Post-legislative scrutiny to improve quality of laws5 min read . Updated: 06 Jun 2016, 05:44 PM IST
Post-legislative reviews can assess whether the objectives and the anticipated effects of legislation have actually taken place on the ground
India enacted the Narcotic Drugs and Psychotropic Substances (NDPS) Act in 1985 to tackle the growing drug menace in the country. But it is telling that in response to a question in the 16th Lok Sabha on whether there has been a reduction in substance abuse related cases, the minister of social justice and empowerment answered that there was “no authentic data" available with the ministry. This is a symptom of the malaise that has plagued India’s law enforcement.
Although India has one of the highest numbers of laws on its statute books—over 2,500 Acts just at the central level—its implementation record is distressingly poor. One of the reasons for the poor performance, aside from design issues, capacity constraints and corruption, is the near-complete absence of post legislative scrutiny or review of the laws.
Various governments have taken small steps in the direction of designing better laws such as making pre-legislative scrutiny of Bills mandatory through public feedback and identifying laws that need to be repealed but there is little discussion yet regarding the need for post-legislative review of laws.
Benefits of ex-post law reviews
According to a 2006 report of the UK Law Commission on Post Legislative Scrutiny, “the purpose of the review is to discover whether a law is working out in practice as it was intended and if not, to understand the reason and address it quickly and cost-effectively."
India stands to gain considerably by instituting a culture of post-legislative reviews. These reviews can be designed to assess whether the objectives and the anticipated effects of a piece of legislation have actually taken place on the ground. They can also identify any unintended effects that may have arisen from the legislation. A key benefit would be the systematic collection of data that would be a pre-requisite of any evaluation of this kind. Therefore, regular post-legislative evaluations should translate into better laws.
A crying need in India
Since there is no requirement for an ex-post evaluation of laws, policy-makers and bureaucrats have no systematic evidence about the efficacy and performance of a law. They mostly use anecdotes and evidence provided by non-official sources such as corporates or NGOs and advocacy groups to argue for or against an amendment in a law.
Take for example the NDPS Act, 1985. Although anecdotal and small studies have shown that drug abuse is a significant issue in Punjab and North-Eastern states, neither the central government nor the state governments have undertaken a systematic study of the effectiveness of the law. Furthermore, there is little statistical data collected on the subject. The first and last all-India survey that was conducted on drug abuse was in 2004 (data was from 2001). An attempt to conduct another survey was made in 2012 but it could not be completed for various reasons. According to data in the Lok Sabha and NSSO website, some pilot surveys were carried out but the data is not publicly available (an RTI query on the subject elicited a reply that no such survey data was available with NSSO)!
The NDPS Act was amended thrice—in 1989, 2001 and 2014. Each time, the initiative was taken by activists and lawyers. Their concerns were mostly based on anecdotal evidence and independent studies done by researchers and scholars. Furthermore, as is evident from a reading of the parliamentary debates, the legislators themselves were hampered in their understanding due to the lack of information about the effectiveness of the law. They tended to rely on harsh punishments to deter drug users and traffickers but produced no evidence to make their case. They also never questioned the government on what evidence the Act was being amended multiple times.
Another example is the Right to Information Act, which came into force in October 2005. Since its enactment, the government has made multiple attempts to curtail some of the powers of the Act on various grounds such as promoting efficiency and effectiveness (in 2006 and 2009, it tried to remove ‘file notings’ from the purview of the Act). Activists have staunchly resisted such attempts. However, the fact remains that there is no objective scrutiny of the effectiveness of the Act; so, both sides have depended on anecdotal tales to bolster their arguments.
Lessons from other countries
In the 1990s, many European countries as well as the US, Australia and Canada developed “better regulation" policies, which included ex-ante and ex-post evaluation of legislation.
Among European countries, the UK required laws to be reviewed within three to five years of enactment. These reviews are conducted by existing Departmental Select Committees on the basis of a memoranda provided by a government department. All Acts passed since 2005 are reviewed with a few exceptions such as budgets, very technical acts and trivial acts. In Germany, ex-post evaluation is systematic and based on a standardized methodology set out in guidelines for public administrators. France requires mandatory periodic evaluation of legislation, which is enshrined within the law itself.
In the US, each standing committee, except Committee on Appropriation, is required to review and study, on a continuing basis, the application, administration, execution, and effectiveness of the laws dealing with the subject matter over which the committee has jurisdiction.
In Australia, most laws have to be reviewed within two years and they expire after 10 years.
In Canada, a most laws have review and sunset clauses.
Developing a “better regulation" policy tool for India
The present government’s promise of delivering “good governance" could get a boost if it adopted post-legislative evaluation as a policy tool. The Law Commission or an expert committee could first decide, with inputs from government and non-government stakeholders, the scope of post-legislative scrutiny by defining its boundaries, the types of legislation that require scrutiny, benchmarks of a successful legislation, the procedure for scrutiny, the body that should undertake the scrutiny and the time-period of the scrutiny. India could then incorporate within its legislation, a provision for systematic review of the law.
Kaushiki Sanyal is associate fellow at Vidhi Centre for Legal Policy