Judicial Audit of Law | 03 Aug 2024

Source: TH

Why in News?

Recently, the Supreme Court of India recently upheld the judiciary's authority to direct the government to conduct a "performance audit" of its statutory laws.

• This ruling emerged from an appeal regarding an Act for slum area development in Maharashtra, highlighting concerns over the law's effectiveness in improving conditions for its intended beneficiaries.

What is the Supreme Court's Ruling?

• The Supreme Court directed the Bombay High Court to conduct a performance audit of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, due to a significant backlog of over 1,600 pending cases related to the Act.
• The Court highlighted that while the Act aims to provide housing and dignity to marginalised individuals, its implementation has led to extensive litigation, undermining its objectives.
• The Court emphasised that the judiciary has both the power and duty to ensure laws are effective. The Court noted that if a law fails to benefit its intended recipients, a performance audit is warranted.
• Additionally, the Court stressed the importance of "institutional memory" in evaluating legislation's long-term impact.

What are the Implications of this Judgment?

• Judicial Activism: It marks a shift towards proactive judicial involvement in governance, wherein the judiciary can act as a facilitator of justice, stepping in when bureaucratic delays hinder the enforcement of statutory provisions.
  • This could set a precedent for similar audits of other welfare laws and schemes.
• Performance Audit: The performance audit aims to evaluate the effectiveness of the Act and identify systemic issues contributing to litigation.
  • This could lead to necessary reforms in the law, enhancing its efficacy in achieving its intended goals.
  • The fear of a performance audit of the law may compel legislatures to scrutinise laws more thoroughly before and during their promulgation to eliminate any inconsistencies and shortcomings.
• Legislature and Executive Accountability: The ruling reinforces the constitutional duty of the legislature and executive to frame, monitor and assess the impact of legislation. This may lead to increased accountability and responsiveness from government authorities in implementing welfare laws.
• Focus on Marginalised Communities: The Court’s emphasis on the law's intent to benefit marginalised groups underscores the need for policies that genuinely address their needs. This could stimulate further legal and policy initiatives aimed at protecting vulnerable populations.
  • The Supreme Court's observations on the Act could lead to major reforms, creating a better framework for slum redevelopment and improving living conditions for affected communities.

What are the Reasons for the Legislature's Enactment of Ineffective Laws?

• Complexity of Issues: India’s diverse population and interconnected social, economic, and environmental problems make it difficult to draft universally effective laws.
• Lack of Research and Data: Many laws are created without sufficient empirical evidence or thorough impact assessments, leading to ineffective solutions.
  • Example: Lack of scrutiny by the Joint Parliamentary Committee (JPC) on three farm laws passed in Parliament led to limited opportunities for detailed scrutiny and public input.
• Political Pressures: Partisan politics and short-term electoral pressures can overshadow public interest, resulting in poorly designed legislation.
• Bureaucratic Challenges: Resistance to change and limited resources within the bureaucracy can hinder the implementation and enforcement of new laws.
• Inadequate Stakeholder Consultation: Limited engagement with civil society and marginalised groups can lead to laws that fail to address real needs.
  • For Example, the Forest Rights Act (FRA) of 2006 aims to protect the rights of indigenous and tribal communities over forest land and resources. However, its implementation has struggled due to inadequate consultation with the local communities, hindering the effective recognition of their rights.
• Overlapping Jurisdictions: Conflicting laws and jurisdictional disputes can create confusion and inefficiencies in enforcement.
  • For Example, Land acquisition laws at both the central and state levels can create conflicts regarding land use and compensation practices.
• Drafting Quality: Ambiguous language and technical complexity in laws can result in misinterpretation and limited public understanding.
  • For Example: The POCSO Act strictly criminalises the possession and storage of child pornography to protect children from sexual abuse. In contrast, the IPC only addresses the creation and distribution of obscene materials, leaving a gap regarding the possession and storage of child pornography.

Way Forward

• Enhanced Stakeholder Engagement: Involve civil society, experts, and affected communities in the lawmaking process to ensure laws are practical and effective.
  • Example: The UK's Citizen Space platform allows for public consultation on proposed legislation, ensuring that diverse voices are heard.
  • A similar initiative in India could lead to laws that better reflect the needs of the people.
• Data-Driven Legislation: Invest in research and data collection to inform policy decisions, ensuring laws address root causes and are based on empirical evidence.
• Streamlined Bureaucratic Processes: Reduce bureaucratic delays by simplifying administrative procedures and ensuring timely rule-making to facilitate effective law implementation.
• Clear Drafting Standards: Establish guidelines for clear and unambiguous drafting of laws to minimise misinterpretation and ensure consistent enforcement.
  • Example: The Plain Language Commission in the UK promotes clear and concise legal writing. India could benefit from similar guidelines to improve the readability of its laws.
• Robust Monitoring and Evaluation: Implement comprehensive mechanisms to assess the effectiveness of laws post-enactment, allowing for necessary adjustments and improvements.
  • Example: Australia's Regulatory Impact Analysis (RIA) system is designed to evaluate the potential costs and benefits of proposed regulations prior to their implementation, ensuring that the regulations are both efficient and effective.