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Moily floats radical gov't litigation shake-up to cut 21m pending cases

India's minister of law and justice Veerappa Moily unveiled a "national litigation policy" today under which the government "must cease to be a compulsive litigant" by creating a new layer of supervisory bureaucracy, reducing appeals and reviewing all existing cases, while tightening legal panels and increasing fees of lawyers representing the government.

The Indian government, which is trying to reduce the time the average case spends in Indian courts from 15 years to three years, will focus on reducing its own role as litigant in 21m out of more than 30m pending cases currently delayed in the courts.

Under the proposal each government department or agency would appoint a "nodal officer" who would be responsible for pro-actively managing the department's litigation and monitoring compliance with the new national litigation policy.

The nodal officers and heads of each department would report to five "empowered committees". At the national level one committee would be chaired by the attorney general of India, while each of the four regional committees would be chaired by additional solicitor generals.

Legal advisers

The government will also streamline its panels of lawyers who can represent it in court. Each appointment of a lawyer to the government panel will be vetted by a "screening committee", according to the release. "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."

Meanwhile, "optimum utilisation of available resources and elimination of wastage" would mean that government-instructed lawyers would get paid more, stated the release.

"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."

Appeals, adjournments, delays restricted

"Unnecessary and frequent adjournments will be frowned upon and infractions dealt with seriously", which will be monitored by the nodal officers explained the release.

Appeals would no longer be filed in:
  • ex parte ad interim orders,
  • tribunal hearings or administrative tribunals, unless in exceptional cases,
  • service matters that only pertain to "individual grievance without any major repercussion" or pension or retirement benefits that do not have precedential or financial implications, or
  • revenue matters unless the stakes are high or in a number of other exceptions
Appeals to the Supreme Court would only be allowed if:
  • a case involves a question of law or a question of law under the constitution,
  • a conclusion of fact by the lower court was "perverse" or a High Court's decision was "plainly erroneous",
  • public finances are adversely affected,
  • it substantially interferes with "public justice", or
  • a High Court exceeded its jurisdiction or has struck down a statutory provision as ultra vires.
Delays in filing appeals would also be more strictly monitored by the new nodal officers and heads of departments and the "question of limitation and delay must be approached on the premise that every court will be strict with regard to condonation of delay", read the policy paper.

Other reforms

Alternative dispute resolution (ADR) would be "encouraged at every level" as long as arbitrations would be "cost effective, efficacious, expeditious and conducted with high rectitude".

The government would continue to defend judicial review proceedings, unless the proceedings were founded on substantive allegations of a "breach of natural justice".

While the government recognised that the increase in public interest litigations (PILs) stemmed from a perception that there was "governmental inaction", read the release, "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 would continue to be "seriously defended".

Finally, the attorney general and solicitor general's offices would review all pending cases and filter "frivolous and vexatious matters from the meritorious ones", as well grouping and categorising cases according to subjects and statues involved.

The national litigation policy was drated by attorney general G E Vahanvati and is the product of resolutions passed by the "national consultation for strengthening the judiciary toward reducing pendency and delays", which was held on 24 and 25 October 2009.

Click here to read the full national litigation policy.

Photo by Roby Ferrari

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