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When the state listens -MR Madhavan
-The Indian Express


Pre-legislative scrutiny is a first step towards greater transparency in law-making.

The committee of secretaries chaired by the cabinet secretary has decided that all bills proposed by the government should go through a process of pre-legislative scrutiny. This follows the recommendation of the National Advisory Council, which had suggested that all bills be taken through this process in order to garner public feedback at an early stage.

Let us quickly review the process by which government bills are passed. Each bill is drafted by the concerned administrative ministry in consultation with the law ministry and other relevant ministries. During this process, the ministry may consult experts and various stakeholders - this is not mandatory.

In some cases, the ministry publishes a draft bill for public feedback (as, for example, in the cases of the right to education and land acquisition bills). Then the bill is taken to the cabinet for approval. The minister introduces the bill in Parliament, when it may be referred to a standing committee for examination. This is not a mandatory step, and as for now about two-thirds of all bills are referred to the committee. Then the bill is taken up for consideration and passing in each House, where there is detailed discussion and amendments are made. Finally, the bill is sent to the president for his assent, and thereafter deemed to be an act of Parliament.

The process of pre-legislative scrutiny decided by the committee of secretaries adds a mandatory step at the initial stage. It requires the administrative ministry to proactively publish proposed legislation on the internet and other media. This publication should include the draft bill as well as a brief justification for such legislation, essential elements, broad financial implications and an assessment on environment, fundamental rights, lives and livelihoods of affected people, etc. This note should be made available for at least 30 days for public feedback. The summary of the feedback should be published for public comments, and made available to the standing committee of Parliament when it examines the bill after introduction. There may be exceptional circumstances when this process cannot be followed, and in such cases, the ministry must record the reasons for not doing so.

This is an excellent first step to increase transparency in the law-making process and increasing public participation in it. This recognises the fact that it is much easier to make changes to a proposed law at an early stage than at a later stage in Parliament, when various political parties have taken a stance and may find it difficult to change their positions. That said, the government can make more changes to strengthen the process.

The key fact to recognise is that it is Parliament that makes law. The government only proposes any new law - and in theory, any MP may do so through a private member's bill. That this system is not used - the last such bill was passed in 1970 - is the subject of another article. The pre-legislative process can be extended to Parliament, as has been done in the UK.

In Britain, the government publishes a list of all bills it proposes to introduce at the beginning of each year. (Note that a parliamentary session lasts a year in the UK, and we follow a similar system of publishing a list at the beginning of each session of Parliament.) The draft versions of bills are then sent to a parliamentary committee, which takes public comments and consults experts. Its report is then made available to the government, which may make suitable changes before introducing the bill in Parliament.

The pre-legislative scrutiny is not done for every bill, and there is a demand by several British MPs that it should be taken up for all bills other than those that make minor changes. It is also important to note that each bill, including those that went through the pre-legislative scrutiny by a parliamentary committee, has to be examined by a parliamentary committee in each House of Parliament. This is a mandatory step before the bill is taken up for discussion in the House.

It may be useful to include two steps in our process of enacting a new law. First, there should be pre-legislative scrutiny by standing committees of draft bills. A start could be made by taking up this process only for bills seen to have a significant social or economic impact. Second, the process of scrutiny by standing committees could be made mandatory for all bills.

In order to strengthen the process, a few other changes are required. Committees need to be provided with specialised research staff. With many new laws being technical in nature, it is important that parliamentarians be provided with research support that helps them understand the nuances of various issues and enables them to take informed decisions in order to balance conflicting interests.

It is also important that MPs judge each issue on its merits and according to their conscience, and that they are not bound by party diktat. While most standing committees have followed this principle, we have seen instances where they have chosen to abide by the party line. The public accounts committee and joint parliamentary committee that examined the allocation of 2G spectrum come to mind. For the process of examination and recommendation by the committee, it is essential that each MP on the committee take an independent view.

Laws enacted by Parliament can have a major impact on the lives of citizens. It should be made incumbent on the government to explain the gaps it is trying to fill and how the proposed legislation does so, and engage with the public in the drafting process. Close parliamentary scrutiny and debate are also essential for ensuring that the objectives and proposals have wide acceptance. The proposed pre-legislative process is a good step in this direction, but Parliament needs to do more to strengthen its processes.

The writer is with PRS Legislative Research, Delhi