Quality of Governance

Regulation takes different forms in India. There are ordinances and statutes by the parliament or state legislatures; rules, circulars, orders, and schemes by executive agencies; and orders by the courts. As is commonly known, rule-making in our country is disorganised with new rules added on the fly, without review of existing regulation. The public consultations are rarely transparent. Consideration for costs and benefits, compliance burden, or regulatory coherence is a rare phenomenon. Our latest paper titled ‘How does India fare on Regulatory Hygiene’ is the first in a series of papers that will capture the lack of quality of regulation in India and suggest reforms. In this paper, particularly, we lay out India’s performance on global best practices on rule-making hygiene. Below is a summary of the findings.

Why should India care about regulatory hygiene?

India scored 3.5 out of 5 on the World Bank’s Global Indicators of Regulatory Governance (GIRG). Not surprisingly, a country’s performance on GIRG is closely tied to the Bank’s Doing Business rankings. 43 out of the top 50 countries in the doing business rankings score substantially higher than India on GIRG. These countries mandate rigorous measurement of regulatory costs and benefits, conduct public consultations, and periodic fitness check of rules on the books.

We argue that our aspiration to enter the ranks of top 50 on World Bank’s Doing Business index will only come once we move up on the governance reforms and institutionalise hygiene in our rulemaking process.

How does India fare on Regulatory Hygiene?

We examine how India performs on 5 parameters of regulatory hygiene:

  • Impact Assessment: Government of India and state governments do not measure the potential impact of regulations on entrepreneurs, enterprises or consumers. In the absence of ex-ante impact assessment, the government relies on anecdotes or lobbying, resulting in lopsided or reactive regulatory responses. Despite recommendations by multiple committees and a policy on pre-legislative impact assessment and consultation, government agencies do not conduct impact assessments.
  • Public Consultations: In India, there is no law that binds the government to consult the public before the enactment of a law, publish comments, or report the results of the consultation. As a consequence, the practice of soliciting comments and reporting on the results of public consultation is largely superficial. Only select ministries report on the results of consultation.
  • Language of drafting laws: India has, unfortunately, remained untouched by the plain English movement, initiated in several other parts of the world. The movement emphasises on simplifying language, decreasing complexity of laws, and consequently increasing their accessibility. Aside from a select few instances such as the ‘plain and simple’ technique of Indian Financial Code, most laws remain difficult to understand and out of reach for a majority of the population.
  • Ex-post review: An ex-post review ensures that any rule-set, after enactment, remains fit for purpose, cost-effective, and efficient. The GIRG asks four questions on post-legislative reviews, and India’s response to all is ‘NO’. India has currently over 850 Acts at the central level alone, many of which are redundant or archaic. Over the last five years, the union government has repealed 1,428 central Acts. While these initiative to repeal is a positive development, it is necessary that we put in measures to ensure that every Act, by design, is reviewed at a scheduled interval for its intended and unintended consequences.
  • Oversight on subordinate legislation: Most central and state acts subordinate rulemaking to the executive body, i.e., the state or central government. Through the use of judicial scrutiny, public consultations, and parliamentary reviews, the state ensures that delegated legislation does not exceed the scope of the parent Act. If this scrutiny on delegated powers is compromised, the doctrine of separation of powers between the executive, parliament and legislature that ensures that no one branch holds excessive power, is compromised.

While the Supreme Court of India has argued that the parliament maintains ‘strict vigilance and control’ over delegated legislation, research reveals that parliamentary control of delegated legislation is weak.

As evident from the lack of method in our rule-making apparatus, we are not prepared to cope with the demands of a fast-growing, largely informal and diverse enterprise environment. The political class and bureaucrats continue to favor minor tweaks as opposed to substantive reforms in the rulemaking process.

The convening of the Better Regulation Advisory Group by the Department of Industrial Policy & Promotion in February 2018 offered hope. The group was to report its findings within two weeks. However, one year and 10 months later, the findings of the committee are not published.

The ambitious goal of becoming a $5 trillion economy by 2025 can only be realised if the gaps in the rulemaking process are addressed. The approach of one good law at a time is no longer sufficient. The system should be redesigned such that every rule on the law book meets its objectives in the least harmful manner.

The paper will be published in the forthcoming issue of the West Bengal National University of Juridical Sciences’ Journal of Indian Law and Society.

India, one of the largest democracies in the world with an ever-rising population, has had, several statutes that with the advent of time have become obsolete, redundant or repetitive. In addition to this, there is the matter of inconsistent language and dissemination- making it difficult for an ordinary citizen to access and comprehend the plethora of legal information with ease. This increased transaction cost coupled with glaring redundancy further breeds fertile grounds for corruption, discouraging engagement of individuals and firms with the society/ economy at large.

 

Centre of Civil Society (CCS) initiated the 'Repeal of 100 Laws' Project in 2014 with the aim to identify laws that could be repealed on account of three reasons

 

  • Redundancy
  • Obsolescence in the face of new laws
  • Hindrance to development, governance and freedom.

 

For the 2018 edition of the Repeal of Laws initiative the following state compendiums have been prepared:

 

 

APPEAL FOR REPEAL LAW DAY

 

Centre for Civil Society, in an effort to institutionalize the repealing of laws as a constitutional practice for the Republic of India, brought together like-minded organizations, scholars, academicians and lawyers to acknowledge 26 November as the Appeal for Repeal Law Day. Its objectives were:

  • To celebrate the diversity of our legal system and have a constructive dialogue around the process of repealing of laws
  • To launch the compendiums constituting the recommended laws for repeal in the aforementioned 6 States

To mark this day, we launched the Repeal Law Compendiums constituting the recommended laws for repeal in the aforementioned 6 States. The launch was followed by a panel discussion on ‘Exploring Alternatives: Institutionalization of Repeal of Laws’. Our esteemed speakers for the panel consisted of India’s prominent legal and industry experts such as PK Malhotra, Former Law Secretary, Ministry of Law & Justice, Maneesh Chhibber, Editor (Investigations and Special Projects), The Print, Satya Prakash, Legal Editor, The Tribune, Tariq Anwar, Former Union Minister, Hemant Batra, Founder and Chairman, Kaden Boriss Global and Neeti Shikha, National Coordinator, Repeal of Laws initiative, Centre for Civil Society.

CCS has consistently campaigned for governmental action to repeal redundant and inconsistent laws that promote red tapism and encumber personal, social and economic freedoms. This year, we reinforced our call for the recognition of 26 November - the Constitution Day of India, as the National Repeal Law Day.

To mark this day, we launched the Repeal Law Compendium, a rigorously researched repository of obsolete laws across five states - Maharashtra, Karnataka, Chattisgarh, Telangana, and Uttar Pradesh. The launch of the Compendium was followed by a panel discussion on the Need for Institutionalisation of Repeal of Laws. Our esteemed speakers for the panel included Hemant Batra, Founder and Chairman, Kaden Boriss Global; Maneesh Chhibber, Executive Editor, DNA; Justice A P Shah, Former Chief Justice, Delhi High Court; Parth J Shah, Founder President, Centre for Civil Society; KTS Tulsi, Member of Rajya Sabha and Senior Advocate at the Supreme Court of India.

The essence of good governance is good laws. For rule of law to operate, laws must be well-written and well-coded. Laws must be precise, principles-based, and should stand the test of time. Statues that are obsolete, redundant, repetitive, or inconsistent only create chaos for the masses and provide unnecessary powers in the hands of implementing agencies, weakening the social fabric and incentivising corruption.

During the campaigns for the 2014 General Election, BJP candidate Shri Narendra Modi promised the electorate that on being elected, he would make a sincere attempt at statutory legal clean up. The commitment was that for every new law passed, 10 redundant ones would be repealed, and that in his first 100 days in office he would undertake to repeal 100 old, burdensome laws. The Bhartiya Janata Party led National Democratic Alliance Government tabled the Repealing and Amending Bill (Third) Bill, 2015 in the Lok Sabha, recommending revision of about 180 obsolete laws. It was also the commitment of Shri Ravi Shankar Prasad, that this exercise of weeding out antiquated laws would be a continuous process.

After the success of Centre of Civil Society’s Repeal of 100 laws Project (in partnership with NIPFP Macro/Finance Group and Vidhi Legal Policy Centre), wherein 100 Central laws were suggested for repeal, of which 23 were formally included in the Repealing and Amending Bill, Centre for Civil Society has launched its Repeal of laws Project- Phase II, via its report that includes laws that warrant immediate repeal in Delhi, on the grounds of them being redundant, subsumed by newer legislations, or because they pose an impediment to growth, development, good governance and individual freedom.

We believe that while statutory reform is only the beginning of a wider process of legal overhaul, it is perhaps the most important. Without sound laws, India will not provide an enabling environment, neither for citizens, nor for entrepreneurs. Repealing pointless legislation is the first step in this direction.

For the year 2015, a similar report was prepared by us for the state of Maharashtra, wherein  on meeting with them, the State Government acknowledged and agreed to repeal 19 of the 25 laws that were presented to them for repeal.

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Tabled by V. Narayanasamy, Minister of State for Personnel, Public Grievances and Pensions, in Lok Sabha in December 2011, The Right of Citizens for Time Bound Delivery of Goods and Services and Redressal of their Grievances Bill, 2011 was a proposed Indian central legislation which lapsed due to dissolution of the 15th Lok Sabha. This paper enumerates the provisions of the Bill, its obligations and its organizational structure and further enlists areas of dichotomy or possible loopholes after a systematic review of the bill. A comparative analysis of provisions of the Act as implemented across the 19 states is then taken up to find out differences to the approach of the act in various states. The paper further examines how internal and external models have lacked due to incidents of absenteeism, corruption and outreach and assesses the challenges faced by the upcoming e-governance models.

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The essence of good governance is good laws. For rule of law to operate, laws must be well-written and well-coded. Laws must be precise, principles-based, and should stand the test of time. Statues that are obsolete, redundant, repetitive, or inconsistent only create chaos for the masses and provide unnecessary powers in the hands of implementing agencies, weakening the social fabric and incentivising corruption.

During the campaigns for the 2014 General Election, BJP candidate Shri Narendra Modi promised the electorate that on being elected, he would make a sincere attempt at statutory legal clean up. The commitment was that for every new law passed, 10 redundant ones would be repealed, and that in his first 100 days in office he would undertake to repeal 100 old, burdensome laws. The Bhartiya Janata Party led National Democratic Alliance Government tabled the Repealing and Amending Bill (Third) Bill, 2015 in the Lok Sabha, recommending revision of about 180 obsolete laws. It was also the commitment of Shri Ravi Shankar Prasad, that this exercise of weeding out antiquated laws would be a continuous process.

After the success of Centre of Civil Society’s Repeal of 100 laws Project (in partnership with NIPFP Macro/Finance Group and Vidhi Legal Policy Centre), wherein 100 Central laws were suggested for repeal, of which 23 were formally included in the Repealing and Amending Bill, Centre for Civil Society has launched its Repeal of laws Project- Phase II, via its report that includes laws that warrant immediate repeal in Delhi, on the grounds of them being redundant, subsumed by newer legislations, or because they pose an impediment to growth, development, good governance and individual freedom.

We believe that while statutory reform is only the beginning of a wider process of legal overhaul, it is perhaps the most important. Without sound laws, India will not provide an enabling environment, neither for citizens, nor for entrepreneurs. Repealing pointless legislation is the first step in this direction.

For the year 2015, a similar report was prepared by us for the state of Delhi.

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CCS's iJusticeNIPFP Macro/Finance Group, and Vidhi Legal Centre, alongwith lawyers, legislative experts and economists have identified 100 Laws for repeal to help the administration live up to a key election message.

The group recommends for complete repeal 100 laws that are redundant, or materially impede the lives of citizens, entrepreneurs and the government. The Project does not aim to reinvent the wheel. It simply revisits the work and recommendations of several experts before, and provides a clean compendium of low-hanging fruit that can easily be executed with minimal discomfort or encumbrances.

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