Bombay High Court demands national litigation policy to end inconsistent Central stands

The Urgent Imperative for a National Litigation Policy: Analyzing the Bombay High Court’s Directive

In a significant judicial intervention that strikes at the heart of administrative inefficiency and legal redundancy, the Bombay High Court has recently issued a stern directive to the Central Government. A division bench comprising Justice G.S. Kulkarni and Justice Aarti Sathe has emphasized the absolute necessity for a uniform “National Litigation Policy.” This demand stems from a recurring and problematic phenomenon: the Union of India frequently adopts inconsistent legal positions across different High Courts on the identical subject matter. As a Senior Advocate practicing within the Indian judicial system for decades, I view this observation not merely as a suggestion, but as an essential mandate for the evolution of our legal framework.

The High Court’s observation highlights a systemic failure where the Central Government, the largest litigant in the country, lacks a cohesive strategy. This results in “compulsive litigation,” where cases are filed or contested without a rational assessment of their merits or the existence of prior settled law. The court’s call for a “rational litigation strategy” is a clarion call to prevent the colossal waste of judicial resources and to ensure that the State acts as a “model litigant” rather than a persistent adversary to its own citizens.

The Bombay High Court Case: A Catalyst for Change

The specific context that led Justice G.S. Kulkarni and Justice Aarti Sathe to make these remarks involved instances where the Central Government’s various departments took divergent stands on similar legal questions in different states. This inconsistency creates a jurisdictional nightmare. When the Central Government argues ‘Point A’ in the Delhi High Court and ‘Point B’ in the Bombay High Court regarding the same statutory interpretation, it induces legal uncertainty and encourages further litigation.

The division bench rightly pointed out that such an approach is not only taxing for the litigants but also places an avoidable burden on the judiciary. In a country where the backlog of cases exceeds four crores (40 million), the government’s failure to maintain a uniform stand is an administrative luxury that the Indian justice system can no longer afford. The Court has essentially demanded that the Centre streamline its legal departments to ensure that once a legal position is adopted, it is maintained consistently across the length and breadth of the country.

The Problem of Inconsistent Central Stands

The lack of a uniform policy leads to what we call “forum shopping” by the State or, worse, a “wait-and-see” approach where the government persists in litigation until a Supreme Court verdict is reached, even when several High Courts have already ruled against the State. This inconsistency is often seen in matters pertaining to indirect taxation (GST and Customs), service law, and land acquisition. For example, if a particular tax exemption is upheld by the Gujarat High Court, the revenue department might still choose to contest the same exemption in the Madras High Court, leading to a fragmented legal landscape.

This inconsistency violates the principle of “Equal Protection of Laws” under Article 14 of the Constitution. A citizen in Maharashtra should not be subjected to a different legal interpretation by the Union than a citizen in West Bengal on a Central statute. The Bombay High Court’s demand for a National Litigation Policy is, therefore, a push toward constitutional parity.

The Evolution of the National Litigation Policy (NLP)

The concept of a National Litigation Policy is not new. In 2010, the then-Attorney General and the Ministry of Law and Justice introduced a draft National Litigation Policy. The stated objective was to transform the government into an “efficient and responsible litigant.” The policy aimed to ensure that the government does not file appeals in routine matters, especially where the stakes are low or where the issue is purely technical and does not involve a substantial question of law.

However, that policy remained largely a set of guidelines without legislative teeth or strict administrative enforcement. Over the years, subsequent governments have mentioned “NLP 2.0,” but a comprehensive, binding, and rational strategy has remained elusive. The Bombay High Court’s recent intervention serves as a reminder that the 2010 vision has failed to materialize on the ground. The Court is now demanding more than just a draft; it is demanding a functional mechanism that holds government departments accountable for the litigations they initiate.

The State as a ‘Model Litigant’

The bedrock of the National Litigation Policy is the doctrine that the State should be a “model litigant.” In the landmark case of Dilbagh Rai Jarry v. Union of India, the Supreme Court noted that the State should not behave like a private litigant who exploits every technicality to defeat a just claim. A model litigant is expected to be fair, to disclose all facts to the court, and to avoid unnecessary appeals.

When the Bombay High Court speaks of a “rational litigation strategy,” it is echoing this sentiment. A rational strategy involves a pre-litigation screening process. Before an appeal is filed against a citizen, there must be a rigorous assessment: Has this issue been decided before? Is the cost of litigation higher than the recovery amount? Is there a genuine question of law? Currently, government officials often file appeals to avoid the “3Cs” (CBI, CVC, and CAG) oversight, fearing that not appealing might be seen as collusion. A formal National Litigation Policy would provide these officials with the “safe harbor” needed to make rational decisions not to litigate.

The Socio-Economic Cost of Judicial Resource Waste

The Bombay High Court’s concern regarding the “waste of judicial resources” is backed by staggering statistics. Various reports, including those from the Law Commission of India, suggest that the Government (Central and State) is a party to nearly 46% to 50% of all pending cases. This “clogging” of the system delays justice for private individuals in matrimonial disputes, criminal trials, and commercial suits.

When the Central Government takes inconsistent stands, it forces High Courts to spend hundreds of judicial hours re-adjudicating settled points. Each hour of the High Court’s time is funded by the taxpayer. Thus, redundant litigation is not just a legal failure; it is a fiscal failure. By demanding a uniform policy, the Bombay High Court is acting as a custodian of the public exchequer, ensuring that administrative lethargy does not drain national resources.

The Impact of Inconsistency on Ease of Doing Business

From a commercial perspective, inconsistent stands by the Central Government are a major deterrent to investment. For instance, in the realm of International Arbitration or Intellectual Property Rights, if the Centre’s position shifts from one High Court to another, it creates an environment of legal instability. Foreign and domestic investors require “legal certainty.” A National Litigation Policy would act as a guarantee that the State’s legal interpretation is stable, predictable, and uniform, thereby significantly improving India’s global ranking in “Ease of Doing Business.”

Key Components of a Robust National Litigation Policy

For the policy demanded by the Bombay High Court to be effective, it must go beyond mere platitudes. As a legal practitioner, I suggest the following pillars for a rational litigation strategy:

1. Mandatory Pre-Litigation Mediation

The policy should mandate that government departments explore mediation or settlements before approaching the courts, especially in service matters and contract disputes. The State should be the first to extend the olive branch, reducing the adversarial nature of administrative law.

2. Appointment of Nodal Officers for Consistency

There should be a centralized database of all legal stands taken by the Union of India across all High Courts. Nodal officers in each ministry should be responsible for ensuring that a brief filed in the Madras High Court is consistent with the one filed in the Bombay High Court.

3. Defining “Threshold Limits” for Appeals

The policy must clearly define monetary thresholds below which the government shall not file an appeal, regardless of the merit. While the CBDT and CBIC have implemented some versions of this, it needs to be a universal rule across all Central departments.

4. Accountability for Malafide Litigation

If a court finds that the government has filed a frivolous appeal or has suppressed a previous adverse judgment on the same issue, there must be internal accountability for the officers who sanctioned that litigation. The culture of “appealing for the sake of appealing” must end.

Challenges in Implementing a National Policy

The path to a uniform policy is fraught with bureaucratic hurdles. The primary challenge is the “siloed” functioning of different ministries. The Ministry of Railways, the Ministry of Finance, and the Ministry of Home Affairs often operate as independent legal entities with their own panels of lawyers. Bridging these silos requires a strong mandate from the Prime Minister’s Office and the Ministry of Law and Justice.

Furthermore, there is a psychological barrier within the bureaucracy. Government advocates often feel that conceding a case, even a losing one, might lead to departmental inquiries. The National Litigation Policy must provide a robust indemnity to officials who decide to accept a court’s verdict in the interest of justice and judicial economy.

Conclusion: The Way Forward

The Bombay High Court’s directive to the Central Government is a landmark moment in Indian administrative jurisprudence. By highlighting the need for a “rational litigation strategy,” Justice G.S. Kulkarni and Justice Aarti Sathe have pointed out a deep-seated rot in our legal system—the tendency of the State to be a compulsive and inconsistent litigant.

The Union of India must now respond not with another draft, but with a concrete, binding policy that ensures uniformity across all High Courts. A National Litigation Policy is no longer a choice; it is a necessity for the survival of our judicial system. It will free up the courts to handle matters of grave constitutional importance, reduce the burden on the taxpayer, and truly establish the “Rule of Law” as a consistent and predictable force. As we move forward, the legal fraternity and the citizenry will be watching closely to see if the Centre heeds this judicial advice or continues to drift in the sea of inconsistent litigations.

In the final analysis, the measure of a mature democracy is how its government treats its citizens in court. If the State continues to use its vast resources to fight inconsistent and redundant battles, it fails its mandate. It is time for a National Litigation Policy that reflects the dignity of the Indian State and the efficiency of a modern legal system.