Excessive litigation by State: Case for implementation of National Litigation Policy, 2010

Despite the existence of the National Litigation Policy and reprimand from the Supreme Court on numerous occasions, there is no significant positive effect on various government officials who continue to file frivolous and vexatious appeals that impose unnecessary burden on courts.

—

THE concept of welfare State entails the role of State as a guardian of citizens, both as a facilitator of a dignified human life, and also the protector of the rights and interests which ensure this dignity. While it is the duty of the State to form and implement policies for the benefit of citizens, ironically it is also common to witness different instrumentalities of the State adopting an adversarial route to contest against citizens approaching courts of law to claim the benefits denied to them under these very policies.

Recently, the Supreme Court imposed a penalty of ₹50,000 on the government of Uttar Pradesh for filing a frivolous appeal in a matter concerning the grant of retirement gratuity to a deceased government employee. In State of UP and Ors. versus Smt. Priyanka (2023), the deceased employee's wife had filed a writ petition at the Allahabad High Court after her application for gratuity was rejected. The husband of the respondent before the Supreme Court was a lecturer who passed away in 2009. Litigation in this matter continued for thirteen years over a technical issue that the employee had not opted for retirement at the age of 60 years.

The high court ruled in favour of the respondent to grant gratuity benefits, against which the Uttar Pradesh government appealed before the Supreme Court. The latter, while dismissing the appeal, deprecated the practice of the state in filing such cases before the Supreme Court, and dismissed the appeal with cost of ₹50,000 payable by the state government to the deceased employee's dependents.

This was not the first time that a government department had filed an infructuous appeal. In another case last year, where a petition was filed against the grant of bail to a cancer patient in a money laundering matter, the Supreme Court had imposed costs of ₹1,00,000 on the Enforcement Directorate (ED) officer who had approved the filing of the special leave petition against the bail. In Assistant Director, Directorate of Enforcement versus Kamal Ahsan & Anr. (2022), the court fixed accountability of the officer for preferring such an appeal, by fining the officer particularly and not the department, observing that the department ought not to have filed such a special leave petition, wasting stationery, legal fees and court's time, given the grave malignancy suffered by the arrestee.

These are not solitary instances of the State filing incompetent appeals or litigation against the claims of the citizens, and the courts have come down heavily on such conduct of the State.

The government tends to become a party in almost half of the total court cases in the country. As per a 2019 study, which cited a document by the Union Ministry of Law & Justice, the government, including public sector undertakings and other autonomous bodies, are party to around "46 percent" of court cases. The tendency of government agencies and undertakings to file unnecessary appeals was also taken note of by the Law Commission of India in its 54th report in 1973. Again, in 1988, the Law Commission, in its 126th report, adversely commented upon the reckless manner in which the State routinely files frivolous appeals.

The reasons for the State practising as a habitual litigant against citizens are not difficult to understand. Any litigation filed by the State is first approved by senior government pleaders like the Solicitor General of India and the Additional Solicitor Generals of India, or the heads of prosecutions at special agencies such as the Central Bureau of Investigation, the National Intelligence Agency and the ED. It is not out of place to state that the approval for litigation is generally given by these officers mechanically, without the application of judicial mind or going into the nuances of particular cases. This could be due to the overburdening of such offices and the lack of motivation to act in facilitation of welfare benefits to citizens, since the law officers are not government agents in the strict sense.

Also read: Unnecessary legal squabbles are wasting Supreme Court's time while important matters remain unattended to

Further, law officers usually act under the dictates of the executive without possessing any decisional autonomy of their own. The personal bias and ego tussle of the officers in settling scores with citizen litigants also needs to be factored in as one of the relevant considerations.

Apart from these, the lack of parliamentary accountability by way of an audit for wasteful litigation expenditure on the part of the government is also a crucial reason.

The long life of litigation pending in courts has deleterious consequences for the legal system of the country. Denial of justice seems to be the most adverse consequence. It is often said that justice delayed is justice denied. The wastage of time invested in deciding infructuous litigation breeds injustice. There already exist ample reasons for the high pendency of cases such as lack of infrastructure and shortage of judges, due to which the disposal of cases takes a long time, ultimately denying justice to the common man.

The litigation pursued by the State amplifies this pendency, when the pursuit of the State must be to work towards reducing the existing case load. This turns out to be counter-productive as the consequences are multifarious. Not only does it cause wastage of the court's time and resources, but also those of the citizen litigants.

The executive is well aware of the financial burden of litigation on the government as well as the judiciary. When translated into monetary terms, the negative consequences of adverse court decisions in such litigation on the government might be far less than the value of time and financial losses suffered by the State during the pendency of litigation.

In addition to the direct impact on the individual litigants in terms of hefty court fee and other litigation expenses, the expenditure incurred by the State on this litigation also impacts them remotely, as they are contributors to the public fund.

National Litigation Policy

This problem was identified by the Supreme Court back in 1974, when Justice V.R. Krishna Iyer voiced this concern in his opinion as part of the Supreme Court's judgement in Dilbagh Rai Jarry versus Union of India & Ors. (1973) in the following words: "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."

Despite such a state of affairs existing back then, it took more than half a century for the Union government to finally materialise it into a policy in 2010. To address the problem of excessive litigation on the part of the State, the Union government launched the National Litigation Policy (NLP). The policy was formulated to reduce the average pendency time of disposal of cases from 15 years to three years, with a vision and mission of making the government an efficient and responsible litigant. It was the first such attempt on the part of the Union government to reduce excessive litigation.

The principle which underlies this policy is the responsibility of the State to protect and respect fundamental and human rights, and that those at the helm of affairs shall be considerate of these fundamentals principles.

Some of the key features of the NLP are:

a)That false pleas and technical points will not be taken and shall be discouraged.

b)That litigation will not be resorted to for the sake of litigating.

c)The government must cease to be a compulsive litigant. The thinking that matters should be left to the courts for the ultimate decision has to be discarded. The easy approach of 'Let the court decide' must be eschewed and condemned.

d)In service matters, no appeal will be filed in cases where the matter pertains to a case of pension or retirement benefits without involving any legal principle and without setting any precedent or financial implications.

Also read: Expedite decisions on mercy petitions of death row convicts so that they know their fate and the victims get closure: Supreme Court to state governments

Recent developments related to NLP

Although there is no significant data in the public domain to apprise citizens of the status of this policy, there have been some developments and discussions around the policy, such as the publication of a list of nodal officers appointed across various government departments in 2017, and the release of the Legal Information Management & Briefing System platform in 2016 to overcome technological gaps.

Recently, in 2021, in a public interest litigation seeking implementation of the policy before the Delhi High Court, the Union government submitted that "a new and revised NLP would be in place in times to come". Except for a few other such instances, there has been no major mention of the policy.

While the intent and the vision of the government in framing the policy is welcome, it is overshadowed by its lax and lackadaisical attitude in pursuing the same. Back in 2013, the Supreme Court in Punjab State Power Corporation Ltd., Patiala versus Atma Singh Grewal (2013) observed that in spite of the government's own policy and reprimand from this court on numerous occasions, there is no significant positive effect on various government officials who continue to file frivolous and vexatious appeals that impose unnecessary burden on courts.

Even with the existing structure of the policy, there has been no reduction in the volume of such litigation, as is clear from the two recent examples from the Supreme Court cited above.

It is time that the State prioritises the streamlining and solidification of the policy. Otherwise, with the State armed with humongous resources at its disposal to pursue the litigation, the individual citizen, pitched against the State, will continue being trampled on.