Last month, a young friend from a leading television channel alerted me on the National Litigation Policy Document release. Caught up as I was in the Bhopal case decision and the GoM aftermath, that I put it on the backburner. But, its never too late to write about reforms which are aimed at reducing in average pendency time of cases from fifteen to three years.
A large part of the Policy is a reiteration of what is already provided for under existing laws. The balance are a series of wishlists, particularly in the role the Government is expected to play as an efficient and responsible litigant. Any lawyer who has acted or appeared for the Union of India is no stranger to seeking adjournments for lack of instructions, or time for filing of replies which the Courts are liberal in granting. An issue has been flagged whether this is due to the Government being represented by incompetent and inefficient people appointed on the strength of recommendations rather than merit. The Policy proposes to set up Screening Committees to streamline and improve the empanelment process. But in doing this, the Government has to keep in mind that quality is also attracted by the fees. Bottom line, if you pay peanuts, you get monkeys. With due respect, while several top lawyers start their careers with government briefs or empanelment, for the sheer range of exposure, but these are treated as stepping stones to move on to higher and more lucrative pastures.
The other concession liberally granted to the Government is the bending of the rules of limitation in case of Government appeals “in the larger interest”. Two to three years of delay are condoned as a matter of course, with due recognition of governmental functioning. Inspite of this undue advantage, the Policy claims that many good cases involving high revenue stakes are lost as time barred.
To be fair, Government lawyers are not the only ones to seek adjournments, and very often they don’t have a choice because of incomplete briefs reaching them hours before the hearing. More common is the nexus between the unscrupulous litigant and his innovative lawyer in charting out strategies in prolonging litigation, perpetuating longevity of interim injunctions, basically taking over case management. Judges are over burdened and therefore liberal in granting long dates and by the time the next hearing date comes along, with roster changes, the hearing starts denovo (from the beginning).
There were several reforms in 1999 and 2002 of the Code of Civil Procedure (“CPC”) in the aftermath of the Woolf Reforms, in providing time lines for service and filing of pleadings – requiring the entire exercise to be completed within 90 days. Adjournments were curtailed to three per any one party and that too on a written application. The introduction of ADR under Section 89 has been only partially successful. On appeals too, restricting filings against interim orders and direct appeals to Supreme Court being resorted to except in the rarest of rare cases is already provided for under orders 39 and 45 of the Code of Civil Procedure (CPC) The need is one of implementation and. the onus more with the judiciary and not the litigant. The same is true for delay in delivering judgements.
The Policy statement that Government Departments and PSUs increasingly resorting to arbitration is a positive indicator is misplaced in the current context. Arbitration has been the preferred mode particularly in project contracts even before the days of PPPs, with the Tribunal members whether sole or the triumvirate being selected from a panel of PSU nominees. The pri-vate parties faced with this fait accompli, at times resorted to less conventional approaches. There is no set procedure or time frames, delays are inherent, and adjournments no less common than in the Courts. And no PSU ever accepts an award against itself.
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The Delhi High Court’s judgement in the case of Gujarat Bullions Refinery vs Hindustan Copper Ltd., is a classic and common illustration, where the public sector Respondent Company refused to give extension of time to the Arbitrator for conclusion of the proceedings and remained silent for six years thereafter, making a mockery of a mechanism intended for quick resolution.
The solutions are well intended but unless pursued on a war footing as the ’90’s liberalisation reforms, this policy will remain stillborn. Kumkum Sen is a Partner in Rajinder Narain & Co. and can be reached at
E-mail: Kumkumsen@rnclegal.com