A Bench of Justices P.S. Narasimha and Aravind Kumar, in a judgment, said the court could direct the government to review the working of the statues and audit their impact if, among other situations, there was demonstrable judicial data or other cogent material to prove that the laws have failed to ameliorate the conditions of their intended beneficiaries.
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NEW DELHI: The Supreme Court of India has reaffirmed “the power, nay the duty” of the judiciary to mandate the government to conduct a “performance audit” of its statutory laws to evaluate their real-world impact.
This decision, delivered by a Bench comprising Justices P.S. Narasimha and Aravind Kumar, emphasizes that the judiciary can compel the government to review and audit the functioning of statutes, especially when there is concrete evidence or judicial data indicating that the laws have failed to benefit their intended recipients.
The Bench observed,
“The court could direct the government to review the working of the statutes and audit their impact if, among other situations, there was demonstrable judicial data or other cogent material to prove that the laws have failed to ameliorate the conditions of their intended beneficiaries.”
The judgment, issued on July 30 and published on a subsequent Wednesday, emerged from an appeal concerning the Maharashtra Slum Areas (Improvement, Clearance, and Redevelopment) Act, 1971, which has been a subject of extensive litigation over the years.
The Supreme Court highlighted the problematic trajectory of this law and urged the Chief Justice of the Bombay High Court to establish a Bench to commence suo motu proceedings for reviewing the statute’s implementation and identifying the underlying issues.
Justice Narasimha, who authored the judgment, underscored the government’s constitutional obligation to ensure that the goals of a statute are realized during its enforcement. He stated,
“Every government has a constitutional duty to ensure that the purpose and object of a statute is accomplished while implementing it. It has the additional duty to closely monitor the working of a statute. The government must have a continuous and real-time assessment of the impact that the statute is having.”
He further emphasized,
“Assessing the implementation of a statute is an integral part of the rule of law. The purpose of such review is to ensure that a law is working out in practice as it was intended. If not, to understand the reason and address it quickly.”
The Court acknowledged that many statutory schemes and procedures become entangled in bureaucratic or judicial complexities that hinder or delay their intended outcomes. In such instances, the judiciary can intervene as a “facilitator of justice.”
Justice Narasimha noted that after adjudicating numerous cases based on a particular statute, the court gains insights into the law’s societal impact—whether it benefits ordinary citizens or restricts their rights.
Justice Narasimha also highlighted the importance of the Supreme Court’s “institutional memory” regarding the functioning and interpretation of statutes. He explained,
“The ‘institutional memory’ of the Supreme Court about the working of a statute and its interpretation, preserved in the form of a critical mass of judicial precedents, along with the experiences gained by the judges and the court on the working of the statute, is of immense value for directing the performance audit of legislation.”
He reasoned that constitutional courts are fully justified in instructing the government to conduct performance audits of its laws, given the judiciary’s unique position to assess the efficacy of a statute. Justice Narasimha elaborated,
“For one, the disputes on the particular law are brought to court; the claim of rights on the law and allegations of dereliction of duties under the statute are raised in court; experienced lawyers lay bare the fault lines in the statutory scheme; and many a times the court ‘silently witnesses the play of statutory power relegating the deserving to the backseat, and the undeserving taking away all the benefits’.”
Justice Narasimha concluded,
“Through this facilitative role, the judiciary compels audit of the legislation, promotes debate and discussion, but does not and cannot compel legislative reforms.”
Additionally, the Court found it “peculiar” that the majority of legislation is introduced and passed by the government, while private Members’ Bills rarely receive attention.
This observation underscores the need for greater scrutiny and performance audits of statutory laws to ensure they serve their intended purpose effectively.
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