International Journal of Law and Legal Jurisprudence Studies

WORKING THE EFFECTIVENESS OF PRE-LEGISLATIVE CONSULTATION — Ms. Amrita Paul Programme Officer, Access to Information Commonwealth Human Rights Initiative, New Delhi

Abstract

In the engaging backdrop of Lok Pal, Land acquisition and Food security, the moot point is how Parliament and the legislative process gathers and uses inputs from the public? Policy-making is a fundamental function of the government which is representative of the citizens, but the ability of the citizen to participate in the process is also elementary.

Consultation being the key of modern policy-making and legislation because when it works well, it builds democracy and makes for an open, accountable and effective legislation, it is necessary as it grants to assist in decision making. Internationally, democratic governments provide for public engagement in lawmaking through consultations. Pre-legislative scrutiny sets the platform where citizens are encouraged to give their comments on the proposed legislation. The advantage gained is that it facilitates greater public participation and consultation, providing a legitimate opportunity for stakeholder views and perspectives and enabling to influence the legislation at the formative stage. This consultation also aids in developing workable solutions through the legislation itself which would gain acceptance.

As law is the mirror of the society and the function is to maintain social order, therefore it is necessary that government department allow citizens to contribute to shaping their own society. The involvement of the affected is highly desirable so as to make the law effective in practice. Additionally, the process of pre-legislative scrutiny should emphasize upon a greater degree of drafting effectiveness. Learning from other country experiences is warranted. A snapshot view of this is also present in the environmental laws of India in the form of EIA. Learning lessons from these examples would strengthen the process in the future.

 

Much against the friction and apprehensions expressed by its departments, the Central Government has decided to make pre-legislative consultation mandatory. On the 10th of January 2014, the Committee of Secretaries headed by the Cabinet Secretary, approved a policy requiring all Ministries and Departments of the Central Government to put the proposals for new Bills and amendments to existing laws on their websites inviting comments and views from the people they are finalized.[1] The communication intends to involve as many stakeholders as possible and particularly the ‘common man’ (aam aadmi), when finalizing draft laws or amendments to existing laws.

Last year, the National Advisory Council (NAC) had recommended mandatory pre-legislative consultation for all proposed laws and rules. For this, drawing its strength from the Constitution, it would “create institutionalized space for people’s participation in the formulation of legislations in a systematic manner”.[2] Mandating the above, would aid in evolving from being merely a representative democracy to that of a participative and deliberative democracy.

Together both the Indian Parliament and State Legislatures consider debate and pass a number of draft bills, rules and legislative amendments each year. According to the PRS Legislative Research (PRS), a research organization involved in tracking the functioning of the Indian Parliament[3] the 15th Lok Sabha will be remembered for being the least productive with just 165 bills passed in the past five years and 126 pending in the Parliament up till the 2013 winter session.[4] Bills that lapse at the end of the 15th Lok Sabha, will stand at a staggering figure of 68.[5] Many of the key bills that have lapsed include: the one that provides for reservation of 50 per cent of seats in the Parliament and the legislatures for women[6]; Judicial Standards and Accountability Bill, 2010; Coal Regulatory Authority Bill, 2013; Prevention of Bribery of Foreign Public Officials and Officials of Public International Organizations Bill, 2011.

It is not unknown that most laws are firstly drafted by the concerned department and thereafter discussed, debated and passed in the Parliament. But the time spent on discussing and debating bills are in fact very little. While 23% of all the Bills passed by the Parliament in the 15th Lok Sabha were discussed for more than 3 hours, 18% were passed with less than 5 minutes of discussion.[7] The function of the Parliament includes passing laws, conduct of oversight on policy initiatives of the government, examination and sanction the government’s budgetary allocations, and representation of citizens. The hard reality, however, paints a dismal picture as to where does it really invest its “precious” time.[8]

Out of the bills that have been passed in the Parliament, very few have been made available for public debate and consultation. Though some ministries proactively take steps towards consulting with the public, this is entirely discretionary. In India, there is at present, no law that compels Central and/or State Governments to consult with the public to seek their comments on the proposed draft legislation. Draft bills are made public only after they are tabled in Parliament, thus giving less time to civil society groups, media and other stakeholders to influence he legislative process. After the Lok Pal Bill passed greater citizen involvement in law making has gained fresh ground.

Manual of Parliamentary Procedures spells out the procedure for the formulation and drafting of legislation.  The Manual advises the departments to formulate the proposal “in consultation with all the interests and authorities concerned essentially from the administrative and financial points of view”, but no reference is made towards consulting the public and seeking their comments or opinions.[9] After the bill is drafted by the concerned ministry, it is circulated among other ministries for inputs. After incorporating the comments received, the draft bill is then sent to the Law Ministry for the final vetting and thereafter submission to the Cabinet for approval. The Bill is then presented in the Parliament (or State Legislature) after Cabinet gives its approval.[10]

The bill may then be further sent for review to one of the Parliamentary Standing Committees. During the review process, the Committee may issue advertisements in newspapers seeking comments from the public. Stakeholders are invited to give oral and written submissions elucidating their views. Nonetheless, the government is not obligated to accept the recommendations made by the Standing Committee. But a noted exception was during the drafting of the Right to Information Act, when once the review process commenced, a number of submissions from civil society groups seeking improvements were incorporated while drafting the final text of the legislation.

Standing committees do provide an avenue for the common man to voice his opinion, but this process suffers from certain limitations. Firstly, draft bills referred to Standing Committees would have been already introduced in the Parliament. A citizen voicing his/her opinions on provision/s would not have a lasting influence. Further, the committees are not obligated to incorporate record or address the suggestions received. Secondly, the proceedings of Parliamentary Standing Committee are entirely closed and even the media is barred from reporting the details of an ongoing consultation. The consultation which has a direct bearing on the interests of the populace is not open to either being attended or commented upon. Lastly and most importantly, the degree of transparency with respect to gathering, organizing and publishing the comments and suggestions forwarded is extremely negligible.

This lack of transparency and public consultation has been intensely felt and criticized amidst recent controversies. When the government was trying to push for the passage of The Civil Liability for Nuclear Damage Bill, it was heavily criticized as being party to passing such a complex legislation having the potential to affect and alter the lives of people with stealth and bare minimum levels of consultation.[11] Other bills having the potential to affect human lives include the Prevention of Torture Bill, the Communal Violence Bill and Biotechnology Regulatory Authority Bill. They have been critiqued for their poor drafting, weak implementation mechanism, exclusion of interested groups expressing their opinion, failing to address concerns articulated by civil society groups and other stakeholders.

Among the others, the law which has been hailed as the contribution of the common masses unto themselves i.e. Right to Information Act, 2005 was under attack in the last half of 2013. Pursuant to the Central Information Commission decision to include of political parties under the ambit of RTI, they were directed to designate public information officers to afford replies to applications. To counter this, an amendment was moved by the political parties and was introduced in the Parliament. However, with the public pressure building up against the Amendment Bill, it was referred to the Parliament Standing Committee for review. The manner in which the Standing Committee has engaged in consultation has been a contentious issues widely published in media.[12] This portrays the murky face of legislative priority in the nation.

With the Lok Pal Bill passed, civil society’s push for greater transparency and public participation was leased a new life and the need for a pre-legislative consultation phase gained importance. Internationally, pre-legislative scrutiny is an established process through which citizens are encouraged to give their comments and feedback on proposed legislation.

What is Pre-Legislative Consultation?

 

There is much need for celebrating the recent effort of the Cabinet to institutionalize public participation in the law making process. The decision requires that special efforts be made to consult with people in general apart from the special interest groups. Every Central government Department is to publicize the draft legislation on their website and through the media before it is introduced in the Parliament. The draft bills must be accompanied with an explanatory note outlining the essential provisions of the bill and its impact on the environment and lives of affected people. For gathering the views of the public a 30 day period is provided for the interested to respond.

After the nodal department/ ministry introducing the changes (if any) pursuant to consultations, the Law Ministry vets the Draft Bill. The draft Bill, along with a compilation of the people’s views received, would then be sent to the Union Cabinet for approval so as to be tabled in Parliament. For detailed consideration, the views received must also be shared with the Department-related Parliamentary Standing Committee.

Exceptions are always carved out, in a similar manner, this requirement of public consultation is dispensed with in special cases, but reasons have to be appended to the Cabinet note. The decision provides for the department to only disclose the summary and objectives of the draft legislation and not the entire text. But this discretion is measured by a more detailed protocol for pre-legislative consultation specifying the narrow list of circumstances in which disclosure can be dispensed with.

The creation of an avenue for citizen’s to participate in the legislative process is extremely fundamental to democracy.[13] It provides for an opportunity for debate and analysis of the draft legislation. Due to a legitimate space being fashioned, the views and perspectives of the stakeholders and citizens will shape the legislation in its initial stages itself.  Public participation with the legislative process results in better laws and fewer amendments. In the long run, pre-legislative scrutiny can even aid in improving the quality of legislation.

In countries like the UK, New Zealand, Scotland and Australia, pre-legislative scrutiny is increasingly becoming an established practice. The actual process of pre-legislative scrutiny may differ from jurisdiction to jurisdiction but the objective is the same: to make better laws. As public participation in the legislative process may take place over three stages; (i) the pre-legislative stage when the proposed law is in draft form prior to its introduction in Parliament; (ii) the legislative stage which begins from the time the Bill is introduced and ends once it is passed; and (iii) the post-legislative stage begins when the Bill is enacted. Some countries apply pre-legislative scrutiny before legislative drafting and in others pre-legislative scrutiny may take place at pre-drafting stage, but in any case, the process of pre-legislative scrutiny attempts to make better laws.

Thus, in the United Kingdom and other commonwealth countries, pre-legislative scrutiny is considered and done in Parliament before the bill is introduced formally before the full house at the drafting stage. On the other hand, for the Netherlands and the European Union, pre-legislative scrutiny is done early as an ex ante evaluation at the policy process, before drafting.

It is realistic to confirm that the process of pre-legislative scrutiny done at the pre-drafting stage is a real benefit to the policy maker and the legislative drafter, and useful in allowing greater and more considered attention to be given to the legislative proposal. But the question which keeps bothering one is – What are the benefits of pre-legislative consultation? How can it make the law making process more open? Is the pre-legislative consultation process adequate and how can it be enhanced?

 

The Benefits of Pre-Legislative Consultation: A short assessment

In democratic societies, legislation has the power to transform society and improve the lives of millions, especially the poorest of the poor people. But what good is it if this process is carried by our “representatives” behind closed doors and making it inaccessible to the citizens? What good is it to shout that the policies are for the good of the populace and in their general welfare, when no citizens know about its details in its formation?

The Select Committee on Modernisation of the House of Commons (UK)[14] observed that:

Parliamentary scrutiny at the pre-legislative stage can play an important role in improving the law, even where there has already been lengthy and extensive external consultation by government. Whatever its impact on the passage of legislation, the purpose of pre-legislative scrutiny is not to secure an easy ride for the government’s legislative program, it is to make better laws by improving the scrutiny of bills and drawing the wider public more effectively into the parliamentary process.”

In light of the above, some key advantages of pre-legislative scrutiny are:

1. As pre-legislative consultation lends a hand for debate and analysis of the draft legislation, it has the potential to improve legislation on the whole. With the process being made mandatory, it would enable deliberation and contemplation of the intent and basic guiding principles of the legislation. Interaction of stakeholders and citizens would facilitate a platform for discussion where the practical, procedural and technical issues involved can be discussed by all the stakeholders. Due to the open nature of the discussion, the voices would gain a sense of ownership of the legislation and not feel divorced from the law or the law making process during its enactment.[15] As citizens may raise questions to understand the intent and working of provisions, this provides an opportunity to the department/ ministries to get better acquainted with the draft legislation. Throughout this scrutiny, it will positively aid in improving the quality and outreach of the legislation.

2. Pre-legislative consultation as a pre-requisite requires stakeholders and people in general to come together and voice their views, perspectives and opinions. By doing this, it generates public participation. The wave of public participation increases with the government crafting a legitimate space where opportunity is given for the articulation of alternate voices and perspectives, possibly evening out the differences in opinion and largely building a broader consensus amongst the stakeholders in question.

3. As pre-legislative scrutiny gives the citizens an opportunity to explore the intent and working of provisions, it provides an occasion for the department/ ministries to get better acquainted with the draft legislation. In addition to questions being raised, experts and practitioners also indicate further additions and alterations and explanations. This involves citizens at a greater level and strengthens the Parliament to sense the public sentiment on an issue and strengthen the relationship between them and the public.

4. The mandatory inclusion of pre-legislative consultation would bridge the gap between the representatives and the citizens. By addressing concerns and issues at this stage, it helps in building consensus around a proposed legislation which can foster its smooth passage through the Parliament. Due to the debate and analyses carried out prior to the Bill being tabled in the Parliament, the ownership of the legislation is felt at the grassroots. This accelerates in both implementing the law in the spirit of the provisions drafted.

Problems that may faced hindering an effective Pre-Legislative Consultation

The Cabinet decision to institutionalize public participation through pre-legislative consultation is indeed a commendable initiative. But it is important to contextualize this decision in the prevailing social and economic circumstances in India, such as the general lack of education, inadequate access to information and cost and infrastructure constraints that the public institutions face – all of which can impede the effective participation of the public in the legislative process. Not forgetting, excessive rigorous participation pre-requisites can cause delays and even go to the limit of paralyzing the entire process.

Constraints faced in other Jurisdictions

 

1. Lack of political will – There is a widespread perception that pre-legislative consultation has now been reduced to a mere “rubber-stamping” exercise and is unresponsive to public opinion. . Due to it being an established practice, the department pays lip service to the process and complaints are being registered. In South Africa, cases evidencing such complaints were raised in Merafong[16] and Poverty Alleviation Network.[17]

2. Legislative authorities who are to carry out the pre-legislative consultation often lack resources and human capacity to initiate information distribution, public participation, collection of views and suitable platform for deliberation.

3. Very high on the list of problems would be the problem of access. It remains a challenge for ensuring an effective public participation. Generally it is noticed that it is only the business sector and the organized civil society which has access to information and resources to – know the relevant legislation, understand the legislative process and language entailed, forward a submission or a view. Another crucial aspect is that the time taken in the process is extremely less as compared to the time that the interests at stake taken to respond. This can further be categorized under the following specific barriers that may be faced:

a. Problem of physical access – The venue of these consultations is largely inaccessible to poor, people from rural background and even to the people living in the cities. Authorities may take steps to hold public meetings, but the success of them is yet to be documented.

b. Despite departments and ministries liberally making use of the media to reach out to the community, the effective use is seen to manifest in the reality levels of information used by the public in their participation.

c. Lack of education – Even with the right to education being recognized as a fundamental right in India, public education becoming a reality and reaching each individual is still very low. Public ignorance of legislative processes and opportunities for public participation remains high.

d. India being a diverse country having many languages and dialects, conducting the public consultation in English language only can pose language barriers for a segment of society. Resultantly, many people would be unable to present their practical ideas and solutions.

e. The costs that may accrue to the participants of the consultation must be weighed against the intended purpose and outcome.

4. After the promulgation of the law, a potentiality of the Courts remains as to interpretation of the law. To selectively apply either the ‘arbitrary’ or ‘capricious’ standard on ideological or political grounds presents itself at a alter stage.[18] In such circumstances, it is unknown which alternative it will choose, which aspect of the problem it chooses to highlight, which criticism appeals to it, which perspective is adopted and which review satisfies the requirement of a well reasoned judgment.

Choiced Best Practices for India

 

At this juncture where India has joined other nations in institutionalizing participation in the legislative process, creation of the appropriate structures, suitable to the Indian context, to achieve this is also necessary.  Using both formal manner of pre-legislative process experiences and other innovative methods of including more people and making it more participatory would be beneficial. This must be the endeavor as well so as to represent one and all and exhibit an all-inclusive design.

1. In United Kingdom, public consultation ensues based upon “discussion” and “approach” papers. Government sometimes publishes a “Green Paper” before drafting new legislation. In September 2003, the Department for Education and Skills had published a Green Paper on the protection of children at risk.[19] They are consultation documents produced y the Government when it is considering the introduction of a new law. It is relatively open-ended in comparison to White Papers which details upon the intentions of Government policy, on the basis of bills introduced in the Parliament. White Papers are published after the consultation is complete. The responses of the people to the consultation document are made available from the website of the relevant government department.

Similarly in India, this method may be widely adopted for assessing the pulse of the country. Increasingly, a number of ministries have toyed with this concept by releasing a discussion paper seeking public inputs on specific issues. In the banking sector, the central bank of India, RBI released a discussion paper on non-performing assets. Proposals were forwarded and action plans were formulated to arrest the financial distress caused.[20] Early this year, DIPP released a discussion paper on FDI in e-commerce. The position being taken by the Government of the day kept oscillating. Due to the release of the discussion paper, it drew people from various backgrounds and provided the Government to take a decision on merits.[21] With such discussion papers being proactively published on websites, an informed discussion to enable the Government to take an apt policy decision is expected as an outcome.

2. Publishing the draft legislation giving enough time for the citizens to deliberate and articulate their concerns must be maintained. In United Kingdom, the London Gazette contains all such notices of consultations. The documents can be obtained from the office as well as the website for responses. In Republic of South Africa, calling for public participation on draft legislation is intimated through newspapers, radio, television and the internet. The Canadian best practice enables to see whether the final draft is in keeping with the previous consultation drafts.

Furthermore, taking into consideration the audience of draft legislations the interests of differently-abled citizens must also be considered.

In the Indian context, during the last quarter of 2013, after the Right to Information (Amendment) Act, 2013 was refereed to a Parliamentary standing committee where inputs were called for from people. The provisions and requirements were widely published.

3. Conducting public hearings encourages people to express themselves. While conducting these hearings, the language barrier must not be undermined in our context. When asking for submissions to be made, basic concerns relating to ensuring greater participation must be borne in mind and practiced. Social auditing has taken birth during the ongoing deliberations between the representations/ leaders elected and citizens. The success of the same may be utilized.

4. Online consultation is becoming popular in the Canadian experience. These are accessible from anywhere in the world.[22] In addition to the ongoing consultations, the previous consultations (either completed or even ongoing) remain accessible so as to make a reference at the later stage. This provides for a single-window access to a list of consultation across government departments and ministries. Due to it being an established structure, it enhances public awareness of the government’s activities; provides opportunities for the interaction being both online and offline; and importantly it improves upon the capacity to manage consultation.

5. A unique practice from Switzerland[23] wherein the citizens are guaranteed the opportunity to be directly involved in the lawmaking process through the right of initiative. This allows the citizens themselves to request revisions of he Constitution provided they achieve the requisite number of signatures to support the cause. In an event, the Federal Assembly rejects the proposal, it must be put to vote of the people and if the demand remains, then the Assembly has to draft a bill corresponding to the initial proposal.

 

6. Right to Information Act, 2005 places an obligation on government departments to proactively publish information when formulating policies.[24] Placing a legal obligation on departments to publish draft policies, strengthening the mandate of transparency in the workings of the government. The Central Information Commission has ruled that “Sec 4(1)(c) of the RTI Act requires proactive disclosure of proposed laws/policies and amendments thereto or to existing/laws/policies to enable citizens to debate in an informed manner and provide useful feedback to the government, which may be taken into account before finalizing such laws/policies.[25]

7. Apart from exhausting formal means of executing a public consultation, informal means can also encourage public participation. Eg: press releases, mohallah meetings, workshops, information communications etc.

 

 

 

Inter-connection between Sec 4(1))(c) of RTI Act, 2005 and Need for Pre-legislative Consultation

India has no system whereby the Government may publicize the legislative agenda which it intends to table. Draft laws are proposed and brought into statute laws without engaging with the public. In an exception when the Minister chooses to release a statement, people come to know about draft laws. Secrecy and lack of consultation with the people, while drafting a new law, has been the norm; and exceptions rare.

The process when drafting a law encourages secrecy. The draft of a Bill is prepared by the Department/Ministry complying with the Government of India (Allocation of Business) Rules, 1961. Thereafter it is circulated for inter-ministerial consultations. After comments received from other Ministries, the administrative department prepares a note for consideration of the Committee of Secretaries. This note gets security classification –‘secret’.[26] With the secret label, legislative proposal would rarely be accessible to people except when it is voluntarily released. Therefore, an assessment needs to be carried out as to whether a draft legislation proposal qualifies for being classified as ‘secret’. [27] But in the absence of it being disclosed, confirming the same is questionable.

But whether – disclosure of a proposal of a new law or amendment to be brought in an existing statute would cause internal breach of peace and amity, cause administrative embarrassment or hurt the prestige of the government – is also moot.

At the backdrop of ushering in the RTI Act and the paradigm shift from secrecy to transparency, the practice of classifying legislative proposals or draft Bills as ‘secret’ is in excess of the power to classify documents vested in the Ministries and Departments as well the requirements of the Right to Information Act, 2005.

Working the intent of Sec 4 (1)(c) of RTI Act, it must be remembered that a draft Bill carries the intent of the Executive when they intend to enact a law on a specific subject. The Department/Ministry concerned is duty bound to place all factual information about the proposal. Therefore, again the draft Bill must be made public by the administrative ministry/department while formulating it.  The purpose is not merely information dissemination, but transparency in decision-making process is a desired value.[28] An informed citizenry enabled wider participation in the decision-making processes of Government by giving useful feedback. Thus, Sec 4(1)(c) desires the Parliament opens space for the general public (aam aadmi) to make contributions to the law-drafting process.

Takeaway lessons from Environment Impact Assessment procedure & Kerala Model Police Law in India

Environment Impact Assessment (EIA) is an exercise carried out before any project or major activity is undertaken to ensure that it will not in any way harm the environment on a short term or long term basis. It was introduced with the sole purpose of identifying/evaluating the potential beneficial and adverse impacts of development projects on the environment, not to forget the environmental, social, cultural and aesthetic considerations. These would be crucial in determining the viability of the project and whether the clearance should be accorded. Identifying potential impacts early on can be beneficial to the plan and design. Environmental Protection Agency has policies that encourage public participation beyond the statutory requirement.[29]

During the assessment undertaken, public participation is solicited. Some have argued that inclusion of public hearing delays the process and adds to building up of costs. Opponents put forward that citizen participation contribute concerning values, impacts, innovative solutions and alternatives.

Accepting that the EIA procedure is an administrative decision, it is important to note that it exists in most environmental law regimes. Reality in India shows that public participation occurs late in the decision-making process and at a stage when there is no possibility to influence any of the characteristics of the project. It translates into a mere formality as the decision to go ahead with the project is already taken. The citizen involvement in India has been limited to a public hearing, conducted late into the design and approval process of the project. Even though participation must be continuous, in fact it is severely limited. Dissemination of information in assisting people to understand the EIA process is minimal and even if provided is written in a technical language. Indication prior to hearings of the choosing of the panel, how to participate, and preparations entailed is given a go-by. Costs accruing to the public should also not be undermined. Lastly and very importantly, no clue of how the public input would be used in the decision making process is intimated.

Bearing the above experience in mind and moving onto a success story of practicing pre-legislative consultation much before the policy was being discussed and passed by the Cabinet is the drafting of the Kerala Police Law model.

The state of Kerala had its own Police Act, 1960 before the Supreme Court directions for revamping the police laws of all state were issued.[30] Following the Supreme Court directions they passed the Kerala Police (Amendment) Act 2007 to modify the law in conformity with the directions. In 2008, a scheme of janamaithri suraksha had been initiated effecting community policing.[31] When in 2011, the State government wanted to draft is police law. It was uploaded and proactively disclosed on the Kerala police’s website[32] and feedback from the public was requested. Due to the relation between the people and police getting strengthened, many observations were sent it and many were even incorporated into the draft.

MLA’s were also drawn into the process due to lobbying activities. In such a situation, they got acquainted into the process. Many acknowledged it to be of wide public importance and it was further referred to a select committee. During the working of the Select Committee, the members toured the State and held public hearings, workshops and meetings to engage in dialogue. Public participation was raised by resorting to both formal and informal methods.

More alterations and amendments were made and thereafter much debate in the House the bill was passed. Many of the people’s feedbacks have seen the light of day. The quality of the legislation has improved with increased public participation.

All the pre-requisites of a successful pre-legislative consultation are ingrained into making this legislation. It has been successful in its implementation as here has been paradigm shift in the psychology of the police.

With the policy in place and lessons being borrowed from other jurisdictions and above quoted examples, developing best ways and means to make public consultation in law making effective should be the priority.

Case Study – Designing a template for Pre-legislative consultation

In the last few months, the legal framework relating to rights to persons with disabilities has been under severe onslaught. Below, the researcher has attempted to create a template of conducting the pre-legislative consultation.

India had ratified the United Nations Convention on the Rights of Persons with Disabilities in 2007. Positive obligation has been created to bring the existing disability law,[33] in line with the international commitments. For this a committee of government officials, representatives of states, persons with disabilities and experts was instituted to draft a law guaranteeing rights and entitlements to them. The draft bill 2011 was submitted to the Ministry, even though the Ministry released a draft bill in 2012, both available on the website. The 2012 version was not so comprehensive when compared to that of the 2011 version. An amended version of 2012 was cleared by the Cabinet in December 2013. Confident that the interests are intact, protests for speedy introduction and passage of the Bill were recorded. There has been enough criticism about the provisions retained.[34]

Thus, when the draft legislation is going to be debated in the Parliament, issues like:

     Participation of stakeholders (Government Department/ Ministries, local government & municipalities, disabled peoples organizations, disability service providers, donors at the international levels) must be ensured representing each category;

     Manner of collection of views, expectations, opinions must be collected and alternatives indicated,

     Creating resources and capacity building for inviting and hosting the consultation

     Intimation to the stakeholders as to the status of their observations and comments;

     Manner of institution of the panel must be transparent and open;

     Access to information relating to the legislation must be fulfilled;

     Language and physical barriers must be taken into consideration and be solved;

     Utilizing both formal and informal methods of outreach be speculated. And

     What is missing from the draft/ proposed legislation?

 

Conclusion

The step taken towards institutionalizing public participation in the Indian legislative process and support must be afforded to make it a success. The growing demand for introducing transparency in the formulation and drafting of laws is being answered. For the success, some measures may be borrowed from other jurisdictions which have been indicated in the work. In addition, to suit our process, alternate approaches be adopted. Engaging the public through both formal and informal methods of initiating pre-legislative consultation would be crucial to achieve. Exploring the online consultation can be ventured into. Lastly and most importantly, the RTI Act provides a legal framework for the disclosure of information related to government policies and programs. Specifically, Section 4(1) (c) of the RTI Act requires government departments to proactively publish all facts when formulating policies or announcing decisions.

Recommendation

For pre-legislative consultation to be successful, the commitment of MPs and Peers is required. As the Modernisation Committee noted in 2002, ‘Improving the scrutiny of legislation will only be achieved if members of Select Committees and Members of the House show discipline in giving priority to pre-legislative scrutiny.’[35]

Sec 23 of General Clauses Act, 1897,[36] empowers the Government to make rules or byelaws, on the condition of prior publication, the draft version of draft rules and byelaws be widely advertised so that people affected can send their comments. This provision must be amended to include draft legislation as well. Consultation of public before enacting a law must become compulsory keeping in view the spirit of the Cabinet decision.

The concerned departments/Ministries should work towards bringing out draft proposals or consultation papers (like Green Papers in United Kingdom), for pre-legislative consultation, unless exceptional circumstances apply. Membership between committees which examines the draft legislations and which reviews the proposed legislation through a Standing Committee be made permanent. There must be endeavor to experiment with different methods of pre-legislative consultation. Research must be initiated to evaluate and monitor its effectiveness.

Devising ways of outreach to the public must be an objective to achieve. Assessing practical problems that may be faced must never be overlooked. Manner of accommodating the stakeholders at the hearing stage is also elementary.

Realizing the intent of Section 4 of the RTI Act is advised in this regard. Governments must pay attention to the requirement of publicizing rules and regulations in draft form prior to their final notification.

[1] http://lawmin.nic.in/ld/plcp.pdf (accessed on 25 Feb. 2014)

[2] http://nac.nic.in/pdf/plp2.pdf (accessed on 25 Feb. 2014)

[3] http://www.prsindia.org/aboutus/what-we-do/ (accessed on 4 Mar. 2014)

[4]http://www.newindianexpress.com/nation/15th-Lok-Sabhas-Dubious-Record-Least-Productive126-Bills-Pending/2013/12/20/article1956111.ece#.UxlvAT-SzSk; http://www.prsindia.org/media/essential-stats/15th-lok-sabha-success-rate-in-passing-legislation-3025/ (accessed on 6 Mar. 2014)

[5] http://timesofindia.indiatimes.com/india/68-bills-lapsed-at-end-of-15th-Lok-Sabha/articleshow/30862388.cms

[6] Constitution (108th Amendment) Bill

[7]http://www.prsindia.org/media/essential-stats/15th-lok-sabha-how-much-time-does-parliament-spend-on-discussing-bills-it-passes-3028/ (accessed on 4 Mar. 2014)

[8] http://www.prsindia.org/media/essential-stats/15th-lok-sabha-where-does-parliament-spend-its-time-3031/ ((accessed on 4 Mar. 2014))

[9] Government of India, Ministry of Parliamentary Affairs (2004) Manual of Parliamentary Procedures in the

Government of India, available at http://mpa.nic.in/Manual/Manual_English/Index.htm (accessed on 4 Mar. 2014)

[10] Ibid, Chapter 9, para 9.2(a)

[11] Siddhartha Vardharajan (2010) “This is No Way to Write A Law”, The Hindu, 24 August (available at

http://www.thehindu.com/opinion/lead/article592116.ece?homepage=true&css=print) (accessed on 8 Mar. 2014)

[12] http://archive.asianage.com/mumbai/ex-cic-gandhi-slams-panel-s-secret-meet-126 (Accessed on 8 March 2014)

[13] First report, Modernisation of the House of Commons Committee, 2006.

[14] Ibid

[15] http://www.hansardsociety.org.uk/wp-content/uploads/2012/10/HS-Briefing-Paper-Issues-In-Law-Making-5-Pre-Legislative-Scrutiny-2004.pdf (p.5)  (accessed on 7 Mar. 2014)

[16] Merafond Demarcation Forum and Others v. President of the Republic of South Africa and Others [2008] ZACC 10. (para 46-50)

[17] Poverty Alleviation Network and Others v. President of the Republic of South Africa and Others [2010] ZACC 5. (para 59-63)

[18] Richard Revesz, ‘Environmental Regulation, Ideology, and the DC Circuit’, 83 Virginia Law review 1717 (1997); American Coke and Coal Chemicals Institute 452 F.3d 930 (DC Cir 2006)

[19] www.policyresearch.org.uk/new_laws.php (accessed on 8 Mar. 2014)

[20]http://www.dnaindia.com/money/report-full-text-reserve-bank-of-india-releases-discussion-paper-on-non-performing-assets-1936791; http://www.rbi.org.in/scripts/PublicationReportDetails.aspx?UrlPage=&ID=715(accessed on 9 Mar. 2014)

[21] http://www.livemint.com/Politics/RhhetzMEUa1ipBfsDCaaPK/Allowing-FDI-in-ecommerce-has-pros-and-cons-DIPP.html; http://dipp.nic.in/English/Discuss_paper/Discussion_paper_ecommerce_07012014.pdf (accessed on 9 Mar. 2014)

[22] http://www.consultingcanadians.gc.ca/hm.jspx (accessed on9  Mar. 2014)

[23] This may be argued as an exceptional case due to its size and population demography. But the same practice may be borrowed at a smaller scale.

[24] Sec 4(1)(c)

[25] Venkatesh Nayak v. The CPIO, DoPT and Appellate Authority, DoPT (File No.: CIC/WB/C/2010/000120)

[26] Procedure Regarding Preparation and Submission of Papers for Consideration of the Committee of Secretaries, Cabinet Secretariat’s Note dated 15/4/2002, accessible at:

http://cabsec.nic.in/showpdf.php?type=circulars_committee_secretaries&special (accessed on 9 Mar. 2014)

[27] This criteria and procedure is contained in Manual of Departmental Security Instructions (MODSI) which was issued by the Union Ministry for Home Affairs in 1966. This document itself is inaccessible even with the RTI Act being implemented.

[28] Indian Olympic Association v Veeresh Malik, WP(C)No. 876/2007, decision of the Delhi High Court dated 07

January, 2010. Para 54

[29] Janice Gorin, ‘Caught between Action and Inaction: Public Participation Rights in Voluntary Approaches to Environmental Policy’ 24 Stanford Environmental Law Journal 151 (January 2005)

[30] Prakash Singh & Ors. v. Union of India & Ors. (2006) 8 SCC 1

[31] http://www.keralapolice.org/newsite/janamaithri.html (accessed on 8 Mar. 2014)

[32] http://www.humanrightsinitiative.org/programs/aj/police/india/acts/kerala_police_act_2008.pdf (accessed on 8 Mar. 2014)

[33] Persons with Disability Act, 1995 (available at: http://meghpol.nic.in/acts/central/PWD_Act.pdf) (accessed on 9Mar. 2014)

[34] https://docs.google.com/file/d/0B64fpIIJNZL8TFNzRHJmOW85cjg/edit?pli=1(accessed on 9 Mar. 2014)

[35]Modernisation Committee, (2001-2002), Modernisation of the House of Commons: A Reform Programme,HC1168-I (available at: http://www.hansardsociety.org.uk/wp-content/uploads/2012/10/HS-Briefing-Paper-Issues-In-Law-Making-5-Pre-Legislative-Scrutiny-2004.pdf) (accessed on 9 Mar 2014)

[36] Sec 23 Provisions applicable to making of rules or bye‐laws after previous publication.‐ Where, by any (Central Act) or Regulation, a power to make rules or bye‐laws is expressed to be given subject to the condition of the rules or bye‐laws being made after previous publication, then the following provisions shall apply, namely:‐ The authority having power to make the rules or bye‐laws shall, before making them, publish a draft of the proposed rules or bye‐laws for the  information of person likely to be affected thereby.

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