Transparency and Accountability in the Pre Legislative Process

The Right to Information Act 2005 under section 4 mandates that :

4(1) Every public authority shall
c) publish all relevant facts while formulating important policies or announcing the
decisions which affect public;

The poor and the vulnerable have suffered systematically

because of legislations passed without public participation in the
process of shaping it. Equally frustrating is the fact that even
legislations meant for them, pass them by because they have no
knowledge of the Act or its contents. In a participatory process,
education is a very important part of its intrinsic contribution to
strengthening democracy. Whether they are targets of the victims
of legislation, they tend to lose.

The transparency and accountability of the pre legislative process

is crucially important for a mature and responsible democracy. In
the formulation of the RTI and the NREGA NAC 1 managed to
operationalise this process. We now need to draw lessons from
this, and formulate a system that will ensure that all laws , from
the time of policy to the formulation of the final Bill will follow the
dialectic of public scrutiny and legal drafting.

There has been a lot of heated and contentious debate in recent

times about the content of legislation and various laws that have
been brought to Parliament. A clear indication of how
controversial they are, and how much interest there is in almost
every subject can be seen from the nature and scope of the
petitions received by the Chairperson and members of the NAC
and the NAC Secretariat. Even in the short time that NAC-2 has
been in existence, petitions with regard to (new) legislations
under consideration include: The Communal Violence Bill,The
Food Security Bill, The Seeds Bill, The Nuclear Liability Bill, The
Whistleblowers Bill, The Torture Bill, The Land Acquisition and R&R
Bills, The BRAI Bill, The UIDAI Bill ,The Lok Pal Bill, Prevention of
Sexual Abuse of Children Bill, Judicial Accountability Bill, Political
Reform (Bill and Constitutional Amendment), Mining Bill, The
Beggary Bill

Law-making in India is a process that is becoming increasingly contentious and

controversial. A typical Bill is drafted in secret by the concerned government
department (sometimes in consultation with other departments, and often with just
a few bureaucrats hastily preparing a draft), and this secret draft is approved by the
Cabinet for presentation before a House of Parliament (or the State Legislature, as
the case may be).1 Usually, it is only upon its introduction in the House that the
contents of the Bill are made public. The attention paid to a typical Bill in
Parliament can be deduced from the following data:2

- In 2009, only 16% of the total Parliamentary time was spent on legislative
business.

- 27% of the total Bills passed in the year by Lok Sabha were discussed for
less than 5 minutes.3

- Only five Bills passed by the Lok Sabha in 2009 were debated for more than
three hours.

1
Even the main opposition parties are rarely consulted during the drafting process. See,
Suman Jha, Government not keeping Opposition on Board The Indian Express 15 April 2010
(available at http://www.indianexpress.com/news/govt-not-keeping-oppn-on-board-
complains-bjp/606522/0 ).
2
Data provided by PRS Legislative Research, available at
http://www.prsindia.org/index.php?
name=Sections&id=5&parent_category=&category=60&action=bill_details&bill_id=989
3
Even as recently as the ongoing Monsoon session of the Lok Sabha, the Indian Medical
Council Bill was passed without any discussion, prompting a novel protest from the
Opposition parties. See, When Lalu became Prime Minister The Indian Express 20 August
2010 (available at
http://www.indianexpress.com/news/when-lalu-became-prime-minister/662888/0 ).
The reason for petitioners/citizens approaching the NAC is not
only because of the perception that it is a body that has been
effective at drafting pro-people legislations like the RTI and
NREGA, but also because it has set itself up as an interface
between policy makers and public opinion/civil society. The lack of
a forum for the many interested stakeholders to express their
opinion on different matters is not only frustrating to them, but
does great damage to democratic policy making and the policy
itself. If there were to be a mandatory pre legislative consultative
framework adopted, it would prove to be of great potential
benefit to having much more informed and potentially beneficial
legislation, without curtailing the executive, or legislative
prerogative. In fact better and more informed opinion presented
to policymakers and legislators before the formulation of detailed
legislation would ensure that the draft law is free of avoidable
shortcomings.

The only opportunity for people to express their opinion before passage of the law
is if it is sent to a parliamentary committee. But Parliamentary Committees
scrutinise and report of only those Bills that are submitted to them by the House.
However, extremely significant and controversial legislation like the SEZ Act was
not even sent to a committee before its passage. In addition, given that the
functioning of these committees is quite opaque, and the fact that not all Bills go to
committees, this forum is necessary, but clearly not one that meets the needs or
covers the advantages of pre legislative consultation. In fact prelegislative
consultation is bound to make Parliamentary Committee debate far more
enlightened .4

Making the contents of draft Bills rests on the magnanimity of the Ministry
concerned; this despite the legal duty imposed by the Right to Information Act to

4
Mr Somnath Chatterjee made some unsuccessful attempts to make the proceedings of
Parliamentary Committees transparent during his tenure as the Speaker of the Lok Sabha.
See, Sunetra Choudhry, Lok Sabha Speaker bats for Open Proceedings NDTV 5 March 2008
(available at
http://www.ndtv.com/convergence/ndtv/story.aspx?id=NEWEN20080043110 ).
publish all relevant facts while formulating important policies or announcing the
decisions which affect public.5

The need for consulting the people in general, and stake-holders in particular,
while formulating laws and policies should be obvious in a democratic polity.
Laws derive their legitimacy from popular consent, which can only be fictional if
they are passed without consultation. The Select Committee on Modernisation of
the House of Commons (UK) aptly summed up the benefits of pre-legislative
scrutiny thus:

There is almost universal agreement that pre-legislative scrutiny is

right in principle, subject to the circumstances and nature of the
legislation. It provides an opportunity for the House as a whole, for
individual backbenchers, and for the Opposition to have a real input
into the form of the actual legislation which subsequently
emerges, not least because Ministers are likely to be far more receptive
to suggestions for change before the Bill is actually published. It opens
Parliament up to those outside affected by legislation. At the same time
such pre-legislative scrutiny can be of real benefit to the Government. It
could, and indeed should, lead to less time being needed at later stages
of the legislative process..... Above all, it should lead to better
legislation and less likelihood of subsequent amending legislation.6

This point of principle is borne out by our experience in India too. The last session
in the Rajya Sabha for instance saw members from different parties raising issues
about the Torture Bill . The text of the Prevention of Torture Bill was kept secret
until it was presented in the Lok Sabha, which passed it in the Budget Session in
2010 after a brief debate late in the evening (in which not a single MP from the
main Opposition parties participated). Instead of providing a comprehensive
mechanism for dealing with torture in India, not only does it fall way short of its
stated objective of enforcing international obligations under the Convention
Against Torture, it effectively establishes an impunity regime for public servants
accused of torture.7 It has now been sent to a select committee, but many of its
obvious anomalies would not have been there in the first place, had it been
5
Section 4(1)(c) of the Right to Information Act 2005.
6
Select Committee on Modernisation of the House of Commons, First Report: The
legislative process, 23 July 1997, HC 190 1997-98, para 20 (available at
http://www.publications.parliament.uk/pa/cm199798/cmselect/cmmodern/190i/md0102.htm)
.
discussed in the public domain at the stage of formulation and drafting. Sometimes
we end up with unpopular laws even if the governments intentions are benign.
Acts made without consultation with stake-holders often meet strong protests by
stake-holders after they have been duly passed by Parliament. The Code of
Criminal Procedure (Amendment) Bill, 2008 was one of the eight Bills that the
Lok Sabha passed in a matter of a few minutes in December 2009. Even though the
content of the Act was, on the whole,
Similarly, the Whistleblowers Bill was introduced in Parliament after an
unnecessary secret and closed drafting process, not taking on board the obvious
suggestions many anti-corruption and RTI activists have regarding the safety and
security of whistleblowers.

While the points mentioned above pertain to central legislation, the state of affairs
with respect to state laws must be assumed to be worsefor as a rule, state
legislatures tend to receive a lesser degree of attention from media, and therefore
get away with greater secrecy, the legislative assemblies sit for much less time, and
the debate in the public domain is almost always after the law has been passed.

What we have, therefore, is an absence of direct participation of the people in the

law-making process, and increasingly weak representative bodies entrusted with
the task of law-making. It is with some urgency, therefore, that we must attend to
the need to democratise law-making in India.

An Agenda for Reform

What follow are certain suggestions for reforming the law-making process at the
pre-legislative stage. All but the final suggestion can be implemented by changes in
practice and conventions, although giving them a statutory basis will put them on
surer foundations. I do not endorse all of them and mention them only to open up a
debate by exploring some of the possibilities:

- All major Bills and policy pronouncements must start life in an exploratory
Green Paper, which outlines the broad policy objectives in order to stimulate
a public debate.

- A Green Paper must be followed by a White Paper, with concrete proposals

by the government specifying the direction it wants to proceed in.

7
See generally, Tarunabh Khaitan, A Bill Designed to Fail The Hindu 19 May 2010 (available
at http://www.thehindu.com/opinion/op-ed/article433182.ece).
 - Every draft Bill, whether or not it was preceded by Green/White Papers,
must be placed in the public domain at least two months before being
introduced in the legislature.

- All Green and White Papers and draft Bills of the Central and State
governments should be published in a separate section of the Official
Gazette and on a dedicated website so that they are easily accessible (in
English and Hindi as well as other languages), without being drowned by
other information. The Official Gazette itself should be freely available.8

- All Green and White Papers and draft Bills must also specify the name and
contact details of the officer responsible for receiving comments and
suggestions from the public and from stakeholders.

- The government must also proactively identify and consult stakeholders at

each stage.

- The Modernisation Committee of the House of Commons has recommended

that parliamentary committees should also be consulted on draft Bills before
their text is finalised9a recommendation worth considering in the Indian
context as well.

- All the comments and suggestions received on the Papers and the Bill must
themselves be publicly available. They, along with the governments
response, should be organised and appended to the text of the Bill
(preferably by an independent body) when introduced before a legislature.

- When urgent legislation is necessary, any of these pre-legislative process

requirements may be waived by the legislature through a resolution to that
effect, before it can take up the urgent Bill for consideration. Legislation
passed without pre-legislative consultation may be required to be brought
before the legislature for a mandatory review after a specified time-limit.

8
Copies of the Official Gazette, which contains all official notifications from Government, are
currently available only on payment of a fee! See, http://egazette.nic.in/
9
Modernisation Committee (see note Error: Reference source not found) para 30: ...we
believe that in general, unless there are unusual circumstances, there are significant
benefits in draft bills being considered by a committee of the House.
This is just a draft set of suggestions. Arriving at a well thought out pre legislative
consultative framework, itself needs to go through a consultative process. However
, there is no doubt that it would democratise the law-making process, allow for
more enlightened legislative drafting, and allow much greater participation by the
citizen and the broad category of civil society.

For the NAC, it would in a sense mean the institutionalising of one of its main
functions within the framework of democratic governance. It would give an avenue
for each department to have much broader interactions while formulating law and
policy . The NAC would then be free to take up only those laws and policies that
it has marked as its areas of immediate priority.

Finally, the greatest advantage of such a process, is that it would democratise and
strengthen the executive and legislatures capacity to draw on expertise and the
involvement of the Indian citizen, without undermining executive or legislative
prerogative.