Justice L. Nageswara Rao on the need for the institutional reform, “No Bureaucrat Has Courage to Settle Government Disputes”
The former Supreme Court judge, Justice L. Nageswara Rao, recently made a poignant remark that “no bureaucrat has the courage to resolve government’s issues.” One of the most chronic issues in the country’s legal system is the huge number of litigations filed against government departments and public bodies, which is the subject of his comments here. The statement comes at a time of increasing worries that avoidable government litigation is continuing to clog court dockets as officials increasingly opt for the longer road of litigation over the administrative route.
The Government of India is well-known to be the biggest litigant in the country. Many of the cases before courts are between government departments or public sector undertakings or a citizen against the State. Often, this can be solved with negotiations, mediation, or administrative decision making, but it ends up in court, wasting time, money, and burdening the judicial system.
Justice Rao’s remark reminds one of the usual practice of the bureaucrats that they try to shirk from taking decisions as it can lead to further questioning on the audit, vigilance, or future scrutiny or allegations of favouritism. Thus, many officers feel that litigation is the safer choice, even if it might be both legally and economically appropriate to settle. When disputes are settled by courts, bureaucrats face less accountability for their actions but gain in the inefficient use of public resources.
This is more pertinent in the context of Article 39A of the Constitution of India, which obligates the State to ensure equality of access to justice and to promote access to legal remedy. Too much government litigation leads to a strain on public budgets and on justice for ordinary citizens who are waiting on a case to be decided.
There are various statutory provisions that promote alternative dispute resolution (ADR) as a tool to lessen litigation. Section 89 of the Code of Civil Procedure, 1908 gives the power to the courts to send cases between arbitration, mediation, conciliation, judicial settlement or Lok Adalats in cases where the settlement seems possible. In a similar vein, National Legal Services Authority (NALSA) has actively encouraged dispute resolution in the Lok Adalats and mediation system.
The Arbitration and Conciliation Act, 1996 also offers a structured way of settling a dispute and avoiding litigation in the courts. Even when there is a fairly clear liability, government departments often defy the settlement process. This resistance is problematic and leads to a substantial amount of judicial congestion.
In view of this, the Government had promulgated the National Litigation Policy, aiming to make the State an “efficient and responsible litigant”. The policy highlights the importance of minimising the number of unnecessary appeals, settlement negotiations and only litigating when legally required. There has in the past, however, been a lack of consistency in implementation from department to department.
Justice Rao’s observations also throw up some general concerns on administrative accountability. Official discretion regarding practical and lawful settlement decisions will only be further discouraged by a culture that rewards inaction, but punishes decision-making. For this reason, institutional changes might be needed in order to safeguard the integrity of officials that would undertake the resolution of conflicts in the interest of the public rather than for their own benefit.
Government officials are said to be too cautious, so causing wastage of taxpayers’ resources through the prolonged litigation process. There are often clear legal precedents or settlement options but cases can still drag on for years. The impact is not just economic but also a loss of faith in governance and justice provision.
Finally, Justice Nageswara Rao’s comments remind us that judicial reforms are not enough to address the pendency problem in India. Administrative courage, efficient dispute resolution processes and a culture of dispute resolution within the government are essential to reduce the amount of government litigation. The State will remain the country’s biggest and most persistent litigant until the practice of bureaucracy-based decision making is encouraged and protected.
