Vexation litigation law is a necessary evil for India

Rajasthan recently joined the list of states enacting a law to deal with litigants overburdening courts and harassing people by filing vexatious cases. But it might have overlooked the bigger challenge of dealing with such litigants without raising fears of misuse of the law against public-spirited and genuine litigants.

Though it cannot be denied that litigation is being used by some as a tool to harass rivals including those in business or politics, there is a need to exercise caution while enacting anti-vexatious litigation laws as more and more people are invoking the judiciary to deal with highhandedness and corruption.

Ironically, Rajasthan legislature passed the law this month reportedly without any discussion as the opposition focused on the demand for resignation of the chief minister over allegations of corruption. There was no debate either, when the Madhya Pradesh legislature passed its version of the law with a voice vote in July.

The law empowers the advocate general (AG) to move court to get a person habitually filing vexatious petitions declared a "vexatious litigant" who would be barred from filing any case without prior permission from court.

The state of Madras enacted a law against vexatious litigants in 1949 and Maharashtra came up with such a law in 1971. A couple of other states joined them before the recent move in quick succession by Madhya Pradesh and Rajasthan.

At a time when government has become one of the biggest litigants and litigation questioning government policies and exposing corruption in high places is serving as an effective tool in the hands of activists, it could be unsafe to empower the AG, appointed by the government in power, to play a key role in this regard. In fact, there should be enough safeguards to protect genuine litigants especially against victimisation by the government. The AG can browbeat a litigant by merely questioning a case as vexatious right at the initial stage of proceedings. The right to initiate action should vest in any victim and registrar general of the high court in the state could be made the nodal authority to initiate the move against vexatious litigants.

It is also not wise to confer powers on the AG when government departments also have a tendency to file such cases. The Supreme Court has recorded the fact in a number of judgements while expressing displeasure.

Can a government department be declared a vexatious litigant? If not, it will be unjust to expose one party (an individual many a time fights the government as an adversary) to the risk of being declared vexatious litigant while the other party can feel safe in exercising even far-fetched litigation options.

In view of the risk of being barred from filing any case, public-spirited persons having no personal gains would be discouraged from taking on the government. Further, activists relying on information made available by whistle-blowers or third parties would feel unsafe with the risk of being declared vexatious litigant for moving court without reasonable cause. More so, in view of uncertainty over what would be considered "reasonable cause" and who would be termed "habitual" in the subjective assessment of the high court.

It is not uncommon to see courts dismissing some petitions as frivolous or vexatious even after initially finding merit and considering the contentions of a litigant in detail. The law could deter such a litigant from moving court a second time even in a genuine case.

If at all there is a need for such a law, it should be enacted by the Centre which would ensure a country-wide debate, apart from bringing about uniformity. The states of Madhya Pradesh and Rajasthan would have done better by calling for a debate rather than hastening with the law particularly when courts are already empowered to deal with the problem. Apart from inherent powers of superior courts, there are provisions in the Code of Civil Procedure and the Code of Criminal Procedure empowering courts to dismiss such petitions.

Courts have also been imposing fines in such cases. Besides, a victim has a right to seek compensation for malicious prosecution by lodging a separate case.

There can be no objection to action against people habitually filing vexatious cases but safeguarding the rights of bona fide litigants is as important. In fact, Lord Macaulay, who laid the foundation of most laws in India, also saw vexatious litigation as a threat but was against curbing it at the cost of the right of genuine litigants to move courts. While rejecting a proposal to hike court fees to check frivolous cases, he said: "It will no doubt drive away dishonest plaintiffs who cannot pay the fee. But it will also drive away honest plaintiffs."