Mainstream WeeklyThe Allahabad High Court’s recent order in the suo motu matter concerning the creation of 9,149 additional courts in Uttar Pradesh raises a question that extends beyond court infrastructure in a single State. In its April 13, 2026 Order, a Division Bench of Justices Alok Mathur and Amitabh Kumar Rai observed that it would be “in fitness of things” for Parliament and State legislatures to consider incorporating a Litigation Impact Assessment clause in every Bill before it is enacted. The Court noted that every new enactment usually creates new rights, defines fresh rights, or modifies or extinguishes existing rights, all of which may lead to litigation at some point. The observation was made in the context of rising pendency and the constitutional importance of speedy justice.
The suggestion should be taken seriously. It is not simply a comment on court congestion in one State. It points to a glaring gap in Indian law-making; legislation is often enacted without a realistic assessment of the institutional capacity, staffing, infrastructure and expenditure needed to make it work.
Law-making does not end with a Bill
Legislative debate in India usually asks what a law seeks to achieve. It asks less often what the law will require to work. Will it create new cases, forums, posts or expenditure? What will it cost to enforce the law, build the required institutions and sustain implementation? Who will bear that cost — the Union, the States, or both?
A law does not become effective merely because it is enacted. Rights need institutions, offenses need investigators and courts, and welfare entitlements need budgets. Without this, legislation remains an announcement rather than an instrument of welfare and justice.
Special laws create special systems.
This pattern is visible across several Indian laws.
As the Allahabad High Court noted, Section 138 of the Negotiable Instruments Act illustrates the problem. Cheque-bounce cases show how a seemingly limited provision can place a large, recurring burden on courts. The question is not whether the provision was justified, but whether the litigation impact of the provision was anticipated before the law came into force.
The Juvenile Justice Act did not merely create new legal procedures; it established a distinct architecture for child care and juvenile justice. By providing for Child Welfare Committees and Juvenile Justice Boards at the district level, it created a specialised system for children in need of care and protection and children in conflict with law, separate from the regular criminal justice process. These institutions require trained members, regular sittings, case records, social investigation support, child-friendly procedures and coordination with police, child protection units and courts. The law cannot function merely because the statute exists; it needs a district-level delivery system.
The POCSO Act mandates Special Courts for cases involving sexual offences against children. But child-sensitive justice cannot be secured by merely notifying a courtroom as a Special Court. It requires trained judges, dedicated prosecutors, support persons, interpreters, counsellors and effective victim and witness protection measures. Without such support, the promise of a speedy and child-friendly trial is difficult to realise.
Similarly, the Commercial Courts Act and the Insolvency and Bankruptcy Code were designed to improve commercial adjudication and economic confidence. But both require specialised benches, trained judges or tribunal members, registry support, digital systems and case management capacity.
The pattern is clear. Legislatures do not merely create legal norms. They create institutional consequences. Those consequences must be anticipated, costed and funded.
Beyond pre-legislative consultation
India already has the Pre-Legislative Consultation Policy, 2014, which requires ministries to place draft legislation, or at least essential information about it, in the public domain. This includes the justification for the law, its essential elements, broad financial implications and an assessment of its estimated impact on the environment, fundamental rights, and the lives and livelihoods of affected people.
Parliamentary practice also recognises the need for Financial Memoranda where a Bill involves expenditure. But in practice, Financial Memoranda are often a routine statement that expenditure will be met from existing resources, which may not be adequate when a law creates new courts, offenses, authorities, tribunals, procedures or entitlements.
India’s pre-legislative consultation process remains non-binding and is often circumvented. The need to strengthen it has been recognised before, including through a Private Member’s Bill introduced in the Lok Sabha by Supriya Sule, MP. Moreover, there is still no mandatory framework requiring major Bills to undergo meaningful pre-legislative consultation, Legislative Impact Assessment and systematic financial costing. This institutional gap needs urgent attention.
Lessons from other democracies
India does not need to copy any one model, but it can learn from comparative practice.
In the United States, the Congressional Budget Office produces cost estimates for nearly every Bill approved by a full committee of the House of Representatives or the Senate. These estimates give lawmakers an independent fiscal view before they vote. In the United Kingdom, the Better Regulation Framework requires departments to assess the practical effects of regulatory proposals, including costs, benefits, alternatives, affected groups, implementation risks and review mechanisms.
Australia’s Office of Impact Analysis reviews impact analysis documents for significant policy proposals, while Canada’s Parliamentary Budget Officer publishes legislative costing notes estimating the fiscal implications of legislative proposals. These systems are not perfect. Estimates and assessments can be contested and criticised. India doesn’t need to reproduce this model, but its central discipline is worth adopting before a law is enacted; legislative intent must be tested against evidence, cost, capacity and implementation design.
Impact assessment is wider than litigation.
The Allahabad High Court’s suggestion is focused on litigation, and rightly so. But a sound Legislative Impact Assessment should be broader in scope. It should also assess the social, economic, environmental and rights-based consequences of a proposed law.
A law may affect livelihoods, businesses, consumers, local communities, children, women, persons with disabilities, minorities, workers, prisoners, accused persons, victims, forests, water bodies or urban settlements. Some effects may be intended; others may be unintended. A serious assessment should identify both.
The purpose is not to make law-making slower or more bureaucratic; it is to improve the quality of legislative judgment. In addition to a broader legislative impact assessment, there shall be a litigation impact assessment. Where the law is likely to require special courts, additional benches, prosecutors, court staff, interpreters, counsellors, technical experts or new infrastructure, these requirements should be stated clearly and costed in advance. It should also consider whether the law is likely to increase bail hearings, remand proceedings, trials, appeals, writ petitions, compensation claims or administrative challenges.
For India, such assessments can draw on existing court filings, comparable laws, crime data, tribunal caseloads, demographic information, pilot experience and administrative records. They will not predict the future with precision. But they will give legislatures a reasoned basis to understand the institutional burden of the laws they pass.
Equally important is post-legislative review. Laws should not be treated as finished products once enacted. After three to five years, there should be a structured review: has the law addressed the problem it was meant to remedy? Has it produced unintended litigation or administrative burden?
Are the institutions created under it adequately staffed and funded? Has it added pressure on already burdened courts? Are legislative or administrative corrections required? Such a review would allow Parliament and State legislatures to identify design flaws early, before they become entrenched institutional failures.
Financial Memoranda must become real costing documents.
India’s Financial Memoranda should be transformed from formal appendices into serious fiscal instruments. Every major Bill should estimate the cost of implementation for at least five years. This should include capital expenditure, recurring expenditure, staffing, infrastructure, training, technology, monitoring, legal aid, victim support, administrative overheads and cost to States.
The financial memorandum must speak to the actual design of the law. A Bill providing for Special Courts should estimate not only the number of courts required but also the number of judges, prosecutors, court staff, digital systems, witness facilities, victim-support services, and the recurring expenditures needed to make them functional. A Bill creating a new authority, adjudicatory body, commission or board should set out the cost of its institutional footprint — offices, staffing, district presence, inspection capacity, grievance redress, training, data systems and monitoring. A Bill creating a new offence should assess the likely burden on police, prosecution, courts, forensic services and prisons. Without such costing, legislatures approve a law without being informed of the cost of making it work.
An independent office for legislative impact costing
A credible assessment cannot be left solely to the sponsoring ministry. India should establish an independent Legislative Impact and Costing Office attached to Parliament. The sponsoring ministry should prepare the first assessment in consultation with the Ministry of Law and Justice, the Ministry of Finance, State governments, the judiciary (where court infrastructure is involved), and domain experts. But that assessment should be reviewed by an independent parliamentary office before the Bill is tabled.
This would combine executive responsibility with legislative scrutiny. It would also ensure that Parliament is not asked to approve a law without a clear estimate of its fiscal cost, institutional requirements, litigation burden and implementation capacity. Where implementation falls on the States, they must be consulted before Parliament creates obligations that they are expected to finance. Federalism cannot mean that the Union announces and the States struggle to fund.
From law-making to law-working
The Allahabad High Court’s order should be read as more than a comment on pendency in Uttar Pradesh. It is a reminder that the right to speedy justice cannot be protected solely by the judiciary. It requires legislative foresight and executive budgeting.
India has too often treated law-making as an announcement. But responsible governance requires law-making as public design. Parliament and State legislatures should make broader Legislative Impact Assessment, litigation impact assessment, meaningful Financial Memoranda and post-legislative review mandatory features of Indian law-making. Good law-making requires not only intent, but the capacity to deliver.
(Author: Aftab Mohammad is a lawyer and a senior public policy and governance specialist. He writes on diplomacy, democracy, history and contemporary questions of law and justice)