Before Passing Laws, India Must Forecast Court Burden—Starting With Tribunals

The Chief Justice of India has reportedly constituted a Judicial Infrastructure Advisory Committee to assess the infrastructural requirements of courts across the country and support a demand for nearly Rs. 40,000-50,000 crore in government funding. The figure is striking, but the deeper issue is timing. India usually counts judicial capacity after pendency has accumulated, after vacancies have slowed disposal, after courtrooms have become inadequate, and after litigants have already paid for institutional under-planning through delay.

That sequence has to be reversed. Whenever the State creates new rights, offences, forums, appellate channels or adjudicatory structures, it must first ask what burden those choices will place on courts and tribunals. Judicial infrastructure cannot remain a later request made by the judiciary after the legislative and executive branches have already enlarged the docket. It must be planned at the point where litigation is created.

India does not permit a mine to become operational without asking what it will do to the environment. It should not permit a law to come into force without asking what it will do to courts, tribunals and pendency. The instrument for asking that question already exists. It is called Judicial Impact Assessment.

The Union is now expected to bring fresh tribunal legislation before Parliament after the Supreme Court, in Madras Bar Association v. Union of India, again found the Tribunal Reforms Act, 2021 constitutionally wanting. That moment offers a precise opportunity. The new law should not be confined to correcting defects in tenure, appointments and service conditions. It should also require the State to undertake a Judicial Impact Assessment before any legislation or major executive measure creates or restructures adjudicatory rights, remedies, fora or appellate channels.

In Salem Advocate Bar Association v. Union of India, the Supreme Court endorsed the requirement that whenever legislation is introduced, the memorandum accompanying the Bill should estimate not merely ordinary expenditure, but also the additional cases likely to arise from them proposed law, the courts needed to decide them, the judges and staff required, and the infrastructure necessary to sustain that load. The Court was identifying a basic condition of responsible law-making. Legislation has a judicial cost, and the State must account for it before passing that cost on to courts and citizens.

That discipline has never entered legislative practice. In Rojer Mathew v. South Indian Bank, the Supreme Court directed the Ministry of Law and Justice to undertake a judicial impact assessment of tribunals affected by the Finance Act, 2017. In Orissa Administrative Tribunal Bar Association v. Union of India, the Court later recorded that the exercise had still not been done and held that, without it, “well-informed, intelligent action” on tribunals was impossible. That omission is no longer theoretical. Parliament is again preparing to legislate on tribunals after years of constitutional litigation over their structure, independence, appointments and tenure.

The reason Judicial Impact Assessment matters is plain. A new law does not generate only the disputes it is meant to resolve. It first generates disputes about itself. Its validity may be challenged. Its clauses may conflict. Even provisions drafted lucidly may operate deludedly. Orders passed under the law may then travel upward through appeals, revisions and writ petitions. A statute may create a specialised forum at the first instance and still enlarge the docket of constitutional courts. After L. Chandra Kumar, tribunal decisions remain subject to scrutiny by High Courts under Articles 226 and 227. A reform that counts cases disposed of by tribunals but ignores the litigation they create before High Courts measures only part of its own consequence.

The history of tribunal reform proves this. Parliament has repeatedly attempted to restructure tribunals in the name of efficiency. The Supreme Court has repeatedly had to intervene to preserve judicial independence. The 2025 judgment in Madras Bar Association found that the 2021 Act had substantially repackaged provisions earlier struck down by the Court and again directed the establishment of a National Tribunals Commission. A law meant to streamline adjudication has therefore spent years producing constitutional adjudication about its own validity. That is notefficient reform. It is defective design creating its own litigation.

The latest phase of the tribunal litigation makes the point sharper. In March 2026, Bar Associations approached the Supreme Court because the tenure of Chairpersons, Presiding Officers and Members of several tribunals was about to expire. The apprehension was direct: without timely extension, several tribunals could become functionally impaired, if not defunct, The Attorney General placed before the Court a proposal for extending the tenure of those covered by the Tribunal Reforms Act, 2021 The Court permitted the Union to proceed on that basis, allowing covered incumbents whose tenure was expiring between March 9, 2026 and September 8, 2026 to continue till September 8, 2026, subject to applicable age limits. It also recorded that the matter would be taken up every fortnight so that issues concerning tribunal functioning could be addressed.

That order should not be treated as a routine extension order. It is an institutional warning. A tribunal system cannot depend on emergency judicial management because the governing law failed to ensure stable tenure, timely appointments and sufficient capacity. The fact that Bar Associations, including the CAT Bar Association, Principal Bench, had to intervene to prevent tribunal functioning from being impaired is itself evidence of the institutional cost of defective legislative design. When a statute creates uncertainty about who will sit, how long they will sit, and whether the forum will function at all, its defect is not limited to the service conditions of tribunal members. It directly injures litigants. Every vacancy, adjournment and stalled hearing becomes part of the citizen's cost of bad law-making.

This is where Judicial Impact Assessment becomes indispensable. The Tribunal Reforms Act did not merely raise questions about executive control over tribunals. It also raised questions of adjudicatory continuity. If tenures are shortened, appointments delayed, extensions disputed and benches left understaffed, pendency will rise. If pendency rises, citizens will wait longer for tax, service, company, consumer, environmental, telecom and other specialised disputes to be decided. A law that claims to reform tribunals but fails to ensure the members required to run them is not reform in any meaningful public sense.

The failure is not confined to tribunals. Section 138 of the Negotiable Instruments Act remains the clearest warning of what happens when the State legislates for social utility without providing for judicial capacity. Criminalising cheque dishonour may have served a commercial purpose. It also flooded the magistracy. As on 31 December 2019, 35.16 lakh complaints under Section 138 were pending out of 2.31 crore criminal cases in the country. The Supreme Court described the pendency as “humongous” and noted its effect on disposal of other criminal matters. One legislative choice came to occupy a remarkable share of the criminal docket because its adjudicatory consequence had not been matched by adjudicatory capacity.

The labour codes supply a current example from another field. The notification of rules may rationalise a fragmented statutory regime, but it will also predictably produce litigation over repeal and savings, continuity of rights, jurisdiction of new fora, interpretation of new definitions, and treatment of pending proceedings. Major executive decisions can have the same effect. Cadre mergers, service unifications, altered promotion channels and revised recruitment structures routinely produce disputes over seniority, equivalence, pay protection, vested rights and promotional avenues. Many of these conflicts are foreseeable at the drafting stage. The law should require the State to foresee them before citizens are made to litigate them.

A Judicial Impact Assessment will not predict every case with mathematical precision. That is not its purpose. Budgets are estimates. Fiscal notes are estimates. Environmental clearances proceed on projections. The purpose of a Judicial Impact Assessment is not clairvoyance, but candour. It would compel the State to identify, before acting, where litigation is likely to arise, before which fora, at what volume, with what appellate spillover, and with what corresponding need for judges, members, prosecutors, staff and infrastructure. It would also allow Parliament to consider, on an objective and scientific assessment, whether the proposed legal design can be improved before its defects harden into litigation.

For that reason, the next tribunal law should require a public Judicial Impact Assessment to be undertaken before any legislation creating or restructuring adjudicatory rights, remedies, fora or appellate channels is enacted. Parliament should not be asked to legislate in the dark. It should know what previous tribunal reforms have done to pendency, appointments, tenure, continuity and access to justice, and what the proposed law is likely to do differently. The same discipline should apply to major executive measures that foreseeably alter legal rights on a large scale, including decisions affecting the appointment, tenure and functioning of tribunal members.

Such a requirement would expose a persistent asymmetry in the State's approach to justice. The executive creates new offences, regulators, tribunals and remedies. The judicial branch absorbs the result through procedural compression: summary disposal, admission-stage filtering, detailed first-day orders, and repeated exhortations to settle, compound or mediate. These devices may be necessary in a strained system. They are no substitute for asking, before the law is made, whether the system has been given the capacity to do what the law demands.

The proposed replacement of the Tribunal Reforms Act offers a precise opportunity to make that shift. In the continuing proceedings after Madras Bar Association, and after the intervention of the CAT Bar Association, Principal Bench, the Attorney General has informed the Supreme Court that a fresh tribunal law is likely to be placed before Parliament. That law will understandably be judged by whether it finally respects settled principles on tenure, appointments, independence and administration. It should also be judged by whether it learns the larger lesson of the litigation that produced it.

Judicial pendency is often discussed as though it were a condition intrinsic to courts. It is not. It is also the accumulated result of legislative and executive choices made without accounting for where their disputes will go. The recent move to assess judicial infrastructure only confirms that capacity cannot be planned after the system is already overburdened. If Parliament is now to rewrite tribunal law, it should begin by requiring the Government, in every future case, to count the cases its laws are likely to create and whether it is appointing as many judges and creating the necessary infrastructure for them,

Author is an Advocate. Views are personal.