If the bill eventually becomes an act, the state’s advocate general will have the power to submit a High Court application against any person he claims has been habitually filing civil or criminal cases without any reasonable ground. If the court finds merit in the advocate general’s application, it can declare the person to be a “vexatious litigant” (or a “tang karne wala mukadmebaaz” in Hindi).
A vexatious litigant’s ongoing pleas would then be dismissed from the court and the litigant will not be allowed to file any other civil or criminal cases in the High Court or the lower courts without prior permission.
Laws against vexatious litigation already exist in two states – Maharashtra (since 1971) and Tamil Nadu (since 1949, when it was still the State of Madras). In 2005, the Law Commission had proposed a similar legislation for the whole country, its argument rooted in the idea that a court’s time should not be taken up by those who persistently litigate without a justifiable cause.
But a law that allows for such long-term restrictions on litigants could easily be used to thwart public interest litigations and other petitions that the state may find uncomfortable, say lawyers and activists.
“In the past few years, there has been a larger push by government bodies to clamp down on litigations against corporate interests,” said Arjun Sheoran, a Chandigarh-based lawyer and activist. Any law targeting “vexatious litigants” – in Madhya Pradesh or anywhere else in the country – would be a new setback.
The heavy cost of PILs
India’s high courts and the Supreme Court already have certain basic safeguards against petitions that have no reasonable grounds.
The Code of Civil Procedure, for instance, has a rule that allows courts to strike out a civil plea that may be “unnecessary, scandalous, frivolous or vexatious”, or that may be an “abuse of the process of the court”. If a criminal litigation is filed before a magistrate without a “reasonable cause”, Section 250 of the Code of Criminal Procedure allows the magistrate to order the complainant to pay a monetary compensation to the accused.
In 2010, the Maintainability of Public Interest Litigation Rules were introduced to govern public interest writ petitions. Under these rules, petitioners must first disclose their credentials and motives to the court’s Registry, which decides if the PIL can be entertained. In court, judges can ask petitioners to deposit an “appropriate” amount to the Registry to be paid as “compensation” to the respondents in case the PIL is found to be “vexatious, frivolous or mala fide”.
“The official litigation fee is usually around Rs 2,000, but the Bombay High Court at times asks litigants to put in as much as Rs 50,000 as potential compensation because the plea is wasting the court’s time,” said Dayanand Stalin, a Mumbai-based environment activist who frequently files litigations against environment violations in Maharashtra.
Thwarting genuine petitions
Stalin’s own pleas have never been declared frivolous, but some lawyers claim it is a term often used by courts while fining civil, criminal or public interest petitions.
“I have seen additional costs being imposed on a lot of cases that are declared as frivolous or as not having any yuktiyukt aadhar (reasonable ground),” said Sudiep Shrivastava, a lawyer based in Bilaspur, Chhattisgarh.
The Law Commission’s 2005 report on vexatious litigation pointed out that even though there has been a constant demand from courts to dissuade frivolous petitions by increasing the court fee, a higher fee would not really work as an effective solution – on the contrary, it could also end up dissuading genuine litigations.
Sheoran believes this is, in fact, quite true: by imposing heavy costs, courts do end up thwarting several genuine petitions. Other kinds of misuse, he says, are also prevalent.
“In the Punjab and Haryana High Court, there were litigants who raised questions about judicial appointments and they were literally barred from filing any litigation in court,” said Sheoran. “From what I have seen, courts do not want to take up topics which have larger political ramifications.”
Restricting access to justice
When courts already have inherent discretionary powers to stay or dismiss petitions on various grounds, Sheoran and other activists believe it would be bad news for state governments – through the advocate general – to have the added power to hound litigants for allegedly being “vexatious”.
The 2005 Law Commission report claimed that a national law to prevent vexatious litigation is important for “public good” because such a law would impose restrictions on a “vexatious” person’s “access to justice”.
This is presented in the report as a virtue, but in Vyapam-hit Madhya Pradesh where the bill is on its way to actually becoming a law, activists cannot help noting the irony.
Worded almost exactly like the existing law in Maharashtra, Madhya Pradesh’s bill states that a litigant accused of being vexatious would be summoned and allowed one opportunity to present his case before the High Court comes to its decision. “But what if the person doesn’t receive the summons and is not able to attend that one hearing?” said Shrivastava, pointing out that the duty of issuing summons lies with the state machinery, of which the advocate general is a part.
“Besides, the bill does not allow the litigant to appeal against the ‘vexatious’ label in the High Court or the lower courts,” said Shrivastava. “And how many people can afford to appeal in the Supreme Court?”
The most restrictive aspect of the proposed law, adds Sheoran, is that it precludes the possibility of any genuine litigations by the same petitioner in the future. “Meanwhile, is the government itself covered in the bill?” he said, pointing to the fact that the India’s state and central governments are collectively the largest litigant in the courts today.
Dr Anand Rai, a Bhopal-based Right to Information activist and one of the whistleblowers in the Vyapam scam, calls the vexatious litigation bill “unconstitutional”.
“I agree that a lot of people file petitions in court without doing the hard work or research that add credibility to their pleas, but such a law would be completely wrong in a democracy,” said Rai.
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