Legislation by committees

Show the UPA government an issue of concern and it will show you a committee. Perhaps all governments need expert help in framing policy. What makes the present situation unique is a curious result of legislative inaction and judicial enthusiasm which appears to be transforming the role of these committees from advisory to legislative bodies. Take the example of the Sorabjee Committee on Police Reforms – the Executive appoints a Committee to look into the matter – its recommendations don’t receive a response from the legislature – the Supreme Court adopts these recommendations and gives them a legal colour. The same story is repeated with the recommendations of the Lyngdoh Committee on student politics. Given the sheer number of committees that this government has appointed, the possibilities of judicial/committee legislation are enormous.

The trend adds a new dimension to the old separation of powers debate. Adopting the recommendations of expert committees may be the judiciary’s way of responding to the charges of judicial inexpertise in dealing with polycentric policy matters. But the charge of democratic deficit remains unanswered. Should we be worried? Committee watchers should certainly look out for the Menon Committee looking at the Criminal Justice System.

Written by
Tarunabh Khaitan
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  • Thanks for this interesting inaugural post. While this phenomenon is interesting, I wonder whether you are right in placing the blame for this at the door of the UPA government. The Supreme Court seems to have adopted this procedure in several cases, starting from the early PIL cases. In the 90s, this appears to have become quite commonplace. Recall for instance, how often the Supreme Court requisitioned the services of NEERI in important environmental cases to essentially conduct its investigations and often lay down policy decisions. The Court similarly asked the NHRC to investigate and make findings upon the Punjab Police killings, and in the Sakshi case, asked the Law Commission to look into sexual offences, and later incorporated its findings. I think there are several such examples.

    This seems to be an institutional choice exercised by the Supreme Court over a fairly long time, and such cases can be found during the various regimes that we’ve witnessed since the late 80s.

  • This is an issue that is likely to dominate the legislature/judiciary debate in the foreseeable future. With the legislature being too busy otherwise to make laws, it is possible the judiciary will further venture into making laws. Its true that appointing committees protects the court against charges of lack of expertise. As Arun also points out this practice is reasonably “old” now. But where does the court derive these powers to appoint a “committee” to look into issues of policy? Appointing a fact finding commission in the context of a matter before the court is one thing, but appointing a committee to recommend policy is completely another thing. That is clearly the role of the executive or legislature. Institutional choice and precedent apart, is the Court vested with such a power by the Constitution?

    Is anybody aware of a comparable practice in the US,UK or other jurisdictions?

    The argument based on democratic deficit is something that is unlikely to be answered. Appointing a committee does not help in answering this objection as Tarunabh points out. However, there is an increasing trend among “policy activists” to approach the court to achieve their objective of “enlightened policy” due to their inability to influence legislators or frustration at the lack of interest in the legislators. While there have been successful instances because of this approach, there have been disastrous consequences as well. The mess that has resulted in professional educational admissions is an example.

    It may be interesting to study what effect the Courts’ law and policy making has had in practice. I am aware of a study by Lavanya Rajamani into the impact of policy choices made by the Court in environmental cases, but am not sure if there is any other similar study.

  • Thanks for your comments. And thanks to Arun for pointing out that this is not a new strategy. But am I right in thinking that this government is particularly technocratic in its enthusiasm for establishing expert committees? I was also wondering if anyone knew whether minutes of the debates in Parliamentary Committees, which probably do most of the legislative business, are made public? I couldnt find any on the Parliament’s website.

  • The minutes of debates in Parliamentary committees are available in Parl. library for reference.