This post is part-comment, part-response to Nick Robinson’s post on the Law and Other Things Blog (please do check the blog out!) regarding the NAC’s proposal for having pre-legislative scrutiny of Bills to be passed by Parliament. The National Advisory Council came out with “Draft Recommendations on Pre Legislative Process” for both draft rules, and draft laws or Bills. As a response to Nick’s post, I restrict my focus to the latter i.e. the need for pre-legislative scrutiny of Bills, or draft laws.
The pre-legislative proposal essentially mandates 3 things:
(a) Any public authority/government department has to publish a Statement of Essential Objectives and Principles, on the basis of which it will draft legislation.
(b) After the Statement has been in the public domain for 45 days, the public authority shall draft the legislation and keep it in public domain for 90 days and proactively share with the public.
(c) The public authority will then hold consultations and give comments on the feedback received, before the Bill is finalized and presented to Parliament.
(For those who do not know, most laws are first drafted by the concerned government department, and then discussed, debated and passed in Parliament)
Nick’s main critique of this process is the following:
“…Rules are created by out-of-touch administrators who never have to run for office. Legislation is passed and debated by Parliament – theoretically the central citadel in the Indian democratic system. Not only is Parliament the empowered representatives of the people, but while considering legislation Parliament often solicits outside comment through standing committees.
Should this not be enough? Doesn’t this provide legislation with adequate legitimacy? Shouldn’t Parliament be in charge of demanding proper justification and reason-giving for legislation? Indeed, does draft legislation even have to be based on sound reasoning? After all, legislation – unlike rulemaking – is often the product of compromise between different political factions. A vote is enough. No reasons necessary….”
As Nick says, there is merit to the argument for the NAC’s proposal to democratize the law-making process further since (a) laws are framed by unaccountable bureaucrats, (b) major changes are difficult to make once Bills have been introduced in Parliament, and (c) Parliament has been spending very little time on actual deliberation of legislation.
I believe that Nick is correct when he says that the NAC proposals are essentially a parallel process mirroring the process followed by Parliamentary Standing Committees, and that strengthening the Committee system might be a better idea. It is however, also important to note that there is no legal/ethical bar on pre-legislative scrutiny. The government is free to follow any process it wants in the drafting of legislation. However, a more participatory process may in most cases be better than a less participatory one. The important thing I believe, is to get the participatory process correct. Getting this process right would help prevent the process from getting dominated by civil-society and corporate elites.
On the other hand, it is also important to note that while as a matter of practise, most Bills passed are drafted and introduced by the Government, individual MPs are also free to introduce private-member Bills. Though private member Bills are rarely enacted in to law, individual MPs drafting such laws are also free to pursue any process for drafting their Bill, as per their convenience. They may follow a process more participatory than that of a Government Bill, or merely introduce their personally drafted Bill without any consultation whatsoever. As a matter of principle, this supports Nick’s theoretical position that the law making process does not require pre-legislative scrutiny.
Nick also discusses the importance of getting “…more parliamentary involvement at this earlier drafting stage. MPs (from all parties) could play an important role in giving feedback in drafting…” I would just like to state that a number of Ministries, if not all, have Parliamentary Consultative Committees, with the Minister as Chairman. These Consultative Committees discuss a number of issues regarding the day to day functioning of the Ministry. They do not currently, have any clear-cut role regarding draft legislation. A start could perhaps be made by institutionalizing pre-legislative scrutiny by these parliamentary Consultative Committees.
I believe that creating pre-legislative scrutiny as a process is more a statement of principle as a commitment towards greater democratization. It fits less well within the conventional understanding of the law-making process. However, there are a number of factors which in fact militate towards greater participation through these mechanisms: (a) Patrick French points out the increasing trend towards “hereditary” politics, (b) the erosion of Parliamentary incentives for deliberating legislation, (c) the ease with which Ministries can disregard recommendations of Standing Committees (see Action Taken Reports w.r.t. the higher education Bills), etc.