Can reducing ‘state-litigation’ solve half of the judiciary’s problems?

On September 24, Former CJI NV Ramana, in his address at the ISB Leadership Summit 2022, termed the government as the “biggest litigator” and said half of the judiciary’s problems would be resolved if the state decided to halt state-sponsored litigation.

However, this is not the first time he made this statement. In May 2021, the then CJI Ramana termed governments as the “biggest litigants”, accounting for nearly 50 per cent of pending cases, and said the ‘docket explosion’ is due to the non-performance of various wings of the executive and the legislature not realising its full potential.

CJI Ramana was not the first SC judge to point this out. Former CJI T S Thakur had said the same in February 2015. We look at what this means in terms of cost to the state and what makes the state the “biggest litigant” in the country.

According to the data provided by the Ministry of Law and Justice in response to a question in the Lok Sabha on August 5, the Centre spent Rs 52.9 crore in FY 2021-22 on litigation fees paid to lawyers representing the government in the courts.

However, the law minister’s response to the Lok Sabha question also showed a marginal downward trend in expenditure in the last three financial years. Notably, the decline was during the pandemic years. The government spent over Rs 54.1 crore in 2020-21 and over Rs 52.9 crore in 2021-22 as against Rs 64.4 crore in 2019-20. In the current fiscal year, as on August 2, the government spending stood at Rs 14.4 crore.

As on August 2, 2022, the total number of pending cases in the Supreme Court of India is 71,411, out of which 56,365 are civil matters and 15,076 are criminal matters, Union Minister of Law & Justice, Kiren Rijiju informed the Rajya Sabha. Out of these cases, more than 10,491 have been awaiting disposal for over a decade. In 25 High Courts, 5,955,907 cases were pending till July 29, 2022. And in subordinate courts, the figure for backlogs was around 41.3 million.

Can halting state-sponsored litigation solve half of the judiciary’s problem?

Currently, the government is said to be accountable for nearly 50 per cent of these pending cases. However, to understand why we must look into the “how”. It is important to note who all are included in the definition of government or state here.

According to Article 12 of the Indian constitution, the government constitutes all legislative and executive organs of the Union government, state government, and local authorities. It also includes statutory and non-statutory authorities. The “other authorities” mentioned under Article 12 means those authorities within the Indian territory controlled by the government of India also come under the head “government”. This means that litigation involving government universities, banks, schools, etc., also becomes a part of this estimate of 50 per cent pending cases.

Pradeep Ambastha, former Chief Income Tax Commissioner and an advocate consultant with NIDAAN Law Chambers, tells Business Standard, “the premise that government is a futile litigant is not entirely correct. In fact, the government in any healthy democracy should be the most vociferous litigant.”

He explains that there are two types of cases; criminal and civil litigation. Under the Code of Criminal Procedure (better known as, CrPC), the government automatically becomes a litigant if there is a criminal case. If there is a civil case, even though there are arbitration routes and subsequent efforts to solve the cases outside the court, the parties involved always have the choice to reach out to the court. As an executive, one can only facilitate arbitration but not deny the public their right to approach the court.

“Most of the time, the disputing parties consider the word of court as the final judgment. And it is their right to do so,” he adds.

How much pendency do intra- and inter-departmental disputes cause?

Justice Ramana, while criticising the government, had said that it was beyond his understanding as to why intra- and inter-departmental government disputes or fights between PSUs and the government end up in courts.

He is not alone in making such an observation. Time and again, this issue has been raised by several entities, including the government itself.

In the 126th Law Commission of India report, it was noted that “over-enthusiastic departments” have pursued “litigation at the drop of a hat … and after tasting blood … pursued it right till the apex court.” This increased the cost to the public exchequer if both bodies involved in litigation were part of the government.

After this, the government chose the arbitration route to reduce the burden on the courts but did not see much success.

In 1991, the government set up the Committee of Disputes. It made it compulsory for all disputes between two government entities to be examined by the High Powered Committee (Committee on Disputes) before proceeding to a court or tribunal for adjudication.

In 2011, the Supreme Court noted that the committee had failed to achieve its “laudatory objective” of reducing pendency in practice.

Even though the government might have been unsuccessful in bringing down the number of inter-and intra-departmental cases, it is pertinent that we see an actual share of these cases in causing pendency.

A report by Vidhi Centre for Legal Policy on the Supreme Court shows that only 7.4 per cent of fresh cases filed before the court in 2014 were by the Centre. More detailed data on segregation of the type of government litigation would help in targeting the problem of pendency in cases.

“Even if the government tries to eliminate litigation on its part, it would hardly make a difference of about 5 per cent to this 50 per cent figure of pending cases,” Ambastha says.

“While there needs to be an effort on part of the state to strengthen the judiciary and fill up vacancies to deal with the issue of pendency, it is also important that judiciary also makes an effort to fast-track cases,” Ambastha added.

India’s current judge-population ratio is around 20 judges per 1 million people. According to the available data, subordinate courts with the highest number of pending cases also have the highest number of vacancies. In July 2021, the subordinate courts had 5,342 vacant seats out of 24,631 posts.

According to Eurostat, in Europe, on average, during the period 2018-2020, there was one professional judge per 5,690 persons. The proportion of women was 58.6 per cent.