Government common man. It has paved way


Government Litigation in India and National Litigation PolicyWhat is Litigation?·      Litigation is the term used to describeproceedings initiated between two opposing parties to enforce or defend a legalright.·      Litigation is typically settled by agreementbetween the parties ,but may also be heard and decided by a jury or judgein court.

 Pros and Cons of LitigationPROS CONS·      Legal battles are costly and require a highcommitment over a significant period of time. ·      Can create a damaging precedent if you lose,making it harder for other communities to defend themselves against the offencein question·      Can heighten conflict, making it more difficultto repair relationships in the community later on Litigation in India·      In India there is a single hierarchy of courts.·      India has three tier system of judiciary.·      District Courts, at the first tier. ·      High Court at 2nd tier, which has the appellateand supervisory jurisdiction over all the courts and tribunals in such state.

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 ·      The Supreme Court of India  at the third tier, is the highest court ofjustice in India having appellate and supervisory jurisdiction over High Courts. SPECIALISED LITIGATION·      Proceedings seeking judicial review.·      Cases involving vires, or statutes or rules andregulations. Public Interest LitigationIntroduction of Public Interest Litigation has democratizedthe access of justice to commonman. It has paved way to a new regime of human rights bygiving a wider interpretation tothe right to equality, life and personal liberty and DPSP. Problems with Indian Litigation System·       Litigationin India is very time taking process . Indian Judicial System is marred withjudicial delays and slow process.

·      Supreme Court is bogged down by routinelitigation . The main culprit include-·      Tendency among litigants to seek special leaveto appeal against any order or decision of the high courts and tribunals ·       Provisionfor statutory appeals against orders of various tribunals. Eg. The Electricity Act, 2003,and the Telecom Regulatory Authority of India (Amendment) Act, 2000, providefor direct appeals to the Supreme Court against orders of appellate tribunals  1.

    Thepower to grant special leave is one that is meant to be used sparingly; inpractice it is used much too liberally.  Thishas an impact on the time and number of judges devoted to hearing matters ofconstitutional importance.    Timeframe for Litigation  Howto solve Loop Holes in Litigation Process·      Suggestions by Law Commission·      The Law Commission in its 229th Report suggestedhaving a Constitution Bench in Delhi, with four Cassation Benches’ in differentregions.   Mechanismfor Enforcement of Judgments  Lok adalats ·       NALSAalong with other Legal Services Institutions conducts Lok Adalats. ·      Lok Adalat is one of the alternative disputeredressal mechanisms.·       It is aforum where disputes/cases pending in the court of law or at pre-litigationstage are settled/ compromised amicably.

·       Under thesaid Act, the award (decision) made by the Lok Adalats is deemed to be a decreeof a civil court and is final and binding on all parties and no appeal againstsuch an award lies before any court of law. ·       If theparties are not satisfied with the award of the Lok Adalat though there is noprovision for an appeal against such an award, but they are free to initiatelitigation by approaching the court of appropriate jurisdiction by filing acase by following the required procedure, in exercise of their right tolitigate.  Nature of Cases to be Referred to Lok Adalat ·      A Lok Adalat has the jurisdiction to settle, byway of effecting compromise between the parties, any matter which may bepending before any court, as well as matters at pre-litigative stage i.

e.disputes which have not yet been formally instituted in any Court of Law. ·      Such matters may be civil or criminal in nature.·      But any matter relating to an offence notcompoundable under any law cannot be decided by the Lok Adalat even if theparties involved therein agree to settle the same. ·      National Lok Adalat National Level Lok Adalatsare held for at regular intervals where on a single day Lok Adalats are heldthroughout the country, in all the courts right from the Supreme Court till theTaluk Levels wherein cases are disposed off in huge numbers. ·      Permanent Lok Adalat The other type of LokAdalat is the Permanent Lok Adalat, organized under Section 22-B of The LegalServices Authorities Act, 1987. ·      Permanent Lok Adalats have been set up aspermanent bodies with a Chairman and two members for providing compulsorypre-litigative mechanism for conciliation and settlement of cases relating toPublic Utility Services like transport, postal, telegraph etc. Judiciary Effort towards Cost Effective LitigationSC tries to make legal services affordable ·      The Supreme Court has introduced aself-supporting scheme for providing legal services to the middle andrelatively lower income groups.

·       Accordingto the Union Law Ministry The ?Middle Income Group Scheme is meant to providelegal services to litigants in the Supreme Court whose gross income does notexceed ?60,000 per month or ?7.5 lakh per annum. ·      They can avail themselves of the services for anominal amount.  DPSP : Article 39 A :·      To promote equal justice and to provide freelegal aid to the poor ·      The National Legal Services Authority (NALSA)  Constituted under the Legal ServicesAuthorities Act, 1987 to provide free Legal Services to the weaker sections ofthe society and to organize Lok Adalats for amicable settlement of disputes.   Excessive Govt.

Litigation·      Government litigation  constitutes nearly half of all litigation inthe Indian judiciary. ·      Besides being a constraint on the publicexchequer, government litigation has contributed to judicial backlog, thusaffecting justice delivery .  The Law Commission of India also studied this problem inits 126th Report in 1988, and made appropriate observations on this front.    National Litigation Policy” (NLP) 2010A litigation policy can have a profound effect on how thegovernment thinks about itself as a litigant, and can help curb the problem,provided it is a constructed with a thorough understanding of the problem andoffers solutions based on evidence rather than conjecture.·      Its aim is to transform Government into anEfficient and Responsible litigant.·       Theeasy approach, “Let the court decide,” must be eschewed and condemned.  ·      The purpose underlying this policy is also toreduce Government litigation in courts so that valuable court time would bespent in resolving other pending cases.

·      Government advocates must be well equipped andprovided with adequate infrastructure.·      Training programs, seminars, workshops andrefresher courses for Government advocates must be encouraged.·      Accepting that frequent adjournments areresorted to by Government lawyers, unnecessary and frequent adjournments willbe frowned upon and infractions dealt with seriously. Alternative Dispute Resolution Arbitration·      The resort to arbitration as an alternativedispute resolution mechanism must be encouraged at every level.Public Interest Litigation·      Public Interest Litigations must be approachedin a balanced manner.

·      PILs should not be taken as matters ofconvenience to let the courts do what Government finds inconvenient.”National Litigation Policy” (NLP) 2010 failed as itwas generic and without any scope for implementation. Problems in NLP 2010 ·      It fails to provide a yardstick for determiningresponsibility and efficiency. The text does not define “suitable action” againstofficials violating this policy. ·       Itcreates “Empowered Committees” to regulate the implementation of the policy.But there is ambiguity about their role and powers. ·      It also lacks any form of impact assessment toevaluate actual impact on reducing government litigation. Suggestions·       Revisionof the NLP needs to ensure certain critical features are not missed out.

·      It must have clear objectives that can beassessed.·      The role of different functionaries must beenumerated. ·       Minimumstandards for pursuing litigation must be listed out.·      Fair accountability mechanisms must beestablished.   Making India hub of Arbitration·      Government of India has laid emphasis on makingArbitration a preferred mode for settlement of commercial disputes .·      The initiatives aim at minimizing courtintervention, bring down costs, fix timelines for expeditious disposal, andensure neutrality of arbitrator and enforcement of awards.  Arbitration and Conciliation (Amendment) Act, 2015·       Envisagesvarious ways to encourage foreign investment by projecting India as an investorfriendly country having a sound legal framework and ease of doing business inIndia.

 Justice B. N. Srikrishna Committee  RecommendationSuggestion regarding measures to improve the overall quality andperformance of arbitral institutions in India ·      Setting up of an autonomous body called ArbitrationPromotion Council of India (APCI).

·       APCI mayrecognize professional institutes providing for acceleration of arbitration. ·      Creation of a specialist arbitration bench todeal with commercial disputes in the domain of the courts. National LitigationPolicy must promote arbitration in government contracts. Review of the working of International Centre for Alternate DisputeRedressal(ICADR). ·      Suggested  for declaring the ICADR as an Institution ofnational importance. Recommendation for the creation of post of ‘International Law Advisor’ (ILA) ·      To advise the Government and coordinate disputeresolution strategy for the Government in disputes arising out of itsinternational law obligations, particularly disputes arising out of BITs.

·      With India’s focus gradually shifting towardsgreater growth and development through increased Foreign Investment, it isessential for the government to make India safer for the foreign investments.  Problem·      The World Bank’s Ease of Doing Business rankingfor 2017 reveals that India continues to fare badly on enforcement ofcontracts, with an average of 1,420 days taken for enforcement. The absence ofeffective means for enforcement of contracts is a serious fetter on the legalsystem and impedes economic growth and development. ? Also, it was found thatjudicial intervention and failure of the government and its agencies to useinstitutional arbitration has, among others, led to India’s reputation as an”arbitration-unfriendly” jurisdiction. ? In India, both ad hoc arbitrationmechanism and institutionalised mechanism are riddled with various problems.

Besides this a lack of awareness about the advantages of institutionalarbitration and the existence of certain institutions leads to parties avoidinginstitutional arbitration or preferring foreign arbitral institutions overIndian ones.    The Arbitration and Conciliation Act, 1996 provides two alternate methodsof ADR:Arbitration and Conciliation·      Arbitration is a method for settling disputes privately,but its decisions are enforceable by law.·      An arbitrator is a private extraordinary judge betweenthe parties, chosen by mutual consent to sort out controversies between them. ·      Arbitrators are so called because they have an arbitrarypower; for if they observe submissions and keep within due bounds theirsentences are definite from which there is no appeal. Arbitration offersgreater flexibility, prompt settlement of national and international private disputesand restricted channels of appeal than litigation. ·      In the words of Richard Cobden “At all events,arbitration is more rational, just, and humane than the resort to the sword.” ·      Arbitration hearings usually last only a fewhours and the opinions are not public record.

Litigation is expensive, timeconsuming and full of complexities. Types of Arbitration•Adhoc Arbitration: In the course of acommercial transaction if a dispute arises and could not be settled amicablyeither by way of mediation or conciliation, the parties have the right to seekAdhoc arbitration. •Institutional Arbitration: In this kind of arbitrationthere will be a prior agreementbetweenthe parties regarding the institution that they will refer to in order toresolve theirdisputes.

• Contractual Arbitration: The partiesentering into a commercial transaction prefer to incorporate an arbitrationClause in their agreement. The arbitration Clause provides that if in futureany dispute arises between the parties they will be referred to a named arbitrator(s).•Statutory Arbitration: If by operation oflaw the court provides that the parties have to refer the matter to arbitrationit is termed as Statutory Arbitration. In this kind of arbitration the consentof the parties is not required. It is more of a compulsory arbitration and itis binding on the parties as the law of the land.  Advantages of Arbitration over Litigation1.

In a civil court, the proceedings are held in public. While Arbitrationmaintains privacy.3.Arbitration provides liberty to choose an arbitrator, who can be a specialistin thesubjectmatter of the dispute. Thus, arbitrators who are sector specialists can beselected who resolve the dispute fairly and expeditiously.4.The venue of arbitration can be a place convenient to both the parties.

Likewise thepartiescan choose a language of their choice.5.Even the rules governing arbitration proceedings can be defined mutually by boththe parties.6.

A court case is a costly affair. The claimant has to pay advocates, court fees,processfeesand other incidental expenses. In arbitration, the expenses are less and many timesthe parties themselves argue their cases. Arbitration involves few procedural stepsand no court fees.7.

Arbitration is faster and can be expedited. A court has to follow a systematic procedure,which takes an abnormally long time to dispose of a case.8.A judicial settlement is a complicated procedure.

A court has to follow the procedurelaid down in the Code of Civil Procedure, 1908 and the Rules of the Indian EvidenceAct. An Arbitrator has to follow the principles of natural justice. The Arbitrationand Conciliation Act, 1996 specifically states that the Arbitral Tribunal shallnot be bound by The Code of CivilProcedure,1908 and The Indian Evidence Act, 1872.

9.Section 34 of the Act provides very limited grounds upon which a court may setasideanaward. The Act has also given the status of a decree for the award byarbitrators.Theaward of the arbitrators is final and generally no appeal lies against theaward.

10.In a large number of cases, ‘Arbitration’ facilitates the maintenance of continuedrelationship between the parties even after the settlement. Other Solutions –Gram Nyayalaya ·      Proposed by the 114th Law Commission way back in1986. Gram Nyayalaya with two objectives. ·      While addressing the pendency in the subordinatecourts was the major objective, ·      The introduction of a participatory forum ofjustice. ·      Concept was such a model of adjudication will bebest suited for rural litigation.  INTERNATIONAL ARBITRATION MECHANISM ·       India hasasked the BRICS nations to develop an arbitration mechanism among them. ·       Aproposal was made by Finance Minister at BRICS Conference on InternationalArbitration.

 Needfor such a mechanism ? West’s domination:It is observed that the arbitration centers are concentrated in west with apprehensionsof biased awards against emerging economies. ? Further, the emergingeconomies are not adequately represented in the arbitration area thus theexigencies and concerns of developing nations are not put forward properly.Thus, there is a need for developing nations to build capacity. ?Recent example- British oil and gas explorer Cairn Energy had initiatedinternational arbitration seeking $5.

6 billion in compensation from the Indiangovt. against a retrospective tax demand of Rs. 29,047 crore.  India’s efforts ·       In June2016, Singapore Arbitration center had agreed to open its branch office at GIFTcity.·      This effort is in consonance of Making India aGlobal Arbitration Hub.

·       India hasmade changes to its Bilateral Investment Treaty regime. ·       India  has made  changes to the Arbitration and ConciliationAct.   

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