By Prof Upendra Baxi
Revolutionary theorist Vladimir Lenin once framed a famous political question: What is to be done? The question acquires a quieter-yet-urgent relevance when courts confront litigation that is plainly frivolous, vexatious, or motivated by vengeance.
Such litigation continues to haunt India’s justice system, even as the nation recently marked seventy-five years of constitutional governance. The persistence of such cases raises an unsettling query: why do they still flourish in a constitutional democracy committed to the rule of law?
A recent decision of the Allahabad High Court in Umed@Ubaid Kha and Others vs State of Uttar Pradesh provides a sharp and thought-provoking answer. Delivered by Justices Moin and Babita Rani, the judgment—brief, but powerful—turns the usual narrative on its head.
Instead of citizens misusing the courts, the case highlights something far more troubling: the State itself acting as a vexatious litigant.
WRONGFUL PROSECUTION AND JUDICIAL DUTY
The case concerned petitioners seeking the quashing of an FIR registered under the Bharatiya Nyaya Sanhita, arguing that no offence had in fact been committed. Such petitions are far from rare.
Indeed, wrongful prosecutions—and sometimes even wrongful convictions—have long been the bane of India’s criminal justice administration. The late jurist Justice VR Krishna Iyer once famously spoke, in a moment of judicial frustration, about the “criminal administration of justice”.
The High Court’s ruling reminds us that courts possess not merely the authority, but also the constitutional duty to halt such prosecutions where they amount to an abuse of process.
In exercising this duty, the Court invoked a doctrinal framework laid down by the Supreme Court in Rajiv Thapar vs Madan Lal Kapoor. The decision outlines a four-step judicial method—what one might call a “stepology”—to determine when criminal proceedings deserve to be quashed.
THE FOUR-STEP TEST
The method requires courts to examine the material relied upon by the accused through four sequential inquiries.
First, the Court must determine whether the material is “sound, reasonable and of sterling quality”. Second, it must ask whether it is sufficient to discredit the factual assertions made in the complaint.
Third, the court examines whether the material has been refuted—or can reasonably be refuted—by the prosecution. Finally, the most crucial step follows: would allowing the trial to proceed constitute an abuse of the court’s process and fail to serve the ends of justice?
If the answer is yes, the High Court must act under its inherent powers under Section 482 of the Code of Criminal Procedure to quash the proceedings.
Such intervention is not merely about protecting the accused. It also prevents courts from wasting scarce judicial time on trials that are unlikely to lead to conviction.
A STARK ILLUSTRATION OF STATE LAWLESSNESS
What made the present case particularly troubling was the conduct of the investigating authorities.
Two women, the Court noted, were arrested without following proper procedure and transported in a train compartment from Pune to Bhopal without being produced before a local magistrate.
The judges described the illegality in vivid terms: “One need not be Argus-eyed to perceive it. Its visibility is as clear as the cloudless noon day.”
Such judicial language rarely appears in routine orders. Its use underscores the seriousness with which the Court viewed the violation of personal liberty.
LIBERTY AS THE PILLAR OF DEMOCRACY
The judgment’s most powerful passage speaks directly to the meaning of liberty in a constitutional democracy.
The Court observed: “Liberty, which is basically the splendour of beauty of life and bliss of growth, cannot be allowed to be frozen in such a contrived winter.” To do so, it warned, would amount to the “comatosing of liberty,” one of democracy’s strongest pillars.
This reminder carries constitutional resonance. Under Article 32 of the Constitution, the Supreme Court stands as the custodian of fundamental rights, including the right to constitutional remedies.
The High Court’s observations therefore speak not only to trial courts and investigators, but also to the broader judicial system.
POWER AS A CONSTITUTIONAL TRUST
In critiquing the conduct of authorities, the judgment invoked the words of Benjamin Disraeli, who famously declared that “all power is a trust”.
This idea resonates deeply within Indian constitutional thought. Early Supreme Court jurisprudence, articulated by figures such as Justice PB Gajendragadkar, repeatedly emphasised that power exercised by the executive, legislature, and judiciary must remain confined within constitutional limits.
To misuse power is not merely administrative failure—it is a betrayal of constitutional trust.
Former Chief Justice Dipak Misra often spoke of the need for a “constitutional renaissance” built on mutual trust among institutions and citizens. Such trust, however, cannot flourish when State authorities themselves disregard the discipline of law.
THE PROBLEM OF RELENTLESS GOVERNMENT LITIGATION
The deeper structural problem, however, lies in what might be called a “fly-now, pay-later” culture of government litigation.
For decades, courts and jurists have observed that the State is the largest and most habitual litigant in India. Government agencies frequently initiate or pursue cases with little regard for their ultimate sustainability.
This phenomenon was recently highlighted by Justice BV Nagarathna, who warned that while governments publicly lament judicial backlogs, they simultaneously fuel those very delays through what she described as “relentless litigation”.
The paradox is stark: the State thus becomes both the “complainant and the cause” of judicial congestion.
A SYSTEM UNDER STRAIN
India’s judicial backlog illustrates the scale of the problem. As of early 2026, more than 55 million cases remain pending across courts, with the Supreme Court itself crossing 93,000 pending cases, all this despite the unending narrative about the success of alternative means of redress, such as arbitration. mediation and conciliation.
The crisis is exacerbated by a chronic shortage of judges. The Law Commission of India once recommended a benchmark of 50 judges per million people, but India still has barely half that number.
The consequence is a system where justice often becomes inter-generational—cases begun by one generation sometimes concluding in another.
WHAT IS TO BE DONE?
The High Court’s judgment serves as both warning and guide. It reminds courts of their duty to halt wrongful prosecutions, insists that liberty cannot be sacrificed to bureaucratic zeal, and exposes the structural problem of excessive State litigation.
If India truly seeks to build a Viksit Bharat, it must abandon the obsolete habits of governance that rely on endless litigation and delayed accountability.
The question that Lenin once posed—What is to be done?—remains hauntingly relevant.
The answer may begin with a simple constitutional truth: power must remain a trust, and liberty must never be treated as expendable.
—The writer is Emeritus Professor of Law, Warwick and Delhi University
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