This post is part-comment, part-response to Nick Robinson’s post on the Law and Other Things Blog (please do check the blog out!) regarding the NAC’s proposal for having pre-legislative scrutiny of Bills to be passed by Parliament. The National Advisory Council came out with “Draft Recommendations on Pre Legislative Process” for both draft rules, and draft laws or Bills. As a response to Nick’s post, I restrict my focus to the latter i.e. the need for pre-legislative scrutiny of Bills, or draft laws.
The pre-legislative proposal essentially mandates 3 things:
(a) Any public authority/government department has to publish a Statement of Essential Objectives and Principles, on the basis of which it will draft legislation.
(b) After the Statement has been in the public domain for 45 days, the public authority shall draft the legislation and keep it in public domain for 90 days and proactively share with the public.
(c) The public authority will then hold consultations and give comments on the feedback received, before the Bill is finalized and presented to Parliament.
(For those who do not know, most laws are first drafted by the concerned government department, and then discussed, debated and passed in Parliament)
Nick’s main critique of this process is the following:
“…Rules are created by out-of-touch administrators who never have to run for office. Legislation is passed and debated by Parliament – theoretically the central citadel in the Indian democratic system. Not only is Parliament the empowered representatives of the people, but while considering legislation Parliament often solicits outside comment through standing committees.Should this not be enough? Doesn’t this provide legislation with adequate legitimacy? Shouldn’t Parliament be in charge of demanding proper justification and reason-giving for legislation? Indeed, does draft legislation even have to be based on sound reasoning? After all, legislation – unlike rulemaking – is often the product of compromise between different political factions. A vote is enough. No reasons necessary….”