Transparency Transparency and Accountability in the Pre Legislative Process P rocess The Right to Information Act 2005 under section 4 mandates that !4"1 !4"1# $very public authority shall% c) publish c) publish all relevant facts &hile formulating important policies policies or announcing the decisions &hich affect public' !
The poor and the vulnerable have sufered systematically because o legislations passed without public participation in the process o shaping it. Equally rustrating is the act that even legislations meant or them, pass them by because they have no knowledge o the Act or its contents. In a participatory process, education is a very important part o its intrinsic contribution to strengthening democracy. democracy. hether they are targets o the victims o legislation, they tend to lose. The transparency and accountability o the pre legislative process is crucially important or a mature and responsible democracy. In the ormulation o the !TI and the "!E#A "A$ % managed to operationalise this process. e now need to draw lessons rom this, and ormulate a system that will ensure that all laws , rom the time o policy to the ormulation o the &nal 'ill will ollow the dialectic o public scrutiny and legal drating. There has been a lot o heated and contentious debate in recent times about the content o legislation and various laws that have been brought to (arliament. A clear indication o how controversial they are, and how much interest there is in almost every sub)ect can be seen rom the nature and scope o the petitions received by the $hairperson and members o the "A$ and the "A$ *ecretariat. Even in the short time that "A$+ has
been been in e-ist -isten ence ce,, peti petiti tion ons s with with re rega gard rd to new/ new/ legi legisl slat atio ions ns under under consid considera eratio tion n includ include0 e0 The $ommun $ommunal al 1iole 1iolence nce 'ill,T 'ill,The he 2ood *ecurity 'ill, The *eeds 'ill, The "uclear 3iability 'ill, The histleblowers 'ill, The Torture 'ill, The 3and Acquisition and !4! 'ills, The '!AI 'ill, The 5I6AI 'ill ,The 3ok (al 'ill, (revention o *e-ual Abuse o $hildren 'ill, 7udicial Accountability 'ill, (olitical !eor eorm m 'il 'illl and $o $ons nsti titu tuti tiona onall Amen Amendm dmen ent/ t/,, 8ini 8ining ng 'ill 'ill,, The 'eggary 'ill La&(ma)ing in India is a process that is becoming increasingly contentious and controversial* A typical +ill is drafted in secret by the concerned government department "sometimes in consultation &ith other departments, and often &ith -ust a fe& bureaucrats hastily preparing a draft#, and this secret draft is approved by the .abinet for presentation before a /ouse of Parliament "or the tate Legislature, as the case may be#* % 1sually, it is only upon its introduction in the /ouse that the cont conten ents ts of the the +ill +ill are are made made publ public ic** The The atte attent ntio ion n paid paid to a typi typica call +ill +ill in Parliament can be deduced from the follo&ing data
- In 200, only 3 of the total Parliamentary time &as spent on legislative business*
- 26 of the total +ills passed in the year by Lo) abha &ere discussed for less than 5 minutes* 9
- 7nly five +ills passed by the Lo) abha in 200 &ere debated for more than three hours*
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Even the main opposition parties are rarely consulted during the drating process. *ee, *uman 7ha, :#overnment not keeping ;pposition on 'oard< The Indian Express %= April >%> available at http0??www.indiane-press.com?news?govt+not+keeping+oppn+on+board+ complains+b)p?@>@=?> /. 6ata provided by (!* 3egislative !esearch, available at http0??www.prsindia.org?inde-.php nameB*ections4idB=4par nameB*ection s4idB=4parentCcategoryB4ca entCcategoryB4categoryB@>4actionBbil tegoryB@>4actionBbillCdetails4bi lCdetails4billCidBDD llCidBDD 9 Even as recently as the ongoing 8onsoon session o the 3ok *abha, the Indian 8edical $ounci $ouncill 'ill 'ill was was passed passed withou withoutt any discus discussio sion, n, promp promptin ting g a novel novel prote protest st rom rom the ;pposition parties. *ee, :hen 3alu became (rime 8inister< The Indian Express > August >%> available at http0??www.indiane-press.com?news?when+lalu+became+prime+minister?@@?> /.
The reason or petitioners?citiFens petitioners?citiFens approaching the "A$ is not only because o the perception that it is a body that has been efec efecti tive ve at dra drati ting ng pro+p pro+peo eopl ple e legi legisl slat atio ions ns lik like the the !TI and "!E# "!E#A, A, but but also also beca becaus use e it has has set set itse itsel l up as an inte inter rac ace e between policy makers and public opinion?civil society. society. The lack o a orum or the many interested stakeholders to e-press their opinion on diferent matters is not only rustrating to them, but does great damage to democratic policy making and the policy itsel. itsel. I there were to be a mandatory Gpre legislative consultative rame ramewo work rkH H adop adopte ted, d, it woul would d prove prove to be o grea greatt pote potent ntia iall bene&t to having much more inormed and potentially bene&cial legi legisl slat atio ion, n, with withou outt curt curtai aili ling ng the the e-ecut ecutiv ive, e, or legi legisl slat ativ ive e prerogative. In act better and more inormed opinion presented to policymakers and legislators beore the ormulation o detailed legislation would ensure that the drat law is ree o avoidable shortcomings. The only opportunity for people to e8press their opinion before passage of the la& is if it is sent sent to a parl parlia iame ment ntar ary y comm commit itte tee* e* +ut +ut Parli Parliam amen enta tary ry .omm .ommit itte tees es scrutinise and report of only those +ills that are submitted to them by the /ouse* /o&ever, e8tremely significant and controversial legislation li)e the $9 Act &as not not even even sent sent to a comm commit itte teee befo before re its its pass passag age* e* In addi additi tion on,, give given n that that the the functioning of these committees is :uite opa:ue, and the fact that not all +ills go to committees, this forum is necessary, but clearly not one that meets the needs or covers covers the advant advantage agess of pre legisla legislativ tivee consul consultat tation ion** In fact fact preleg prelegisl islati ative ve cons consul ulta tati tion on is boun bound d to ma)e ma)e Parl Parlia iame ment ntar ary y .omm .ommit itte teee deba debate te far far more more enlightened * ;a)ing ;a)ing the conten contents ts of draft draft +ills +ills rests rests on the magnanim magnanimity ity of the ;inistry ;inistry concerned' this despite the legal duty imposed by the Right to Information Act to
8r *omnath $hatter)ee made some unsuccessul attempts to make the proceedings o (arliamentary $ommittees transparent during his tenure as the *peaker o the 3ok *abha. *ee, *unetra $houdhry, :3ok *abha *peaker bats or ;pen (roceedings< (roceedings< NDTV = 8arch >> available at http0??www.ndtv.com?convergence?ndtv?story.asp-idB"EE">>>>9%%> /.
# aptly summed up the benefits of pre(legislative scrutiny thus There is almost universal agreement that pre(legislative scrutiny is right right in princi principle ple,, sub-ec sub-ectt to the circ circums umstan tances ces and and nature nature of of the legislation* It provides an opportunity for the /ouse as a &hole, for individual individual bac)bench bac)benchers, ers, and for the 7pposi 7pposition tion to to have have a real input input into the form of the actual legislation &hich subse:uently emerges, not least because because ;inisters are li)ely li)ely to be far more receptive to suggestions for change before the +ill is actually published* It opens Parliament up to those outside affected by legislation* At the same time such pre(legislative scrutiny can be of real benefit to the ?overnment* It could, and indeed should, lead to less time being needed at later stages of the the legi legisl slat ativ ivee proc proces ess* s*** **** ** Above bove all, all, it shou should ld lead lead to bett better er legislation and less li)elihood of subse:uent amending legislation* @ This point of principle is borne out by our e8perience in India too* The last session in the Ra-ya abha for instance sa& members from different parties raising issues about the Torture +ill * The te8t of the Prevention of Torture +ill &as )ept secret until it &as presented in the Lo) abha, &hich passed it in the +udget ession in 2030 after a brief debate late in the evening "in &hich not a single ;P from the main main 7pposi 7ppositio tion n parti parties es partic participa ipated ted#* #* Instea Instead d of provid providing ing a compre comprehen hensiv sivee mechanism for dealing &ith torture in India, not only does it fall &ay short of its stated stated ob-ect ob-ective ive of enforc enforcing ing intern internati ationa onall obliga obligatio tions ns under under the .onven .onventio tion n Against Torture, it effectively establishes an impunity regime for public servants accused of torture* J It has no& been sent to a select committee, but many of its obvi obviou ouss anom anomal alie iess &oul &ould d not not have have been been there there in the the firs firstt plac place, e, had had it been been =
*ection %/c/ o the !ight to Inormation Act >>=. *elect *elect $ommitt $ommittee ee on 8oder 8odernis nisat ation ion o the Kouse Kouse o $ommons $ommons,, :2irs :2irstt !eport0 eport0 The legislative process<, process<, 9 7uly %DDJ, K$ %D> %DDJ+D, para > available at http0??www.publicati http0??www .publications.parliament. ons.parliament.uk?pa?cm%DDJD?cmsel uk?pa?cm%DDJD?cmselect?cmmodern?%D>i?m ect?cmmodern?%D>i?md>%>.htm d>%>.htm// . @
discussed in the public domain at the stage of formulation and drafting* ometimes &e end up &ith unpopular la&s even if the government=s intentions are benign* Acts made &ithout consultation &ith sta)e(holders often meet strong protests by sta) sta)e(h e(hol olde ders rs afte afterr they they have have been been duly duly pass passed ed by Parl Parlia iame ment nt** The The .ode .ode of .riminal Procedure "Amendment# +ill, 200@ &as one of the eight +ills that the Lo) abha passed in a matter of a fe& minutes in ecember 200* $ven though the content of the Act &as, on the &hole, imi imila larl rly y, the the Bhis Bhistl tleb eblo lo&e &ers rs +ill +ill &as &as intr introd oduc uced ed in Parl Parlia iame ment nt afte afterr an unnecessa unnecessary ry secret secret and closed drafting drafting process, not ta)ing ta)ing on board the obvious obvious suggestions many anti(corruption and RTI activists have regarding the safety and security of &histleblo&ers* Bhile the points mentioned above pertain to central legislation, the state of affairs &ith respect to state la&s must be assumed to be &orse%for as a rule, state legislatu legislatures res tend to receive receive a lesser lesser degree degree of attention attention from media, and therefore get a&ay &ith greater secrecy, the legislative legislative assemblies sit for much less time, and the debate in the public domain is almost al&ays after the la& has been passed* Bhat &e have, therefore, is an absence of direct participation of the people in the la&(ma)ing process, and increasingly &ea) representative bodies entrusted &ith the tas) of la&(ma)ing* It is &ith some urgency, therefore, that &e must attend to the need to democratise la&(ma)ing in India*
An Agenda for Reform Bhat follo& are certain suggestions for reforming the la&(ma)ing process at the pre(legislative stage* All but the the final suggestion can be implemented by changes changes in practice and conventions, although giving them a statutory basis &ill put them on surer foundations* I do not endorse all of them and mention them only to open up a debate by e8ploring some of the possibilities
- All ma-or +ills and policy pronouncements must start life in an e8ploratory ?reen Paper, &hich outlines the broad policy ob-ectives in order to stimulate a public debate*
- A ?reen Paper must be follo&ed by a Bhite Paper, &ith concrete proposals by the government specifying specifying the direction it &ants to proceed in* J
*ee generally, Tarunabh Lhaitan, :A 'ill 6esigned to 2ail< The Hindu %D 8ay >%> available at http0??www http0??www.thehindu.c .thehindu.com?opinion?op+ed?articl om?opinion?op+ed?article99%.ece e99%.ece/. /.
- $very draft +ill, &hether or not it &as preceded by ?reenCBhite Papers, must be placed in the public domain at least t&o months before being introduced in the legislature* All ?ree ?reen n and and Bhit Bhitee Pape Papers rs and and draf draftt +ill +illss of the the .ent .entra rall and and tat tatee - All gove govern rnme ment ntss shou should ld be publ publis ishe hed d in a sepa separa rate te sect sectio ion n of the the 7ffi 7ffici cial al ?aDette and on a dedicated &ebsite so that they are easily accessible "in $nglish and /indi as &ell as other languages#, &ithout being dro&ned by other information* The 7fficial ?aDette itself should be freely available* +ills must also specify specify the name and - All ?reen and Bhite Papers and draft +ills cont contac actt deta detail ilss of the the offi office cerr resp respon onsi sibl blee for for rece receiv ivin ing g comm commen ents ts and and suggestions from the public and from sta)eholders*
- The government must also proactively identify and consult sta)eholders at each stage*
- The ;odernisation .ommittee of the /ouse of .ommons has recommended that parliamentary committees should also be consulted on draft +ills before their te8t is finalised D %a recommendation &orth considering in the Indian conte8t as &ell*
- All the comments and suggestions received on the Papers and the +ill must them themse selv lves es be publ public icly ly avai availa labl ble* e* They They,, alon along g &ith &ith the the gove governm rnmen ent= t=ss resp respon onse se,, shou should ld be org organis anised ed and and appe append nded ed to the the te8t te8t of the the +ill +ill "preferably by an independent body# &hen introduced before a legislature*
- Bhen urgent legislation is necessary, any of these pre(legislative process re:uirements may be &aived by the legislature through a resolution to that effect, before it can ta)e up the urgent +ill for consideration* Legislation passed &ithout pre(legislative consultation may be re:uired to be brought before the legislature for a mandatory mandatory revie& after a specified time(limit* time(limit*
$opies o the ;Mcial #aFette, which contains all oMcial noti&cations rom #overnment, are currently currently available only on payment o a eeN *ee, http0??egaFette.nic.in? D 8odernis 8odernisatio ation n $ommittee $ommittee see note Error0 Error0 !eerence eerence source source not ound/ ound/ para 9>0 :...we believ believe e that that in genera general, l, unles unless s there there are are unusua unusuall circum circumsta stance nces, s, there there are are signi& signi&can cantt bene&ts in drat bills being considered by a committee o the Kouse.<
This is just a draft set of suggestions. Arriving at a well thought out pre legislative consultative framework, itself needs to go through a consultative process. However , there is no doubt that it would democratise the law-making process, process, allow for more enlightened enlightened legislative drafting, drafting, and allow much greater greater participation b the citi!en and the broad categor of civil societ. Eor the FA., it &ould in a sense mean the institutionalising of one of its main functions &ithin the frame&or) of democratic governance* It &ould give an avenue for each department to have much broader interactions !&hile formulating la& and policyG * The FA. &ould then be free to ta)e up only those la&s and policies that it has mar)ed as its areas of immediate priority* Einally, the greatest advantage of such a process, is that it &ould democratise and strengthen the e8ecutive and legislatures capacity to dra& on e8pertise and the involvement of the Indian citiDen, &ithout undermining e8ecutive or legislative prerogative*
