Introduction:

            Winter session of parliament is all set to begin on 18th November and will conclude on 13th December. Ahead of the this month long session, the Chairman of Rajya Sabha M Venkaiah Naidu has advocated detailed Legislative Impact Assessment. He called for informed law making in the country by bringing out social, economic, environmental and institutional impacts of legislative proposals. This, he said, will help in realising the stated objectives of various laws.

Legislative impact assessment (LIA):

• It is also called Post-Legislative Scrutiny.
• The idea of legislative impact assessments is slowly getting traction around the world, since there is widespread acceptance of the idea that laws and rules need to be comprehensively analysed prior and post to their enactment so as to minimise such negative externalities, or at the very least, to identify them.
• The intent of the legislation is great in India but the implementation of the law is poor.
• LIA is a method of estimating the likely impacts of government policy before and after it is adopted, and comparing different policy designs to determine which produces the best result.
• The central goal of LIA is to ensure that laws and rules efficiently produce economic, social, and environmental benefits, that is, that benefits justify costs.
• Benefits of LIA :
  • Because of the increased transparency, LIA makes government decision makers more accountable to the public and to Parliament.
• A LIA should be a fundamentally iterative process that seeks to methodically apply a framework that assesses policies and laws at a granular level before they are put into place. Moreover, India should be wary of the manner in which the costs and benefits of proposed legislation and policies are identified for example, laws have persistently sought to undervalue ecosystem services as well as indigenous peoples rights.
• Establishing and following a LIA framework in both letter and spirit would allow us to identify optimal law and policy changes and ensure that preferred options are those that are economically feasible, operationally viable, and socially acceptable, among several other considerations.
• Above all, such a framework would promote transparent and democratic law-making in the country and allow citizens to understand and debate trade-offs created by such laws even before they are formalized.
• Law making is the product of contemporary thinking and equal importance for everyone to participate in India’s duty.

Our legislatures pass laws that have a direct bearing on our lives. It is essential then that laws are carefully examined. Since all laws are enacted with a stated objective, assessing how the law would achieve the said objective becomes the first step in legislative scrutiny. This requires a study of the desired and intended impacts. In addition to having the desired impact, a law also bears indirect and unintended consequences.

 Post-Legislative Scrutiny by Parliament

• As an emerging dimension within the oversight role of parliament, Post-Legislative Scrutiny (PLS) can be considered a broad concept, consisting of two dimensions.
• First, it looks at the enactment of the law, whether the legal provisions of the law have been brought into force. Second, it looks at the impact of legislation, whether intended policy objectives are met, if implementation and delivery can be improved and if lessons can be learnt.
• PLS, often carried out by parliamentary committees, is a prominent feature of parliamentary democracy.
• The three main benefits emerging from PLS:
  • It strengthens democratic governance: legislation adopted by parliament should be implemented and applied in accordance with the principles of rule of law, legality and legal certainty.
  • Because of the increased transparency, LIA makes government decision makers more accountable to the public and to Parliament. 
  • It allows the identification of potentially adverse effects of new legislation and the opportunity to act to prevent these.
  • It enables the consistent appraisal of how laws respond to the issues they intend to regulate. It also enables the legislator to learn from experience, both in terms of what works and what does not and how effective implementation is in meeting objectives, with an eye to making better legislation in future.

Evaluation criteria:

• When conducting a legislative ex-post evaluation, the evaluation criteria would include the progress made in achieving the objectives (main criterion), the side-effects of the law or regulation (positive or negative side-effects), the enactment of the law or regulation, the practical use of the law and regulation, consideration of whether the costs are proportionate to the results, and other criteria.
• It is recognized that legislation may have intended effects as well as unintended side effects.
• Consideration needs to be given as to the time needed after the entry into force of the legislation (for instance, between three to five years after the law entered into force) before conducting an impact evaluation.

Conclusion:

• We have effectively zero evidence-based legislation. If we find ourselves amending the same laws time and again, part of the reason lies in enacting bad laws, to begin with. We have numerous examples of laws that fail to achieve their objective. Therefore, we need to incorporate in the legislative procedure, a framework of legislative impact assessment that would encompass the economic, social, environmental and administrative impact of draft legislation—starting with the problem identification, laying out the policy options, impact assessment, comparing the alternatives in the light of their impact and ending with a scheduled post-enactment appraisal.
• Essentially impact assessment not only helps make better laws but also ensures higher public accountability by requiring reasonable justifications for the enactment and failures of laws.
• This would reduce the misuse of hastily drafted legislation for political gains and make our claims of being a participatory democracy less illusory.
• Concerns regarding the internal capacity of the government are valid in this regard. It may limit the conduct of extensive impact analysis and also indicate towards the requirement of building new institutions for this purpose.
• However, governmental capacities are not augmented in an instant. The aim should be to build these incrementally.
• It should be ensured that the law and the society roughly step up with each other.