A three-fold test for new legislations
Has it been subject to scrutiny? How will it be implemented? Is it appropriate for the issue?
Governments are on a law-making spree. When legislatures are not in session, as is currently the case, India’s Constitution empowers the government to make laws through executive action. The central government has made ten new laws in the last two months. Four were made recently. Two of these are new legislations which aim is to give a “boost to rural India and agriculture”. The third protects companies from insolvency proceedings for defaulting on their financial commitments after March 25. The last one gives power to the government to regulate the supply of food items like cereals, oils, pulses in extraordinary circumstances.
Indian statute books are overflowing with more than 6,000 laws passed by the Centre and state governments. They are the preferred tool for problem-solving for all governments. But laws are also blunt instruments which have a large impact. So the use of laws for governance intervention raises three key questions.
First, how well are these laws made? Effective laws are the outcome of a robust law-making process. Over the years, both the government and Parliament have tried to bring about more rigour to this process. But not all laws go through a standardised process of law-making. Some laws sail through the process, bypassing multiple layers of scrutiny. Ordinances, which are laws made by the government to deal with an emergent situation when Parliament is not in session (such as those mentioned above) are one such example. They are rarely sent to a parliamentary committee for examination. But the rationale for their existence, ie to tackle an emergent situation, makes it critical they be scrutinised carefully and in a timely manner by Parliament. More so when these are brand new laws or significant amendments to existing legislations.
The second question is whether these laws accomplish their intended purpose. Take for example the Inter-State Migrant Workmen Act, 1979. Its purpose is to prevent the exploitation of migrant workers. It starts by admitting that “the provisions of the various labour laws are not being observed in their case and they are subjected to various malpractices”. Another example is the law to eliminate the inhuman practice of manual scavenging. The 2013 Bill that was enacted into law admitted that a previous law made 20 years ago was ineffective. Clearly, making a law is no guarantee that it will solve a problem.
After the initial excitement of passing a new law wanes, it seems to be forgotten on our statute books. There are no regular checks to ensure that it is working well on the ground, and whether there is a need for revising the law. In 2019, in a public lecture, Vice President M Venkaiah Naidu stressed on the importance of post-legislative impact assessment of laws. A parliamentary committee headed by Rajya Sabha Member of Parliament Bhupender Yadav is currently examining how the evaluation of laws can be done to measure their impact. The report of this committee will be instrumental in reducing the gap between the intent of laws and their implementation.
The last question with respect to laws is whether their use is appropriate in a particular situation. In the 1960s, two American academics Kaplam and Maslow popularised the phrase, “If all you have is a hammer, everything looks like a nail.” Also termed as the law of the instrument, the axiom is a reference to the over-reliance on a familiar tool, irrespective of its suitability to solve a problem.
A recent example is the use of laws to address complex issues thrown up by the coronavirus pandemic. The closing down of commercial establishments after the first lockdown left a large number of workers with no source of livelihood. To address the problem, the government directed employers to pay full wages to workers for the lockdown period. With little to no earnings during the lockdown, businesses themselves were facing financial trouble. They petitioned the Supreme Court, which directed the government not to take action against them.
With workers unable to make ends meet, they started heading back to their home states. When the lockdown was eased, commercial establishments slowly started opening up. 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 a day.
The thought process was that fewer individuals could work for longer hours to make up for the shortage of workers. In hindsight, perhaps these legal measures on their own were not appropriate to address the distress faced by workers and businesses.
The pandemic has led to calls for creating new laws to deal with the unprecedented situation. But for laws to be effective, they cannot be a simple exercise on paper. They have to be carefully made, regularly sharpened and judiciously used.