Reforming the Pre-Legislative Process

Author(s): TARUNABH KHAITAN

Source: Economic and Political Weekly , JUNE 18-24, 2011, Vol. 46, No. 25 (JUNE 18-24,
2011), pp. 27-30
Published by: Economic and Political Weekly

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 COMMENTARY

mere consultation, and draws upon the

Reforming the Pre-Legislative notion of "public reasons" from the Rawl
sian tradition: the idea that decisions must
Process be justified by reasons that can be accept
able to others. Inasmuch as access to in
formation is an essential precondition for
TARUNABH KHAITAN
deliberation, the Right to Information Act
(rti) 2005 was an important, if small, first
Reforms are required to step towards our evolution from a repre
ensure that public debate andurban middle India's anger against sentative to deliberative democracy.
The recent public
corruption and the debatedemonstration
on the of
deliberation precede rather Intrinsically Good
merits of the Jan Lokpal Bill that followed
than merely follow legislative
highlighted a serious democratic deficit Deliberative democracy based on public
enactments. They may strengthen
in our lawmaking process. As an ad hoc fix reasons is good intrinsically as well as in
for this particular
the State's capacity to draw upon issue, a joint committee strumentally. Its intrinsic good lies in the
comprising government representatives and fact that participants are treated as free
the expertise and experiences
from sections of civil society was formed and equal, that they have the right to
of Indian citizens, and may,
to come up with a draft anti-corruption have a say in decisions that affect them,
ultimately, help us take a legislation.
fewHowever, we should take this and that they are shown respect by being

more steps towards opportunityinto

evolving to consider structural changes offered reasons acceptable to them by
which will institutionalise public partici other participants. It is good instrumen
a robust deliberative democracy.
pation in the pre-legislative process in India tally because participation and delibera
more generally and nudge ourdemocracy tion lead to better decisions, while, laws
towards greater deliberation. passed secretively and hurriedly tend to
For the founders of the Indian Constitu be bad laws.1 Often, governments use the
tion to constitutionalise representative opaque process to hurry through laws
democracy in the context of post-war they know will be unpopular.2 The text of
ideological uncertainties and in the face the Prevention of Torture Bill was kept
of doubts over the political wisdom of In secret until it was introduced in the Lok
dia's illiterate poor was audacious. While Sabha, which passed it in the budget
ideological uncertainties continue to exist session in 2010 after a brief debate late in
in some quarters, the founding faith in the the evening (in which not a single member
political wisdom of Indians, on the whole, of Parliament from the main opposition
stands vindicated. For all its aspirational parties participated). Instead of provid
foresight, however, a constitution must ing a comprehensive mechanism for deal
always be seen as providing a minimum ing with torture in India, not only does it
threshold - a floor - over which successive
fall way short of its stated objective of
enforcing international obligations under
generations must build, rather than as an
upper limit - or a ceiling - for our progresthe Convention Against Torture, it effec
sively evolving political aspirations. Reptively establishes an impunity regime for
resentative democracy, entitling citizens
public servants accused of torture.3 It was
to choose their representatives to makeonly after civil society made represent
decisions on their behalf every five years,ations to some members of the Rajya
may have been audacious in 1950; but it isSabha that the latter referred the bill to a
thoroughly insufficient in 2010. Mind you,select committee, whose report has rec
I do not doubt its importance or continuedommended extensive amendments to the
relevance for a moment. It is, however, the
shoddy initial draft.4 Getting it right the
proverbial floor, and to build on it hasfirst time around would have been so
been long overdue. much better.

It is in this context that we must recog Sometimes we end up with unpopular

nise the increasing academic, politicallaws even if the government's intentions
and even judicial interest in deliberativeare benign. Acts made without consulta
democracy, essentially a system of politition often meet strong protests by groups
Tarunabh Khaitan Ctarunabh@gmail.com) is at
cal decision-making that relies on publicwho are affected by it after they have been
Christ Church College, University of Oxford,
deliberation to make policy. It is worthduly passed by Parliament. The Code of
Oxford, UK and teaches law.
noting that "deliberation" is a step beyondCriminal Procedure (Amendment) Bill,

Economic & Political weekly EHIEtS june 18, 2011 vol xlvi no 25 27

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COMMENTARY

2008 was one of the eight bills that

aspectsthe
of deliberation.9 While the time to vote freely, thereby ensuring that mps
Lok Sabha passed in a matter of devoted
a few to legislative business by our primarily represent their political parties
minutes in December 2009. Even legislatures
though is worrying, there are otherrather than their constituents.11 Many of
whole,of their institutional design these concerns have been well documented
features
the content of the Act was, on the
benign, it ran into deep trouble with
which make deliberation difficult. Although in our public discourse.
standing
the lawyers' associations for a variety ofas well as ad hoc parliamentary
Absence of Mechanisms
reasons.5 The government exercised its often do good legislative work,
committees
they usually take up detailed considerationIt is the second drawback - the absence of
veto over the duly enacted parliamentary
of bills
Act by refusing to bring it into force andonly after these bills have beenmechanisms to enable civil society to delib
returning to Parliament to meet some of the referred to them for scrutiny.10 erate over laws before they reach and are
specifically
objections. One cannot blame the Not
lawyers
all bills are automatically scrutinisedpassed by legislatures - which has received
for protesting after the law was by these committees: extremely significantrelatively less attention. Lawmaking in
enacted,
for it is only at this stage that theyand controversial legislation like the SpecialIndia is a process shrouded in mystery. A
become
aware of its provisions. If they had beenZones Act, for example, was not typical bill is drafted in secret by the con
Economic
consulted while the law was being
sent tofor
a parliamentary committee before cerned government ministry (sometimes
mulated, resort to the exercise its
ofpassage.
a de Standing committees that perin consultation with other ministries), and
facto veto by the executive would
formhave
legislative functions are a relatively this secret draft is approved by the cabinet
been unnecessary.6 recent innovation in India and the overall for introduction before a house of Parlia

All of the above examples are instances ment (or the state legislature, as the case
verdict on their role in scrutinising legisla
where the lack of deliberation was made tion must be reserved. Ad hoc committees,
may be).12 Usually, it is only upon its intro
up for by subsequent (legitimate and however,
ille duction in the house that the contents of
are dissolved after they have
gitimate) interventions. In most cases,
scrutinised the assigned bill, and thereby
the bill are made public.
poorly deliberated laws manage to make
fail to generate any institutional memory The legislative process, as it currently
or capacity. In any case, committee pro
their way into the statute books and con stands, does not even require informing the
ceedings themselves remain opaque, people of the content of putative laws until
tinue to blight our lives for decades there
after. This problem arises because our
making an evaluation of their perform
the very last minute, let alone consulting
ance difficult. Furthermore, there is no
lawmaking processes and institutions suffer them. Making the contents of draft bills
from two major drawbacks: constitutional requirement for legislativepublic rests on the magnanimity of the
involvement in India's accession to inter
- bodies that are constitutionally authorised ministry concerned; this despite the legal
to make laws, although representative,
national law instruments. Finally, para duty under section 4(i)(c) of the Right to
are not deliberative enough, and Information Act to "publish all relevant
graph 2(1) (b) of the 10th Schedule of the
- current institutional structures do not Constitution takes away an mp's freedom
facts while formulating important policies
facilitate the participation of the people at
large in the pre-legislative process. It is
assumed that their interests will be voiced RAJIV GANDHI INSTITUTE OF
by their chosen representative effectively,
comprehensively and sincerely.
CONTEMPORARY STUDIES (RGICS)
The work being done by prs Legislative The Rajiv Gandhi Institute for Contemporary Studies is an independent national policy think tank
Research in Delhi has highlighted some ofpromoted by the Rajiv Gandhi Foundation. RGICS carries out research and policy development on
the issues concerning the first drawback. contemporary challenges facing India. RGICS seeks applications forthe following positions:
The winter session of Parliament in 2010, 1. Fellow (Positions-2, Delhi) to assist the Director, RGICS in development and delivery of
where hardly any legislative business was institutional strategies, strategic planning, monitoring and evaluation; preparing budgets;
establishing and managing partnerships; resource mobilization; and communication and outreach.
conducted, is an extreme example. But
Minimum Requirements: Post Graduate in the Social Sciences/MBA/L.L.B.; 4years of work
even in a more typical year in 2009, they
experience in strategy, policy or programme development, monitoring or evaluation for
have found that7
knowledge-based institutions; excellent research, analytical and management skills; excellent
- Only 16% of the total parliamentary English speaking and writing skills; and effective Interpersonal skills.

time was spent on legislative business.
- 27% of the total Bills passed in the year
by Lok Sabha were discussed for less than
five minutes.8
- Only five bills passed by the Lok Sabha
were debated for more than three hours.
From the limited data available with re
spect to state legislatures, C V Madhukar
of the prs claims that they tend to fare
worse than the national Parliament on all
2. Research Associate (Positions-2, Delhi) to assist the Director, RGICS and Fellows in data
collection, research and analysis and in the preparation of strategy papers, proposals and other
documents as required.
Minimum Requirements: Graduate in Social Sciences including Law; excellent research,
analytical and writing skills in English, excellent computer skills (including Word, Excel, SPSS and
GREP desirable) and effective interpersonal skills.
The positions offer a competitive remuneration.
Interested applicants should e-mail their applications and resume including the list of papers
published to jobs@rgfindia.com with "Position Applied for: " in the subject line,
latest by 30th June 2011 .The shortlisted candidates will be interviewed in Delhi in early July, 2011.

28 june 18, 2011 vol xlvi no 25 iaav< Economic & Political weekly

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 COMMENTARY

or announcing the decisions which affectexemption under section 8(i)(i) wouldStates,

not Switzerland, and the European
public" (emphasis added). apply to deliberations leading to the Union to And processes that facilitated
It is the content of this precise dutyformulation of a policy framework until public participation in lawmaking and
which was in question before the Centralsuch time as the draft was submitted by several suggestions in light of their
made
Information Commission in two importhe relevant ministry to the cabinet secre insights from comparative law. Their sug
gestions included provision for a strong
tant cases. At first glance, it seems obvioustariat. Thus when a cabinet note is finally
that draft bills fall within the purview ofapproved for submission to the cabinet
constitutional foundation for public par
s 4(i)(c). Thus, in the case of Venkateshthrough the cabinet secretariat, section ticipation in the pre-legislative process in
Nayak vs Chief Secretary, Government of line with the robust South African consti
8(i)(i) will apply. In addition, section 8(i)(c)
Delhi,13 the commission directed the resexempts all information "the disclosure
tution.
of Chastened by the mistakes made
pondent government elsewhere,
which would cause a breach of privilege of they warn against agency cap
Parliament or the State Legislature".ture
No of any pre-legislative process by elite
to develop a credible mechanism in all de
partments for proactive and timely disclosureone is quite sure what the scope of groups
legisla with disproportionate influence.
Some of their key suggestions are con
of draft legislations/policies and amend tive privilege in India really is, but it seems
ments thereto or to existing laws/policies inthat once approved by the cabinet fortained
plac in the following paragraph:
the public domain, as required under Section ing before the legislature, section 8(i)(c)
The best ways of facilitating public partici
4(1) (c) of the rti Act, during the process of
pation are through publication and consul
will exempt the draft bill from disclosure
their formulation and before finalisation.
under the rti Act. Such bills will therefore tation. All instruments, at each stage (draft
and final) must be published in the Official
It may be noted that the commissionbecome available to the public only after
Gazette, which should be available in the
made this "direction" using the recomthey are actually introduced in a house of
paper form and electronically, ideally free
mendatory powers available to it under the legislature. of charge.18 Important legislative measures
section 25(3)(g)14 read with section 25(s)15 The upshot of these decisions is that should be preceded by Green and White
of the rti Act. It is submitted that in order during the period between its submission
papers. Consultations ought to be decen
to implement the proactive publicationto the cabinet secretariat and its intro tralised....If the legislation is particularly
complex, explanatory notes should supple
duty under section 4 of the Act, the comduction in a house of a legislature, a draft
ment the bare text. Reasonable time frames
mission should have used its mandatorybill cannot be made public under the rti
ought to be set. It is also important for the
power under section i9(8)(a)(iii) of theAct. To put these hurdles in perspective,government to explain the reasons for its fi
Act instead. Under this provision, theit is worth noting that they relate merelynal act/rule/decision, by responding to 'key'
central or state information commission to accessing information, which is but or 'major' criticisms and providing explana
has the power to tions for the rejection of 'significant' plausi
the first stage in a meaningfully deliber
ble alternatives (ibid: 69).
require the public authority to take any suchative lawmaking process. Even this
steps as may be necessary to secure compli much, at the moment, appears to be aAdmittedly, comparative law has its
ance with the provisions of this Act, includdistant dream. limitations. These suggestions have been
ing - ...by publishing certain information or What we have, therefore, is an absence
presented not as prescriptions but with a
categories of information.
view to present alternatives and open up
of participation of the demos in the law
It remains to be seen whether the gov making process, and increasingly nonthe debate in India. At any rate, the proc
ernment of Delhi treats this order under deliberative, if representative, bodies eness of reforming the pre-legislative proc
section 25 of the Act as a direction or a rectrusted with the task of lawmaking. It is
ess must itself be public and consultative.
Furthermore, any proposals have to be
ommendation. Even if it was a direction,with some urgency, therefore, that we
this case was addressed only to the govmust attend to the need to further demo considered alongside the need to reform
ernment of Delhi, and it is quite unlikelycratise lawmaking in India. It was withthe legislative process itself to improve de
that it will be voluntarily followed bythis urgency in mind that the Nationalliberation by legislators.
other governments of other states. Campaign for the People's Right to Infor It will also be necessary to ensure that
The issue came up again before the mation commissioned a report from thethe requirements of deliberation do not
commission in Venkatesh Nayak vs DepartOxford Pro Bono Publico to understand make enactment of legislation too difficult.
ment of Personnel and Training.16 In thishow other democracies have dealt with Deliberation is important, but a democracy
case, the commission considered the dethe problem of democratic deficit in thealso requires final authorisation of decisions
within reasonable time. Creative solutions,
fence that section 8(i)(i) of the rti Actpre-legislative process. The report was
such as a requirement that a legislature
exempts "cabinet papers including recordswritten by Oxford graduate students from
cannot be prorogued until it has dealt
of deliberations of the Council of Ministers,India, South Africa and Switzerland under
Secretaries and their officers" from dis my supervision.17 with (i e, accepted, rejected or deferred
closure. Since all draft bills need the for further consideration) government's
approval of the cabinet before theySurvey
can of Institutions Elsewhere legislative agenda for a session, or provid
be placed before the legislature, thisThe
prostudents surveyed jurisdictions as
ing for a minimum number of days every
year when legislatures must conduct
diverse as international law, South Africa,
vision posed an apparent hurdle to their
public disclosure. The cic held thatCanada, the United Kingdom, the effective
United business must be considered

Economic & Political weekly E3SS3 june 18, 2011 vol xlvi no 25 29

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commentary

6 Currently,
alongside these recommendations. It Parliament
will routinely vests in the exec the provisions of paragraphs 4 and 5, a member
utive government the power to bring any Act into of a House belonging to any political party shall
also be necessary to make provisions
force on a dayfor
it may deem fit. There are a numer be disqualified for being a member of the House
ous enactments,
doing away with the deliberative process including section 3 of the 44th - ...if he votes or abstains from voting in such
Constitution (Amendment) Act 1978, which are House contrary to any direction issued by the
in exceptional circumstances when still
time is ofinto force after decades of be
to be brought political party to which he belongs or by any per
ing enacted.
essence. When urgent legislation is neces Data compiled by PRS Legislative son or authority authorised by it in this behalf,
Research indicates that of the 497 central acts without obtaining, in either case, the prior per
sary, some of the consultativepassed
(but not between 1995 and 2008, as
by Parliament mission of such political party, person or authority
publication) requirements may, many
for as 190
examleft the enforcement of the Act to and such voting or abstention has not been con
the discretion of the government. Of these 190 doned by such political party, person or authority
ple, be waived by the legislature Acts,
through a
5% were not brought into force in their en within 15 days from the date of such voting or
tirety,
resolution to that effect, before it canwhiletake
a further 9% were only partially en abstention.
forced at the time of the study! "Commencement 12 Even the main opposition parties are rarely con
up the urgent bill for consideration. Legis
of Central Acts (1995-2008)", 3 February 2010. sulted during the drafting process. See, Suman
PRS Legislative
lation passed without pre-legislative con Research (available at http:// Jha, "Government Not Keeping Opposition
www.prsindia.org/administrator/uploads/ on Board", The Indian Express, 15 April 2010
sultation may be brought before general/
the legis
1265278737—NOTIFICATION%2o (available at http://www.indianexpress.com/
lature for a mandatory NOTE-complete.pdf).
review after a news/govt-not-keeping-oppn-on-board-com
Such frequent exercise of this veto has very seri plains-bjp/606522/0).
specified time-limit. ous consequences for our scheme of separation of 13 Decision no CIC/SG/C/2010/000345+000400/
ihese or other reforms may ensure powers. This executive usurpation of legislative 8440, decided on 7 July 2010 (available at http://
role is especially problematic in a context where a indiankanoon.org/doc/622425/).
that public debate precedes rather than combination of the Westminster model, anti
14 This provision allows Information Commissions
(merely) follows legislative enactments. defection laws, power to promulgate ordinances
to make "recommendations for reform, including
and coalition politics have already resulted in re
They may strengthen the state's capacity recommendations in respect of the particular
markably weak legislatures. While the discourse
public authorities, for the development, improve
to draw upon the expertise and experi on the judicial usurpation of legislative power in
ment, modernisation, reform or amendment to
India is a familiar one, the gradual empowerment
ences of Indian citizens. They may, ulti this Act or other legislation or common law or
of the executive at the cost of the legislature is not
any other matter relevant for operationalising the
mately, help us take a few more steps a story told often enough.
right to access information."
7 Data provided by PRS Legislative Research, avail
towards evolving into a robust delibera able at http://www.prsindia.org/index.php7name
15 This provision states that "If it appears to the
Central Information Commission or State Infor
tive democracy. =Sections&id=5&parent_category=&category=
mation Commission, as the case may be, that the
6o&action=bill_details&bill_id=989
practice of a public authority in relation to the ex
8 In the monsoon session of the Lok Sabha in 2010, ercise of its functions under this Act does not con
NOTES the Indian Medical Council Bill was passed with
form with the provisions or spirit of this Act,
out any discussion, prompting a novel protest from
i See Cohen and Sabel (1997:313). Generally this it may give to the authority a recommendation
the opposition parties. See, "When Lalu Became
view was also echoed by the Select Committee on specifying the steps which ought in its opinion to
Prime Minister", The Indian Express, 20 August 2010
Modernisation of the House of Commons in the be taken for promoting such conformity."
(available at http://www.indianexpress.com/news/
United Kingdom thus: "There is almost univer 16 Complaint no CIC/WB/C/2010/000120, decided
when-lalu-became-prime-minister/662888/0).
sal agreement that pre-legislative scrutiny is on 30 August 2010 (available at http://www.indi
9 C V Madhukar, "Bad Housekeeping", The Indian
right in principle, subject to the circumstances ankanoon.org/doc/93879/).
Express, 18 December 2010 (available at http://
and nature of the legislation. It provides an op 17 See A Comparative Survey of Procedures for Pub
www.indianexpress.com/news/bad-housekeep
portunity for the House as a whole, for individual lic Participation in the Lawmaking Process: Re
ing/726359/)
backbenchers, and for the Opposition to have a port for the National Campaign for People's Right
io It may be noted that most standing committees
real input into the form of the actual legisla
that perform legislative functions in India are de
to Information", April 2011, available at http ://
tion which subsequently emerges, not least be denning.law.ox.ac.uk/news/events_files/A_Com
partmentally-related, i e, their work is organised
cause ministers are likely to be far more receptive parative_Survey_of_Public_Participation_in_the_
on the basis of subject matter (such as defence,
to suggestions for change before the Bill is actu Legislative_Process.pdf
labour or railways). It may be useful to also have
ally published. It opens Parliament up to those 18 Copies of the Official Gazette, which contains all
standing committees that scrutinise legislation
outside affected by legislation. At the same official notifications from government, are cur
on the time
basis of whether it satisfies certain objec
such pre-legislative scrutiny can be of real benefit rently available only on payment of a fee! See,
tive constitutional, human rights or other stand
to the government. It could, and indeedards, should,
whatever the subject matter. Examples of http://egazette.nic.in/
lead to less time being needed at later stages of include the Joint Committee on
such committees
the legislative process... Above all, it should
Human lead
Rights and the House of Lords' Constitu
REFERENCE
to better legislation and less likelihood tion
of Committee
subse in the United Kingdom.
quent amending legislation". Select Committee
ii Constitution or India, 10th Schedule, section 2. Cohen, J and C Sabel (1997): "Directly-Deliberative
on Modernisation of the House of Commons, Disqualification on ground of defection - Subject to Polyarchy", European Law Journal, 3(4).
"First Report: The Legislative Process", 23 July
1997, HC 190 1997-98, para 20 (available at
http://www.publications.parliament.uk/pa/cm BOOK ON M.F. HUSAIN
i99798/cmselect/cmmodern/i9oi/mdoio2.htm).
2 See, for example, Siddharth Varadarajan, "This Is
No Way To Write a Law", The Hindu, 25 August
2010 (available at http://hindu.c0m/2010/08/25/
BAREFOOT ACROSS THE NATION
stories/2oioo8255362i2oo.htm).
3 See generally, Tarunabh Khaitan, "A Bill De
Maqbool Fida Husain and the Idea of India
signed to Fail", The Hindu, 19 May 2010 (available
at http://www.thehindu.com/opinion/op-ed/ar
Sumathi Ramaswamy (ed.)
ticle433i82.ece).
4 Report of the Select Committee on the Prevention
2011, 284p., Crown 4to, many col. text ills, Routledge, U.K. £90
Spl. Indian
of Torture Bill, 2010, Rajya Sabha, 6 December price Rs. 6000 inclusive of forwarding within India
2010 (available at http://prsindia.org/uploads/
media/Torture/Select%2oCommittee%2oReport
%2oPrevention%2oof%2oTorture%2oBill%2o DISTRIBUTED BY
2010.pdf).
MANOHAR PUBLISHERS 8. DISTRIBUTORS
5 See generally, Tarunabh Khaitan, "Arresting Facts",
17 January 2010, The Indian Express (available 4753/23, ANSARI ROAD, DARYAGANJ, NEW DELHI-110002
at http://www.indianexpress.com/news/arrest
ing-facts/411767/0).
Ph.: # 011-2328 4848,2328 9100 email: sales@manoharbooks.com, manbooks@vsnl.com

30
iune 18, 2011 vol xlvi no 25 LLAZf Economic & Political weekly

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