CONTAINING BUREAUCRATIC ZEAL FOR LITIGATION: REIMAGINING NATIONAL LITIGATION POLICY - Business Guardian
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CONTAINING BUREAUCRATIC ZEAL FOR LITIGATION: REIMAGINING NATIONAL LITIGATION POLICY

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INTRODUCTION

Just one year of the Pandemic, and the impact of COVID-19 on the Indian Judiciary was very apparent, and now, almost two years later from the initial ‘hit of the pandemic’, the judiciary is finding itself entangled in a very difficult position. As per a report by the NJDG, the pendency of cases which stood at a figure of 3.8 Corers prior to Lockdown (March 2020), has as of April 2021 shot-up by 4.4 Crores in terms of just fresh cases before the judiciary, without including the appeals & revisions or matters pending before tribunals. Thus, in terms of fresh matters only, the pandemic has added a whopping 1 Crore of cases, even despite the fact that for most of the lockdown, CIRP stood suspended and the overall number of sanctioned judges increased in strength along with the hit-and-miss convivence of virtual hearings. Thus, it isn’t surprising to see the CJI pleading for Mediation & Alternative Dispute Resolution as the norm and an overall Supreme Court on its toes with the Tribunals Reforms Act. Uncannily within this huge backlog of cases, it is the Government of India who is the biggest litigator of the majority of cases, as much as 46% of the total cases. Thus, lately, emphasis has been laid on working out a National Litigation Policy to break this vicious cycle of litigation of a compulsive government.

NATIONAL LITIGATION POLICY

“I may be a fool but the Courts will hear me” is a widely known expression that conveys that no matter how frivolous the litigation may be, the Courts will still devote their undivided attention to hear it unbiased. While this may be a vital claim for an aggrieved individual, but it doesn’t sit-well when the Government continues contesting litigation just because a decision is not to its liking, as it robs the sheen of a democratic system that prides in not just speedy justice but also avoiding embroilment of its people in litigation frivolously, not to mention the expenditure that has to be borne by the public exchequer.

Keeping this in mind, a National Litigation Policy (NLP) was envisaged first in 2010 as an attempt to bring down the average pendency of 15 years to 3 years by rehabilitating the Government’s antecedents of pursuing frivolous litigation. The NLP provided a framework that broadly focused on four main areas to address the pendency of litigation, namely, the Appeals & Pleadings themselves, the Code of Ethics, the predominant practice of Adjournments & prolonging litigation and exploration of ADR.

The NLP foremost strictly required the government to refrain from contesting litigation at the appellate level as a routine unless there is a patent error or a question of law involved. Appeals should especially be avoided for matters pertaining to revenue or service if the stakes are not high or too adverse. But it failed to provide the yardstick for the expression ‘high-stakes’ & ‘question of law’ and left it up to the whims of the government, who had already tasted the blood. Its other requirement of pleadings to be clear and precise was also far too vague to hold any meaning whatsoever. Furthermore, the NLP imposed certain etiquettes to be kept by Government Counsels and established Committees & Nodal Officers in each government department to exercise a check on its counsels & implement the policy. But while it provided that the possibility of disciplinary actions against those in its violations, no powers or procedure was established to take action. The NLP also frowned up-on the practice of routine adjournments and engaging in extensive by contesting matters beyond the statutory limitation but its measures to abstain from the same were suggestive & persuasive at best. Lastly, the NLP also nudged the Government to adopt Alternative Dispute Resolution Mechanisms to cut-back on litigation but unfortunately, this seemingly good solution was largely ignored and is yet to be implemented extensively.

However, the NLP remained only as a ‘paper-opportunity’ with laudatory objectives of curbing litigation without any meaningful results. Its failure was owed to its vague standards that did not enshrine any actual accountability to keep the government departments on its toes and its overshadowing ambition over implementation. Even the Courts have, over-the course of time, lamented over the failed deliverance of the NLP at several instances (Union of India v. Pirthwi Singh (2018) 16 SCC 363.

REIMAGINING THE NEW NATIONAL LITIGATION POLICY WITH THE DOCTRINE OF STATUTORY STARE-DECISIS

The sheer vacuum of any change by the NLP of 2010 over the Government’s praxis of pursuing litigation has in fact uncannily culminated into yet another litigation in the form of a PIL before the Hon’ble Delhi High Court regarding the implementation of the NLP (CVN Bhaskar Rao, CPIO, Union of India & Ors. v. Central Information Commission 2020 W.P. (C) 10526/2020) wherein the Centre has expressed that a revised National Litigation Policy is in the pipeline.

Given the precarious situation created by the pandemic and an overtly angry Judiciary over the Tribunal Reforms Act, there is a lot riding on the New National Litigation Policy (NNLP) to bring forth. The New Policy should foremost avoid its previous pitfall of a ‘passive approach’ with rhetoric & meaningless phraseology in favor of some overt & substantive measures to meet its ends. It should consider establishing a ‘Litigation Ombudsman’ and a ‘Grievance Redressal System’ as previously suggested by the Law Commission of India with the necessary powers to not only inquire into the ongoing litigations but to also withdraw the same and take disciplinary actions against those violating the New Policy. An individual complaint mechanism should also be created so that those being unnecessarily harassed with litigation can reveal the misbehaving government officials and fasten accountability. It should double-down on adopting ADR mechanisms in government departments & undertakings. Most importantly, it should provide a Realizable & Tangible Assessment Mechanism with detailed benchmarks for pursuing litigation.

However, it is pertinent to note that all of these measures already did exist in different shades within the 2010 National Litigation Policy, and yet they were unable to fulfil their object and because of this, apprehension and worry still looms over whether the new policy would be able to make a dent or will it just be yet another ad-lib policy.

While the Government does share the blame in initiating frivolous litigation, what has gone unnoticed is that the majority of the pendency comprises of cases filed against it. Thus, the major problem with the NLP was not its failure in roping responsibility on the government but rather of resolving disputes with repletion. It is for this very reason it becomes all the more important for the Courts & Tribunals to also play their part and shake things-up by borrowing a well-known doctrine from the Supreme Court of United States, the Doctrine of Statutory Stare-Decisis. If the Government continues being reluctant for litigation, then it should necessarily be the Courts & Tribunals who should take the initiative of probing their perception that frivolous litigation would be entertained; and they can do so by reading the aforesaid Doctrine.

The Doctrine of Statutory Stare-Decisis simpliciter means that the Court is to exercise its powers of interpreting a legislation ambiguity only once, its interpretation would consequently gain a special status of a binding precedent, and thereafter it will not be amenable to revisit interpretation unless its position is subsequently either altered by the legislative by enactment or its application would be practically impossible. This is based on the principle that a well-established decision ought not to be interfered with, and any change should come from the legislative lest the use of the judicial over the legislative process for resolution. While the said doctrine cannot be imbibed to the letter, certain regard ought to be accorded to it. Cases filed against the Government once decided as per the established precedent, subsequent Courts should only examine whether the facts even warrant the precedent or not, and wherever it does, it should outright refuse to exercise its discretion of hearing the matter. This is because, if the Government feels aggrieved by the interpretation of the Court, then a change in the interpretation must be brought forth by it, and till it’s not, the acquiescence of the Government to the interpretation must be deemed.

One of the unsaid issues with the old policy was that even though government officers were conferred the permission to take decisions as per the established decisions, the individual officers were still afraid to do so, fearing repercussions like accusation of corruption, bribery or the wrath of an unhappy higher official. By extending the exercise of Doctrine of Statutory Stare-Decisis as a norm to Government Departments, individual officers will be able to decided disputes faster without much intervention of the Courts or fear of repercussions. It would also direct the Government into alternative mechanisms if they see that the Courts won’t budge to their whims so easily.

TAKEAWAYS

The New NLP should avoid being pre-conceived on baseless premises & vague notions and must undertake to set-out a functionary vested with clearly defined powers, an assessment mechanism of the policy, with the proper procedure for placing accountability and taking actions. A reimagining of the Policy with the Doctrine would lead to a two-fold increase in its efficacy, and more importantly, it would make the Government keener on exploring out of court settlements & pursuing alternative remedies along with making it more responsive to the utilization of legislative remedies if it is aggrieved by the Court’s decision.

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Policy&Politics

Kejriwal unveils ‘Guarantee’ for LS Polls: AAP’s pledge for change

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On “Kejriwal ki Guarantee”, he said 24X7 power supply, good education and health facilities, and arranging two crore jobs for youths every year are part of it.

Delhi Chief Minister and AAP national convener Arvind Kejriwal declared “Kejriwal ki Guarantee” on Sunday, outlining 10 urgent initiatives to be pursued swiftly, including the liberation of Indian territory from Chinese control, should the INDIA bloc come to power at the Centre. This opposition alliance, comprising parties like AAP, Congress, Trinamool Congress, and Dravida Munnetra Kazhagam, was established to challenge the BJP-led National Democratic Alliance in the Lok Sabha elections.

A day after his release from jail on interim bail, Kejriwal on Saturday said the INDIA bloc will form the next government and his AAP will be part of it. Addressing a press conference on Sunday, the AAP leader said people will have to choose between “Modi ki Guarantee” and “Kejriwal ki guarantee”. The latter is a “brand”, Kejriwal said.

On the announcement of his guarantees, Kejriwal said, “I have not discussed with my INDIA bloc partners about this. I will press upon my INDIA bloc partners to fulfill these guarantees.”

Kejriwal said while the AAP has fulfilled its “guarantees” of free power, good schools, and Mohalla Clinics in Delhi, “(Prime Minister Narendra) Modi has not fulfilled his guarantees”.

On “Kejriwal ki Guarantee”, he said 24X7 power supply, good education and health facilities, and arranging two crore jobs for youths every year are part of it.

“We worked on management to ensure 24×7 power supply in Punjab and Delhi. We can do it in the entire country. The government schools in the country are in a bad shape. We will arrange good quality education across the country. We know how to do it,” he said.

Kejriwal also promised to end the Agniveer scheme and ensure that farmers get MSP for their crops as per the Swaminathan Commission’s report. “Rashtra Sarvopari is our guarantee. China has occupied our land and we will free it from their occupation,” he said. Kejriwal also promised to provide full statehood to Delhi.

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Economy

Macro & financial stability, boost to infra, extended PLI likely key areas in Modi 3.0

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If one were to go by the Central Government’s poll manifesto which has stayed aligned to the pre-poll interim Budget, a strong adherence to the path of macro and financial stability as priorities, marked by low inflation, strong external balances, high growth, and fiscal prudence, appears to be the likely scenario if it comes back to power. A DBS Group research by Radhika Rao, senior economist, DBS Group Research and Taimur Baig, MD and Chief Economist, DBS Group Research indicates that the government will continue with the infrastructure push, policies to expand the manufacturing sector, and establish the country’s position as a voice of the Global South.

On the first, the focus will be on improving physical and digital infrastructure, marked by new metro networks, new railway tracks, new-age trains, improved connectivity, new bullet trains, roads, and energy infrastructure. Concurrently, besides expanding the 5G network, improving rural broadband connectivity, exploring 6G technology and the digitization of land records, amongst others, were highlighted in the to-do lists, as per Rao and Baig.

Secondly, Make-in-India and PLI schemes are likely to be expanded, with an emphasis on employment creation, simplification of regulatory processes, appropriate infra for manufacturing hubs, and R&D. A mix of traditional and new-age sectors will likely be prioritized, including a globally competitive food-processing industry, and core sectors (steel, cement, metals, engineering etc), besides a push towards indigenous defense manufacturing, pharma, new age & chip manufacturing, auto and electric vehicles, amongst others.

Existing social welfare programs are likely to be enhanced with better outreach, including, a middle-class focus through the provision of high-value jobs, quality healthcare and infra to improve ease of living, amongst others. Also on the radar is affordable housing program expansion with a focus on slum redevelopment, sustainable cities, etc. The PM Garib Kalyan Anna Yojana is to be a priority, which will continue to provide free foodgrain ration to about 800 mn residents. On healthcare, Rao and Baig see continuity to provide quality free health treatment to up to 500,000 poor families under Ayushman Bharat.

The economists are also of the view that the PM Ujjwala Yojana, which has already benefited 100 mn with cooking gas connections, will be expanded. Subsidies for solar panels on roofs of 10 mn households up to 300 units/month under the PM Surya Ghar Muft Bijli Yojana, unorganized workers, farmers and continuation of financial assistance to farmers under PM Kisan, farm self-sufficiency, etc.), start-ups and micro-credit enterprises, will be the other focus areas to boost the economy from a bottom-up approach.

Rao and Baig foresee limited fiscal implications from these announcements as part of these were included in the interim budget and the manifesto did not outline any new big-bang reforms or fresh social welfare spending programs. “We maintain our FY25 fiscal deficit assumption at -5.1% of GDP with the existing borrowing program,” says the economists.

A broad-based push towards more contentious structural reforms (land, labor, farming, etc.) did not receive a mention in the manifesto, which may still be prioritized if the party returns for a third term. In our view, the incoming government is neither limited by nor will be restricted by the poll promises. To that extent, the scope of reforms can be wider than what has been laid out in the respective manifestos.

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Policy&Politics

Govt extends date for submission of R&D proposals

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The Government has extended the deadline for submission of proposals related to R&D scheme under the National Green Hydrogen Mission. The R&D scheme seeks to make the production, storage, transportation and utilisation of green hydrogen more affordable. It also aims to improve the efficiency, safety and reliability of the relevant processes and technologies involved in the green hydrogen value chain. Subsequent to the issue of the guidelines, the Ministry of New & Renewable Energy issued a call for proposals on 16 March, 2024.

While the Call for Proposals is receiving encouraging response, some stakeholders have requested more time for submission of R&D proposals. In view of such requests and to allow sufficient time to the institutions for submitting good-quality proposals, the Ministry has extended the deadline for submission of proposals to 27th April, 2024.

The scheme also aims to foster partnerships among industry, academia and government in order to establish an innovation ecosystem for green hydrogen technologies. The scheme will also help the scaling up and commercialisation of green hydrogen technologies by providing the necessary policy and regulatory support.

The R&D scheme will be implemented with a total budgetary outlay of Rs 400 crore till the financial year 2025-26. The support under the R&D programme includes all components of the green hydrogen value chain, namely, production, storage, compression, transportation, and utilisation.

The R&D projects supported under the mission will be goal-oriented, time bound, and suitable to be scaled up. In addition to industrial and institutional research, innovative MSMEs and start-ups working on indigenous technology development will also be encouraged under the Scheme.

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Policy&Politics

India, Brazil, South Africa to press for labour & social issues, sustainability

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The Indian delegation also comprises Rupesh Kumar Thakur, Joint Secretary, and Rakesh Gaur, Deputy Director from the Ministry of Labour & Employment.

India, on Thursday, joined the G20’s two-day 2nd Employment Working Group (EWG) meeting under the Brazilian Presidency which is all set to address labour, employment and social issues for strong, sustainable, balanced and job-rich growth for all. India is co-chairing the 2nd EWG meeting, along with Brazil and South Africa, and is represented by Sumita Dawra, Secretary, Labour & Employment.

The Indian delegation also comprises Rupesh Kumar Thakur, Joint Secretary, and Rakesh Gaur, Deputy Director from the Ministry of Labour & Employment. India has pointed out that the priority areas of the 2nd EWG at Brasilia align with the priority areas and outcomes of previous G20 presidencies including Indian presidency, and commended the continuity in the multi-year agenda to create lasting positive change in the world of work. This not only sustains but also elevates the work initiated by the EWG during the Indian Presidency.

The focus areas for the 2nd EWG meeting are — creating quality employment and promoting decent labour, addressing a just transition amidst digital and energy transformations, leveraging technologies to enhance the quality of life for al and the emphasis on gender equity and promoting diversity in the world of employment for inclusivity, driving innovation and growth. On the first day of the meeting, deliberations were held on the over-arching theme of promotion of gender equality and promoting diversity in the workplace.

The Indian delegation emphasized the need for creating inclusive environments by ensuring equal representation and empowerment for all, irrespective of race, gender, ethnicity, or socio-economic background. To increase female labour force participation, India has enacted occupational safety health and working conditions code, 2020 which entitles women to be employed in all establishments for all types of work with their consent at night time. This provision has already been implemented in underground mines.

In 2017, the Government amended the Maternity Benefit Act of 1961, which increased the ‘maternity leave with pay protection’ from 12 weeks to 26 weeks for all women working in establishments employing 10 or more workers. This is expected to reduce the motherhood pay gap among the working mothers. To aid migrant workers, India’s innovative policy ‘One Nation, One Ration Card’ allows migrants to access their entitled food grains from anywhere in the Public Distribution System network in the country.

A landmark step in fostering inclusion in the workforce is the e-Shram portal, launched to create a national database of unorganized workers, especially migrant and construction workers. This initiative, providing the e-Shram card, enables access to benefits under various social security schemes.

The portal allows an unorganized worker to register himself or herself on the portal on self-declaration basis, under 400 occupations in 30 broad occupation sectors. More than 290 million unorganized workers have been registered on this portal so far.

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Policy&Politics

India to spend USD 3.7 billion to fence Myanmar border

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India plans to spend nearly $3.7 billion to fence its 1,610-km (1,000-mile) porous border with Myanmar within about a decade, said a source with direct knowledge of the matter, to prevent smuggling and other illegal activities. New Delhi said earlier this year it would fence the border and end a decades-old visa-free movement policy with coup-hit Myanmar for border citizens for reasons of national security and to maintain the demographic structure of its northeastern region.

A government committee earlier this month approved the cost for the fencing, which needs to be approved by Prime Minister Narendra Modi’s cabinet, said the source who declined to be named as they were not authorised to talk to the media. The prime minister’s office and the ministries of home, finance, foreign affairs and information and broadcasting did not immediately respond to an email seeking comment.

Myanmar has so far not commented on India’s fencing plans. Since a military coup in Myanmar in 2021, thousands of civilians and hundreds of troops have fled from there to Indian states where people on both sides share ethnic and familial ties. This has worried New Delhi because of risk of communal tensions spreading to India. Some members of the Indian government have also blamed the porous border for abetting the tense situation in the restive north-eastern Indian state of Manipur, abutting Myanmar.

For nearly a year, Manipur has been engulfed by a civil war-like situation between two ethnic groups, one of which shares lineage with Myanmar’s Chin tribe. The committee of senior Indian officials also agreed to build parallel roads along the fence and 1,700 km (1,050 miles) of feeder roads connecting military bases to the border, the source said.

The fence and the adjoining road will cost nearly 125 million rupees per km, more than double that of the 55 million per km cost for the border fence with Bangladesh built in 2020, the source said, because of the difficult hilly terrain and the use of technology to prevent intrusion and corrosion.

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Policy&Politics

ONLY 2-3% RECOVERED FROM $2-3 TN ANNUAL ILLEGAL TRADE THROUGH BANKING: INTERPOL

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However, Stock highlighted the enormity of the challenge, noting that between 40% and 70% of criminal profits are reinvested, perpetuating the cycle of illicit financial activity.

In a press briefing held on Wednesday, Interpol Secretary General Jurgen Stock unveiled alarming statistics regarding the extent of undetected money laundering and illegal trade transactions plaguing the global banking network. Stock revealed that over 96% of the money transacted through this network remains undetected, with only 2-3% of the estimated USD 2-3 trillion from illegal trade being tracked and returned to victims.

Interpol, working in conjunction with law enforcement agencies and private financial sectors across its 196 member countries, is committed to combating the rising tide of fraud perpetrated by illicit traders. These criminal activities encompass a wide spectrum, including drug trafficking, human trafficking, arms dealing, and the illicit movement of financial assets.

Stock emphasized the urgent need to establish mechanisms for monitoring transactions within the global banking network. Currently, efforts are underway to engage banking associations worldwide in setting up such a framework. However, Stock highlighted the enormity of the challenge, noting that between 40% and 70% of criminal profits are reinvested, perpetuating the cycle of illicit financial activity. The lack of real-time information sharing poses a significant obstacle to law enforcement agencies in their efforts to combat money laundering and illegal trade.

Stock underscored the role of Artificial Intelligence (AI) in exacerbating this problem, citing its use in voice cloning and other fraudulent activities. Criminal organizations are leveraging AI technologies to expand their operations and evade detection on a global scale. Stock emphasized the importance of enhanced cooperation between law enforcement agencies and private sector banking groups. Realtime information sharing is crucial in the fight against illegal wealth accumulation.

Drawing inspiration from initiatives such as the “Singapore Anti-Scam Centre,” Stock called for the adoption of similar models in other countries to strengthen the collective response to financial crimes. In conclusion, Stock’s revelations underscore the pressing need for concerted action to combat global financial crimes. Enhanced cooperation between public and private sectors, coupled with innovative strategies for monitoring and combating illicit transactions, is essential to safeguarding the integrity of the global financial system.

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