The Framing of Law : Is there any effective Procedure Behind.

The framing of Law: Is there any effective procedure behind?

Introduction

Why the law makers are stumbling…..…….(Can we forget the humiliation faced by our prime minister or can we forget the complete insult of our union cabinet, when one gentleman tore apart the ordinance proposed)………………may be due to no procedure to frame the law in place.

Nirbhaya Law

Nirbhaya case shook the collective conscience of the entire nation, politicians woke up, citizens voiced their anger, home minister of the country on whose competent shoulders the burden of safety of woman lie, was also forced to wake up after making a very distasteful remark initially.

In the aftermath of Nirbhaya, as the media made out, the Late Justice J S Verma (Retired SC Judge), received a call from the UPA Chairperson Mrs Sonia Gandhi in the middle of a night, requesting him to wake up and make a law, a stricter law on rape and sexual harassment. It is further made out by the media news that he felt honored that the UPA chairperson personally called him up and entrusted this responsibility on him, but he was not so praising about the role of Home Ministry in this matter.

Justice Verma, an octogenarian, worked hard with exemplary energy true to his reputation, and came up with certain amendments in the law and our parliament did not waste much energy on the same, and passed the new law showing exemplary urgency with minor tweaking here and there. It is apparent that there was some political exigencies in passing the new law. The public furor created by brutal rape and murder of Nirbhaya, deserved a lot better and visionary change for betterment of future rather than a hurried change in the law.

It is not surprising that immediately after the law was passed, certain members of the ruling dispensation including a cabinet minister, went on record stating that this law has the potential to create problems for women in finding the employment, recently a session Judge of Delhi district court expressed her views that law apparently seems to be not well thought of, a finer reading of the law, especially S.354, will make it clear to a prudent man, that with the present transition state of the society, the possibility of misuse of this section is so high, that we may end up with millions of accused under S.354 IPC in less than a decade. Can a country afford to have millions of accused under S.354? It is not some unfounded fear, it is going to happen.

It is safe to say that law in India is framed or made or amended to certain extent, which can at the best be termed as probing way of making the law, that is make the law as per the drafting by an individual or a group or even based on certain feedback, enact it and wait for the result to come. If the result is outrageous, wait further and if it becomes uncontrollable, then consider changing it. Meanwhile the enormous amount of damage is done to the country along with the irreparable damage to the concerned victims of the law.

S.354 or rape law, is showing a clear example of one such hurried law, with a potential to boomerang in the near future, there are many more and few of them are listed below, it is pertinent to mention that the need to frame a law was most noble in Nirbhaya case as well as majority of the laws as listed below, it was the process of framing which is being highlighted.

S.498A or DV Act or Dowry Act Or Daughter In Law Act

There was a need to frame a law to curb the dowry related harassment of daughter in laws, it was so wide spread in both rural and urban areas, and it had become absolutely unacceptable, so there was a need to frame the law to curb this menace.

Law was framed, and today to save a single woman of a family, all other males, females and children are being compromised, harassed. It is not unheard of that police had rounded up the children relatives of husband, the far fetched relatives of husband, the old and bed ridden parents or relatives of husband; a complaint by the daughter in law and the life of many people named is thrown out of gear. The situation has come to such a miserable state that Hon Supreme Court issued certain guidelines to the state police forces to follow before arresting the relatives of husband. There are groups of harassed husbands in almost every major city of the country. What went wrong? The Cause was noble.

S.138 of Negotianle Instrument Act or Cheque Bounce Law

This one law alone has created more than 40 Lacs accused suffering the ignominy of criminal case against them and potential threat of imprisonment up to two years, moreover criminal courts are badly clogged with cases under this act. There was a need to increase the acceptability of cheque, but is it wise to increase the acceptability of cheque by making 40 Lacs accused? Can this country afford to have so many accused in regulatory offenses? Something wrong somewhere? And one more disturbing aspect is associated with this law, initially the imprisonment term was only one year and the cases were piling on, so the law makers thought if we increase the imprisonment term to two years, then may be it will act as deterrent, but after years of this myopic amendment it was found out that even this was of no use. So what went wrong here? The cause was again noble.

TADA

Memories of this act are still vivid in the eyes and hearts of those innocent people and families suffered due to this draconian law. Again the cause was very noble.

Playing with Reservation in Employment and Education

Despite the Hon Apex Court coming very heavily on this issue time and again, politicians do not mend their ways for some electoral gains. The kind of social unrest, inequality and dissatisfaction it has created among the youth is unfathomable. Unfortunately it cannot be stated now that the tweaking of reservation by current bunch of politicians is for some noble cause; yes it was noble when thought of in early days by founding fathers of our constitution.

Haryana State Excise & Taxation Department R2 form

This is included to highlight the fact that at the states level, there are many hidden gems to promote the interest of various groups. In the state of Haryana there is a rule that every business trader registered with the Excise & Taxation department (Sales Tax department), has to furnish the R2 form giving summary details of previous financing year by 31^st Oct of the current year. If not done then there is a penalty of around Rs. 200 per day!!

Small traders who rely on part time accountants do not have means and knowledge of understanding this rule, so they miss it and get a notice or telephone call from some official of the sales tax department after may be a year or two, that he has not complied with R2 formality and the penalty will be slapped on to him which is around 365 X 200 (only after one year) Rs. 73000=00. The ignorant trader gets the shock of his life, rushes to the department and………something is done. Let the commissioner of Haryana Excise and Taxation Department come forward and claim that he is not aware about this “Something is done” aspect.

Delhi State Trade & Taxation Department T2 Form

The law is very simple, every trader who is expecting any material from out of Delhi (interstate), must inform the trade and taxation department, before the material reaches inside the borders  of Delhi. Otherwise either the material shall be confiscated or no C Form shall be issued for such transactions. The department has gone on record stating that they are upgrading the infrastructure to give SMS facility to traders to punch in the details and send SMS to the department. This very department has not been able to do away with the hard copy of sales tax returns, despite the fact that every trader has to mandatorily file the same online. Purpose behind this law is not known to affected group that is traders. You do business or keep sending SMSes to departments? The entire C Form concept itself is full of illegality, can the finance minister of this country pin point the fault of selling trader if the purchasing trader does not issue the C Form? The Indian Business community is full of weak people, because they are afraid of enormous numbers of laws under which they can be trapped, they never raise their voices.

Income Tax laws, Revenue Laws

A complete treatise can be written on this subject involving adverse impact on a simple farmer to international financial institutions. But what is bothering is the present day media advertisements. These advertisements are so much in poor taste, and very clearly reflects the dishonest mentality of the person who has visualized or instructed the same. The message is very clear, Not so Dear Dishonest Citizens of this country, rush to the IT ward and give proper declaration of your earnings, because we know about all your shaddy transactions.

Ordinance to save few corrupt Politicians

It almost made it as law, in total defiance to Hon Apex Court. The humiliation faced by the prime minister and the whole cabinet, when one gentleman with no locus standi in the government tore apart this ordinance, could have been avoided if there had been any well thought out procedure to frame laws was in place and followed.

So the question in front of this largest and most vibrant democracy in the world is: What should be an all inclusive procedure to frame the law? So that neither the affected groups suffer, nor it benefits corrupt officials or few people nor it reflects the high handedness of government agencies nor the people at the constitutional posts (or our institutions) get humiliated by some individual however high or mighty.

This should not be acceptable to the citizen of this country, that so and so chairperson of a political outfit, called up some retired judge, and requested him to frame a law.

The author wishes to put forward his views for the same and expects the like minded people to come forward and vouch that nothing in this country henceforth shall be done on adhoc basis, every action of the policymakers, must demonstrate the thoughtfulness and thoroughness and should not be guided by political exigencies, but should be guided by the welfare of the public or in the interest of the national growth.

It is not the argument of the author that there is no such procedure in place, it must be, but is it being followed as religiously as CrPC or CPC? Any procedure which is breached is as good as no procedure.

Moreover in present multi- party coalition democratic era, it cannot be said that the collective wisdom of the parliament is at work, it is totally fragmented, and coupled with the fact that a very high number of elected representatives are either illiterate (Not even Graduates) or people charged with serious criminal offenses; under such circumstances, the majestic supremacy of the parliament to write or rewrite the law must be understood as the final authorization only, the exercise of bringing the law to acceptable level must be done under a strictly non breakable procedure by involving professionals, experts etc.

The Procedure (The Basic Frame Work)

1. The Identification of the need for writing a new law or re writing an existing law, the nodal agency for the same shall be law commission of India at the central level and any counterpart at the state level, this agency can take request from any citizen or group of this country. Even proposals from the MPs or MLAs must come through this nodal agency.

2. The law commission forwards the need with its own inputs for the consent by the Lok Sabha at the central level or Lower House at the state level for such need. A committee can be put up in place by the speaker, the committee shall be competent enough to grant the consent to this need or speaker can forward the proposal of law commission to the entire assembly for consent.

3. Once the consent is given and communicated, the law commission shall start the procedure of writing or re writing the law.

4. The process of framing the law must include experts, for example if it is on rape, then sexologists, psychiatrists, and sociologists inputs must be mandatorily taken, if the law is on financial matters then non governmental financial experts like professors of economics, or distinguished people in the field of finances must be consulted.

5. The process of framing the law must include taking feedback from the concerned affected groups, like if it is with respect to certain taxation, then Industry groups and associations must be consulted.

6. The impact of the law on various fronts must be ascertained or visualized before the law is implemented. For example

-          Social Impact

Reservation related laws would require the detailed study or impact on various affected groups of the society. The rape law also must assess the impact on society per say.

-          Economic Impact

The burden on the exchequer, or impact on national economy, or impact on certain Industry group must be assessed and quantified. For example before coming up with banning of mines, the pros and cons of Environmental benefit with respect to loss of Industrialization must be studied.

-          Legal Impact

The conflict with existing laws or with fundamental rights of citizens must be explored in advance; the possibility of any huge additional burden on judicial infrastructure must also be assessed. For example after cheque bounce case, there are dedicated courts in each district court for handling the deluge of such cases. This kind of burden must be assessed in advance, and steps taken accordingly.

7. If the impact stated to be adverse, then all the key people in law framing must be apprised of this, and the draft must be changed to amend the same in order to mitigate the adverse effects.

Now if the above procedure which can be further elaborated and discussed, gets implemented than there shall be one small problem, that is making of certain ordinances which may be felt necessary by the Government of India under Emergency or Urgent situations. The ordinance of any nature as per Hon SC rulings can be passed by the government (or parliament) subject to the fact that the law commission (Nodal Agency) must take effective steps that within six months of the passing of the ordinance the above procedure is carried out and law is framed accordingly.

  

The author can be contacted at:

Advocate.dma@gmail.com  or

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