The Hindu Business Line : Keeping vexatious litigants at bay

INDIA has been hailed as a vibrant democracy with an active judiciary in place to arbitrate altercations on substantive issues of law. Yet, in a country our size, the litigious tendency of the population is borne out by the number of cases pending in various courts. That the backlog of cases keeps the system from effectively delivering results for those who seek expeditious settlement on both civil and criminal cases is well-known.

In this context, the Law Commission submitted a report in Parliament in the Winter Session on the prevention of vexatious litigation.

At the outset, the Commission said that in the light of its recommendation in an earlier report, it has decided to deal with frivolous and vexatious litigation in extenso. But it was found that the special statutes dealing with prevention of `vexatious' litigation are different from those dealing with `frivolous' litigation.

Vexatious litigation means habitually or persistently filing cases on issues which have already been decided on once or more than once or against the same parties or their successors in interest or against different parties.

But so far as frivolous litigation goes, litigation might be frivolous without the need for persistent filing of similar case even if it has no merits whatsoever and is intended to harass the defendant or is an abuse of the process of the Court.

The Commission opines that there are some extant provisions in the Code of Civil Procedure — Order 6 Rule 16, Order 7 Rule 1, Section 35A and so on — which deal with `frivolous' litigation. It is also necessary to deal with vexatious criminal proceedings, which now fall under Sections 250 of the Code of Criminal Procedure, 1973. These provisions may indeed have to be beefed up further.

For these reasons, the Law Commission is separating the issues and giving separate reports. Hence, it was decided to focus the first report on vexatious litigation alone.

While forwarding the report to the Union Law Minister, the Law Commission Chairman Justice Mr M. Jagannadha Rao, recalled that law on this subject was enacted earlier in the erstwhile State of Madras and has been in practice as the Madras Vexatious Litigation (Prevention) Act 1949 and also in the State of Maharashtra where it is known as the Maharashtra Vexatious Litigation (Prevention) Act 1971.

But analogous enactments have not been enacted in the other States, even as the Madras Vexatious Litigation (Prevention) Act 1949 was confined only to Tamil Nadu and not to other States of Andhra Pradesh, Karnataka and Kerala.

Both the Madras Act of 1949 and the Maharashtra Act of 1971 are based upon an old statute of England of 1896, even as several improvements have been made in the law in the UK, the latest provisions being Section 42 of the (UK) Supreme Court Act 1981.

The Commission went through various Acts on the subject in the US, New Zealand, Australia and Canada, besides the UK. The principal purpose of enacting the law on the subject, the Commission avers, is to preclude a person form instituting or continuing vexatious proceedings habitually and without plausible ground in the High Courts and subordinate courts.

Accordingly, it recommends that if a person is instituting or continuing vexatious proceedings `habitually and without reasonable ground', the Advocate General or the Registrar of the High Court or the person against whom such cases are filed (with leave of the High Court) may move the High Court (in a Division Bench) to declare the person a `vexatious litigant'.

Once that declaration is pronounced, it is published in the Gazette and communicated to all subordinate Courts. Thereafter, the person so declared as the vexatious litigant, can file civil or criminal proceedings in the High Court or subordinate

Courts only (i) with the leave of the High Court or, (ii) (if he is filing such cases in the subordinate courts) with the leave of the District or Sessions Court. These courts would examine whether the proceedings proposed to be instituted or being continued, have a prima facie ground and also whether they are not an abuse of the process of court.

If leave is refused, the proposed or pending case filed by such person would be dismissed by the court. If the vexatious litigant files any such case before a court without obtaining leave as required by the Act, the case will be dismissed and costs will have to be awarded by the court in which such proceedings are filed.

In addition, the High Court, which imposed the condition of leave, if it thinks fair, may punish the vexatious litigant for contempt of the High Court. Here, the Commission hastens to insert a caveat in that the provisions of the proposed Act will not be applicable to proceedings taken by the vexatious litigant in defending himself against proceedings filed by other parties.

Similarly, proceedings under Article 226 of the Constitution are also excluded from its purview. The bar against vexatious litigant for taking out criminal proceedings is restricted to private complaints that he may propose to lodge against others.

The Law Commission makes it clear that the proposed Act would be applicable to the India, except the State of Jammu & Kashmir, and it contends that it fills an important area where there has been a vacuum in the past nearly five decades in this country.

Accordingly, it has appended a model Bill in its report for the Law Ministry to do further work in seeing through the legislative work in Parliament of this important judicial issue with a view to freeing the legal system that has unfortunately been a haven for wilful and habitual litigants to play around in.