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Time to move towards a new litigation policy (Relevant for GS Mains Paper II, Evaluation of Litigation Policy)

Evidence supporting in increasing figures of Govt. litigations:
On the occasion of the Delhi High Court’s golden jubilee in October, the Prime Minister broached the problem of excessive government litigation.

The Supreme Court, since the 1970s, has criticised successive governments for being callous and mechanical in pursuing litigation.The Law Commission of India also studied this problem in its 126th Report in 1988, and made appropriate observations on this front. Besides being a constraint on the public exchequer, government litigation has contributed to judicial backlog, thus affecting justice delivery in India.
Government litigation reportedly constitutes nearly half of all litigation in the Indian judiciary.

Why is National Litigation Policy formed?
National Litigation Policy is formulated by the Ministry of Law and Justice of the Government of India to bring down the litigation from government agencies by making them more responsible in filing cases.

Evaluation of National Litigation Policy, 2010:
The Law Minister in the United Progressive Alliance government had launched a “National Litigation Policy” (NLP) in 2010 to transform the government into a “responsible and efficient” litigant. 

Shortcomings in policy:
1. The NLP has failed as an initiative due to ambiguity. The NLP 2010 is replete with rhetoric and generic phraseology which has no scope for implementation. 
Instead of being an analytical policy document attempting to address the causes of excessive government litigation, it appears to have been drafted on anecdotal notions of the problem, with no measurable outcomes or implementation mechanism.

2. The NLP 2010 fails to provide a yardstick for determining responsibility and efficiency. The policy then idealistically states that there should be greater accountability regarding governmental litigation, and mandates “suitable action” against officials violating this policy. 
However, the text does not define this “suitable action”, or prescribe any method to conduct any disciplinary proceedings.

3. The NLP 2010 also creates “Empowered Committees” at the national and regional levels, apparently to regulate the implementation of the policy. But there is ambiguity about their role and powers, resulting in lack of transparency in their functioning. While these committees are intended to be integral to the accountability mechanisms under the policy, the ambiguity in their roles and functions make them susceptible to a constitutional challenge.

4. The NLP 2010 also lacks any form of impact assessment to evaluate actual impact on reducing government litigation. This absence of a monitoring mechanism is evident from the fact that there is no data available even today to accurately verify the extent of government litigation in India. Without such evaluation, this litigation policy remains a theoretical, ambiguous and fairly inadequate document on the pretext of policy reform.

Way forward:
The on-going revision of the NLP needs to ensure certain critical features are not missed out:
1. It must have clear objectives that can be assessed,
2. The role of different functionaries must be enumerated,
3. The minimum standards for pursuing litigation must be listed out,
4. Fair accountability mechanisms must be established,
5. The consequences for violation of the policy must be provided,
6. A periodic impact assessment programme must be factored in. 

A litigation policy can have a profound effect on how the government thinks about itself as a litigant, and can help curb the problem, provided it is a constructed with a thorough understanding of the problem and offers solutions based on evidence rather than conjecture.

 



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