An institutional framework for Pre-Legislative Consultation Process in India

Editorial analysis for UPSC Mains & Prelims relevance.

04 Dec 2021
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  • In recent times, there have been calls for more transparency and information regarding bills that are passed in parliament.
  • Recent protests over farm laws, RTI Amendment Act, Transgender Persons Act etc. have highlighted that there is discontent among stakeholders and the public since they were not consulted while framing such laws.
  • Despite the adoption of Pre-Legislative Consultation Policy in 2014, 227 of the 301 bills introduced in Parliament have been presented without any prior consultation.
Pre-Legislative Consultation Policy
  • The Pre-Legislative Consultation Policy (PLCP) 2014 mandates that whenever the Government makes any laws (bills, rules, regulations etc.), it must place a draft version of it in the public domain for at least 30 days.
  • It also says that along with the draft, a note explaining the law in simple language and justifying the proposal, its financial implication, impact on the environment and fundamental, etc. should be uploaded.
  • The respective departments should also upload the summary of all the feedback that they receive on the circulated draft.
Such policy provides a forum for citizens and relevant stakeholders to interact with the policymakers in the executive during the initial stages of law-making. Current Status
  • During the 16th Lok Sabha, 186 bills were introduced in Parliament,
    • 142 saw no consultation prior to introduction.
    • 44 bills placed in the public domain for receipt of comments,
    • 24 did not adhere to the 30-day deadline.
  • During the 17th Lok Sabha, 115 bills were introduced in Parliament,
    • 85 saw no consultation prior to introduction.
    • 30 bills placed in public domain for receipt of comment,
    • 16 of them did not adhere to the 30-day deadline.
PLP in Kerala and South Africa Kerala While PLP may seem like a relatively new venture in India, there is more precedent than what one might expect. An Indian version of this form of ‘engaged’ and ‘active’ citizenship already exists in the state of Kerala. In fact, the Kerala model is quite clear and concise. This was seen in the case of the police law that the government was looking to pass. That is, the Kerala government did not just simply stop publishing its draft police law before introducing it in the legislature, but it also took into consideration and included the various comments and suggestions put forward by differing groups and stakeholders on their thoughts regarding the draft bill. Quite impressively, this was not the end of the process. That is, once the said bill had been introduced, it was next referred to a committee that conducted a number of town hall meetings and public hearings wherein MLAs were engaged in active and dialogue with their constituents, answering and clearing any queries and doubts This activity had a strong positive impact, most notably on the immediate discussion session in parliament with relation to this bill, wherein all the legislators were well informed and were equipped with the requisite clarity to continue improving the bill. South Africa Another notable example would be that of South Africa, wherein pre-legislative engagement with the public is for all purposes a constitutional requirement. All laws that are not passed through this process are struck down. A notable example of this would be the recent case of  Doctors for Life v. Speaker of the National Assembly, where the Constitutional Court of South Africa struck down a law passed by the South African legislature on the basis of there not being enough public participation in the legislative process. Rather surprisingly, in this specific case, drafts of the laws in question had been published and were widely circulated. Yet in spite of all this, the public still felt that there was a serious lack of public involvement from the citizens in the overall process. The court recognised the multidimensional nature of what they called ‘the right to participation’. They agreed that it had many varying aspects to it and it was by no means a one-dimensional thing. From this ruling, a number of important things can be understood regarding PLP.
  • First and foremost, at its base, PLP is essentially the effective education of citizens with regard to the host of controversial issues surrounding their daily lives. 
  • Furthermore, to truly be in keeping with the spirit of democracy it is pivotal that all citizens are adequately given adequate information about each and every important issue pertaining to them.
  • Also, this policy aims to stimulate informed debate among the citizenry, rather than a simple argument on sentiment. 
  • Finally, with regard to the South African situation in particular, the judgement highlighted the need for the increased participation of historically marginalized groups, especially those who had suffered during the numerous years of apartheid rule
Challenges
  • There is no statutory or constitutional right or provision that forces all Government departments to expect an approved policy such as Pre-Legislative Consultation Policy (PLCP).
  • The effective implementation of the policy requires subsequent amendments in executive procedural guidelines like the Manual of Parliamentary Procedures and Handbook on Writing Cabinet Notes.
    • However, during a subsequent amendment to the Manual of Parliamentary Procedures, the Ministry of Parliamentary Affairs ignored the Ministry of Law and Justice when it requested them to incorporate PLCP provisions in the manual.
Summing up Public consultations enhance transparency, increase accountability and build an informed Government where citizens are treated as partners and not as subjects. Thus, incorporation of pre-legislative consultation in the procedures of the Cabinet, Lok Sabha, Rajya Sabha etc. should be prioritized.  In addition, empowering citizens with a right to participate in pre-legislative consultations through a statutory and a constitutional commitment could be a gamechanger. Similarly, ministers must be mandated to place an addendum note on the details of the pre-legislative consultation while introducing a bill.
POSTED ON 04-12-2021 BY ADMIN