Why have pre-legislative scrutiny for Acts of Parliament?

polityinindia.wordpress.com /2013/05/28/why-have-pre-legislative-scrutiny-for-acts-of-parliament/

aburman

This post is part-comment, part-response to Nick Robinsons post on the Law and Other Things Blog (please do
check the blog out!) regarding the NACs 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 Nicks 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)

Nicks 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? Doesnt this provide legislation with adequate legitimacy? Shouldnt
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 NACs 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
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a Government Bill, or merely introduce their personally drafted Bill without any consultation whatsoever. As a
matter of principle, this supports Nicks 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.

Tags: civil society, constitution of India, consultative committee, democracy, democratic participation,
government, india as an evolving polity , india policy blog, Indian parliament, indian polity, Parliament, politics,
politics in India, politics of india, polity in india, polityinindia, pre-legislative scrutiny, private member bills,
standing committee

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