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.