Pre-legislative Scrutiny: Comparative Lessons

The debate on how we make laws has intensified in light of the disagreements on the Jan Lokpal Bill. Shamnad made an important point earlier on this blog that there is a democratic deficit in the law-making process at the moment, which needs to be corrected.

It is in this context that ‘A Comparative Survey of Procedures for Public Participation in the Lawmaking Process: Report for the National Campaign for People’s Right to Information‘ is significant. The Report was commissioned by the NCPRI, written by Oxford students from India, South Africa and Switzerland and published by the Oxford Pro Bono Publico.
The report surveys pre-legislative and legislative processes in South Africa, Canada, the United Kingdom, Switzerland, the United States of America and the European Union in order to set out certain suggestions that may facilitate a fair, transparent and effective manner of enabling public participation in similar processes in India. In addition to information on international law provisions recognising the right of public participation, the report discusses participatory mechanisms in domestic jurisdictions under the following categories: (a) source of obligations to ensure public participation (b) types of instruments for which public participation is encouraged (c) manner of facilitating public participation (d) groups/entities involved in consultation and (e) practical problems hindering effective participation and the drawbacks of participatory procedures. Most of us are aware of the dangers of comparative law, but we should also be alive to its uses. Just because South Africa or the United Kingdom adopts one approach, it is not reason enough for India to follow suit. But when we are trying to confront similar problems, it is worth looking at how others have tried to solve them, if only to learn from their mistakes. The robust South African approach to pre-legislative public participation is particularly noteworthy.
Written by
Tarunabh Khaitan
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  • Great work. I think this sort of comparative analysis is quite helpful – there was a push in the '90's and early 00's (and perhaps today) to advocate for administrative procedure acts in many countries. India never adopted one (or even tabled one as far as I know), but I think it would make sense to examine in more detail whether such an Act would be useful for India, particularly to help democratize its bureaucracy.

    I was wondering though if in your research you came across other countries that so formally delegated legislative drafting to outside groups like the NAC or the hybrid lok pal drafting committee?

  • Dear Nick, thanks for your comment. I think our current Law Minister was heavily invovled in the Second Administrative Reform Commission under UPA-I, but I believe most of its recommendations are gathering dust.
    The research in this report was done by students, I only supervised it. But as far as I can tell, there is no example of a quasi-formal delegation of the legislative function to a body outside the constitutional legislature in any of the jurisdictions we have looked at.

  • Seminal work of lasting importance. Great work, Tarunabh and team. I will read it in detail during the weekend and come back with comments. It may be sueful to include some examples of public consultation to give an idea of how the process works in practice. For example, how many suggestions were incorporated and how many were not. Were reasons given as to why some suggestions were rejected? This is necessary for any consultation to be true to the spirit of participation.

    Venkatesh Nayak, India

  • The ARC had qualified its recommendation with the remark that a perverse mind defies any reform or remedy. The crux of our problem in law enforcement and implementation is the lack of willingness on the part of the public functionaries to take take responsibility in carrying out their core functions. This has led to perversion being the basic tone in the functioning of every institution. Law making is also approached with the same attitude. More often than not, a new enactment is attempted to evade responsibility for the present predicament rather than to solve the crisis and fine tune the institutions.