Relevance: GS 2: Parliament and State Legislatures—Structure, Functioning, Conduct of Business, Powers & Privileges and Issues Arising out of these.

Key Phrases: Pre-Legislative Consultation Process, Accountability, Cost to Efficiency, Cost to Democracy, Pre-legislative Consultation Policy 2014, Legislative Impact Assessment (LIA), Post-Implementation Assessment(PIA).

Context:

• There is a need to redesign the country’s pre-legislative consultation process. The key assumption behind this is the genial nature of a government that could be expected to adhere to an ideal consultation process.
• There is a need for a system of accountability in the law-making process itself that monitors the self-interested incentives of the government.

NEED FOR PRE-LEGISLATIVE CONSULTATION PROCESS:

Cost to Democracy:

• The Seventeenth Lok Sabha has passed about 150 bills so far. As an approximation, 15 bills have been passed per session. Such productivity has come at the cost of debate and deliberation, two core ideas of democracy that Parliament stands for. This can be termed as the ‘cost to democracy’.
• A few laws and conventions in our parliamentary system are the key perpetrators. The Executive is an integral part of the Legislature, and thus, when coupled with the anti-defection law, it assumes unfettered control over the Legislature.

Cost to Efficiency:

• When juxtaposing the problem of an over-powerful Executive with this policy prescription from the field of economics: ‘Government intervention comes at a cost.’
• The opportunity cost to the economy for an additional rupee spent by the government, Empirical estimates, based on a model that compares the inefficiency of government expenditure with the efficiency of private spending, put this figure at about ₹3 in India.
• Multiplying it by the volume of government spending, the figure would be monstrous. This can be interpreted as a ‘cost to efficiency’ imposed by the State.

THE FIX:

Pre-legislative checks:

• The Legislation and Expenditure Accountability Bill, 2022, which was introduced as a Private Member’s Bill on 1 April 2022 in the Rajya Sabha, attempt a solution.
• It demands that the Executive think about its actions before going ahead and weed out those interventions that are doing more harm than good to society.
• The bill goes two steps further than the 2014 Pre-legislative Consultation Policy.
  • First, it is a bill, which means that if it becomes an Act, it will be legally binding on the Government.
  • Second, it adds the dimension of a post-legislative check with fail-safe mechanisms.
• The specifics of the bill revolved around two technical assessments:
  1. a Legislative Impact Assessment (LIA) (and correspondingly, a Scheme Impact Analysis for public schemes) and
  2. a Post-Implementation Assessment (PIA) report.
• The former is a pre-legislative check and the latter a post-legislative one. These ideas are not novel. Such checks are already in place in mature democracies.
• The bill’s idea of a LIA was drawn from US Executive Order 12291 of President Ronald Reagan and remodeled for the Indian system.
• The central principles, however, remain the same:
  1. any law or scheme must be based on the principle that its benefits outweigh the costs, and
  2. Among the various alternatives available, the chosen one confers maximum net benefits.
• Based on these principles, the Executive must present to Parliament an LIA (or SIA) for any major legislation (or scheme) to be introduced.
• This report must offer an assessment of potential costs and benefits to society and analysis.
• Of stakeholders, the objectives of the intervention with clear measurable outcomes, and the experience of other countries, among other things.

Post-legislative checks:

• An accountability mechanism that aims to be comprehensive cannot end there. Even a law commended for its design and intent could see faulty implementation. So, this also needs to be accounted for within the framework of the law itself.
• This warrants that all major laws (or schemes) be evaluated against clear objectives laid out in the LIA (or SIA) using a PIA report.
• The PIA has three aspects:
  1. performance measurement, which evaluates schemes and laws against the objectives defined in the LIA;
  2. impact assessment, which evaluates qualitative aspects like social, environmental, and legal effects and spillovers; and
  3. perception surveys that measure people’s satisfaction.
• All these elements have been borrowed from the Organisation for Economic Cooperation and Development recommendations.

Fool-Proof Accountability mechanism:

• The bill incorporates a fool-proof mechanism to ensure that the accountability mechanism is more than just about presenting reports.
• As India cannot afford an overhang of outdated legislation that does not improve governance outcomes, the bill requires our laws and schemes to have expiry dates (sunset clauses).
• Such a provision would grant us an opportunity to re-make laws and schemes, thus ensuring that our nation stays up to date on evolving dynamics of the world.
• Moreover, if a law or scheme fails its PIA test in three consecutive reviews, it would automatically be repealed.

Conclusion:

• The bill demands considerable effort by the Executive to undertake proper evaluations of schemes and legislative moves.
• Hopefully, it can at least lay the groundwork for a new institutional mechanism to ensure self-probity in public expenditure and law-making.
• It could also serve as a step toward enhancing our national discourse on government intervention.

Source: Live-Mint

Mains Question:

Q. The making of law in India and its effectiveness needs proper assessment to ensure efficient legislation(s). Discuss.