Governance is a set of processes, policies, laws, and institutions that administer and affect the lives of common men in a society. It is considered good if it is transparent, ethical and accountable. Justice systems and processes strengthen governance making it more just and equitable.
The use of litigation however to intimidate and coerce people to achieve something, which is otherwise not possible, is termed as litigation terror (LT). LT impairs and negates governance and weakens its frame. It accentuates and accelerates governance deficit. It is a disruptive action that causes avoidable burden on judicial system, and demeans all three pillars of democracy namely legislature, executive and judiciary.
LT is not an outcome of any law or system. It is unleashed by some individuals or group of individuals whether or not officially involved in the operation of an office, agency or task that have access to people working therein, and whether or not in collusion with them, facilitates speedy completion of prefixed task for consideration. Surely, it is subjective to say whether a litigation is frivolous or not, but it may be difficult to deny that indiscreet litigation is rising and its execution is gaining momentum. In fact it has become a source of livelihood for some.
LT appears to be a counter to Public Interest Litigation (PILs), which is considered a unique instrument of justice in matters that otherwise remain ignored. Many progressive legislation such as RTE Act, RTI Act, and MNREGA, though reflect good politics in this country, also owe their emergence to the course of PILs that was innovated over the last two decades. However misuse of instrumentality of PIL is also a subject matter of discussion in our society.
A lawyer once suggested to a government official why do not you file a petition on a matter which was otherwise purely an executive decision but did not allow him to go ahead with his ill-motivated actions and he will have it conceded. The lawyer succeeded, without caring that all manipulations and designs were noticed and reported by the media. This may be one anecdotal instance but it is not the only one.
Frivolous litigation is encouraged because legality of an application and doability of the required tasks do not go through any prior systemic scrutiny. It is also seen as an outcome of inaction or delayed action by the executive.
Litigation is also being used as a tool even by established institutions and authorities for crisis management, if not governance, which should normally be catered through an executive action or democratic process. Such litigation is a result of an evasive governance. The litigation goes on, though the crisis is sometimes averted. Actually, the crisis is deferred with deepening of simmering discontent, which over a period of time takes shape of common anger and unrest in the society. Farmers’ agitations in many parts of the country are glaring examples where hesitant governments manage to prolong their miseries through avoidable litigation.
Litigation terror demotivates and slows down the well-meaning executants of governance who are expected to work in a framework believing that it is secure and will not be called to question. But that does not seem to be true always. Even the framework of rules and regulations that is created to instil confidence amongst those responsible for good governance, is ignored or manipulated by those who persecute them through litigation terror.
A flawed litigation adversely impacts the performance of civil administration as most if not all employees’ start seeing a risk in performing their tasks. It amounts to targeted perversion of the laws as a result of unrestrained illegal acts of commission and omission by some and allows destructionists to succeed in deflecting the performers from their task and make them totally risk averse.
True, the processes of litigation are not well understood by the common man and are gradually becoming more complex, non-transparent and unaffordable. These are often driven by work pressures and public opinion. Recent happenings in Telangana in a rape case show that people are fast losing confidence in such processes. The memories of Nirbhaya agitation in Delhi are still afresh and justice though documented, has not been fully delivered even after five years.
Recently a farmer, who claimed that he had not committed the crime but was protesting against it being a Unionist and was falsely implicated to teach him a lesson for protesting against government inaction, had been convicted. The Unions and the people in general were protesting against his alleged wrong conviction and demanded from the government to undo injustice. The government of course followed the legal course available to it but litigation terror surely caused injustice and social unrest. The family and the community spent huge amounts to respond to something that was not their doing.
Litigation terror if not stopped and checked through constitutional means, even if it requires amendments to the existing laws or enactment of new laws, will enhance the value of superfluous and luxurious litigation, allowing those who subvert and manipulate system to trade through litigation. The law should in fact penalize perpetrators of LT and revamp the processes to screen such persons.