The clogging of the courts or huge pendency of cases can mostly be attributed to three factors, firstly, the low judge to population ratio; secondly, governance failures and the consequent need for judicial intervention; and thirdly, because the Government itself is the biggest litigant. In 2018, the Supreme Court observed that owing to indiscriminate filing of appeals by the Government, there is a considerable clogging of the courts and delay in justice delivery to genuine litigants.
Justices Madan B Lokur and Deepak Gupta while expressing their displeasure over the government’s filing of appeals on identical questions of law said, “The couldn’t-care-less and insouciant attitude of the Union Government with regard to litigation has gone a little too far.”Interestingly, the Supreme Court in State of Punjab v.
Geeta Iron & Brass Works Ltd, 1978 had already observed that there is a need to make Government accountable for the expenditure wasted on litigation due to inaction, wherein, the court had also suggested that the state should try to resolve governmental disputes, in a sense of peacemaking, rather than in a combative nature.
It is a matter of practice and convention for the bureaucracy go in appeal against the judicial orders passed by the lower courts without the slightest application of mind on the claims made by the citizens.
And it’s a fact that the common man in most cases is shattered and forced into penury by the expenses bore by him till the matter reaches Supreme Court and on the other hand the frivolous litigation costs nothing to the bureaucrat, who actually makes the expenditure out of the taxpayers’ money. In this context, the126th Law Commission Report had highlighted the imbalance of bargaining power and subsequent unequal and uneven fight between an individual and the government on the basis of availability of resources, as an individual citizen has limited resources whereas the government has unlimited resources at its disposal.
Besides, it so happens on a lot of occasions that even though after getting a favourable order from the Supreme Court, the common man has to still fight for getting the order implemented, which even goes to the extent of filing a contempt petition.
On the contrary, the officials are often seen acting with alacrity and utmost sincerity even on a verbal order of the higher officials or political executives, without even ascertaining the fact that, whether such verbal order is reasonable or not. Therefore, under such circumstances, it is expedient for the Government to implement and follow its own National Litigation Policy, which says, “Litigation will not be resorted to for the sake of litigating.”
It is so because the Government, which ought to have behaved as a defender of the rights of the citizens, has actually evolved as a litigant whose actions have amounted to infringement of the rights of the citizens and has forced them to bear the ruinous costs of litigation.
So, it is necessary that the courts, including the apex court, need to introspect their conduct, in terms of going out of the way to accommodate the Government even though there are umpteen instances of delays in filing of appeals by Governments. There are occasions when even Governments, whether at State or Central, neither implement nor challenge the orders of the respective High Courts in the Supreme Court until well after the limitation period for filing of appeals has lapsed, and astonishingly without being sufficiently called upon to justify the delay.
According to ‘Statista Research’, the number of judges per lakh population in India by the year 2020 was over 1.4. Former Chief Justice of India TS Thakur opined in 2016 that the US had 150 judges per million people while India had just 18 judges per million. In the past few years, the ratio has improved, but it is still less than 20 judges per million. It is worth mentioning that there are as many as 40% to 50% vacancies at times in the High Courts.The apex court has on many occasions stated the frivolous litigations to be the major problem confronting the justice deliver system. According to the Ministry of Law and Justice’s ‘Action Plan to Reduce Government Litigation (2017)’, there are approximately 46 per cent pending cases pertaining to the Government.
Besides, the 230th Law Commission report (2009) on reforms in the judiciary has quite candidly stated that the responsibility of unclogging the judiciary remains with the Central and State Governments as they are the biggest litigants.
The facts remain thus and as the pendency of cases has gone up to 4.4 crore, which necessitates not just more judges but to reduce the number of cases filed by the Government and putting in stricter norms for admitting cases, including adherence to the National Litigation Policy.
(The writer is a lawyer and public policy expert and a Distinguished Adjunct Professor of Law and Media Studies at School of Mass Communication, KIIT University. He can be reached at sjyotiranjan3@gmail.com )