Given the staggering number of pending cases in courts (estimated at over 30 million), any attempt to reduce the backlog deserves to be applauded. Since governments at the Centre and in the States are litigants in more than two-thirds of these cases, any official strategy to tackle judicial arrears must look inwards. The National Litigation Policy (NLP), unveiled recently by Law Minister Veerappa Moily, does exactly this by seeking to change governmental attitude towards litigation. Its central thrust is to transform government from being a compulsive litigant to a responsible, even reluctant, one. To achieve this aim, the NLP contains a series of guidelines for the filing of appeals, the availing of adjournments, and the seeking of arbitration as an alternative dispute resolution mechanism in certain kinds of financial cases. The policy envisages the appointment of nodal officers in government departments to proactively manage litigation and the setting up of empowered committees to monitor the implementation of the policy.
An interesting aspect of the NLP is that it addresses the issue of judicial backlog or delay not through the usual methods of structural reform (for example, by introducing amendments to existing acts to speed up cases) or raising additional resources (for example, having more courts or more judges). It does so entirely operationally — by attempting to change mindsets. But the goal of avoiding “litigation for the sake of litigation” is not easy in an environment where government officials are apprehensive about the consequences of making the right decision. Rather than risk criticism or come under some kind of scrutiny later, officials prefer to take the safe course — approach the court and let it decide. A climate of far greater security needs to be created in order to encourage them to take firm, independent decisions about which cases need to be pursued, which need to be dropped, and which are better suited to arbitration. It is important to stress here that such discretion is worthwhile only if it promotes rational and objective decision-making. Such discretion also carries a risk. If, for example, nodal officers are corrupt and choose not to file cases or not to go on appeal for wholly extraneous reasons, then justice will be subverted. The NLP cannot be faulted on paper but, as with any broad policy document, the key lies in the implementation. In this case, the challenge will be to ensure that the whole process of managing litigation, with the stated objective of reducing the number of pending cases involving government by half, is not allowed to be marred by corruption and bias.
