Government bodies litigating lost causes; wasting country's resources, judicial time: Justice BV Nagarathna

Supreme Court Justice BV Nagarathna recently criticised state bodies for pursuing hopeless cases that waste public money, while supporting the adoption of mediation.

“If a government body goes on initiating another round of litigation where there exists no likelihood of success, our country’s resources will continue to be improperly used and judicial time mislocated," she said.

Calling upon lawyers to see themselves as “healers of human conflict", Justice Nagarathna also urged the judiciary to embrace the Mediation Act, 2023, emphasising that it represented Parliament’s intent to expand access to justice and ease the burden on courts.

She rejected the idea that mediation was a diluted form of justice, framing it instead as timely, accessible and equitable.

“Mediation is a new dimension not only to achieve justice, but to access justice,” she explained.

Her sectoral suggestions included green mediators for environmental disputes, patient advocacy groups for healthcare mediation, WIPO-style systems for IPR and mediation clauses in start-up agreements. As Chairperson of the Juvenile Justice Committee, she also urged victim–offender mediation in juvenile cases, handled by trauma-informed mediators.

The remarks were made at the Second National Mediation Conference held in Bhubaneswar on September 27, during a session titled Enhancing the Eco-system for Mediation in India. The session was chaired by Justice Nagarathna and co-chaired by fellow judge Justice N Kotiswar Singh and Himachal Pradesh High Court Chief Justice Gurmeet Singh Sandhawalia. The panel comprised Justice Jayant Banerji of the Karnataka High Court, Former Maharashtra Advocate General Birendra Saraf, Chhattisgarh Advocate General Praful N Bharat and Senior Advocates Jawad AJ and Geeta Ramaseshan.

Saraf delivered a sharp critique of the ineffectiveness of pre-litigation mediation under Section 12-A of the Commercial Courts Act.

Citing a study by the Economic Advisory Council to the Prime Minister (EAC-PM), he said that statistics from two commercial courts in Maharashtra revealed that “97 to 99 per cent of cases were non-starters where parties did not even effectively participate. Of the remaining, only around one per cent ended in successful settlement.”

Saraf said he was “shocked” by the findings, noting that the EAC itself had recommended against making pre-litigation mediation compulsory until systemic barriers were addressed.

“If mediation is to become the backbone of dispute resolution, we must study what has really been done, the success rates, the obstacles and the roadblocks, and then remove them," he said, batting for sector-wise audits to evaluate outcomes rather than relying on a one-size-fits-all model.

Justice Singh called for bridging the “mediation divide” between metropolitan and rural districts. He also urged the Bar Council of India to integrate mediation into law school curricula.

“A lawyer is the first person of contact through which the legal system is invoked…therefore, there has to be a paradigm shift in the training of lawyers,” he said.

Justice Sandhawalia highlighted the role of mediation in Himachal Pradesh’s ecological and developmental disputes, citing landslides caused by four-laning projects, displacement from river valley projects and industrial pollution.

“What is required today is collaboration among the state, corporates and individuals, so that ecological damage, displacement and livelihood issues can be addressed through mediation,” he said.

He flagged unresolved Pong Dam rehabilitation claims, mining displacement of tribal communities and inter-state water disputes, stressing that such matters require specialised mediators.

Justice Banerji stressed that the true strength of mediation lies in the enforceability and clarity of settlements.

“A mediator has to establish neutrality and competence to gain the trust of the parties and every agreement must be plain, precise and unambiguous,” he said.

He also underscored the need for proper training of mediators, warning that half-hearted or poorly trained mediators could erode public faith in the system.

“The mediator must command the confidence of both parties — otherwise even a settlement that looks good on paper will not stand the test of time."