PILfering Justice

July 02, 2010

Last week, India's Law Minister, M Veerappa Moily, announced his shiny new 'National Litigation Policy'. It recognises that the single largest litigant in this country is the government itself, and outlines several measures to make the government an 'efficient and responsible' litigant.

The policy document is startling in its candour and boldness: 'Litigation will not be resorted to for the sake of litigating'; 'false pleas and technical points will not be taken'; 'correct facts and all relevant documents will be placed before the court'; 'nothing will be suppressed from the court and there will be no attempt to mislead any court'; 'Government must cease to be a compulsive litigant'; and, best of all, 'the easy approach, 'let the court decide', must be eschewed and condemned'.

Every one of these statements is a tragic commentary on our civic governance, if indeed there is such a thing any longer, and on the manner in which government conducts itself vis-à-vis citizens. Anyone who has ever litigated against any avatar of the government knows just how infuriating is its persistence in defending the indefensible.

It wasn't always like this. There was a time when government officers assessed their cases fairly and instructed their lawyers to do the right thing. Government servants were open to reason. Today's officers are unwilling to take responsibility for rational decisions. Then there is that 800-pound gorilla in the room: audit. Everyone is terrified of 'audit observations'. It's safer to file something — anything — in court. Just get that monkey off your back.

Therefore the mantra, 'let the court decide', one that is attributed, usually wrongly, to a notion that court decisions are erratic. In most cases they aren't, at least no more than anywhere else. The statement only passes the buck: once a court decides, the government officer is absolved and can simply disclaim responsibility. When an officer cannot do what is right because he fears reprisals or questions from a pointyheaded number-cruncher, the result is a complete abdication of governance. So far as the policy tries to address these issues, it is on the right track.

It is not easy to see how any of these policy statements will translate into practice. Will government bureaucrats magically transform overnight? Will government lawyers suddenly become 'efficient and responsible'? The policy document correctly recognises that at least part of the problem stems from the terrible conditions and constraints under which government lawyers are forced to work: ill-equipped or even non-existent libraries, no support staff or facilities, dingy and crowded work areas. Remarkably, the policy acknowledges and addresses these issues too.

All of this is with the intention of trying to reduce the average pendency time of litigation to three years from its present average of 15 years. Yes, 15 years. By any measure, that's a completely unviable time-frame. The recent decision in the Bhopal case came after 26 years. Any attempt to reduce this delay has to be welcomed.

Yet there is one area in which the policy is muddled. The policy clearly views Public Interest Litigations (PILs) as a nuisance. It suggests that PIL petitioners should pay compensation should they ultimately lose when opposing 'public contracts'. Compensate whom? What 'public contracts'? Not long ago, a PIL challenged the expansion of the Mangalore airport. The PIL was lost. 167 people died. Everything those petitioners said now appears to be true. If Mr Moily's policy is to be accepted, the government ought to have been 'compensated'.

This reasoning assumes that all public contracts are beneficial and benign, all opposition mere bloody-mindedness. Not so. Mayawati's glitzy monster mall behind the Taj Mahal (the mall, of course, being Mayawati's monument to her special love, namely, money) was a public contract, stopped by the Supreme Court on a PIL. While the judicial track record on PILs has been uneven at best, the Supreme Court's perhaps most of all — very different considerations seem to apply to the NCR than to the rest of the country — PILs continue to be an effective check on unthinking, uncaring and errant governments. Nothing else explains the 'public contract' that proposes an expressway through the tiger reserves of Kanha and Pench. Or spending hundreds of crores on statues of historical figures in the middle of the sea, while our pensioners go without, and our farmers commit suicide. PILs are not mere obstructions. They are a balancing mechanism, as any responsible and efficient litigant should recognise.

(A slightly different version of this article first appeared in the Mumbai Mirror and Bangalore Mirror with the title "The PILfering of justice")

Just another fella with strong views
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