Additional Solicitor General Aman Lekhi told the bench that as regards impact assessment, there is already a pre-legislative consultation policy which is in place which provides for consultations with the stakeholders. "It is a 2019 Act, it has had three or four prior incarnations starting with the 2011 Bill", he sought to submit.
Justice Kaul remarked, "A legislative impact study is to be done if you want a new avatar of an Act- The changes you propose to make, what impact would it have on the litigation, what is the kind of manpower required, what is the infrastructure required. Has this been done or not? The answer is 'yes' or 'no'"
Amicus Curiae Senior Advocate Gopal Sankaranarayanan told the bench, "This was done only after the Act was notified and brought into effect. The affidavit of the Union says there was a response to it from 18 states and 11 have suggested revision of the pecuniary jurisdiction".
The ASG replied, "We are not in a litigious capacity here. Adulteration, unfair trade practises, misleading advertisement, pecuniary jurisdiction are the heads under which this new Act has made changes. They were all part of the recommendations of the Standing Committee".
"So no study was done! The Standing Committee just recommended these changes. But what impact will it have on litigation? That is the study and it was not done! This is the greatest irony in legislation- you never do a study. The government does not want to say that the answer to this is 'no'. I have full sympathy for you, Mr. ASG. Drawing out information from the government is a very difficult task. What you should have done, you have not done. But now you say you have written to the state governments for the response. We will record that it was not done and now you have done so post the Act", said Justice Kaul.
The ASG sought to submit that the 2019 Act is an amendment of the 2015 Bill which was the subject matter of the standing committee report, by which the new subject matters were added and pecuniary jurisdiction was enhanced, and that no states had objected to it.
"When no study is there, there is no clarity as to what infrastructure should be there at what level, how much manpower should be there at what level. In 2019, you brought the Act. In 2021, two years later, we are still trying to implement the infrastructure. It is certainly the states' responsibility, but you don't have an impact study on what is going to happen, at the relevant level! It is a post-facto analysis two years later that we are doing", remarked Justice Kaul.
When the ASG sought to say that 4 weeks is too short a time for the completion of the study, Justice Kaul commented, "You are making legislations come immediately!"
"It is not a very complex situation as now you know how many cases are being generated in the last 2 years, how much manpower you need. But what is a prerequisite has not been done. Let us do a 'post requisite' now. We are not looking at what will happen but what has already happened in the last two years", said the judge.