Tuesday, February 25, 2014

New Policy on Pre-Legislative Scrutiny of Bills

This blog has previously discussed the issue of pre-legislative scrutiny (here, here and here). On the 10th of January 2014 the Committee of Secretaries approved a policy that requires all Ministries and Departments of the Central Government to put the proposals for new Bills and amendments to existing laws on their websites and invite comments and views from the people before finalising them. Venkatesh Nayak of the CHRI writes:


The new policy requires special efforts to be made to consult with people in general apart from talking to special interest groups. A 30-day period must be set aside for this purpose. The Law Ministry gets to vet the Bill only after the nodal department/ministry completes the consultations and makes changes to the draft legislation (if necessary). A compilation of people's views received must be attached to the Cabinet Note accompanying the draft Bill which is sent to the Union Cabinet for approval to be tabled in Parliament. These views must also be shared with the Department-related Parliamentary Standing Committee when the Bill is referred to it for detailed consideration. The draft Bill must be accompanied with a simplified version along with financial implications of the proposed law as well as an assessment of the likely impact of the new law if approved by Parliament. This is necessary to enable people to understand the legislative proposals and their likely impact better without having to struggle through the difficult legalese in which the provisions are drafted. The requirement of public consultation may be dispensed with in special cases but reasons must be appended to the Cabinet note for such decisions. However the policy provides for an escape route where a department may get away without disclosing the text of the Bill but only a summary and objectives of the proposed legislation. This discretion will have to be ring-fenced through a more detailed protocol for pre-legislative consultation which will specify the narrow list of circumstances in which disclosure of the draft Bill may be dispensed with.

This is a timely acceptance of a longstanding demand of civil society actors that people be consulted with before laws are made. This way people will have a greater role in shaping the law. The Whistleblowers Protection Bill was passed by the Rajya Sabha on the last day of Parliament's last session (21 Feb. 2014) after a discussion that lasted barely an hour. The pre-legislative consultation policy will help open up opportunities for the people to directly participate in the process of lawmaking and over a longer period of time. CHRI, the National Campaign for People's Right to Information and several other civil society actors, academics and mediapersons have been demanding that such a pre-legislative consultation policy to be put in place for quite some time now. The National Advisory Council had also recommended such a policy to the Government a couple of years ago.

However being only a policy of the executive, I have my doubts whether it will be enforceable in a court of law. In order to make it enforceable it could be incorporated in the General Clauses Act, 1897 which provides for a procedure for consulting people on draft Rules made under any enactment (see 2nd attachment containing this argument and some details of pre-legislative consultation processes in the UK and Canada). This way people can move courts if the draft legislative proposals are not placed in the public domain. 

Further, this policy does not go far enough. After the process of consultation is over people will not get to know in which form the Bill will be presented to the Union Cabinet for approval to be tabled in Parliament. Conventional practices of maintaining confidentiality of a draft Bill until it is tabled in Parliament under the pretext that it becomes the property of Parliament is an obsolete argument. No clear purpose is served in keeping a draft legislation secret for a few days before it is tabled in Parliament, unless it is a Money Bill. Perhaps the Money Bill (such as a budget) may have to be kept secret until it is tabled in Parliament to prevent unscrupulous businessmen from profiteering unethically. There does not seem to be any excuse for keeping other draft legislation secret as it will become public soon after it is tabled in Parliament. If people know what is in the draft Bill approved by the Cabinet, they will have more time to contact their representatives in Parliament to share their views with them on the Bill and demand changes. Experience has shown that there is many a slip between the cup and lip. So ideas received in the course of public consultation may not find mention in the final version of the draft Bill tabled in Parliament. So it is necessary to remove the veil of secrecy form the lawmaking process except in the context of Money Bills.

Nevertheless this is an important step towards implementing Section 4(1)(c) of the Right to Information Act (RTI Act) which requires every public authority to make all facts and figures public while formulating important policies or decisions.
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