Last November, the Prime Minister gave a clarion call for ‘Sabka Nyay’ making his vision and approach of ‘Sabka Saath, Sabka Vikas’ three pronged. This third limb of Modi’s model of collective growth and development is however caught in the quagmire of mounting arrears on court dockets. This was well recognized by the Prime Minister himself in October 2016.

While addressing the Golden Jubilee Celebrations of the Delhi High Court, the Prime Minister identified ‘government as the biggest litigant’ and the need to ease the load on the judiciary by reducing the litigation where government is a party. Given that the judicial structure of our country is swamped with long delays in disposal of cases, it transforms into a multi-dimensional problem of access to justice. This in no way fits into the Prime Minister’s vision of ‘justice for all’.

With Modi due to complete his third year in May 2017, his government is yet to exhibit plausible and diligent efforts to make ‘Sabka Nyay’ an achievable dream by facilitating a reduction in government-initiated litigation thereby making government a responsible litigant.

The State is fundamentally duty bound to devise mechanisms for curtailing government-led litigation and ease clogged dockets of courts. This makes it imperative that the Centre, State Governments and all instrumentalities or agencies of the State under Article 12 of the Constitution should demonstrate model conduct in handling State-generated litigation. Despite no authentic government data on record, approximately 46 per cent of cases involve government as a party. Such cases range from service matters to indirect taxes. It resurrects a debate on ‘litigation policy’ towards protecting public faith and confidence in institutions of justice.

The adverse repercussion of the lack of a national policy framework to handle government litigation has been repeatedly highlighted by the judiciary. In one of the earliest judgments on this matter, late Justice V. R. Krishna Iyer very aptly highlighted the role of a State in litigation. In Dilbagh Rani vs Union of India 1974 (3) SCC 562, para 25, Justice Krishna Iyer observed: “….But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook: for the State’s interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity.”

In 1976, a bench led by Justice Krishna Iyer highlighted this issue in the appeal against the State of Bihar.

Less than five years later, in Mundrika Prasad vs State of Bihar, 1979 (4) SCC 703, para 5, Justice Krishna Iyer again observed that a litigation policy is vital for any State if resources are to be husbanded to reduce rather than increase its involvement in court proceedings. He also observed that in this country where government litigation constitutes a sizable bulk of the total volume, it is important that the State should be a model litigant with accent on settlement.

Around the same time, another bench of the Supreme Court also lamented the frivolous appeals filed by government authorities. In State of Punjab vs Geeta Iron and Brass Works Ltd., (1978) 1 SCC 68, dismissing a Special Leave Petition by the State of Punjab, the Supreme Court observed that defeat of the State demonstrated the gross indifference of the administration towards litigative diligence. The court also categorically noted that “Government must be made accountable by Parliamentary social audit for wasteful litigative expenditure inflicted on the community by inaction”.

More recently, in Punjab State Power Corporation vs Atma Singh Grewal, (2014) 13 SCC 666, the Supreme Court sternly dealt with a frivolous appeal filed by a statutory body (Punjab State Electricity Board). The Apex Court devised a new method of mitigating the influx of unreasoned appeals by the State and Public Sector Undertakings (PSUs) and inflicted a personal cost on the officer who authorised the filing of the appeal. It upheld an order of the High Court to recover cost of Rs 10,000 and doubled the penalty.

Following quite the same approach, the Law Commission of India, which is a creation of the union government itself, has been making observations about the heavy litigation emanating from unnecessary appeals by the government agencies/undertakings. The Commission’s 54th Report (1973) and 125th Report (1988) testify that recommendations have repeatedly been made to the Union Government for adoption of a national litigation policy to efficiently handle this vexed issue which impairs the working of courts.

The concern of the National Litigation Policy is not new but certainly alive. Post independence, the first voice for such a policy framework was raised in the All India Law Ministers’ Conference in 1951. It was raised again at the same conference in 1972. The most recent concrete effort was channelised by the UPA led union government with formulation of the ‘National Litigation Policy 2010’. The “vision/mission” of this policy was to transform Government into an efficient and responsible litigant.

Undeniably, the Central Government has a primary duty to protect rights of citizens, and to respect their fundamental rights. It should emerge as a ‘responsible litigant’, not a ‘compulsive litigant’. Unfortunately, this policy never saw the light of the day as it could not be placed before the Cabinet. With the NDA-led government coming to power in 2014, the baton was passed to the Modi cabinet. But the framework is far from reality.

But almost every state of India, in fact all except Telengana, has a State Litigation Policy (“SLP”) in place. These states pursued the need to streamline government-generated litigation in line with the recommendations of the 13th Finance Commission to improve the justice delivery system. Grants, government orders and guidelines issued by the Government of India on 5 May 2011 for implementing recommendations of the 13th Finance Commission carried a specific condition that states would be eligible to draw installments beyond the first fiscal years of 2010-11 only if they would adopted and notified State Litigation Policy.

This condition was reasoned because the Finance Commission had earmarked a grant of Rs.5000 crore over its award period 2010-15 towards strengthening justice delivery institutions and mechanisms across the country.

All these State Litigation Policies have been formulated to reduce average pendency of cases from 15 to three years which was one of the principal objectives of the National Legal Mission for Justice Delivery and Legal Reforms of 2010. Some of the cardinal features of the State Litigation Policies include severe restraint on adjournments sought by government lawyers, effective drafting of pleadings and reduction in filing of frivolous appeals or appeals devoid of legal reason by government bodies, which has been highlighted as a major concern by the Supreme Court and High Courts across the country.

Greater reliance on methods of Alternative Dispute Resolution (ADR) for resolving inter-departmental disputes or disputes between statutory bodies and private individuals has also been encouraged by courts in India. Hence, every State Litigation Policy carries a specific section or a chapter on ADR to settle disputes outside the courts and thereby reduce the workload of courts.

The Fourteenth Report of the Committee on Petitions of the 16th Lok Sabha of August 2016 notes that the National Litigation Policy (NLP) has been refurbished as NLP 2016. But it is yet to be finalised and approved. This is tardy especially when the Finance Commission had noted that over 3 crore cases were pending in the country. Such a policy is also vital because in 2016 India has performed poorly on the World Justice Project’s Rule of Law Index by being placed 66th among 113 countries. The Prime Minister will have to ensure that the National Litigation Policy gets approved by the cabinet and notified without any further delay.

The writer is Assistant Professor of Law, National Law University Odisha (NLUO) on deputation as Assistant Registrar (Research), Supreme Court of India.