Compliance of Pre Legislative Consultation Policy (PLCP) before introducing Electricity (Amendment) Bill 2021 in Parliament , Nov 29,

Posted On : December 14, 2021

The Lok Sabha  Bulletin  indicates the list of Bills  to be considered in the Winter Session of Parliament, starting 29 Nov.  One of the Bills is  the Electricity (Amendment) Bill 2021 . All India Power Engineers Federation (AIPEF) , a body of Power Engineers  of the Country , seeks to bring to your urgent attention  that in formulating the Electricity ( Amendment ) Bill 2021  the Power Ministry has not complied  with the provisions of  Pre-Legislative Consultation Policy (PLCP) which was circulated by your ministry  to all Secretaries to the Government of India through DO Letter 11(35)/2013-L.1  dated 05 Feb 2014 . The Pre Legislative Consultation Policy was based on decisions taken in the meeting of the Committee of Secretaries held on 10 Jan 2014  under the Chairmanship of Cabinet Secretary .  Copy of DO as well as Decisions  of 10-Jan 2014  is at Annex 1.

 

2.   The details of how the procedure adopted  for Electricity (Amendment) Bill 2021  differed  with and contradicted  the PLCP Policy of 05-02-2014  are summarized as under .

2.1 The PLCP requires that draft legislation  should be proactively published  both on the  internet and by other means  which was not  done/implemented  by the Ministry of Power. MoP issued a letter (Annex 2) dated 05 Feb 2021 . This letter , containing the proposed amendments to Electricity Act 2003  was addressed only to the Energy/Electricity departments of State Govts and UTs and was not published through the website.

2.2   Since the Bill 2021 seeks to amend the Electricity Act 2003  it  affects/impacts all electricity consumers of the country  including  Generators, Transmission licensees , Distribution  companies ( State as well as Private), Private sector IPPs, IPPs in field of renewable and non conventional energy, Distribution Franchisees, Pvt sector Transmission  Licensees. The most significant stakeholders  have been missed out viz electricity consumers- domestic, Agricultural, Commercial, Industrial, and captive power producers, and electricity workers and engineers in the power sector .  In view of the comprehensive  coverage and scope of proposed legislation  it was absolutely necessary to have  put the draft legislation on the website of the Power Ministry for at least 30 days .

2.3   The  draft legislation  as per letter of 05 Feb  2021 ,   required that States should give their comments within 2 weeks  , which is a clear non compliance of  PLCP.

2.4    The PLCP  requires that the  draft Bill 2021 should include  brief justification, essential elements , broad financial implication , and an estimated assessment of the impact of such legislation on environment, fundamental rights, lives and livelihoods of the concerned /affected people.  None of these essential parameters of  PLCP  ( vide para 2 of Decision dt 10-Jan 2014)  have been complied with/addressed while finalizing the Electricity (Amendment) Bill 2021.

2.5  The  original legislation  viz  Electricity Act  2003  was based on the Statement of Objects and Reasons   , which is a part and parcel of the Electricity Act 2003. It is clear that when there is an    amendment to be made in the original Act ie Electricity Act 2003  the amendments must be suitably explained   through a Statement of Objects and Reasons. Para 2 of PLCP  explains  precisely what is  contained in the Statement of Objects and reasons of Electricity Act 2003.  There is a clear parallel between the Statement of Objects and Reasons  of Electricity Act 2003  and the  provisions contained in PLCP  para 2 . The relevant portion of Statement of Objects and Reasons of Electricity Act 2003 is quoted

Accordingly, it became necessary to enact a new legislation for regulating the electricity supply industry in the country which would replace the existing laws, preserve its core features other than those relating to the mandatory existence of the State Electricity Board and the responsibilities of the State Government and the State Electricity Board with respect to regulating licensees. There is also a need to provide for newer concepts like power trading and open access. There is also a need to obviate the requirement of each State Government to pass its own Reforms Act. The Bill has progressive features and endeavours to strike the right balance given the current realities of the power sector in India. It gives the State enough flexibility to develop their power sector in the manner they consider appropriate. The Electricity Bill, 2001 has been finalized after extensive discussions and consultations with the States and all other stakeholders and experts.    

2.6   The above quoted Statement is  a part of Electricity Act 2003 i.e. it is a Statute.  This Statute has given the principle

The Electricity Bill, 2001 has been finalized after extensive discussions and consultations with the States and all other stakeholders and experts.    

Extensive discussions  were necessary  not only with States  but also with

all other stakeholders  particularly power employees , engineers and experts.    

2.7   The  Electricity (Amendment) Bill 2021  does not adopt the principle already contained in Statute and also it  fails to adopt the  directions and principles contained in the PLCP.  The forwarding letter of the Amendment Bill  i.e. Letter dt 05 Feb 2021 (Annex 2)  gives 2 weeks for States to respond  ie by 19 Feb.  However, the Ministry of Power ( even before expiry of 2 weeks)  issued a notice on 10 Feb 2021  for a videoconference with the States on 17 Feb . Thus  while giving  inadequate time  ( two weeks only) the MoP  rushed to hold a video conference on  17 Feb   i.e. 12 days after  notice of 05 Feb.

2.8    Even the video conference was rushed through on 17 Feb  wherein the States/UTs were given extremely limited time as the time slots in videoconference were limited.

North Zone with 10 States/UTs was  given a slot of 1 hour

West Zone  with 7 States   was   given   1 hour

South  Zone with 7 States    was given 1 Hour

East andNorth East   with 12 States was given 1 hour.

In the above video conference , as per MoP documents  the participation was limited to State/UTs  while all other stakeholders were excluded.

2.9   While PLCP ( para 6)  the direction is that feedback/comments must be put on the website of the Ministry . This has not been complied with, wrt Electricity (Amendment) Bill 2021.  A RTI Application was submitted to the Ministry of Power  on 15-11-2021 seeking a copy of comments/objections/suggestions  submitted by  specific stakeholders ( including States, IPPS, and Private Sector Discoms)  with request to send the information by e-mail.  The  requisite information  under RTI has not yet been received.

2.10    Vide para 10  of PLCP  the summary of  Electricity (Amendment ) Bill 2021 should have been placed before the Standing Committee on Energy of Parliament.  Para 10 of PLCP   , when applied to Electricity (Amendment) Bill 2021 , makes it mandatory that the Bill must be placed before the Standing Committee  on Energy.  The purpose of para 10 of PLCP is evident that  broad based  discussion  wherein  members of the Standing Committee can participate, must be ensured . Even if the Bill 2021 is tabled, the para 10 of PLCP makes it mandatory to refer the Bill to the standing Committee on Energy.

2.11   Para 8 of PLCP  makes it compulsory for the Ministry of Power to refer the draft Bill to the Ministry of Law and Justice GOI, which has to ensure that the provisions of PLCP  have been  correctly complied with.

2.12    In a previous instance  the Electricity (Amendment) Bill 2014  , Bill No 191-2014 was  referred to the Standing Committee on Energy . This is a clear precedent that the (Amendment) Bill of 2021  must similarly be  referred to the Standing Committee ( after ensuring that all the provisions of PLCP have been duly complied with.

2.13   The  State and Central Electricity Regulatory Commissions  are important Stakeholders  with key roles assigned under Electricity Act 2003 . Further on major changes of Policy the SERC  have a mandatory role to advise  States.  The  draft bill dated 05 Feb 2021 has two specific points, one relating to SERCs  and other related to APTEL. These  important stakeholders  should not have been ignored/bypassed  in pre legislative consultation.  Comments and suggestions  were necessary to have been obtained /considered  from these stakeholders dealing with  Regulation and APTEL whereas MoPower  does not recognize these statutory authorities as stakeholders.

Conclusion:   The  Electricity (Amendment) Bill 2021 in its present form  does not meet the provisions and requirements  of Pre legislative Consultation Policy (PLCP) on multiple counts as stated above.  On this account alone the bill deserves to be withdrawn  and referred back to the Ministry of Power  for  ensuring the  true compliance, in letter and spirit  of the PLCP. The present Bill is based on restricted and incomplete feedback from the majority of stakeholders who have been simply ignored from giving their inputs/comments . The most important element  in pre legislative consultation process – broad based  inputs and consultations  from all stakeholders- has been derailed at the outset itself when MoP , vide its  letter 05 Feb 2021 (annex-1) excluded the majority of stakeholders  while the Electricity Act 2003 and its amendments impacts all categories of electricity stakeholders. Due to this derailment of the process occurring at the very first step the entire process has become vitiated , further as it is violative of  PLCP. In fact, the PLCP mandates public participation and involvement of all stakeholders  as seen in Paras 1 and 2  of PLCP.  AIPEF accordingly requests the Law Ministry to intervene and  assert the  authority and relevance of PLCP  which must not be allowed to remain on paper.

    The DO Letter dated 05 Feb 2014 of Law Ministry   by which the PLCP was circulated to all Secretaries to Govt of India  concludes as under  with the statement

The details of such legislative process are given in the Appendix to facilitate systematic compliance and adherence with the policy so laid down.It is requested that the Policy document be given wide publicity in your Ministry/Department for strict adherence.