Lost in implementation
Overhaul rulemaking process to prevent government bypassing the will of Parliament
Parliament has recommended that government should make rules within six months of a law being passed.
The budget session of Parliament has been a productive one. Parliament passed 18 bills. Four of these are for implementing the Goods and Services Tax regime, and five relate to the Union budget. Parliament also enacted laws for increasing the maternity benefits, promoting access to mental health care, preventing discrimination against persons with HIV, increasing penalties for drunken driving and regulating road safety.
Law making by Parliament is the first step in addressing gaps in our legal system. Laws are ideas and the details of their implementation come through rules. It is the implementation of the law that tests its effectiveness in addressing problems on the ground. Poor implementation will make even the greatest law ineffective. Rules framed by the government are used to operationalise laws. These rules provide the nuts and bolts of the law and prescribe how people engage with it on a daily basis. The rules made by the government are therefore as important as the law enacted by Parliament. However, rulemaking to implement laws suffers from three major problems.
First, a law made by Parliament cannot be administered if the government does not frame the rules. The poster child of this issue is the Benami Transactions Act. Enacted in 1988, this law gave the government power to confiscate benami properties. For more than 25 years, such properties were immune from seizure in the absence of framing of relevant rules under the law by the government. Even today, there is no information about the complete, partial, or zero implementation of a law in the absence of rules being framed.
The second problem is the lack of citizen and expert voices in the rulemaking process. Public consultation and feedback can identify potential pitfalls in the implementation of law. However, only a handful of laws made have required inviting of public feedback on rules. The government also does not have a consistent mechanism for soliciting feedback while making rules.
The third problem is the severely limited resources of Parliament to scrutinise rulemaking by the government. Last year, approximately 1,200 rules under different laws were made. Parliament has only two committees to examine these rules. Besides the sheer volume of work, their task is further complicated because they have to review technical rules made under various laws.
More than a thousand laws are operational in our country. Our rulemaking process needs overhauling to ensure consistency between the intent of Parliament while making laws, and implementation of these laws through rules by the government. Several recommendations have been made to address issues related to the rulemaking process.
Parliament has recommended that government should make rules within six months of a law being passed. For the government to adhere to this timeline, it suggested that the process of rulemaking should start in parallel with the drafting of the law. Implementation of these recommendations will ensure that the government cannot bypass the will of Parliament and is forced to implement all laws. To ensure scrutiny of rulemaking by Parliament, the government should be required to make regular statements before Parliament regarding the status of framing and operationalising rules under various laws. In 2014, the Committee of Secretaries under the chairmanship of the Cabinet Secretary recommended that all new principal laws should contain a provision for publishing draft rules. Compliance with this recommendation will increase public participation and highlight issues with the draft rules before they are rolled out.
Parliament has 24 subject-specific committees which scrutinise laws. These committees also oversee the work of different ministries. The rules of Parliament should be updated so that instead of two committees, these 24 committees are empowered to review rules made by the ministries. Given their focus on overseeing specific technical and sectoral matters related to various ministries, such a change will bring much-needed rigour to the scrutiny of rules by Parliament.
The government must recognise that getting a law approved by Parliament is only half the battle won. The law merely provides the framework for a solution. To effectively implement it, the government will have to draft detailed rules.
The writer is head of Legislative and Civic Engagement, PRS Legislative Research
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