The Telegraph
Wednesday , December 14 , 2011
Since 1st March, 1999
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Labour pain: Since the NREGA guarantees 100 days’ income a year, the unemployed poor are preferring not to work in farms and factories

Call it collateral damage. According to newspaper reports, agriculture minister Sharad Pawar has written to the Prime Minister asking for the National Rural Employment Guarantee Act (NREGA) to be put on hold during the peak season of agricultural operations. With a guaranteed income of Rs 100 a day for at least 100 days a year, the unemployed poor now prefer to stay in their villages instead of venturing out to other states to work in farms and factories.

That’s good news, yes. But there’s a flip side — this leaves farmers either without labour or with having to shell out more as wages during sowing and harvesting.

Didn’t anyone foresee this? While that’s not clear, these consequences could have been anticipated and provided for if there had been more thorough study when the bill was being drafted. “Legislation is not being thought through with the diligence it deserves,” rues P.D. Rai, member of Parliament from the Sikkim Democratic Front. The result: the government is ill-prepared for the problems that inevitably crop up during implementation.

The Right to Information (RTI) Act is a case in point. The government did not prepare for the flood of information requests that various agencies later had to deal with. So inadequate manpower and training, lack of funds for training the public and failure to modernise records management continue to beset proper implementation of the law, says Madhumita D. Mitra, principal associate at the Delhi-based law firm Corporate LEXport. The general right of information of citizens in the Freedom of Information Act of the United Kingdom, she points out, came into effect five years after it was enacted, giving time for systems to be put in place and people trained. In India, this right came into force within 120 days of the RTI Act being passed.

Rai points out that even the cost implications of a law are not considered adequately. Take the Right of Children to Free and Compulsory Education (RTE) Act, 2009 — the legislation that was meant to give effect to the right to education that was made a fundamental right in 2002. Implementation of the act has been sluggish partly because of financial constraints. States, which now bear 45 per cent of the cost of implementing the law, are demanding that the Centre (which bears 55 per cent of the cost) should up its share to 90 per cent, with some even demanding 100 per cent central funding. “There are no definitive estimates about the costs of implementing this; estimates vary depending on whom you ask,” says Parth Shah, president of the Delhi-based think tank Centre for Civil Society (CCS), which works on the issue of education funding. A CCS study shows differing estimates worked out by the National University of Educational Planning and Administration and the Central Advisory Board on Education. “There is no endorsement of which number is the right one,” says Shah.

Contrast this with the US where the Congressional Budget Office (CBO) is required by law to work out a cost estimate of all bills. Each estimate, the CBO website says, provides an analysis of the effects of a bill on a range of government expenditures as well as the cost to the private sector. The estimates provided by the CBO, which is an autonomous institution, are taken very seriously when bills are being debated.

It’s not as if such mechanisms do not exist in India. On paper, every bill is required to have a financial memorandum mentioning the cost of implementation, says Chakshu Roy, senior analyst at the Delhi-based PRS Legislative Research, which does detailed analyses of the functioning of Parliament. But in the seven years that PRS has been analysing bills, it has found the financial memorandum to be patchy, at best.

Sometimes, the memorandum mentions only capital costs (spending on buildings and other infrastructure) and is silent on the other running costs. In other cases, the revenue costs are mentioned only for the first year of the implementation of the law that the bill brings into force. Some bills have cost implications for state governments, but the financial memo- randum only mentions the costs for the central government.

The financial memorandum for the Lokpal Bill cites an annual expenditure of around Rs 150 crore (apart from Rs 400 crore for buildings, if necessary). But this, points out Mitra, is silent on the costs to the judiciary, since every decision of the Lokpal is likely to be challenged.

In several countries, says Mitra, law-making is accompanied by regulatory and judicial impact assessments. It begins with assessing the need for a law and if it is required, financial assessments determine costs to the government of setting up the required institutions and the impact of the new law on the judiciary.

A PRS team got acquainted with the casual approach to framing laws when it was researching the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act (also known as the Forest Rights Act). It asked for two figures — how many tribal families live in forests and what percentage of forest area they live in. What they got was the standard figures on the country’s total tribal population and total forest area.

Nor is there any careful study to see whether a law can do what it is expected to. The Gram Nyayalaya Act was meant to decongest the lower courts by setting up village-level courts. These courts are to be manned by a first-class judge — the same designation of judges in the district courts. “But there is already a 20 per cent vacancy in the lower courts because of the lack of qualified people. Where will they find people to man the village courts?” Roy asks. What was also not factored in was that the district courts may have to now hear appeals against the decisions of the village courts.

That’s where a judicial impact assessment for every bill is important. A Task Force on Judicial Impact Assessment had, in 2008, recommended that judicial impact assessments be done for every bill tabled in Parliament or state legislatures to estimate the extra load on courts and the financial burden of this. But there’s been no action on this as yet.

“A bill is a legal framework for achieving certain objectives,” notes Rai. However, the lack of preparation results in these very objectives not being achieved. “Then why bring in the bill in the first place?” he asks.

Does anyone have an answer?