A parliamentary Bill/Act has a beginning and an end. A Bill can have a smooth passage or a turbulent journey. But in this process, there is no provision for participation by the people.
The result is that Bills/Acts do not sub-serve the objectives for which they are enacted. They are compromised. The Lokpal Bill is an example — in its present form, it is toothless with no power to deal with the menace of deep-rooted corruption. It cannot be dislodged without an empowered Lokpal. But the journey of a bill is preordained and the rules are such that the government can get off scot-free.
Our Constitution contemplates a government of the people, by the people and for the people. Yet, when it comes to actual implementation, people have no role in formulating laws.
The starting point for a legislation in India is the initiation of a proposal in a government department. The views of other ministries/departments are sought. A draft of the bill is prepared along with a note outlining the need, scope and object of the legislation. The note and the draft bill are placed before the Cabinet for its approval; thereafter it makes its way to the Lok Sabha.
Ordinary citizens have no say or role in drafting/contributing to the bill. While Indian democracy is meant to be participatory, this is far from the truth.
In comparison, the legislative process in other nations (Britain, Singapore and New Zealand) encompasses publication of a green-paper/white-paper (a statement of intent) that solicits views from civil society. Drafting is often placed in the hands of a parliamentary counsel and expert lawyers, which is in line with the concept of a participatory democracy and respects the wisdom of the common man.
The recent controversy surrounding the Lokpal Bill brought these issues to the fore. Civil society had to wage a long and hard fight though the benefits of civil society participation are many: it gives greater legitimacy to legislation, a sense of participation to the people and allows experts to give their valuable inputs. We need to urgently create a structured process for people’s participation.
Certain examples within the existing set-up can be emulated and extended. Regulatory bodies created in the infrastructure sector, for example, in telecom, power/electricity, airports follow an elaborate system of public consultation with all stakeholders. A recent example is of the telecom ministry where a retired judge of the Supreme Court (Justice Shivraj Patil) has been recruited to draft a new act (the National Spectrum Act). There is no reason why these best practices can’t be incorporated in the life cycle of a parliamentary Bill/Act.
Shutting the door on people will shut out good ideas. Good ideas are not the sole prerogative of bureaucrats in the legislative department of the law ministry. They are like a factory dishing out Bills one after another, in several cases a cut and paste job with no application of mind. For example, the transparency requirement in Sec.13(4) of the Airports Economic Regulatory Authority (AERA) Act and the Telecom Regulatory Authority Of India (TRAI) Act is the same. Similar is the case with provisions for protection of actions in good faith [Sec.45 AERA Act, Sec.55 the Petroleum And Natural Gas Regulatory Board (PNGRB) Act, Sec.168 Electricity Act, Sec.28 TRAI Act], power to remove difficulties [Sec.39 AERA Act, Sec.59 PNGRB Act, Sec.183 Electricity Act, Sec.55 TRAI Act], power to make rules [Sec.51 AERA Act, Sec.60 PNGRB Act, Sec.176 Electricity Act, Sec.35 TRAI Act].
This is an unhealthy trend and a bad precedent as the common man’s ‘first hand experience’ is crucial for dealing with corruption. Voices from the ground, of people with rich experience and uncluttered minds, will ensure a potent end-product.
People power and power to the people will have a huge impact. Legislation will then fulfil the aspirations of the nation and serve the real constitutional objectives. Such a ‘bill’ when presented in Parliament will bring a smile to the faces of the founding fathers. What a Bill really needs is will (if not of the government, at least of the people).
(Gopal Jain is a Supreme Court advocate)
The views expressed by the author are personal