By Arun PS and Sushmita Patel

With the institutionalisation of Pre-Legislative Consultation Policy (PLCP) in 2014, civil society organisations expected that it would lay the foundation for a vibrant participatory policy making process in India. The policy was expected to enable discourse across multiple stakeholders as well as a fuller realisation of citizen rights and human potentials. With evidence suggesting proper consultation resulting in the enhancement of the quality of parliamentary discourse and legislature, the policy was indeed visualised as a stepping stone for democratic decision making. Debates on the Kerala Police Legislation, Land Acquisition Bill 2013, Lokpal Bill 2011, etc. have successfully demonstrated the same. However, the transition from a representative democracy to deliberative one has failed to take off.

Who Failed PLCP?

The Pre-Legislative Consultation Policy was formulated taking into consideration the recommendations of the National Advisory Council  and the National Commission to Review the Working of the Constitution in February 2014. The policy lists out various mandates requiring departments to proactively publish proposed legislations on the internet and/or other public domains with additional details such as a brief justification for the legislation, its’ essential elements, broad financial implications, an estimated assessment of the impact of such a legislation on the environment, fundamental rights, lives and livelihoods of the concerned/affected people, etc. These details are required to  be kept in the public domain for a minimum period of thirty days, accompanied by an explanatory note on the key legal provisions in a simpler language. It is distressing to note, however, that what was initially visualised as a tool for enabling participation in decision making processes of the government has had terrible workwo/men so far.

Through an RTI response received by the authors, it was appalling to note that the legislative department does not maintain any database on PLCP compliance, with the consolation being that this information “MAYBE available/SCATTERED with the concerned Ministries/Departments”. This is in non-compliance of the  policy which stipulates that the Law Ministry is required to ensure that the concerned Department/Ministry complies with the process of pre-legislative consultation.

RTI on Pre-Legislative Consultation Policy

RTI response from the legislative department

Utter disregard and defiance of the spirit of the Pre-Legislative Consultation Policy however does not end here. Since the policy has come into force, its implementation  has been truly dismal.

The most recent move by Lok Sabha in the passing of the Right to Information (Amendment) Bill, 2019, has sought to dilute one of the pioneer rights instruments of the country. It is only an additional blow that the government deemed a consultative process outside of the government as unnecessary, since the “proposed amendments did not involve any social or financial costs”. With criticism mounting for the amendments, the pertinent question remains  whether such changes, that are against the spirit of the Act, would have been approved if agencies and citizens outside of the government were given an opportunity to debate the same.

Similarly, in what was dubbed as “historic” and “deterrent”, followed by a refusal to refer the same to the Parliamentary Standing Committee on Law and Justice, was The Muslim Women (Protection of Rights on Marriage) Bill, 2017 that was drafted behind closed doors.

The electoral bond scheme has been equally mired in controversy, over its claims to “create a transparent political funding system”, culminating with the Supreme court ordering all political parties to disclose details of electoral bond donation to the Election Commission till May 15, 2019. It therefore does not come across as a surprise that the Minister of State Finance, Shri P. Radhakrishnan, while addressing a question on the same, has conceded to the fact that no civil society organisations were consulted for the same. While the non-compliance was agreed upon here, when Ms Maneka Gandhi, the then WCD Minister, was questioned on the consultation process adopted for Draft Trafficking of Persons Bill, 2016, she claimed that it was “in tune” with the Supreme Court directives and the Pre-Legislative Consultation policy, however BJP MP Rajeev Chandrasekhar’s submission raises issues of non-compliance (though sent before the question was raised in parliament).

The Ministry of Parliamentary Affairs, too has flouted the policy, during the amendment of their Manual of Parliamentary Procedures, when it ignored a communication from the Ministry of Law  and Justice requesting them to take necessary action on the manual with regard to the Pre-Legislative Consultation Policy.

Pre-Legislative Consulation Policy

Ministry of Parliamentary Affairs ignored communication from the Ministry of Law and Justice

It is rather ironic to note that the Ministry itself had requested the Ministry of Corporate Affairs to “send views, comments and suggestions for improvement” of the Manual. Instances of selective consultation and “exclusionary participation” are demonstrative of how the proponents of the policy themselves treat consultation.

Since 2014 (during the regime of NDA-II), a total of 186 bills were introduced in the Parliament, out of which 142 saw no consultation. From the 44 bills placed in public domain for receipt of comments, 24 of them did not adhere to the thirty day deadline. During the same period, various administrative ministries and departments circulated 98 bills for comments. While five of these bills did not  mention a window period for receiving comments, out of the 93 dead lined bills, only 55 bills complied with the thirty day deadline clause. The Ministry of Labour and Employment outranked all the other ministries by releasing 13 bills for public comments, while complying with the requisite window period for comments in 11 of them. (Source : Repository created by the authors available here).

Bills introduced in Parliament from June 2014–May 2019

No. of Bills 186
No consultations (before introduction in the Parliament) 142
No. of bills with incomplete consultation 24
Complete consultation (considering 30-day deadline as the only criteria) 20

 

Bills circulated by departments from June 2014–May 2019

No. of Bills 98
No. of bills with consultation period details unavailable 5
No. of bills with incomplete consultation 38
Complete consultation (considering 30-day deadline as the only criteria) 55

 

Bills introduced in Parliament since June 2019 (updated until August 8, 2019)

No. of Bills 38
No consultations (before introduction in the Parliament) 26
No. of bills with incomplete consultation 6
Complete consultation (considering 30-day deadline as the only criteria) 6

 

In most cases, other aspects of the PLCP were also completely ignored such as the addition of explanations of  key provisions, summary of feedback received etc. The draft policies were also not made available in a simpler or local language for public consumption. In addition to this, the bills are normally uploaded in the administrative ministry’s website which does not really create the discourse that the draft policies deserve. For instance, the government’s plan to regulate the sale of cattle through Prevention of Cruelty to Animals (Regulation of Livestock Market) Rules, 2017 invited widespread criticism which prompted the Kerala government and Legislative Assembly to step in and question the centre’s imposition of restriction of sale of livestock. It was later discovered that the draft policy was uploaded in the Environment Ministry’s website for comments.

Enabling PLCP

Impetus for enforcing consultation prior to policy making is not new in the country. The Second Administrative Reforms Commission had emphasised that public consultation in decision making and social auditing through institutionalised mechanisms is vital for the effective functioning of a democracy. Justice Krishna Iyer, during his stint as the chairman of Kerala Law Reforms Commission, had also endorsed the creation of a multi-stakeholder core group for preparation of policies after adequate consultation with stakeholders. It was suggested that the policy finalised by the core group ought to be placed in public domain for comments and suggestions ensuring representation and consultation with relevant stakeholders as well as the public at large.

The absence of a clear consultation model that envisages participation in the truest sense is a definite culprit. The TRAI consultation model which uploads comments to solicit comments and the like could be developed. An enhanced Mygov.in or an alternative portal dedicated for policy consultations initiated by the union government could serve as a “one stop” place to access policies, allowing Initiatives such as Civis.vote to utilise such calls to facilitate conversations between the government and citizens. In order to enable wider comprehensibility, the policies and their addendums ought to be made available in regional languages too.

However, to institutionalise pre-legislative consultation, it is pertinent that the country develops a social audit legislation which imposes a legal obligation on policymakers to consult the public, thereby providing citizens, a right to participate in the policymaking process while at the same time penalising officers for finalising the bill without scrutiny or invalidating the laws for flawed policy making process etc. Introducing amendments to the Government of India ( Allocation of Business ) Rules, 1961, the Manual of Procedures in the government of India, Handbook on Cabinet Secretariat on writing Cabinet Notes, Rules of Procedure and Conduct of Business in Lok Sabha and Rules of Procedure and Conduct of Business in Rajya Sabha is equally vital.

It is time that the government paves the way for ease of participation in policymaking process. On the 150th anniversary of the Mahatma, we ought to re-emphasise our belief and commitment towards Gandhi’s talisman, by involving the poorest and the weakest stakeholders in the nation building process.

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Arun PS is a public policy researcher based out of Kochi. Sushmita Patel holds an LLM in Law and Development from Azim Premji University, and is researching on the possibilities of eco-centric developments.