violative of the human rights of the citizens.
  • Litigation is not only practised in association with providing legal aid, but also litigation becomes the voice of the needy persons. 
  • Litigation is one of the best ways to run the system since most of the violations can be challenged under civil litigation, etc. 

Types of cases in civil litigation 

The practice of civil litigation is wide and includes numerous types of cases like:

  • Torts: It refers to a case where one party  alleges that wrongful harm has been caused to them, including personal safety, monetary injury, accidental and intentional damages, breach of contracts, fraud, malpractice, defamation, etc,
  • Breach of contracts: Cases concerning breach of contract often arise when any party to a contract fails to fulfil its duty towards the contract, it may include non-compliance with the terms of the contract or failure to deliver the due payment of the other party, terminating the contract without any notice, etc,
  • Claims: When a party seeks claims, it refers to compensation such a party is entitled to any reason. An aggrieved party may claim monetary compensation, restoration of property, stay order from the court, demolition of the property, transfer of land, etc.
  • Tenant issues: Civil courts also entertain landlord-tenant issues, where the landlord may not be getting his due payment or maybe trying to evict the tenant from the property such person is residing as a tenant, etc. 

Government and Private parties 

The government indeed needs to fix the backlogs and pendency of the cases before it. The backlogs have ceased the smooth delivery of justice and the reason for such a backlog is the failure of the legal mechanism of India. 

Government litigation

On 13th June, 2017, the Department of Justice bestowed an Action Plan to reduce Government Litigation to reduce the number of pending cases and to create awareness about the problem. According to the report, as of 2016, 60,750 cases are pending in the Supreme Court of India, 40 Lakhs cases in High Courts and 2.74 crore cases in District and subordinate courts. The data of the concerned report states that the government, including public sectors and other government bodies are responsible for approximately 46% of total court cases in the country which makes the government the biggest litigator in the country.

Government litigation includes service matters, disputes of private parties, and disputes of two different government departments including different ministries like railways, finance, communications, home, and defence.

The Law Commission of India in its 126th report dealt with the issue of policy relating to government and public sector undertaking and heavily criticized the current litigation policy of the government.

Issues with government litigation 

  • The burden of cases: Most of the civil cases are filed against the government and the government policies. On the other hand, the government is also a defaulting respondent in such cases.
  • High cost: Each case requires some financial assistance and therefore, every government litigation is costly.
  • Imbalanced power: Under government litigation, an individual fights a case against the whole system, which is well equipped comparatively, and therefore causing injustice to the individual.
  • Absence of regulating bodies: The government litigation is not monitored concerning the status of the case, delay of the case, etc and therefore such litigation is slow. 

Private parties litigation 

Any litigation which does not involve the government at both sides of the dispute shall be referred to as private parties litigation. This litigation mainly revolves around personal disputes of parties and each party instead of going to court may settle the dispute on themselves. 

Private parties usually litigate personal rights like property, copyrights, patents, land, etc. and when the parties in the dispute opt for litigation, they negotiate the terms directly or through their legal representative. Such hearings are often expensive, however, time is often less consumed. 

Issues with private litigation 

  • No credibility: Private litigation has no credibility because the decision which private parties reach may not be favourable to everyone.
  • Non-binding decisions: The outcome of private litigation may not be binding on every party to such litigation and the parties may, later on, deny their consent to abide by the decision of such litigation.
  • Uncertainty in decisions: The outcomes of such litigation are uncertain as compared to court litigation.

Private International Law   

It is the set of rules of law that govern the relationships of persons distinguished by physical and judicial aspects. International private law determines the legal provisions which will be applied to the arisen legal dispute between private parties to the case. Such litigation includes aspects of jurisdiction, choice of law, and foreign judgments which shall act as the precedent to the current case if the facts and circumstances are similar. 

Private international law is concerned with the allocation of law-making procedures among different states. Private international law also includes litigation, arbitration, and regulation among both, interstate as well as global disputes among different nations. It is usually associated with jurisdiction, rights of the parties, judicial precedents, obligations, violation of terms of the contract among parties, arbitration, sovereignty, failure of transactions, etc.

The initial law concerning international private law was enacted in the year 1955 as the Statute of the Hague Conference on Private International Law which established codified rules for international private law; however, only a limited number of countries have adopted this statute. 

Later, the United Nations, to recognize the value of arbitration as a method of settling disputes arising in international commercial relations, the United Nations Commission on International Trade Law adopted the UNCITRAL Model Law on International Commercial Arbitration in 1985. The UNCITRAL also recommended all countries to consider this Act and to pursue this, Indian legislation enacted the Arbitration and Conciliation Act, 1996

Arbitration

Arbitration refers to a procedure wherein a dispute is presented by the parties and when the parties agree to arbitrators, the arbitrators deliver binding decisions on the dispute. By choosing arbitration, the parties opt for a private dispute resolution instead of going to court. 

Characteristics of arbitration 

  • Consensual: Arbitration can only be practised if both the parties to the dispute have decided to undergo arbitration consensually and not for any other reason. If a party to an arbitration is influenced by any means, such arbitration stands void,
  • Parties are allowed to choose their arbitrator: During the proceedings of arbitration, all the parties to the dispute are allowed to choose their arbitrator, and the number of arbitrators as well, however, such number must be odd, 
  • Neutral in nature: Any arbitration proceeding is neutral concerning the environment, language, application of the law, etc, 
  • Confidential proceedings: All the arbitration proceedings are confidential and no outside parties or organizations are entitled to have information about such proceedings except for the final result of such arbitration. 

Advantages of arbitration 

  • Faster: The results of arbitration are usually decided quicker than the court of law since it is mandatory to make an award in 12 months, according to The Arbitration and Conciliation Act, 1996.
  • Flexible: Arbitration is more flexible since, in arbitration, parties can decide their dates, location, terms, procedure, etc. 
  • Private procedure: Arbitration is private because there are no such other parties except for the concerned ones whereas, litigation in courts is carried out in public which may expose certain secrets of the parties, and may affect its reputation, 
  • Cost-effective: Arbitration is cheaper than litigation since arbitration requires lesser time and resources, and the process is shorter compared to litigation in courts, 
  • Selection of arbitrator: During the arbitration, all parties can select their arbitrators and the number of arbitrators, however, such numbers must be odd. 

The need for reform

The current Indian mechanism has failed miserably to bring a revolution for the betterment of the system, especially in the court of law, where the pendency of cases is a constant hot topic. The most suitable solution to the current situation is the establishment of the concept of Alternative Dispute Resolution (ADR) in routine cases.

The proposed reforms are: 

  • Promotion and establishments of alternate dispute resolution centres, where the parties whose cases are pending may reach for faster solution, 
  • Nodal officers must be appointed at such places by the state, or central government to overview the effective working of such centres, 
  • The nodal officers must be held responsible in case of any delay in settlement of the parties, without any justification, 
  • The nodal officers must regularly monitor the cases and offer alternative settlements on behalf of the parties but with the consent of such parties, 
  • It shall be the duty of the state and central government that they promote such dispute centres with the assistance of press, media, and other sources who are subscribed by several people, 
  • The concerned state may choose a place for the establishment of such centres and quality awareness must be promoted regarding the benefits of such settlements, 
  • The centre must also deal with litigation matters concerning private and governments parties, and monitoring shall be the duty of nodal officers, 
  • In cases, where the policy is a matter of interest, the government may, after necessary orders, create a separate cell at the same centre where the arguments for settlements may take place daily, 
  • There must also be a fixed period of days after which, the dispute shall stand null and void, and the party who was able to build essential facts must be given the advantage of facts, 
  • After the expiry of such period, if the dispute does not reach any result, then the concerned nodal officer must be held responsible, if such officer is unable to give a valid excuse, 
  • The nodal officers must be observed by the state, and for this purpose, the state may appoint more officers who shall monitor nodal officers. 

Conclusion 

To resolve the issue of case burden on the judiciary, the government must implement better policies with strict guidelines and obligation on the mechanism which shall govern the whole system, not only to reduce the burden of civil litigation but also the burden of the government. 

The burden of cases in civil litigation is one of the most vital issues the contemporary Indian judicial system is facing and therefore other methods like arbitration or private litigation shall be adopted by parties, however, it is only possible if the government creates awareness about arbitration or private litigation. 

References


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