Government Biggest Litigant, Says Modi, But Little Being Done to Lessen Burden on Judiciary

The draft National Litigation Policy aims to make government an efficient litigant, however, the law ministry is yet to provided a timeline for its implementation.

Prime Minister Narendra Modi has twice in the past three months lamented that various government departments prefer to settle their disputes in courts and that there was a lack of coordination between them. However, the draft National Litigation Policy which seeks to address the issue through a multi-pronged strategy appears to have been lost in oblivion after being passed by the committee of secretaries, getting approved by a ministerial panel and reaching the union cabinet.

In such a scenario, Modi would do well to look in his own backyard for answers to some of the vexed issues that have been troubling him of late. As for the government or the Ministry of Law and Justice, there appears to be either a lack of appreciation for the urgent need for the new law or most of the key players are simply in the dark about it.

The Wire reached out to the law minister Ravi Shankar Prasad to get his views on the status of the draft policy and this article will be updated with his inputs. The union law secretary Suresh Chandra said that as a matter of policy he does not speak to the media. The minister of state for law and justice, P.P. Choudhary, however, said, “the matter is with the ministry and very soon the policy would be finalised to address the issues raised by the prime minister”. Choudhary, however, was unable to delve deeper into the subject.

`Not a healthy situation’

On January 20, the prime minister stated that it was not a healthy situation when “two departments of the same government confront each other in court to settle disputes by paying money to lawyers”.

Addressing a conference of ministers and secretaries, Modi had noted “unfortunately, government departments have a nature of working in silos. Sometimes there are so many silos within the department. There is no coordination between departments. That is why if one department thinks about a particular programme, the other department thinks completely opposite of that.”

He had suggested that the way forward was to “sit together and in detail, under a broad vision, think about the roles each department needs to play and what results we can bring.”

In October, Modi had spoken about the same issue while addressing the golden jubilee celebrations of the Delhi high court when he mentioned how the government was the “biggest litigant” and called for lessening the burden on the judiciary, saying it spent the maximum time in dealing with cases in which government was a party.

Government a litigant in over 46% cases

Incidentally, while no definitive figures are available about the number of cases, the government departments were involved in at least 46% of the court cases.

Modi had also spoken about how one case should set an example for the government for other similar cases. He said that if a teacher wins a service matter from a court, then the judgment should serve as a benchmark for providing similar relief to all other similar litigants.

Incidentally, the draft National Litigation Policy provided answers to several of the issues raised by Modi in the two interactions.

Cleared by committee of secretaries

In June 2015 it was cleared by the committee of secretaries and was subsequently sent to a high-powered panel of ministers comprising home minister Rajnath Singh, finance minister Arun Jaitley, transport minister Nitin Gadkari, the then telecom minister Ravi Shankar Prasad and the then law minister D.V. Sadananda Gowda.

Subsequently, in September 2015, the then law minister Gowda had stated that the Centre has proposed that the national litigation policy would be ready in a month and it would assist in the out of court settlement of cases among government departments, public sector undertakings and other government bodies.

Gowda had also spoken about how the inter-department and inter-ministerial consultation on the proposed policy had been completed and the papers were subsequently sent to the Prime Minister’s Office for placing them before the cabinet.

However, while over 17 months have passed, little is known about the draft policy and its final shape. This, despite Modi stating soon after coming to power in 2014 that reducing government litigation would be one of his priorities.

The policy was initially thought of by the Manmohan Singh government in 2010 but could not be implemented. According to Ameen Jauhar, a research fellow at Vidhi Centre for Legal Policy, “little is known about the draft policy since September 2015”. He said that after Gowda was replaced by prasad as the law minister, nothing has been heard from the ministry or the minister on the issue. “It is surprising that the prime minister is talking about it and the law ministry is maintaining perfect silence on the issue.”

`A number of shortcomings’

Jauhar said the initial draft had a number of shortcomings. “For one, none of the departments know the real number of litigations the government is involved in. Without such data on cases, their nature and expenditure, how have they started working on a remedy?”

He said the exercise of revising the National Litigation Policy is also facing hurdles from the bureaucracy, which even Modi had said, was not sufficiently motivated to tackle the issue. “However, it is for the leadership of the day to assert itself and make the bureaucracy fall in line.”

Jauhar said that in order to have the desired impact, the revised policy must have clear objectives, must enumerate the role of different functionaries, list out the minimum standards for pursuing litigation, establish fair accountability mechanisms, provide the consequences for violation and should factor in a periodic impact assessment programme.

No timeline for new policy

Though the Ministry of Law and Justice noted that the draft National Litigation Policy was being formulated to make government a responsible and efficient litigant, it has not provided any timeline on when it would be implemented.

It had also stated that the draft policy would take preventive measures to reduce the filing of new cases by prescribing a procedure to properly deal with them, extend the benefit to similarly placed people and avoid litigation between government departments and PSUs through intervention of empowered agencies, restrict appeals to minimum by careful scrutiny of the implications of the judgment and make appeal an exception unless it affects policy of the government.

Though the paper had also spoken about how government would also assign legal functions to legally trained persons, ensure proper response to the claim of the petitioner, make efforts for clubbing of the cases and use technology, training programmes and monitoring mechanisms to improve the situation, the avowed desperation of the prime minister is indicative of the fact that in the case of the National Litigation Policy, words are taking too long to translate into meaningful action.

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