Democratization Of Law-Making: A Critical Evaluation Of The Existing Strategies With Particular Reference To Kerala

Abstract

The desire for this research has originally come from my long-time interest in knowing the factual happenings in the working of the Kerala Legislative Assembly and the process of law-making adopted by the Kerala Legislative Assembly. Reports published in the newspapers reveal shocking data of democratic deficit in the most important job of the legislature, i.e., lawmaking. For example, the Hindu newspaper dated 11th December 2017 points out that there has been a steady reduction in parliamentary hours compared with records of the first 20 years since 1952 show. It also cites that record shows that 31% of legislations were passed in Parliament with no scrutiny or vetting by any Parliamentary Standing or Consultative Committee. A recent report published in The Times of India newspaper on February 17th in the year, 2022 points out that the number of assembly sittings went down gradually over the past few years in most of the State Assemblies. Recently, there has been a declining trend in the percentage of bills being referred to a Committee also. Though it is a well-accepted proposition in a parliamentary democracy that lawmaking is a deliberative and consultative process, important bills such as The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020 and the Farmers’ (Empowerment and Protection) Agreement of Price Assurance and Farm Services Bill, 2020, the Jammu and Kashmir Reorganisation (Amendment) Bill, 2021, which amends the Jammu and Kashmir Reorganisation Act, 2019, abrogating Jammu and Kashmir’s special status, Citizenship (Amendment) Bill 2019, Muslim Women (Protection of Rights on Marriage) Bill, 2019, and Unlawful Activities (Prevention) Amendment Bill, 2019 were not referred to any of the Committees of Parliament for in-depth deliberation for inviting inputs from stakeholders. Such procedural lapse is a subversion of democracy and an icon of democratic deficit. DEMOCRATIZATION OF LAW MAKING 2022 NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES, KOCHI vi This thesis originated from the functioning of the Kerala Legislative Assembly and concern about the reported failure of the implementation of democratic strategies in the law-making process. Little has been written on this subject and this thesis aims to fill that gap to some extent. This study aims to analyze the normal procedure adopted in the legislature which contains requirements to make law-making democratic. There are some built-in strategies for securing public participation in the legislative process which is intended to uphold the democratic process. They are: (i) Referring the Bill to Select Committee; (ii) Referring the Bill to Subject Committee; (iii) Circulating a Bill for public opinion; and (iii) Allowing private member Bills. A study on these elements helps in understanding the element of democracy in the process of law-making. These aspects are discussed in Chapters III, IV, and V. A practice that significantly dilutes the democratic element in lawmaking is the ordinance-making power. Chapter VI examines this area to find out how the essence of democracy is whittled down in the case of ordinances. Similarly, an important question that arises in this context is to what extent judicial review constitutes a negation or dilution of the democratic element in law-making. This aspect is discussed in Chapter VII. The researcher proposes to develop a theoretical perspective on the study of different strategies that promote democratic law-making. The empirical study, which focused on the evaluation of various strategies to promote democratic practices in law-making, was confined to Kerala. An attempt was made to suggest different strategies that can be adopted to improve democratic values in the legislative process.