SC highlights need for continuous legislative assessment by executive, judicial oversight
The Supreme Court has underscored the crucial role that both the executive government and constitutional courts play in ensuring the effective functioning of laws, holding that reviewing and assessing the implementation of a statute is an integral part of the rule of law.
The Supreme Court has underscored the crucial role that both the executive government and constitutional courts play in ensuring the effective functioning of laws, holding that reviewing and assessing the implementation of a statute is an integral part of the rule of law.
A bench comprising justices PS Narasimha and Aravind Kumar emphasised that the responsibility to assess whether a statute is achieving its intended purpose lies primarily with the executive government while a constitutional court’s scrutiny is not just a reflection of judicial oversight but also a reminder of the executive’s fundamental duty to continuously review and assess the implementation of statutes.
“Reviewing and assessing the implementation of a statute is an integral part of the rule of law. It is in recognition of this obligation of the executive government that the constitutional courts have directed governments to carry performance audits of statutes,” said the bench in its judgment on Tuesday.
Adapting to change is important for achieving justice, said the court, adding that failure to adapt produces injustice, which is an abuse of power. According to the court, the executive branch has a constitutional obligation not only to implement laws but also to monitor their effectiveness continuously.
“Legal reform through legislative correction improves the legal system and it would require assessment of the working of the law, its accessibility, utility, and abuse as well. The executive branch has a constitutional duty to ensure that the purpose and object of a statute is accomplished while implementing it,” stated the judgment authored by justice Narasimha.
The Supreme Court’s call for a judicial review in such cases assumes significance. While the judiciary traditionally reviews executive and legislative actions, the judgment envisaged a vital role for it in nudging the system toward necessary reforms.
“There is yet another role which the judiciary can and ought to perform—that of facilitator of access to justice and effective functioning of constitutional bodies. In this role, the judiciary does not review executive and legislative actions but only nudges and provides impetus to systemic reforms,” the bench held.
This judicial facilitation is more critical in contexts where the legislative process is dominated by government initiatives, with few private members’ bills being introduced or debated, noted the bench.
It pointed out that a performance audit of the legislation should be prompted by demonstrable data or cogent material that indicates statutory schemes are being impeded or delayed by bureaucratic or judicial hurdles. However, the bench clarified that while the judiciary can compel such audits and promote debate, it cannot directly enforce legislative reforms: “This facilitative role of the judiciary compels audit of the legislation, promotes debate and discussion but does not and cannot compel legislative reforms,” it maintained.
The case that triggered this judicial intervention, a long-standing dispute over the redevelopment of a slum area in Borivali, Mumbai, had been marred by delays due to litigation, environmental clearances and non-cooperation from certain slum dwellers.
Ordering a performance audit of the Maharashtra Slum Areas (Improvement, Clearance, and Redevelopment) Act, 1971, the top court expressed concern over the inefficacies in the implementation of the Act and directed the chief justice of the Bombay high court to constitute a bench for a suo motu review of the statute’s functioning.
This directive comes in response to several systemic issues identified by the bench, including the problematic processes of land identification as slum areas, the selection of developers and the provision of transit accommodation for displaced slum dwellers.
The court also raised concerns about the lack of independence and objectivity in the functioning of statutory authorities, suggesting a possible “regulatory capture”. These issues, the bench suggested, have contributed to a situation where “statutory remedies are ineffective and, at the same time, lacking in accountability.”
The Supreme Court’s intervention in this matter not only seeks to address the specific shortcomings in the implementation of the Maharashtra Slum Areas Act but also reinforces the broader principle that it is the duty of the executive government to continually assess and adapt laws to meet their objectives. The judiciary’s role in this context is to ascertain that these assessments are carried out effectively, promoting a legal system that is both responsive and accountable.