Litigation management in government

It’s well known that governments are a major litigant in the Indian judicial system. What’s less known is that governments have an abysmal record in winning cases. Leave aside defending suits against them, governments struggle to win even those cases filed by them and where they have a very strong case. It’s actually worse since they have a very poor record in even pursuing the cases filed by them.

For sure, apathy, lack of accountability, and poor follow-up within government agencies is a cause for this state of affairs. It’s common to have inordinate delays in the filing of counter affidavits and even when filed they are of very poor quality. Then there are the issues of poor representation of the state’s case by the government pleaders (GPs), and long delays or lack of response to court orders. Given the large volumes of cases and the sorely inadequate human resources engaged on litigation management, departments struggle to even keep abreast of new cases filed, cases listed for hearing, and orders passed by the courts. 

But there are factors beyond the government agency’s control, involving the opaque court registry process and courtroom trends. For example, unlike private parties who can manage the registry process, governments generally struggle to even get cases listed. The quality of GPs are poor and many times compromised, compared to the high-profile and highly-paid lawyers representing the private parties (especially on cases where stakes are high). Besides, courts have been found generally to give the benefit of doubt to private parties (and employees litigating against the government) and give open-ended stay orders. It does not help that in general the court processes are inaccessible, opaque, and not accountable to the litigants, and documentation involves long and repetitive affidavits with long-winded and verbose sentences complicated by needless legalese. 

All this means that winning a case is very difficult for the government and the efforts required to even get a case closed once admitted is enormous. All that can be done is to file the affidavits in time and with good quality, both difficult propositions, and leave the rest to the judicial processes.

In the circumstances, one priority may be to focus efforts at strongly defending the government’s interests at the admissions stage. The objective should be to limit interim orders and stays that interfere with an ongoing executive (or alternate appellate) due process, address misrepresentation of the facts of the case to mislead the court, challenge writs that are not maintainable, highlight cases covered by settled law etc. In terms of effort-returns ratio, it’s perhaps ten times the effort to get a case closed once admitted compared to defending at admissions stage.

Despite all these daunting challenges, it’s important for government agencies to have strong litigation management systems. This should include small but strong legal units especially in the high litigation prone Departments, active co-ordination between the GPs and field officers to facilitate information sharing, a robust monitoring and review system for ongoing cases, prioritisation and diligent follow-up on important cases, strong representation of the government’s case before courts etc. Again easier said than done. 

Aggressive litigation engagement by the government, even without winning cases, has strong signalling value. In particular, it signals to four audiences. The Department officers at all levels become alert and ensure that counters are filed, cases are represented well before courts, and court orders are implemented. Similarly it forces the GPs to become alert and accountable. Private litigants realise they can no longer rely on getting stay orders and ensuring cases are not listed, and deters frivolous litigation. Lastly, a very important audience is the registry and judges themselves to force the listing of cases, deter default admissions and stay orders etc. In sum, such clear intent limits moral hazard and deters default practices that are detrimental to public interest. 

Finally, as we grapple with the massive backlog of long pending cases in Indian courts, it’s surprising that there’s little public debate on important internal process reforms in judiciary. They include avoidance of stay orders without sunsets, non-admittance of frivolous litigation, non-interference with executive process, a transparent and rule-based cases listing process, greater and user-friendly sharing of information with litigants, simplification of the court documentation etc. While some steps have been initiated, their implementation remains inadequate and much more remains to be done. More on this in another post.