The term ‘legal reform’ has caught the imagination of policymakers, the judiciary and the general public, taking everyone by storm. Suddenly, everybody is clamouring to usher in new laws and weed out redundant ones. The government and the Law Commission have also jumped onto the bandwagon by implementing a slew of new measures to reform laws. However, a crucial aspect of the entire process remains ignored – the quality of Indian lawmaking and also law amending, which functions as the fulcrum of any kind of legal reform.
Moreover, significant legal incidents often prompt a flurry of measures, especially the demand to establish special courts to deliver expeditious justice; even though legal scholars and jurists usually contend that justice should be timely, not hasty.
Now, a report by the Vidhi Centre for Legal Policy seeks to shed more light on the quality lawmaking in India.
Vidhi’s findings underscore why special courts are not really ‘special’ when it comes to delivering justice; rather, they often become vehicles of sloth and injustice.
“Lawmaking and legal reform in India has been, and continues to be made on the basis of anecdote, intuition and common sense, in the absence of any rigorous collection or analysis of empirical evidence,” the report states. This “common sense” is often defined and directed by political expediency and other calculations, mostly aimed at securing brownie points with the powers that be.
More importantly and perhaps for the first time in India, the report focuses on how the quality of legislative debates affects lawmaking. The researches have also crunched some numbers to gauge how effectively laws are actually implemented. And the picture is pretty bleak.
Not only is there an inordinate amount of time between when a Bill is first proposed and when it is passed, but there is also a large gap between when a Bill is formally passed into law and when it is notified in the Official Gazette (which is when a law becomes enforceable).
“Analysing a data set of 44 laws enacted by the Parliament between 2006 and 2015, the report found that on an average, a law took 261 days to come into force and 14% of laws took up to 1000 days to become implementable!”
Moreover, to add to these problems, the rules for implementing the substantive provisions of an Act are rarely accessible to the general public and are seldom discussed in either house of parliament.
For instance, in June 2015, the Maharashtra government, via a circular, mandated that the performance of public prosecutors would be evaluated by the number of convictions they manage to secure. In a legal system, where numerous people are deprived of their right to a fair criminal trial for multifarious reasons, such a mandate is particularly significant and needs to be discussed and debated before being implemented. assumes significance and needs to be discussed and debated. But, the circular was in Marathi and so was not debated in the state assembly.
Shoddy quality of legislative debates
Even a casual observer of parliamentary proceedings knows that the Lok Sabha – which is essential to lawmaking – is crippled by logjams. Either there is complete mayhem which results in the house being adjourned or there are querulous ‘debates’ which prevent any worthwhile business from being conducted.
In a 2013 paper, Victoria Aitken, expert legislative drafter, explains how the quality of legislative debate is directly proportional to the quality of the laws that are being made. Now Vidhi has developed both quantitative and qualitative indices to measure the quality of such debates.
The analysis covers the type of Bill that is being tabled, total time allotted for discussion, the number of disruptions during discussions, the number of amendments proposed by MPs and the total time taken to pass a Bill. Then comes the issue of the time taken to secure presidential assent, which is essential for turning a Bill into an Act.
Thereafter, the report delves into the qualitative aspects of the process – what were the concerns raised by specific MPs, were those who raised such concerns divided along party lines, whether there were discussions regarding the Bill’s constitutional validity, the availability of expert opinions and media reports which informed such debates and so on and so forth.
‘Special’ in name only
A number of laws such as the Prevention of Corruption Act, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act – and also incidents like the 2012 Delhi gangrape – mandate that the special courts be established to effectively deliver justice. It is expected that specially-trained and sensitised judges would preside over these courts. However, Vidhi’s report reveals that not only are these courts severely understaffed but also that regular courts are merely designated as ‘special’ courts. The result – a huge pendency of cases and worse, no justice delivered
For instance, as this writer had pointed out in an earlier article, a special fast-track court for rape cases in Delhi showed symptoms which were only the tip of the iceberg as to how dire the situation is.
It is all well and good to advocate reforms, but if ushered in without the minimum mandatory procedural and qualitative safeguards, the measures are sure to backfire. Vidhi’s report, armed with robust data, substantiates this point.
Saurav divides his time between legal education and journalism, and between Bombay and Delhi.