When Abraham Lincoln was practising law, a rich man approached him for suing his poor neighbour who owed him three dollars. Lincoln refused to take the case, but when the rich man said he would find another lawyer, Lincoln agreed for a fee of ten dollars.
As soon as the rich man left his office, Lincoln summoned the defendant, gave him five dollars and asked him to settle the debt with interest in court. The case was thus closed to the satisfaction of all three—the plaintiff, the defendant and the lawyer.
Didn’t the rich man know that he was being pound-foolish in spending ten bucks for recovering three? He did, yet he litigated for prestige, out of spite, or because he did not know how else to punish his errant debtor. Apparently, 19th century America did not have loan recovery agents, the kind who lift our cars and kidnap our children.
Our governments often behave like the rich man in the Lincoln story—litigating for prestige, out of spite, or simply because the mandarins who run the government do not know what else to do.
The last reason is the most common. The thumb rule in government is: if you get an adverse order from the court, go for appeal. No babu would stick out his neck and advise against appeal, even if he knows that the government’s case is weak. Let the court decide—is the mandarin mantra.
Once the matter reaches a stage where there is no further appeal, the thumb rule is to carry out the order in the particular case, but sit tight over other similar cases. The law that applies to several more similar cases might have been settled in the already-decided case, but let each aggrieved citizen go to court and get his orders—so goes the thinking.
The mandarin mantra manifested itself most ridiculously over the last few months. In December, the Supreme Court court had dismissed a bunch of appeals over a matter of soldiers’ pay (Union of India v. Balbir Singh Turn). Yet, the government raised the same issues in another appeal (Union of India & Ors v. Ex Nk Balbir Singh). That too was dismissed in March 2018 as vexatious, with the court even imposing a fine of Rs 1 lakh on the government.
But the judges, Madan Lokur and Deepak Gupta, were shocked when the same issues came up before them for a third time in March-April in Union of India & Ors v. Pirthwi Singh & Ors, with 10 lawyers appearing for the state. This time the judges read the riot act: read your own National Litigation Policy, they told the government.
If the government were seeking reading matter, there is plenty. The Law Commission had submitted a report as far back as 1984 on how to cut government litigation. There have been any number of committee reports and directives—three during the Narendra Modi regime—apart from the NLP which was formulated by the UPA government in 2010, cleared by a committee of secretaries in June 2015, sent to a high-powered group of ministers, and since then cold-storaged.
The mandarin mindset has made the state the biggest litigant, making it a party to nearly half the cases (46 per cent to be precise) pending in our courts. The state spends millions of taxpayer rupees to fight cases against taxpayers. Several of the cases are of one ministry, department or agency fighting against another ministry, department or agency of the government. The most compulsive litigant is the railways (65,000 cases by last year’s count), followed by finance (16,000), communications (13,000), and home (12,000).
Last week, the PMO acted for a third time in four years over the matter. It sent out yet another directive to all ministries and departments seeking suggestions on “how to reduce the number of legal cases?”.
How will the exercise end? I won’t bet even my demonetised notes.