"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.

Friday, July 23, 2010

National Litigation Policy- Comment

From inveterate litigant to responsible litigant

Part II
(Find Part I here)

Full stop to a litigation

Government litigations have a telltale character, it never ends. Appeals are routine in most cases. The Law Officers and the Government Pleaders recommend appeal as a matter of course. In most cases it is a preemptive measure to be on the safe side. If at all any question is raised later as to why an appeal opportunity was missed, the counsel could very well clear self by pointing out his advice to appeal. This behaviour pattern is fostered by two reasons; seldom questions are raised as to why a fruitless appeal and the reluctance to take responsibility of once own decisions. In a culture of bureaucracy, where the lower rung officials are the ready available scapegoats, such a response is not a surprise. Besides the suggested measures, capacity and confidence building measures are required for those officers involved in the initial decision making process. Decisions with integrity call for backing of the superiors and should be incentivised. Much of this depends on the Nodal Officers and Heads of Departments.

Loosing cause of action or appeal by limitation is a commonplace incident for the Government. Seldom have officers or counsels held accountable for this. The policy suggests fastening accountability based on the realization that most often getting hit by limitation is engineered than by legitimate errors. The solution suggested is efficient case management and perceptive drafting of condonation petitions. A shift from the present practice of ‘one size fits all’ attitude.

ADR- the fad

ADR, for many, is the panacea for the ills of legal system. It is the mantra of policy makers, administrators and judiciary while thinking of legal reforms. Arbitration is one of its mainstays. In the present state of affairs, arbitration has failed to deliver any of the claims that it makes; simple, quick and inexpensive. The clout created around arbitration is appalling. It has become an elite club of retired justices where they transplant the court room to the conference rooms of luxury hotels. It has become a means of private justice, unending.

The policy has identified some of the problems of the arbitration process as it stands. It requires a Hercules to clean this Aegean Stable. Very little could be done by the small fries like the Department Heads as the malady is deep rooted. Along with the suggested means, an effort is to be undertaken to see that Arbitration proceedings deliver what it promises.

The menace of PIL!

The policy framers appear to be contemptuous about PILs. Since there are no legislative procedural guideposts for PIL but the ones judiciary has developed by themselves, the policy prescription is out of place. Most of the suggestive action is directed towards how the judiciary should deal with PILs, especially, the suggestion that, “[i]f interim orders are passed stopping such [public contract] projects then appropriate conditions must be insisted upon for the Petitioners to pay compensation if the PIL is ultimately rejected.” A policy prescriptive should be the last means to direct the judiciary as to what they should do. True, it could be a guideline for the Government counsel as to how to approach PIL. If that be the case the policy need to be more nuanced about the benefits and shortcomings of PILs.

Wrapping up

The effort to bring out this policy document is creditable. As always, the implementation and sustainability is the test factor. Success of the policy is heavily hinged on the selection and functioning of the Nodal Officers and Department Heads along with Government Counsels. A good deal depends upon how successful will these officers be to change their own mindset and motivate the officialdom to respond to the required setting. It takes a lot to pull someone from the comfortable niche into the demanding area of accountability and responsibility.

The political masters should be the first ones to respond to turn the policy into a success. It is them who should stash political considerations and favouritism for merit and competence in appointments to the key posts and Government Counsels.

No comments: