There are nearly 3.5 crore cases pending before various courts and tribunals in the country (11 Lakhs in Karnataka) and the average time for deciding a case is 15 years. It is estimated that government agencies are a party in two thirds of these cases and hence are the largest contributor to the delay in deciding cases.
In order to rapidly reduce the government's share of pending cases and thereby greatly reduce the burden on the courts, the Central Government has brought into effect the National Litigation Policy - NLP from July 1 (The policy is available here)
Except for a section which sounds like a death-knell for Public Interest Litigations, the policy is a welcome policy and if implemented properly, it should go a long way in reducing the backlog in courts and speeding up justice in India. The policy applies to all central government agencies and the government has asked all the state governments to enact similar policies for state government agencies also.
The important features of the new policy are:
1. All cases in which the government is a litigant will be conducted in a time-bound manner. Unnecessary and frequent adjournments will not be taken.
2. False pleas and technical points will not be taken.
3. Correct facts and all relevant documents will be placed before the court. The easy approach, "Let the court decide" will not be taken.
4. Nodal Officers who have legal background and expertise will be appointed in each department. They will be responsible for the proper implementation of the policy.
5. Four regional and one central empowered committees will be set up to monitor the functioning of nodal officers and government lawyers. These committees will fix responsibility for violations of the policy and for losing good cases and determine suitable punishments.
6. The government will not file appeals in a variety of cases which have been listed.
7. Arbitration as an alternative dispute resolution mechanism will be encouraged at every level.
8. Arbitration awards will not be routinely challenged.
9. The Attorney General and the Solicitor General will review all pending cases and filter frivolous and vexatious matters from the meritorious ones.
Despite these several good points in its favour, the new National Policy has one strong negative feature, one that could end all Public Interest Litigations against corruption and favouritism. According to the Policy, if interim orders are issued by a court to stop a public contract in any PIL, then the government will insist on compensation if the PIL is ultimately rejected. This threat that the petitioners will have to pay huge damages if they ultimately lose their case may discourage nuisance PILs, but it will also severely discourage genuine PILs. Many public spirited people and organizations are already spending a lot of their own money fighting public interest litigations, but if heavy damages are imposed if they lose their case, no one will come forward to file a PIL. Without PILs, corruption and favouritism become even more difficult to control.
It is shocking that this clause in the national policy is threatening punishment in the form of heavy damages to genuine PIL petitioners. The government which framed this policy may feel that courts are giving interim orders liberally against the government, but instead of addressing that issue, it is warning the public not to file PILs. After all, the Supreme Court has set strict guidelines to all the courts in the country on when to issue interim orders (read here). Before issuing interim orders, the courts have to examine closely whether
1. there is a prima facie case favouring the petitioners,
2. irreparable damage may be caused to the petitioners if the interim order is not issued, and
3. the balance of convenience favours the petitioners (i.e., the loss to the petitioners if the interim order is not issued is greater than the loss to the defendants if the order is passed).
It is obvious that if these guidelines are followed, frivolous and vexatious PILs are automatically weeded out. In addition, the courts also have the power to impose fines on frivolous and vexatious complaints. Instead of taking steps to make sure that all the courts follow the Supreme Court guidelines to eliminate nuisance complaints, the government is threatening the public, through NLP, with astronomical damages if they file PILs against it.
There is another danger with NLP's logic. What is said for interim orders today may be extended to final orders tomorrow. If that happens, you can have the High Court decide in your favour and if the High Court order is later overturned by the Supreme Court, you may have to pay damages. Then no one will even think of filing a PIL!
The sad thing is that the Supreme Court seems to have given its approval to the NLP clause on PILs. In Raunaq International Ltd. Vs. I.V.R. Construction Ltd. (1999 I SCC 492) and BALCO Employees Union Vs. The Union of India (2002 II SCC 343), it has ruled that the petitioner must provide an indemnity to make good the loss in the event the PIL is dismissed.
In light of these Supreme Court decisions, it is very likely that courts will accede to the government's demand that the petitioners will have to pay damages if they ultimately lose their case. Therefore, it appears that the days of PILs against government corruption are over.
Except for a section which sounds like a death-knell for Public Interest Litigations, the policy is a welcome policy and if implemented properly, it should go a long way in reducing the backlog in courts and speeding up justice in India. The policy applies to all central government agencies and the government has asked all the state governments to enact similar policies for state government agencies also.
The important features of the new policy are:
1. All cases in which the government is a litigant will be conducted in a time-bound manner. Unnecessary and frequent adjournments will not be taken.
2. False pleas and technical points will not be taken.
3. Correct facts and all relevant documents will be placed before the court. The easy approach, "Let the court decide" will not be taken.
4. Nodal Officers who have legal background and expertise will be appointed in each department. They will be responsible for the proper implementation of the policy.
5. Four regional and one central empowered committees will be set up to monitor the functioning of nodal officers and government lawyers. These committees will fix responsibility for violations of the policy and for losing good cases and determine suitable punishments.
6. The government will not file appeals in a variety of cases which have been listed.
7. Arbitration as an alternative dispute resolution mechanism will be encouraged at every level.
8. Arbitration awards will not be routinely challenged.
9. The Attorney General and the Solicitor General will review all pending cases and filter frivolous and vexatious matters from the meritorious ones.
Despite these several good points in its favour, the new National Policy has one strong negative feature, one that could end all Public Interest Litigations against corruption and favouritism. According to the Policy, if interim orders are issued by a court to stop a public contract in any PIL, then the government will insist on compensation if the PIL is ultimately rejected. This threat that the petitioners will have to pay huge damages if they ultimately lose their case may discourage nuisance PILs, but it will also severely discourage genuine PILs. Many public spirited people and organizations are already spending a lot of their own money fighting public interest litigations, but if heavy damages are imposed if they lose their case, no one will come forward to file a PIL. Without PILs, corruption and favouritism become even more difficult to control.
It is shocking that this clause in the national policy is threatening punishment in the form of heavy damages to genuine PIL petitioners. The government which framed this policy may feel that courts are giving interim orders liberally against the government, but instead of addressing that issue, it is warning the public not to file PILs. After all, the Supreme Court has set strict guidelines to all the courts in the country on when to issue interim orders (read here). Before issuing interim orders, the courts have to examine closely whether
1. there is a prima facie case favouring the petitioners,
2. irreparable damage may be caused to the petitioners if the interim order is not issued, and
3. the balance of convenience favours the petitioners (i.e., the loss to the petitioners if the interim order is not issued is greater than the loss to the defendants if the order is passed).
It is obvious that if these guidelines are followed, frivolous and vexatious PILs are automatically weeded out. In addition, the courts also have the power to impose fines on frivolous and vexatious complaints. Instead of taking steps to make sure that all the courts follow the Supreme Court guidelines to eliminate nuisance complaints, the government is threatening the public, through NLP, with astronomical damages if they file PILs against it.
There is another danger with NLP's logic. What is said for interim orders today may be extended to final orders tomorrow. If that happens, you can have the High Court decide in your favour and if the High Court order is later overturned by the Supreme Court, you may have to pay damages. Then no one will even think of filing a PIL!
The sad thing is that the Supreme Court seems to have given its approval to the NLP clause on PILs. In Raunaq International Ltd. Vs. I.V.R. Construction Ltd. (1999 I SCC 492) and BALCO Employees Union Vs. The Union of India (2002 II SCC 343), it has ruled that the petitioner must provide an indemnity to make good the loss in the event the PIL is dismissed.
In light of these Supreme Court decisions, it is very likely that courts will accede to the government's demand that the petitioners will have to pay damages if they ultimately lose their case. Therefore, it appears that the days of PILs against government corruption are over.
C.V. Nagaraj, Mysore Grahakara Parishat