Report No. 126

Part II

8.15. The Government, as far as the litigation is concerned, is in a class by itself. It is the biggest litigant in this country. And one is constrained to say that for such unmanageable litigation, it has neither policy nor plan nor direction nor effective method of management. Its policy of selecting law officers leaves much to be desired because the area of discretion enjoyed by it in this respect is unmanageably wide. The Department of Legal Affairs, the Law Commission is informed, handles the litigation on behalf of Union of India in the Supreme Court, High Courts and subordinate courts also.

Attorney-General is a constitutional functionary and he is the topmost law officer of the Government of India with a right of audience in, every court as also has a right to address the Parliament under certain circumstances. But by and large information shows that he has little or no voice in selecting his colleagues. Similarly, at the State level, Advocate General is the topmost law officer but he has no voice in selecting a Government pleader or a public prosecutor attached to the High Court.

Some streamlining in this behalf is necessary and wide discretionary power in the matter of selection of law officers requires to be restricted and controlled. Judges have more often voiced dissatisfaction with legal representation of the Government of India in the court and the Law Commission was left with the same impression while talking with some Judges. In any event, this report is not concerned with manner and method of appointing law officers of the Government of India.

8.16. Government of India has one distinct advantage that no litigation can be started against it, except where constitutional power under Article 32 or 226 is invoked, without a notice in writing served two months in advance specifying various things set out in section 80 of the Code of Civil Procedure. There are divergent views strongly held on the utility and efficacy of this statutory notice. Law Commission recommended the deletion of the provision contained in section 80, CPC.1

It appears that this recommendation pending with the Government of India since 8th May, 1984, has not met with its approval. It is, therefore, safe to assume that Government of India is of the opinion that statutory notice has some utility despite some strident and pungent criticism of the court. This Law Commission would, therefore, refrain from expressing any opinion about it. It would formulate its recommendations on the assumption that the requirement of statutory notice continues to exist.

1. LCI, 100th Report on litigation by and against the Government: some Recommendations, dated 8th May, 1984.

8.17. It is, however, said that nobody is bound to serve a notice while invoking the courts' constitutional power conferred by Articles 226 and 32. This statement does not adequately state the correct legal position. By numerous decisions, the courts have held that when a petition is for a writ of mandamus, the Court would insist upon the party making a demand for justice which, for all practical purposes, would tantamount to notice. Certiorari lies not only against inferior courts but also against quasi-judicial tribunals and against all bodies which have a duty to act judicially or fairly.

Challenge could be to a holding of such tribunal. The absence of notice would be hardly relevant. The writ of habeas corpus is of such a special nature that to insist upon a notice is to defeat the writ and disputes involving writ of habeas corpus are not negotiable before an arbitrator. Let the courts deal with the same. In the matter of writ of quo warranto where the legality of occupying an office is questioned, there is enough advance information to Government. Therefore, no consideration should be given to a submission that in large areas of litigation, the Government of India does not receive notice.

8.18. Now if Government is served with a notice of demand for justice or is aware with regard to other writs for reasons herein indicated, two expectations from the Government are wholly legitimate. What action should the Government of India or the concerned Department take on a receipt of the notice or demand for justice or allied method of information? And, secondly, did the concerned officer enjoying the power to take a decision on behalf of the Government of India in the matter involved in the notice make up his mind and determine whether the litigation is inevitable or there is a way out?

At any rate, no action should be taken by the Department after die receipt of the notice to alter the situation to the disadvantage of the one giving notice. That would not only be unfair and unjust but would also be clearly violative of the principle on which Government is accorded a special status in its own class of not being sued unless a notice is served.

Assuming that the demand in the notice is the one that the Government of India cannot concede as it is unjust, unfair or untenable or contrary to the position adopted by the Government of India in the matter, it should be made obligatory on the officer concerned, on the expiry of two weeks from the receipt of the notice, to formally write to the person giving notice to agree to refer the dispute for arbitration to one of the persons on the panel of arbitrators.

On his agreeing to refer the dispute to arbitration, the terms of reference will be drawn up and the person giving the notice must be called upon to choose an arbitrator from the panel or arbitrators drawn up by the Government of India. The arbitrator, on his willingness to accept the same, shall proceed to dispose of the dispute. This will put a positive check on the inflow of unnecessary litigation.

Assuming that the person giving notice, to whom the Government of India through its concerned officer makes an otter of referring the dispute to arbitration, declines to accept the same, then, on the suit being filed, the Government of India must appear and make the same offer again and, by a proper amendment of the Arbitration Act, the courts must be empowered to compel persons to go to arbitration. This would be an effective check on the inflow of litigation.

8.19. Could the same procedure be followed when constitutional power of the court is invoked against the Government of India? The answer is obviously in the negative. On a notice of the court in respect of a writ petition which is admitted being received by the concerned Department of the Government of India, it should again apply its mind within fifteen days to decide whether there is any legitimacy in the demand made against the Government of India.

If the demand is legitimate, it must be conceded in the court. If, on the other hand, the demand appears to be illegitimate or is one which the Government of India cannot afford to concede or is contrary to national interest, the Government of India must appear and thereafter, it must agree to an informal conciliation in the matter by a Judge of the same High Court or, if the petition is initiated in the Supreme Court, by a Judge of the Supreme Court other than the one who issued notice, to see whether the area of dispute is narrowed down.

If during this process the dispute can be resolved, nothing like it. If, on the other hand, there remains a grey area, the decision of the court should be taken. Ordinarily, the decision must be treated by the Government of India as binding,

8.20. Turning to the complaints by the employees of the Government of India vis-a-vis the departmental bosses, the procedure indicated in para. 8.11 must be effectively followed. Effective Grievance Cell should be set up which must remain active and must be in a position to dispose of the problems raised by the staff.

Where a point of legal formulation without a precedent is involved and if the Grievance Cell is unable to deal with that point effectively, the concerned Department and the employees involved in the dispute must agree to abide by the opinion of a member of the panel of arbitrators to whom a reference on a point of law be made and his opinion invited. The disputes must be disposed of in consonance with his opinion.