Policy merely shows a good intent

The Government of India announced a “National Litigation Policy” last month, holding out a promise to reduce the tenure of pendency of court cases from an average of fifteen years to three years. The key focus of this policy appears to be “to reduce Government litigation in courts so that valuable court time would be spent in resolving other pending cases”.

While one should give the intent of the new Union Law Minister a fair chance, one cannot help notice that much of the policy is merely a statement of good intent unless the highest levels in government introspect and take decisive action. Consider the following sections of the litigation policy:

 

An “efficient litigant” is one who adopts the approach of “ensuring that …. bad cases are not needlessly persevered with.” 
 

A “responsible litigant” is described as someone who ensures “that litigation will not be resorted to for the sake of litigating” 
 

“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.” 
 

“Given that tribunalisation is meant to remove the loads from courts, challenge to orders of tribunals should be an exception and not a matter of routine.” Juxtapose the stated intent with market reality: 

Not only the revenue authorities but also regulatory authorities have been known to routinely adopt positions that are clearly against the stated letter and spirit of the regulations they administer. Oft-heard statements: “We want to test our powers.” Worse, “We doubt our powers here. But if we lose, we can make a case for getting an express power written into the law.” 
 

Regulators challenge orders of tribunals although past decisions with the same ratio may have been accepted without challenge.” 
 

Whenever a tribunal imposes costs for hardship inflicted by a regulator, the government’s law officers run to the appeal court and crib about how the regulators are demoralised, and how courts alone can save the nation from tribunals.” 
 

Even where a prayer to stay a tribunal’s decision is denied by the courts, regulators do not follow the discipline of adhering to the law stated in the tribunal’s decision. No accountability is fastened on officers falling out of line. On the contrary, they may be rewarded with admiration and officers adhering to discipline are denounced.” 
 

Appeals by actionees aggrieved by regulatory action, even when guaranteed by Parliamentary statute tend to get treated like special leave petitions – they are known to have been disposed of at the threshold without going into reasoned merits. Yet, it is believed by some, at least by government agencies that such handicap is not uniform. This author was recently told in an interaction with law officers of a regulator: “If you have a sympathetic tribunal, we have a sympathetic court.” His views – not mine. 

The court of public opinion, spearheaded by uninformed media experts, lauds only those who would fit the description of “inefficient” and “irresponsible” litigants under the litigation policy. The adulation attracts more peers to the bandwagon.” 
 

Even the litigation policy endorses appeals to the Supreme Court when a question of law has arisen. Even where determination of the question of law would be purely academic beca-use the dispute has become infructuous, are pending in courts.” 
 

Law officers of the government are far more combative than they have ever been – contrary to hoary tradition, the desire to win mostly ranks far higher in priority than contributing to justice, or to evolving accurate jurisprudence. We live in an era where India has never seen a big-ger turf battle across regu-latory agencies. Every regu-lator is testing its powers to discipline areas not regula-ted by it – a department in which no single regulator seems less blameworthy than the others.

The government – for long an epitome of institut-ional decay – has often been caught twiddling its thumbs and doing precisely what the litigation policy seeks to esc-hew: saying “Let the court decide.”

How awful this can get is evidenced by the little-kno-wn case of the Directorate of Enforcement filing a writ petition against the Rese-rve Bank of India in the Bombay High Court argu-ing that the RBI should have given its officers an oppor-tunity of being heard before compounding an alleged violation of exchange cont-rols. That story is worthy of another column.

One needs a lot more than just a statement of good intent. (The author is a partner of JSA, Advocates & Solicitors. The views expressed herein are his own.)

Email: somasekhar@jsalaw.com