Time to move towards a new litigation policy

On the occasion of the Delhi High Court’s golden jubilee in October, the Prime Minister broached the problem of excessive government litigation. The Supreme Court, since the 1970s, has berated successive governments for being callous and mechanical in pursuing litigation. The Law Commission of India also studied this problem in its 126th Report in 1988, and made appropriate observations on this front. Besides being a constraint on the public exchequer, government litigation has contributed to judicial backlog, thus affecting justice delivery in India.

Government litigation reportedly constitutes nearly half of all litigation in the Indian judiciary. However, there are no government sources to confirm the actual quantum of its litigation. The absence of this statistic itself is an indicator of how ‘interested’ various governments have been in attempting to understand this problem or tackling it meaningfully.

National Litigation Policy, 2010

It would be incorrect to say that no attempts to tackle government litigation have been made. The Law Minister in the United Progressive Alliance government had launched a “National Litigation Policy” (NLP) in 2010 to transform the government into a “responsible and efficient” litigant. This concept of a national litigation policy has been explored by other countries as well. The Australian Taxation Office, for example, conducts its litigation in accordance with the PS LA 2009/9 Conduct of Tax Office Litigation, which is an elaborate set of guidelines obligating the government to be a model litigant.

But the NLP has failed as an initiative due to ambiguity. The NLP 2010 is replete with rhetoric and generic phraseology which has no scope for implementation. Instead of being an analytical policy document attempting to address the causes of excessive government litigation, it appears to have been drafted on anecdotal notions of the problem, with no measurable outcomes or implementation mechanism.

The NLP 2010 fails to provide a yardstick for determining responsibility and efficiency. The policy then idealistically states that there should be greater accountability regarding governmental litigation, and mandates “suitable action” against officials violating this policy. However, the text does not define this “suitable action”, or prescribe any method to conduct any disciplinary proceedings. The NLP 2010 also creates “Empowered Committees” at the national and regional levels, apparently to regulate the implementation of the policy. But there is ambiguity about their role and powers, resulting in lack of transparency in their functioning. While these committees are intended to be integral to the accountability mechanisms under the policy, the ambiguity in their roles and functions make them susceptible to a constitutional challenge.

The NLP 2010 also lacks any form of impact assessment to evaluate actual impact on reducing government litigation. This absence of a monitoring mechanism is evident from the fact that there is no data available even today to accurately verify the extent of government litigation in India. Without such evaluation, this litigation policy remains a theoretical, ambiguous and fairly inadequate document on the pretext of policy reform.

The way forward In 2015, after the National Democratic Alliance came to power, there was a discussion to review the NLP. This is yet to culminate in a revised NLP. While the Prime Minister’s recent comments may be some indicator of greater political will to deal with the problem, government response to the problem needs to be much more dynamic and resourceful. Worryingly, for example, like 2009, no proper detailed study of the amount or nature of governmental litigation in India appears to have been conducted. The present exercise of revising the NLP therefore appears to be again on preconceived and baseless notions of the problem. The Prime Minister himself acknowledged that the bureaucracy was not sufficiently motivated to tackle the issue. But a disinterested bureaucracy is hardly an excuse for not acting on a pressing issue.

Finally, the ongoing revision of the NLP needs to ensure certain critical features are not missed out: first, it must have clear objectives that can be assessed; second, the role of different functionaries must be enumerated; third, the minimum standards for pursuing litigation must be listed out; fourth, fair accountability mechanisms must be established; fifth, the consequences for violation of the policy must be provided; and sixth, a periodic impact assessment programme must be factored in. A litigation policy can have a profound effect on how the government thinks about itself as a litigant, and can help curb the problem, provided it is a constructed with a thorough understanding of the problem and offers solutions based on evidence rather than conjecture.

Ameen Jauhar is a Research Fellow at Vidhi Centre for Legal Policy, New Delhi. Views are personal.