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Insights into Editorial: The need for a proper Pre- Legislative Consultation Policy

 

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.

 

Usage of Pre-Legislative Consultation Policy in recent times:

The Union Government has listed 29 Bills (26 new and three pending) to be tabled in the winter session of Parliament.

In 2014, the Pre-Legislative Consultation Policy was adopted, mandating a host of rules, including that whenever the Government makes any law, it must place a draft version of it in the public domain for at least 30 days.

Since the inception of the policy, 227 of the 301 bills introduced in Parliament have been presented without any prior consultation.

Of the 74 placed in public domain for comment, at least 40 did not adhere to the 30-day deadline.

 

What is the policy?

  1. The Pre-Legislative Consultation Policy (PLCP) 2014 mandates that whenever the Government makes any laws (bills, rules, regulations etc.), it must place a draft version of it in the public domain for at least 30 days.
  2. The policy also says that along with the draft, a note explaining the law in simple language and justifying the proposal, its financial implication, impact on the environment and fundamental rights, a study on the social and financial costs of the bill, etc. should be uploaded.
  3. The respective departments should also upload the summary of all the feedback that they receive on the circulated draft.
  4. The PLCP was formulated based on the broad recommendations of the National Advisory Council headed by Sonia Gandhi (2013) and the National Commission to Review the Working of the Constitution (2002).
  5. It aimed to create an institutionalized space for public participation in lawmaking processes.

 

Why is it important?

This policy provides a forum for citizens and relevant stakeholders to interact with the policymakers in the executive during the initial stages of lawmaking.

Protests in the recent past over laws such as the farm laws, the RTI Amendment Act, the Transgender Persons (Protection of Rights) Act, etc. have all highlighted that there is discontent among relevant stakeholders and the public at large since they were not looped in while framing such laws.

Public consultations enhance transparency, increase accountability and could result in the building of an informed Government where citizens are treated as partners and not as subjects.

For example, concerns raised by civil society members (#SaveTheInternet campaign) were addressed by the Telecom Regulatory Authority in its framing of the net neutrality rules after extensive consultation and deliberation processes adopted by them.

 

Empowerment through Pre legislative consultation policy:

  1. A Pre legislative consultation policy has numerous merits and can help nudge our country in the right direction.
  2. 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.
  3. 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.
  4. If anything, Kerala’s effective model is proof of how effective this process can be at home.
  5. Furthermore, this policy has the capacity to make historically marginalized groups feel more included and cared for.

 

What is the status of its implementation?

  1. During the 16th Lok Sabha (May 2014 to May 2019) 186 bills were introduced in Parliament, of which 142 saw no consultation prior to introduction.
  2. From the 44 bills placed in the public domain for receipt of comments, 24 did not adhere to the 30-day deadline.
  3. During the 17th Lok Sabha (June 2019 to present), 115 bills were introduced in Parliament, of which 85 saw no consultation prior to introduction.
  4. From the 30 bills placed in public domain for receipt of comment, 16 of them did not adhere to the 30-day deadline.
  5. The tentative schedule for the winter session indicates that a total of 29 bills are listed for introduction and passing. Of these, 17 saw no prior consultation while from the 12 that were placed in the public domain, only six adhered to the 30-day deadline.

 

Why is implementation difficult?

Though it is required that the mandates of an approved policy be heeded by all Government departments, the absence of a statutory or constitutional right has watered down its effect.

The effective implementation of the policy requires subsequent amendments in executive procedural guidelines like the Manual of Parliamentary Procedures and Handbook on Writing Cabinet Notes.

However, during a subsequent amendment to the Manual of Parliamentary Procedures, the Ministry of Parliamentary Affairs ignored the Ministry of Law and Justice when it requested them to incorporate PLCP provisions in the manual.

 

Conclusion:

Incorporation of pre-legislative consultation in the procedures of the Cabinet, Lok Sabha, Rajya Sabha etc. should be prioritized.

Similarly, it must be required of ministers while introducing the bill to place an addendum note on the details of the pre-legislative consultation.

Besides providing an overview of the needs for realizing the objectives of the legislation, the Legislative Impact Assessment can be a tool to act as a checklist for necessary support systems to implement the legislations.

It is the accountability and responsibility of the Parliament to ensure the effectiveness of the passed legislation.

On the sidelines of Australian practice where an institution outside the Parliament specifically performs the post enactment assessment of the passed law, similar institutions can be established in India.

Empowering citizens with a right to participate in pre-legislative consultations through a statutory and a constitutional commitment could be a gamechanger.