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Wednesday, 16 November 2016


Key To Thoughtful Legislation: Creation of a Consultative Council

Sachin Tendulkar’s ostensible disregard for his attendance at the Council of States, to which he was appointed by the President in 2012, highlights a crucial problem with the nominees elevated to the Rajya Sabha, which is their apparent disinterest in parliamentary proceedings. Article 80(1)(a) of the Indian Constitution highlights that twelve members shall be nominated by the President to the Council of States. The nomination of the retired cricketer Mr. Navjot Singh Sidhu, among others, reflects upon the urgency to rethink about the stated clause and introduce a permanent body that is competent enough to aid the Parliament in law making.
An alternative to Clause (a) of Article 80 was suggested by Prof. K.T. Shah in the Constituent Assembly Debates in 1949. His speech termed legislative drafting as a ‘fine art’ and a task too complicated for majority of the people’s representatives, whom he thought of as “laymen”. He advised the framing of what he termed as the ‘Consultative Council’, which in his opinion, must be a permanent body established by a constitutional mandate to aid the Parliament in drafting legislations.
Inspired by Lord Hewett’s concept of New Despotism, which is a theory to arm the civil services with wide discretionary powers including quasi-judicial decision making, Professor Shah recommended the formation of a body that includes experts from the fields of agriculture, industry, commerce, mining, forestry, engineering, public utilities, social service and economics to advise the Parliament and the Council of Ministers in matters concerning their respective fields. He asserted that these members would not be lawmakers in the true sense of the word, as they will not be burdened with any administrative or executive functions like the other members, and their sole objective would be to concentrate on building sound legislations.
 He then went on to submit that the Council should only be selected on merit. Training and experience in the said fields must be the sole criterion for inclusion in the body. He further suggested that these members should be paid handsomely and be given due respect for their contribution to the Parliament and influence on the Council of Ministers.
The said proposition was submitted before the assembly vide Amendment No. 1377 to Article 80. However, it was criticised by a few members. R.K. Sidwa opposed the proposition on the ground that the number of members proposed by Professor Shah to each committee was not agreeable. He contended that the government on previous occasions had consulted experts in matters of importance and there was no need for a constitutional provision for such a committee when it can be constituted under an Act passed by the Parliament. In his opinion, giving the committee a constitutional status will result in giving them undue privilege.
The list of critics also included Dr. Ambedkar, who, like Sidwa, argued that the government indeed consults experts before passing a Bill. His substantive argument, favouring his own amendment, was firstly, that the twelve nominated members by the President, were sufficient as expert opinion, and secondly, he proposed to later move an amendment that allowed the President to nominate three additional members, whenever the President felt necessary to do so. He submitted that these experts must continue to be members of the House, till the bill requiring their assistance is disposed of, but stated that they should not be allowed to vote.
Certainly, the proposal of Professor Shah was noted on valid grounds in the light of circumstances prevailing post-independence, when members possessed plenty of verve towards the construction of legislations. However, contemporary nominees are not as dedicated as their predecessors and they remain persistent in carrying on with their former occupations or venture into new ones and disregard their parliamentary obligations. Another argument against nomination under current circumstances is that twelve expert nominees is not an appropriate number to persuade two hundred and thirty-eight other members with their expertise.
Professor Shah additionally recommended that the clause needed to be more comprehensive. The author is of the opinion that Professor Shah’s recommendation has an edge over the existing clause, as in addition to the current fields from where nomination of persons should be done, namely, arts, literature, science, and social service, it provides for categories that are less ambiguous, legislation centric and are branches of governance that have the largest impact on people. Lastly, although it is true that the government does form expert committees to aid in legislation making, it is also a well-known fact that the constitution and functioning of these committees is rather cumbersome.

Thus, this suggestion proposing a permanent body with high expertise is the need of the hour; however, it must be restructured to include areas of lawmaking that have evolved due to growing security concerns, changing geopolitical motives, technological expansions, booming businesses and climate change. The success of this idea is essential to set out thoughtful legislation and a higher benchmark for law making bodies worldwide.

About the Author:

Nazeer U. Khan, is a 5th year BBA.LLB. student from the Faculty of Law, IFHE. He is holds high interest for the legality of armed conflict and is a staunch pacifist.


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