Government Litigation in India and National Litigation PolicyWhat is Litigation?· Litigation is the term used to describeproceedings initiated between two opposing parties to enforce or defend a legalright.· Litigation is typically settled by agreementbetween the parties ,but may also be heard and decided by a jury or judgein court.
Pros and Cons of LitigationPROS CONS· Legal battles are costly and require a highcommitment over a significant period of time. · Can create a damaging precedent if you lose,making it harder for other communities to defend themselves against the offencein question· Can heighten conflict, making it more difficultto repair relationships in the community later on.· A court has to follow the procedure laid down inthe Code of Civil Procedure, 1908 and the Rules of the Indian Evidence Act . Litigation in India· In India there is a single hierarchy of courts.· India has three tier system of judiciary.· District Courts, at the first tier.
· High Court at 2nd tier, which has the appellateand supervisory jurisdiction over all the courts and tribunals in such state. · The Supreme Court of India at the third tier, is the highest court ofjustice in India having appellate and supervisory jurisdiction over High Courts. SPECIALISED LITIGATION· Proceedings seeking judicial review.· Cases involving vires, or statutes or rules andregulations. Public Interest LitigationIntroduction of Public Interest Litigation has democratizedthe access of justice to commonman. It has paved way to a new regime of human rights bygiving a wider interpretation tothe right to equality, life and personal liberty and DPSP. Problems with Indian Litigation System· Litigationin India is very time taking process . Indian Judicial System is marred withjudicial delays and slow process.
· Supreme Court is bogged down by routinelitigation . The main culprit include-· Tendency among litigants to seek special leaveto appeal against any order or decision of the high courts and tribunals · Provisionfor statutory appeals against orders of various tribunals. Eg. The Electricity Act, 2003,and the Telecom Regulatory Authority of India (Amendment) Act, 2000, providefor direct appeals to the Supreme Court against orders of appellate tribunals 1. Thepower to grant special leave is one that is meant to be used sparingly; inpractice it is used much too liberally. Thishas an impact on the time and number of judges devoted to hearing matters ofconstitutional importance. Timeframe for Litigation Howto solve Loop Holes in Litigation Process· Suggestions by Law Commission· The Law Commission in its 229th Report suggestedhaving a Constitution Bench in Delhi, with four Cassation Benches’ in differentregions. Mechanismfor Enforcement of Judgments Lok adalats · NALSAalong with other Legal Services Institutions conducts Lok Adalats.
· Lok Adalat is one of the alternative disputeredressal mechanisms.· It is aforum where disputes/cases pending in the court of law or at pre-litigationstage are settled/ compromised amicably. · Under thesaid Act, the award (decision) made by the Lok Adalats is deemed to be a decreeof a civil court and is final and binding on all parties and no appeal againstsuch an award lies before any court of law. · If theparties are not satisfied with the award of the Lok Adalat though there is noprovision for an appeal against such an award, but they are free to initiatelitigation by approaching the court of appropriate jurisdiction by filing acase by following the required procedure, in exercise of their right tolitigate.
Nature of Cases to be Referred to Lok Adalat · A Lok Adalat has the jurisdiction to settle, byway of effecting compromise between the parties, any matter which may bepending before any court, as well as matters at pre-litigative stage i.e.disputes which have not yet been formally instituted in any Court of Law. · Such matters may be civil or criminal in nature.· But any matter relating to an offence notcompoundable under any law cannot be decided by the Lok Adalat even if theparties involved therein agree to settle the same. · National Lok Adalat National Level Lok Adalatsare held for at regular intervals where on a single day Lok Adalats are heldthroughout the country, in all the courts right from the Supreme Court till theTaluk Levels wherein cases are disposed off in huge numbers. · Permanent Lok Adalat The other type of LokAdalat is the Permanent Lok Adalat, organized under Section 22-B of The LegalServices Authorities Act, 1987.
· Permanent Lok Adalats have been set up aspermanent bodies with a Chairman and two members for providing compulsorypre-litigative mechanism for conciliation and settlement of cases relating toPublic Utility Services like transport, postal, telegraph etc. Judiciary Effort towards Cost Effective LitigationSC tries to make legal services affordable · The Supreme Court has introduced aself-supporting scheme for providing legal services to the middle andrelatively lower income groups.· Accordingto the Union Law Ministry The ?Middle Income Group Scheme is meant to providelegal services to litigants in the Supreme Court whose gross income does notexceed ?60,000 per month or ?7.5 lakh per annum.
· They can avail themselves of the services for anominal amount. DPSP : Article 39 A :· To promote equal justice and to provide freelegal aid to the poor · The National Legal Services Authority (NALSA) Constituted under the Legal ServicesAuthorities Act, 1987 to provide free Legal Services to the weaker sections ofthe society and to organize Lok Adalats for amicable settlement of disputes. Excessive Govt. Litigation· Government litigation constitutes nearly half of all litigation inthe Indian judiciary. · Besides being a constraint on the publicexchequer, government litigation has contributed to judicial backlog, thusaffecting justice delivery . The Law Commission of India also studied this problem inits 126th Report in 1988, and made appropriate observations on this front.
National Litigation Policy” (NLP) 2010A litigation policy can have a profound effect on how thegovernment thinks about itself as a litigant, and can help curb the problem,provided it is a constructed with a thorough understanding of the problem andoffers solutions based on evidence rather than conjecture.· Its aim is to transform Government into anEfficient and Responsible litigant.· Theeasy approach, “Let the court decide,” must be eschewed and condemned. · The purpose underlying this policy is also toreduce Government litigation in courts so that valuable court time would bespent in resolving other pending cases.
· Government advocates must be well equipped andprovided with adequate infrastructure.· Training programs, seminars, workshops andrefresher courses for Government advocates must be encouraged.· Accepting that frequent adjournments areresorted to by Government lawyers, unnecessary and frequent adjournments willbe frowned upon and infractions dealt with seriously.
Alternative Dispute Resolution Arbitration· The resort to arbitration as an alternativedispute resolution mechanism must be encouraged at every level.Public Interest Litigation· Public Interest Litigations must be approachedin a balanced manner.· PILs should not be taken as matters ofconvenience to let the courts do what Government finds inconvenient.”National Litigation Policy” (NLP) 2010 failed as itwas generic and without any scope for implementation. Problems in NLP 2010 · It fails to provide a yardstick for determiningresponsibility and efficiency. The text does not define “suitable action” againstofficials violating this policy.
· Itcreates “Empowered Committees” to regulate the implementation of the policy.But there is ambiguity about their role and powers. · It also lacks any form of impact assessment toevaluate actual impact on reducing government litigation. Suggestions· Revisionof the NLP needs to ensure certain critical features are not missed out.· It must have clear objectives that can beassessed.
· The role of different functionaries must beenumerated. · Minimumstandards for pursuing litigation must be listed out.· Fair accountability mechanisms must beestablished. The Arbitration and Conciliation Act, 1996 provides two alternate methodsof ADR:Arbitration and Conciliation· Arbitration is a method for settling disputes privately,but its decisions are enforceable by law.
· An arbitrator is a private extraordinary judge betweenthe parties, chosen by mutual consent to sort out controversies between them. · Arbitrators are so called because they have an arbitrarypower; for if they observe submissions and keep within due bounds theirsentences are definite from which there is no appeal. Arbitration offersgreater flexibility, prompt settlement of national and international private disputesand restricted channels of appeal than litigation. · In the words of Richard Cobden “At all events,arbitration is more rational, just, and humane than the resort to the sword.” · Arbitration hearings usually last only a fewhours and the opinions are not public record. Litigation is expensive, timeconsuming and full of complexities. Types of Arbitration•Adhoc Arbitration: In the course of acommercial transaction if a dispute arises and could not be settled amicablyeither by way of mediation or conciliation, the parties have the right to seekAdhoc arbitration.
•Institutional Arbitration: In this kind of arbitrationthere will be a prior agreementbetweenthe parties regarding the institution that they will refer to in order toresolve theirdisputes.• Contractual Arbitration: The partiesentering into a commercial transaction prefer to incorporate an arbitrationClause in their agreement. The arbitration Clause provides that if in futureany dispute arises between the parties they will be referred to a named arbitrator(s).•Statutory Arbitration: If by operation oflaw the court provides that the parties have to refer the matter to arbitrationit is termed as Statutory Arbitration. In this kind of arbitration the consentof the parties is not required. It is more of a compulsory arbitration and itis binding on the parties as the law of the land. Arbitration and Conciliation (Amendment) Act, 2015· Envisagesvarious ways to encourage foreign investment by projecting India as an investorfriendly country having a sound legal framework and ease of doing business inIndia.
Justice B. N. Srikrishna Committee RecommendationSuggestion regarding measures to improve the overall quality andperformance of arbitral institutions in India · Setting up of an autonomous body called ArbitrationPromotion Council of India (APCI).
· APCI mayrecognize professional institutes providing for acceleration of arbitration. · Creation of a specialist arbitration bench todeal with commercial disputes in the domain of the courts. National LitigationPolicy must promote arbitration in government contracts. Review of the working of International Centre for Alternate DisputeRedressal(ICADR). · Suggested for declaring the ICADR as an Institution ofnational importance. Recommendation for the creation of post of ‘International Law Advisor’ (ILA) · To advise the Government and coordinate disputeresolution strategy for the Government in disputes arising out of itsinternational law obligations, particularly disputes arising out of BITs. · With India’s focus gradually shifting towardsgreater growth and development through increased Foreign Investment, it isessential for the government to make India safer for the foreign investments.
Advantages of Arbitration over Litigation· In a civil court, the proceedings are held inpublic. While Arbitration maintains privacy.· Arbitration provides liberty to choose an arbitrator,who can be a specialist in the subject matter of the dispute. Thus, arbitratorswho are specialists can resolve thedispute fairly and expeditiously.
· The venueof arbitration can be a place convenient to both the parties. · Rulesgoverning arbitration proceedings can be defined mutually by both the parties.· courtcase is a costly affair. The claimant has to pay advocates, court fees, processfees and other incidental expenses.
In arbitration, the expenses are less and manytimes the parties themselves argue their cases. · A judicial settlement is a complicated procedure.· An Arbitrator has to follow the principles ofnatural justice. · The Arbitration and Conciliation Act, 1996 specificallystates that the Arbitral Tribunal shall not be bound by The Code of Civil Procedure,1908 and The Indian Evidence Act, 1872.· The award of the arbitrators is final and generallyno appeal lies against the award. Other Solutions –Gram Nyayalaya · Proposed by the 114th Law Commission way back in1986.
Gram Nyayalaya with two objectives. · While addressing the pendency in the subordinatecourts was the major objective, · The introduction of a participatory forum ofjustice. · Concept was such a model of adjudication will bebest suited for rural litigation. International Arbitration Mechanism · India hasasked the BRICS nations to develop an arbitration mechanism among them. · Aproposal was made by Finance Minister at BRICS Conference on InternationalArbitration. Need for such a mechanism · Generally the arbitration centres areconcentrated in west with apprehensions of biased awards against emergingeconomies.
· Emerging economies are not adequatelyrepresented in the arbitration area thus the exigencies and concerns ofdeveloping nations are not put forward properly. Thus, there is a need fordeveloping nations to build capacity. India’s efforts · In June2016, Singapore Arbitration center had agreed to open its branch office at GIFTcity.· This effort is in consonance of Making India aGlobal Arbitration Hub.
· India hasmade changes to its Bilateral Investment Treaty regime. · India has made changes to the Arbitration and ConciliationAct. Making India hub of Arbitration· Government of India has laid emphasis on makingArbitration a preferred mode for settlement of commercial disputes .· The initiatives aim at minimizing courtintervention, bring down costs, fix timelines for expeditious disposal, andensure neutrality of arbitrator and enforcement of awards.