“… if the Government machinery is so inefficient and incapable of filing appeals/ petitions in time, the solution may lie in requesting the Legislature to expand the time period for filing limitation for Government authorities because of their gross incompetence. That is not so. Till the Statute subsists, the appeals/petitions have to be filed as per the Statues prescribed.”[1]
The recent pronouncement of the Supreme Court, a bench comprising of Hon’ble Mr. Justice Sanjay Kishan Kaul and Hon’ble Mr. Justice Dinesh Maheshwari, in State of Madhya Pradesh v. Bherulal, [2] has come straight from the shoulder. The Court has unequivocally reiterated that the government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condoning delay is an exception and should not be used as an anticipated benefit for government departments. The Supreme Court has emphasised that the law shelters everyone under the same light and should not be swirled for the benefit of a few.
Through this piece, we throw light on the judicial trend of how the courts have over time dealt with the condonation of delay with respect to the State.
The Government is the biggest litigant in the country. For the past several years, the judiciary has been grappling with the problem of extensive litigation in which the government is involved. Every case filed, irrespective of merits, adds to the judicial burden, costing the exchequer and increasing the pendency of cases. Government related litigation is plagued with red-tapism, institutional or bureaucratic procedures, delays in correspondence, habitual indifference of government officials or government pleaders, considering the impersonal nature of the cases, etc. These issues primarily occasion delay in filing of cases by the State. In some cases, the delay caused is significant and can even range up to 30-35 years.
It would not be wrong to say that over time, State functionaries have been harbouring a wrong notion that in seeking condonation of delay, the State can claim preferential or special treatment as opposed to private litigants, considering the practical realities of governmental functioning and peculiar handicaps afflicting the system of the State. The State has been relying on the difference in nature of functioning between a State and a private litigant which, in their view, justifies the concept of ‘sufficient cause’. The ones who endorse this view believe that if these peculiar characteristics and features are eschewed from consideration and the Court proceeds to apply the same yardstick to the State (as it applies in case of private litigants), it would amount to adopting a pedantic or mechanical approach, and would lead to miscarriage of justice. It would, in essence, be a case of not adopting the classification where there is a need for one, a facet of Article 14 of the Constitution of India.
Judicial trend
The Courts in India, though, have not admitted to the said difference (of State and private litigant) in strict sense, but they have been majorly condoning the State’s delay, basis the justice-oriented approach and the principle that ‘judiciary is not respected on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so’.[3]
In one of the landmark cases[4], the Hon’ble Supreme Court, however, did refer to the difference between a State and a private individual and went ahead to highlight the peculiarities to justify condonation in cases involving the State. The Hon’ble Court held that:
“… the expression “sufficient cause” must receive a liberal construction so as to advance substantial justice and generally delays in preferring the appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay. In litigations to which Government is a party, there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected; but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals.
… Government decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red-tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have “a little play at the joints”. Due recognition of these limitations on governmental functioning — of course, within reasonable limits — is necessary if the judicial approach is not to be rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. Implicit in the very nature of governmental functioning is procedural delay incidental to the decision-making process.”
Subsequently, several other judgments[5] were passed following similar approach, whereby the delay in cases where the State was the litigant was condoned basis one factor or another. The Hon’ble High Court of Andhra Pradesh in the case of A.P. v. Sathaiah,[6] attempted to list down these factors which a Court is ‘bound’ to consider in cases involving State:
- red-tapism in government;
- delays in correspondence;
- habitual indifference of Government officials or Government Pleaders as distinct from the usual diligence of ordinary litigants or lawyers for private parties;
- collusion or negligence by Government officials or Government Pleaders or fraud;
- damage to public interest or to public funds or interests of the State;
- institutional or bureaucratic procedures as well as delays arising thereon; and
- need to render substantial justice on merits.
Mis-use of Courts latitude and leniency by State
However, lately, the Courts in India have been observing a mis-use (or to say abuse) of this leniency by the State, whereby even in cases where the State’s own interest is at stake, a banal and standardise explanation is offered for the delay, which instead of satisfying the court on ‘sufficient cause’ for delay, unveils the attitude of indifference of the State. For instance, in CWT v. Amateur Riders Club, [7] the Hon’ble Supreme Court noted that the affidavit filed by the Revenue Department is one of the stereotyped affidavits, filed usually by and on behalf of the State, which makes it susceptible to the criticism that the department does not attach any importance to the need for promptitude, even where it affects its own interest.
In Chief Postmaster General v. Living Media India Ltd.,[8] the Hon’ble Supreme Court strongly, and in detail, dealt with this issue and held that no significance is to be accorded to usual explanations by the State since condonation of delay is an exception and should not be used as an ‘anticipated’ benefit for the State.
“In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.”
Similarly, the Hon’ble Supreme Court in the case of State of Bihar v. Deo Kumar Singh[9], placing reliance on the Chief Postmaster case, went ahead to strongly frown upon the delay of the State of Bihar in filing the appeal due to the lethargic attitude of government working. The Court indicated that this approach will no more be accepted as a general norm, and imposed a cost of INR 20,000/-. It further noted that ‘a clear signal has to be sent to the Government Authorities that they cannot approach the Court as and when they please’.
It is unfortunate that despite the aforesaid, the general attitude of the State has not seen a change. Noting this, the Hon’ble Supreme Court, in the recent case of Bherulal Supra took a strong opposition to the government’s lackadaisical attitude and stated that all of their counselling to government and its authorities seems to have fallen on deaf ears, with State walking in to the Courts whenever they choose to, completely ignoring the statute of limitation. A cost of INR 25,000/- was also imposed on the State.
Large number of cases coming to the court is a good sign in the sense that people still have faith in judiciary and its efficacy to settle matters, but a large number of cases coming against the government cannot be a good sign of good governance.[10] Question is: Is there a way out of the bureaucratic maze? May be yes, if we can tackle the real culprits ~ bureaucratic mindsets, complex rules, bureaucratic hierarchy and irrational deployment of resources.[11] May be the problem lies in the fact that as such there is no mechanism which exists to scrutinise the cases “which need to be contested and which need not be contested”. If we really need a solution to this issue, then the government system needs to become responsive to prevent litigations, which can rationally and logically be prevented.[12] These unprecedented times of the pandemic should be an eye opener for the government. The government should give this issue a serious thought and come up with viable solutions to avoid the cascading effects of unnecessary costs and burdening the judiciary with “certificate cases”.[13]
The maxim interest reipublicae ut sit finis litium is the foundation of law of limitation. It is based on considerations of public policy and it should not be diluted to a point of illusion such that the rules of limitation are rendered otiose and inconsequential on the plank of public interest. The recent pronouncement frowning upon such delays, is, without a doubt, a step in the right direction to hold the government accountable, instead of affording it a special treatment for being inefficient.
[1] Special Leave Petition (C) Diary No. 9217 of 2020 at para 2.
[2] Ibid.
[3] Collector, Land Acquisition v. Katiji, (1987) 2 SCC 107.
[4] G. Ramegowda, Major v. Spl. Land Acquisition Officer, (1988) 2 SCC 142.
[5] See: for e.g. State of Haryana v. Chandra Mani, (1996) 3 SCC 132 (at para 11 – “… on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the community. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay — intentional or otherwise- is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature.”);
Special Tehsildar, Land Acquisition v. K.V. Ayisumma, (1996) 10 SCC 634 (at para 2 – “… The transaction of the business of the Government was being done leisurely by officers who had no or evince no personal interest at different levels. No one takes personal responsibility in processing the matters expeditiously.”);
State of Manipur v. Koting Lamkang, (2019) 10 SCC 408 (at para 7 – “… Court to be conscious of the bureaucratic delay and the slow pace in reaching a government decision and the routine way of deciding whether the State should prefer an appeal against a judgment adverse to it.”)
[6] 1991 (1) ALT 496.
[7] 1994 Supp (2) SCC 603.
[8] (2012) 3 SCC 563.
[9] Special Leave Petition (C) Diary No. 13348 of 2019, Bench comprised of Justice S.K. Kaul and Justice Indira Banerjee.
[10] Government is the biggest litigant in the country: SC Judge, The Indian Express, February 12, 2015, available at https://indianexpress.com/article/india/india-others/government-is-the-biggest-litigant-in-the-country-sc-judge/.
[11] Red tape woes, The Statesman, Devendra Saksena, October 23, 2017, available at https://www.thestatesman.com/opinion/red-tape-woes-1502515566.html.
[12] Supra note 10.
[13] Supra note 1. The Supreme Court has categorised a set of cases as “certificate cases” where the object appears to be to obtain a certificate of dismissal from the Supreme Court as a mere formality to put a quietus to the issue, so as to avoid any accountability and thus, say that nothing could be done because the highest Court has dismissed the appeal.