Maharashtra has provision to stop vexatious litigant, while for Central Government a Bill No XI is introduced in Rajya Sabha on 11th March 2016.
What is Vexatious?
In common parlance, “To vex” means anger by a slight or a petty annoyance; irritate. “Vexation” means the act or an instance of vexing or annoying or distressing thing. “Vexatious” means such as to cause vexation. (See The Oxford English Reference Dictionary, Edition 1995). The term “vexatious”, when used in law, signifies an action not having sufficient ground therefore and seeking only to annoy *7* appln. 3397.03. sxw the adversary. The Advanced Law Lexicon, 3rd Edition Reprint 2007, defines the term “Vexation” as under: “The action of troubling or harassing by aggression or interference; the action of troubling or irritating by physical means.”
“Vexatious” has been defined as causing or likely to cause vexation. The “vexatious action” or “vexatious proceedings” has been defined as under: “An action brought for the purpose of annoying the opponent and with no reasonable prospect of success.” 10 Black’s Law Dictionary, Eighth Edition, defines the words “vex”, “vexation”, “vexatious”, “vexatious litigant” and “vexatious proceeding” as under: (a) Vex : to harass, disquiet, or annoy.(b) Vexation : The damage that is suffered as a result of another’s trickery or malice.(c) Vexatious : (Of conduct) without reasonable or probable cause or excuse; harassing; annoying.(d) Vexatious litigant : A litigant who repeatedly files frivolous lawsuits.(e) Vexatious proceeding : A lawsuit instituted maliciously and without good cause.
The Object and Reasons of the Bill are :
Frivolous and vexatious litigations are the cause of concern for the courts for quite
some time. Often, this matter has been highlighted by various courts and the Law Commission as well which favoured for a check on the filing of frivolous and vexatious proceedings. Attimes, it has been seen that many persons abuse the process of law and indulge in the habitual and intentional filing of frivolous and vexatious civil or criminal proceedings to harass other persons without any reasonable ground. It has also been observed by the courts that some persons habitually and persistently file cases on the issues, which have already been decided once or more than once against some parties or their successors or against different parties. Besides the harassment, filing of such proceedings also leads to wastage of the precious time of the law courts which are already burdened. Such frivolous litigation cause unnecessary and avoidable strain on the States’ resources in the area of dispensation of justice.
There is no denying of the fact that every person has right to file civil or criminal proceedings against any other person, but a check is necessary to allow the court to
examine the bona fide of a person filing the proceeding. Many countries in the world, like the USA, the UK have enacted a law on the filing of frivolous and vexatious litigation. In our country also, there is a law on the subject in two States, i.e., Tamil Nadu and Maharashtra. In view of the concern expressed by the courts, it is necessary that a central law be enacted to prevent the filing of frivolous and vexatious complaints by declaring such a person as vexatious litigant, who may thereafter be barred from filing or continuing any such complaint without the permission of the High Court or the appropriate court. It is also felt that if a person is declared as vexatious litigant, provision should also be made to punish him for the contempt of the court besides directing him to pay the cost.
First we will see what is provided in the Bill. It says that , the Advocate General or in absence of office of Advocate General, by a Senior Advocate nominated by the High Court in this behalf may file An application for declaring a person as a vaxation litigant, in the appropriate High Courts, or by the Registrar General of the High Court; or with the leave of the High Court, by a person against whom another person has instituted or conducted proceedings, civil or criminal.
After filing the said Application if the High Court is satisfied that any person has habitually and without any reasonable ground instituted vexatious proceedings, civil or criminal, in any court whether against the same person or against different persons, the High Court may, after giving the person who has instituted such proceedings, an opportunity of being heard, declare that person as a vexatious litigant and shall also order as such. Provided that if an application is filed by any person referred to in clause than the Advocate General or, in the absence of such an officer a Senior Advocate
nominated by the High Court in this behalf, as the case may be, shall also be heard on the application.
The Application filed shall be heard by the High Court in a Division Bench.
When court declares a person as a vexatious litigant, it shall also order that,—
(a) no proceeding, civil or criminal, shall be instituted by the said person in the High Court or any other Court subordinate to that High Court; and (b) no proceeding, civil or criminal, if already instituted by the said person in the High Court or any other court subordinate to that High Court, shall be continued by him without obtaining leave of the appropriate Court or appropriate Judge. (2) It shall not be necessary for the person declared as a vexatious litigant to obtain leave in the following cases: (a) where such person is instituted a proceeding in the appropriate Court of before the appropriate Judge for the purpose of obtaining leave; (b) where, in any matter instituted against him, such person proposes to file or take appropriate proceedings to defend himself.
(c) where, in a proceeding instituted or continued by such person after obtaining leave from the appropriate Court or the Judge, the said person proposes to file or take Appropriate further proceedings.
The “appropriate Court or appropriate Judge” means—
(a) the High Court, in the case of a proceeding proposed to be filed or continued
by the person declared as a vexatious litigant in the High Court;
(b) the District and Sessions Judge, in the case of proceeding in any other
Court subordinate to the High Court.
(3) Leave under sub-section (1) shall not be granted unless the appropaite Court or
the appropriate Judge, as the case may be, is satisfied that the proceedings are not an abuse of the process of the Court and that there is prima facie ground in the proceedings proposed to be instituted or continued by the person declared as a vexatious litigant.
Explanation.—For this section and section 5,—
Declaration of a person as a vexatious litigant.
Leave of Court necessary for vexatious litigant to institute or continue any civil or
Criminal proceedings. (a) institution or continuation of civil or criminal proceedings does not include proceedings instituted or continued under Article 226 of the Constitution of India. (b) institution or continuation of “criminal proceedings” means the commencement or institution or continuation of a proceeding seeking ‘prosecution’ by filing a complaint before a Criminal Court.
It is also provided in the Bill that A copy of every order made, declaring any person as a vexatious litigant shall be published in the Official Gazette and may also be published in such other manner as the High Court may direct. Every order shall also be communicated to all the courts subordinate to the High Court which passed such order.
Maharashtra has similar kind of Act of 1971. The aim is to prevent Vexatious Litigation. Government is providing justice system which shall not be misused nor can be used to harass another citizen. The system is so huge and it costs money and man hour.
- The term person should be defined , as Public Interest Litigations are filed through NGOs and Agents ;
- Certain criminal provisions such as rape, molestation , 498A are misused. Some stringent provisions may also be provided in this Bill.
- We now a days see many Public Interest Litigations, in which judicial process is employed to pressurize government. Some provisions for such misuse must be provided.
- Vexatious Litigation must be applied to all Public Interest Litigation when especially filed concerning Public Policy or Government Policy where Government has invested millions of Public Money. The Petitioner must obtain Certificate from Home Ministry, which should not be just a formality.
We nowadays hear lot of Justice Loyas Murder Case. Many questions and allegations, suspicions are averred in various PILs filed in Mumbai High Court and Supreme Court. The matter is sub-judice.
In circumstances where 6 sitting Judges of Bombay High Court and various other courts in Maharashtra testified the Justice Loya died a natural death, despite of that some litigants to bring disrepute and show non-trustworthiness in their Testimony filed various Public Interest Litigation in Bombay High Court and Supreme Court for investigation in death of Justice Loya. This gives disrepute to the Judiciary?
A party should ordinarily be allowed to initiate or institute any legal proceedings, at his peril. If a party conducts himself improperly during such proceedings, then there are various provisions in various statutes, which aim to control such improper and objectionable conduct of the party. The Contempt of Courts Act, 1971 provides, interalia, that any act which prejudices or obstructs or interferes, or tends to interfere, with the due course of any judicial proceedings, or administration of justice, would amount to criminal contempt which can be punished under the provisions of the Contempt of Courts Act, 1971. The cases of contempt contemplated by Section 228 of the Indian Penal Code can be dealt with summarily under the provisions of Section 345 of the Code of Criminal Procedure, apart from the normal procedure, which may consume some time.
Order VI Rule16 of the Code of Civil Procedure empowers the Court to order striking out any matter in any pleading which the Court may think unnecessary, scandalous, frivolous or vexatious, or which may tend to prejudice, embarrass or delay the fair trial of the suit. Sections 151 and 512 of the Indian Evidence Act, empower the Court to forbid questions, which it regards as scandalous or indecent or which appear to the Court to be intended to insult or annoy or which appear to be needlessly offensive in form to be put to the witnesses or parties. Thus, the objectionable conduct with respect to the Presiding Officers/ Judges of the Courts and also with respect to any other person if the same would be intended to or have effect or tendency of obstructing the due course of judicial proceedings, can be properly dealt with by the Courts which undoubtedly have all powers to set things right. 33 The suit filed by a party which does not disclose any cause of action can be thrown out by the Court by rejecting the plaint. The complaint filed by a party before a Magistrate needs to be verified by the Magistrate by examining the Complainant on oath, and it is only on the satisfaction of the Magistrate about sufficiency of grounds for proceeding further, that the accused can be summoned to face the trial. Again, the Courts are empowered to award the costs and even compensation to the persons who are got groundlessly arrested or unnecessarily dragged to the Courts. All these provisions are designed to ensure a fair trial and proper determination of the disputes brought before the Courts of law.
In Criminal Application NO.3397 OF 2003 Mr.Goolam E. Vahanvati, Advocate General for the State of Maharashtra, Versus Mr.Anil Gulabrai Gidwani it was held that ; “ In our opinion, simply because the conduct of the party to the litigation is objectionable and because the party has been causing annoyance to the Judges, by his incapacity to understand the Law and by his approach in the litigation, it would not be proper to invoke the powers under Section 2 of the Act, which according to us, should be exercised only in exceptional cases, where the various provisions discussed above, designed to ensure a fair trial and a fair adjudication of dispute in proper atmosphere, would prove to be ineffective. In this context, we hold the word “habitually” appearing in Section 2 of the Act to be significant. In our opinion, a number of proceedings which a party institutes must be unreasonable and sufficiently high so as to attract the provisions of the Act. In our opinion, even if other conditions mentioned in Section 2 of the Act are satisfied, the powers under the said section can be invoked only if a number of proceedings filed by the party is unreasonably high and if such conduct is persisted for sufficient span of time which is signified by the word “habitually”.”
In Lalita Kumari vs. Govt.of U.P.& Ors.2014 AIR(SC) 187 =2013 AIR(SCW) 6386 = 2013 (13) Scale 559= 2014 (2) SCC 1
Supreme Court, after hearing various counsel representing Union of India, States and Union Territories and also after adverting to all the conflicting decisions extensively, referred the matter to a Constitution Bench while concluding as under:–
“97. We have carefully analysed various judgments delivered by Supreme Court in the last several decades. We clearly discern divergent judicial opinions of Supreme Court on the main issue: whether under Section 154 Cr.P.C, a police officer is bound to register an FIR when a cognizable offence is made out or he (police officer) has an option, discretion or latitude of conducting some kind of preliminary inquiry before registering the FIR.
98. The learned counsel appearing for the Union of India and different States have expressed totally divergent views even before Supreme Court. Supreme Court also carved out a special category in the case of medical doctors in the aforementioned cases of Santosh Kumar and Suresh Gupta where preliminary inquiry had been postulated before registering an FIR. Some counsel also submitted that the CBI Manual also envisages some kind of preliminary inquiry before registering the FIR.
99. The issue which has arisen for consideration in these cases is of great public importance. In view of the divergent opinions in a large number of cases decided by Supreme Court, it has become extremely important to have a clear enunciation of law and adjudication by a larger Bench of Supreme Court for the benefit of all concerned the courts, the investigating agencies and the citizens.
100. Consequently, we request the Hon’ble the Chief Justice to refer these matters to a Constitution Bench of at least five Judges of Supreme Court for an authoritative judgment.”
Therefore, the only question before this Constitution Bench relates to the interpretation of Section 154 of the Code and incidentally to consider Sections 156 and 157 also.”
The FIR is a pertinent document in the criminal law procedure of our country and its main object from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps to trace and to bring to book the guilty.
Historical experience has thrown up cases from both the sides where the grievance of the victim/informant of non-registration of valid FIRs as well as that of the accused of being unnecessarily harassed and investigated upon false charges have been found to be correct.
Under such circumstances litigants whoever he/she may be must not be allowed to take system at ransom. The present Bill must be more stringent therefore.