Rohit Kapoor)
It may not be an overstatement at all if one says the Chief Minister of Jammu and Kashmir hit the Bull’s eye during his address at the inaugural ceremony of Judicial Academy in Srinagar on 16-06-2013 when he emphasized the need of imparting formal law training to legislators. It is indeed an awesome idea, and seems viable. Of course political will is required. And if implemented, it can turn to be immensely advantageous for public in general at macro levels.
We know, a legislator (or lawmaker) is a person who writes and passes laws, especially someone who is a member of a legislature. Legislators are usually politicians and are often elected by the people. The political theory of the separation of powers requires legislators to be different individuals from the members of the executive and the judiciary. And Law is defined as “the system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties”.
Persons equipped with knowledge in law making process can certainly contribute more accurately and correctly for the welfare of the society. I will give an example. There is old and well known axiom that ignorance of law is no excuse, but this can apply legitimately only when there exist channels for publication of the law to be enacted. Legislation by a legislature must involve lot of publicity, for the bill to be discussed on the floor the legislature. In how many laws this kind of pre-publicity is given or objections invited from the public here in India? Rarely when it is done, it doesn’t take into consideration, “it is the actual and not the constructive knowledge which is significant.”
The courts have always insisted on publication. The publication in Government Gazette is mandatory as per many statutes for carrying out the purpose of enactment. Undoubtedly it can be argued it was “Published for general public”. From the point of view of the individual, it is unfair to publish law/rules in an obscure publication. ” Consultation of Interest” affected by the proposed rules/regulations is a part of democratization of the rule making process is regarded as desirable safeguard, for it to enable the interest affected to make their views known to the rule making authority. These and other processes are important to be understood by the law makers so that the letter of law matches the spirit of an enactment.
A “Good Law” so enacted is capable of cutting down the litigations. Many a time it has been noticed, despite there being an intention to come out with a law that may be required to control/regulate a particular situation, something material is left out. And any Rule so made can be challenged on the ground it is in-consistent with the true spirit of the law or on other grounds. Fresh process to correct it is time consuming. Many a time the Courts ask the Government to come with record relating to enactment of a particular rule or regulation in order to find out the true spirit of law so that the correct opinion can be formed. And if our legislatures are aware of these aspects, they will be expected to pursue the process of enactment of laws by objective considerations of the purpose, the correct process including consultation of interests or inviting objections from the public for the proposed law/amendment in law and the fairness. Interaction with public at large by inviting objections/suggestions etc. during the process of enacting a law, its efficacy can be ensured.
A legislator of course is not expected to know each and every judgment passed by the High Court or the Hon’ble Supreme Court of India, however, through the process of legal training, the legislators can be equipped with the knowledge of certain fundamental principles of law and doctrines of law / procedures coined by the Court of law. The Judicial training can not only help in making ‘Good Laws’, it can be immensely helpful in the decision making process in day-to-day affairs of the executive. Many a time, in important matters with far reaching consequences, the executive decisions require consideration/approval by the Ministers. And if the Minister who happens to be the legislator is equipped with the knowledge of law, the decision making can be better and more accurate.
When I read this news items about the statement made by the Chief Minister, highlighting the need for imparting training to the legislators in the judicial Academy, I had the occasion to interact with some well read persons. The consensus was, the idea of the Chief Minister is of course is formidable, but will it be implemented? And will the legislators accept the need for them to know more about the process of making “Good Laws” and taking decisions in accordance with law?
This apprehension of few or many cannot be said to be unfounded but I am sure effort has to be made. I believe and I may reiterate:
“We must accept finite disappointment, but never lose infinite hope. Martin Luther King, Jr.”
And so effort for seeking change for better must continue as the hope is infinite.
(The author is an advocate)
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