Too many errors

Procedure for legislation & cabinet notes should be respected

A  couple of weeks ago, the Union Ministry for Law and Justice was forced to issue a corrigendum to the Jammu and Kashmir Reorganisation Act, which gave legal force to the de facto revocation of Article 370, which had mandated a special relation between the Centre and the erstwhile state. The corrigendum had to correct as many as 52 errors in the Act, from simple spelling mistakes to incorrectly referenced laws. This was not an isolated incident. The ministry has had to issue such corrigenda frequently, particularly when it came to Ordinances, such as those amending the corporate income-tax law, which appear to have been drafted in haste and without due consultation. On other occasions, no official amendments or corrigenda are issued, with a verbal assurance made by the minister concerned to the Parliament that any deficiencies in the wording of the law would be corrected at the time of issuing the relevant rules.

Errors in drafting, if not caught, can have ramifications much later in the future. Mistakes in tax laws are particularly dangerous because they can leave loopholes, which private lawyers and accountants can exploit, and closing them retroactively would have a strongly negative effect on public opinion and investor confidence. It is unfortunate, therefore, that the incidence of such slapdash drafting seems to have become frequent. It is, in fact, a reflection of the lack of application of mind that appears to have crept into the law-making process within the executive. Another, and more worrying, cause is the constant short-circuiting of due process in policy making and legislation. The Cabinet Secretariat has been forced to take note of this problem, writing earlier this month to the various Union ministries and departments to point out that they are required to share drafts of Cabinet notes well in advance, so that any deficiencies and inconsistencies may be spotted before the legislative process begins. At least 15 days should also be set aside for the Cabinet Secretariat and the Prime Minister’s Office to examine the notes in question, as well as for standard inter-ministerial consultations, which is the recommended time for finalising notes in the Handbook, which governs the writing of Cabinet notes.

While the Cabinet Secretariat is to be commended for acting to remind the line ministries and departments of this issue, the real problem lies in the nature of decision-making. Too many major policy changes with deep legal implications are being made in relative secrecy, without proper or adequate consultation wi­t­hin the government or with the Parliament. Unrealistic and imprudent timelines for major changes are being forced on the bureaucracy for decisions that could ea­­sily have been prepared and drafted in advance or in which a few weeks’ delay makes little difference. Paranoia about leaks and public discussions of major ch­anges is contrary to the principles and spirit of representative liberal democracy — and also has clear, negative implications for the quality of governance. The pr­ocess underlying legislation and policy changes has evolved to minimise error and maximise efficiency. It should be respected. Most importantly, drafting ca­pacity within the government should be enhanced, public discussion formalised, and cabinet notes and draft legislation treated with the respect they deserve.