<p>If you were to die tomorrow, your will would have to conform to the arcane and archaic procedures laid out in the Indian Succession Act of 1925, a 100-year-old legislation. Your will would have been registered under a law fast approaching its 120th anniversary – the Registration Act of 1908. These laws suffer from glaring shortfalls, such as the need to make a physical will and registering it through a paper-based and in-person process. Though these laws have clearly withered with time, they have somehow withstood the test of time.</p>.<p>A literal century, and then some, has gone by, yet a wholesale review of the performance of these laws remains a pipe dream. Fast forward to the Companies Act of 2013 – this legislation has seen a decade of substantial amendments. But who is to say an untouched 100-year-old law has performed better or worse than a 10-year-old law in a state of constant revision? At the moment, we struggle to answer this question as we do not have a framework to review these laws.</p>.<p>Recently, the Supreme Court reiterated this need for a periodic review of legislation, calling for “legislative reviews”, in addition to judicial reviews, in order to examine how well a law has fulfilled its objectives. As recently as July last year, the Supreme Court directed that a “performance audit” of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 be undertaken. The Court emphasised the government’s “constitutional duty” to ensure the accomplishment of a statute’s purpose while implementing it, which entails an additional duty to “closely monitor the working of a statute”, along with a continuous and real-time assessment of the statute’s impact. This, according to the Apex Court, is an integral part of the Rule of Law.</p>.<p>A two-judge bench of the Supreme Court does not use the words “constitutional duty” and “Rule of Law” lightly – it imposes a heavy impetus on the government to regularly evaluate its laws for their efficacy. However, conducting such evaluations would require a systematic framework for evaluation as a first step.</p>.Indian judiciary strongest, most robust: CJI Misra.<p><strong>A dedicated department</strong></p>.<p>In India, the Law Commission, standing committees, and Parliamentary Committees sometimes review specific legislations on an ad-hoc basis. However, these reviews are neither mandatory nor periodic. A periodic review of legislation can concretely be built into a regulatory framework, through executive or legislative action. An exclusive department to evaluate the functioning of laws could be set up (as in Chile with the ‘Law Evaluation Department’). Alternatively, a legislation can be enacted which mandates periodic review, and sets out the framework for the same (as is the case in Thailand through the ‘Rules on Legislative Drafting and Evaluation of the Outcomes of Law Act, B.E. 2562 (2019)’).</p>.<p>Once we answer how such a framework can come about, the question of what this framework evaluates for, continues to loom. In India, although the Law Commission is tasked with ad-hoc review of legislations, there is no clarity on the methodology and the metrics it uses for the same. For example, the ‘Terms of Reference’ for the 22nd Law Commission of India state that it should carry out a review and repeal of obsolete laws, assess laws for their clarity and simplicity, and evaluate their impact on stakeholders from a socio-economic and gender equality perspective.</p>.<p>However, the reports published by this Law Commission contain no further specifications on the methodology by which these Terms of Reference were met, and on what basis the Commission was evaluating the legislations and provisions in question.</p>.<p>In reviewing a law for effectiveness, a fair and comprehensive assessment scheme is key. A model framework for evaluation should strive to be comprehensive, even if it cannot be exhaustive. Laws could be assessed both from a rights-based perspective (for example, assessing the balance between rights and restrictions, evaluating the effects of the legislation on individual rights) as well as an administrative perspective (for example, undertaking a cost-benefit analysis of implementation, measuring the impact of the law on various stakeholders etc.).</p>.<p>Another approach to review a law could be the use of “macro” and “micro” markers. Macro markers would involve general and objective metrics, such as clarity in drafting, interface with other laws, adherence to the Constitution and so on. Micro markers are the objectives that the law sets out for itself, allowing for more subject-specific scrutiny of the law as well. These models are neither mutually exclusive nor exhaustive, but merely indicative. They emerge as possible starting points to begin imagining such a framework, rather than concrete suggestions.</p>.<p>As the laws in India hit their ten, twenty, or even hundred-year marks, they are not only ripe for a review, but for a systematic, periodic, and objective review.</p>.<p><em>(The writers are research fellows at Vidhi Centre for Legal Policy)</em></p>
<p>If you were to die tomorrow, your will would have to conform to the arcane and archaic procedures laid out in the Indian Succession Act of 1925, a 100-year-old legislation. Your will would have been registered under a law fast approaching its 120th anniversary – the Registration Act of 1908. These laws suffer from glaring shortfalls, such as the need to make a physical will and registering it through a paper-based and in-person process. Though these laws have clearly withered with time, they have somehow withstood the test of time.</p>.<p>A literal century, and then some, has gone by, yet a wholesale review of the performance of these laws remains a pipe dream. Fast forward to the Companies Act of 2013 – this legislation has seen a decade of substantial amendments. But who is to say an untouched 100-year-old law has performed better or worse than a 10-year-old law in a state of constant revision? At the moment, we struggle to answer this question as we do not have a framework to review these laws.</p>.<p>Recently, the Supreme Court reiterated this need for a periodic review of legislation, calling for “legislative reviews”, in addition to judicial reviews, in order to examine how well a law has fulfilled its objectives. As recently as July last year, the Supreme Court directed that a “performance audit” of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 be undertaken. The Court emphasised the government’s “constitutional duty” to ensure the accomplishment of a statute’s purpose while implementing it, which entails an additional duty to “closely monitor the working of a statute”, along with a continuous and real-time assessment of the statute’s impact. This, according to the Apex Court, is an integral part of the Rule of Law.</p>.<p>A two-judge bench of the Supreme Court does not use the words “constitutional duty” and “Rule of Law” lightly – it imposes a heavy impetus on the government to regularly evaluate its laws for their efficacy. However, conducting such evaluations would require a systematic framework for evaluation as a first step.</p>.Indian judiciary strongest, most robust: CJI Misra.<p><strong>A dedicated department</strong></p>.<p>In India, the Law Commission, standing committees, and Parliamentary Committees sometimes review specific legislations on an ad-hoc basis. However, these reviews are neither mandatory nor periodic. A periodic review of legislation can concretely be built into a regulatory framework, through executive or legislative action. An exclusive department to evaluate the functioning of laws could be set up (as in Chile with the ‘Law Evaluation Department’). Alternatively, a legislation can be enacted which mandates periodic review, and sets out the framework for the same (as is the case in Thailand through the ‘Rules on Legislative Drafting and Evaluation of the Outcomes of Law Act, B.E. 2562 (2019)’).</p>.<p>Once we answer how such a framework can come about, the question of what this framework evaluates for, continues to loom. In India, although the Law Commission is tasked with ad-hoc review of legislations, there is no clarity on the methodology and the metrics it uses for the same. For example, the ‘Terms of Reference’ for the 22nd Law Commission of India state that it should carry out a review and repeal of obsolete laws, assess laws for their clarity and simplicity, and evaluate their impact on stakeholders from a socio-economic and gender equality perspective.</p>.<p>However, the reports published by this Law Commission contain no further specifications on the methodology by which these Terms of Reference were met, and on what basis the Commission was evaluating the legislations and provisions in question.</p>.<p>In reviewing a law for effectiveness, a fair and comprehensive assessment scheme is key. A model framework for evaluation should strive to be comprehensive, even if it cannot be exhaustive. Laws could be assessed both from a rights-based perspective (for example, assessing the balance between rights and restrictions, evaluating the effects of the legislation on individual rights) as well as an administrative perspective (for example, undertaking a cost-benefit analysis of implementation, measuring the impact of the law on various stakeholders etc.).</p>.<p>Another approach to review a law could be the use of “macro” and “micro” markers. Macro markers would involve general and objective metrics, such as clarity in drafting, interface with other laws, adherence to the Constitution and so on. Micro markers are the objectives that the law sets out for itself, allowing for more subject-specific scrutiny of the law as well. These models are neither mutually exclusive nor exhaustive, but merely indicative. They emerge as possible starting points to begin imagining such a framework, rather than concrete suggestions.</p>.<p>As the laws in India hit their ten, twenty, or even hundred-year marks, they are not only ripe for a review, but for a systematic, periodic, and objective review.</p>.<p><em>(The writers are research fellows at Vidhi Centre for Legal Policy)</em></p>
