On 12.02.2025, a two judges bench comprising Justice B R Gavai (the incumbent Chief Justice of India) and Justice A.G. Masih, was dealing with inadequate number of night shelters to house the urban homeless in the national capital (E.R. Kumar vs. Union of India [WP (Civil) No. 55 of 2003]). In that regard, the Court noticed the freebies schemes rolled out by political parties and stated that there should be a distinction between freebies promised before elections and welfare schemes like MNREGA which have sought to build resilience among communities exposed to adversity. The Court further stated that such freebies schemes are fostering a culture of dependency rather than empowering citizens to contribute to national development and further highlighted the need for policy frameworks that strike a balance between social welfare and economic sustainability. Significantly, the Court also emphasised that assistance programs should empower citizens rather than foster long-term dependency.

Additional factors which need to be addressed in order to minimise legal challenges include:

Clear statement of public purpose coupled with proper identification of intended beneficiaries and applicable criteria – In S. Subramaniam Balaji v. Government Of Tamil Nadu & Ors, (2013) 9 SCC 659, the Supreme Court noted that the Government of Tamil Nadu had announced certain welfare schemes for raising the standard of living of the people by providing assistance to the deserving ones and in that regard, exclusively formed a Special Programme Implementation Department. The guidelines for each scheme were framed to identify the beneficiaries and mode of distribution. The Supreme Court held that “there were checks and balances within the mandate of the Constitution before a public welfare scheme can be implemented and as long as the schemes come within the realm of public purpose and monies for the schemes are withdrawn with appropriate Appropriation Bills, the court has limited power to interfere with such schemes.” The Supreme Court further recognised that so long as the schemes related to implementation of the directive principles of State policy, it would pass muster although certain benefits were restricted to a particular class or could not be made available to all the citizens at one go.

Equality in treatment of beneficiaries – Often, classification of beneficiaries might appear to be unreasonable when it does not include all persons who are similarly situated having regard to the purpose and scope of the policy/scheme. In D.S. Nakara v. Union of India, (1983) 1 SCC 305, the Central Government’s Liberalised Pension Scheme (Notification dated 25.5.1979) was challenged on the ground that it arbitrarily applied only to retirees after a specific cutoff date. The Supreme Court held that this date-based classification lacked intelligible differentia and violated Article 14 of the Constitution.

Simplifying procedures – We have come across situations in the past where the implementation process of schemes may be overly complex or may involve unnecessary bureaucratic hurdles, leading to delays and inefficiencies. For example, an Aadhaar identification card is needed for availing basic rights like Anganwadi services or school enrolment, but people have faced problems in enrolling, updating or retrieving their Aadhaar details due to technological challenges. This led to an ‘either Aadhaar or no benefits’ situation.

Clear and objective guidelines – The objectives and directions should be clear in the schemes to avoid litigation. In U.P. Avas Evam Vikas Parishad and another v. Friends Coop. Housing Society and another, 1995 Supp (3) SCC 456, the question raised before the Supreme Court was whether prior approval is necessary for availing the government housing scheme under the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965. The problem was that the guidelines did not detail whether the term ‘approval’ denotes prior approval or approval given subsequent to the notification. The Supreme Court had to interpret the said provision and clarify that, “if prior approval was mandatory, the statute would have clearly said so. Since it did not, subsequent approval validates prior acts.”

2- In your experience, what are the most common legal grounds on which beneficiaries challenge government decisions or schemes?

In our experience, challenges to government schemes are often based on the grounds that the terms and conditions are unfair, arbitrary or unreasonable. Such challenges could also include pleas that the qualifications for coverage or the applicable procedures are arbitrary or discriminatory. For example, in D.S. Nakara v. Union of India, (1983) 1 SCC 305 mentioned earlier, the Central Government’s Liberalised Pension Scheme was successfully challenged on the ground that it arbitrarily applied only to retirees after a specific cutoff date and that such date-based classification lacked intelligible differentia and violative of Article 14 of the Constitution.

In Devika Biswas v Union of India, [2016] 5 SCR 773, the Supreme Court, while dealing with implementation of the Family Planning Indemnity Scheme, held that the Union of India cannot confine its obligation to mere enactment of a scheme without ensuring its realisation and implementation through effective monitoring.

We have also observed cases where no attempt was made to implement the provisions or requirements of the law and the Court had to step in. For instance, in Exploitation of Children in orphanages in State of Tamil Nadu v Union of India, (2017) 7 SCC 578, the Supreme Court found that there was no implementation of ‘Integrated child protection scheme’ and that many of the Model Rules which were workable and beneficial only existed on paper as there were no attempts to implement them.

3. How can the government balance the complexity of large-scale policy rollouts with the need for legal precision and accountability?

• In our view, every welfare scheme should be preceded by drawing up of rational and objective criteria for determining entitlement and coverage, followed by proper and equitable identification of the beneficiaries through technological and scientific tools/means.
• The Directive suggests developing legal cells as per case load and appointing nodal officers for litigation management who may be experts in litigation field. However, that may not be sufficient by itself. Our view is that the legal sanctity and validity of a welfare scheme should, at the drafting stage, be examined not just by the concerned law department but also by the law officers in the country.
• Welfare schemes should be implemented in a manner that respects the fundamental rights of the beneficiaries of the scheme and should have a requisite mechanism for effective implementation and monitoring.
• There should be a verifiable record of roll out and implementation of a welfare scheme which is publicly and transparently accessible and instils accountability in the executing departments.
• Welfare schemes should also contain provisions for fixing responsibility (if necessary, personal responsibility) on specified departments and officers for timely and milestone-based implementation.

4. Do you believe that the current grievance redressal frameworks within government departments are effective in reducing litigation? Why or why not?

There are certain grievance redressal portals like the online platform of the Department of Administrative Reforms and Public Grievances, where grievances can be lodged on any subject related to service delivery which is connected to all Ministries and departments of Government of India and States. As per available information, a total of 56,650 grievances were redressed by the States and Union Territories in November 2024 by the Department of Administrative Reforms and Public Grievances. There is still pendency of 1,92,012 grievances across the States and Union Territories.

Reserve Bank of India (“RBI”) also has an Integrated Ombudsman Scheme and as per the statistical data available, around 2,84,355 complaints were disposed off during the year, thereby achieving a disposal rate of 95.10 per cent.

While there is no doubt that the government has proactively introduced recourse to grievance redressal cells and portals in various sectors, these systems can only address individual grievances and cannot provide succour for systematic or legal deficiencies in welfare schemes.

5. With nearly seven lakh cases involving the central government pending, what legal or policy reforms would you recommend to bring down this number?

• In our view, more judges should be appointed in High Courts and lower courts. As per the information made available by the Department of Justice, there was a total vacancy of 5768 judicial officers in the District and Subordinate Courts as on 3rd February 2023. Further, as far as the High Courts were concerned, 331 posts of Judges were vacant in the various High Courts as against the sanctioned strength of 1114 Judges. Further, as per the report released by the Ministry of Law and Justice, Government of India in 2025, there are only 15 judges per million population in the country.
• Retired High Court judges should be appointed as ad hoc judges for speedy disposal of backlog cases at the High Courts. In Lok Prahari v. Union of India, (2021) 15 SCC 80, the Supreme Court laid down guidelines for appointment of retired judges as ad hoc judges at the High Court level. The Court noted that as per the available data, there were only ten High Courts having fewer than 20% vacancies as on 01.04.2021 and only seven High Courts having fewer than 10% vacancies in permanent appointments.
• There should be effective categorisation and prioritisation for disposal of large categories of cases like criminal cases (specially minor/technical offences), service matters, contractual matters etc. As per the information available on the Legal Information Management and Briefing System (LIMBS), a web-based portal designed to monitor the court cases, there are 7,26,901 pending cases across various courts in which Union of India is a party.
• Tribunalisation of justice has proven to be a failure. The Supreme Court observed in L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, that the constitutional safeguards which ensure the independence of the Judges of the superior judiciary are not available to the Judges of the subordinate judiciary or to those who man tribunals created by ordinary legislations. Consequently, Judges of the latter category can never be considered full and effective substitutes for the superior judiciary in discharging the function of constitutional interpretation. Therefore, to ensure effective resolution and avoidance of appeals, tribunalisation of justice should be avoided. The said observations hold true even today. Recently, a Supreme Court bench comprising Justice Surya Kant and Justice N. Kotiswar Singh also expressed concerns about the necessity for state administrative tribunals when these cases could be handled more efficiently at the High Courts by increasing the number of judges.

6. Could alternative dispute resolution (ADR) mechanisms be more widely used to prevent public disputes from reaching the courts?

• In Madras Bar Association v Union of India, (2021) 7 SCC 409, the Supreme Court suggested various ways to improve the working conditions of the Tribunals and provide easy access to justice to the litigants, including by constituting circuit benches.
• The ADR mechanism should inspire confidence in the public so that it is accepted as a viable and effective alternative to litigation.
• The ADR mechanism should foster fairness, certainty, predictability and domain/sectoral expertise. For example, in K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226, the Supreme Court, while dealing with matrimonial disputes, emphasised the effectiveness of mediation and counselling in preserving relationships and being more effective than adversarial litigation.

7. Do you think legal due diligence is adequately conducted before implementing major welfare schemes? If not, what’s missing?

In our view, there is definitely scope for improving the extent and quality of due diligence to be conducted before implementing welfare schemes. This due diligence should be both at specialised/technical levels (including by domain experts and technologically oriented institutions/bodies) and from a legal standpoint (by in-house and external legal consultants).

In M/s. Maa Banaspati Rice Mill v. State of U.P. and Others, (Order dated 18.04.2017 passed in Writ No. 15937 of 2017), the Allahabad High Court criticised the State agencies for gross negligence and apathy in implementing a ‘custom milling of rice’ scheme where the authorities acted without due diligence and caution although the scheme itself contained adequate safeguards for proper implementation. These kinds of situations are eminently avoidable.

8. Have you come across cases where ambiguous government notifications or circulars led to unnecessary legal challenges? How can such risks be mitigated?

We have come across many such cases.

For instance, in Commr. of Customs v. Dilip Kumar & Co., (2018) 9 SCC 1, the Supreme Court was concerned with a situation where there was ambiguity in an exemption notification or exemption clause and it was held that the benefit of such ambiguity could be extended to the subject assessee by applying the principle that an obscure or ambiguous or doubtful fiscal statute must receive a construction favouring the assessee.

Such risks can be mitigated by careful pre-enactment review of governmental notifications or circulars including by seeking specialised advice, in the strictest confidence, from reputable stakeholders in the industry or from industry bodies or even from external law firms or eminent legal counsel.

9. What role can private legal advisors or law firms play in assisting government departments to design more legally robust and implementation-ready frameworks?

In our view, involvement of private law firms is critical at the framework preparation stage of welfare schemes as their involvement would lead to more objectivity, better informed decision making and evolution of effective legislations/schemes which are not vulnerable to unwarranted challenge in courts.

In our country, Shardul Amarchand Mangaldas & Co. have made contributions by collaborating with the Ministry of Corporate Affairs in drafting the National Competition Policy, working with the Competition Commission of India in finalising various rules and regulations and participating in leading industry bodies like CII, FICCI and ASSOCHAM on competition advocacy in specific sectors or industries. Our Managing Partner, Ms. Pallavi Shroff, is also a part of the Competition Law Review Committee which aims to amend the Competition Act.

In other jurisdictions, private legal advisors and law firms have been playing an important role in advising on legal frameworks. For example, London based Dentons played a crucial role in pulling together legislation and statutory instruments to allow the United Kingdom to subsidise energy bills after last year’s energy price shock. Also, the Firm known as Bird and Bird supported the European Commission to regulate the blockchain technology in the financial sector.

10. Going forward, what legal safeguards or best practices would you suggest to ensure that intended beneficiaries of public schemes are not left out—thereby avoiding costly litigation?

In our view, one of the key ways to ensure effective implementation of schemes should be to empower public officials and at the same time, make them accountable in the public domain.

Public officials and bureaucrats should be given clearly defined powers (with minimal unbridled discretion). Further, they should be encouraged to make commercially prudent decisions without the threat of retrospective vendetta and should be insured from the brunt of post-retirement prosecution for acts done in good faith except where there is proven patent criminality.

Recently, on 04.04.2025, a Special Court (under the Prevention of Corruption act) discharged former coal secretary H.C. Gupta and former civil servant K.S. Kropha in a coal scam case (Order dated 04.04.2025 passed in CBI v Kohinoor Steel Pvt Ltd & Ors, CBI/434/19), after the Court noted that these persons were members of a Screening Committee which comprised other members also and had made unanimous recommendations without any dissent note. Therefore, the Court was of the view that these persons could not be singled out for prosecution and that an improper execution of public duty (owing to a mistake, a lapse or a shortcoming) could not be equated with criminality unless it was demonstrably done for any reward.

Additionally, there should be accessible and transparent grievance redressal systems with clearly defined processes and timelines for resolution so that people are not unnecessarily driven to litigation. These should be augmented with doorstep justice delivery in a time bound manner so that citizens do not have to run from pillar to post for justice.

Further, AI and other technologies should be used to improve the efficiency and reach of the welfare schemes. For example, AI has been used in identifying the beneficiaries for healthcare schemes like Ayushman Bharat, eSanjeevani and has also proved effective in preventing fraud in implementation of social welfare schemes like Jan Dhan-Aadhar-Mobile (JAM), MGNREGA etc.

This article was originally published in BW Legal on 25 April 2025 Written by: Ajit Warrier, Partner. Click here for original article

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