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A triple test for new legislation | Analysis – analysis


Governments are on a legislative spree. When legislatures are not in session, as is currently the case, the Indian Constitution empowers the government to make laws through executive action. The central government has enacted ten new laws in the past two months. Four were recently made. Two of these are new legislation aimed at “boosting rural India and agriculture”. The third protects companies from insolvency proceedings for breach of their financial commitments after March 25. The latter grants power to the government to regulate the supply of food such as cereals, oils, legumes in extraordinary circumstances.

India’s statute books are filled with more than 6,000 laws passed by the Center and state governments. They are the preferred problem-solving tool for all governments. But laws are also forceful instruments that have a great impact. Therefore, the use of laws for governance intervention raises three key questions.

First, how well are these laws made? Effective laws are the result of a solid law-making process. Over the years, both the government and Parliament have tried to generate more rigor in this process. But not all laws go through a standardized law-making process. Some laws navigate through the process, avoiding multiple layers of scrutiny. The ordinances, which are laws made by the government to deal with an emerging situation when Parliament is not in session (such as those mentioned above) are an example of this. They are seldom sent to a parliamentary committee for review. But the rationale for their existence – that is, to deal with an emerging situation – makes it critical that Parliament examine them carefully and in a timely manner. Even more so when it comes to new laws or significant amendments to existing legislation.

The second question is whether these laws serve their intended purpose. Take, for example, the Interstate Migrant Workers Act, 1979. Its purpose is to prevent the exploitation of migrant workers. It begins by admitting that “the provisions of the various labor laws are not being observed in your case and are subject to various malpractices.” Another example is the law to eliminate the inhumane practice of manual harvesting. The 2013 bill that was enacted into the law admitted that an earlier law made 20 years ago was ineffective. Clearly, making a law is not a guarantee that it will solve a problem.

After the initial excitement of passing a new law subsides, it seems to be forgotten in our statute books. There are no regular checks to ensure it works well on the ground and if the law needs to be revised. In 2019, at a public conference, Vice President M Venkaiah Naidu emphasized the importance of the post-legislative impact assessment of laws. A parliamentary committee headed by Rajya Sabha, Member of Parliament Bhupender Yadav, is currently examining how the laws can be evaluated to measure their impact. The report of this committee will be essential to reduce the gap between the intention of the laws and their implementation.

The last question regarding laws is whether their use is appropriate in a particular situation. In the 1960s, two American academics, Kaplam and Maslow, popularized the phrase: “If all you have is a hammer, everything looks like a nail.” Also called the instrument law, the axiom is a reference to over-reliance on a familiar tool, regardless of its suitability to solve a problem.

A recent example is the use of laws to address complex issues raised by the coronavirus pandemic. The closure of business establishments after the first blockade left large numbers of workers without a source of livelihood. To address the problem, the government ordered employers to pay full wages to workers during the shutdown period. With little or no income during the lockout, the companies themselves faced financial problems. They asked the Supreme Court, which ordered the government not to take action against them.

With workers unable to make ends meet, they began to return to their home states. When the closure was eased, commercial establishments began to open slowly. But by then, there was a shortage of workers. To address this problem, state governments allowed factories to increase their working hours to 12 hours per day.

The thinking process was that fewer people could work longer hours to make up for the shortage of workers. In retrospect, perhaps these legal measures alone were not appropriate to address the distress faced by workers and businesses.

The pandemic has led to the creation of new laws to deal with the unprecedented situation. But for laws to be effective, they cannot be a simple exercise on paper. They should be done carefully, sharpened regularly and used judiciously.

Chakshu Roy is the chief of legislative and civic engagement, PRS Legislative Inquiry

The opinions expressed are personal.

Hindustan Times