Report No. 126
Contributory causes for Multiplication of Litigation
7.1. Experience shows, and analysis of reported cases clearly lead to one conclusion, that the lack of accountability in the officer in whom the power vests to determine whether to initiate litigation or perpetuate the same by preferring appeals, is largely responsible for mounting litigation. This attitude is referable in service matters to eccentric approach of officers siting in vertical command position and utter non-compassionate attitude towards subordinates.
In the matter of litigation with public, cases are not unknown where corrupt motives have been at the root of the tendency to continue litigation so as to exhaust the other side in the fond hope that he/she/it may, out of exasperation, be willing to grease the palms. There is a third independent cause generating this tendency to initiate or perpetuate litigation and that is to avoid taking decisions which, in the current culture, may lead to doubting the bona fides of the officer who has to take decision.
There are other multiple causes which contribute to the malaise. It is not possible to explore the hidden tendencies behind this attitude but which are solely responsible for multiplication of litigation involving public sector undertakings and Government.
7.2. One more cause may be independently examined in this behalf. The Indian Constitution inheres a social philosophy and is founded upon certain fundamental values. It has goals and objectives. One of the well-recognised objective of the Constitution is to impart social justice, the guiding spirit be hind Part IV of the Constitution. This value system and social philosophy of the Constitution can be clubbed together in one expression-the culture of the Constitution. All limbs of Executive must be imbued with this constitutional culture.
Every action of theirs must be judged and examined and evaluated by the yardstick of constitutional culture. Social justice is one of the prime facets of constitutional culture. Social justice is imparted not only by means of an organised movement or by way of any party politics but many administrators, executives, can also possibly reveal their sense of social justice at the decision making level while formulating policy on vital issues, they accomplish a profound change in outlook and thus silently revolutionize 'authoritative allocation of values'.1
As in the case of Executive, the Judiciary, an important limb of our political society, has to evolve an activist role. For years it was not even visible is not an unfortunate reality. However, since last about two decades, judicial activism has come to the forefront. This activism must be reflected in the scale of values of Judges evinced by their treatment of the weak, the poor, the downtrodden and against the giants, the unequals.
The test of the moral quality of a civilization is its treatment of the weak and powerless.2 This moral quality of the constitutional civilization must inform all limbs of the Government. 'In public law we have to evolve an activist administrative branch with correctional and directional, protective and pre-emptive, capabilities. Law becomes functional only if it can meet the challenges of change.
So it is that I plead for a constructive public sector jurisprudence founded upon socio-political realities and geared to the fulfilment of larger objectives.3 This constitutional culture abhors futile and indefensible litigation, especially at the hands of Government/public sector undertakings. Therefore, it is imperative that policies and strategies should be so devised by public sector undertakings/Government as to reduce litigation to the minimum, if not eschew it wholly.
1. O.P. Gauba Dimensions of Social Justice, pp. 130-131.
2. United States v. Murphy, 222 F 2d 698 (1955), p. 706, quoted by Henry J. Abraham in Freedom and the Court, p. 4.
3. Justice V.R. Krishna Iyer Law Versus Justice, p. 151.
7.3. How much urgent this task is can be revealed by the fact that during last five years, lakhs and lakhs of cases involving Government Departments were instituted in various courts of the country and colossal amount has been invested in this unproductive exercise1 (for figures see Annexure IV). From amongst public sector undertakings, nationalised banks and financial institutions have been responsible for a large amount of litigation2 (for figures see Annexure V).
Every such diversion of funds to unproductive areas like litigation reduces the capability of these public sector undertakings to spend on socially beneficent activities. The loss is to the poor and the underprivileged and by their litigating policy, the gain is to lawyers and the disadvantage is of the court system on which an unduly heavy burden is cast.
1. See Annexure IV.
2. See Annexure V.
7.4. There is, what is called a Department of Personnel, Public Grievances and pensions, which has the nodal responsibility to redress the grievances which are remediable without intervention of courts. The Department has a full-fledged Division, headed by a Director under the overall charge of the Additional Secretary. This Department confesses that on an average it receives about 3,000 grievances per quarter from the public.
They are processed with the aid of a computer. After the grievance is diagnosed, which itself may suggest a remedial measure, they are forwarded for final disposal to the concerned Ministry under intimation to the man who had made the grievance. In some cases, a follow up action is taken directly by the Department depending upon its belief it can be handled by the Department itself.
7.5. The Law Commission has come to note that the Government has resolved to set up a Directorate in the Cabinet Secretariat itself to strengthen the machinery for redressal of public grievances. Presumably, an official in the rank of a Secretary to the Government of India would head the Directorate. In the first instance, the new Directorate would deal with grievances relating to railways, posts and telecommunications and banking if the concerned Department has turned deaf ear to the complainant.
The details are yet to be worked out but the format appears to be of a three-tier set up: one in the Department itself, a monitoring cell and a Directorate at the level of Cabinet Secretary. The experiment may be evaluated when it is made fully operational. For the present, the Law Commission can only take note of the wholesome attempt in this behalf. What would be required would be a total and radical change in the attitude towards those coming forward with grievances.
Experience shows that generally one who can set right the grievance turns deaf ear to the complainant and he is not subject to any social audit. In the absence of social audit, the doctrine of accountability suffers and wide yawning chasm develops between the maker of the grievance and the one who has power to redress the same. While suggesting effective measures, this aspect will have to be kept in central focus.