Improving lawmaking in India

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LiveMint, March 25, 2014

India should encourage private Bills and strengthen the process of legislative approval for new laws

Last week, we argued for two key reforms in Parliament?s procedures that would enable members of Parliament (MPs) to be more effective as elected representatives: abolish the anti-defection law and record all votes on Bills and motions. We now discuss some possible changes that can be made to strengthen the process of lawmaking by Parliament.

The process of enacting a law is as follows. A Bill has to be first introduced in one House of Parliament (first reading). The Bill may be referred to the relevant standing committee, which has members from both Houses. This is not a mandatory step. After the committee presents its report, the Bill is taken up for consideration. At this stage, the various provisions of the Bill are discussed in detail, and each clause is voted upon. Members may move amendments to the clauses. This is the second reading. Then the Bill (with the amendments passed in the second reading) is taken up for a final vote (third reading). Once passed, the Bill is sent to the other House, which has the second and third readings. The Bill is then sent to the President for his assent.

The process needs several reforms. The first question is ?who can introduce a Bill??. In theory, any MP may introduce a Bill: those introduced by the government through ministers are called government Bills, others are called private members? Bills. In practice, only government Bills are passed into law. Only 14 private members? Bills have been passed in India?s history, the last one in 1970. Contrast this with the British Parliament, which passed 17 private members? Bills in the three years since the last elections in 2010. As these Bills are not usually passed in India, MPs propose these merely as a signalling device towards issues that they consider important. Providing greater importance to private members? Bills would enable a new law to be made, without government sponsorship, if an MP can convince others of the merits of the proposal. This reform is needed to make MPs true ?legislators?.

While looking at the legislative process, one can consider three stages: before the Bill is introduced (pre-legislative), while in Parliament, and later (post-legislative). This year, the committee of secretaries has mandated pre-legislative scrutiny of all government Bills. It requires the administrative ministry to publish the proposed legislation on the Internet and through other media, and include the reasons for the Bill, the financial implications and impact on the environment, society etc. The ministry should seek public feedback on the Bill, which would be collated and sent to the standing committee when it examines it. This is a move towards increasing public participation in legislation and must be followed in spirit.

It is necessary to revitalize the legislative process in Parliament. Two crucial stages need to be strengthened: examination by committees and discussion on the floor of the House. Only about 70% of all Bills are referred to committees; this step must be made mandatory for all Bills, as in the British Parliament. The performance of committees is also not consistent. For example, the human resource development ministry?s standing committee examined over 100 witnesses from a range of stakeholders while examining the Copyright (Amendment) Bill but did not hear even a single non-government person while examining the Educational Tribunals Bill. Committees should also be provided with an adequate number of researchers to help them understand complex and technical issues; at present they do not have any research staff.

Parliament should pass Bills only after due deliberation. During the last five years, about a fourth of all Bills were passed in Lok Sabha within 30 minutes, i.e., with practically no debate. Less than 25% of all Bills witnessed over three hours of debate. This trend needs to be reversed and MPs must express their views and discuss the implications of various provisions before approving the Bill. Also, there is no record in most cases of how MPs voted. Most Bills are passed by voice vote, and one does not know how, or even whether, each MP voted on it. As discussed last week, it should be mandatory to record the votes on Bills to bring greater transparency and accountability of the MP to his voters.

The post-legislative step of overseeing the rules and regulations made by the government following the enactment of a law also needs to be overhauled. Currently, each House has a committee on subordinate legislation that examines rules. However, these committees rarely engage with stakeholders: during the five years of the 14th Lok Sabha, just one witness was invited and in the first three years of the 15th Lok Sabha, three witnesses deposed. Also, any member may move a motion to amend or repeal a rule. However, no rule has been amended using this procedure, though four such motions have been moved in the last five years.

To sum up, a key task of legislatures is to legislate. We need several reforms to improve the quality of the legislative process: enable private members to make law, and strengthen the processes before, during and after the Bill is in Parliament.

M.R. Madhavan is president of PRS Legislative Research.

This is the second of a four-part series.

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