By Shivalika Singh, Jindal Global Law School, Sonipat, Haryana.
“Democracy is not a spectator sport, it’s a participatory event.”
~ Michael Moore
Public engagement forms the foundation of democracy and plays a pivotal role in creating laws. The current environment surrounding our legislative process demands an essential change in the law-making process and pre-legislative consultation policy comes to the rescue. The aim of the pre-legislative consultation policy is synonymous with its name. In simple words, pre-legislative scrutiny involves a process of engaging with all key stakeholders in the society before a law is passed by the legislature. Statistically speaking, out of the 186 Bills introduced during the period June 2014 to May 2019, almost 142 of them did not involve any prior consultation. These figures demonstrate the rising need for legislative scrutiny that may aid in the creation of laws that benefit all members of society.
The Fallacy-
To formally establish a pre-legislative process in the country, The Indian Government in the year 2014 introduced a pre-legislative consultation policy that stated "Every Department/Ministry shall proactively publish the proposed legislation both on the internet as also through other means in the public domain for a minimum period of thirty days." While this was a significant step taken in the right direction, there was a fallacy left in the initiative. The policy aims to ensure more democratic participation in the law-making process, but it fails to make this process binding as consultation and deliberation remain non-mandatory. This loophole is the biggest issue, rendering the policy almost insignificant in purpose.
A Mixed History-
The Indian legislature has had a mixed past with pre-legislative scrutiny, with the landmark case of the RTI (Right to Information) Act being passed even before the formal introduction of this policy. Before the RTI Act was passed, it involved several rounds of consultations and amendments and was finally passed in 2005. While the RTI stands as a good example of ensuring the participation of citizens in a democracy, there have been legislations that have been passed without enough consultation and deliberation. A recent instance of this was the introduction of Farm Laws. The three bills that were passed through a voice vote became a playground for controversies and protests. While replying to an RTI about the pre-legislative process surrounding the laws, The government failed to produce any documentation about the pre-legislative process around the three agricultural laws, showing a lack of consultation with the most significant stakeholder, farmers, prior to the development of these laws. Further, the Centre’s failed attempts to communicate the laws worsened the issue and were ultimately repealed by the government. This case underlines the need of engaging all the important stakeholders in the law-making process as this situation was easily avoidable by the government and in return could have helped the government in boosting trust and confidence amongst the citizens. Another facet of this policy is the process of deliberation. pre-legislative scrutiny should not be limited to only consultation which involves discourse and discussions and must engage in deliberation that would incorporate these opinions and feedback generated from discussions in the Draft Bill before the final law is prepared. Like in the Central Vista Redevelopment Project undertaken to redevelop the administrative part of Lutyens Delhi, The Delhi Development Authority received about 1300 objections and suggestions. Despite this, all objections and views were ignored and later the project received its approval from the apex court. Justice Sanjeev Khanna who presented a dissenting view to this judgment emphasized the lack of public consultation in the process and quoted "To ignore their salutary mandate as to the manner and nature of consultation in the participatory exercise, would defeat the benefic objective of the exercise of deliberation. Public participation to be fruitful and constructive is not to be a mechanical exercise or formality, it must comply with the least and basic requirements". Similarly, the case of the Transgender Rights Bill passed by the parliament in 2016, faced a lot of backlash from the transgender community for not incorporating the suggestions provided by them. The lack of consultation and deliberation in the law-making process, which overlooked the needs of those who would be most affected, breeds distrust between citizens and the government.
The Way Out-
The government and the citizens have an interlinked relationship in this process of pre-legislative consultation and both have equal responsibility to ensure its implementation. Primarily, there is an urgent need to mandate a pre-legislative consultation process. As a result of the mandatory implementation of this policy, legislation will be able to incorporate a wide variety of interests from many stakeholders in society, resulting in increased legitimacy and acceptance. Further, the government would need to promote this policy amongst the citizens through various modes of communication (especially digital mode considering the current shift), as when the draft is presented in the public domain, it is important for the people to be at least aware about it in order to further participate. Finally, citizens cannot forget their role in this process as the policy ensures the Right to Participation and with a proactive society, the laws can help bring a change in the society.
Conclusion-
While now, it can be concluded that there is a need to introduce a more reformed and structured pre-legislative consultation policy by the government and that the current policy is not compatible in this day and age. From ensuring consistency and uniformity in the laws to empowering citizens of the society by hearing their voices, this process of consultation and deliberation can surely pave the way for more meaningful legislation. The impact created in the lives of the people by laws that resonate with them in a fair and just manner generates greater public acceptance and further ensures smooth governance. Finally, this process of legislative scrutiny can help in creating laws that are actually by and for the people.
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