Delhi High Court: The Division Bench of Satish Chandra Sharma, CJ. and Sanjeev Narula J.*, opined that in the era of rapid technological and social change, it was paramount for the government to not just react but also to be proactive, adaptive, and forward-thinking. The Court observed that more than a decade had passed since the discussion on litigation policy commenced and it was still unclear as to when the proposed framework or guidelines would be in place. The Court further opined that the government must prepare a time-bound action plan for implementation of the ‘National Litigation Policy’ or the guidelines that were under contemplation and thus closed the present matters.
In the instant case, batch of appeals stemmed from the order passed by the Railway Claims Tribunals and Trial Court over the property dispute involving the Cement Corporation of India Limited, a Public Service Undertaking.
While deciding the matter on merits, the Court was deeply anguished by the approach adopted by the Indian Railways and Cement Corporation as they resorted to unfounded arguments and false assertions which was sufficient to agitate judicial conscience. Subsequently, the judgment was passed by the Single Judge on 24-6-2021, raising a cautionary flag on the disturbing practice of frivolous claims or defences being advanced by the Government in legal proceedings.
Considering these concerns, the Single Judge reclassified these petitions as Public Interest Litigations and referred them to the present bench for focussed examination of the issues concerning Government’s accountability and lack of ‘National Litigation Policy’.
Analysis, Law, and Decision
The Court observed that the overwhelming majority of the cases that involved either the Central Government, State Governments or Public Sector Undertakings (‘PSUs’) clogged the judicial system. To tackle this issue, Ministry of Law and Justice, convened a national consultation on 24-10-2009 and 25-10-2009 aimed at mitigating judicial delay and reducing backlogs of cases. Subsequently, National Litigation Policy, 2010 was formulated, however the same was not yet implemented.
The Court further stated that the Supreme Court in its various judgments had consistently emphasized the importance of a ‘National Litigation Policy’ and had expressed concerns over the inefficiency and wastage of resources that was attributed to the Government’s current approach. The Court referred to Union of India v. Prithwi Singh, (2018) 16 SCC 363 and Urban Improvement Trust, Bikaner v. Mohan Lal, (2010) 1 SCC 512 and opined that there had been a persistent call for comprehensive ‘National Litigation Policy’ which mandated a cohesive approach by Central Government, State Governments and PSUs in initiating and prosecuting legal matters.
The Court took note of the 126th Law Commission of India Report on ‘Government and Public Sector Undertaking Litigation Policy and Strategies’ which highlighted the urgent need for a cohesive litigation policy to alleviate the judiciary’s burden and minimize the excessive cost associated with the legal proceedings. Similarly, the 13th Finance Commission for 2010-2015 Report raised an alarm about the sheer volume of cases where government was a part thereby aggravating the existing backlog of cases.
The Court acknowledged the Central Government’s Legal Information Management and Briefing System (‘LIMBS’) tool, that offered real time insights into the status of cases across various ministries. The Court observed that the current LIMBS data indicated that approximately 6,00,000 cases that involved Central Government were pending and while the present data lacked holistic view of the pending litigation concerning PSUs, State Governments, and other public authorities, the Central Government’s cases alone served a resounding wake-up call.
The Court took note of the proactive measures adopted by the Haryana’s ‘State of Haryana Litigation Policy, 2010′ and Sikkim’s ‘Conduct of Government Litigation Rules, 2000’ and opined that these policies functioned as valuable blueprints in litigation strategy. Similarly, various states such as Rajasthan, Punjab, Gujarat, Himachal Pradesh, Madhya Pradesh, Kerala, Tripura, Mizoram and Maharashtra had formulated similar policies.
The Court opined that while these initiatives were laudable, they highlighted a compelling necessity for a comprehensive and unified litigation policy. The Court further opined that although on 15-12-2022, the Union Minister of Law and Justice, Government of India hinted at the development of ‘National Litigation Policy’ guidelines, however, their scope, drafting timelines and their eventual implementation remained uncertain.
The Court further opined that it was well-established legal principle that the judicial bodies should exercise restraint in assuming the role of policy-makers and despite the glaring gap left by the absence of such litigation policy, the Court considers it prudent to refrain from overstepping the judicial mandate by attempting to create such policy via judicial guidelines and such circumspection by the Court should not be misconstrued as apathy.
The Court opined that it was deeply unsettling to witness government entities, whose primary mandate should be the promotion of social welfare, were involved in frivolous litigation. Such conduct wasted taxpayer’s money as costs in such cases were transferred onto the public exchequer thereby penalizing taxpayers instead of the individuals who initiated the irresponsibly framed legal action or contested a case on frivolous grounds.
The Court opined that “the essence of good governance lies in holding individuals accountable and creating an environment where unnecessary litigation is avoided.” The Court further opined that thus there was an urgent need for a system that prevented unnecessary litigation by engaging in an audit of the decision-making process which led to such litigation.
The Court opined that at the outset, mandatory consultations between the government organisations and legal experts should be there to ensure that the cases involving well settled issues were not sought to be re-litigated. Further, a peer-review mechanism should be established where decisions to contest cases prior to its commencement and filing of appeals were scrutinized by a committee of experts within the government organisation who were well-versed with the matter at hand. The Court opined that in cases where instances of negligence or laxity on account of officers in-charge were discovered, a suitable action should be initiated against such erring officers. Also, mandatory training sessions should be organised for officers that were involved in process of initiating and managing litigations.
The Court opined that “an adaptable and evolving policy is the need of the hour, so as to ensure that emerging best practices in justice delivery, are utilised. This would ensure that the participation of the government in the judicial process is more sagacious and streamlined.”
The Court further opined that “even the most meticulous policies will serve little purpose if they remain confined to paper. Effective governance doesn’t always stem from formalized guidelines; often, it arises from a cultural shift within an institution. Therefore, nothing precludes the government from embracing the principles we have suggested here. These practices can serve as an interim framework and should be adopted as precursors to formulation of formal policy after due deliberation with experts/ stakeholders. After all, the essence of any policy lies in its implementation; a well-drafted policy is merely the blueprint, the actual structure comes to life only when the tenor it promotes is adopted and internalized within the governing body.”
The Court opined that in the era of rapid technological and social change, it was paramount for the government to be proactive, adaptive, and forward-thinking. The Court observed that more than a decade had passed since the discussion on litigation policy commenced and it was still unclear as to when the proposed framework or guidelines would be in place.
Thus, the Court opined that the Government must prepare a time-bound action plan for implementation of the ‘National Litigation Policy’ or the guidelines that were under contemplation and directed Registry communicate a copy of the judgment to the Secretary, Ministry of Law & Justice, Government of India, for necessary action and also transmit a copy of this judgment to Secretary, Department of Law, Justice & Legislative Affairs, Government of NCT of Delhi, for due consideration.
[Union of India v. Kiran Kanojia, 2023 SCC OnLine Del 5947, decided on 22-9-2023]
*Judgment authored by- Justice Sanjeev Narula
Advocates who appeared in this case :
For the Appellants: Kirtiman Singh, Waize Ali Noor and Madhav Bajaj, Advocates; Manish Mohan, CGSC with Jatin Teotia, Advocates; Yogesh Swaroop, Kapil Kishor Kaushik and Md. Asif, Advocates; Manish Mohan, CGSC with Jatin Teotia, Advocates; Kirtiman Singh, Waize Ali Noor and Madhav Bajaj, Advocates;
For the Respondents: Punam Kumari, Advocate; A.S. Chandhiok, Senior Advocate (Amicus Curiae) along with Tarranjit Singh Sawhney and Alka Singh, Advocates; Kirtiman Singh, Waize Ali Noor and Madhav Bajaj, Advocates; Durgam Nandrajog, Panel Counsel GNCTD with Jatin Dua, Advocate with Kartar Singh, SI with Anuj, ASI- PS, Old Delhi Railway Station; Manish Mohan, CGSC with Jatin Teotia, Advocates; Om Prakash, Chandresh Pratap, Swati Mishra and Nitish Pande, Advocates;