The Karnataka Conduct Of The Government Litigation Act, 2023

SUMMARY : In this blog post, Pratik Kumar discusses the Karnataka Conduct of the Government Litigation Act, 2023, aimed at improving the management of government litigation in the state. While acknowledging its positive steps, the post evaluates the Act’s provisions, highlighting lacunae and drawing on precedents.

Key takeaways

Karnataka introduced the 2023 Act to streamline government litigation, replacing previous provisions and circulars. It emphasises efficient and responsible conduct before courts and tribunals.
Assessing the Act’s impact requires time, and the blog suggests drawing insights from similar initiatives in other states. The lack of mechanisms addressing issues like inter-departmental litigation resolution and case flow reviews is noted.
The blog emphasises that while the Act is a positive step, it cannot address all issues, such as low remuneration, political influence in lawyer appointments, and lack of training. Cultural and systemic changes are essential for effective government litigation management.

Introduction

In our previous (See here) blog posts regarding government litigation, we focused on the litigation landscape at the union as well as the state level. While analysing government litigation at the state-level, it was observed that most states lack a robust policy/rule for managing their litigation. This has been attributed to the fact that the process flow of litigation inside the departments is either not laid down clearly or is vague.

Acknowledging these gaps, Karnataka recently passed The Karnataka Conduct of the Government Litigation Act, 2023 (hereinafter referred to as the “Act”) that provides detailed guidelines and a step-wise process flow to deal with the state government’s cases and their progress in the courts. The said Act supersedes the earlier provisions and circulars regulating government litigation in the state. While introducing the Act, the government stated that its goal is to ensure efficient and responsible conduct of government litigation before the courts and tribunals in the state.

On a brief perusal, it was evident there are some lacunae in the Act. However, considering the overall status of other such legal and policy interventions, it is still a welcome initiative. The Act has not only adopted several steps in alignment with the State Litigation Policies (SLPs) of various states to cut down the scale of wasteful litigation but also incorporated steps from different rules/circulars to provide a robust framework. Seen in this way, it promises to be a useful piece of legislation. However, since the law is relatively new, its efficacy as a policy intervention can be evaluated only after sufficient passage of time. Therefore, in this post, we will primarily focus on its provisions and a critical appraisal of the same

The Karnataka Act

The Act prescribes the procedure that is to be followed for dealing with cases filed on behalf of as well as against the Government of Karnataka in different case types including appeals, writs etc in the High Court as well as Supreme Court. Specifically, it talks about the necessary permissions to be obtained and the responsibilities of concerned officers of the Government and Law Officers. It also prescribes a procedure in urgent cases and examination of claims by the Government. Chapter IV of the Act governs court procedures, case conduct, issue framing, trial assistance, document production, witness examination, and review of appealable cases on behalf of the government, ensuring the safeguarding of government interests.

In addition to the abovementioned provisions, the Act has separate chapters for cases relating to Land Acquisition, Motor Accident Claims, Execution Cases and Criminal cases. It has elaborate specifications regarding the duties of the Deputy Commissioner and compensation amount in land acquisition cases. To summarise the intent of its provisions, it mandates the filing of suits and appeals against decisions that adversely affect the Government’s interests while simultaneously defending them in court. To do so, it prescribes a hierarchy of authorities to make decisions on approaching courts and conduct of litigation that includes the law secretary, departmental secretary and advocate general to enable smooth communication between the stakeholders. The main features of the Act are as follows:

The Act mandates prior sanction of the authorities for filing a case in Trial Courts as well as filing appeals in the higher courts as per its provisions.
The Law Department has been designated as the nodal department for sanctioning the filing of cases.
Every government case needs to be recorded with all the necessary particulars such as reason, amount, brief history and facts of the case.
It provides elaborate guidelines on the actual conduct of cases and the required procedure.
Cases such as execution, motor vehicle accident tribunal matters and land acquisition have been distinguished from general matters with different guidelines.
The Advocate General has been given a supervisory role along with the law secretary in cases before the Supreme Court.

Evaluation of the Act

It is often the case that the poor litigation culture prevailing inside government departments is due to untrained stakeholders. In the past, several committees have highlighted different problematic aspects of government litigation. For instance, the arrears committee report underscored the ignorance of officers as one of the leading causes of delays. It was noted with concern that in the majority of the cases filed against the government, the reasons stem from either the officers’ improper application of the mind or their wrong decisions due to the unfamiliarity with the statutes. In addition to this, other committees have also identified a few reasons such as the appointment of unsatisfactory government counsel as one of the reasons contributing to the pendency of cases. However, despite these well-known reasons, the Act fails to deal with these factors.

On the implementation part, it is difficult to conduct an effective impact assessment of the Act in a short period. Therefore, it becomes crucial to explore similar precedents and their implementation. To put it simply, we will attempt to draw on the outcomes or experiences of similar efforts (litigation policy and rules in this case) to highlight potential flaws, challenges, or lessons that should be considered while implementing the current Act. Certainly, they can provide valuable insights into what has worked or failed in the past and help in informed decision-making in the present. Generally, there is a dearth of empirical research on the effectiveness of litigation rules. However, for our present purposes, the impact study on the Karnataka litigation policy serves as a useful piece of research (hereinafter referred to as the “Report”). Thus, we would attempt to link the issues highlighted in the study and see whether the current act possesses a robust framework to tackle them.

In the following section, we would like to point out the issues and check if the Act has any relevant rules for issues flagged in the study:

Issues Flagged In The Study	Relevant Provisions In The Current Act
Problems faced by the litigation officer	The Report highlighted that government lawyers lack a proper knowledge of cases and there is a lack of coordination between the lawyers and the litigation conducting officer (defined as “ in relation to each case, the officer in the department concerned who is placed in-charge of the conduct of litigation in that case) While the current Act does not directly address this issue, provisions such as the preparation of detailed notes and their circulation to all stakeholders will be an important step towards addressing it.
Any mechanism for resolving inter-departmental litigation?	The current Act falls short of devising a mechanism for solving litigation issues between the government departments. In studies like the abovementioned impact study and government meetings, it has been flagged that such litigation also forms a sizeable chunk of the overall case pendency of government-related cases.
Any appraisal/review of the manner of the conduct of cases inside the departments?	The Act refrains from laying down any review mechanism of the case flow within the departments. While the chain of command has been properly delineated from top to bottom, there is no reviewing authority, apart from sporadic review by the departmental secretary.
How many departments are following the Act?	The Act is silent on its enforceability inside the government departments. While a proper command structure has been established, it is contestable that despite a similar structure in the Karnataka Litigation Rules, 1985 it could not be realised in practice. The primary reason as highlighted by the Report indicates that the rules could not develop a pool of efficient lawyers. The lawyers were known to do routine work without following the standards laid down in the rules. Further, due to the gaps in the provisions, proper supervision could not be achieved.
Submission of reports on a periodical basis	Earlier, the government departments of Karnataka were not required to maintain and furnish reports on litigation. However, the Act requires all government pleaders and public prosecutors to maintain a register on litigation they are handling and submit it to the law secretary every quarter.

It is important to acknowledge that, ultimately, the working culture within departments requires an overhaul. Issues such as low remuneration to the government lawyers, frequent adjournments due to the disinterest of departments and lack of coordination among stakeholders cannot be solved by laws alone, however strongly worded they might be. While the act has made significant strides in simplifying and organizing the process, it is the implementation part that requires changes.

Aside from these issues, the appointment and allocation of cases to government lawyers is an area that needs proper supervision. The impact study noted the arbitrary appointment of government lawyers (also known as government pleaders) and the factor of political influence behind such appointments. Such cases are not limited to Karnataka but they are also prevalent in other states where such appointments are used as political tools. The practice of random allocation of cases due to extraneous factors also prevents the government pleaders from getting specialised in certain types of cases such as revenue or taxation. Going further, lack of training and infrastructure stands as another bottleneck in the smooth functioning of such pleaders.

While there is always ample room to criticise a law on its drafting and perceived vagueness, practical considerations prevent us from taking this angle in this case. On a thorough perusal, it appears that the drafters of the Act have carefully taken cues from other rules and circulars to come out with a comprehensive law. Provisions such as directing the officers not to take the appeals as a matter of routine are noteworthy. Further, the division of the supervisory powers between the advocate general and departmental secretaries creates a multipolar command that can be equally beneficial or disastrous due to a conflict of powers. For instance, in matters before the Supreme Court, Section 46(2) instructs the Advocate-On-Record to follow the directions of the Law Secretary and the Advocate General. However, in a scenario where both offices will tender conflicting advice on a matter, there will be confusion about which one to follow. While the Act seeks to address a large number of issues, it needs to catch up on a few fronts due to well-known textual limitations of drafting.

Conclusion

As it is well understood in legal circles, an Act cannot be the panacea for all the ills, particularly for the cultural and systemic issues that are created and inherited in complex systems over time. Therefore, some of the current Act’s omissions are justifiable on the grounds of textual limitations. Cultural issues such as lack of file keeping, avoidance of alternate dispute resolution, hesitancy to grant interim relief, poor record management, coordination with government counsel, abysmal review mechanisms and other such issues cannot be solved by a piecemeal approach. As the history of bureaucratic reforms shows, political will, personal willingness, a clear accountability chain and an infusion of fresh culture alone can give necessary impetus to such changes. Therefore, in light of these, it would be interesting to see how far the act travels to eliminate the puzzle of government litigation in Karnataka.

(The author is thankful to Biswajit Misra and Anushka Khadse for their research assistance)