"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Sunday, July 11, 2010

National Litigation Policy - Comment

From inveterate litigant to responsible litigant

Part I

The recently espoused National Litigation Policy is an attempt to convert the compulsive litigant into an efficient and responsible litigant with the higher motive to lessen the average pendency time of the litigation. Government being the prime litigant, adoption of a policy guideline for the Government litigation makes sense. Similar and effective policies need to be formulated by States to accomplish the target of slashing down the pending cases of the Government.

Change in the mindset

The policy attempts to inspire a change in the approach towards litigation which was to go to court for everything to the opposite, to court only for unavoidable causes. Use of judicial proceedings efficiently and responsibly is the motto.

Fair enough, but why the tendency “[l]et the court decide”, has crept in the Babudom at the first place? Will this policy prescriptive address the real issue? Pushing things to courts have been a convenient strategy followed not only by the bureaucracy but by politicians also. Passing the buck to the judiciary absolves the politicians from taking unpleasant decisions which may deride vote banks. For Babus, it is a way of eschewing responsibility of the decisions.

Whereas, the right decision at the right stage is a stitch in time. The first level of check therefore should be to see whether anything could be done to avoid matters turning into litigation. To avoid litigations at the formative stage requires a change in the mindset in the Government officials. By giving freedom to take decisions, enabling the officers to take appropriate decision and fixing accountability is one measure.

Efficient nodal officer for efficient litigation

The policy is hinged on the integrity and efficiency of the ‘nodal officers’ who will oversee case management. The national and regional ‘Empowered Committees’ are expected to monitor the implementation of the policy.

It is refreshing to see the acknowledgment that most of the cases are lost even before beginning or are filed without any need, due the incompetence of the empanelled lawyers or Government Counsels. The incompetence of these representatives are well accepted by the Governments themselves that high profile cases will be conducted by high profile lawyers outside the panel, spending from public exchequer while there are dime a dozen lawyers in the pay lists of Governments. The selection and retention of Government counsels therefore is a prime factor in being an efficient litigant.

Pay packet is a crucial factor and the policy is evasive here. Why would one want to be a Government Counsel, when pay is rock bottom? Lawyers fight tooth and nail to be Government representative. It is the political clout of the person generally sees him through. Let us be rational here. If not from Government brief, the counsel is benefiting from elsewhere being a Government counsel. This is a highway to corruption.

Proper conduct of the case, through prompt paper work and making progress in the proceedings depends heavily on the flow of relevant information from respective departments. Experience tells that it is hard to come by from Government departments ill famed for its lethargy. The policy recognizes this challenge. Here also reliance is on the nodal officers to oversee the conduct of the cases. One more pointer that the success of the policy is heavily dependent upon the selection of the nodal officers.


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