While the country is amidst an unprecedented lockdown and dealing with rampantly rising cases of COVID 19, there is another problem that begs our attention. Recently, on 18th April 2020, a draft of transgender person (protection of rights) Rules was presented to stakeholders for comments by the ministry of social justice and empowerment. Even though the draft has been placed under the public domain as per the pre-legislative consultative policy brought in 2014, it at first violated the guidelines by giving only 12 days to file the comments as opposed to mandated a minimum time of 30 days. It was later in the day, after a series of outcries by the civil society activists, that the government extended the deadline to meet the point on the brim i.e. extended it till 18th march 2020. Such a violation of the PLCP (Pre-legislative Consultation Policy), however, isn’t the only incident.
The law-making procedure in India has always lacked consultation over the framed laws and their impact. Even after the implementation of the PLCP in 2014, the government has passed bills as per its whims and fancies and without due deliberation over then, not only hampering the citizens’ participation in the legislative process but also posing a challenge to legitimacy and credibility of such legislative action. As per reports, bills that were introduced in parliament between June 2014 to May 2019, 89 per cent of them had no or incomplete consultation and were passed covertly.
Through the course of this article, I intend to discuss how important it is for India, to shift towards deliberative and participative democracy, to have proper statutory framework behind the implementation of PMLA for every bill that has to be passed by the legislature. I start by tracing the suggestion relating to PLCP 2014, and nuances associated with it as per the recommendation of the National Commission to Review the Working of the Constitution (NCRWC). I conclude by discussing what all principles have the global community adopted and how can those be aligned about India.
Pre legislative consultation: What is all about?
Before we move on to the nuances associated with pre-legislative consultation, let us look at briefly the law-making procedure in India. In India, the parliament is tasked with the formulation of legislations and ensuring scrutiny and debate over them before they are finally passed and become enforceable acts. The apex court recognized parliamentary democracy as an essential part of the basic structure of the constitution in the people’s union for civil liberties v union of India. However, it is still fraught with inadequacy due to the lack of pre-legislative consultation and deliberation.
Taking a step forward, in the year 2014, the ministry of law and justice has promulgated the pre-legislative consultation policy on the recommendations of the national advisory council created by UPA gov and the national commission to review the working of the constitutions. It puts forth a series of provisions that were to be followed by every ministry/department of the central government and was a significant leap aimed at the transparent and informed government. It mandated the gov to present draft legislation before the public through internet or print media and call for comments/ feedback on a wider range of issues including social and financial costs, benefits and key challenges along with supportive evidence and analysis for the need to bring in such a bill, thus, in short, it required the gov to justify the need for bringing in the legislation before the final undertaking of the legislation and presenting it to the cabinet.
It was aimed at improving the efficacy of the act by having the opinion of people or if concerning a community of sects affected by it a direct say over it and inclusive of the opinion of citizens affected both directly and indirectly by the act.
The policy framework mandated the government to place the draft legislation that is formulated in the public domain to be accessed by stakeholders, community/ sects affected, and citizens in general for a minimum time of 30 days asking for feedback and comments. It is also required to be accompanied by explanatory notes of the legal provision for a layperson to understand. Moreover, after obtaining the feedback a summary of it needs to be placed on the website of concerned ministry/ department and the gov’s response to such raised issues must be accompanied along with the draft of legislation to the cabinet. This whole summary is to be made available to the Department Related Parliamentary Standing Committee by the Department/Ministry concerned when the proposed legislation is brought to the Parliament and is referred to the Standing Committee. Importantly, the act also had a negative provision stated. In case the ministry/department feels that it is not feasible or desirable to place the draft for pre-legislative consultation then it must present the recorded reasons for the same to the cabinet which, if satisfactory to the cabinet, might call for a change in parliamentary procedure.
However, this seemingly highly held piece of policy framework however has not been implemented in letters and spirits.
Instances of non-compliance with PLCP,2014
For instance, consider the Delhi Special Police Establishment (Amendment) Bill, 2014, or the Assisted Reproductive Technology (Regulation) Bill, 2014 which were not made available in the public domain. Earlier also health ministry provided only 10 days for submitting comments on the draft amendments to the Medical Termination of Pregnancy Act, 1971 as opposed to mandated a minimum 30 days. A similar fate was met to the very recent draft of the transgender person 2020 bill.
Moreover, in many cases wherein appropriate times have been given for feedbacks and complaints, mostly such feedbacks are completely ignored. For instance, consider the draft of coastal regulation zone notification of 2018, wherein 90 per cent of the objections raised by the fishing collective and environment groups were simply ignored. The anguish following such ignorance was visible when Kiran Koli, general secretary of Maharashtra Machhimar Kruti Samiti said “Yeh lokshahi Nahi thokshahi hai (this is not a democracy, this is governance by force),”. Similar was the case with the passed Muslim women (protection of right on marriage) bill,2017 which criminalizes triple talaq. In this case also while it affects one particular community, the gov consulted neither women rights activist nor members of the community while drafting the bill leading to numerous defects including categorizing the offence as cognizable and power to arrest without any judicial inquiry or requirement of a complaint by the women simply on the pretence of the act. Furthermore, consider the draft of coastal zone law 2019, even when comments were made, most of them are rejected. To be specific, in this case, 90 per cent of the objections raised by the fishing community and environmental groups were rejected and ignored.
This is the evidence of control of one organ of the government i.e. legislature over the other i.e. executive in a country wherein separation of power is specifically mentioned in the constitution. While the parliament on paper is called the representative of the popular will, it has been reduced to work under executive. Moreover, it also violates international conventions. Article 5 of ICCPR clearly gives the right to participate in public affairs to citizens extending to matters of legislation.
How are the democracies across the globe functioning to maintain parliamentary democracy?
Many democracies across the world including the United Kingdom, Canada, and Switzerland have recognized the vital importance of the independence of the judiciary and worked well in ensuring proper institutionalization procedures for pre-legislative consultation. For instance, UK has a practice of publishing a Green paper on the recommendations of various stakeholders and experts involved in the field concerning the law before preparing a draft of the legislation, and subsequently, it prepares a white paper containing the fundamental principles over which the final draft is prepared. Another good case is that of Sweden wherein before drafting the legislation usually a special expert committee of inquiry is formed which is independent of government. It is tasked with analyzing and evaluating various aspects governing the proposed legislation. Examples of Finland and the European Union could be taken which brought in guidelines in 2007 to look for assessment of the impact of draft legislation on public administration which is also lacking in India.
Understandingly enough, a policy framework in place for PCLP isn’t working out to maintain the transparency in the passing of bills. This, however, if implemented with proper care and is backed by any statutory authority for implementation can lead significantly to strengthening the legislative process within the parliament. Moreover, in cases wherein it has been followed, a fruitful result is visible. Consider the introduction of the right to information bill, a banal piece which was put forth for public opinion and adhered to stakeholders’ concerns, is now one of the most vital acts in our country. Similarly, positive outcomes have been obtained in cases of Kerala police legislation 2011 or the Lok pal bill 2011.
Thus, the need of the hour is to put in place statutory provision or to incorporate such a framework in the general clauses act, 1897 making it enforceable in the court of law to place any bill to be introduced first public domain for comments and feedback. Furthermore, in cases draft is put in the public domain for comments but not complied within the final draft, the government must be required by law to justify non-adherence to those recommendations to the parliament.
ABOUT THE AUTHOR
Shreyasi Singh is a first-year law student at Dr Ram Manohar Lohiya National Law University. Her interests lie in Gender Studies and Constitutional Law along with International Law.