Anna Hazare's campaign against corruption has a curious side-effect. It has turned the spotlight on India's lack of pre-legislative transparency. We may accept or dismiss team Anna's Jan Lokpal draft but his movement — and the subsequent build-up of hope and betrayal — has unwittingly exposed the systemic opaqueness in which our laws are conceived, written, debated and passed.
Let's take a cursory look at the very top of the pending list. The Mines (amendment) Bill seeks to protect workers and to rein in the controllers of the $25 billion mining industry, also believed to be a major source of slush funds. The Prevention of Bribery of Foreign Public Officials etc Bill is a necessary follow-up of India's ratification of the UN Convention Against Corruption. The Public Interest Disclosure and the Protection of Persons Making the Disclosure Bill seeks to protect the whistleblower exposing an act of corruption, misuse of power or criminal offence by a public servant. The Regulation of Factors (assignments and receivables) Bill is aimed at regulating mainly the non-banking finance companies, rogue financiers, the questionable among microfinance outfits and the flyby-night operators. The Judicial Standards and Accountability Bill requires judges to declare their assets, lays down judicial standards and establishes processes for removal of judges in higher judiciary in cases of corruption or impropriety. The Seed Bill seeks to regulate the production, distribution and sale of seeds in Rs 6,500-crore market rampant with corruption and deceit.
Is it fair that out of a list of 67, only the Lokpal Bill gets intensive civil society scrutiny? And why should any bill be passed without complete transparency or due diligence? Thanks to Anna's campaign, the two drafts of the Lokpal Bill have got diverse inputs but very few stakeholders were consulted before the rest of the bills were drafted. This abysmal lack of deliberation is quite normal because there is no clarity on who will be consulted or treated as a stakeholder. In fact, the consultations are mainly confined to a few ministries with little scope for reflection either inside or outside Parliament. Some bills that do attract civil society inputs are more like exceptions that prove the rule.
As for legislative debates, out of the 12 bills the Lok Sabha passed in the Budget session last year, five took less than 15 minutes of discussion each, while two got through in less than five minutes. If the devil indeed lies in details, nobody was nitpicking or raising doubts. Worse still is the way in which the subsidiary legislation and rule framing takes place at the state level where deliberations are more rare and tinkering relatively easier. The pattern so far is that most bills are secretly drafted by babus and routinely approved by the cabinet to be hastily, and often indifferently, passed (or dumped) by Parliament or state assemblies.
No doubt that some of the best and noblest minds are offering insights for an effective Lokpal Bill, but why should other equally important matters suffer lack of civil society inputs? India has a phenomenal base of domain knowledge and experience in virtually every field. Why can't we evolve institutional arrangements to utilize this ready resource for making better laws rather than giving in to bargains? In fact, in the developed world, the interest group bargaining model of legislative decision-making is now giving way to a more deliberative one. The process of lawmaking in many countries reaches out to the public through every process available, including referendum, which in India's case can be done quite easily because of our well-oiled electoral machinery.
The first rule of thumb is that debates and deliberations must precede rather than follow the tabling of any bill in Parliament and a minimum period of up to a year must be provisioned so that no Act is ever passed in haste. According to an approach paper presented by Oxford law researcher Tarunabh Khaitan at an exchange of ideas in Delhi recently, out of several options practised globally, an adaptation of the South African model might work best for India. Under this, the government draft can be first publicized as a "White Paper" through gazettes, libraries and websites. Anyone can then forward suggestions to a designated committee which also engages with experts, stakeholders, guilds or trade bodies and intermediaries who can speak for the marginalized. The final draft is then reworked and published again as a "Green Paper" which can still be debated before being tabled in Parliament. In exceptional matters that can't wait, the government can always bring in ordinances.
This will ensure that knowledge from the field, laboratories, think-tanks and academic institutions is mobilized for lawmaking. A compulsory gestation period will give time to peoples' organizations, NGOs, lobbies and political parties to respond and intervene. The issue of pre-legislative transparency may not have the zing of an anti-corruption campaign, but in the long run, it can be more consequential than even the Lokpal Bill, which most of us are eager to see as law.
Is it fair that out of a list of 67, only the Lokpal Bill gets intensive civil society scrutiny? And why should any bill be passed without complete transparency or due diligence? Thanks to Anna's campaign, the two drafts of the Lokpal Bill have got diverse inputs but very few stakeholders were consulted before the rest of the bills were drafted. This abysmal lack of deliberation is quite normal because there is no clarity on who will be consulted or treated as a stakeholder. In fact, the consultations are mainly confined to a few ministries with little scope for reflection either inside or outside Parliament. Some bills that do attract civil society inputs are more like exceptions that prove the rule.
As for legislative debates, out of the 12 bills the Lok Sabha passed in the Budget session last year, five took less than 15 minutes of discussion each, while two got through in less than five minutes. If the devil indeed lies in details, nobody was nitpicking or raising doubts. Worse still is the way in which the subsidiary legislation and rule framing takes place at the state level where deliberations are more rare and tinkering relatively easier. The pattern so far is that most bills are secretly drafted by babus and routinely approved by the cabinet to be hastily, and often indifferently, passed (or dumped) by Parliament or state assemblies.
No doubt that some of the best and noblest minds are offering insights for an effective Lokpal Bill, but why should other equally important matters suffer lack of civil society inputs? India has a phenomenal base of domain knowledge and experience in virtually every field. Why can't we evolve institutional arrangements to utilize this ready resource for making better laws rather than giving in to bargains? In fact, in the developed world, the interest group bargaining model of legislative decision-making is now giving way to a more deliberative one. The process of lawmaking in many countries reaches out to the public through every process available, including referendum, which in India's case can be done quite easily because of our well-oiled electoral machinery.
The first rule of thumb is that debates and deliberations must precede rather than follow the tabling of any bill in Parliament and a minimum period of up to a year must be provisioned so that no Act is ever passed in haste. According to an approach paper presented by Oxford law researcher Tarunabh Khaitan at an exchange of ideas in Delhi recently, out of several options practised globally, an adaptation of the South African model might work best for India. Under this, the government draft can be first publicized as a "White Paper" through gazettes, libraries and websites. Anyone can then forward suggestions to a designated committee which also engages with experts, stakeholders, guilds or trade bodies and intermediaries who can speak for the marginalized. The final draft is then reworked and published again as a "Green Paper" which can still be debated before being tabled in Parliament. In exceptional matters that can't wait, the government can always bring in ordinances.
This will ensure that knowledge from the field, laboratories, think-tanks and academic institutions is mobilized for lawmaking. A compulsory gestation period will give time to peoples' organizations, NGOs, lobbies and political parties to respond and intervene. The issue of pre-legislative transparency may not have the zing of an anti-corruption campaign, but in the long run, it can be more consequential than even the Lokpal Bill, which most of us are eager to see as law.
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