Post Legislative Review Mechanisms – Whether A Need Or Necessity In The Current Digital Revolution Age

Advocate Amar Dave
26 Feb 2018 6:07 AM GMT
Post Legislative Review Mechanisms – Whether A Need Or Necessity In The Current Digital Revolution Age
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Digital Revolution is in vogue and is here to stay. Many people have yet to realize just how rapid and profound the current digital revolution is, or how quickly it’s breaking down old institutions and changing the way of life. Virtually no part of our daily life has remained uninfluenced by these sweeping changes. Be it the way we communicate, the way we buy and sell, the way we do our banking, the way we commute, the way we dine – every minute aspect of our current day life, wherever we may be, is being overwhelmed by these technological advances.

Therefore when things are changing so fast and so frequently, the legislative process must also factor in the times we live in. Consequentially, establishing appropriate mechanisms for “Post Legislative Review” has graduated to become a necessity rather than a choice. Various jurisdictions right at the onset of this Digital Revolution had understood the need of the hour to cope with the impact and had adopted timely “Review Mechanisms”. Well established forms of Post Legislative Review include the use of Sunset Clauses, Parliamentary Review and Ad-hoc Committee Review. There is no gainsaying that laws must change and adopt to the changing times. The Hon’ble Supreme Court in the case of Supreme Court of India Advocates on Record’s[1] case had way back in the 1990’s unambiguously recognised the inherent requirement of legal concepts to be moulded as per the changing times. The Constitution Bench of the Hon’ble Court had observed as follows:

“The Framers of the Constitution planted in India a living tree capable of growth and expansion within its natural limits. It lives and breathes and is capable of growing to keep pace with the growth of the country and its people. Constitutional law cannot be static if it is to meet the needs of men. New situations continually arise. Changes in conditions may require a new-look at the existing legal concepts. It is not enough merely to interpret the constitutional text. It must be interpreted so as to advance the policy and purpose underlying its provisions. A purposeful meaning, which may have become necessary by passage of time and process of experience, has to be given. The Courts must face the facts and meet the needs and aspirations of the times.”

The above observations albeit in the context of the dynamic nature of Constitutional law is aptly applicable in the present context too in so far as it summarises the position that law must keep pace with the times and if it fails to do so, it really loses significance. A recognised, well defined, structured but a comprehensive process of Post Legislative Review ensures that applicable laws keep pace in synch with the times.

A legislation must be reviewed after it has been brought into force to see whether it is working out in practice as intended and if not to discover why and to address how such problems could be remedied. A bare perusal of the huge stock of statutes, some of which clearly have even become archaic, itself concretizes the need for weeding out virtually inoperative or ineffective statutes in the context of present-day requirements. There is therefore indisputably a need to take “stock” of this situation by providing for a structured, recognised and effective framework providing for such Post Legislative Review. This would enable the Parliament to look back and review the effects of a legislation once it has been implemented. Post Legislative scrutiny should translate into better and more effective regulation which is the bedrock of the Constitutional objectives. If there is to be a public commitment for better regulation, an obvious part of that is the thorough examination of the legislation once it has been brought into force. Such a mechanism ensures that the law remains effective, that it is duly scrutinized to judge whether the objectives are in-fact being met and if not timely corrective course is adopted. Having such a formal mechanism embedded in the legislative process itself will certainly ensure better results and in these fast-changing times, the same will also ensure better and timely adaptability.

The above therefore certainly requires urgent attention of the concerned stakeholders. Various options in this regard could be explored (though some baby steps are visible in some enactments but the same as a concept lacks the focus that it deserves in the present day context) including either providing in each of the new legislation(s) itself, the relevant provision(s) to deal with these Post Legislative Review mechanisms by inter-alia providing for periodical reviews[2] of the progress of the legislation through reports, after the coming into effect of the said legislation, through designated committees and the escalation of the said findings, as a matter of course, for the due consideration of Parliament for subsequent action. Alternatively, like in some jurisdictions, the passing of a special legislation on this very specific subject may also be considered. Such a comprehensive specialised legislation would be an enactment dealing with inter-alia the making, registration, Parliamentary scrutiny and repeal of the legislative enactments/instruments and for related ancillary purposes[3].

Whatever the best course that may be adverted to after the subject issue is examined, the time is ripe to initiate the process. Due weightage must be ascribed in the legislative cycle to monitor the transposition, implementation and enforcement of the laws in India which would consequentially result in the betterment of the overall Law – Making process. This obviously could be done by using the tools of ex-ante impact assessment and ex-post evaluation during the entire legislative cycle. Charles Darwin had said, “It is not the strongest or the most intelligent who will survive but those who can best manage change”. It is the “change” which we must manage effectively in our legislative processes through adequate adoption of the Post Legislative Review mechanisms.

[1] 1993 (4) SCC 441

[2] Refer to the various legislations in the European Union containing these review provisions

[3] Refer to the Legislative Instruments Act - Australia

Amar Dave is an advocate practicing at Supreme Court of India

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]

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