The Government is the biggest litigator in the various courts. It is time for a rehaul of the tendency where Governments go on appealing at the taxpayers’ cost even on matters that don’t deserve further attention
The Supreme Court judge who is due to take over as the Chief Justice of India later this year, Justice TS Thakur, has blamed “lack of governance” and “officials’ inability to take decisions” as the prime reason behind the deluge of cases choking the justice delivery system. Pointing out that the Government of India was a party in most cases that are pending across the courts in the country, Justice Thakur said that it was neither a good sign nor a good policy to drag all sorts of disputes to the courts.
“A lot of Government disputes can be easily resolved via mediation. Government needs to be responsive to time. large number of cases against the Government shows a lack of governance… It shows there is no proper screening of cases by the Government”, said Justice Thakur, while addressing the Asia-Pacific International Summit on Mediation on February 13.
The state is by far the biggest litigant in India and contributes a large part to the staggering backlog of civil suits — over 10 million at last count — clogging the courts. The extent of Government involvement in litigation was acknowledged by the then Prime Minister Manmohan Singh at a conference of Chief Ministers and Chief Justices in 2004. He revealed that a sample survey conducted in Karnataka found that, in 65 per cent of civil cases the Government was a litigant — sometimes on both sides. He observed that “Government litigation crowds out the private citizen from the court system”. There is little reason to assume that things have changed since then. The Chief Justice of India himself has drawn attention to the Government’s litigiousness on numerous occasions.
It is bad enough that a citizen is forced to approach the courts against the state; worse still is the tendency of the state to automatically appeal against adverse decisions to a higher court and to relentlessly pursue litigation all the way to the highest possible level. Also, while citizens litigate to seek remedy for administrative wrongdoings at their own cost, the Government goes to court on the taxpayers’ money.
While in service, this writer had the opportunity to examine some such cases. Usually, the matter was routinely recommended by the department which had lost the case in the lower court. The legal officers, already overburdened, rarely disagreed with the department’s opinion and, usually without even looking into the papers, approved it for further appeal.
The law Commission opined on this state of affairs that “the lack of accountability of the officer in whom the power vests to initiate litigation or perpetuate the same by preferring appeals, is largely responsible for mounting litigation... cases are not unknown where corrupt motives may be at the root of the tendency to continue litigation so as to exhaust the other side in the fond hope that he/she/it may, out of exasperation, be willing to grease the palms. The other cause generating this tendency to initiate or perpetuate litigation and that is to avoid taking decisions ...”
The law Commission also found that there was much avoidable litigation by the state. It pointed to the many instances where the judges found that citizens were compelled to litigate because of the “utter indifference” of the Government; whereas the Government, on the contrary, pursued litigation on “frivolous” grounds, as a “matter of prestige” with an attitude of “vengeance” or “callousness bordering on vendetta”, displaying “arrogance and a superiority complex”.
In its recommendations, the commission pointed to the need for mechanisms to resolve disputes between Government and the public through arbitration or compromise before going in for adjudication and gave a number of specific suggestions. Three-decade old recommendations of the law Commission, like the recommendations of numerous Committees, lie buried in Government cupboards.
There is no dearth of ideas and suggestions for reform. Several have been put forth by the law Commission of India and various panels like the Madhava Menon Committee. The High Court and the Supreme Court have also often made suggestions as to how to improve the justice delivery system.
Yet, the state seems to have ignored all of these. The mighty Government of India pretends total ignorance of the same and wants study after study to be done and reports furnished on the same subject again and again, in the sure belief that the public would not remember that this exercise has already been gone through.
More than five years ago, again and again, the Supreme court of India had observed: “The courts of Magistrates and Munsifs have ceased to be an option for the common man,” and compared the lower courts to ill-equipped and ill-staffed public health centres in rural areas…” “Only those people go there who have no other option. Over the years, the fact remains, that a large, a number of trials have been hijacked by manipulation. The accused have succeeded in manipulating the witnesses. The system in which we are involved, the judges and the lawyers have remained handicapped witnesses,” the Bench said.
Failure to provide adequate and easily accessible courts of justice is one of the principal cause of popular dissatisfaction with the administration of justice. The dissatisfaction arises from unmanageable backlog of cases (till October 31, 2011, a total of 56,383 cases were pending in the Supreme Court. As on September 30, 2010, the number of cases pending in High Courts was 4,217,903 and 2.80 crore in other courts), mounting arrears and inordinate delays in the disposal of cases in courts at all levels, coupled with accompanying exorbitant expenses.
The Minster himself gave the reasons for dealy as inadequate number of judges and delay in filling vacancies. The Minister identified granting of excessive adjournments, indiscriminate closure of courts and the lack of priority to disposal of old cases as other reasons for the case backlog. Against the norm of 50 judges or nearly 75,000 judges, we have about 19,000 sanctioned posts and nearly 14,000 in position. How can one person dispose the work of five persons, when every thing in the Court is to be recorded, apart from the numerous adjournment demanded on one ground or the other.
Here, both the patient and the doctor is the same, as providing justice should be the highest priority of the Government. If it wishes, it can do, instead of just giving vent to its intention. Man has been made in such a way that, when something fires his imagination, the impossible becomes possible. The only thing is that the difficult may take some time and the impossible may take longer.
Will the Government accept the challenge to provide quick and prompt justice to the citizens of the countryIJ