A decade-old experiment of the Supreme Court to reduce fratricidal litigation between various arms of the government has fallen flat, and the battles within the camp have resumed with greater vigour.
It is well-known that more than 60 per cent of the litigation is fought by the Central and state governments, their public sector undertakings and local authorities. What is less evident is that a large part of these are between each other — and all these cost public money.
Last week, there was a typical case in the Delhi High Court illustrating the debilitating nature of this internecine war. The customs department, MMTC and Indian Bank were fighting over a stock of gold left by an NRI (non-resident Indian) jewellery firm whose promoter vanished after breaking rules and swindling the bank. The fight was over which government entity will have the first claim on the gold.
Before the court decided the matter, it had some lamentations to make. “We wish to place on record our anguish about the failure of the parties to resolve the issues on their own, though they all represent the state,” the judgment said and pointed out that “we had put it to counsel for the parties as to why the concerned secretaries in the Ministry of Finance and the Ministry of Commerce should not sit together to resolve the issues”.
The parties had repeatedly sought time to follow the advice in December last year. The dispute was simple, according to the judges. “We had observed that the only issue is as to which pocket of the government would be enriched, and judicial time should not be wasted on such matters.”
However, the court was informed this month that the committee of three secretaries had failed to resolve the issue. Commenting on this, the judges remarked that “we are dismayed with this conclusion as we feel that the officers at the highest level of the bureaucracy should have exhibited the maturity and decisiveness necessary to resolve the issues in a practical manner, so as to save the avoidable expense and wastage of judicial time, considering the fact that, in any eventuality, the asset in question would continue to vest in one or the other organs of the government. We feel that the hands-off approach adopted by the senior officers leads to a state of indecision and stalemate, which is the bane of good and efficient administration. Decisions taken consciously, for good reasons recorded in the concerned file, with honesty and sincerity should leave no officer with any sense of insecurity that the decision may expose him/her to any charge of favouritism, corruption, discrimination or the like. We hope that the decision makers would henceforth not shy away from taking decisions – even difficult decisions – so as to save the government machinery from coming to a grinding halt.”
The problem has been chronic in the appellate courts. Noting this, the Supreme Court asked the government to set up a mechanism to resolve disputes before they are taken to the court. In its 1992 judgment, ONGC vs Collector of Excise, the court asked the government to form a high-power committee to examine the disputes and resolve them before rushing to the court. The interdepartmental committee was established, of course, but predictably, their minutes showed only the wasted hours. In several later judgments, the court repeated the call in desperation but all in vain.
Last year, a constitution bench of the Supreme Court “recalled” its order in the ONGC case, admitting that its advice had had no effect. In the judgment, Electronic Corporation of India vs Union of India, the court gave two examples of tax cases. In one, the concerned committee gave sanction to file appeal. On an identical question in another case, it denied clearance. This leads to allegation of discrimination and more litigation and delay. The Attorney General also told the court that the mechanism has outlived its utility in the changed scenario.
The court noted that the idea behind setting up of this committee, initially called a “high-powered committee”, later on called “committee of secretaries” and finally termed as “committee on disputes” (CoD) was to ensure that resources of the state are not frittered away in inter se litigation.
“Whilst the principle and the object behind the aforestated orders is unexceptionable and laudatory, experience has shown that despite the best efforts of CoD, the mechanism has not achieved the results for which it was constituted and has in fact led to delays in litigation,” the judgment said.
The aftermath of this decision was seen, for well or ill, in the high court judgment in the MMTC gold case. Setting up of a committee is the traditional method of rulers to spring out of the frying pan and erase hot button issues with the balm of time. Judges seem to have got the message a bit late.
