Article co-authored by Sachin Dhawan and John Sebastian on "Governments must be held to account" - Business Line

February 02, 2017 | Sachin Dhawan and John Sebastian

Reviving pre-legislative scrutiny will produce laws that better reflect the will of the people
 
Lost among the many assessments of the Budget is the Government’s sleight of hand concerning concealment of the damage wrought by demonetisation. Indeed, such is the secrecy shrouding our public institutions today that senior members of government are often caught unawares by important policy announcements.

Many democracies across the world avoid this malaise of opacity by employing a technique known as pre-legislative scrutiny, which involves engagement with the public on Bills before their introduction in Parliament. One aspect of pre legislative scrutiny — pre publication of Bills — was introduced by the UPA government in 2014. Indeed, the previous NDA government also promoted the need for pre-legislative scrutiny. However, the Modi government has ignored this policy.
 
Ignoring this important step in the direction of transparency is a travesty as democracy is not just about elections. It is equally about accountability of the Government to the electorate that put it in power. Indeed, the International Covenant on Civil and Political Rights (ICCPR) enshrines public participation in government as a human right. This is not surprising given the plethora of studies which conclude that pre-legislative scrutiny produces laws that better reflect the will of the people rather than those of entrenched elites and special interests.
 
The current crisis
This evidence in favour of pre-legislative scrutiny is striking and noteworthy, given the debasement of the law-making process over the past few years. We have washed-out parliamentary sessions, with time that is meant to be spent discussing and debating laws being spent instead in disruption and stalemates. The recent winter session was the least productive in 15 years.
 
Whilst much attention is often paid to the costs that this involves (in terms of the amount of money spend per hour of Parliament’s functioning), the damage to our democratic fabric will cut far deeper.
 
Disruption is increasingly being used by the Government as a reason to pass laws without debate. In fact, we have virtually reached a stage of the normalisation of disruption — the focus of the Government has consequently shifted from looking for ways to break deadlocks, to passing laws despite them.
 
Many mechanisms have been evolved for this purpose — classifying Bills as Money Bills in order to pass Rajya Sabha scrutiny, using the powers of the Speaker to hasten debates, and the increasing use of ordinances as a primary instrument of legislation. In each case, the lack of debate and deliberation undermines the democratic texture of our Parliament, a body designed to serve as a forum for distillation of multiple viewpoints.
 
The citizen’s duty
The lack of transparency pervading the law-making process is a blot on our democracy. The measure suggested by the UPA government is, therefore, in dire need of revival. Importantly, however, while the UPA measure directing pre-publication was definitely a step in the right direction, it is clearly not enough.
 
Genuine democracy requires much more than pre-publication and solicitation of comments. For our polity to be truly democratic, it is not enough for elected officials to deliberate upon the issues of the day. Citizens too must play their part, by debating and deliberating upon upcoming Bills in a process of dialogic engagement with each other and with lawmakers.
 
This is not a far-fetched theoretical abstraction. A precedent for this form of engaged citizenship exists in Kerala. Not only did the government publish its draft police law before introducing it in the legislature, it incorporated the comments it received into the draft itself, thereby amending it before introduction.
 
The process of public engagement did not end there. Once introduced, the Bill was referred to a committee that conducted town hall meetings and public hearings wherein MLAs entered into an active and reciprocal dialogue with citizens. The upshot of all this activity was that the resulting debate in the legislature was well-informed and robust.
 
Another practical example is provided by South Africa, where pre-legislative engagement with the public is a constitutional requirement. In a recent case, Doctors for Life v Speaker of the National Assembly, the Constitutional Court of South Africa struck down a law passed by the South African legislature on the grounds of non-participation of the people in the legislative process.
 
Interestingly, drafts of the laws had been published and were widely circulated in the case — what was missing, however, was a real sense of active participation of citizens in the process, involving the engagement of citizens with each other. The court recognised that there are several components to such a right to participation — for example, educating citizens about controversial issues that affect their lives so that they have an informed debate among themselves before articulating suggestions for improvement to the government. The judgment also urges that a simple call for comments may not be enough to guarantee the involvement of “historically silenced groups”.
 
A clarion call
In order to demonstrate its much-touted commitment to good governance, the Modi government should introduce a robust form of pre-legislative scrutiny. The real world examples of Kerala and South Africa offer a valuable roadmap for how to increase and improve transparency and accountability in government.
 
Dhawan is an assistant professor and Sebastian a senior research associate at Jindal Global Law School