Dissenting note

In place of judicial impact assessment, what India needs is “judicial use assessment” to measure to what extent people have actually used courts to enforce their rights.

A farmers' rally in Delhi in 2011 for amendments in the land acquisition Act of 1894.

Judicial impact assessment (JIA), according to the Union Ministry of Law and Justice, is essentially a study of the impact on judicial resources when a new piece of legislation is introduced or an existing one is modified. The assessment aims to cut costs substantially by getting a piece of legislation examined internally by the government departments concerned before it is introduced.

In response to a directive of the Supreme Court in the case of Salem Advocates Bar Association vs Union of India, former Union Law Secretary T.K. Vishwanathan set up a task force in 2007 to study JIA. The task force had Justice M. Jagannadha Rao, former Supreme Court judge, as its chairman and Dr N.R. Madhava Menon, Dr Mohan Gopal and T.C.A. Anant as members. Its report, submitted to the government on June 15, 2008, recommended the setting up of judicial impact offices at the Centre and in the States, and the estimation and monitoring of the volume of litigation that may arise and the extra expenditure that may have to be incurred by the courts as a result of a proposed piece of legislation.

The study of judicial reform and assessment statistics commenced in 2008-09 as a new Plan scheme. It has been included in the Eleventh Five Year Plan with an outlay of Rs.22.62 crore. The website of the Ministry of Law and Justice says that Rs.1.71 crore was incurred as expenditure under the scheme until 2010-11. The Plan outlay for the scheme for 2011-12 is Rs.2.53 crore. The scheme, among other things, proposes to facilitate the study of the feasibility of JIA.

In this article, Mohan Gopal, a task force member who did not sign the report (the task force claimed that he was abroad and could not sign), expresses his serious dissent with the very approach of JIA, which has earned the approval of both the Supreme Court and the government.

WHY is it that judicial impact assess-ment was not an issue when the Universal Declaration of Human Rights was proclaimed in 1948 or when the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) were adopted in 1966, creating rights for every human being on earth although there was absolutely no judicial capacity to enforce those rights in most of the world?

Why is it that judicial impact assessment was not an issue when the Constitution of India was adopted in 1950, with its massive arsenal of rights for the excluded, even more potent than the international human rights regime—although India’s Supreme Court was not yet born and India’s judicial system had about 10 per cent of the capacity it has today?

It is because the capacity of courts to handle litigation arising from legislative recognition of rights was not in the United Nations General Assembly or in India’s Constituent Assembly, and should never be in any legislative forum, a consideration in deciding whether or not rights should be recognised and remedies established.

If rights and remedies should only be established to the extent that the judicial system has the capacity to handle litigation, neither international human rights instruments nor the Fundamental Rights chapter of the Indian Constitution would ever have been enacted. If rights are to be established only as and when judicial capacity is created, it would have taken many decades before these instruments came into force, given the long gestation period for building judicial capacity.

The idea of judicial impact assessment—today, mainly an Indian idea—comes from two sources. On the benign side, it was a response of an impatient business class and of a business-friendly government to a judicial system that was unable to protect the rights of business on a timely basis. Analyses of the business environment in India by the World Bank, the United Nations Development Programme (UNDP) and private business had, for example, repeatedly pointed to the inability of business to protect its property and contractual rights in Indian courts as a major area for reform (India was ranked consistently amongst the worst in the world on this count). The spike in cases under the Negotiable Instruments Act was a particular irritant that brought matters to a head, as it affected business directly. For the judiciary as well as for the government, judicial impact assessment was one of the multiple ways to address the issue of delay and arrears, which was being widely used to embarrass the judicial system.

The fact is, however, that judicial impact assessment is a blunt, ineffective and unnecessary instrument for the purpose of expanding the judicial system to meet rising case loads. It is simply not possible to estimate on a scientific basis and in a reliable manner the number of cases likely to arise from a piece of legislation, especially in an environment such as in our country where even the most rudimentary type of court statistics are not available. It would at best be an astrological prediction.

This is not to say that there should not be a systematic process of planning and budgeting to ensure that adequate resources are provided for the judiciary. This should, however, be separated from the legislative process. The budgeting process should take the legislative outputs (driven by political and social demands) as a given and then examine how best the available resources can be deployed to ensure that rights and remedies created by the legislature are protected.

On the other hand, judicial impact assessment is a very dangerous idea because it links the recognition and creation of rights and remedies to the existence or creation of judicial system capacity. Such an approach would have diluted—if not killed—the Constitution of India as well as the human rights instruments because there is simply no judicial capacity to handle the vast universe of rights that these instruments created.

The capacity of the judicial system to handle cases should never constrain the development of rights and remedies for common people. It could be argued that information about the judicial cost of rights and remedies may be used positively—to ensure that adequate budgetary resources are provided for. This may well be the case for laws that protect property, security, state power and social privilege (that is, laws that create new security agencies). But in the case of legislation that gives remedies to the powerless against the powerful, the “cost” of the judicial infrastructure needed to implement the Bill will in all likelihood (unless we have a radical shift in the social balance of power) become an excuse to whittle down such rights and remedies to “affordable” levels or to postpone them to a future date when resources may become available.

The timing of the emergence of the idea of judicial impact assessment in India is evidence of what is driving the idea beneath the rhetoric. There was no demand for such an assessment to address the lack of access to justice of the masses of India, or to remedy the woeful lack of resources, well known for years now, to enforce the plethora of social welfare and human rights laws that exist in the country to benefit the poor (for example, juvenile justice laws). It suddenly emerged in a globalising and liberalising economy in order to address concerns of business (global and national).

Tort reform The idea of judicial impact assessment is closely linked to other Reaganite ideas to constrain the use of courts to enforce rights, such as tort reform. Tort reform is a powerful right-wing movement in the United States that attacks laws that create liability and accountability of powerful interests such as businesses and doctors. They typically measure the financial costs of litigation and argue that lawsuits against businesses and powerful professionals make no economic sense, are a waste of money, and reduce growth. Such movements are notorious not only for launching orchestrated attacks on laws and court decisions that impose penalties on businesses and doctors for injuries caused to common people but also on the proliferation of cases filed in court by common people.

What the judicial system needs to do is to encourage the creation of an ever-expanding set of rights in favour of the powerless as a critical instrument to equalise social relations and to encourage the flow of rights-enforcing litigation into courts without diversion into the ADR (Alternative Dispute Resolution) system.

In place of judicial impact assessment, what we need is “judicial use assessment”. This indicator would measure whether or not people were actually using courts to enforce their rights or whether their rights remained on paper.

Take, for example, the landmark legislation on Protection of Women Against Domestic Violence. Social science research should be used to estimate the approximate extent of prevalence of domestic violence by State/local area. The courts and the government should monitor whether victims of domestic violence are in fact securing the protection of the domestic violence Act, and develop area-specific plans to ensure that victims actually use courts.

What such a judicial use assessment is likely to show is very low usage of most rights-based laws (“docket exclusion”) by common people. Inadequate judge strength and court infrastructure are only a part of the reason why there is docket exclusion. Lack of an effective human rights bar at local levels is a far more important reason, as is the lack of adequate effort to spread awareness of rights and the social and governmental capacity to implement them.

An action plan should be developed for each court in the country to ensure that the judicial system is fully used to secure rights as envisaged by the Constitution. Such an approach will expand and value the rights of people rather than allow rights and their enforcement to be constrained by lack of judicial capacity and budgetary resources.