MAY 17, 2019

By Naresh Minocha, Consulting Editor

LEGAL justice is getting injustice in this season of political NYAY (justice). Both Bharatiya Janata Party (BJP) and Congress Party have banished long overdue National Litigation Policy (NLP) from their respective manifestos.

And populism-smitten voters are least bothered about speedy justice for all. VVIP residents in Lutyens Delhi might get justice at the drop of gavel. A terror mastermind might get its appeal heard at mid-night. The hapless Aam Aadmi (common man) has, however, no option but to stand in queue for justice for decades.

Both BJP & Congress have turned deaf & dumb to the Supreme Court's fervent appeal to launch and implement NLP. The appeal figured in two separate judgments delivered during 2017 & 2018.

"When will the Rip Van Winkleism (RVW) stop and Union of India wake up to its duties and responsibilities to the justice delivery system?", stated the apex court in a verdict that focused on NLP delivered on 24 th April 2018.

RVW is derived from Rip Van Winkle, a character who slept for 20 years in a story penned by Washington Irving. He found the world changed when he woke up.

The Court posed RVW query after making a stinging observation: "Nothing has been finalised by the Union of India for the last almost about 8 years and under the garb of ease of doing business, the judiciary is being asked to reform. The boot is really on the other leg".

It concluded: "We hope that someday some sense, if not better sense, will prevail on the Union of India with regard to the formulation of a realistic and meaningful National Litigation Policy and what it calls 'ease of doing business', which can, if faithfully implemented benefit litigants across the country".

In both the NLP-centric judgments, the Government had acted as a belligerent appellant. In the judgment delivered in 2018, the Court imposed penalty of Rs. One lakh on the Government for pursuing an infructuous case.

In a verdict dated 23 rd November 2017 - 2017-TIOL-441-SC-IT in which Income Tax Department was an appellant, the apex court noted: "The propensity of Government Departments and public authorities to keep litigating through different tiers of judicial scrutiny is one of the reasons for docket explosion".

It added: "The Government, being a litigant in well over 50 per cent of the cases, has to take a lead in not being a compulsive litigant".

According to official statistics, as many as 58,029 cases were pending in the Supreme Court as on 01.02.2019. Similarly, 40.94 lakh cases were pending in High Courts and 2.96 crore cases were pending in District and Subordinate Courts as on 08.02.2019.

NLP was unveiled by Congress-led United Progressive Alliance (UPA) on 23 rd July 2010 to slash average pendency time for court cases from 15 years to 3 years by 2012. Releasing the policy, UPA Law Minister Dr M. Veerappa Moily stated this policy would be implemented from 1st July 2010.

As put by NLP, "Government must cease to be a compulsive litigant. The philosophy that matters should be left to the courts for ultimate decision has to be discarded. The easy approach, ‘Let the court decide', must be eschewed and condemned".

NLP is based on the recognition that Government and its various agencies are the predominant litigants in courts and tribunals. Its aim is to transform Government into an efficient and responsible litigant.

The trigger for NLP were the two reports of Law Commission. In its 126th report released during May 1988, Law Commission observed: "The Government, as far as the litigation is concerned, is in a class by itself. It is the biggest litigant in this country. And one is constrained to say that for unmanageable litigation, it has neither a policy nor direction nor effective method of management".

The Report was captioned 'Government and Public Sector Undertaking Litigation Policy and Strategies'. The Law Commission opined that if its suggestions were acted upon fully, the "mass of litigation in which public sector undertakings and government are involved can be successfully avoided, thereby reducing considerably the load on courts and the on the justice system".

In an earlier report captioned 'Litigation by and against the Government: Some Recommendations for Reform' submitted during May 1984, LC recommended enactment of Litigation Ombudsman law.

Under it, Centre and States should constitute Litigation Ombudsman in their respective domains. A prospective litigant could approach Ombudsman with an issue. The Ombudsman's stance could help lend legal clarity before initiation of litigation. This might help check fresh litigation and enable the Government to amend law, if need be.

Coming back to NLP 2010, this policy was drafted with the recognition that it is the responsibility of the Government to protect the rights of citizens. Those in charge of the conduct of Government litigation should never forget this basic principle.

As put by NLP, "Accountability is the touch-stone of this Policy. Accountability will be at various levels; at the level of officers in charge of litigation, those responsible for defending cases, all the lawyers concerned and Nodal officers. As part of accountability, there must be critical appreciation on the conduct of cases. Good cases which have been lost must be reviewed and subjected to detailed scrutiny to ascertain responsibility. Upon ascertainment of responsibility, suitable action will have to be taken. Complacency must be eliminated and replaced by commitment".

In March 2013, the Government perhaps for the first time disclosed that NLP had not yet been approved by it. Why UPA regime avoided giving nod to NLP is a mystery. After all, NLP was preceded by national consultations.

Having failed to implement NLP, UPA avoided mentioning it in its 2014 manifesto. BJP, on other hand, seized NLP mantle in its 2014 manifesto. It promised to implement NLP "in letter and spirit" to reduce average pendency time of cases.

The Manifesto stated: "BJP is committed to ensure Justice for All - justice which is prompt and accessible. Understanding that Justice Delayed is Justice Denied, we will adopt a multi-pronged approach to address the high pendency of cases in our judicial system".

After coming to power, BJP-led NDA Government told Lok Sabha in December 2014: "The draft of National Litigation Policy prepared in the year 2010 is under active review."

In January 2015, Law Ministry informed Advisory Committee of National Mission of Justice Delivery and Legal Reforms (NMJDLR) that Department of Legal Affairs has now reformulated NLP with "broadened objectives and scope." It would now be placed before the Cabinet soon for its approval.

In October 2016, NMJDLR was informed that NLP has been referred to Law Commission for its advice. Modi Government never made public the text of NLP 2015.

And the shocker came on the last day (13 th February 2019) of 16 th Lok Sabha. The Government stated: "Formulation of fresh National Litigation Policy is under consideration of the Government".

What a 'Speedy decision-making process' it was! No wonder neither speed-loving Prime Minister Narendra Modi nor the fawning media are bothered to mention it during the electioneering! No one has asked why BJP has left out NLP from its 2019 manifesto.

The positive aspect of NLP story is that all States have put in place their respective litigation policies. They did in response to request from UPA Government. The States have also constituted Empowered Committees at State and District level to monitor the progress of the implementation of their respective litigation policies.

The least the Modi Government could have done was to undertake a content analysis of all State policies. It could have shared the outcome of analysis with all States to help them improve their policies, as the case might be. It should have also studied the impact of these policies on court cases filed by different state entities.

How cases were avoided at the pre-filing cases? How many cases were not pursued after an adverse verdict from district courts? How many were not taken to the Supreme Court after an adverse verdict from the High court?

Has a State's stance as litigant and as a defender and as an appellant changed as compared to the situation that existed prior to implementation of litigation policy?

There is nothing in the public domain to show whether or not such studies were undertaken or commissioned by the Union Law Ministry.

When the new Government takes reins, it should put NLP on the top of its agenda. It should unveil a multi-pronged strategy to reduce pending cases in all three tiers of the judiciary. It should ensure that no post of judge is left vacant under any circumstance. This is the key to restoring/arrest fast-eroding faith of the public in Rule of the Law. This is the key to prevent lawlessness, bordering on anarchy in certain regions and in certain situations in many parts of the country.