NEW DELHI: Stepping beyond constitutional courts‘ traditional role limited to testing the constitutionality of legislations and validity of executive decisions and taking on oversight functions, Supreme Court has ruled that it can direct a performance audit of legislations to identify and address infirmities in their implementation on the ground.
This ruling came from a bench of Justices P S Narasimha and Arvind Kumar, who asked the Bombay HC chief justice to constitute a special bench for a performance audit of Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, which has, over the years, been in the eye of litigation in HC and even in SC.Justice Narasimha said, “Assessment of the working of the statute to realise if its purpose and objective has been achieved or not is the implied duty of the executive government.”
SC: Review aims to ensure law is working in practice
Justice P S Narasimha said, “Reviewing implementation… is an integral part of rule of law. It is in recognition of this obligation of the executive govt that constitutional courts have directed govts to carry out a performance audit…”
The purpose of review is to ensure a law is working in practice as it was intended and if it’s not, then to understand why and address it quickly, bench said, while pointing to another reason for such performance audits.
“A peculiar feature of how our legislative system works is that an overwhelming majority of legislations are introduced and carried through by govt, with few private member bills being introduced and debated. In such circumstances, judicial role does encompass, in this court’s understanding, the power, nay the duty, to direct the executive branch to review the working of statutes and audit the statutory impact,” the bench said.
However, SC clarified that before a constitutional court orders performance audit of a legislation, it must assess the litigation history of the operation of the law to arrive at a finding that “statutory schemes and procedures (under that legislation) are gridlocked in bureaucratic or judicial quagmires that impede or delay statutory objectives”.
“One can only state that this direction must be predicated on a finding that the statute has, through demonstrable judicial data or other cogent material, failed to ameliorate the conditions of the beneficiaries.”
This ruling came from a bench of Justices P S Narasimha and Arvind Kumar, who asked the Bombay HC chief justice to constitute a special bench for a performance audit of Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, which has, over the years, been in the eye of litigation in HC and even in SC.Justice Narasimha said, “Assessment of the working of the statute to realise if its purpose and objective has been achieved or not is the implied duty of the executive government.”
SC: Review aims to ensure law is working in practice
Justice P S Narasimha said, “Reviewing implementation… is an integral part of rule of law. It is in recognition of this obligation of the executive govt that constitutional courts have directed govts to carry out a performance audit…”
The purpose of review is to ensure a law is working in practice as it was intended and if it’s not, then to understand why and address it quickly, bench said, while pointing to another reason for such performance audits.
“A peculiar feature of how our legislative system works is that an overwhelming majority of legislations are introduced and carried through by govt, with few private member bills being introduced and debated. In such circumstances, judicial role does encompass, in this court’s understanding, the power, nay the duty, to direct the executive branch to review the working of statutes and audit the statutory impact,” the bench said.
However, SC clarified that before a constitutional court orders performance audit of a legislation, it must assess the litigation history of the operation of the law to arrive at a finding that “statutory schemes and procedures (under that legislation) are gridlocked in bureaucratic or judicial quagmires that impede or delay statutory objectives”.
“One can only state that this direction must be predicated on a finding that the statute has, through demonstrable judicial data or other cogent material, failed to ameliorate the conditions of the beneficiaries.”