Judicial Impact Assessment

What is ‘Judicial Impact Assessment’?

Judicial Impact Assessment (JIA) is an assessment of the impact caused due to changes in procedural or substantive law, and an assessment of the likely costs to be incurred due to the change. It is based on the collation of data by a Task Force that is meant to assist the courts, government, and society in assessing whether any proposed legislation is likely to increase or decrease, or have no effect on the financial burden of the courts. The judicial impact assessment also calculates the workload change that the judiciary has to bear due to procedural or substantive law changes and then calculates the expected indicative costs for the same change.

Definition of ‘Judicial Impact Assessment’

The term has not been defined in any of the Indian Statutes. However, the evolution of the term originates in Articles 117(3) and 207(3) of the Constitution of India. Article 117(3) provides for consideration of additional financial burden imposed upon the Exchequer by the President and attachment of Financial Memorandum to any Bill. Former Union Law Secretary Mr. T.K. Viswanathan identified the likely increase in the workload of the courts, when a Bill is introduced in Parliament or in the State Legislature, and proposed that the “accompanying Financial Memorandum” as provided for under Article 117(3) to any Bill should clearly reflect the likely increase on the burden of the State Exchequer due to increase in the workload upon the courts relatable to the proposed legislation. Thus, JIA was legally identified as an additional requirement in the creation of the Financial Memorandum for any Bill tabled in the legislature.

Term as defined in Case Law(s):

The Hon'ble Supreme Court of India in Salem Advocates Bar Association (II) Vs Union of India, for the first time, considered the question of the need for "Judicial Impact Assessment". The Court defined Judicial Impact Assessment as, “the budgetary requirement for meeting the expenses of the additional cases that may arise out of the new Bill when it is passed by the legislature.” It means the said budget must mention the number of civil and criminal cases likely to be generated by the new Act, the number of courts that are necessary, the number of judges and staff required and the necessary infrastructure."

The Supreme Court in Orissa Administrative Tribunal Bar Association v. Union of India while upholding the dictum in  Rojer Mathew v. South Indian Bank Ltd. held, "An assessment such as the one directed to be conducted would only shed light on the impediments faced in the delivery of justice. The lack of an assessment precludes any well-informed, intelligent action concerning tribunals in the country (as a whole). This, in turn, has cascading effects on the citizenry, which is deprived of a well-oiled machinery by which it can access justice. We therefore reiterate the directions of this Court in Rojer Mathew (supra) and direct the Ministry of Law and Justice to conduct a judicial impact assessment at the earliest."

Term as defined in Government Report(s):

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. The Task Force on Judicial Impact Assessment led by Justice M. Jagganadha Rao (Retd.) submitted its Report in 2008 that defined Judicial Impact Assessment (JIA) to mean the “additional resources which the judiciary might need to handle litigation generated by new legislation.” JIA is different from judicial budgeting though it is related to it and is to be eventually integrated with it by an institutionalized process of budget planning, Court management, and judicial statistics production.

Summary of Recommendations:

The Report submitted by the Task Force provided the following recommendations for the conduct of the Judicial Impact Assessment:

1. Judicial Impact Assessments must be made on a scientific basis for the purpose of estimating the extra case load which any new Bill or Legislation may add to the burden of the Courts and the expenditure required for adjudication of such cases must be estimated by the Government and adequate budgetary provision must be made therefore. Such impact assessments must be made with respect to bills that are introduced in parliament as well as bills introduced in state legislatures.
2. The Government of India, in view of Entry-11A of the Concurrent List and Art.247 of the Constitution of India and the general scheme of the Constitution, must have such assessments made and make necessary financial provisions, at the stage of the Bills, for implementation of Central laws in respect of subjects in the Union List or the Concurrent List (of the VII Schedule of the Constitution of India), in the Courts. The State Governments should not be made to bear the financial burden of implementing Central laws passed under the Union List or Concurrent List, through the Courts established by the State Governments.
3. Central Government must establish additional courts under Art. 247 of the Constitution of India for implementation of Central laws made in respect of subjects in the Union List or in respect of pre-constitutional laws referable to subjects enumerated in the Union List. In addition, the Central Government must establish additional Courts at its expense for the implementation of Laws made by the Parliament in the Concurrent List in view of Entry-11A of the Concurrent List.
4. The expenditure on the courts in respect of fresh cases that may be added to the “Supreme Court” and the “High Courts” by new laws must be reflected in the Financial Memoranda attached to the Central Bills under Clause (3) of Art. 117 or attached to the State Bills under Clause (3) of Art. 207 of the Constitution of India, as required by the respective Rules of Business. The expenditure in respect of fresh cases that may be added to the “Subordinate Courts” must be provided and met by the respective Central or State Ministries which sponsor the Bills in Parliament or in the State Legislatures, as the case may be. The High Courts must take the assistance of experts in planning, budget and finance for the purpose of preparing their budgetary demands for the High Courts as well as the Subordinate courts.
5. There must be constituted a Judicial Impact Office at Delhi to deal with the assessment of the probable number of cases and computing probable extra expenditure on courts in respect of the implementation of Central Bills/ Legislation on subjects in the Union List and the Concurrent List.
6. There must be Judicial Impact Offices constituted at the level of the States located at the State capitals for assessment of the probable number of cases and computing the probable extra expenditure on the Courts in respect of implementation of the Laws made by the State Legislature in respect of subjects in the State List and the Concurrent List. Where the High Courts are not located at the State Capitals, the Judicial Impact Offices must be located at the place of the seat of the High Court. In respect of Union Territories which have a separate legislature, the Impact Offices must be located at the place of the seat of the Legislature.
7. The Judicial Impact Offices at the level of the States/Union Territories must be within the purview of the State Governments but must be headed by Chief Justice of the High Court concerned and the Governing Bodies must likewise include the Secretaries to the respective State Governments, who deal with Justice, Law and Order, Courts, Finance etc. So far as the general administration of the Judicial Impact Offices at Delhi and in the States / Union Territories is concerned, we are of the view that they must be under the administrative control of a senior officer of the rank of Secretary to the Government of India, so far as the Impact Office at Delhi is concerned and again by a senior officer of the rank of Secretary in the State Governments / Union Territories so far as they are concerned.
8. The Judicial Impact Offices must also be empowered to consult outside experts in economics, social sciences, statistics etc., and seek the help of reputed NGOs, who have experience in data collection and projecting caseloads. The Judicial Impact Offices must have other supporting staff and infrastructure for the purpose of effectively discharging their duties. The expenditure for establishing the Judicial Impact Office for Parliamentary legislation at Delhi must be borne by the Central Government and the expenditure for establishing these offices at the level of the States/Union Territories must be borne by the State Government/Union Territory concerned. The Judicial Impact Offices must not only estimate, at the stage of the Bills, the probable number of cases that may freshly be added to the Courts but must also look into the factual position after the enactment of the laws and find out whether their earlier estimates were exaggerated or were under – estimated, and take corrective measures from time to time.
9. A special cadre of Manager (Court Information Technology) may be created, one for each District, to be part of the Principal District and Sessions Court so that that Officer could exclusively be in charge of the data collection from all the sources mentioned above and also see that the lawyers/litigants fill up the prescribed pro-forma that may require various types of information to be furnished in respect of each case, at the stage the case is filed into court. While estimating the number of cases that may be added to the court dockets, the Judicial Impact Offices must not only take into account the cases filed in the trial courts, but also those filed in the appellate courts, the High Courts and the Supreme Court of India by way of appeals, revisions or original petitions or by what ever nomenclature they are described.
10. The Chief Justices of the respective High Courts or where need be, the Committees of the High Court or the Full Court must pass necessary orders/resolutions to enable the Judicial Impact Offices to obtain the necessary data from the courts and judicial officers. Likewise, the Secretaries of the concerned Department of the Union or State Government or the heads of any other body or institution or entity must issue directions to enable the Judicial Impact Offices to obtain necessary data from Government Departments or the bodies or institutions or entities. Likewise, members of the public, lawyers and litigants, academicians, faculty members, law students, NGOs and all others must cooperate to furnish the necessary data to the Judicial Impact Offices and offer their suggestions. The Judicial Impact Office at Delhi and the Offices at the State/ Union Territory levels must exchange their views and interact, share experiences and develop various methodologies that may be required for projection of cases and publish them. All the Judicial Impact Offices may conduct workshops, seminars and conferences at least once in a year to share common experiences, obtain guidance from experts in economics, social sciences, statistics and law and publish the gist of the deliberations.

Term as defined in other sources:

The India Development Foundation’s Approach Paper on Judicial Impact Assessment also famously known as the Hazra Study defines the term, “Judicial impact assessment is 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.”

Historical Evolution of Judicial Impact Assessment

In USA, it began in 1974 with the Congressional Budget Office trying to estimate the budgetary impact of legislative proposals which included an assessment of the likelihood of increase or decrease or no effect on the burden of Courts. In 1990, the Federal Courts Study Committee, created by Congress through the Federal Courts Study Act, 1988 recommended that an office of Judicial Impact Assessment be created in the judicial branch. The Judicial Conference also resolved that legislatures even of States should recognize the workload burdens placed on the judiciary when passing legislations at the State level. The move was backed by the American Bar Association as well. Thus, the American experience on JIA began with a legislation followed by the establishment of an independent office and expert groups working constantly to improve methods of judicial performance, workload assessment, judicial budgeting and judiciary management. It offers some lessons on Indian initiatives in this regard.

International Experience

1. United States of America

In the address of Justice Warren Burger, Chief Justice of the U.S. Supreme Court in 1972, on the “State of the Judiciary”, the learned Chief Justice for the first time referred to the need for studying the impact of the legislation on the judicial dockets in the American Courts. The need for pinpointing the sources of the increasing flow of litigation prompted Warren Burger to call for “Judicial Impact Statements” as a tool to assist the Federal Judiciary in “rational planning for the future with regard to the burdens of the courts”. Thereafter, the Congressional Budget Act 1974 established a Congressional Budget Office to estimate the budgetary impact of legislative proposals with a view to assess whether any proposed legislation was likely to increase or decrease or have no effect on the burden of the courts. In a related development, the National Academy of Sciences established the National Research Council for the purposes of estimating the changes in workloads that the courts would experience with the adoption of new legislation.

The Federal Courts Study Committee, created by Congress through the Federal Courts Study Act 1988, recommended in 1990 that an “Office of Judicial Impact Assessment” should be created in the ‘Judicial branch’. The American Bar Association also passed a resolution in 1991 calling upon each State legislature and the United States Congress to mandate by legislation, the preparation of Judicial System Impact Statements to be attached to each Bill or Resolution that affects the operations of State or Federal courts; and also to establish a mechanism within its budgeting process to prepare Judicial System Impact Statements determining the probable costs and effects of each Bill or Resolution that has an identifiable and measurable effect on the dockets, work loads, efficiency, staff and personnel requirements, operating resources and currently existing material resources of appellate, trial and administrative law courts.

In 1992 the Wisconsin Judicial Conference Resolution cited the overpowering need for the State legislature to recognize the workload burden being placed on the Judiciary when passing legislation and endorsed the creation of Judicial Impact Statements by the State legislature also to measure and expose the effect of State legislation on the Judiciary. These efforts revealed a very important trend which identified that in addition to State legislation, another important source of workload for State courts was Federal legislation. Many Bills adopted in Congress impacted the State courts and thus there was additional demand on State resources.

The first thing that becomes apparent is that after the enactment of the Congressional Budget Act in 1974, which established a Congressional Budget Office to estimate the budgetary impact of legislative proposals, it took the US judiciary 20 years and dedicated offices to get data collection in line with the needs and make preliminary fiscal estimates of judicial impact assessment.

Moreover, the most comprehensive of the attempts conducted under the auspices of a National Academy of Sciences (NAS) reached two conclusions in its 1980 report. It found that, as proposed by Chief Justice Burger, the application of judicial impact assessment to all legislation that might create new cases in the courts was not feasible because the empirical and theoretical tools necessary for such across-the-board forecasts were not available. Importantly, however, the panel also determined that the process did seem feasible “if a more modest view [was] taken” of the goals of judicial impact assessment, employing it only “in selected instances” for specific legislative proposals (Mangum, 1995). Across-the-board judicial impact assessments are thus not tenable. These assessments can be used to forecast largely the judicial impact of procedural changes and selected legislations.

Research that engages with JIA

Understanding the Need for Judicial Impact Assessment

The author in the essay identifies three major reasons why JIA is necessary; first, understanding the likely effect that a law would have on the legal system is important in order to analyze if a law is fulfilling its objective through the ability of enforcement; second, amendments to the law are required to keep pace with changes in society and it, therefore, becomes important to understand whether laws made at an earlier point in time still serve the purpose for which they were enacted; and third, changes to law often affect the functioning of the justice delivery system, and therefore it becomes important to understand these likely effects to weigh the costs and benefits of any change.

Further, to decode the JIA framework, the author applied the framework to the decriminalization of Section 138 of the Negotiable Instruments Act owing to the rampant pendency in the cases under the Act. The author deconstructed the necessary systemic questions such as impact of decriminalization must first assess the impacts of a criminal proceeding under Section 138; for instance, criminal procedure ensures that an accused is present at every hearing and this pressure on an accused may impact repayment. The pendency in Section 138 cases can also be due to the accused absconding and hence the cases do not move forward. On the other hand, the author weighs the benefits of civil cases wherein ex-parte orders are passed. The author doesn’t intend to answer whether decriminalization is necessary but simply weighs the two situations from a JIA framework arguing for how it may efficiently provide help to understand the advantages and disadvantages of criminalization and decriminalization and whether the same makes a difference in effective disposal of the cases under the legislation.

Methodology of Judicial Impact Assessment: Owing to limited implementation of the JIA in India, the methodology is still under evolution based on various expert suggestions and case studies. Thus, the available methodology can be traced back to the Report of the Task Force for Judicial Impact Assessment. Accordingly, the following are the methodological steps that were identified in the Report;

The first step in JIA methodology is to establish a joint mechanism of the Judiciary and the Executive at the national and state levels either in the High Courts/Supreme Court or at the Department of Justice/Law staffed by well-trained social science research personnel, Court administrators, and financial experts.

The second step is creating multiple databases on a variety of relevant indicators gathered from Courts, prosecutors, government pleaders, finance offices, and legislative departments. While in some places, some data is available, in others it has to be generated. With computerization of Court records and modernization of case and Court management, a lot of relevant data can become available. However, a lot more may be required which can be organized once the systems are in place, and computerization gathers momentum.

The third step is to identify the right type of people from the judiciary, the government, and the academia to act as the core team in mounting and managing the JIA systems in a coordinated, scientific, and professional manner. The team has to be in place for a five to ten-year period to be able to develop and institutionalize the gathering, analyzing and interpreting of the relevant data for judicial impact assessment. They should, in turn, train the supporting staff at the Central and State levels to generate judicial statistics, help prepare judicial budgeting, and recommend workload data to the appropriate ministries seeking fresh legislation.

Framing of Quantitative Models

The Report proposes two ways of building models. Firstly, formulate average output of the entire judiciary for calculating the impact assessment. Secondly, choose the most efficiently run unit of the judicial set up and based on its productivity, calculate the impact assessment. Both have its own advantages and pit falls. For example, depending upon the class of legislations, the same organization may have differential outputs. Therefore, it was suggested that one must define the judicial output as a “weighted” average of cases, the “weights” being determined on the basis of complexity or otherwise of the case.

1. Judicial Impact Assessment: An Approach Paper

The study examined substantive changes in two laws, one relating to changes in the Negotiable Instruments Act in 2002 and the other the changes proposed in the Criminal Procedure Code (for recording statements of witnesses by Magistrates). Hazra Study proposes two approaches to assess operational impact resulting from substantive changes in legislation. The first involves macro aggregates as variables in the model and then running an empirical test or regression analysis so as to demonstrate the correlation at specified significant levels. Thereafter, this model is used for prediction or forecasting. The second approach is to develop a litigation model at a micro or individual level and then, aggregating it using variables that are endogenous. Among these two approaches in developing a JIA methodology, the authors used the micro-level approach to develop a litigation model from the demand side. The approach has its basis in game theory.

Based on available literature on the litigation model, the study points to three variables which determine the filing of complaints: the cost of filing a complaint, the expected value of the claim and the existence of court congestion. The study then proceeds to build a mathematical model accommodating the different variables to develop an equation capable of prediction in similar situations. It is then applied in different scenarios of differing variables to draw out modifications in the model proposed.

The available research on Judical Impact Assessment is negligibly limited. The notably essential study on the JIA was the Hazra Study that attempted to develop mathematical models to carry out the Assessment for procedural and substantive laws. For instance, in relation to the proposed amendment in the Code of Criminal Procedure, 1973 pertaining to Section 161, which deals with the examination of witnesses during investigation by Police and recording of statements before a Magistrate, for offences attracting a sentence of imprisonment of seven years or more, the study proposed the following formula to calculate the impact (monetary);

Moreover, the study delves into formulating models for calculating the impact in different cases and thus, provides a holistic model of calculating the JIA.

2. The Krishna Kumar Study:

The Krishna Kumar study followed a slightly different methodology. First, it tried to make a Demand estimation statistically based on the computerized data already available in the Karnataka High Court on the two selected legislations. In this regard, it took into account a number of parameters including similarity of laws, perspectives of people involved (through questionnaire), and other demand-determining factors. The study then moved into estimating the judicial resources required based on a variety of data on the judicial productivity. In this regard, it worked out judicial time taken per case at different stages and the number of judges required.

A significant outcome of the study is the immediate need for a judicial database for which a detailed step-by-step recording of facts and figures has been recommended. This includes information on law, court, judge, lawyer, litigant, remedy asked, resources used at each stage, etc. The need for continuous monitoring by an office of Judicial Administration was felt necessary and therefore, the study proposed an all-India Organizational Structure to follow up the JIA Methodology.

In order to facilitate the implementation of the suggested methodology, the following organizational structure is recommended:

1. Establish an Office of Courts Administration (OCA), with the central office being located in the Supreme Court of India, with Branches in each of the High Courts of India. This office must be entrusted with advisory and support services to the Indian courts on matters such as judiciary information database management, judiciary planning and budgeting, assisting the National Law Commission, and liaison services between the legislative, executive, and judiciary branches of government.
2. For research and training on judiciary administration, management, and policy the services of the following organizations may be used. 1. National Judicial Academy, 2. State Judicial Academies, 3. Indian Law Institute, 4. National Law Schools of India, and similar reputed legal educational and research entities.

In order to get scientific credibility to the procedure suggested and for its wide acceptance, the existing judiciary database needs to be supplemented by adding a few more data entries as suggested above in the electronic database and obtaining information from primary surveys of potential litigants, and judicial consensus obtained through Delphi technique.