Engaging with Policy Makers

PRS LEGISLATIVE REVIEW

This Primer attempts to explain the process by which a citizen group can participate and become actively involved in the process of lawmaking.  A number of cases have been used to demonstrate how civil society groups have been able to engage in the process of law making.

Right to Information Act, 2005

The campaign for the right to information was started by a group of workers in a village in Rajasthan when they were not paid by the government for work done during a famine.  They formed a citizen group, Mazdoor Kisan Shakti Sangathan (MKSS).  This group was supported by several social activists and the press, and led to the formation of the National Campaign for People’s Right to Information (NCPRI) in 1996.

The NCPRI and Press Council of India formulated an initial draft of a right to information law in 1996.  The government introduced the Freedom of Information Bill in 2002. In August 2004, the NCPRI suggested a set of amendments to the Freedom of Information Act, 2002.  The National Advisory Council (NAC) endorsed many of these proposals, and the government introduced the Right to Information Bill in December 2004.  The law was enacted in 2005. 

The RTI Act is an example of how citizens groups can significantly affect government policy. This Primer explains the process by which a citizen group can participate and become actively involved in the process of lawmaking.  A number of cases have been used to demonstrate the various ways in which civil society groups have been able to engage with the legislative process. 

Who makes laws?

In India, the lawmaking bodies are Parliament at the central level and Legislative Assemblies and Councils at the state level.  Parliament consists of two Houses:  the Lok Sabha, or “House of the People,” and the Rajya Sabha, or “Council of States.”

How is a law made?

The process of enacting a new law can be broadly divided into four steps:

Step 1:   The need for a new law, or an amendment to an existing piece of legislation, is identified. This may be done either by the government or by citizen groups who can raise public awareness regarding the need for the law.

Sometimes individual Members of Parliament (MPs) can introduce Bills in Parliament, known as private member Bills, as ways to highlight the need for a law.  While such Bills are almost never passed into law, they can provide a framework or a context within which the government can introduce its own legislation on the same issue.

Step 2:   The concerned ministry drafts a text of the proposed law, which is called a ‘Bill’The Bill is circulated to other relevant ministries for inputs. Comments from the public on the proposed draft may also be invited. The draft is revised to incorporate such inputs and is then vetted by the Law Ministry.  It is then presented to the Cabinet for approval.

Step 3:   After the Cabinet approves the Bill, it is introduced in Parliament.  Under the Indian political system, Parliament is the central legislative (or law making) body.  Every Bill goes through three Readings in both Houses before it becomes an Act.

·         During the First Reading the Bill is introduced.  The introduction of a Bill may be opposed and the matter may be put to a vote in the House.  In August 2009, the Law Minister withdrew the motion to introduce the Judges (Disclosure of Assets and Liabilities) Bill as many MPs were opposed to the Bill, on grounds that it violated the Constitution.

After a Bill has been introduced, the Presiding Officer of the concerned House (Speaker in case of the Lok Sabha, Chairman in case of Rajya Sabha) may refer the Bill to the concerned Departmentally Related Standing Committee for examination.  The Standing Committee considers the broad objectives and the specific clauses of the Bill referred to it and may invite public comments on a Bill.

On rare occasions, Bills which come under the ambit of a number of different ministries, may be referred to a Joint Committee.

The Committee then submits its recommendations in the form of a report to Parliament.

In the Second Reading (Consideration), the Bill is scrutinized thoroughly.  Each clause of the Bill is discussed and may be accepted, amended or rejected.

During the Third Reading (Passing), the House votes on the redrafted Bill.

If the Bill is passed in one House, it is then sent to the other House, where it goes through the second and third readings.

During the second reading, the government, or any MP, may introduce amendments to the Bill, some of which may be based on recommendations of the Standing Committee.  However, the government is not bound to accept the Committee’s recommendations.

 Step 4:   After both Houses of Parliament pass a Bill, it is presented to the President for assent.  She has the right to seek information and clarification about the Bill, and may return it to Parliament for reconsideration.  (This may be done only once.  If both Houses pass the Bill again, the President has to assent.)

Step 5:   After the President gives assent, the Bill is notified as an Act.  Subsequently, the Bill is brought into force and rules and regulations to implement the Act are framed by the concerned ministry, and tabled in Parliament.  In some cases, if the provisions in the Bill permit, the ministry may bring the Act into force over a period of time rather than all at once.  For instance, various sections of the Food Safety and Standards Act, 2006 were brought into force in three different stages between August, 2006 and August, 2008.  A number of sections of the Act have not yet been brought into force as of date.

Is the above process always followed?

This process is almost always followed.  However some Bills may not be referred to a Standing Committee. Bills such as the SEZ Bill, 2005 and the National Investigation Agency Bill, 2008 were not sent to a Standing Committee.

How is public participation possible during the process of lawmaking?

Step 1:   The role which can be played by citizen groups before and while the Bill is being drafted.

The case of the Right to Information Act cited on Page 1 is an example of citizen groups coming forward to participate in legislative the process of lawmaking.  Beginning with a movement started by a group of citizens, the law eventually became operational in October 2005.

Step 2:   When the government asks for public feedback on a Bill

Even before a Bill has been drafted, the relevant ministry might choose to advertise and seek inputs from experts and citizens.  This, though, is a rare occurrencen some cases, the concerned ministry drafts a new legislation and seeks public feedback before sending it for Cabinet approval.

A New Police ActThe current Police Act dates back to 1861.  The government felt the need to update this Act.  The Ministry of Home Affairs had invited suggestions from individuals and citizen groups which may be incorporated into a new Bill.

Draft Protection of Women against Sexual Harassment at Workplace Bill, 2007

The Ministry of Women and Child Development had prepared a Bill intended to provide for the protection of women against sexual harassment in the workplace. The ministry had put up a draft of the Bill on its website and had invited comments.

Step 3:   Engaging with Standing Committees.

After a Bill has been introduced, it is usually referred to the concerned Standing Committee which invites various stakeholders and experts for their suggestions.

This provides another opportunity for civil society and the public to get involved in legislation. Fifteen witnesses deposed before the Standing Committee on Rural Development while it was preparing the report on the National Rural Employment Guarantee Bill.  All Standing Committee meetings are closed door sessions which are not open to the general public or the media.  Citizens groups can approach the relevant Committee to ask to be allowed to depose before it.

The Scheduled Tribes (Recognition of Forest Rights) Bill, 2005

The Bill sought to recognise the rights of forest dwellers to land occupied by them.  The Bill was referred to a joint committee of Parliament, since it involved issues relevant to a number of ministries such as tribal affairs and environment.  The committee received 109 written submissions from organisations and individuals. In addition, 44 witnesses deposed before it.

The Food Safety and Standards Bill, 2005

The Food Safety and Standards Bill, 2005 seeks to consolidate several laws governing the food sector and establish a single reference point for all matters relating to food safety and standards.  The Standing Committee heard the views of a number of stakeholders including citizen groups such as VOICE, New Delhi, and Gandhi Peace Foundation, Kottayam.

The Maintenance and Welfare of Parents and Senior Citizens Bill, 2007

The Maintenance and Welfare of Parents and Senior Citizens Bill, 2007 seeks to make it a legal obligation for children and heirs to provide maintenance to senior citizens.

The Standing Committee had received written submissions and oral testimony from several groups as it discussed the Bill between May and July, 2007.  Such groups included the All India Senior Citizens Confederation, the Senior Citizens Service Forum and Age Care India, etc.  The Standing Committee submitted its report in August 2007.  The Bill was finally passed and enacted into law in December, 2007.

The government is not bound to accept the recommendations made by the Standing Committee.  In the case of the Food Safety and Standards Act, 2006, the government did not accept any of the Committee’s recommendations.

Even after the Standing Committee has finalised its recommendations, there is scope to reach out to Members of Parliament and political parties.  There are a number of instances in which political parties – allies in the ruling coalition or the opposition parties – have been able to prevent a Bill from being passed in Parliament or by forcing the government to make amendments to the Bill before being passed.

The Pension Fund Regulatory and Development Authority Bill, 2005

The Pension Fund Regulatory and Development Authority (PFRDA) Bill was introduced in Lok Sabha in March 2005.  The Bill proposes a framework for the development and regulation of pension funds in India in order to promote old age income security.  The Standing Committee presented its report in July 2005.  The Committee was in agreement with most of the provisions of the Bill.  However, the Bill was criticized by a number of trade unions and the Left Parties.

Following the opposition to the Bill, the government deferred the discussion and vote on the Bill. Subsequently, the PFRDA Bill lapsed with the dissolution of the 14th Lok Sabha.

Step 4:   After the Bill is passed by both the Houses and goes to the President.

In some rare cases, the President may ask Parliament to reconsider a Bill.

The Parliament (Prevention of Disqualification) Bill, 2006

Article 102 of the Constitution prohibits MPs from holding any office of profit, except that of a Minister or any office specifically exempted.  The Parliament (Prevention of Disqualification) Act, 1959 lists offices which are exempted.

In 2006, several petitions were filed with the Election Commission that a number of MPs were holding offices of profit.  The government introduced a Bill in May 2006 exempting a number of posts (including those held by some sitting MPs) from the definition of office of profit.  The Bill was passed by both Houses and sent to the President for his assent.

The President returned the Bill, seeking clarification on a number of issues, and asked Parliament to reconsider it.  Parliament passed the Bill again without any changes, following which the President gave his assent.  However, a Joint Parliamentary Committee was set up to go into the issues relating to the holding of offices of profit by MPs.

Step 5:   After the President of India has assented to a Bill and it is notified as an Act.

After an Act is passed by Parliament, it can still be challenged in the courts on grounds that it violates the provisions of the Constitution of India.

The AIIMS (Amendment) Act, 2007

In 2007, Parliament passed the AIIMS (Amendment) Act, 2007, which provided for the retirement of the director of AIIMS at the age of 65.

The Act was challenged in the Supreme Court by the then director of AIIMS, P. Venugopal on grounds that the Act was discriminatory and was introduced specifically to superannuate him.

The Supreme Court upheld this petition and struck down the Act.  It also ordered the reinstatement of Dr. Venugopal as director of the institution.

Step 6:   When the rules and regulations to the Act are being drafted.

The government may ask the public for comments and suggestions before framing rules and regulations under the Act

The Food Safety and Standards Act, 2006The Food Safety and Standards Authority of India has been set up under the Food Safety and Standards Act, 2006 to regulate safety and hygiene standards for different foods.

The regulator recently called for public comments on guidelines drafted by it.  The guidelines were put up by the regulator on its website.

During the process of drafting and the Bill being considered in Parliament, a variety of stakeholders may be involved.  The final Act is usually a compromise between competing interests.  Despite this, there is every reason for concerned citizens and groups to make every effort possible to engage with the process and ensure that they are able to make their voices heard. 

http://www.prsindia.org/parliamenttrack/primers/engaging-with-policy-makers-183/

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Undermining Parliament won’t do

Indian Parliament Building Delhi India

Image via Wikipedia

A TRIBUNE CHANDIGARH SPECIAL

Neither the Opposition nor the Government has the right to disrupt the session over any issue, says Subhash C. Kashyap

in recent weeks, we have witnessed so many scandals in high places to the tune of lakhs of crores of public money that we must bow our heads in shame. Disturbingly, the 2G spectrum allocation, the Commonwealth Games, the Adarsh Society and the Niira Radia tapes reveal only the tip of the iceberg. Much more is hidden below the surface.

Parliament, as the supreme representative institution of the people, ought to take serious note of the challenges to our polity posed by the giant scamsters. Members rising above party lines should have deliberated upon ways to quickly identify and punish the guilty and devise systemic reforms to prevent recurrence of such scams.

From day one, the winter session of Parliament has been rendered dysfunctional. The only business it transacted during three weeks was a sham and a disgrace. Supplementary Demands and Appropriation Bills for thousands of crores were passed without any debate by a voice vote amid din. There could be no better evidence of the low levels to which the MPs’ respect for Parliament and public money has descended. The basic issues of large-scale corruption have receded to the backstage and much of the focus is on the long logjam.

The Opposition members were united in demanding a Joint Parliamentary Committee (JPC) for examining the three big scams. They are firm on disrupting Parliament unless this was agreed to. The government is equally firm on its stand that the Public Accounts Committee (PAC) is the appropriate forum for deliberating on financial accounts and the report of the Comptroller and Auditor-General (CAG). In any case, all matters could be discussed in Parliament. The government also offered a CBI probe under the Supreme Court’s supervision.

The Minister of Parliamentary Affairs says that the JPC demand is purely political and illogical. First, if the demand is political, its rejection by the government was equally so. Secondly, Parliament is primarily a political institution meant inter alia for debating political issues. ‘Political’ cannot mean unreasonable or illegitimate. Thirdly, there were compulsions of coalition politics. Some problems arose when for government formation in case of a hung Lok Sabha, a price had to be paid to coalition partners/ supporters, bargains had to be struck and the price demanded had to be paid in the form of creamy portfolios like Telecom.

In such a situation, corruption is inbuilt in government formation. It was known to the Prime Minister and others. It was understood and accepted as unavoidable in the best interests of power polities. Even former Telecom Minister A. Raja’s resignation became possible only after counter pressure and promise of support from a rival provincial satrap.

The Opposition felt that the JPC canvas could be vast while PAC probe would be limited in nature and the Ministers could not be summoned before it. As for the CBI inquiry under the Supreme Court, it was very legitimately wondered how the government could make such an offer or interfere with juridical functions and court’s discretion.

The Opposition asked what was so sinister about demanding a JPC probe. After all, during the NDA regime in 2001, a JPC was quickly conceded by the Prime Minister to probe the Stock Market Crash Scam and related issues. Former Finance Minister Yashwant Sinha, P. Chidambaram and Manmohan Singh as also the Finance Secretary appeared before the JPC. A report was made and its recommendations were largely accepted.

The Opposition disowned responsibility for making Parliament dysfunctional. It asserted that it was the government’s job to make Parliament function. But, as a logical conclusion, it would mean the use of disciplinary powers of the Presiding Officers and the Houses and suspension of members obstructing the proceedings and committing breach of parliamentary privilege and contempt of the Houses.

All the efforts made by the troubleshooters and party managers at all-party luncheon meetings have failed to break the deadlock and evolve a compromise. This was a clear failure of political and floor management skills of the government. The Speaker’s last ditch effort, too, failed.

Clearly, both the government and the Opposition are equally responsible for the ugly impasse. There was an unnecessary, illegitimate and irrational tug of war in the name of the people. But the people are nowhere in the picture. As usual, on both sides, political considerations and calculations of gain and loss have the upper hand. Perhaps, there is an unsaid long-term political concern before the government and the Opposition. Both are eyeing the 2014 general elections. The Opposition would like to drag the matter on through the JPC device and the Congress feared a repeat of what happened to it after the JPC on Bofors.

The people are appalled and dismayed at the shameful levels and reach of corruption involving the UPA-II government headed by Prime Minister Manmohan Singh and advised by the all powerful National Advisory Council. But the Opposition has done precious little to explain to ‘we, the people’ why it insisted on disrupting the proceedings of both Houses. The government also has failed to convince the concerned citizens about the justification, if any, for its unrelenting opposition to conceding the near-unanimous Opposition demand. It is also feared that deliberate dilly dallying on the JPC demand would help one to fudge records and buy and manage evidence. As Parliament has been paralysed, some of the talking was being done through blogs or television channels. The people needed to be informed about parliamentary processes, relevance and respective merits of parliamentary committees. Friends from the media kept enquiring this writer about the difference between a JPC and PAC.

It would have been better to use Parliament to talk to the people and educate them through debates about the arguments of both sides. The Opposition leaders could place all the facts and arguments most forcefully and plead for the appointment of a Joint Committee of the two Houses. The government side could also justify its stand. The people could then form their opinion though in a parliamentary system while the Opposition has the right to have its say, the government, so long as it is in majority, has its way.

Parliament is the chief communication link between the government and the people. Close contact and an intimate rapport between the two is the quintessence of parliamentary democracy. Parliament belongs to the people and not to MPs or parties. People must have access to Parliament. Unfortunately, there is a tremendous disconnect between the two. Things get worse when both Houses do not function and are shut against the people.

If the Opposition was anxious to question the Prime Minister and nail his responsibility, the Lok Sabha was the more effective and legitimate forum than a JPC. However, in a JPC, proceedings are in camera. Interestingly, the nomenclature JPC finds no mention in any constitutional or legal provisions or in the Rules of Procedure and Conduct of Business in the two Houses of Parliament. The term gained currency during and after the inquiry into the Bofors scandal in 1987.

The device of parliamentary committees is intended to assist the Houses of Parliament in the efficient discharge of their functions. There are two types of Parliamentary Committees in India: Standing Committees and Ad hoc Committees. Standing Committees are constituted by the House or the Speaker every year or from time to time and are permanent in nature. Ad hoc Committees are appointed for a specific purpose.

Standing Committees include the Financial Committees and Departmentally Related Committees. Ad hoc committees may be Select or Joint Committees or those constituted to report on specific matters. A committee which consists of members of both Houses is a Joint Committee. The Standing Financial Committee called the Public Accounts Committee is also a joint committee inasmuch as the Rajya Sabha MPs are also associated with it. All the Departmentally Related Standing Committees are Joint Committees.

Both Houses of Parliament have inherent powers to appoint special committees under special circumstances to examine and inquire into specific issues and report to the Houses. Apart from the Standing Committees, Ad hoc joint committees of both Houses have been constituted from time to time on various matters. Technically, these were JPCs. It is, therefore, not correct to say that the JPC on Bofors was the first JPC or that there have been only four JPCs so far. Also, it is incorrect to say that the four JPCs were total failures. A committee can only inquire and make recommendations. It is for Parliament to discuss them and for the government to accept them and take appropriate action.

After Bofors, the nomenclature JPC has in practice come to connote an ad hoc joint committee of both Houses formed for inquiring into a specific scandal of financial wrong doing. A distinctive feature of such committees is their investigatory role. Of the oft-cited four such investigative committees in the past, the first was in 1987 on the Bofors scandal. After crusading for it and blocking Parliament for long, the Opposition boycotted the JPC on the ground that it was packed by Congress members. Even though the Opposition boycotted the JPC on Bofors, its inquiry led to mass resignation of Opposition members and ultimately the change of the government. The Union Cabinet itself was split with V.P. Singh putting himself up as an anti-corruption Messiah.

The second JPC was formed in 1992 to investigate the Securities Stock Scam involving Harshad Mehta and other brokers. Parliament was largely paralysed for two weeks before the JPC was conceded. The third was set up in 2001 to investigate the Shares scam involving Ketan Parekh, banks and corporate Houses. From March 13, 2001, Parliament was paralysed for nine days after the Tehelka expose. In April, after another week of adjournments, the Opposition Congress demanded a JPC. On the issue of irregularities in defence purchases during the Kargil conflict, it again demanded a JPC. These demands were rejected. The political parties demand JPC when in the opposition and oppose it when in the government.

A joint committee may be appointed on a motion adopted by the two Houses and may contain the names of its members. It may also be appointed by the Speaker of Lok Sabha and the Chairman of the Rajya Sabha after mutual consultation. Members of some Standing Committees including the Public Accounts Committee are elected according to the system of proportional representation by means of single transferable vote. This may be so even in the case of some ad hoc committees. But even if the committees are constituted by the presiding officers, proportional representation of parties is kept in view and the numbers in committees represent the party position in the Houses, i.e. by and large the ruling party or parties remain in majority in the committees as well. In case of the PAC, by convention, the Chairman has been from the Opposition since 1967.

The Comptroller and Auditor-General of India is an independent audit agency. To the extent that the executive is accountable to Parliament in financial maters, the CAG works as the watchdog on behalf of Parliament. Parliament’s effective functioning depends largely on the CAG’s assistance who is considered its friend and guide.

In the present case, the CAG had done his job and his report was laid before the two Houses. It had unearthed a major scam and pointed out blatant and substantial irregularities causing a loss of Rs 1.76 lakh crore to the public exchequer. Without a public and transparent auction, the 2G spectrum licences were given away to companies with doubtful credentials in 2008 at throwaway prices by former Telecom Minister A. Raja. Two companies which had bought the licences for Rs 1500 and Rs 1600 crore, after a few weeks, sold their stakes for Rs 12,000 crore!

In parliamentary committees, the effort always is to function on non-party lines. Decisions are taken unanimously or by consensus but the rules provide for all questions at any sitting of a committee being taken “by a majority of votes of the members present and voting.” On crucial issues involving party susceptibilities, therefore, it would not be easy for the Opposition to have its way against the government. It may be, therefore, wrong for the Opposition to believe that they would be able to compel the presence of the Prime Minister or other Ministers before the JPC. The majority in the committee may overrule such suggestions. Also, under the rules, the question may be “referred to the Speaker whose decision shall be final.”

In the PAC, a minister is not called before it to give evidence or for consultation in connection with the examination of accounts. A minister may appear before it if the Chairman agrees. Also it can be so arranged between the Speaker, the Committee Chairman and the minister concerned that he appears on his own.

If the Opposition can be convinced that it should not appear to be stalling the proceedings of the House and the government realises that it need not be seen as avoiding inquiry, there may be a way out of the present impasse whereby the concerned ministers and even the Prime Minister may appear before the PAC. The committee can also go beyond the CAG report and take suo motu notice of allied issues. This would only require an initiative and a promise from the Prime Minister himself.

The Opposition had a golden opportunity to draw maximum political advantage by providing good leadership, clean citizen-friendly governance and inclusive politics. They could make corruption a major issue and launch a massive campaign against it through speeches in Parliament instead of disrupting it and sipping coffee in the Central Hall.

Meanwhile, the Supreme Court has asked the CBI counsel not to beat about the bush when illegality was prima facie evident. It has castigated the CBI for tardy investigation and asked why Mr A. Raja and then Telecom Secretary P.J. Thomas (currently the Chief Vigilance Commissioner) have not been questioned. It has also questioned the legitimacy of Mr Thomas’ appointment on the ground of pending charges against him and his controversial role as Telecom Secretary.

The saddest part of the current debate in the media and among the pro-establishment pseudo-liberal intellectuals is that there is no willingness to call a spade a spade and condemn wrong doing. Cheating by those in power is countered and defended by pointing fingers at similar cheating by the Opposition parties when they were in power. Party ‘A’ accuses Party ‘B’ of swindling public money and vice versa. The blame game continues while the losers are we, the aam admi.

The Opposition pressure, the Supreme Court’s observations and the public outcry against corruption are beginning to impact the government inasmuch as notices have at last been issued to companies asking them why their 2G spectrum licences should not be cancelled. If Mr Thomas doesn’t quit voluntarily, there may be a strong case for seeking annulment of his appointment as mala fide and ab initio illegal and void.

The ultimate question is whether the political class — the largest beneficiaries of corruption — has at last realised that enough is enough and the people won’t accept the sordid state of affairs anymore.

The writer, a noted constitutional expert, is a former Secretary-General, Lok Sabha

http://www.tribuneindia.com/2010/20101205/edit.htm#1