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National
Legal Mission to Reduce Average Pendency Time from
15 Years to 3 Years
National Litigation Policy Document Released
The Centre
has formulated a National Litigation Policy to reduce the cases pending in
various courts in India under the National Legal Mission to reduce average
pendency time from 15 years to 3 years. This was announced by Dr.M.Veerappa
Moily, Minister of Law and Justice while announcing the National Litigation
Policy. Following is the full text of the National Litigation
Policy.
NATIONAL LITIGATION POLICY
Table of Contents
I. Introduction – The National Litigation Policy
II. The Vision/Mission
III. Government Representation
IV. Adjournments
V. Pleadings/Counters
VI. Filing of Appeals
VII. Limitation : Delayed Appeals
VIII. Alternative Dispute Resolution – Arbitration
IX. Specialized Litigation
X. Review of Pending Cases
I. INTRODUCTION
Whereas at the National Consultation for Strengthening the Judiciary toward
Reducing Pendency and Delays held on the 24th and 25th October, 2009 the Union
Minister for Law and Justice, presented resolutions which were adopted by the
entire Conference unanimously.
And Wherein the said Resolution acknowledged the initiative undertaken by the
Government of India to frame a National Litigation Policy with a view to ensure
conduct of responsible litigation by the Central Government and urges every
State Government to evolve similar policies.
The National Litigation Policy is as follows:-
I. THE VISION/MISSION
1. The National Litigation Policy is based on the recognition that Government
and its various agencies are the pre-dominant litigants in courts and Tribunals
in the country. Its aim is to transform Government into an Efficient and
Responsible litigant. This policy is also based on the recognition that it is
the responsibility of the Government to protect the rights of citizens, to
respect fundamental rights and those in charge of the conduct of Government
litigation should never forget this basic principle.
“EFFICIENT LITIGANT” MEANS
Focusing on the core issues involved in the litigation and addressing them
squarely.
Managing and conducting litigation in a cohesive, coordinated and time-bound
manner.
Ensuring that good cases are won and bad cases are not needlessly persevered
with.
A litigant who is represented by competent and sensitive legal persons:
competent in their skills and sensitive to the facts that Government is not an
ordinary litigant and that a litigation does not have to be won at any cost.
“RESPONSIBLE LITIGANT” MEANS
That litigation will not be resorted to for the sake of litigating.
That false pleas and technical points will not be taken and shall be
discouraged.
Ensuring that the correct facts and all relevant documents will be placed
before the court.
That nothing will be suppressed from the court and there will be no attempt to
mislead any court or Tribunal.
2. Government must cease to be a compulsive litigant. The philosophy that
matters should be left to the courts for ultimate decision has to be discarded.
The easy approach, “Let the court decide,” must be eschewed and condemned.
3. The purpose underlying this policy is also to reduce Government litigation in
courts so that valuable court time would be spent in resolving other pending
cases so as to achieve the Goal in the National Legal Mission to reduce average
pendency time from 15 years to 3 years. Litigators on behalf of Government have
to keep in mind the principles incorporated in the National mission for judicial
reforms which includes identifying bottlenecks which the Government and its
agencies may be concerned with and also removing unnecessary Government cases.
Prioritisation in litigation has to be achieved with particular emphasis on
welfare legislation, social reform, weaker sections and senior citizens and
other categories requiring assistance must be given utmost priority.
4. The Stakeholders:
A) In ensuring the success of this policy, all stake holders will have to play
their part – the Ministry of Law & Justice, Heads of various Departments, Law
Officers and Government Counsel, and individual officers all connected with the
concerned litigation. The success of this policy will depend on its strict
implementation. Nodal Officers will be appointed by Heads of Department.
“Head of Department” means the administrative person ultimately responsible for
the working of the Department or Agency, as the case may be.
B) The appointment of Nodal Officers must be done carefully. The Nodal Officer
has a crucial and important role to play in the overall and specific
implementation of this Policy, including but not limited to the references made
hereinafter. Every Ministry must be mindful of the responsibility to appoint
proper Nodal Officers who have legal background and expertise. They must be in a
position to pro-actively manage litigation. Whilst making such appointments,
care must be taken to see that there is continuity in the incumbents holding
office. Frequent changes in persons holding the position must be avoided. Nodal
Officers must also be subjected to training so that they are in a position to
understand what is expected of them under the National Litigation Policy.
C) Accountability is the touch-stone of this Policy. Accountability will be at
various levels; at the level of officers in charge of litigation, those
responsible for defending cases, all the lawyers concerned and Nodal Officers.
As part of accountability, there must be critical appreciation on the conduct of
cases. Good cases which have been lost must be reviewed and subjected to
detailed scrutiny to ascertain responsibility. Upon ascertainment of
responsibility, suitable action will have to be taken. Complacency must be
eliminated and replaced by commitment.
D) There will be Empowered Committees to monitor the implementation of this
Policy and accountability. The Nodal Officers and the Heads of Department will
ensure that all relevant data is sent to the Empowered Committees. The Empowered
Committee at the National level shall be chaired by the Attorney General for
India and such other members not exceeding six in number as may be nominated by
the Ministry of Law with an Additional Secretary to be the Member Secretary.
There will be four Regional Empowered Committees to be chaired by an Additional
Solicitor General nominated by the Ministry of Law. It shall include all the
Assistant Solicitors General of the Region and such other members including a
Member Secretary nominated by the Ministry of Law. The Regional Committees shall
submit monthly reports to the National Empowered Committee which shall in turn
submit Comprehensive Reports to the Ministry of Law. It shall be the
responsibility of the Empowered Committee to receive and deal with suggestions
and complaints including from litigants and Government Departments and take
appropriate measures in connection therewith.
II. GOVERNMENT REPRESENTATION
A) While it is recognized that Government Panels are a broad based opportunity
for a cross section of lawyers, Government Panels cannot be vehicles for
sustaining incompetent and inefficient persons. Persons who recommend names for
inclusion on the Panel are requested to be careful in making such
recommendations and to take care to check the credentials of those recommended
with particular reference to legal knowledge and integrity.
B) Screening Committees for constitution of Panels will be introduced at every
level to assess the skills and capabilities of people who are desirous of being
on Government Panels before their inclusion on the Panel. The Ministry of Law
shall ensure that the constitution of Screening Committees will include
representatives of the Department concerned. The Screening Committees will make
their recommendations to the Ministry of Law. Emphasis will be on identifying
areas of core competence, domain expertise and areas of specialisation. It
cannot be assumed that all lawyers are capable of conducting every form of
litigation.
C) Government advocates must be well equipped and provided with adequate
infrastructure. Efforts will be made to provide the agencies which conduct
Government litigation with modern technology such as computers, internet links,
etc. Common research facilities must be made available for Government lawyers as
well as equipment for producing compilations of cases.
D) Training programs, seminars, workshops and refresher courses for Government
advocates must be encouraged. There must be continuing legal education for
Government lawyers with particular emphasis on identifying and improving areas
of specialization. Law schools will be associated in preparing special courses
for training of Government lawyers with particular emphasis on identifying and
improving areas of specialization. Most importantly, there must be an effort to
cultivate and instill values required for effective Government representation.
E) National and regional conferences of Government advocates will be organized
so that matters of mutual interest can be discussed and problems analysed.
F) Advocates on Record must play a meaningful role in Government litigations.
They cannot continue to be merely responsible for filing appearances in Court. A
system of motivation has to be worked out for Government advocates under which
initiative and hard work will be recognised and extraordinary work will be
rewarded. This could be in the form of promotions or out of turn increments.
G) It will be the responsibility of all Law Officers to train Panel lawyers and
to explain to them what is expected of them in the discharge of their functions.
H) Panels will be drawn up of willing, energetic and competent lawyers to
develop special skills in drafting pleadings on behalf of Government. Such
Panels shall be flexible. More and more advocates must be encouraged to get on
to such Panels by demonstrating keenness, knowledge and interest.
I) Nodal Officers will be responsible for active case management. This will
involve constant monitoring of cases particularly to examine whether cases have
gone “off track” or have been unnecessarily delayed.
J) Incomplete briefs are frequently given to Government Counsel. This must be
discontinued. The Advocates-on-Record will be held responsible if incomplete
briefs are given. It is the responsibility of the person in charge of the
Central Agency concerned, to ensure that proper records are kept of cases filed
and that copies retained by the Department are complete and tally with what has
been filed in Court. If any Department or Agency has a complaint in this regard
it can complain to the Empowered Committee.
K) There should be equitable distribution of briefs so that there will be broad
based representation of Government. Additional Solicitors General will be
associated with regard to distribution of briefs in the High Court. Complaints
that certain Panel advocates are being preferred in the matter of briefing will
be inquired into seriously by the Empowered Committee.
L) Government lawyers are expected to discharge their obligations with a sense
of responsibility towards the court as well as to Government. If concessions are
made on issues of fact or law, and it is found that such concessions were not
justified, the matter will be reported to the Empowered Committee and remedial
action would follow.
M) While Government cannot pay fees which private litigants are in a position to
pay, the fees payable to Government lawyers will be suitably revised to make it
remunerative. Optimum utilisation of available resources and elimination of
wastage will itself provide for adequate resources for revision of fees. It
should be ensured that the fees stipulated as per the Schedule of Fees should be
paid within a reasonable time. Malpractice in relation to release of payments
must be eliminated.
III. ADJOURNMENTS
A) Accepting that frequent adjournments are resorted to by
Government lawyers, unnecessary and frequent adjournments will be
frowned upon and infractions dealt with seriously.
B) In fresh litigations where the Government is a Defendant or a
Respondent in the first instance, a reasonable adjournment may be
applied for, for obtaining instructions. However, it must be ensured
that such instructions are made available and communicated before
the next date of hearing. If instructions are not forthcoming, the
matter must be reported to the Nodal Officer and if necessary to the
Head of the Department.
C) In Appellate Courts, if the paper books are complete, then
adjournments must not be sought in routine course. The matter must
be dealt with at the first hearing itself. In such cases,
adjournments should be applied for only if a specific query from the
court is required to be answered and for this, instructions have to
be obtained.
D) One of the functions of the Nodal Officers will be to coordinate
the conduct of litigation. It will also be their responsibility to
monitor the progress of litigation, particularly to identify cases
in which repeated adjournments are taken. It will be the
responsibility of the Nodal Officer to report cases of repeated and
unjustified adjournments to the Head of Department and it shall be
open to him to call for reasons for the adjournment. The Head of the
Agency shall ensure that the Records of the case reflect reasons for
adjournment, if these are repeated adjournments. Serious note will
be taken of cases of negligence or default and the matter will be
dealt with appropriately by referring such cases to the Empowered
Committee. If the advocates are at fault, action against them may
entail suspension/removal of their names from Government Panels.
E) Cases in which costs are awarded against the Government as a
condition of grant of adjournment will be viewed very seriously. In
all such cases the Head of Department must give a report to the
Empowered Committee of the reasons why such costs were awarded. The
names of the persons responsible for the default entailing the
imposition of costs will be identified. Suitable action must be
taken against them.
IV. PLEADINGS / COUNTERS
A) Suits or other proceedings initiated by or on behalf of
Government have to be drafted with precision and clarity. There
should be no repetition either in narration of facts or in the
grounds.
B) Appeals will be drafted with particular attention to the Synopsis
and List of Dates which will carefully crystallise the facts in
dispute and the issues involved. Slipshod and loose drafting will be
taken serious note of. Defaulting advocates may be suspended/removed
from the Panels.
C) Care must be taken to include all necessary and relevant
documents in the appeal paper book. If it is found that any such
documents are not annexed and this entails an adjournment or if the
court adversely comments on this, the matter will be enquired into
by the Nodal Officer and reported to the Head of Department for
suitable action.
D) It is noticed that Government documentation in court is untidy,
haphazard and incomplete, full of typing errors and blanks. Special
formats for Civil Appeals, Special Leave Petitions, Counter
Affidavits will be formulated and circulated by way of guidance and
instruction as a Government Advocates Manual. This will include not
only contents but also the format, design, font size, quality of
paper, printing, binding and presentation. It is the joint
responsibility of the Drafting Counsel and the Advocate on Record to
ensure compliance.
E) Counter Affidavits in important cases will not be filed unless
the same are shown to and vetted by Law Officers. This should,
however, not delay the filing of counters.
V. FILING OF APPEALS
A) Appeals will not be filed against ex parte ad interim orders.
Attempt must first be to have the order vacated. An appeal must be
filed against an order only if the order is not vacated and the
continuation of such order causes prejudice.
B) Appeals must be filed intra court in the first instance. Direct
appeals to the Supreme Court must not be resorted to except in
extraordinary cases.
C) Given that Tribunalisation is meant to remove the loads from
Courts, challenge to orders of Tribunals should be an exception and
not a matter of routine.
D) In Service Matters, no appeal will be filed in cases where:
a) the matter pertains to an individual grievance without any major
repercussion;
b) the matter pertains to a case of pension or retirement benefits
without involving any principle and without setting any precedent or
financial implications.
E) Further, proceedings will not be filed in service matters merely
because the order of the Administrative Tribunal affects a number of
employees. Appeals will not be filed to espouse the cause of one
section of employees against another.
F) Proceedings will be filed challenging orders of Administrative
Tribunals only if
a) There is a clear error of record and the finding has been entered
against the Government.
b) The judgment of the Tribunal is contrary to a service rule or its
interpretation by a High Court or the Supreme Court.
c) The judgment would impact the working of the administration in
terms of morale of the service, the Government is compelled to file
a petition; or
d) If the judgment will have recurring implications upon other
cadres or if the judgment involves huge financial claims being made.
G) Appeals in Revenue matters will not be filed:
a) if the stakes are not high and are less than that amount to be
fixed by the Revenue Authorities;
b) If the matter is covered by a series of judgments of the Tribunal
or of the High Courts which have held the field and which have not
been challenged in the Supreme Court;
c) where the assessee has acted in accordance with long standing
industry practice;
d) merely because of change of opinion on the part of jurisdictional
officers.
H) Appeals will not be filed in the Supreme Court unless:
a) the case involves a question of law;
b) If it is a question of fact, the conclusion of the fact is so
perverse that an honest judicial opinion could not have arrived at
that conclusion;
c) Where public finances are adversely affected;
d) Where there is substantial interference with public justice;
e) Where there is a question of law arising under the Constitution;
f) Where the High Court has exceeded its jurisdiction;
g) Where the High Court has struck down a statutory provision as
ultra vires;
h) Where the interpretation of the High Court is plainly erroneous.
I) In each case, there will be a proper certification of the need to
file an appeal. Such certification will contain brief but cogent
reasons in support. At the same time, reasons will also be recorded
as to why it was not considered fit or proper to file an appeal.
VI. LIMITATION : DELAYED APPEALS
A) It is recognized that good cases are being lost because appeals
are filed well beyond the period of limitation and without any
proper explanation for the delay or without a proper application for
condonation of delay. It is recognized that such delays are not
always bonafide particularly in cases where high revenue stakes are
involved.
B) Each Head of Department will be required to call for details of
cases filed on behalf of the Department and to maintain a record of
cases which have been dismissed on the ground of delay. The Nodal
Officers must submit a report in every individual case to the Head
of Department explaining all the reasons for such delay and
identifying the persons/causes responsible. Every such case will be
investigated and if it is found that the delay was not bonafide,
appropriate action must be taken. Action will be such that it
operates as a deterrent for unsatisfactory work and malpractices in
the conduct of Government litigation. For this purpose, obtaining of
the data and fixing of responsibility will play a vital role. Data
must be obtained on a regular basis annually, bi-monthly or
quarterly.
C) Applications for condonation of delay are presently drafted in
routine terms without application of mind and resorting to word
processed “boiler plate.” This practice must immediately stop. It is
responsibility of the drafting counsel to carefully draft an
application for condonation of delay, identifying the areas of delay
and identifying the causes with particularity. Drafting advocates
who fail to adhere to this may be suspended/removed from the Panel.
D) Every attempt must be made to reduce delays in filing
appeals/applications. It shall be responsibility of each Head of
Department to work out an appropriate system for elimination of
delays and ensure its implementation.
E) Belated appeals filed beyond the period of limitation cannot be
approached merely from the point of view that courts have different
approaches towards condonation of delay. Since some courts liberally
grant condonation of delay, a general apathy seems to have taken
over. The tendency on the part of Government counsel to expect
leniency towards Government for condonation of delay must be
discouraged. The question of limitation and delay must be approached
on the premise that every court will be strict with regard to
condonation of delay.
VII. ALTERNATIVE DISPUTE RESOLUTION ARBITRATION
A) More and more Government departments and PSUs are resorting to
arbitration particularly in matters of drilling contracts, hire of
ships, construction of highways, etc. Careful drafting of commercial
contracts, including arbitration agreements must be given utmost
priority. The Ministry of Law and Justice recognizes that it has a
major role to play in this behalf.
B) The resort to arbitration as an alternative dispute resolution
mechanism must be encouraged at every level, but this entails the
responsibility that such an arbitration will be cost effective,
efficacious, expeditious, and conducted with high rectitude. In most
cases arbitration has become a mirror of court litigation. This must
be stopped.
C) It is recognized that the conduct of arbitration at present
leaves a lot to be desired. Arbitrations are needlessly dragged on
for various reasons. One of them is by repeatedly seeking
adjournments. This practice must be deplored and stopped.
D) The Head of Department will call for the data of pending
arbitrations. Copies of the roznama, etc. (record of proceedings)
must be obtained to find out why arbitrations are delayed and
ascertain who is responsible for adjournments. Advocates found to be
conducting arbitrations lethargically and inefficiently must not
only be removed from the conduct of such cases but also not briefed
in future arbitrations. It shall be the responsibility of the Head
of Department to call for regular review meetings to assess the
status of pending arbitration cases.
E) Lack of precision in drafting arbitration agreements is a major
cause of delay in arbitration proceedings. This leads to disputes
about appointment of arbitrators and arbitrability which results in
prolonged litigation even before the start of arbitration. Care must
be taken whilst drafting an arbitration agreement. It must correctly
and clearly reflect the intention of the parties particularly if
certain items are required to be left to the decision of named
persons such as engineers are not meant to be referred to
arbitration.
F) Arbitration agreements are loosely and carelessly drafted when it
comes to appointment of arbitrators. Arbitration agreements must
reflect a well defined procedure for appointment of arbitrators.
Sole arbitrator may be preferred over a Panel of three Arbitrators.
In technical matters, reference may be made to trained technical
persons instead of retired judicial persons.
G) It is also found that certain persons are “preferred” as
arbitrators by certain departments or corporations. The arbitrator
must be chosen solely on the basis of knowledge, skill and integrity
and not for extraneous reasons. It must be ascertained whether the
arbitrator will be in a position to devote time for expeditious
disposal of the reference.
H) It is found that if an arbitration award goes against Government
it is almost invariably challenged by way of objections filed in the
arbitration. Very often these objections lack merit and the grounds
do not fall within the purview of the scope of challenge before the
courts. Routine challenge to arbitration awards must be discouraged.
A clear formulation of the reasons to challenge Awards must precede
the decision to file proceedings to challenge the Awards.
VIII. SPECIALISED LITIGATION
A) Proceedings seeking judicial review including in the matter of
award of contracts or tenders.
Such matters should be defended keeping in mind Constitutional
imperatives and good governance. If the proceedings are founded on
an allegation of the breach of natural justice and it is found that
there is substance in the allegations, the case shall not be
proceeded with and the order may be set aside to provide for a
proper hearing in the matter. Cases where projects may be held up
have to be defended vigorously keeping in mind public interest. They
must be dealt with and disposed off as expeditiously as possible.
B) Cases involving vires, or statutes or rules and regulations.
In all such cases, proper affidavits should be filed explaining the
rationale between the statute or regulation and also making
appropriate averments with regard to legislative competence.
C) PUBLIC INTEREST LITIGATIONS (PILS)
Public Interest Litigations must be approached in a balanced
manner. On the one hand, PILs should not be taken as matters of
convenience to let the courts do what Government finds inconvenient.
It is recognized that the increase in PILs stems from a perception
that there is governmental inaction. This perception must be
changed. It must be recognized that several PILs are filed for
collateral reasons including publicity and at the instance of third
parties. Such litigation must be exposed as being not bonafide.
PILs challenging public contracts must be seriously defended. If
interim orders are passed stopping such projects then appropriate
conditions must be insisted upon for the Petitioners to pay
compensation if the PIL is ultimately rejected.
D) PSU LITIGATIONS
Litigation between Public Sector Undertakings inter se between
Government Public Sector Undertakings is causing great concern.
Every effort must be made to prevent such litigation. Before
initiating such litigation, the matter must be placed before the
highest authority in the public sector such as the CMD or MD. It
will be his responsibility to endeavour to see whether the
litigation can be avoided. If litigation cannot be avoided, then
alternative dispute resolution methods like mediation must be
considered. Section 89 of the Code of Civil Procedure must be
resorted to extensively.
IX. REVIEW OF PENDING CASES
A) All pending cases involving Government will be reviewed. This Due
Diligence process shall involve drawing upon statistics of all
pending matters which shall be provided for by all Government
departments (including PSUs). The Office of the Attorney General and
the Solicitor General shall also be responsible for reviewing all
pending cases and filtering frivolous and vexatious matters from the
meritorious ones.
B) Cases will be grouped and categorized. The practice of grouping
should be introduced whereby cases should be assigned a particular
number of identity according to the subject and statute involved. In
fact, further sub-grouping will also be attempted. To facilitate
this process, standard forms must be devised which lawyers have to
fill up at the time of filing of cases. Panels will be set up to
implement categorization, review such cases to identify cases which
can be withdrawn. These include cases which are covered by decisions
of courts and cases which are found without merit withdrawn. This
must be done in a time bound fashion.
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