Thoughts on civil litigation involving governments

Civil litigation involving the government is about half the massive backlog of civil cases pending before various courts in India. These cases mainly cover four broad areas: property-related claims and disputes, taxation-related matters, employee service matters, and contractual issues. This post will offer some suggestions on addressing the litigation load from such cases. 

Given the government’s role as the biggest litigant, and also the large numbers of cases continuously being added to the already massive pile of cases pending before the Courts, there must be a policy focus on what can be done to limit the incremental case load. Such measures should complement measures at the court system level to expedite the processing of pending cases. 

In theory, litigation arises when a party disputes an order or direction issued by a government official or entity. Such litigation can be triggered either by a genuine dispute that necessitates judicial intervention or by largely avoidable actions by the government or a private party. This post concerns the latter. While there are no estimates of such cases, I am inclined to argue that they would form the major share of litigation involving governments. 

I can think of five categories of such litigation:

1. Litigation involving procedural lapses and poor quality of orders by public officers is perhaps the largest source of litigation. This kind of litigation arises mostly due to the apathy and incompetence of frontline officers. They are commonplace in land, taxation, and government employees’ service matters. 

2. A small set of cases (which are also likely high stakes, involving large amounts) involves needless cascading litigation, where the government’s claim is tenuous. In such defensive litigation, government officials prefer to exhaust the full process of appeals to pre-empt vigilance inquiries. Land and taxation cases are examples. 

3. Litigation provoked by the abusive practices of government officials or entities that belong to two categories. The commonly known are malafide orders in favour of some vested interests (over other genuine claimants). A lesser-known one, perhaps bigger than the first, is that arising from actions of self-righteous (denial of rightful land title claims on so-called government lands) or overzealous (issue of bulk notices to taxpayers) officials. These are pervasive in land and taxation matters.

4. Collusive litigation by private parties, especially in taxation and contractual disputes, to avoid payment of rightful dues or cover up defaults on contractual obligations or force contract renegotiations. They include wrongful admissions, interminable stay orders, cases not being listed by court registries, etc. All such cases involve collusion by the judicial system. 

5. Administrative litigation by employees arising from delays in concluding long-drawn disciplinary cases, disputes in promotion seniority lists or in actual promotions, and disputes in the interpretation of service rules. This will include genuine cases of injustice due to administrative deficiencies and lapses. However, there is also a fair share of litigation done with the intent to obstruct or delay the due process. In each of the latter, courts contribute their fair bit to complicating matters by issuing conflicting orders and setting questionable precedents (most often forced on governments) that are selectively invoked by employee litigants.

So what can be done to address these cases?

Procedural lapses and poor quality of orders could be significantly addressed through process and technology solutions. Workflow automation and checklists could be useful in the case of the former, while the use of AI applications (trained on a template and a repository of orders) to prepare draft orders is emerging as a very promising area to control the quality of orders issued by public officials. Specifically, there’s a strong case for public investments and efforts on the latter front.

Defensive litigation could be addressed by solutions like explicitly forcing the consideration of the strength of the government’s case during the administrative decision-making process and placing accountability thereon, routing appeal decisions through Committees, and placing annual limits on the number of cases that can be appealed.

This kind of litigation is pervasive and is a big administrative and economic inefficiency. I blogged earlier, indicating that the government’s track record of recovering dues (in terms of ensuring payment into the Treasury) is abysmally poor. 

Abusive practices could be curbed by explicit restrictions on those, like the issue of bulk notices, except in extraordinary instances, to be clearly and sufficiently justified and issued by an appropriately higher authority.

Such abusive practices emerge from an administrative environment where the loss caused to the public exchequer attracts far greater scrutiny and punishments than the denial of the rights of citizens. One reason for this equilibrium is the administrative ease of identifying and documenting the former and the difficulty in doing the same for the latter. It may therefore be useful to formulate appropriate guidance that covers the latter in explicit terms, and force the consideration of the same while making decisions. More generally, a practical approach to revising undesirable administrative norms is to explicitly acknowledge the problem and then directly force its consideration into the decision process. 

The onus of limiting collusive litigation should, to a large extent, lie with the courts. Courts should exercise restraint with admissions and follow the process before admission, except in those cases demanding immediate remedy. Stay orders should have a sunset and mandatory listing. Further, the process of listing cases should be made transparent, even automated. Finally, the government agencies concerned should have a capable and responsive legal team that can represent their side promptly, accurately, and effectively through their counsels. The last is clearly dependent on state capability. 

In the case of administrative litigation, the judicial system must become aware of its own central role in contributing to the problem. The common types of such cases can be identified, and the Supreme Court could consider issuing guidance on such matters to prevent their recurrence and also clear the existing stalemates. Is there a way to clear up conflicting judgments on service matters, at least at the level of High Courts? However, notwithstanding these efforts, the fourth and fifth arise respectively from the political economy and pervasive state capability weaknesses, and therefore are perhaps unavoidable to some extent. 

In any case, it would be useful to analyse a sample of litigation in any state based on this framework to help prioritise actions along the lines discussed above.