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Secrets and Lies by Smitha Verma

Biraj Patnaik, principal adviser to the Supreme Court commissioners on the right to food, is up in arms against the National Food Security Bill. “Despite multiple meetings and many suggestions put forward, what we have is a mockery of a bill. The government has made a dog’s breakfast out of the right to food bill,” he exclaims.

Patnaik’s is not a one-off complaint. Some argue that the country’s law-making process is much too opaque and that an act rarely includes suggestions voiced during discussions.

But the government, a minister asserts, does incorporate proposals from activists and others while enacting laws. “It is only fair to take the views of everyone, especially when legislation will have an over-arching impact,” says minister of state for planning Ashwani Kumar. The government takes inputs at various levels and incorporates suggestions which would benefit a “larger” section, he says.

But what irks activists is that there is very little transparency in what goes into giving the bill its final shape. “Unlike in Western nations, the stakeholders may or may not be taken into confidence before drafting,” says Patnaik.

Enacting a new law or making amendments follows a process that is set out in the Constitution. Once the government decides to introduce a law or an amendment, the concerned ministry drafts its text, or the bill, which is then sent to other relevant ministries for their feedback. The bill is vetted by the law ministry and presented to the Cabinet for approval. After approval, it is introduced in Parliament for discussion.

“After a bill has been introduced in Parliament, it is referred to the standing committee, which considers the broad objectives and specific clauses of the bill, and may invite public comments on it,” says Kaushiki Sanyal, senior analyst at PRS Legislative Research, Delhi.

Every bill goes through three readings in both Houses of Parliament before it goes to the President for approval. And only then does it become an act.

However, civil society members argue that a bill needs to be discussed even before it is tabled in Parliament. “There is a need for extensive pre-legislative debate as this is crucial to policy formulation and effective legislation,” says Nikhil Dey, co-convenor, National Campaign for Peoples’ Right to Information (NCPRI), a body led by social activist Aruna Roy.

NCPRI members have been demanding pre-legislative debate for over a year now. “Though section 4 (1)(c) of the Right to Information (RTI) Act says the government must provide all information while making any policy, the process has not been established,” says Dey.

The lack of pre-legislative debate is just one part of the problem. What activists are particularly exercised about is that the government tends to overlook the suggestions deliberated upon.

Take the Lokpal Bill. Civil society members had asked for certain key points to be included in it, such as bringing the judiciary and the Prime Minister under its ambit. However, when the bill was tabled in Parliament it was found that these provisions had been left out.

Again, when the draft of the Food Security Bill was put up on the website of the National Advisory Council, experts and activists responded with their comments and suggestions. One of the key objections to the bill was that it froze the BPL (below poverty line) category for five years. Critics said there should be no categorisation of the poverty line, and if there was, the time frame should be kept flexible.

“People in rural areas who are above the poverty line can suddenly become BPL owing to floods or famines,” says Vipul Mudgal, project director, Centre for the Study of Developing Societies, Delhi.

But the suggestions were largely overlooked in the new draft bill on the agriculture ministry’s website. “What we have is a watered down version of the suggestions,” says Mudgal.

Still, some would argue that it’s the job of the government and Parliament — that is, the elected representatives of the people — to decide on what goes into a bill, not that of unelected members of so-called civil society. And minister Kumar points out that the government has to incorporate diverse views. “At the end of the day, it has to balance competing views and as a result some may feel left out. There will be instances when the government may not have taken a particular suggestion into the bill, even after agreeing with it, but that’s due to inadequate resources,” he says.

But activists believe this happens on too many occasions. They point out the National Green Tribunal Act, 2009, bypassed the voices of dissent. Activists had demanded that there be no time limit for claiming damages owing to environmental disasters. The government ignored the demand, setting a stipulation of five years. In other words, someone who is diagnosed with asbestosis, a fatal disease that tends to strike miners and has a latency period of 10 to 15 years, stands little chance of being compensated for his ailment.

Of course, there are exceptions to the rule. A case in point is the Land Acquisition and Resettlement Bill where the ministry sought inputs from experts and citizens even before the bill was drafted.

The ministry can invite comments from anyone on a bill by putting it out in the public domain. “However, this process isn’t mandatory. It should be made mandatory for every bill instead of leaving it to the discretion of the ministry,” says Sanyal.

A bill can actually become stronger when it incorporates the recommendations of experts. “The inheritance laws for women in the Hindu Succession Act were weak. But our suggestions to remove gender inequality in the inheritance rights of agricultural land were incorporated in the 2005 amendment, which made it a stronger law,” says Bina Agarwal, director, Institute of Economic Growth, Delhi.

The RTI Act too included the views of people campaigning for the right to information. “Citizen groups came forward to participate in the process of law-making in this case,” says Dey.

Experts say that often the government fails to invite comments and suggestions from the public while framing a law because it does not know whom to ask. A good way of making the procedure transparent, says Mudgal, would be to keep gram sabhas in the loop while discussing bills such as the Land Acquisition Bill.

But with diverse views on a subject, the question that crops up is how the law can take every proposal into account. “The need to incorporate every suggestion doesn’t arise as not everything is relevant. The person making the suggestion has to depose before the committee on why it should be accepted and that’s not an easy task,” asserts Congress MP Sudarshan Nachiappan, who was the chairman of the standing committee deliberating the RTI bill.

The committee received about 100 recommendations from various stakeholders. “We made 138 amendments to the bill and it was accepted by Parliament,” he says.

Dey doesn’t agree that it is a case of too many cooks spoiling the broth. “Many opinions will just strengthen the bill. There is no question of dilution,” he asserts.

Needless to say, the demand for transparency in the law-making process will only get stronger in the coming days. The ball is now in the government’s court to evolve an inclusive legislative process that is feasible and fair.