An Analysis of the NAC's Proposal on the Pre-Legislative Process (Part I)

Last week, the National Advisory Council made a little noticed recommendation concerning what they term the pre-legislative process. The name “pre-legislative process” is a bit of a misnomer in that their recommendation concerned how ministries approach not only drafting legislation, but also drafting rules, or subordinate legislation.

For both new legislation, new rules, and amendments to either the NAC recommends that an executive order be passed requiring all central ministries put into the public domain for 45 days an announcement that it will be drafting a piece of legislation or rule. This announcement would not only lay out the essential elements of the proposed legislation/rule, but give a statement of reasons justifying the proposal and detail the broad financial implications and the estimated impact on the environment, fundamental rights, and the lives of affected people. The Ministry is also required to make the eventual draft legislation public for 90 days and reach out to the public for consultation. All feedback received about the legislation/rule must be made public, as well as the Ministry’s response to the feedback.

The general thrust of the NAC’s recommendations should be welcomed and are in many ways long overdue. Essentially, the proposal would add transparency and the requirement of reason-giving and consultation to all Ministry action concerning the creation of legislation and rules.

However, it’s worth breaking down the justification for doing this for legislation and rules separately, as they are indeed separate justifications conceptually and the recommendation concerning legislation is generally considered more controversial than concerning rules.

Let’s start with rule-making to understand what is going on here. Rules are important (if anyone doubts this consider how Indian politics would be moving forward right now if there had been, let’s say, different rules created for the allocation of coal or telecom spectrum). Crores of Rupees are often at stake or the livelihoods of thousands. Yet, rules are often created under the guidance of one Minister or even just some top-level bureaucrats. All rules are technically tabled in Parliament for a vote and there is a committee in Parliament looking at such subordinate legislation, but even committee members do not have time to examine most rules in any detail and generally just make sure that the proposed rule does not violate the constitution.

Every modern democracy faces this problem. Major decisions are being made through rules, yet representatives of the people are generally not aware of them. So what to do? One response globally is to create a requirement (often through an act) that all rules have to be tabled by ministries/agencies in advance, justification given, and some degree of consultation with the public mandated. This creates a double check. Ministries are forced to publicly think through the reasons they are creating rules. For example, if a ministry decides it doesn’t want to allocate telecom through an auction it will have to explain why in advance and can’t change its reasons later if such a decision becomes contested. Secondly, the public can act as an alarm bell for Parliament, or even others in the Executive, to flag particularly poorly designed rules. Then, if necessary, Parliament can reject a poorly designed rule or perhaps the Prime Minister can step in to see that it is changed.

Countries that have mandates like the ones being proposed for the creation of rules in India usually find such reason-giving and consultation a step-forward, even if a limited solution. Those with money (and near the capital) are in the best position to track rule-making and give input. Diffuse public interests are often not represented in the rule-making process although environmental and some civil society groups have proved savvy at shaping the process as well. In an attempt to overcome these representation problems, in the United States law firms will sometimes make comments on rules with the public interest in mind as a pro bono service. In South Africa, comments are often made by government created institutions like human rights commissions that attempt to serve as a proxy for the broader public interest. Still, special interests are often in the best position to give comments. 

The second challenge countries with such mandates for consultation and reason-giving face is getting the government to follow the process. For a responsive government, not all rule making should require such long drawn-out public input.  However, in the US the government has often cited exemptions built into the Administrative Procedure Act to get around publishing rules in advance even for rule-making that is important (see this GAO report for more details about how agencies in the US did not follow the pre-publication requirement for about 35% of major rules between 2003-2010).

Reason-giving for rules – i.e. a justification and cost-benefit analysis – can seem like a pure good and step forward. Who wouldn’t want rules that hadn’t been thought through? Yet, even here the challenge is finding the balance between meaningful due diligence and the costs of such reflection. For example, what would constitute an adequate assessment of the impact of a proposed rule on fundamental rights? Is it just a bureaucrat thinking about it for a few moments at her desk and then writing down whatever she thinks? Or would it require an expensive study from an outside group that included large surveys of the impacted population? Likely, the answer is somewhere in between.

Given the blurriness of what is effective consultation and reason-giving the most difficult challenge is enforcement. In particular, what redress do parties have if they claim the government has not gone through the required process? Can they go to court? If so, by what standard will a court judge whether there has been effective consultation or reason-giving, and if the court finds it has been lacking will the judge actually strike down the rule, even if millions of people have already relied on it?

Much of administrative law is about trying to force the state to think in certain ways - taking on board multiple interests and shared values. As Jerry Mashaw has written in one of my favorite adlaw essays, administrative law is the embodiment of the enlightenment project - - the triumph of public reason over cloistered thinking, prejudice, and arbitrariness. Yet, given the messiness of what constitutes "reason" and the limited avenues of influence on the state, it structures a process that can get us only so far.

All in all, the NAC proposal on rule-making is a step in the right direction, even if there are many unanswered questions about enforcement or on the mechanics of implementation. In Part II of this post, I will discuss the more controversial proposal to have a similar process for the drafting of legislation by ministries, as well as some reflections on the proposal to push these reforms through an executive order rather than an act.

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.