Tackling government litigation 

Tackling government litigation 

Context

It is trite (lacking originality or freshness) to say that the government is the biggest litigant in India. No less than the Prime Minister and the Chief Justice of India have acknowledged this in the recent past, goading (provoke or annoy (someone) so as to stimulate an action or reaction.) the other — the judiciary and the executive, respectively — to explore ways of addressing this issue

‘Government’ litigation

According to the Ministry of Law and Justice, government departments are a party to around “46 percent” of court cases

Issues

What is government?

For a start, it does not tell us what the term “government” means. To a layperson, everything from a local panchayat to the Prime Minister’s Office could be representative of the “government”

As a State

In addition, entities such as nationalised banks and universities, which most laypersons may not identify as “government’, are “State” for the purposes of Article 12 of the Constitution.

One size fits all approach doesn’t work

Thus, any attempt at resolving the issue of “government litigation” must be based on the premise that the government in India functions in so many myriad forms that a one-size-fits-all approach to deal with the issue is impossible.

A compulsive litigant

  • A misconception regarding government litigation is that the government itself is a source of all cases involving the government
  • This appears to be the reason why existing policies attempt to address the issue of “government being a compulsive litigant” and do not consider cases where the government is a respondent

The Writ petitions

The writ jurisdiction vested in High Courts under Article 226 of the Constitution enables an ordinary citizen to access the highest court in her State to address grievances against any authority, including any government, for violation of any of her fundamental or other rights.

These writ petitions indicate friction

As such, the number and nature of writ petitions filed before a High Court are indicative of the extent of friction between citizens and the government

Possible solutions

This analysis of petitions filed against the state at various levels of governance shows that a multi-pronged approach needs to be adopted to tackle the issue of “government litigation”, depending on the kind of litigation

Internal dispute resolution mechanisms needed

For example, to reduce writ petitions filed under service and labour classifications, the state must put in place robust internal dispute resolution mechanisms within each department which inspire confidence in its workers as a means of addressing their grievances against the management

Quasi judicial authorities need to be better trained

To reduce the incidence of such writ petitions, the state must either ensure that quasi-judicial authorities are judicially trained or create a separate class of judicial officers to discharge quasi-judicial functions

National Litigation Policy

A broadly worded policy such as the National Litigation Policy (2010) only provides a distant goalpost of transforming government into a “model litigant”.

Conclusion

However, what is needed is an implementable action plan to ensure that citizens are not forced to file cases against the government and its agencies in the first place. This will require a relook at the functioning of litigation-prone departments and formulating solutions unique to each department.

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