Need of the Hour: Why Pre-Legislative Consultation will make laws better and more inclusive

Laws are rules and procedures for the smooth functioning of society. The law is said to reflect the collective will of the people, represented through elected legislators who constitute the legislative bodies. The Constitution of India vests the power to enact legislation with Parliament at the Central level and with the Legislative Assemblies at the State level. Parliamentary democracy is an essential part of the "basic structure" of the Constitution, as the Supreme Court in People's Union for Civil Liberties v Union of India explained:

"The citizens of the country are enabled to take part in the Government through their chosen representatives. In a Parliamentary democracy like ours, the Government of the day is responsible to the people through their elected representatives. The elected representative acts or is supposed to act as a live link between the people and the Government. The peoples' representatives fill the role of law-makes and custodians of Government. People look to them for ventilation and redressal of their grievances. They are the focal point of the will and authority of the people at large."

While Parliament acts as the representative of the popular will, the engagement of the citizens in the process of enacting legislation must not be restricted to merely vote Members of Parliament into office. Article 25 of the International Covenant on Civil and Political Rights vests citizens the right to take part in the conduct of public affairs. General Comment 25 on Article 25, as formulated by the UN Human Rights Committee, makes it clear that the right to participate in the conduct of public affairs, even extends to matters of legislation.

Importance of Parliamentary Committees

The framing of legislation in India, is by practice done by members of the bureaucracy based on the inputs from the executive. Once a Bill is introduced in Parliament, it is piloted through by the ruling party using its majority in Parliament, most amendments moved by MPs to improve upon the legislation are defeated, often influenced by political factors rather than policy-based ones. The flexibility available to the executive in framing legislation, has often led to framing of Bills despite the absence of cogent research, and at times using legislations for the purpose of political expediency.

There is greater scope for legislative consultation if the Bill is referred to a Standing Committee or a Select Committee, as these forums enable members of the public to depose before the respective Committees and they can provide valuable inputs on the legislation. Nevertheless, Parliamentary Committees in India are not as powerful as their counterparts in the United States, and the government can ignore their recommendations on Bills, without explaining to Parliament as to the reason behind the non-acceptance of such recommendations.

Consulting stakeholders and community

If a legislation is specifically related to a certain sector or community, it is vital to consult the relevant stakeholders in order for the government to widen its perspective on an issue. The Muslim Women (Protection of Rights on Marriage) Bill, 2017, which criminalises the practice of triple talaq is a case in point.

The Bill suffers from numerous defects, including the categorisation of the offence as a cognisable offence, whereas the police can arrest Muslim men, without any judicial oversight to see if the person should be arrested, even in the absence of a complaint by the wife. The criminalisation of an invalid procedure of divorce will only prevent Muslim women from defying the practice of triple talaq as they would not desire to see their husbands (usually the bread-winner in economically disadvantaged families) imprisoned. The government did not consult women's rights activists, criminal lawyers or members of the Muslim community while drafting this Bill, thereby leading to numerous defects in the drafting of the legislation.

Another example where pre-legislative consultation with the community could have made a world of difference is The Transgender Persons (Protection of Rights) Bill, 2016, which significantly dilutes the rights of the transgender persons as recognised in NALSA v Union of India. The Bill was drafted without consulting members of the transgender community, owing to which the transgender community mobilised itself against the regressive Bill. The Bill conflates intersex persons with transgenders, as well as fails to address important matters such as removing Section 377 of the IPC, the failure to provide for the matrimonial and inheritance laws for transgender persons and the failure to make crimes gender-neutral so not to exclude the transgender community.

If a pre-legislative consultative process had been undertaken whereby the transgender community had been consulted before the drafting of the Bill, a far more comprehensive legislation could have been framed. Similarly, the Criminal Law(Amendment) Ordinance, 2018, which awards the death penalty to those accused of gang-raping a child, was promulgated in order to assuage public anger, neithertaking into account research on the lack of deterrence of the death penalty nor undertaking any research as to the probabilities of a rapist murdering his victim, if he is aware that the testimony of his victim can attract the death penalty.

Shortcomings of 2017 policy

On February 5, 2014, the Union Ministry of Law and Justice, after considering the recommendations of the (now dissolved) National Advisory Council and the National Commission to Review the Working of the Constitution, issued a pre-legislative consultative policy, requiring various Ministries to publicise draft legislations, to seek comments before sending the Bill to be approved by the Cabinet. The policy fails to allow for a wider engagement with citizens, apart from considering comments from the public,and has not been implemented in letter and spirit.

A comprehensive pre-legislative consultative policy which stresses on the need for transparency and engagement with expertise is in the need of the hour. The Bills of the Government may be drafted by high-level committees; however, these committees are not governed by a code of transparency in all circumstances. A case in point is the Justice B NSrikrishna Committeetrusted with drafting a Data Protection Bill, the Committee has still not released the copy of the Bill it forwarded to the Government, nor has it disclosed all the materials and documents shared within the Committee, except for sharing the minutes and agenda papers of two of the meetings. A transparent process of drafting of laws will encourage civil society groups to take an active role in public affairs, as well as ensure that the inputs of domain experts are taken into account.

How India fares against global standards

In the United Kingdom, there is a practice of publishing a "Green Paper" prior to the drafting of a law. The Government usually consults stakeholders and experts for a few months and publishes a "Green Paper" which are the consultation documents the Government depends on while drafting a new law. Subsequently, the Government may publish a "White Paper" which presents the central principles based on which the Government intends to draft the law. Adopting similar procedures in India must be stronglyconsidered by the Government.

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 Ccourts 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. Serious public engagement vis-à-visa Bill in the pre-drafting phase as well as the pre-introduction phase will go a long way in deepening the roots of democracy in our country, and enhance our form of Parliamentary democracy.