5 min readJan 7, 2023 09:39 AM IST
First published on: Jan 7, 2023 at 07:21 AM IST
Much has been said about why we have a staggeringly high number of cases that constitute “pendency” or cases that are undecided in the court system. While there are multiple reasons for pendency, this column will focus on the government as the largest litigant in the court system. As an aside, we must appreciate that India has a terribly low number of judges serving a very large population. To be more precise, India has about 21 judges for every million people, as the government recently informed the Rajya Sabha. China, by contrast, has about 159 judges for every million people.
Pendency or cases pending in courts have been a source of agony for litigants, lawyers and judges alike. I am sure it is also a cause of concern for the government since an arduous dispute resolution system adversely impacts governance and weakens law and order in any country. Our government has been seized by the burdens of the justice system for long, and is acutely aware of its own role in contributing to the number of cases that enter the courts and remain to be decided.
On June 13, 2017, the department of justice of the Government of India, released an “Action Plan to reduce Government Litigation”. The action plan was in response to the fact that 46 per cent of the total pending cases in the court system pertains to the government. Hence, the government has been cognisant of its role in contributing to litigation simply by being the biggest litigator in the courts. In 2015, they started the rather aptly named LIMBS project (Legal Information Management Briefing System) that intends to connect 55 ministries and their departments for litigation management. Aptly named, for it seeks to connect the various limbs of governance of our state. As on January 3, LIMBS shows that there are 6,20,000 cases involving the government pending before the court system.
In 2018, the Law Commission of India, in its 230th report, noted that the government is the biggest litigant in the system. Similarly, the government’s own “status note” on the National Litigation Policy, 2010, comes to the same conclusion. The status report to the NLP, 2010, was prepared because it is “based on the recognition that the government and its various agencies are the predominant litigants in the courts and tribunals in the country”. And, hence, it aimed to transform the government into an efficient and responsible litigant. In January 2021, the central government while responding to a public interest petition inquiring about the NLP 2015, told the Delhi High Court that it was still “under consideration”. Here, “the government” includes central, state and local
governments.
To be fair to the government, not all its litigation is initiated by it. For instance, the government is the catalyst in inter-departmental litigation (between wings of the government) and routine appeals in service matters. However, citizens trigger writ jurisdiction of the courts and file appeals in criminal cases. These also constitute a segment of cases involving the government being heard at various high courts and the Supreme Court. So, while the government can control some of the litigation it is involved in, it is not the catalyst in certain classes of cases that involve it.
The Vidhi Centre for Legal Policy in its report on “Government Litigation” published in 2018, provides great insights into where the government can and cannot control the litigation it is party to. For instance, the government’s 2010 National Litigation Policy (NLP) “recognises that service matters should not be normally appealed and only cases which involve questions of constitutional interpretation should be pursued all the way till the Supreme Court”. The government should implement this reform suggested by its own policymakers.
There are many good reasons to reduce litigation that involves the government. Reducing the burden on the courts is a prime reason. As Vidhi 2018 notes, the costs involved in pursuing litigation eat into public funds. And a court battle between the individual and the state is also a battle of unequals.
What we need to address the overburdened court system is for the largest litigant to use the court system more efficiently and cautiously. This would be a tremendous start to addressing the problem of pendency. Appointing more judges would be a massive step to helping more dispute resolution as well.
The writer is a Senior Advocate at the Supreme Court
In 2018, the Law Commission of India, in its 230th report, noted that the government is the biggest litigant in the system. (Illustration by C R Sasikumar) 
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