India’s justice system, a cornerstone of its democracy, finds itself strained under the weight of a seemingly insurmountable problem – an avalanche of pending cases. While overburdened courts grapple with a backlog that stretches into years, a significant portion of this litigation burden originates from an unlikely source: the government itself. Former Chief Justice NV Ramana aptly christened the government the “biggest litigant,” accounting for nearly half of all pending cases. This ‘docket explosion’ is attributed to the inefficiencies within various wings of the executive and the legislature’s inability to fulfil its legislative potential. This translates to a nightmarish reality for citizens seeking justice, facing delays that erode their faith in the legal system, and a colossal financial drain on the public exchequer.

Reasons Behind Excessive Government Litigation

Understanding the reasons behind this phenomenon necessitates a deeper dive into the functioning of the executive and legislative branches.

• Executive Inertia: Inefficient government functioning is a breeding ground for disputes. Poor policy implementation, sluggish decision-making riddled with red tape, and a lack of accountability within departments all contribute to situations that ultimately end up in court. Imagine a citizen denied a rightful social welfare benefit due to bureaucratic hurdles – a lawsuit becomes the only recourse.
• Legislative Loopholes: Laws riddled with ambiguities and loopholes create fertile ground for misinterpretations. Vague language or conflicting provisions leave room for conflicting interpretations, leading to litigation as parties seek clarity from the courts. A classic example: Ambiguous tax regulations can lead to disputes between businesses and the government, clogging commercial courts.

Nearly a fifth of all government lawsuits involve delayed appeals filed past the deadline. This is according to Senior Advocate Ajit Kumar Sinha, who points out that these appeals are often just a formality and are ultimately dismissed by the courts. The Economic Survey of India reinforces this point, highlighting the extensive nature of “wasteful litigation” by the government. The survey specifically criticises the government’s practice of appealing tax cases, even though they lose a staggering percentage of these appeals – 73% in the Supreme Court and a whopping 87% in the High Courts. Despite these high rates of failure, policymakers continue to routinely file these appeals.

Data from the Ministry of Law & Justice reveals that the Union Finance Ministry is the largest litigant among central ministries, followed closely by Labour and Railways. The total number of pending cases involving central government ministries stood at 2,85,553 as of December 31, 2022. As per the legal experts, the actual number of cases could be significantly higher, as the provided figures do not account for cases involving ministries that are pending before the Supreme Court. 

The problem is further exacerbated by a worrying trend: a rise in contempt cases against the government for defying court orders. This blatant disregard for judicial pronouncements not only undermines the rule of law but also raises questions about the very purpose behind much of this government litigation. Is it genuinely seeking justice, or merely employing litigation as a tool to delay or obfuscate accountability?

The financial cost of this courtroom battle between the government and its citizens is staggering. In a ten-year period ending in 2023, the government haemorrhaged a whopping Rs. 511.1 crore on legal fees alone. The true cost, however, extends far beyond monetary figures. It erodes public trust in the government and the legal system, creating a sense of helplessness and disillusionment. Imagine the potential for positive societal impact if these resources were redirected towards crucial areas like healthcare, education, or infrastructure development. Forget redirection towards these crucial areas; even if these resources had been redirected towards lowering the litigation cost, the picture would have been different in the future.

A National Litigation Policy: A Beacon of Hope

Experts point towards a National Litigation Policy (NLP) as a potential solution. Drafted in 2011 but never implemented, a well-defined NLP could act as a much-needed framework to streamline government litigation. The policy could establish precise criteria for initiating and pursuing cases, aimed at curbing frivolous litigation and ensuring efficient resource allocation. Picture a system where departments must justify each case, considering factors such as potential financial implications and the likelihood of success. It could also encourage the use of Alternative Dispute Resolution (ADR) mechanisms like mediation and arbitration would be a cornerstone of the policy. However, implementing a National Litigation Policy and fostering a culture of responsible litigation will not be without its challenges. Bureaucratic inertia, resistance to change within government departments, and a lack of awareness about ADR mechanisms are all hurdles that need to be overcome. However, the potential benefits are undeniable.

The Immediate Solution Lies Beyond the Policy

While a National Litigation Policy offers a long-term solution, there’s a need for immediate action. The central government could run pilot projects in ministries with high caseloads. Each ministry would establish a dedicated legal committee, composed of experienced jurists or legal experts, to oversee the handling of legal matters. These committees, led by retired jurists with impeccable credentials, will operate independently to ensure impartial review. These pilot committees could review both new and pending cases. The primary objectives of these committees would include:

1. Case Analysis and Merit Evaluation – This will involve evaluating whether new cases brought forward by ministries merit litigation. It will consider factors such as legal merit, potential for resolution through alternative means, and the overall impact on resources and time. For existing cases, the focus will be on assessing their current stage, identifying bottlenecks, and determining opportunities for expedited resolution. This could involve reviewing case management practices, identifying cases ripe for settlement, and prioritising those nearing resolution.

2. Recommendation of Settlements – The pilot committees, led by experienced retired jurists, would identify cases suitable for settlement. This process will involve weighing the costs, risks, and benefits of settling versus continuing litigation, aiming to reduce the backlog and expedite case closure. Instead of automatically opting for litigation, cases deemed suitable might be diverted to mediation, arbitration, or negotiation.

3. Utilisation of ADR Mechanisms – This will promote the use of ADR methods known for their efficiency and effectiveness. This includes creating awareness within ministries about the benefits of ADR, training personnel in ADR techniques, and establishing frameworks for their consistent application. It will also help build internal capacity within ministries to handle disputes through ADR methods effectively. This will involve training staff, appointing qualified mediators/arbitrators by the committee, and fostering a culture where resolving disputes outside of courts is seen as a viable and beneficial approach.

4. Increase Accountability of Executives – In addition to the operational aspects of case management and dispute resolution, the initiative will emphasise accountability among executives, especially permanent executives. The legal committee will be tasked with reviewing and overseeing bureaucratic actions and inactions. The committee will ensure that bureaucratic actions align with legal norms and government policies. The committee will also be responsible for compiling periodic reports detailing their findings and recommendations. These reports highlight areas where improvements are needed, commend exemplary practices, and suggest strategies. By holding bureaucrats accountable for their actions, the initiative will promote a culture of responsibility and transparency within ministries. 

Together, this initiative will foster greater efficiency in handling legal matters, reduce the likelihood of unnecessary litigation, and ensure that resources are utilised judiciously. Furthermore, the central government should encourage states to adopt similar pilot projects within their administrations. By sharing best practices and learnings from these pilot programs, a collaborative approach can significantly reduce government litigation across the country. A national conversation on best practices is a must, with states learning from each other’s successes and failures in managing litigation.

Some departments have taken steps to reduce litigation. For example, the Central Board of Direct Taxes (CBDT) increased the monetary threshold for filing cases, thereby reducing the number of trivial cases reaching higher courts. The Railways Ministry relies on departmental meetings and circulars for better case monitoring, though these measures require further enhancement. Such departmental reforms should be standardised and monitored for effectiveness. However, the responsibility to address this issue lies not just with the government. Different stakeholders can contribute significantly to the solution. The judiciary can streamline court procedures, promote the use of technology in case management, and encourage judges to actively explore settlement options, all of which can reduce litigation. The Bar Council can play a crucial role by educating its members on the importance of responsible litigation practices and promoting the use of Alternative Dispute Resolution (ADR) mechanisms. Civil society, including public interest groups, can raise awareness about the issue, advocate for a National Litigation Policy, and monitor the government’s progress in implementing reforms.

Conclusion: Towards a More Efficient and Equitable Justice System

In conclusion, India stands at a crossroads. It can continue down the path of excessive government litigation, further straining its already overburdened judicial system. Or, it can seize the opportunity to embrace innovative solutions and embark on a journey towards a more efficient and equitable justice system for all. The choice is clear. A National Litigation Policy, coupled with innovative solutions like pilot committees, a focus on alternative dispute resolution, and a spirit of collaboration between the central and state governments, offers a path forward. By taking these steps, India can clear court backlogs, save taxpayer money, and ensure a more efficient and equitable justice system. This, in turn, would strengthen the pillars of Indian democracy by fostering greater public trust in the government and the legal system.