National Litigation Policy: Recommendations and Limitations

National Litigation Policy: Recommendations and Limitations

Question - Judicial system in India is in the process of undergoing reforms. Discuss the key recommendations and limitations of the National Litigation Policy for speedy judicial reforms.

The National Litigation Policy has been introduced to basically lower the number of cases pending in numerous courts in India as part of the National Legal Mission to reduce average pendency time to 3 years from 15

Recommendations of the Policy

The National Litigation Policy is associated with the transformation of the government into a litigant who is efficient as well as responsible

This policy is based on respecting the rights of citizens in any litigation process

1. Policy defines efficient litigant in the following way:

• Focuses on core issues associated with litigation and meeting them
• Managing as well as conducting litigation in a timely, coordinated way
• Litigation does not have to be won at any consequence

2.Responsible Litigant was defined as one who does not litigate just for the sake of it and does not make false pleas or technical points. The facts should also be correctly presented and no attempt will be made to mislead courts or tribunals

3. Government must aim at not being a compulsive litigant who leaves everything to the court.

4. Government should reduce litigation in courts as precious court time can then be used for resolution of other pending cases; Goal of the National Litigation Policy is to reduce pendency time

5. Prioritisation in litigation must be attained with emphasis on welfare legislation, social reforms and helping weaker sections of society as well as senior citizens
6. All stakeholders have to play their roles including the Ministry of Law and Justice, Departmental heads, law officers, government counsel and so on. There should be an Empowered Committee for monitoring the policy implementation as well as its accountability

7. Careful screening of those appointed on panels should be done. Screening Committees for constituting panels should be examined at every level for assessing skills and capabilities of persons

8. Common research facilities must be made available for government lawyers as well as equipment for producing course compilations

9. Training programmes, seminars and workshops for governmental advocates are also encouraged

10. National and regional conference of governmental advocates should be organised so matters of mutual interest need to be discussed

11. Meaningful role in government litigations must be played by advocates on record

12. All law officers will have to train Panel lawyers and explain what is needed for discharging their functions

13. Panels should draw up competent lawyers with special skills; incomplete briefs should not be given to Government Counsel

14. There should also be equitable distribution of briefs and government lawyers should discharge publications with a sense of responsibility

15. Fees to be paid to Government lawyers should be revised to make it remunerative

16.Accepting frequent adjournments should be discouraged, as per this policy
Fresh litigations where the government is a defendant or respondent should have reasonable adjournments

17.Given complete paper books, adjournments must not be sought in routine cases; matter should be handled in the first hearing itself as per the policy

18.Costs awarded as a condition of grant of adjournment shall be viewed in a very serious way

19.Suits or other proceedings initiated by or on behalf of the government will have to be drafted with precision as well as clarity. No repetition should be observed in narration of facts or grounds

20.Appeals should be drafted with special care to synopsis and list of dates. Care should be taken for all relevant documents in the appeal paper book. Government documentation should be well organised and error-free

21. Court affidavits in vital cases should not be filed without being vetted by Law Officers

22. Appeals should not be filed against ex parte ad interim orders; attempts should be first to have the order vacated

23. Appeals should be filed intra-court in the first instance; direct appeals to the SC can only be resorted through extraordinary cases

24. Tribunalisation is for removing loads from the Courts; challenge to orders of Tribunals should be avoided

25. No appeal should be filed in cases where matters are individualised, pension or retirement benefits or service matters

26. Proceedings should only be filed challenging orders of Administrative Tribunals only in cases of clear error of record and judgement of Tribunal is contrary to service rule or its interpretation by HC/SC; judgement would impact the functioning of the administration

27. Appeals in revenue matters should not be filed unless stakes are not high and are lower than the amount fixed by Revenue Authorities; Assesses must have acted in accordance with industry practices

28. Appeals should not be filed in SC unless it is a question of law and not a question of fact, where public finances are affected, or HC has exceeded jurisdiction

29. Proceedings for judicial review should include the matter of award of contracts or tenders and if proceedings breach natural justice, they must be stopped

30. Cases concerning vires or statutes or rules and regulations should have proper affidavits and make appropriate averments with respect to legislative competence

31. According to the policy, PILs should be approached in a manner that is balanced

32. PILs challenging public contracts must be defended seriously

33. Litigation between PSUs inter se between government PSUs is a matter of concern; such litigation should be prevented

34. Pending cases concerning the government should be reviewed; cases should be properly grouped and categorised

35. Resort to arbitration as an alternative dispute resolution mechanism must be stressed at each level in a way that the arbitration is cost effective and expeditious

36. Conduct of arbitration in current times is less than favourable; this must be eliminated

37. Arbitration agreement must be correctly drafted, especially with reference to appointment of arbitrators

38. Certain persons are chosen as arbitrators for extraneous reasons; this should be avoided

39. Arbitration award against the government which lacks merit must not be challenged by the courts

Limitations

1. Good cases are lost as appeals are filed beyond duration of limitation in the absence of proper explanation for delay or proper application for condonation of delay

2. HOD will be called for details of cases filed on department’s behalf. Every case must be investigated so appropriate action can be taken. Data must be obtained bi-monthly or quarterly

3. Attempt should be made to reduce delays in filing appeals/applications

4. Belated appeals filed beyond limitation period should not be approached from the viewpoint of different approaches of cuts towards condonation of delay

Facts and Stats

• National Litigation Policy was initiated in 2010 by the UPA government

• The policy aimed at not only reducing average pendency of cases, but also placing compulsive restraint on the government from approaching courts for petty claims or serious ones.

• Strength of High Courts on November 1, 2014 amounts to 635 with vacancy position of 349 judges

• Proposal to raise age of HC judges to 65 was also under active consideration at this time