POST-LEGISLATIVE SCRUTINY TO IMPROVE QUALITY OF LAWS

 Background

• India, a country which has one of the highest numbers of laws on its statute books, however, 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.
• Post-legislative reviews can assess whether the objectives and the anticipated effects of legislation have actually taken place on the ground.
• 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such as making pre-legislative scrutiny of Bills mandatory through public feedback and identifying laws that need to be repealed but there is little discussion yet regarding the need for post-legislative review of laws.

What are the benefits of ex-post law reviews?

• To discover whether a law is working out in practice as it was intended
• To assess whether the objectives and the anticipated effects of a piece of legislation have actually taken place on the ground
• If not, to understand the reason and address it quickly and cost-effectively
• It also helps to 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 would translate into better laws.

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.
• The UK requires its 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.

The way ahead:

• There is an urgent need to develop a “better regulation” policy tool for India on the similar lines of above countries.
• 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.

By: Mona Kaushal