Recently, the Chief Justice of India raised the need for conducting studies analysing the impact of proposed legislations before they are made into law. One area of impact that needs to be studied before passing legislation is the effect it would have on the judiciary. A 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. JIAs are beneficial to legislators, members of the judiciary and the society.
There are three prominent reasons for undertaking a JIA. First, understanding the likely effect that a law would have on the legal system is important in order to analyse 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.
In the Indian context, JIA was discussed in a report titled Report of the Task Force on Judicial Impact Assessment. The report, released in 2008 under the chairmanship of Justice M. Jagannadha Rao, discussed two components of legislative change where a JIA framework can be used to foresee the impact of such change, procedural change, and substantive change. The report discusses JIA study methodologies and synthesizes the study findings. It recognises the need for modelling a JIA if there is availability of data and researching independent variables using economic modelling.
It is also important to note that the JIA methodologies will differ depending on whether the JIA is for a procedural change or a substantive change. To elaborate more on what the objectives of a JIA could be, in relation to a change in the procedural or substantive aspects of a legislation, here is a short synopsis of a JIA methodology.
Synopsis of a JIA Methodology:
The first aspect to examine is the likely demand that would be triggered by a new law; i.e. how many additional cases are likely to be filed as a result of its passage? While contemplating a change in law, a JIA will identify important characteristics of a law, and identify target population that uses this law. This will then be followed by collection and analysis of data to capture awareness of law, accessibility of law, and affordability of law.
A second, equally important consideration is to estimate the judicial resources required to move to a regime of judicial impact assessments. To begin with, identification of cases under the law for which the JIA is mooted. Pursuant to this, time taken for these cases under the law can be calculated stage wise. Identification of the factors or independent variables that can have impact on the judicial time and estimate the judicial resources required for solving one unit of a case. This should be understood in relation to the impact on other cases.
An example of an application case study for JIA
To understand the JIA framework, let's apply it to a subject that is suitable for a JIA analysis. There has been extensive policy debate on whether decriminalization of offenses under Section 138 of the Negotiable Instruments Act - dealing with cheques that bounce because of insufficient funds in the issuer's account - would be useful. It is estimated that nearly 40 lakh cases pertaining to this Section are pending in the justice system; this problem was noted in the 213th Law Commission Report as well (see here for a detailed analysis of Section 138 cases). Given this large backlog, there is an opportunity for us to employ a JIA study to understand whether decriminalization would be a step in the right direction, as well as anticipate the impacts that decriminalization would have.
Decriminalization of Section 138 offenses brings to fore many interesting questions. First, the need to decriminalize should consider the effect of a criminal proceeding on an accused. The 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, which will result in such cases not moving forward. In civil money recovery cases, ex-parte orders are pronounced, when a party to a proceeding does not appear before the court. The process to decide an accused as a proclaimed offender in a criminal proceeding could be a longer process than an ex-parte declaration given in a civil proceeding. This may also impact the pendency rate as the cases will be continuing and cannot be disposed without the suitable declaration being issued in a criminal proceeding.
Decriminalization will mean that ongoing Section 138 criminal cases will transform to civil recovery proceedings instead. This transformation may have an impact on reducing the number of pending cases. However, it may not result in the enforcement and recovery of money under these cases due to change in the incentives. A civil judgement requires an execution order, and other formal procedure for recovery or to seize assets. Thus, although cases maybe cited as disposed in the judges’ docket, they may still not be adding much force to enforcement in terms of recovering money.
Most importantly, there is already a legal alternative to file the existing claim under Section 138 as a civil recovery proceeding instead of a criminal one as prescribed under Section 138. Thus, in the present scenario where Section 138 cases are preferred, there may be factors driving litigants to pursue a Section 138 proceeding. One such factor could be the pressure that a criminal proceeding exerts due to enforcing presence of the accused, that may not be present in a civil case.
This example shows us that the answering the systemic issues raised by a provision for decriminalization using the JIA model may have some benefits. It will help us understand the advantages and disadvantages to criminalization and decriminalization and whether the same makes a difference in effective disposal of the cases under the legislation.
Currently, there is a dearth of studies on the usage of JIA in India. Although there have been doubts cast on using JIA methodologies for answering questions regarding planning and allocation of funds to the judiciary, JIA could still prove a useful model for studying the impact of certain kind of legislative changes. With burgeoning case loads before the judiciary, the time is ripe to pave the way for such assessments - to ensure we do not exacerbate pendency and delays, which are already diluting justice. With data regarding cases and hearings now being available, it is possible for us to revisit the concept of JIAs.