M R Shamshad Advocate - New Delhi

The problems in the justice delivery system are manifold, as stated by the judges themselves. Frivolous litigations are indeed a problem, but it is not the most serious problem confronting the judicial system. The government is a major litigant in the high courts and the Supreme Court. The Ministry of Law and Justice in the Action Plan to Reduce Government Litigation (2017) stated that approximately 46 per cent pending cases before the courts pertain to the government. The 230th Law Commission report on reforms in the judiciary (2009) stated that the responsibility of unclogging the judiciary was with the central and state governments since they are the biggest litigants in the courts. The report suggested that governments should approach the courts only if necessary, and not just to pass the buck.

Frequently, the Supreme Court has imposed fines on governments and litigants for filing frivolous litigations. However, this has not discouraged them from indulging in such litigations. Government authorities have ignored the National Litigation Policy of 2010 to follow an unwritten rule that all orders against the government must be challenged till the last court. This approach is ridiculous.

In Pirthwi Singh (2018), the Supreme Court said the Union of India must appreciate that by pursuing frivolous or infructuous cases, it was “adding to the burden of the Supreme Court and collaterally harming other litigants by delaying hearing of their cases through the sheer volume of numbers”. Recently, in a case involving the government, the Supreme Court held that “no action is ever taken against the personnel responsible for the delay and to save their skin, these special leave petitions are filed wasting judicial time”.

The National Litigation Policy 2010, which said “litigation will not be resorted to for the sake of litigating”, is not working. The policy has not deterred the government authorities from filing frivolous cases. Ultimately, available judges have to spend their time on these cases before dismissing them as frivolous. Imposition of costs on government authorities, mostly paid from the public exchequer, cannot salvage the time wasted of the judges and court system. Hence, it is time to think of more practical solutions.

When a litigant comes with a frivolous case, the court can exercise inherent jurisdiction to deal with many related issues. In this process, citizens invoking jurisdictions of higher courts in matters of personal liberty, civil rights etc. should be treated compassionately as these expose governmental excess or inaction of government functionaries.

The core issue is the non-appointment of judges. Many high courts have 40 to 50 per cent vacancies at times. According to a government statement in the Lok Sabha, there were 5,135 vacancies in district and subordinate courts as on June 30, 2018. Other issues that lead to clogging of the system include the refusal to increase the number of sanctioned posts, lack of infrastructure in the district courts, absence of training of judges, stalling of police reforms etc. All these factors generate cases and burden the dockets of the courts at all levels. Special courts are created for specific disputes giving the impression of expedited hearing and disposal. But judges for these courts have to be provided by the high courts from the existing common pool of judges.

All these issues need effective resolution, preferably by joint effort of the Supreme Court and the High Courts.

This article was published in the Indian Express on June 25, 2021

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