State Litigation Policies in India: Challenges and Trends

SUMMARY : This blog post examines challenges in implementing State Litigation Policies at the state level, highlighting unconventional patterns in government litigation. It advocates for data-backed policies and emphasises the need for careful formulation.

Key takeaways

An analysis of State Litigation Policies (SLPs) and their working in different states highlighting their varying adoption and inconsistent implementation

There is a practical difficulty in studying state government litigation due to ambiguous case categorisation across the states. Further, the states do not collect data regarding the same and therefore, researchers rely on the collection of data by the union government.

Critique of existing policies as insufficiently precise and accountable. There is an urgent need for well-crafted, data-backed policies to effectively manage government litigation instead of policies that are drafted in a loose way, inviting their open violation by the stakeholders.

Introduction

In our previous discussion, we delved into the imperative for a comprehensive national litigation policy (hereinafter NLP) and explored the consequences of its non-implementation in the routine litigation processes of the government. The blog post also sheds light on the existence of different litigation policies at the state level which are often termed State Litigation Policies (hereinafter SLPs). As part of our continuing analysis of government litigation, this post aims to scrutinize the working of litigation policies at the state level, and on the issue of deficiency in data.

Data at the state level

Similar to the NLP, understanding the workings of the SLPs requires studying their effectiveness in reducing the caseload and their implementation by the stakeholders. The process prompts us to analyse datasets related to case pendency in courts (at the state level). One must acknowledge that studying government litigation at this level entails practical difficulties for the researchers as it involves filtering the massive case data that are classified under different confusing case categories. For instance, the NJDG data provides a holistic overview of the different case types and their pendency at every tier of the government. Yet, it is difficult to ascertain from this data the specific number of cases where the state government is involved as a party.

While it can be argued that methods of deductive reasoning can help nuance this data, it is difficult as well as misleading to estimate the overall caseload through such an exercise. For example, even if one drills down multiple datasets on case pendency in different categories (writ, civil), they cannot specifically indicate the tier (Union or State) of government which is a party in that case type. To put it simply, even if the caseload of the writ, criminal and other cases are combined, the data obtained by deducting such cases from the overall caseload is not helpful as it cannot be deduced which level of government is a party to such cases.

For present purposes, one has to rely on the data presented at the union level as only the Union government is known to maintain the case depository where it is one of the parties. However, as noted in the previous post, this itself is not updated on a periodic basis. Quite interestingly, it has been observed that despite the union government’s denial of data collection about state governments’ cases, some methods are known to have been deployed in past by the Ministry of Law and Justice to find out the caseload at the state level. This becomes particularly important because, in response to almost all the questions on government litigation, the government has consistently maintained that it has no data about the cases of the state government. In this connection, we noted that while preparing a reply to one question in the Rajya Sabha, the Department of Legal Affairs had once used the Integrated Case Management Information System (ICMIS) to segregate the cases relating to the state Government.

In its estimation exercise, the ministry claimed that it conducted a comprehensive search based on the name of the party entered in the search box of ICMIS. For the ‘‘State Government’’, it entered terms like ‘Government’, ‘Govt’, ‘Govt.’ and ‘State’ and excluded text searched for ‘Central Government’. Based on these results, different estimates were obtained for the cases of union and state governments in different High Courts and the Supreme Court. The following figures have been obtained for the states’ cases in the Supreme Court:

This data demonstrates that the number of cases where the states are respondents is far greater than the cases where the states are petitioners. Inevitably, it means that state governments are not initiating as many cases as is generally alleged in different studies. Secondly, there is a sizeable chunk of cases which have been pending more than five years. While there is considerable merit in such an exercise due to methodological reasons,, the veracity of the search results is doubtful from many angles. The reasons underlying this range from correctness to credibility. At first glance, the search data is not credible enough as there can be multiple orders related to a single case and that might have inflated the actual numbers. Of equal importance is the fact that this data does not cover cases in lower courts. That apart, it also does not cover the number of cases where state-run public sector enterprises (“PSUs”) are a party. Sometimes, functionaries of the States (Chief Secretary, DGP) are also made a party in various cases which will not be detected in such searches and therefore, such searches are prone to underestimating the numbers. Additionally, in any case, the risk of false positives and slight uncertainty cannot be ruled out in such an exercise.

Some reflections on the current trends

The need for a well-curated and tailored policy/rulebook is borne out by the fact that the current policies have not been able to reduce the litigiousness as evident from the caseload. However, as a few studies indicate, a sweeping conclusion that puts entire responsibility on the government departments seems unfair. For instance, it has been noticed that companies are generally known to resort to writ jurisdiction, which in turn inflates the numbers where the state is a party. Moreover, most of such petitions are generally for interim relief, the appointment of an arbitrator or enforcement of an aspect of a contract. These end up adding to court backlogs. Any future SLPs need to take such factors into account and provide for the resolution of such issues at the pre-proceedings stage. To tackle the same issue, Karnataka has adopted a provision (Section 34) that mandates the government departments to consider the case for interim relief first before opposing it in courts.

SLPs and the status of their implementation across different states

As per the mandate of the NLP, different states adopted their own version of the NLP. However, the form, content and vision of these policy documents differ substantially across the states. At the same time, many states do not have a policy and they mostly rely on a legal cell to manage their conduct of litigation in the different forums.

Given that, it is pertinent to track the progress that was made towards drafting the SLPs. We have tracked different states and their adoption of the policy. Moreover, we have attempted to include any additional rules/legislation that is in place along with SLPs. We have limited our findings to major states because of a lack of appropriate information, . The following table seeks to provide a real-time track of the status of SLPs and their adoption across the states:

Status of litigation policy adoption in states

State	Active Litigation Policy	Year of Adoption	Any Specific Rule
Bihar	Bihar State Litigation Policy	2011	-
Andhra Pradesh	Cannot be ascertained	2011/21	-
Gujarat	Gujarat State Litigation Policy	2011	-
Karnataka	Karnataka State Dispute Resolution Policy	2021	Karnataka Conduct of Government Litigation Act 2023
Maharashtra	Maharashtra State Litigation Policy	2014	Rules for the Conduct of the Legal Affairs of Government 1984
West Bengal	No Information Available	-	-
Madhya	MP State Litigation	2018	Madhya Pradesh Law
Pradesh	Management Policy	-	and Legislative Affairs Department Manual
NCT of Delhi	No Information Available	-	-
Kerala	Kerala State Litigation Policy	2011	-
Tamil Nadu	Tamil Nadu State Litigation Policy	2012	-
Uttar Pradesh	UP State Litigation Policy	2012	-
Rajasthan	Rajasthan State Litigation Policy	2018	Rajasthan Law & Legal Affairs Department Manual 1999

A study on the working of litigation policies

On the face of such policies, it would appear that they would act as the catalyst for effective litigation on the government side. However, ground realities suggest that these policy documents are even short of being called ‘paper tigers.’ Several avoidable litigations have been pending for years due to inaction and non-observance of the rules by the government. For our analysis, we took the case of Bihar where in one case, the Government did not file even a counter affidavit for eight years from the filing of the writ petition. Further, such instances were repeatedly brought to light by the High Court in different cases. More problematically, it has also been noticed in our private conversations with certain stakeholders in state governments that they are not even aware of such policies at the state level. Take for instance, one case before the Patna HC where the court found that the District Magistrate was completely ignorant about the existence of any such policy. Quite ironically, the District Magistrate happens to be the ex officio Chief of the District Level Empowered Committee under the said policy. Such cases are not limited to any state and similar instances can be found in courts across the country.

Conclusion

The non-implementation of the SLPs and the utter disregard for them by key stakeholders does not bode well for state governments. To a great extent, it can be safely commented that the drafters of such policies themselves are responsible for their failure. At the heart of the issue lies the fact that most of the SLPs are filled with overbroad directions and convoluted processes. In such a scenario, even if a few stakeholders wish to follow the policy, its language is not precise enough to take them out of their inertia.

Nearly all the SLPs lack clear directives, proper accountability mechanisms, impact assessment and reprimand for non-observance. This holds equally true in case of new Acts/Rules that are brought to replace such policies in a few states. This bring us to the subject of the next blog post in this series, on the new Karnataka Conduct of Government Litigation Act, 2023 which seeks to change the concept of litigation management through the use of advanced phraseology in its drafting.

State Litigation Policies in India: Challenges and Trends

Key takeaways

Table of Contents

Introduction

Data at the state level

Some reflections on the current trends

SLPs and the status of their implementation across different states

Status of litigation policy adoption in states

A study on the working of litigation policies

Conclusion

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