Laws and policies have a profound impact on a country's social, economic and environmental development. These laws are enacted by legislative actions, government regulations and executive promulgation to serve multiple social groups and economic functions. The necessary tools to uphold state policy and achieve national objectives are in the form of rules and regulations. This incorporates the ability to build the framework for governance and uphold the supremacy of laws, regulations and policies. Legislative process plays a crucial role in the democratic and parliamentary form of governments where executives are held accountable to people through parliament. Millions of lives have the direct impact of legislation made by legislatures which makes the careful examination of them crucial. Usually, policies are enacted through detailed deliberations in the parliamentary setup to bring in effectiveness. However, there are many instances of enacting ineffective legislation due to myopic approach leading to challenges and pitfalls. This results in wastage of resources, negative externalities, policy issues and impacts on society.

Legislative Impact Assessment (LIA)

Every law has an explicit objective and scrutinizing the process of achieving this objective is an important prerequisite before the enactment of any law. No matter how much the law is good but if its implementation is poor then it fails. Therefore, the careful assessment of impacts of proposed legislation needs to be conducted to estimate all possible direct and indirect consequences. Also, the beforehand analysis of the proposed legislation’s capability in addressing the identified problem is important. Usually, regulatory frameworks are reactive in nature as a response to perceived crises leading to inadequate or ad-hoc solutions to complex issues. Such laws cause unexpected impacts and pose implementation challenges attributable to the multi-dimensional nature of the laws and regulations concerned. Policies and regulations need to be carefully considered before it is enacted since a country cannot afford to make expensive and irreversible mistakes. Legislative Impact Assessment takes up the role of conducting multidimensional analysis of proposed legislations and their impact to ensure informed decisions are taken in enactment of those legislations by providing appropriate alternatives and strategies. It is a systematic approach to analyze the positive and negative effects of proposed and existing legislation. Some of the essential components of LIA are problem identification, exploring choices, comparative analysis, stakeholder consultations, selection of preferred choice, socio economic analysis, impact assessment and reporting. Sometimes the government may not have the capacity to take up the whole of LIA at one instance and conduct detailed impact analysis. Instead, this process can be taken up incrementally by having a pre-legislative consultation policy as a first step upon which the LIA can be built. Legislative impact assessment is also called the Regulatory Impact Assessment (RIA) in OECD countries. Other democracies have the mechanisms for legislative/regulatory impact assessment such as UK, Finland, European Union and most of OECD countries to assess the impact before enactment and strengthen the law-making process by involving relevant stakeholders in the assessment process. Even in India, the leaders at the legislature felt the need for a legislative impact assessment mechanism to improve the quality of legislations. 

India and Legislative Assessment

In India, law making is a challenging task as it should consider large diversity, difference of opinions, political and governance structure, democratic set up, administrative capacity etc. into account. Generally, parliament passed the legislation framework in the skeleton form and delegates the task of filling the details to executives and state legislatures as per the local requirements by providing broad guidelines. This offers the advantages of tailoring legislation with greater responsiveness to the situation. But this approach presents several concerns as well such as lack of scrutiny of laws enacted by entrusted bodies, laws profusion etc. Sometimes these laws are failed due to lack of pre-legislative rationale, impact analysis of laws, consultation and deliberation. Thus, the outcome is numerous laws with little data on their achievements. Further, laws are formulated by respective ministry with little or no coordination with other ministries having profound influence of these laws leading to contradiction in implementation. Therefore, need arises to institutionalize a uniform framework for assessing the impact of laws before, during and after enactment to ensure that they meet desired objectives and reduce potential negative impacts.

In India there are few mechanisms to assess the legislation post enactment such as standing committees of parliament, financial commission, law commission, committees or bodies created for specific policies or legislations etc. Further NITI Aayog is entrusted to monitor the programmes and policy implementations in the country and not the entire functionality of legal systems. Also, presently the impact assessment of proposed legislations is done by concerned pressure groups such as civil society organizations, non-governmental organizations, private industries, academic institutions etc. But there is no institutionalized legislative impact assessment strategy having statutory status to assess the legislation before its enactment. Further most of the post-enactment assessment is quantitative rather than qualitative in nature, that is it mostly looks for expenditure mechanisms instead of quality outcome of expenditure. As part of the evaluation, legislators should determine the policy downside, explore relevant potential legislative and policy choices to handle the difficulty, consult stakeholders, choose a most relevant option supported by comparative analysis of the outlined choices, determine ways to mitigate impacts identified and perform socio-economic analysis of the preferred choice. This approach would emphasize democracy by not just mainstreaming stakeholder consultations, determining problems and easing options at the earliest, but making the process of law- making more accountable and transparent as well.

For instance, the Sunset Clauses are rare in the Indian legislative system except for financial regulations. Sunset clauses are the one that terminates the law after its purpose is fulfilled or after a particular date until it is enacted again through legislative process. This helps to evaluate the policies, laws and regulations periodically and suggest relevant courses of action. However, lack of these clauses has led to under reviewed, outdated, overburdened and redundant regulations.

Presently there are few sector- specific impact assessment frameworks such as Environment Impact Assessment (EIA) that aims for multidimensional impact analysis of proposed large projects to the environment and surroundings; The right to Fair compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 mandates Social Impact Analysis (SIA) before acquiring any land for public purpose. Further attempts were made previously to introduce a formal pre-legislative consultation policy which directs the respective ministry drafting the law to perform impact assessment.

Absence of appropriate legislative impact assessment framework for our legislations may not just hinder the actual functioning of them but also cost more and hamper nations’ development. For instance, without proper prior analysis of the impact, a policy or a law may not target the right audience or the intended purpose appropriately although the intention of it is good. This may fail the whole objective of that and the efforts put in for. All these issues demand the development of the Legislative Impact Assessment (LIA) framework in India to plan, implement and monitor the legislation better. LIA should be made as a part of the law-making process and this will help to address the challenges involved in the legislative system effectively. Impact assessment demands reasonable justifications for the enactment and failures of laws which in turn improves public accountability. This helps to reduce the exploitation of legislations which are hastily drafted and enacted.

LIA Framework for India

An effective Legislative Impact Assessment (LIA) framework for India involves following essential components:

1. Listening to stakeholder concerns or requirements on particular matter

2. Legislative/policy problem identification and analysis

3. Objective setting

4. Exploring potential legislative/policy alternatives

5. Feasibility study of legislative/policy alternatives

6. Evaluation of legislative/policy alternatives

7. Selection of appropriate legislative/policy alternative

8. Stakeholders’ consultation

9. Identification of Financial requirements and sources

10. Socio-Economic analysis of the selected alternative

11. Impact assessment of selected alternative

12. Scoring the selected legislation/policy based on social, economic and environmental aspects.

13. Mitigation measures for negative consequences if any

14. Reporting to concerned authority

Advantages of LIA

This will assess the multidimensional impact of proposed legislations such as preparedness, implementation methodology, financial requirements, environmental setup, administrative capacity, alternative options, potential consequences, end beneficiaries’ acceptance, expected outcome and exit strategy before they are enacted. This enables central and state governments to accrue the benefits of LIA such as improved quality of legislations, higher legislature productivity, people’s participation, improved democracy, better governance, transparency, accountability, reduced policy paralysis and decreased needless policies.

Lessons can be learnt from the countries on the challenges involved in conducting legislative impact assessment and measures to overcome. Technologies such as machine learning, deep learning and artificial intelligence can be leveraged to effectively understand stakeholders’ sentiment on the proposed legislation. In socio-economic analysis, mere cost-benefit analysis may not reflect multidimensional perspective instead other advanced techniques such as multi-criteria analysis, the logic of precaution etc. The proposed legislation/policy can be scored on the basis of social, economic and environmental parameters based on the multidimensional evidence from the impact assessment. This quantifies the overall assessments and helps to make a scientific based approach to policy making.  

 

References

1.     Environmental Law: Need for Legislative Impact Assessments in India (mongabay.com)

2.     A Case for Legislative Impact Assessment | Economic and Political Weekly (epw.in)

3.     Regulatory impact analysis - OECD

 

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