This article is written by Pratap Alexander Muthalaly, a student of the Government Law College, Trivandrum. This article is an in-depth review of the concept of Pre Legislative Consultation Policy and its relevance in the Indian context with an emphasis on the models of this policy implemented in Kerala and South Africa.

Introduction

In recent times, there have been calls for more transparency and information regarding bills that are passed in parliament. There has been strong criticism from some quarters over how little involvement and voice the general collective has in terms of what takes place in parliament. This can quite clearly be seen in the recent protests against the farm bills wherein stakeholders, in this case the farmers, felt that they were not included enough in the discussion process that preceded the bill. This however is not an isolated case, there have been numerous instances both in recent times and in the past wherein stakeholders have not been consulted adequately before the formulation of a policy. This is an issue that urgently needs to be addressed as the active participation of citizens in the legislative process is very much central to the effective functioning of a democracy. One commonly suggested way to bring this about would be through a pre-legislative consultation policy.

Overview

Simply put, a Pre-legislative consultation policy is a process of engaging with the public on Bills before they are actually put forward in parliament. The early foundations for this policy in India were introduced (pre-publication of Bills) by the UPA government in 2014 on the recommendations of the National Commission to Review the Working of the Constitution (NCRWC) and also the NAC. According to the principles of this policy, various departments and ministries should place draft legislation in the public sphere along with a justifiable reason as to why they want to enact the bill in question.

Furthermore, details of the social, financial costs, benefits, challenges, and estimated impact assessment along with an explanation on key legal provisions must be furnished as well. All this information must be available to the public for a minimum time span of 30 days. While previous governments like the 2014 UPA government and the earlier NDA governments were all forthcoming to the bill, the present government has shown less enthusiasm with regard to it. A perfect example of this would be the controversies related to the Transgender Persons (Protection of Rights) Rules 2020. On April 18, 2020, the Ministry of Social Justice and Empowerment had asked for comments from all stakeholders on the Draft Transgender Persons (Protection of Rights) Rules 2020. Initially, the Ministry set the deadline to submit comments as April 30, 2020. This essentially meant that only 12 days were given to file comments. This was in direct violation of the  Pre-Legislative Consultation Policy (PLCP) 2014. It was only after repeated protests from stakeholders that the time was increased.

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

Why PLP is a must for India

PLP ensures that the concerned parties with relation to a draft bill are allowed to have a say on the said bill and voice their concerns and opinions on it. In a country such as ours with such varied and diverse interests, it is crucial that we have policy instruments like PLP, to ensure that all groups feel their opinions are given the requisite value and recognition. Simply put, if a piece of draft legislation is specifically related to a certain sector or community, it is crucial that there be consultation with the relevant stakeholders so as to ensure that the government gets practical inputs from those who will be affected by their laws. The Muslim Women (Protection of Rights on Marriage) Bill, 2017, which criminalises the practice of triple talaq is a perfect example of this, wherein the concerned groups were not consulted adequately before the bill was passed.

The bill is ridden with numerous fallacies, including the fact that triple talaq was listed as a cognisable offence. Another alarming factor was that the police were given the mandate to arrest Muslim men, without any judicial consideration or scrutiny as to whether the person in question actually needed to be taken into custody. This basically meant that the provisions were applicable even in circumstances where there was no complaint filed by the spouse. Moreover, the government did not go through the designated practice of consulting concerned members of civil society like women’s rights activists, criminal lawyers or for that matter members of the Muslim community while in the process of drafting the bill. This lack of communication between the concerned parties and the government essentially ensured that the bill was set up to fail from the start.

Another example of how the government failed to connect with concerned community members is the Transgender Persons (Protection of Rights) Bill, 2016, which significantly diluted the rights of transgender persons as recognised in the landmark case of NALSA v. Union of India. Basically, the Bill was drafted without adequate consulting and discussing with members of the transgender community, as a result, the community out and out rejected the Bill, owing to the fact that they felt it was not in their best interests. Basically, The Bill groups wrongly groups together intersex persons ad transgenders seeing them as one and the same, furthermore, it failed to properly address important matters at the time such as the removal of Section 377 of the IPC. Also, it failed to address the trans community’s popular demand for inclusive matrimonial and inheritance laws. Another sore point was the failure to make crimes gender-neutral so as to properly exclude members of the transgender community.

In this case, if a pre-legislative consultative process had been followed by which the trans community had been adequately informed and consulted prior to the drafting of the Bill, a far more effective legislation could have been framed. Similar parallels can be drawn in the case of the Criminal Law (Amendment) Ordinance, 2018, which essentially awards death penalty to those accused of gang-raping a child. This bill was passed to simply paper over the cracks, in light of the recent public outcry over rape and abuse of minors. It failed to take into consideration the existing research literature which highlighted the lack of actual deterrence of crime through the passing of a death sentence. Furthermore, it did not take into account the risks involved, that is the possibility of the rapist murdering their victim in fear of detection and punishment.

What is Green Paper and White Paper

In the United Kingdom, there is a practice of publishing a “Green Paper” prior to the drafting of a law. The Government is usually involved in consultation with stakeholders and experts for a few months and then publishes a “Green Paper” which covers all the consultation documents the Government will depend on while drafting the new law. Following this, the Government may also publish a “White Paper” which enumerates the central principles based on which the Government intends to draft the law. Adopting similar procedures in India must be strongly considered by the Government as it can help in democratizing the overall lawmaking process.

How the Existing PLP law can be reformed

Here are some possible reforms that can help strengthen the existing PLP laws and ensure greater transparency and public participation. 

• All major bills must be initially instituted in the form of an exploratory green paper before the public, essentially outlining its major policy objectives so as to create public discourse and debate on the issue.
• The green paper must be followed by a white paper which entails a more concrete form of the law.
• Every draft, irrespective of whether it was preceded by green and white papers must be put in the public domain for a period of two months, before being introduced in the legislature.
• All green and white papers and draft bills of the central and state governments should be published in a separate section of the official gazette and also on a special website so that they are available for all to see.
• All green and white papers and draft bills must all name and clearly specify the contact details of the officer responsible for receiving and responding to the general public and also the key stakeholders.
• There must also be a system in place to properly identify stakeholders at each and every stage.
• As is the case in England, it would be wise to have parliamentary committees consulted before the draft bill is finalised.
• Furthermore, all comments and queries along with the government’s responses to them must be published in the public domain, so as to clear commonly raised doubts and questions.
• The Rules of Procedure and Conduct of Business in the Lok Sabha and the Rajya Sabha must be amended whereby, if the Government does not accept the recommendations of a Standing Committee or that of a Select Committee in relation to a Bill, then the Minister in charge of the Bill must submit a memorandum to Parliament explaining the reasons for rejecting such recommendations. This will restrict the power of the Government to conveniently ignore such recommendations and will clarify the intent of the legislation and thereby assist the Courts while determining the purpose and intent of a statute.
• Pre-legislative consultation must be mandatory for all Bills, along with exceptions in case the Government feels that urgent legislation is required to address a particular issue. The consultative process must also extend to the exercise of delegated legislation, in the formulation of rules and guidelines. It is also strongly recommended that a code for pre-legislative consultation is provided statutory sanction, rather than published as a policy or guideline, to improve the chances of compliance by the various ministries. 

Conclusion

A Pre legislative consultation policy has numerous merits and can help nudge our country in the right direction. Given how diverse this nation is, it is crucial that we have a means for citizens to get directly involved in the formulation of policy decisions, especially those that have a direct stake in the bill and its nature. If we fail to do so we will risk falling behind the times. Countries like Britain and South Africa and even the state of Kerala already have already set up effective PLP processes. If anything Kerala’s effective model is proof of how effective this process can be at home. Furthermore, this policy has the capacity to make historically marginalised groups feel more included and cared for.

References

• https://academic.oup.com/slr/article-abstract/41/2/189/5476389?redirectedFrom=fulltext
• https://lawandotherthings.com/2020/08/law-making-by-and-for-the-people-a-case-for-pre-legislative-processes-in-india/
• https://www.thehindubusinessline.com/opinion/governments-must-be-held-to-account/article9557590.ece
• https://clpr.org.in/blog/india-needs-an-institutional-framework-for-pre-legislative-consultations/

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