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.

Hazare and the Potential Curing of a Democratic Deficit?

Tarunabh captured some of the reactions to the Anna Hazare campaign in his post here, where he also warned that the problem of corruption is a complex multi-factorial issue, not easily amenable to ready solutions via yet another legal parchment.

In this TOI (Crest edn) piece, I reflect on how the Hazare agitation presents an opportunity to push for an opening up of the law/policy making process. Since the online version of the piece can be accessed only after your register (freely) on the TOI site, I'm reproducing it below:

"It fell several notches short of a Tahrir square. But it was enough to capture the imagination of nation, a nation that has witnessed scam after scam in the recent past, and where, attempt after attempt to introduce an anti-corruption law failed for four long and continuous decades.

Indeed, thanks to a man who threatened to take his own life, "Lokpal", a term that might have had raised eyebrows till a month ago, has now gained common currency. Some see the man as an enlightened saviour of sorts. Others as a dangerous blackmailer at the brink of subverting a precious democratic process that many believe we enjoy in India. I come neither to praise Anna Hazare nor to bury him. But to simply point to an enormous opportunity that his act of starving presents for us as a country.

That Hazare gained enormous public support by threatening to sacrifice his own life at the altar of an anti-corruption principle that he staunchly believes in is beyond doubt. However, what of the implementation of this principle through the technicality of a law? It's a fair guess that many of those who came out in support through rallies and candle light processions would have failed to read the bill, be it the government "Lok Pal" version or any of the many civil society "Jan Lok Pal" versions.

It is this participatory deficit that the Hazare movement must seek to redress. It must leverage the popular sentiment it has thus far gained by actively encouraging the public to participate in the law-making process. That government laws are drafted in secret for the most part is no new revelation. Even at the stage of parliamentary scrutiny, most intensively felt during the myriad "sittings" of standing committees, the ones consulted are a select few;not the public and in most cases, not those with subject matter expertise.

To this extent, law and policy-making processes in this country suffer from a serious democratic deficit. Granted that the formal processes (such as the act of voting by elected representatives, many of whom may have never read beyond the title of the bills presented) are all complied with, but substantively, the process is a largely non-deliberative one, with bills being presented and voted upon, for and at the behest of a select few.

Apparent government efforts to instill public participation are far from optimal. Many a time, bills are never released for public views or participation. And even when they are, the websites that call for participation are far from welcoming. The Indian "Bayh Dole" bill, seeking to regulate the management of intellectual property at universities, is an excellent example of the sheer deficit in the process. A law firm with very close ties to the government was tasked with drafting the bill. It borrowed significantly from a US legislation on the same theme, sans any consideration of the techno-cultural specifities of India, and even more problematically, sans any consultation with key stakeholders, namely universities and public-funded research institutions.

The bill was then secretly peddled between different ministries. After much public hue and cry, the bill was made available on a government website, but with no indication that public comments were welcome, and after four years since the first draft of the bill. Subsequently, even at the stage of parliamentary review by a standing committee, it was not until the Indian Institute of Science went to the press claiming that it was never consulted, that the committee relented and called for wider stakeholder participation. Thanks to this participation, the committee was able to appreciate that the bill was fundamentally flawed. It therefore directed the government to make extensive changes to the bill. By this time, five years had elapsed and the government was forced to go back to the drawing board. A process that fostered wider consultation earlier on in the lawmaking process would have saved us all this wasted time and effort.

Given this backdrop, the moral success of the Hazare agitation throws up an excellent opportunity to open up this closed law-making process and to pave the way for more deliberative discussions. Unfortunately, the Hazare movement has come across as controlled by a select few who wish to replace the government coterie with their own. Further, several discordant notes have already been struck by the various statements by Hazare, his lieutenants and others that he chose to share stage with. Little wonder then that the movement has attracted the ire of many who are suspicious of the threat to our democratic process.

Questionable as their means are, Hazare and club have broken new ground by gaining admission to a closed-door law making process. It would be a travesty if they now replicated the hegemony they seek to challenge. They must now leverage the moral capital gained so far and translate it to a call for wider and more informed public policy and law making. This must involve not just educating and sensitising the public, but also our ministers and parliamentarians.

For, in the allegedly selfless act of starvation by an endangered Gandhian species lies the hidden potential to begin the slow process of transformation from a largely formal democracy to a more substantive and participatory one."

Parliamentary Reform

For those who followed this previous post, the Rajya Sabha has sent the Prevention of Torture Bill to a Select Committee for further examination (see Pratap Bhanu Mehta's piece in the Indian Express today on the Bill).

On a related note, I want to reproduce verbatim the speech by Mr. NK Singh, Rajya Sabha MP from Bihar, in the House yesterday because it reflects some of the concerns we have raised regarding parliamentary reform on this blog previously, including the need to provide MPs with research staff and for greater transparency in Parliamentary Committee proceedings:

I think, the one question we must ask ourselves is: What can we do to enable a Member of Parliament to perform his functions more diligently and improve the quality of his parliamentary debate? If we look at cross-country international comparison, Sir, all over the world Members of Parliament get independent research staff which can give them advice independent of this advice which they receive from the executive. Look at the US practice, look at the UK practice and look at cross-country comparisons all over the world. How do you enable a Member to more efficiently and diligently perform his functions? There are two important lacunae. One is that he has no office facility, whatsoever. If you give him a house, you must allow every Member to be able to have one independent office facility and have an independent research staff of some quality to be able to enable him to perform his functions. I think that the Minister for Parliamentary Affairs very rightly pointed out that in the ensuing debate on the MPs Salary there is a growing public cynicism on the work that Members of Parliament perform. So, I think there is a great need to improve this public perception. One of the things which we need to do is about the work done by the Members of Parliament in Parliamentary Committees, in Standing Committees, in Public Accounts Committee, in Estimates Committee. All this goes completely unnoticed in the coverage which the media does. So, I request the Minister of Parliamentary Affairs to find out some way in which the work done and diligence exercised by Members of Parliament in these Parliamentary Committees also do get reflected in improving the public perception on the work that MPs perform so that this growing cynicism about what MPs can do is dissuaded.

Readers may note that currently proceedings of a parliamentary committee are completely opaque and not available even under the Right to Information Act. Mr Somnath Chatterjee made some unsuccessful attempts to make the proceedings of Parliamentary Committees transparent during his tenure as the Speaker of the Lok Sabha.

Readers may also be interested in this book by Arun Shourie, and his complaint that good work by MPs is often ignored by media and this previous post on this blog on how to judge politicians.

Alternative Thinking Outside the "Law Firm" Box?

Many of us have lamented the fact that although the "national law schools" have churned out very gifted lawyers, we've lost many of them to law firms. It is but natural that many of them are attracted to financially rewarding jobs that law firms typically guarantee. However, given that these law schools were established to induce alternative forms of lawyering aimed at improving society, we have to admit that there has been a failure of sorts...and a massive one at that.

It pains me to see so many of our students devastated during the campus recruitment phase when they fail to land jobs with prestigious firms. And the one question I always ask is: are you sure this is what you want to do? Or are you merely following in the illustrious footsteps of your seniors? Surely, there are a million different ways of putting legal skills to use? Thinking "out of the box" and doing something different than being a mere cog in the wheel of corporate transactional lawyering is certainly more appealing?

More importantly, if you expand out the "base" of potential legal career opportunities, you don't need to depend so heavily on firms that come to recruit? And surely, this will help future generations of law students that take inspiration from you... and relieve themselves of the herd mentality to think differently?

Why don't you try something different, I ask in all earnestness?

I see a blank face...a blank stare...and often times, a smirk...

So what ails? Why don't many of our students consider alternative legal careers and look beyond law firms? Or perhaps join firms, but move beyond the typical corporate transactional work to do more pro-bono stuff?

I hope to engage with these maladies another day. In the meantime, I'm delighted to report on a fabulous alternative lawyering initiative sparked up by a bunch of bright lawyers who recently graduated.

Styling themselves as the Pre Legislative Briefing Service (PLBS), these young turks have begun engaging with the Indian law making process in a fairly intense way. They pick up drafts of recent bills that are before Parliament, study it extensively and come up with nuanced reports on the various legal/policy implications of the bill.

Most recently, they've done an in-depth study of the nuclear liability bill and raised points that stalwarts who've been shouting in the media have simply failed to appreciate. If you wish to read their analysis of this bill, please see this report posted on SSRN.

Engaging with legal policy at this level will no doubt improve the quality of our laws in the long run. And we will have to much to thank this bright bunch for.

I list out details of their service and the team below:

The Pre-Legislative Briefing Service (PLBS)

i) To provide rigorous, independent and non-partisan legal and policy analysis of Bills introduced in Parliament

ii) To suggest appropriate legal reform to enable bills to pass tests of constitutionality if challenged

iii) To suggest appropriate policy reform if the legislative policy is to be sound in principle and efficacious in practice

Members:

1. Arghya Sengupta, B.A.LL.B. (Hons.), National Law School of India University, Bangalore (2008), Rhodes Scholar (2008), B.C.L., University of Oxford (2009) Current Status: M.Phil. Candidate in Law, University of Oxford.

2. Prashant Reddy T., B.A.LL.B. (Hons.), National Law School of India University, Bangalore (2008) Current Status: Research Associate, Ministry of HRD Chair on Intellectual Property Rights, West Bengal National University of Juridical Sciences, Kolkata.

3. Sanhita Ambast, B.A.LL.B. (Hons.), National Law School of India University, Bangalore (2009) Current Status: Candidate for the Masters in Law and Diplomacy and LL.M. joint degree, at the Fletcher School of Law and Diplomacy, Tufts University and Harvard University.

4. Shivprasad Swaminathan, B.S.L; LL.B., Indian Law Society, Pune (2004), B.C.L., University of Oxford (2006), Clarendon Scholar (2008) Current Status: D.Phil. Candidate in Law, University of Oxford

Contact: prelegislativebriefingservice@gmail.com

For those of you who've engaged with law making in this country and are privy to the legal illiteracy widely prevalent amongst Parliamentarians, you'll appreciate how valuable this offering really is.

More importantly, from the perspective of inspiring younger law students to think of alternative careers, the PBLS team couldn't have done better. Rather than playing around with the nitty-gritty of the law in badly drafted statutes, these recent graduates have decided to influence the very formation of the law itself. Certainly a much higher and more valuable terrain to play on. Perhaps law schools need to take a cue from this and focus more on the art and science of law making, rather than merely interpreting statutes and cases.

NAC-II: Why we must oppose it, and what is the alternative

The National Advisory Council is being reconstituted. Its previous avatar saw a vigorous debate on its constitutional illegitimacy, one that is completely absent this time around. There is a sense that NAC-I did good things (RTI, NREGA), so why oppose it? PB Mehta wrote one of the more critical pieces on NAC-II, but even he focussed only on the lack of clarity over its 'mandate and priorities', rather than its fundamental illegitimacy.

I believe there are good reasons why it was a good thing NAC-I died abruptly, and why NAC-II should not be brought into existence. The critique is familiar: NAC is an undemocratic, unaccountable, constitutionally illegitimate body which must not be supported for strategic/pragmatic reasons. We are setting a dangerous precedent that will come back to haunt us -- how difficult is it to imagine a future government instituting an NAC packed with cultural-nationalists who direct the policy agenda of the country? No one will be able to object to it because no one is objecting to NAC-II. Its legitimacy appears to have been established. And it is not supposed to be democratic or accountable anyway - so who then can question its composition? On what grounds? The current balance of power may have induced some liberals and democrats to accept the NAC, but balance of power changes. We will come to regret having cheered NAC-II just as some of us came to regret having cheered judicial self-empowerment in the '80s. This is always a danger when we compromise on principles for short-term 'pragmatic' gains.

One way to understand the NAC is to see it as a unique institution made necessary by a unique set of circumstances where the leader of the party in power is not the Prime Minister. But political parties tend to have internal processes to influence governmental policy in any case: the letters exchanged between the Congress Party President and the Prime Minister over the last few years and made public recently suggest that this government is no exception. At any rate, the Cabinet, on the whole, reflects the Party leadership. The Party does not need an NAC to influence government policy. The real strength of NAC-I was in bringing in inputs of those who are engaged in non-electoral/civil society politics into governmental policy-making. Although government-appointed ad hoc commissions comprising experts and academics have always advised on policy, NAC is unique in being an official, apparently permanent, policy-proposing body with potentially limitless agenda, and whose members are hand-picked by the President of the ruling party.

While NAC-I may have been productive, this institutional arrangement remains a misguided response to an important and legitimate question: how do we make governmental policy-making consultative, where stake-holders, interest groups and experts are involved in the process. Our mid-20th century political institutions envisage political parties as the only actors in the polity, who make policy indirectly through control of the executive and the legislature. But politics and society have changed since then. NGOs, civil society, interest groups, academics, think-tanks and other experts have become important players in policy making, whose contribution is usually productive. But most of these actors tend not to seek or desire membership of legislatures.

A far better way to accommodate non-party-based democratic voices in the policy-making process is by reforming our legislative processes. Currently, draft Bills are publicly circulated only in an ad hoc fashion by the concerned Ministry. This news item suggests that even Opposition parties find it difficult to access draft Bills (See also, these opinion pieces calling for more transparency in law-making: I and II). Nothing stops the government from introducing a Bill and getting it passed by Parliament within a matter of days. Institutionalising pre-legislative processes where draft Bills are routinely made public, circulated and scrutinised before their introduction in Parliament will be a good start. Legislatures elsewhere have evolved mechanisms whereby their Committees regularly invite experts, academics and grassroots activists for giving evidence on policies being considered. Our parliamentary committees, on the other hand, still hold closed door meetings. Indeed, our system disincentivises even MPs from participating in policy-making. We burden our legislators with administrative duties, requiring them to disburse MPLAD funds. We offer them no research assistance. We do not even allow them to speak their minds and vote according to their conscience. All this needs a serious rethink.

The solution to the need for a more consultative, democratic policy-making lies in strengthening and adapting parliamentary procedures, rather than creating alternative power centres like the NAC that may come to challenge and discredit parliamentary authority. If Ms Gandhi still finds the NAC helpful, let it be a non-governmental think-tank. A democratically-elected Parliament (and state legislatures) must remain the only official fora where policy is discussed, scrutinised and finalised.

Legislating Rights: Parliament, Courts and Separation of Powers

In an interesting column in the Indian Express, Mihir Sharma ponders over 'The Four Rights that millennial India has promised its people — to information, to food, to education, and to (rural) employment' and notes that they 'aren’t just remarkably ambitious for a state that has never impressed with its efficiency. They also represent a shift in how we think about governance'. He claims that this is not a partisan agenda driven by 'Congress-under-Sonia': instead, he suggests that a BJP government would have done little different. We can only speculate on this claim, given that our Opposition parties mostly remain reactive to government policy - very rarely do we see them initiating policy debates proactively between elections.

But we can consider Sharma's other controversial suggestion that this move to constitutionalise socio-economic rights is a largely-judicial reaction to poor governance by other branches of the government (a phenomenon, he suggests, that can be seen globally rather than just in India). At least in the contemporary Indian context, this claim needs to be nuanced. While it is true that the constitutionalisation of socio-economic rights was driven by judicial pronouncements in the 1980s and the 90s, what we are witnessing in this century is something quite different. Unlike broadly-worded, unenforceable declaratory orders that courts made in recognising a constitutional right to food, shelter, employment, information etc, most of the current initiatives are legislative. They usually come complete with attention to details regarding enforcement, budgets and individual entitlements. The probable exception is the Right to Food case where the Supreme Court has tried to mirror a legislative intervention by not merely declaring a constitutional right to food, but identifying details of entitlements and overseeing implementation. But the right to food case is exceptional, and so it should remain (it appears, at any rate, that Parliament will take over the right to food agenda from the courts before too long). A deliberative legislative process is usually a much-better way of attending to details of entitlements and enforcement, even when they concern positive rights. That Parliament has finally decided to take this role seriously needs to be noted and commended.

This is not to suggest that the courts did not play their part. Perhaps judicial declarations of these goods as 'rights' laid the necessary groundwork for Parliament to build upon two decades later. Surely, it mattered that what was being legislated upon was not state largesse but a constitutional right. One has only to compare the usually top-down 'welfare' legislation of the pre-Emergency era which betrayed remarkable faith in honest implementation by benign bureaucrats with the broadly victim-driven, state-sceptic 'rights' legislation we now have. This claim regarding the movement from 'welfare' to 'rights' and the attendant difference in enforcement mechanisms, is, admittedly, based on generalisation and intuition rather than any serious research. But I suspect there might be some truth in it. At any rate, any story on these new social rights cannot afford to ignore the very important role that Parliament is playing in shaping and delivering them, even when it rightly acknowledges the courts for initiating the process.

Two implications follow. First, legal academics not only need to acknowledge, perhaps even celebrate, a resurgent Parliament, the often-ignored legislative process now deserves critical scholarly attention. This task has mostly been left with broadcast media, which loves noisy scenes in Parliament but has no time for MPs questions or work done in committees. State legislatures fare even worse in attracting legal scholars. Academic attention to the functioning of the legislative committees, to MPs/MLAs questions, to lack of transparency and consultation in the pre-legislative process, to private members' bills, to anti-defection laws, to executive non-notification of legislative acts etc is urgently needed. The folks at PRS have begun taking the legislatures seriously, but much more needs to be done by many more people.

Secondly, if my above-mentioned intuitions regarding the realisation of social rights in India are true, the traditional view of separation of powers where different branches of government battle it out for supremacy is too simplistic. Practice suggests a two-way conversation: not only does Parliament take more seriously what the courts declare as a 'right', constitutional courts often invite policy suggestions from executive and legislative wings of government and incorporate them in their orders. Co-operative and/or dialogic accounts of separation of powers might provide a better account of practice and make more sense normatively.