The department of legal affairs, under the Union ministry of law and justice, has rolled out a directive for “the efficient and effective management of litigation”. Framed on the recommendations of a committee of secretaries led by the department’s cabinet secretary, the directive seeks to reduce unnecessary litigation and improve coordination among government departments. Its centrepiece is the introduction of ‘litigation risk assessments’ (LRA) while drafting new statutes, rules or policies—an exercise meant to flag likely areas of dispute, estimate costs and design litigation mitigation plans to nip disputes in the bud.
At first glance, this looks promising. But the idea of assessing litigation risk is hardly new. In Salem Advocate Bar Association vs Union of India (2005), the Supreme Court had nudged the Centre to introduce Judicial Impact Assessments (JIA) to estimate the caseload and financial burden new laws would impose on courts. A task force under Justice M. Jagannadha Rao submitted a report in 2008 recommending scientific assessments of likely litigation, and corresponding budget allocations for the judiciary. Yet, by 2015, an expert committee dismissed JIAs as “neither feasible nor desirable”, arguing that courts should be funded based on their broader needs rather than predictive caseloads.
The idea resurfaced in 2019 in Rojer Mathew vs South Indian Bank Ltd, when the Supreme Court directed the government to carry out financial impact assessments of tribunals. The order was reiterated as recently as 2023 in a case involving the Orissa Administrative Tribunal Bar Association, underlining persistent judicial frustration at the absence of serious planning.
Whether branded as LRA or JIA, the core concern remains unchanged: how many disputes will a new law generate, what will they cost the state—both as a litigant and in budgeting for the judiciary. The directive, though significant, risks being another well-intentioned but weakly implemented policy unless it goes beyond broad exhortations.
Today, the government has more tools at its disposal than in 2005. Information collected through e-courts, tribunal records and predictive analytics can enable creation of evidence-based frameworks. A robust methodology should consider whether a proposed law overlaps with existing legislation, contradicts judicial precedent or criminalises new conduct—all classic triggers for litigation. It should also weigh comparative experiences from states or foreign jurisdictions and incorporate structured public consultations to catch ambiguities early. Economists, too, must be brought in to assess the fiscal burden on ministries and courts.
There is also much to learn from abroad. The UK mandates Regulatory Impact Assessments for laws and reviews them post-implementation. The US provides detailed guidelines for assessing regulatory costs and unintended consequences. These assessments are public documents inviting scrutiny and debate, and strengthening transparency and accountability.
If pursued earnestly, impact assessments could transform lawmaking from a reactive process—where governments firefight after disputes arise—into a proactive, evidence-driven exercise. The directive is a start, but unless backed by a concrete, expert-led framework, it risks being old wine in a new bottle.
The writer is senior resident fellow at the JALDI (Justice, Access and Lowering Delays in India) initiative at Vidhi Centre for Legal Policy.