Central government reveals plan to end long-pending court cases, prevent unnecessary litigation

The Union Law Ministry has issued a slew of guidelines to all the ministries and departments of the Government of India to ensure timely adjudication of cases where the government is a litigant.

An office memo (OM) issued by the Ministry of Law and Justice said that the Standard Operating Procedure (SOP) will help prevent unnecessary litigation and streamline inter-departmental coordination in litigation. 

The guidelines are titled ‘Directive for the Efficient and Effective Management of Litigation by Government of India’.

“This directive is designed to establish a system to ensure effective, fficient, integrated and coordinated management of litigation involving the Ministries/ Departments of the Central Government and its attached and subordinate offices and autonomous bodies, before courts and tribunals and other quasi-judicial fora to promote good governance in pursuit of the goal of Viksit Bharat by 2047," the Department of Legal Affairs said in the OM issued to the Secretaries of the Union government. 

Here is a summary of the guidelines:

Classification of cases and dealing with sensitive matters

• The legal cell in each ministry/department should classify cases into highly sensitive, sensitive and regular categories. 

• Highly sensitive cases (involving national security, law and order, policy or significant financial stakes) should be reviewed by the concerned secretary for an appropriate course of action. 

• The secretary may convene a meeting with all relevant officials to strategise. This exercise should be undertaken once the case is initiated before a forum and should continue throughout the life cycle of the case. 

Prevention of unnecessary Special Leave Petitions (SLPs)

- SLPs before Supreme Court must not be filed in routine manner, as per a guideline. The jurisdiction of the Supreme Court under Article 136 must be invoked only in exceptional and special circumstances.

The following, as per the Law ministry, is an indicative list of principles to be followed while filing of Special Leave Petitions under Article 136 of the Constitution of India:

• Cases with significant domestic or international consequences/ ramifications;

• Matters of substantial importance relating to social justice, especially those concerning marginalized or disadvantaged groups or communities;

• Cases raising legal questions of general public policy or interpretation of constitution;

• Cases involving legal questions with significant financial implications for the country;

• Cases where substantial and grave injustice has occurred, and no other remedy is available;

• Situations where there has been a clear violation of the principles of natural justice or a denial of fair hearing;

• Where different High Courts have passed contradictory orders on a specific subject.

Assignment of panel counsel, their periodic performance review

• The guidelines state that assignment of Panel Counsel to the ministries/departments for the conduct of litigation may be undertaken while taking into account their subject specific expertise and competency, as far as feasible.

• The Department of Legal Affairs is also to develop a framework for evaluating the performance of empaneled counsel. The evaluation exercise should involve comprehensive and objective assessments of the performance of standing/ panel counsel and advocates by considering the feedback received from the relevant ministries/ departments. Feedback on the performance of empaneled advocates and standing/ panel counsel for Union of India may be submitted annually by  the ministries/ departments. Based on their performance, as assessed, government counsel at the lower levels may be considered for upgrade to higher positions, have their tenure extended, or may be removed from the panel, as per the guidelines. 

• Department of Legal Affairs and the Department of Justice may jointly organize an annual conference to address emerging and pressing legal issues. Civil servants, judges of the Supreme Court and High Courts, law officers and distinguished jurists are to deliberate on such issues collectively.

Strengthening capacity

• Each ministry/department must create a dedicated common legal cell and the people responsible must receive training. 

• A nodal officer, preferably with a law degree and not below the rank of joint secretary, should be nominated to oversee litigation management. 

• Create posts of Director (Lega)/Deputy Secretary (Legal)/Under Secretary (Legal) and appoint officers with law degrees to ensure effective management of litigation. 

• Young professionals with an LLB degree may be engaged on contractual basis. 

• Experts at higher levels may also be hired for a specific purpose.

Promote arbitration and mediation to resolve disputes

• A scheme/ guideline may be rolled out for the resolution of disputes through mediation and arbitration. 

• Inclusion of an arbitration clause in government contracts should be considered on a case-by-case basis, and such clauses should be designed to ensure public accountability and judicial oversight. 

• Institutional arbitration must be promoted over ad hoc arbitration. 

• A periodic review of all arbitration cases involving the Union government should be conducted at the level of the Secretary or other senior officer. 

• An arbitration portal should be created. 

 Independent examination of the litigation risks of new initiatives

• When new statutes, rules or policies with significant impact is being drafted, a standalone examination for assessing litigation potential may be done to minimise unexpected/unwarranted litigation. 

Simplification of procedure

• Periodic scrutiny of subordinate legislation should be conducted to identify issues causing litigation.  

• When formulating policies impacting subordinate legislation, special emphasis may be placed on elimination of ambiguous provisions, procedural deficiencies and operational challenges. 

Master circular

• All important office memorandums/ guidelines/ circulars on important subjects may be compiled as a master circular and displayed on the website of the respective ministries. 

Grievance redressal mechanism

• Ministries and departments must ensure that a review/ appellate mechanism is developed to decide the grievances of staff by an independent and superior authority/ officer.

Disciplinary proceedings (service matters)

• The Department of Personnel and Training (DoPT) may bring in amendments or guidelines for expediting disciplinary proceedings to avoid delays in the disposal of cases at the administrative level. 

• A common pool of retired officers willing to act as inquiry officer (IO) or presenting officer (PO) may be created to conduct an inquiry cutting across multiple ministries/departments. 

 Tagging of cases with similar questions of law

• If more than one case involving the same or substantial question of law is pending before different courts, benches or tribunals, effort should be made to get it transferred to one place and same may be tagged for common adjudication and decision. 

Coordination among departments/ministries

• The government departments/ ministries against whom relief is sought, have been asked to coordinate to ensure a better defence in a matter. In case of conflict over who will lead, the matter can be referred to the Department of Legal Affairs.

Minimising Adjournments

• To ensure avoidance of unwarranted adjournments in case, more than two continuous adjournments are to be reported along with the reason to the Nodal officer of the concerned department/ministry.

Legal Information Management and Briefing System (LIMBS)

• The nodal officers, advocates and other users have been asked to use the LIMBS, which is being operated by the Department of Legal Affairs, to regularly update the case status. Payment of case fee is also to be processed through LIMBS.  

Surveillance of matters that may impact interest of Government of India

• In cases of public or constitutional importance where a ministry of department may not be party, the law officers have been asked to remain updated with the developments and coordinate with the nodal officers to take necessary steps to protect the government interests, if required.

Root cause analysis

• The government has also prepared a template for root-cause analysis of important cases for guidance and determining the way forward. 

No appeal against ex parte interim orders unless policy matter involved

• The government has advised against filing appeal against ex parte ad interim orders unless it is against the policy of Government of India. Rather, it has suggested that all efforts need to be made to get such orders vacated from the concerned court or tribunal which passed the order.

Challenge to orders of Central Administrative Tribunals (CAT) or a High Court 

• Whenever an order of the CAT or a High Court is not in consonance with the policy instructions or guidelines issued by DoPT, the concerned administrative ministry/ department has to challenge the same either by filing a review petition in the same court (if possible) or an appeal before the higher court . In such cases, the guidelines say there is no need for prior consultation with DoPT for filing the review petition or appeal.

Amnesty schemes to settle disputes

• It has also been suggested that to promote ease of living for citizens and for settlement of disputes/ claims wherein the subject-matter is non-compliance of any direction or breach of regulatory procedure, which does not affect public interest and is of a compoundable nature under non-tax/fiscal laws such as municipal laws, the ministries/departments dealing with such matters may frame amnesty schemes for settlement of such disputes/claims and the resolution of such disputes may be undertaken under the aegis of ADR mechanism.

[Read OM]