India enacted the Narcotic Drugs and Psychotropic Substances (NDPS) Act in 1985 to tackle the growing drug menace in the country. But it is telling that in response to a question in the 16th Lok Sabha, on whether there has been a reduction in substance abuse-related cases, the minister of social justice and empowerment answered that there was “no authentic data” available with the ministry. This is a symptom of the malaise that has plagued India’s law enforcement.
Although India has one of the highest numbers of laws on its statute books—over 2,500 Acts just at the central level—its implementation record is distressingly poor. One of the reasons for the poor performance, aside from design issues, capacity constraints and corruption, is the near complete absence of post legislative scrutiny or review of the laws.
The government, at different points, has taken small steps to design better laws such as making pre-legislative scrutiny of Bills mandatory through public feedback and identifying laws that need to be repealed but these processes are not data-driven or systematic.
A crying need in India
Currently, policy-makers and bureaucrats mostly use anecdotes and evidence provided by non-official sources such as corporates or NGOs and advocacy groups to argue for or against an amendment in a law.
Take, for example, the NDPS Act, 1985. Although some independent studies have shown that drug abuse is a significant issue in Punjab and north-eastern states, neither the central government nor the respective state governments have undertaken a systematic study of the effectiveness of the law. Furthermore, there is little statistical data collected on the subject. The first and last all-India survey that was conducted on drug abuse was in 2004 (data was from 2001). An attempt to conduct another survey was made in 2012, but it could not be completed for various reasons. According to Questions data in the Lok Sabha and on the NSSO website, some pilot surveys were carried out, but the data is not publicly available (an RTI query on the subject elicited a reply that no such survey data was available with NSSO)!
The NDPS Act was amended thrice—in 1989, 2001 and 2014. Each time, the initiative was taken by activists and lawyers. Furthermore, as is evident from a reading of the parliamentary debates, the legislators themselves were hampered in their understanding due to the lack of information about the effectiveness of the law. They tended to rely on harsh punishments to deter drug users and traffickers but produced no evidence to make their case. They also never questioned the government on what evidence the Act was being amended multiple times.
Another example is the Right to Information Act, which came into force in October 2005. Since its enactment, the government has made multiple attempts to curtail some of the powers of the Act on various grounds such as promoting efficiency and effectiveness (in 2006 and 2009, it tried to remove ‘file notings’ from the purview of the Act). Activists have staunchly resisted such attempts. However, the fact remains that there is no objective scrutiny of the effectiveness of the Act so both sides have depended on anecdotal tales to bolster their arguments.
Lessons from other countries
In the 1990s, many European countries as well as the US, Australia and Canada developed “better regulation” policies, which included ex-ante and ex-post evaluation of legislation.
Among European countries, the U.K. required laws to be reviewed within three to five years of enactment. These reviews are conducted by existing departmental select committees on the basis of a memoranda provided by a government department. All Acts passed since 2005 are reviewed with a few exceptions such as budgets, very technical acts and trivial acts. In Germany, ex-post evaluation is systematic and based on a standardised methodology set out in guidelines for public administrators. France requires mandatory periodic evaluation, which is enshrined within the law itself.
In the US, each standing committee, except Committee on Appropriation, is required to review and study, on a continuing basis, the application, administration, execution, and effectiveness of the laws dealing with the subject matter over which the committee has jurisdiction.
In Australia, most laws have to be reviewed within two years and they have to expire after 10 years. In Canada most laws have review and sunset clauses.
Developing a “better regulation” policy for India
India stands to gain by requiring all substantive Bills to have mandatory review and sunset clauses (subject to reviews). These reviews can be designed to assess whether the objectives and the anticipated effects of a Bill have taken place on the ground. They can also identify any unintended effects of the legislation. There would also be the added benefit of requiring the relevant ministry to (a) set out clear objectives and intended effects of the Bill; (b) give quantitative and qualitative data on the subject; and (c) give a detailed budget and man-power planning at the Bill’s drafting stage itself.
To get started, the Law Commission or an expert committee could first decide, with inputs from government and non-government stakeholders, the scope of post-legislative scrutiny by defining its boundaries, the types of legislation that require scrutiny, benchmarks of a successful legislation, the procedure for scrutiny, the body that should undertake the scrutiny and the time-period of the scrutiny.
Of course, this calls for an overhaul of how ministries function. Legislative departments need to be equipped to undertake regular surveys, be trained in monitoring and evaluation and data analysis. Since it would take a considerable time to equip the ministries, in the interim, the government could commission such reviews from reputed institutions. In the long run, this, more than anything else, would allow the present government to deliver on its electoral promise of “good governance.”
The author is associate fellow, Vidhi Centre for Legal Policy