Indian Legislative Processes Need Accountability Framework

By on June 22, 2022 0

A few weeks ago, Rahul Matthan’s “Ex Machina” column in the Opinions section of this document highlighted the need to rethink the country’s pre-legislative consultation process. A key assumption of the paper was the genius nature of a government that could be expected to adhere to an ideal consultation process. However, as Milton Friedman said, “The world is built on individuals pursuing their separate interests.” This article proposes an accountability system within the legislative process itself that monitors self-serving government incentives.

A litany of woes: The Seventeenth Lok Sabha has passed about 150 bills so far. As an indication, 15 bills were passed per session. But while such productivity can be applauded, it has come at the cost of debate and deliberation, two fundamental ideas of democracy that Parliament stands for. Call it the “cost to democracy”. Some laws and conventions of our parliamentary system are the main authors. The executive is an integral part of the legislature, and therefore, when combined with the anti-defection law, it assumes absolute control over the legislature. There was no problem with this arrangement in the era of coalition politics. But it begs us to rethink this system in the face of majority governments.

Juxtapose the problem of an overly powerful executive with this political prescription from the field of economics: “Government intervention has a cost. The marginal cost of public funds reflects this idea: what is the opportunity cost to the economy of an additional rupee spent by the government? Empirical estimates, based on a model that compares the inefficiency of public spending to the efficiency of private spending, put this figure at around 3 in India. Multiplying it by the volume of public expenditure, the figure would be monstrous. This can be interpreted as a state-imposed “efficiency cost”.

In the realm of the feasible, can we design a control inherent in our laws that demands more accountability from the executive to minimize these two costs? More importantly, can we design a politically acceptable check?

The Fix: Pre-Legislative Checks: The Legislative and Expenditure Accountability Bill, 2022 (bit.ly/3zDs98K), which was introduced as a private member’s bill on April 1, 2022 to the Rajya Sabha, attempts a solution. It demands that the executive reflect on its actions before moving forward and weed out interventions that do 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 law, it will be legally binding on the government. Second, it adds the dimension of post-legislative control with safety mechanisms.

The specifics of the bill revolve around two technical evaluations: a legislative impact analysis or LIA (and correlatively an impact analysis of the scheme for public schemes) and a post-implementation evaluation report. work (PIA). The first is a pre-legislative control and the second a post-legislative control. These ideas are not new. Such controls are already in place in mature democracies.

The bill’s idea of ​​a legislative impact analysis was taken from President Ronald Reagan’s US Executive Order 12291 (bit.ly/3y81eka) and reshaped for the Indian system. The central principles, however, remain the same: any law or regime should be based on the principle that its benefits outweigh its costs and that, of the various alternatives available, the one chosen confers the maximum net benefit. Based on these principles, the executive must present to parliament an LIA (or SIA) for any major legislation (or program) to be introduced. This report should offer an assessment of the potential costs and benefits to society, a stakeholder analysis, the objectives of the intervention with clear and measurable results, and the experience of other countries, among others.

Post-legislative controls: an accountability mechanism that claims to be comprehensive cannot stop there. Even a law praised for its design and intent could see its implementation flawed. This must therefore also be taken into account within the framework of the law itself. This ensures that all major laws (or programs) are assessed against clear objectives set out in the LIA (or SIA) through a PIA report. The PIA has three aspects: performance measurement, which assesses regimes and laws against the objectives set out in the LIA; impact analysis, which assesses qualitative aspects such as social, environmental and legal effects and consequences; and finally, perception surveys that measure people’s satisfaction. All of these elements were taken from the recommendations of the Organization for Economic Co-operation and Development to which the “Ex Machina” article alluded.

Finally, the bill incorporates a foolproof mechanism to ensure that the accountability mechanism is not limited to reporting. As India cannot afford an excess of outdated legislation that does not improve governance outcomes, the bill requires our laws and programs to have expiry dates (sunset clauses). Such a provision would give us the opportunity to remake laws and regimes, thereby ensuring that our nation remains up to date with changing world dynamics. Additionally, if a law or program fails its PIA test on three consecutive reviews, it will automatically be repealed.

The ideas in this bill all sound good. But we have a simple question: what about its implementation? After all, the bill requires considerable effort on the part of the executive to undertake proper assessments of regimes and legislation. Hopefully, he can at least lay the groundwork for a new institutional mechanism to ensure self-probity in public spending and law-making. It could also serve as a step towards improving our national discourse on government intervention.

Sujeet Kumar, Vedant Monger and Vikram Vennelakanti are, respectively, a Rajya Sabha member of the Biju Janata Dal and former Legislative Assistants to Members of Parliament (LAMP)

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