Thursday, May 16, 2013

An Analysis of the NAC's Proposal on the Pre-Legislative Process (Part II)

In part I of this post I discussed how the NAC has a new proposal out for changing the process by which Ministries draft rules and legislation. In the last post I examined the process proposed for rules: mainly, disclosure that rules are being drafted, a requirement of reason-giving/justification for these new rules, and consultation. For rule creation, these requirements have been introduced in many jurisdictions around the world because Parliament does not have time to closely monitor all rule-making. As such, these requirements seem like a good second-best check to create effective, non-arbitrary rules and to add some legitimacy to a largely undemocratic process.

The NAC though has also proposed ministries follow the same requirements in drafting legislation as for drafting rules. What’s going on here? 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.

The NAC’s draft recommendations state that their proposed pre-legislative process “is not an attempt to replace the legislative Parliamentary process. . . . The pre legislative process . . . aims to democratize the process of law making in the country by strengthening the involvement of the citizen in the process of drafting and enacting legislation, without undermining the role of the executive or the Legislature.”

There is some merit to this argument. Since most legislation is introduced by the government, its drafting is generally driven by the ministries. This again puts bureaucrats in charge (although presumably legislation will usually spark more political-executive oversight than rule-making). Further, once legislation is introduced into Parliament it is often difficult to make any fundamental changes. Then isn’t it better to get more voices involved earlier and require that those drafting the legislation weigh the costs and benefits (on economic efficiency, fundamental rights, the environment, etc.) of different potential frameworks for proposed legislation?

Further, as the Draft Recommendations point out, in the 15th Lok Sabha about a third of bills were not referred to a standing committee. In 2009, only 16% of Parliamentary time was spent on legislative business. Given this seeming breakdown in the Parliamentary process isn’t it important to make sure that participation and scrutiny is frontloaded into the process?

The worry is that the pre-legislative process the NAC proposes mirrors too much what standing committees should be doing. A cynic would say that adding these steps would unnecessarily slow down the passage of legislation and may even be a thinly veiled attempt to sidestep Parliament. As mentioned in my last post, the experience with open consultation in many countries with regards to rule-making is that it is easily captured by elites (whether corporates or civil society). Instead of focusing on the pre-legislative drafting process, creating a more robust standing committee process could be a better use of time and energy.

If one does want to focus on the pre-legislative process though it might make more sense in India’s case to think about how to get more parliamentary involvement at this earlier drafting stage. MPs (from all parties) could play an important role in giving feedback in drafting. Giving MPs adequate funding for a staff, to amongst other things give comments to ministries on proposed legislation, could enable backbenchers to have an important role in the drafting process. This seems more important than ensuring members of the public can comment on draft legislation before it is tabled in Parliament.

Finally, one notable aspect of the proposed process is that it would be imposed through Executive Order. It is interesting that the NAC is not proposing these recommendations become law through an Act. Perhaps this is simply accommodating the present political moment when not much of anything is becoming an Act. Perhaps the NAC thinks it is better to first experiment with different processes before solidifying anything into legislation – i.e. this is new stuff for India, so let’s figure out best practices through experimentation. However, not putting the proposal into an Act means that even if UPA-II accepts the recommendations tomorrow, when the next government comes in they can quickly get rid of them. Even more importantly, especially if these recommendations affect the legislative drafting process, one would think one would want the legitimacy of Parliament behind the changes. Finally, an Act would presumably make more clear what type of review, if any, courts would have on whether Ministries actually followed the proscribed procedures or whether their implementation would be entirely reliant on the government of the day.

In the end, the NAC’s recommendations are a welcome step in the right direction. The NAC is still soliciting comment and hopefully their next set of recommendations and anything adopted by the government/Parliament will be more clearly justified and detailed, particularly around the pre-legislative process for legislation and explaining whether, and how, they foresee courts enforcing the new process. The NAC should also consider what types of exemptions, if any, there might be for some, or all, of the requirements they propose.
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