There are many reasons for the high number of cases pending in India’s constitutional courts – the Supreme Court and High Courts. One that is not spotlighted enough is the laxity by the Union and state governments in filing replies to cases instituted against them in court.
The Indian state is the biggest litigant in all Indian courts, accounting for more than half of all pending litigation. In cases in which any government or public agency is implicated, court procedure dictates that once the petition is admitted by court, its notice is served upon the government. The government – or any respondent party, for that matter – is supposed to file a counter affidavit responding to the petition. In the counter affidavit, the public authority gets the opportunity to refute the case being made by the party initiating the litigation.
There are no legally prescribed time limits for the filing of counter affidavits by the government. Courts usually give the government between four to eight weeks to file their reply, depending on the complexity of the case and the next date of hearing. Various courts and state governments have their own rules about the minimum time periods for filing replies as well as when extensions may be sought and for how long. In 2013, the Supreme Court had also ordered government agencies to file their replies at least three days before the date fixed by court.
However, governments in the Centre as well as states routinely breach court-set deadlines for filing replies. This results in an inordinate delay in the court even beginning to proceed with the case. Courts sometimes admonish the government for this and may also impose fines, but neither have proved sufficient in correcting what has become a chronic abuse of the process.
Cases left hanging
Several politically sensitive and significant cases are pending in the Supreme Court because of the failure of governments to file affidavits for years on end.
The apex court, in the challenge to the Places of Worship Act, asked the Union government in September 2022 to provide its position on the matter through affidavit within two weeks. Since then, in spite of repeated extensions given in October and in November 2022 and then in January, in April and in July last year, the Union government failed to file an affidavit. In the last hearing in the matter, conducted on December 12, the court gave the government four more weeks to file its reply.
Similarly, in a petition filed by the Indian Federation of App-based Transport Workers in the Supreme Court demanding social security benefits, the court had granted different departments of the Union government four weeks to file their replies in February 2022. In November, the court reprimanded the departments for not having filed their replies yet and gave them more time till January next year.
In litigation relating to the plight of migrant workers that began in the Supreme Court in 2020, the court had ordered in 2021 that such workers must be provided ration cards by state governments. But both the Union and many state governments are yet to file affidavits detailing compliance with the court’s order. In an order in October, the court said, “Patience may be a virtue – but ours is nearing its end.”
When the Supreme Court was seized by petitions last year demanding a probe into the allegations by Hindenburg Research of stock manipulation by the Adani Group, it had tasked the Securities and Exchange Board of India to investigate the allegations by May 2023.
In April, the Securities and Exchange Board of India asked for six more months, citing complex transactions involving the conglomerate’s listed, unlisted and offshore entities. In May, the Supreme Court granted it an extension till August 14, 2023. The market regulator then sought 15 more days from the apex court.
Despite the Securities and Exchange Board of India not submitting its report in the matter, the Supreme Court passed a final judgment on January 3 this year, disposing off the public interest petitions. In the order, the court directed the Securities and Exchange Board of India to conclude its probe “expeditiously preferably within three months”. The Securities and Exchange Board of India’s probe report is not yet in public domain and it is unclear whether the probe has even concluded.
When the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were challenged before the Madras High Court, the Union government was given two weeks to file its counter affidavit in July 2021. The government finally filed its affidavit only on February 24, 2022.
Inordinate delays
Courts are authorised to charge governments for contempt of its orders but courts almost never exercise this power against public agencies. It is impossible to imagine that such leeway would be extended to private litigants. As a result, governments delay filing their replies for years on end.
For instance, a petition challenging the nationalisation of the Ernakulam-Muvattupuzha route in Kerala was filed in 2018 before the Kerala High Court. The Kerala government is yet to file its response. In June 2024, the High Court heavily criticised the state government for “disrespect” and its “casual and callous attitude” and gave it one last chance to file its counter.
In November 2022, the Supreme Court gave the Centre and state governments one final chance to file their counter affidavits in a public interest litigation seeking the enforcement of fundamental duties. The court had asked for the affidavits in April that year. The case is still pending, with some state governments yet to file their counters even after two and a half years.
Inadequate penalty
A possible reason why governments are not disincentivised from such delays is the lack of effective pushback by courts. Instead of exercising their contempt power, courts at most impose modest fines on governments. These fines are so small that they are rendered perfunctory.
In November 2022, the Supreme Court fined the Union government Rs 25,000 for not filing its reply to a batch of petitions filed before it earlier that year demanding guidelines on the search and seizure of electronic device by state agencies. The government subsequently bought more time in the case on the pretext that it has set up a committee to look into this matter.
In January 2022, the Supreme Court imposed a fine of Rs 7,500 on the Centre for not filing its counter affidavit in a public interest litigation challenging the validity of a provision of the National Commission for Minority Education Institution Act. The court had first directed the government to file it in July 2021. The government finally filed its reply in March 2022.
In January 2017, the Allahabad High Court penalised the Prime Minister’s Office and the Union Law Ministry a mere Rs 5,000 for delaying in filing their reply to a public interest flagging inaction by the Centre on reports and objections by the Comptroller and Auditor General. The court had originally asked them to file a response by September 2016.
In October 2016, the Supreme Court imposed costs of Rs 25,000 on the Delhi Health Minister for not filing an affidavit demanded by the court. The court had sought the names of officials reporting to the Lieutenant Governor that, as per the Delhi government, were not cooperating with it to check the spread of malaria and chikungunya in the city.
Systemic issues flagged
The systemic nature of such delays have been flagged by courts on multiple occasions. Lamented
In July 2018, the Uttarakhand High Court noted in a matter that “generally, there is delay in filing the reply(ies)/affidavit(s) by the State Govt., which unnecessarily delays the proceedings.” It had directed the advocate general to ensure that all replies and affidavits by the state government are filed in time.
In the Madras High Court matter in which the Tamil Nadu government was fined in August 2023 for filing its counter affidavit after seven and a half years, the court had lamented that such delays by the government is one of the main reasons for long pendency of cases.
In August 2024, the Bombay High Court strongly rebuked the Maharashtra government and the City and Industrial Development Corporation for not filing their reply to a writ petition relating to the alleged illegal acquisition of a private citizen’s land by the government. The state authorities were originally to file their replies by July 2023. The matter is still pending.
In its order, it observed that the Maharashtra government and its authorities routinely delayed matters by seeking adjournments to file counter affidavits and repeatedly breached timelines for filing replies set by the court. It warned that it would henceforth impose costs on government counsel for seeking adjournments to file counter-affidavits.
However, the High Court imposed costs of only Rs 10,000 to be paid to each of the petitioners.
