This article is written by Oishika Banerji of Amity Law School, Kolkata. This article deals with the problem of excessive government litigation and its repercussions in India. 

Introduction 

For over a decade now, Indian courts have been dealing with a backlog of cases that have contributed to the retardation of the efficiency of the Indian Judicial system. Introduction of fast track courts, Lok Adalats have been made in order to clear the backlog of cases. But with a slow rate of success in these institutions, the obvious step that the judicial system can adopt to avoid this deceleration is to reduce the number of cases entering the judicial system. The 2017 report released by the Ministry of Law and Justice shows that 46% of the cases entering the judicial system are coming from the government that also includes the public sector undertakings and other associated autonomous bodies.

This data is significant enough to reflect the excessive government litigations taking place over the years that are majorly delaying speedy dispensation of justice. It is unclear from the percentage of government-related cases knocking on the doors of the Indian courts what amount of cases are coming from which tier of the Indian government. This ambiguity is not only detrimental for the judiciary but also for the executive organ of the government as delayed disposal of cases is directly proportional to the delay in policymaking, and execution of administrative functions. This article aims to provide a view on the problem of excessive government litigation that is overburdening the courts of the nation, the reasons behind such issues, and the possible solutions to deal with these growing hurdles. 

What is government litigation? 

The term “litigation” signifies a legal action or a lawsuit. Any individual who is involved in the legal action or the lawsuit will be known as a litigant. The litigant can either be a person who is suing someone or an individual who is being sued by someone. Now, the understanding of these two terms will help us devolve into the concept of government litigation. When the government is a party to legal action and is either being sued by someone or is suing someone, the government becomes the litigant thereby coining the term government litigation. With government litigation constituting approximately half of all other litigations in the judiciary and being responsible for majorly contributing to the problem of pending cases in the Indian Judiciary, the concept has attracted debates and discussions. The majority of the government litigations involve one department of the government suing the other or being sued by the other and many of them lays back in the courts as the parties fail to prove their reason behind suing each other. Further, there exists no indicator which can keep track of the number of cases filed by or against the government in a year thereby eliminating the presence of any kind of evidence-based on which action can be taken. This issue has remained static in its position for several years now. 

The existing policies on government litigation in India

To understand the existing policies on tackling government litigation in India, the timeline provided hereunder needs a reference: 

1. The 126th Report of the Law Commission of India which was prepared on the basis of Government and Public Sector Undertaking Litigation Policy and Strategies had first expressed the need to have a dispute disposal mechanism for disputes related to government matters in order to avoid unnecessary load on the judicial system. This recommendation was further taken up by the Ministry of Law and Justice in 2009 as a consequence of which the first step of establishing a National Litigation Policy for reasonable decision-making in resolving government disputes and ensuring responsible litigation on the part of the Central Government and the State Governments, was laid down. 
2. National Litigation Policy was first formulated in the year 2010 with the aim to make the government an efficient and responsible litigant thereby ensuring the protection of the citizens’ fundamental rights whose implementation is an obligation on the part of the State. Unfortunately, the 2010 policy lacked application in reality. 
3. The loopholes existing in the implementation of the 2010 policy were taken up in 2015 with a reviewed and modified National Litigation Policy. But, it is necessary to note that although different states of the nation have their own government litigation policy, a uniform National Litigation Policy remains uncertain. 
4. In 2017, the Ministry of Law and Justice brought in the “Action Plan to Reduce Government Litigation” the purpose of which is to ensure the breakdown of the burden of cases that each department carries with itself. But, the functioning of this Plan remains unclear even after four years of its introduction by the government. Whether the Action Plan is effectively working to attain its purpose, or it remains an unused tool in the government’s hand is not unambiguous till now. 

Indian judicial system’s take on government litigation 

It was in the case of Dilbagh Rai v. Union of India (1974) where Justice Krishna Iyer made an observation about the lack of a litigation policy on the State’s part. The Supreme Court of India laid down certain observations concerning government litigation which are as follows:

1. The State is the largest litigant and the huge amount of expenditure involved in the litigation process “makes a big draft on the public exchequer.”
2. Taking into account the immense amount of responsibility, and obligations vested on the State, it will not be wrong to expect the presence of a reasonable amount of fairness in the government as a litigant. 
3. India being a welfare state, the government of the nation must not act in a way that defeats the purpose behind the constitution of a welfare state. By suing a poor employee, the government authority by itself defeats the purpose of framing any policy aids for the poor individuals of the nation. 

Justice Krishna Iyer made the purpose of government litigation clear by stating that, “The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak, the government shows a willingness to settle the dispute regardless of prestige and other lesser motivations which move, private parties to fight.”

The observation made by the Supreme Court of India on the government litigation policy in the noteworthy case of State of Punjab v. Geeta Iron & Brass Works Ltd (1978) calls for a discussion as well. The Apex Court opined that a litigation policy for the government should be such that the government resolves disputes with citizens of the State in a conciliation manner by means of logical understanding, and not like two rivals seeking revenge from each other. The Court further went ahead to mention the need for a law officer who will be appointed by the government itself to resolve the dispute that has arisen without approaching the courts every time there is a fallout. Another important point taken into account by the Court in the present case was the responsibility of the government for being responsible for overburdening the Indian judiciary. On this ground, the top court while disclosing its interest mentioned that the Parliamentary social audits must hold the government responsible for the expenditure spent on litigation that eventually flows down the drain. With these observations, the Court concluded its viewpoint on government litigation with the hope of a responsive behavior on the part of the government thereby avoiding wastage of public money unnecessarily. 

The 2003 case of Forests v. Collector that appeared before the Apex Court of India threw light on the cases that involved one department of the government against the other. The Court observed that it appears to be not reasonable enough for inter-departmental controversies to appear before the court of law and be responsible for wasting public money, and the precious time of the Court. The Court also referred to the intention of the framers behind the framing of the Indian Constitution, and the Code of Civil Procedure, 1908 which was never to resolve a tussle between the departments of the same organ of the government as the same was never expected to take place. When a department of the government files a writ petition against the other thereby invoking extraordinary jurisdiction of the High Courts under Article 226 of the Indian Constitution, the same goes against the basic principles of law which require a juristic person for being sued or suing someone. A significant part of the observation made by the Supreme Court of India, in this case, was the recommendation on the formation of an effective mechanism by the government itself to resolve any kind of inter-departmental disputes, and ensuring the functioning of the departments in harmony with each other. 

The case laws that have been discussed above reflect on the judiciary’s take on excessive government litigation. In all these three notable cases, the Supreme Court of India has laid down measures to curb the steep rise in government litigation which has excessively affected public money and the time of the courts. But, has the government accepted and followed the Supreme Court’s guidelines remains a matter of concern. 

Why is excessive government litigation an issue

To understand why excessive government litigation is an issue for both the Judiciary and the Executive, the following points need to be taken into consideration:

1. Excessive government litigation burdens the courts of India with an unnecessary workload which affects the functioning of the courts thereby slowing down the delivery of justice to the citizens of the nation.
2. Litigation involves a huge amount of expenditure and the same increases with an increase in the time period. In case of government litigation, the expenditure is carried out by using the public’s money which they pay to the government by means of tax. Prolonged government litigation is therefore wastage of the public’s hard-earned money by the government. 
3. If the government of the nation is constantly involved in a tussle with the citizens of the country, then in that case the basic fundamentals of a welfare state are defeated thereby restricting the working of a democratic nation. 
4. When various departments of the government sue each other, the overall functioning of such departments is affected which impacts the working of the government as a whole. With litigation taking away all their time, the departments will put a brake on the discussions on the formulation of various policies which will subsequently affect the citizens of the nation. 

The need for an effective National Litigation Policy

As of the data collected in 2016 regarding the number of cases pending in different courts across the nation based on government litigation, the pendency in the Supreme Court of India was about 60,750 cases whereas High Courts were burdened with 40 lakhs cases on government matters. The number in District and Subordinate Courts was 2.74 crores. It has been observed over the years that the department of the government that has the majority of the cases pending before the courts is the Railway Department with 66,685 cases among which 10,464 cases are pending for over ten years now. Comparatively, it is the Ministry of Panchayati Raj that has the lowest number of cases pending.

As we have noticed previously, the promulgation of a National Litigation Policy terribly failed due to default in implementation, the need for the nation to have such a policy stands indispensable to execute the following functions provided hereunder:

1. The National Litigation Policy will provide effective mechanisms that can work with two-goal motives which are to reduce government litigation thereby reducing courts’ burden, and provide a logical medium of disposing of disputes related to government matters.
2. The National Litigation Policy will promote the development, and adoption of Alternative Dispute Resolution by the government thereby reducing the approach of the government to drag the court of law in every minute dispute. 
3. The National Litigation Policy will cover all three stages of dispute which are the pre-litigation, litigation, and post-litigation stages. This will help the government, and associated bodies to resolve their disputes in a systematic manner. Disposal of cases will be easier in this case and subsequently, the backlog will be reduced to a significant extent. 

Though these are not the only reasons why there arises a need for a National Legal Policy in India, these grounds are indeed the major ones. 

Conclusion 

The government must indeed take the issue of overburdening the courts with excessive government litigation on a serious note. The responsibility of letting the judicial system function with efficiency in order to render justice to the people of the nation, the government must not interrupt the functioning of the courts with disputes that can be resolved by government-made mechanisms only. Formulation of a National Litigation Policy as soon as possible will help both the Executive and the Judiciary to function in a constructive way without disrupting the working of each other.

References

1. https://vidhilegalpolicy.in/wp-content/uploads/2019/05/GovernmentLitigationFinal.pdf
2. https://www.jstor.org/stable/3053691?seq=2#metadata_info_tab_contents
3. https://m.economictimes.com/news/economy/policy/time-is-ripe-for-govt-to-bring-national-litigation-policy-to-reduce-cases-vp-singh-azb-partners/articleshow/77199842.cms
4. https://www.manatt.com/government-litigation-and-administrative-law

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