Judicial impact assessment and timely delivery of justice

June 27, 2008 12:00 am | Updated October 09, 2016 10:14 am IST

N.R. Madhava Menon

Judicial administration in the country is expected to see some welcome changes of far-reaching significance in the near future.

Judicial Impact Assessment (JIA) is a process whereby the government can anticipate the likely cost of implementing a legislation through the courts and help deliver timely justice to litigants. Litigation demand depends on a variety of factors most of which are not factored in the making of laws. This results in the court system being left with little or no extra resources to cope with additional cases generated by new laws. This is the main reason why despite increased disposals every year, courts are still crowded with mounting arrears of cases. Realising this structural imbalance in the system, the Supreme Court in the Salem Advocates’ Association Case (2005) gave a direction to the government to make JIA an essential component of the Financial Memorandum of legislative proposals. The government, in turn, appointed a task force to recommend a methodology and infrastructure for institutionalising JIA in the law-making process. The committee headed by Justice N.J. Rao recently submitted its report to the government which is likely to come before the apex court for appropriate orders in the pending matter before it. In all likelihood judicial administration in the country is expected to see some welcome changes of far-reaching significance in the near future.

Data on court systems

The lack of adequate data on the working of the judicial system, particularly at the level of subordinate courts, has been a serious impediment in planning and management of judicial reforms. We still do not know the exact reasons for delay or the time taken at various stages of judicial proceedings. What is the cost involved in processing different types of cases and how is it to be calculated? What is the optimum capacity of the system and how judicial time is to be apportioned or evaluated? Management of court systems, including budgeting and accountability mechanisms, are outdated. Consequently, in spite of the fact that “Administration of Justice: constitution and organisation of all courts, except the Supreme Court and the High Courts” remained part of Concurrent List since 1976 (Entry 11-A of List III of Seventh Schedule), the Plan investment on Judiciary did not exceed 0.07 per cent of the total Plan outlay! Obviously, the budget making procedures of courts in India, lacked professionalism and scientific inputs supported by appropriate data and reasons. This lacuna in judicial administration is expected to undergo a desirable change once JIA becomes a part of management of court systems in the country. Furthermore, financial independence of the Judicial branch of government will receive some degree of respect in the scheme of constitutional governance.

Given the fact that continuous generation of credible data on court functioning is the foundation for JIA, it is imperative that a mechanism for collection, analysis and reporting of judicial data is put in place at the earliest. The task force recommended the creation of Judicial Impact Offices at the level of the Supreme Court and High Courts under the respective Chief Justices to be managed by an officer of the rank of Secretary to government. Involvement of the Ministries of Home, Law and Finance in the management of JIA offices is proposed on the model of the National Judicial Academy. A manager of Judicial Statistics at the District level is also proposed. Through interaction with economists, statisticians and legal academics, these offices will not only conduct JIA studies but also help in the efficient financial management of court systems. A window for effective judiciary-executive interaction will thus emerge for better administration of justice and improved Centre-State relations in the judicial sphere.

JIA methodology

The key element in JIA is the methodology for estimating judicial workload resulting from new legislations and determining the additional costs involved in Judge-time and support services. The report has recommended multiple methodologies based on two field studies commissioned by it.

One can identify at least three patterns in this regard. First, when legislatures make changes in civil or criminal procedure codes, they impact on litigation. Amendment to Procedure Codes compelling recourse to pre-trial settlements is an example of direct impact on court work. Secondly, if laws are made or amended creating or extinguishing substantive rights, it impacts on the workload of courts. Thus, amendment of Section 138 of the Negotiable Instruments Act in 2005 generated 25 lakh additional Criminal cases in different courts in the country. Thirdly, when rights are interpreted narrowly or liberally by High Courts and the Supreme Court in the course of adjudication, it results in less or more litigation. For example, when Fundamental Right under Article 21 of the Constitution was given a liberal interpretation or when the rule of locus standi was expansively interpreted, it led to more litigation and additional workload in the Constitutional Courts.

In short, workload in courts is the result of multiple factors, some depending on litigants dispositions and other based on legislative and adjudicative actions. To be able to evolve credible, standardised methodologies to estimate the impact of legislation on court workload, it is necessary to have input-output details of court production-delivery systems. Laws need to be classified on identifiable attributes and on the average time it takes through different court procedures. Systematic national legal surveys (similar to health surveys) can give some indication of litigation demand and consequent court workload variations. Similarly, experimental study on litigant response to draft legislation before its introduction in Parliament can also assess litigation demand among the concerned public.

Both these methods, though tentative, can indicate the volume of litigation demand statistically. However, a better method is to employ empirical data on court systems and court productivity and, through regression analysis, seek correlations at specified significant levels in order to estimate the workload.

Demand for litigation is explained through economic assumptions of human behaviour. The filing of complaints under a given law depends on the cost of doing so, its estimated value and the opportunity costs involved in its being decided, given the delay in litigation. Predictions are made on such a litigation model keeping note of other possible variables.

Central funding

“Over 90 per cent of litigation is processed in the subordinate courts which are set up and managed by the States. They handle both Central and State Acts. Parliamentary legislation adds to the burden of State courts. In the context of Entry 11-A of List III of Seventh Schedule (Administration of Justice) and Article 247 providing for establishment of additional courts for laws made by Parliament, it is the Constitutional obligation of the Central government to finance judicial costs involved in implementing Central laws. It is impermissible to avoid this obligation by pretending that executive powers of the Union government do not allow establishing courts in States. Article 73 does not come in the way of funding subordinate courts in States for implementing Central laws. JIA demands that the Union government shall not make any law without providing adequate budgeting support to States for implementing Central laws whether made on subjects in List I or List III. This is the only way to ensure timely justice to millions of litigants who increasingly seek justice through courts.

(The author is a former Director of the National Judicial Academy and Member of the Task Force on Judicial Impact Assessment.)

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