Law-Making and The Unfinished Constitutional Agenda Of Social Revolution

Democratic polity, unity and integrity of the nation and “Social Revolution” securing dignity of the individual have been the major goals with which the Republic started its journey 63 years ago. Despite some hiccups, the country remained united, democracy flourished through successive elections and civil liberties remained secured. However, the “Social Revolution” articulated in the Preamble and in the Directive Principles of State Policy of the Constitution remained a distant dream despite the impressive growth in the economy. The social justice agenda of Part IV is to be implemented through law-making institutions and processes at the Union and State levels. One would have thought that the institutional arrangements and processes which sustained the colonial legal regime should have been replaced by democratic legal systems at the commencement of the Constitution. Instead, the old legal systems were continued creating a certain dysfunctionality between aspirations in the new laws and the systems supposed to implement the legislative intentions. The poor and the powerless are bound to lose the race when the political class get into unholy alliance with those controlling the levers of legal and economic institutions.

Use of State power to bring in the social revolution is dependent upon the activism of the law-making system in a constitutional democracy governed by rule of law. In the Indian scenario, the prevailing colonial legal order became part of the problem of underdevelopment and destitution rather than part of its solution. The power structure which supported that legal order was supposed to change under pressure of democratic politics and enlightened political leadership. Organized polity can readily manipulate the law and maintain patterns of behaviour that determine who gets what and how much. New laws failed to induce appropriate behaviours leading to desirable change.

Analyzing the reasons why development-oriented laws failed to induce the prescribed behaviour, Robert B. Seidman, Professor of Law and Political Science of Boston University, argued that either the law makers did not take into account the milieu within which the actors chose to obey or disobey the new law, or the laws assumed that the implementing agencies would behave in ways they did not1. “A lawmaker’s task consists in enacting not merely laws with high flown objectives, but laws that work - that is, laws that in practice induce behaviours that tend to solve the social problems that excited the laws. That so many laws never induced the behaviours prescribed, or induced inappropriate behaviours, exhibited a failure of law making2".

There are many participants in the official law-making process. Law making decisions are often made by the Executive though it is the Legislature which gives the stamp of approval. The need for the law is sometimes raised by civil servants who identified a problem, assessed the viability of a law to solve it, got comments from expert committees and stakeholders and prepared a draft for consideration by the cabinet. It is then sent for vetting to the Parliamentary draftsmen/legislative department after which the Bill is again sent for cabinet approval for introduction into Parliament. In Parliament, the Bill is referred to a Select Committee which seeks public opinion and gives its report including amendment. Thereafter the two Houses of Parliament pass it with or without amendments and submits for approval of President. The critical question in the process is how much the legislators contribute to deciding the character, content and viability of the law in relation to the social revolution proposed. No law compels Parliamentarians to do anything which the Directive Principles enjoin them to do (Art. 37). They have the legislative power but no legislative obligation to act against poverty or in favour of health, education and employment of the marginalised sections of people. In fact, even on occasions when important Bills are discussed, the House is half empty. Legislations are passed in hurry within minutes of introduction.

Given the fact that the draftsmen merely write into legalese policies laid down by their political masters who often are under the influence of lobbyists and interest groups, law-making is often an exercise divorced from social reality and the interest of the common man. Lack of deeper understanding of behavioural sciences and the inclination to please the political masters tend to persuade civil servants to push legislative proposals forgetting the need for consultation even with the States. When a civil servant consulted interested parties to a proposed Bill, he generally consulted organised groups closer to government circles rather than the vast mass of under-privileged and unorganised sections who may have no channels to reach out to the influential sections in the bureaucracy.

Government secrecy also prevented the common man even from knowing what is being considered in government circles. The party discipline does not allow individual legislators to vent their views unless the party authorises it. Parties decide to vote for the Bill or not on the basis of advancement of their own political interests which may not necessarily be the interest of the ordinary people. These patterns of behaviour of law makers are shaped by a variety of factors which have little bearing on what the people expect from the legislators. Wide disparities naturally emerge between law in the books and law in action bringing discredit to democracy itself.

Finding devices to permit mass participation in the making of law-making processes is a step to contain the fatal hold of the “bureaucratic bourgeoisie” in the systems that sustain the legal order inimical to social justice. Openness in government sought to some extent by the RTI Act, structured points of access to the law-making process like public hearings, legal impact assessment for structuring implementational mechanisms, wide public circulation of Bill and supporting arguments before it goes for Cabinet approval, involving organisations of the civil society in drafting Bills, conduct of social audit of legislation, strengthening the planning process from below and invoking the petition procedure under Art. 350 to challenge policies are some windows available in this regard for the masses.

In short, in order to explain the failure of laws or legal systems to implement social justice goals, there is need for critical study of law makers, law-making and implementing systems. Law constitutes government’s principal device to affect behaviour and therefore institutions. By stimulating mechanisms for mass participation in the making of laws critical for the Social Revolution, it would be possible to influence the law making processes to take cognizance of the behavioural patterns the given law might generate. Alternatively, the process can stipulate like the environment impact assessment of a new project, a law impact assessment to be made mandatory at least in respect of social sector legislations affecting the common man.

 

Law, Public Opinion and the New Legal Order:

The design of the new legal order consisting of law (Substantive and Procedural), legal institutions and systems are envisaged by the Constitution in its Preamble, the Fundamental Rights and the Directive Principles of State Policy. It would have been relatively easy for the political leadership soon after Independence and the adoption of the Constitution to change over to a new legal order by breaking out of the colonial order because of the advantage of homogeneity of public opinion born out of the idealism of the Freedom Movement. However, when the old legal order was allowed to continue for whatever reasons, challenges to law making grew in intensity and the politics of power and expediency dictated the directions of legal change. The legal order envisaged by Parts III and IV of the Constitution did not receive the attention it deserved with the result the social justice agenda is inadequately legislated and the Governments have been doing fire-fighting operations through the planning apparatus and centrally-sponsored schemes. The much-delayed adoption of the Right to Education Act, sixty years after the Parliament first met, is an example of how the rights-based legal order comes only after sustained struggle even in a constitutional democracy.

The message is that law making cannot be entirely left to the Legislators alone because in a Parliamentary system, politics and expediency play a critical role in shaping the legislative agenda rather than the Constitutional Directives and the legitimate aspirations of the impoverished masses. In fact, the establishment of the National Advisory Council outside the Government involving non-political activists and social reformers and from which, many major policy initiatives concerning the common people emerged in recent times is an indication of this acknowledgment of the need for organised public participation in law making.

To some extent, the function of the Law Commissions is also to elicit public opinion and distil the same towards possible legislative opinion for advancing the constitutional goals. However, the way Law Commissions were constituted, the manner they organised their work and recommendations as well as the attitude successive governments adopted in the matter, did not inspire public confidence on the Commission’s role in bringing about the Social Revolution through law reform. More importantly, despite institutional inadequacies, the Committees of Parliament on legislation attempted to bridge the gulf between public opinion and policy development through legislation. Given the illiteracy of the masses and their inability to articulate their interests to influence legislative opinion, the window offered by the committee system of Parliament is more often used by powerful lobbies working for vested interests in association with political parties. Unfortunately, the powerful print and electronic media controlled by industrial and other influential groups also failed to canvass the case of the marginalised sections; as a the result what got accepted as public opinion was what the media preferred to project on any given issue. In fact, the current debate about the need for regulating the media on its content and priorities is at least partly generated by a public perception of the problem that public opinion in a democracy and its mobilisation and articulation is a sacred duty of those who operate in the public domain.

Legislative opinion in liberal democracies is invariably influenced by public opinion usually articulated by political parties through their manifestos during election time. But what gets finally legislated is vastly different from the party manifestos. As such, there is need for mass campaigning to remind political parties of their election promises and to compel them to act at least on those items which impartial people perceive to be of vital importance to people's interests and for constitutional governance. It is this corrective intervention of public spirited people which leads to campaigns for law making, sometimes against the collective wisdom of Parliament itself. Accommodating such extra-constitutional interventions in the law making process to counteract the bureaucratic articulation of public interest will do some good in the long term to democratic stability and rule of law.

" Examining the law making institutions and processes, the article finds a mismatch between the prevailing legal order and the Social Revolution promised by the Constitution. By increasing space for peoples’ participation in law making, the problem can be addressed. In any case, the author argues, the social justice agenda contained in the Directive Principles cannot be inordinately delayed if the country were to remain united and democracy strengthened."

Another message that recent events convey for law making in the country is that the discipline of co-operative federalism which a “Union of States” warrant cannot be explained in terms of legislative competence or constitutional power alone. It is essentially a matter of consensus-building at the political and executive levels before it is put for Parliamentary debate. A typical example of this formula is what was attempted by the strategy of entrusting the task to an empowered committee of State Finance Ministers to thrash out the GST and other tax law reforms affecting the Union and States. Why this could not be attempted in the matter of Central Government’s role on legislation for internal security is not clear. At least the mechanism of Inter-State Council envisaged by the Constitution could have been tried to formulate legislative opinion in this regard. It is one thing for the Centre to formulate the policy and then try to persuade the States to accept it and quite another for the Centre to use available forums to build a consensus giving due respect to States’ autonomy and to the idea that what is good for the States can be equally good for the Centre as well. Law making at the federal level, particularly in the era of coalition governments, has to necessarily adopt a different approach than what prevailed in the early years of single party governments and unquestioned authority of central leadership.

In this connection, it is relevant to note the marginalisation of Private Members’ Bills in Parliament. It is reported that in the fourteen Lok Sabhas we have had since 1952, more than 3,748 Private Members Bills were introduced of which Parliament considered only fourteen! It is not clear how the issue is determined in Parliamentary procedures. In any case, there is need to strengthen it if public participation is to be encouraged in law making. Equally important is for Parliament to give continuing attention to judicial law making which is usually called “Guidelines pending legislation” as they are based on fact situations brought before court by aggrieved sections for which legislative solutions alone were found appropriate. Instead of condemning Courts for encroaching upon legislative powers, the legislature can act upon court-given guidelines to evolve legislative policies on issues crying for the attention of lawmakers.

Conclusion:

I began this analysis with the observation that a new era of law making for the promised Social Revolution has emerged and participation of people beyond their elected representatives is found a desirable development to accelerate the Social Revolution agenda. Wisdom lies not in questioning this development but understanding its causes and assimilating its processes in a manner that will strengthen democracy and rule of law. It will be promotive of federalism, pluralism and national unity if ways and means are evolved to institutionalise it within acceptable limits and make it part of law-making in the world’s largest and most diverse democracy. In any case the social justice agenda contained in the Directive Principles of State Policy cannot be inordinately delayed if the country were to remain united and democracy strengthened.

Disclaimer–The views expressed in this article are the personal views of the author and are purely informative in nature.