This article was originally published in The Leaflet on August 3rd 2020.

Legislatures in India, both, the Parliament and the state legislatures, pass hundreds of bills each year. Each of these bills includes what is known as the “Financial Memorandum”. It’s a brief section which details out what the financial costs or implications would be on the exchequer when the bill becomes an act and comes into force. The idea behind this is to provide reliable estimates of the costs which would be incurred with the passage of the legislation concerned. It also makes the ministry in charge of the particular bill to do a certain cost-benefit analysis of the law it has proposed to be introduced and passed by the legislature.

A similar assessment should be carried out for the judicial burden each such legislation imposes as well, via a “Judicial Memorandum”, similar to the one we have for finances.

“The ideal remains a judiciary that is impartial, prompt, transparent, and steadfastly defends the constitution and the values it embodies. A Judicial Memorandum is a vital cog in achieving it”

As I had the opportunity of working on numerous legislations in the Parliament for the last one year, I’ve often noticed that a lot of legislations involve zero financial implications, at least as per what’s written in the Financial Memorandum. One reason for this is that existing state capacity is utilised for operationalising the bill and amendment. But if one were to view it in perspective, courts form a critical backbone of the same state capacity being discussed here, and they do need a lot of resources to function and meaningfully provide a vital public good.

There are three core aspects to consider:

First:

Let us consider a law passed by the Parliament which completely opens up the telecom sector to private participation, something akin to what happened in the first few years of this century in India. Looking at it even from a surface-level point of view, as more players came in and the markets expanded tremendously, all sorts of new requirements on our courts sprung up. From tax disputes between the players and the government, to ‘scams’ pertaining to spectrum allocation, from cases filed on environmental preservation grounds due to cellphone tower installation and operation having certain supposedly adverse effects to newer, more complex grounds of litigation like competition laws, IUC charges and so on.

The idea here is the fact that a single piece of litigation or executive action can open up a wide gamut of grounds for litigation and adjudication and can increase the workload of courts rather substantially in just a very short while. This is why a Judicial Memorandum is important.

Second:

Just like how a Financial Memorandum is presented as a part of each bill, the likely increase in the workload of the courts and the cascading obvious increase in the need for resources at their end to meet this vital demand is currently not even a consideration for the Ministries sponsoring the legislation. For example, when according to proposed legislation any authority or agency is created, then the costs for establishing and running the same is provided for by the ministry concerned, and under Article 207(3) of the Constitution, a similar legal position exists for Bills introduced in State Legislatures as well.

“… courts form a critical backbone of the same state capacity being discussed here, and they do need a lot of resources to function and meaningfully provide a vital public good.”

Similarly, along these lines, the rather sizeable costs associated with preparing/maintaining the judicial infrastructure to support the demand likely caused by the enactment of a bill should be included and taken care of from the budget of the sponsoring ministry itself. This would be one important and sustainable way of mitigating the serious resource crunch our judiciary is faced with while providing a public good as essential as the delivery of justice.

Third:

Nearly every move that the legislature/executive makes comes with implications for the workload of the judiciary. Since access to justice is a fundamental right, delay in or denial of justice when it’s needed the most is as good as a lack of access to it. This leads us to explore the angle that a more holistic cost-benefit analysis needs to be done before decisions with such implications are taken. Requisite infrastructure needs to be built beforehand instead of playing catch up and being at the mercy of ad hoc setups.

For example, Section 498 A of the IPC and section 138 of the Negotiable Instrument Act led to a ‘docket explosion’, as it is referred to since thousands of cases were added to the case lists in no time. The practice of estimating the costs associated with a bill/amendment and attaching a Judicial Memorandum will help reveal the costs associated with the operationalisation of legislation in terms of its demands on a courts’ already stretched resources. This also enables the state to make due allocations necessary to bridge the gap of resources as well as they arise.

A vast majority of Indians don’t have their needs for justice met by the state. As of April 2018, there were over three crore cases pending across the Supreme Court, the High Courts, and the subordinate courts.

“Another aspect to think of here is the fact that legislations of a certain nature impact the court workloads rather differently.”

Between 2006 and 2018 (up to April), there had been an 8.6% rise in the pendency of cases across all courts. Pendency before Supreme Court increased by 36%, High Courts by 17%, and subordinate courts by 7%. Lack of state capacity in the judiciary affects every aspect of a citizen’s life, from the defence of fundamental rights to the enforcement of contracts. Plus, a trend of decline in civil litigation in India is not a relief but a cause for worry instead, for this means that ordinary citizens, frustrated by the pace and lack of access, are not turning to courts for their justice needs.

With this reality facing us, it is absolutely incumbent upon the governments, both central and states to make provisions for the necessary finance and infrastructure for the judiciary so as to enable implementation of the new rights or offences created by the newly enacted legislation.

Another aspect to think of here is the fact that legislations of a certain nature impact the court workloads rather differently. For example, sticking to the telecom example, cases, and litigation pertaining to the sector would more often than not land in the Supreme Court. At the same time, for something like, say, land acquisition, one can expect more cases to be filed in the district and state high courts. Some do eventually make their way to the Supreme Court.

To date, the government has launched a number of reform measures to fix the massive backlog of pending cases in the Judiciary. Solutions have essentially been in terms of reform addressing the supply side: increasing the number of judges-like the recent expansion of the Supreme Court to 34 judges, evolution of procedures, adoption of Alternate Dispute Resolution mechanisms, and so on.

“Of course, no one single reform or process evolution can act as the silver bullet.”

However, most of these measures have not lived up to expectations, and in fact, the ‘solutions’ have given rise to newer, unforeseen issues of consequence. For example, the steady expansion of the number of judges in the Supreme Court may have played a role in the complete breakdown of the idea and tradition of precedent as a source of law.

Of course, no one single reform or process evolution can act as the silver bullet. It’s all a part of the process instead. But it’s a process which is important, critical to safeguarding the rights of our citizenry, vital to the functioning of our economy and underpins the health of our democracy overall.

The Judicial Memorandum can and must be accompanied by appropriate investment and improvements in other areas of access to justice, for example, the non-legal staff in our courts.

Equally, important an act would be digitising certain processes and procedures, better training for the non-judicial staff, better case-flow management practices, enhanced use of Information Technology tools, and systems. Fortunately, some of this has been kickstarted by the pandemic.

The ideal remains a judiciary that is impartial, prompt, transparent, and steadfastly defends the constitution and the values it embodies. A Judicial Memorandum is a vital cog in achieving it.

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Yash Agarwal

Yash Agarwal

Yash is the co-founder of PPI and currently, he works as a public policy consultant for clients in the development sector.

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