Over 13 years on, India’s National Litigation Policy remains in draft limbo

Over 13 years after the National Litigation Policy (NLP) was conceived to bring down the overwhelming number of cases involving either the Central government, State governments, or public sector undertakings (PSUs) that are clogging the judicial system, this policy remains in draft stage. Former Chief Justice of India N.V. Ramana last year remarked that government litigation accounted for nearly 50% of all pending cases. However, the government does not maintain data on cases that involves it as a party, making it hard to gauge the exact figure.

As per the National Judicial Data Grid, 4,44,37,465 cases are pending before the District and Taluka Courts, 60,80,318 before the High Courts, and 80,568 before the Supreme Court, totalling a massive 5.05 crore cases.

Perennial problem

Unnecessary litigation involving the government has been an age-old problem in India, increasing the load on the judicial system and the exchequer.

As far back as 1974, noted Supreme Court judge Justice Krishna Iyer in the Dilbag Rai case emphasized the need for government departments and agencies to avoid filing frivolous or avoidable legal cases.

In the verdict, Justice Iyer commented upon a “callous” resistance by the Railways against an action by its own employee, which was pursued right up to the summit court and negatived in the judgement.

More recently, the Supreme Court Bench led by Justice B.R. Gavai in May said, “At least 40% of litigation by the Centre and States is frivolous. Filing to deny 700 rupees per month to someone and spending 7 lakhs of taxpayer money.”

Role of government officers

In 2009, the Supreme Court in the Urban Improvement Trust, Bikaner Vs Mohan Lal case noted that unwarranted litigation by governments and statutory authorities is attributable to some officers who are responsible for making decisions and/or officers in charge of litigation.

There is a reluctance to make decisions, or a tendency to challenge all orders against the government. “Their reluctance arises from an instinctive tendency to protect themselves against any future accusations of wrong decision making, or worse, of improper motives for any decision making,” the top court had said.

Speaking to The Hindu, Justice A.P. Shah, former Chief Justice of the Delhi High Court and former Chairperson of Law Commission of India, stressed that an atmosphere must be created where decisions can be made without apprehension of subsequent action against the officer making the decision. He said there must be some kind of protection to the officers where they could take an independent decision.

On NLP, Justice Shah said that several governments tried to introduce it to discourage unnecessary litigation. “But the problem is who will take the decision not to file appeal or not to oppose an application or petition. That is really the difficult part,” he said.

NLP in limbo

In October 2009, the Ministry of Law and Justice convened a national consultation specifically aimed at mitigating judicial delay and reducing the backlog of cases.

This led to the formulation of the National Litigation Policy, 2010, with the underlying purpose of reducing government litigation in courts so that valuable court time would be spent in resolving other pending cases. The policy went into cold storage for five years, when in 2015, the Law Ministry again envisaged the National Litigation Policy, 2015.

In June 2017, it came up with the ‘Action Plan to Reduce Government Litigation’, which emphasised that appeals should only be filed in cases that touch upon significant policy matters.

In July this year, Law Minister Arjun Ram Meghwa, while responding to an un-starred question in the Lok Sabha, stated that “the National Litigation Policy is yet to be finalised”.

Change on the horizon

In recent years, Ministries and Departments like the Railways and Revenue, involved in a high number of litigations, have been taking several measures to reduce the number of court cases.

In 2018, Ministry of Railways issued instructions for effective monitoring of court cases at all levels.

In 2019, the Central Board of Direct Taxes (CBDT) raised the monetary limit from ₹20 lakh to ₹50 lakh for the I-T department to appeal disputes before the Income Tax Appellate Tribunal.

More recently, on September 22, the Delhi High Court Bench of Chief Justice Satish Chandra Sharma and Justice Sanjeev Narula ordered the government to prepare a “time-bound action plan for implementation of the National Litigation Policy or the guidelines that are under contemplation”.

“The government, as the largest litigant in the country, bears an intrinsic responsibility — a duty that goes beyond traditional roles. It is expected to be a beacon of propriety, setting precedents in litigation ethics, fairness, and judicious use of resources,” the High Court remarked.