New Delhi (ABC Live): Judicial Impact Assessment : Legislative proposals typically affect court workload either operationally, or through substantively. A third effect can happen through judicial interpretation, but that is clubbed with the second – in substantive law change.
The former involves legislation that would directly affect court procedures (e.g., adding or modifying procedures for bringing a person to trial, conducting a trial, sentencing, or appeal); court administration (e.g., altering the responsibilities or number of court personnel); or court financing (e.g., increases or decreases in budget appropriations).
Substantive impact, on the other hand, involves the elimination or creation of statutory causes of action. Substantive legislation can also affect court workload if the wording of a statute requires judicial interpretation. Judicial impact in this situation occurs not because of what the legislation says, but because of what it either omits or does not say clearly (Mangum, 1995).
Judicial impact assessment is therefore calculating the workload change that the judiciary has to bear due to procedural or substantive law changes and then calculating the expected indicative costs for the same change.
Technically, operational impact has the most obvious effect on the courts and is therefore the type of impact most frequently addressed in judicial impact assessments. For substantive law changes it is not always possible to calculate the workload change that the judiciary has to undergo, especially if it involves a completely new area or the economy under goes substantial reforms per se.
The Position in India
It is true that every law enacted by Parliament adds to the burden of the State courts and since administration of justice, constitution and organisation of all courts except the Supreme Court and the High Courts fall within entry 11A of the concurrent list, the major brunt of the workload is borne by the courts established and maintained by the State Governments. Clause (3) of Article 117 of the Constitution provides that a Bill, which if enacted and brought into operation would involve expenditure from the Consolidated Fund of India, shall not be passed by either House of Parliament unless the President has recommended to that House the consideration of the Bill.
The rationale for this requirement is that the President must know beforehand the additional financial burden which will be imposed upon the exchequer by virtue of the proposed enactment. In addit ion to this constitutional safeguard, under the respective provisions of the Rules of Procedure and Practice of Business in the House of the People and the Council of States, every Bill is required to be accompanied by a Financial Memorandum which spells out in detail the recurring and non-recurring expenditure which is likely to be incurred from the Consolidated Fund of India if the Bill is enacted into law. If no expenditure is involved from the Consolidated Fund of India, there is no need for a Financial Memorandum to accompany a Bill.
Because of this, instances where expenses are to be borne by the State Governments due to the litigation which is likely to arise by virtue of some provisions in the parliamentary enactment, such as the creation of new offences will escape the attention of the lawmakers and the public since they are not expenses incurred out of the Consolidated Fund of India. Even where a recommendation of the President is sought under Clause (3) of Article 117 and a financial memorandum is attached to the Bill, the likely increase in the workload of the courts and the consequent increase in the financial expenditure is not given any importance by the Ministries sponsoring the legislation.
Under Clause (3) of Article 207 of the Constitution a similar legal position prevails with respect to Bills introduced in the State Legislatures. Where any authority or agency is created under the proposed legislation, the expenses for its establishment and maintenance are provided for from the budget of the sponsoring Ministry. However, no similar provision is made for the likely impact on the courts due to the enactment of the legislation.
Till now a strong case based on statistical data, indicating the sources of litigation flowing from new legislation which is choking the judicial system is yet to be made by the Judiciary for demanding its legitimate share in the allocation of budgetary funds (Viswanathan, 2002)