Laws by the people, for the people

In formulating the most effective and inclusive procedures for pre-legislative consultation, the Central government should study and draw inspiration from Kerala’s example

February 24, 2014 12:32 am | Updated August 10, 2016 03:45 pm IST

140223 - Article - Pre-legislative consultation

140223 - Article - Pre-legislative consultation

We should all celebrate the recent decision taken by a Cabinet Secretary-led committee which seeks to institutionalise public participation in the law-making process. The decision requires every Central government department to publicise the details of a proposed legislation on the Internet and other media before being introduced in Parliament. Under the decision, draft bills must be accompanied with an explanatory note outlining the essential provisions of the bill and its impact on the environment and lives of affected people. The public must then be given at least 30 days to comment. Following publication, these comments are to be submitted to the relevant parliamentary standing committee examining the bill. Although this is a good start, good practice from Kerala has the potential to significantly strengthen the process.

Reflecting public will

It is uncontroversial that pre-legislative scrutiny enhances democratic governance. It has been done in a number of other countries well accustomed to transparent legislative processes. Common sense dictates that people who are potentially affected by a proposed legislation — whether adversely or favourably — should be able to have a say in the law-making process at an early stage. Appropriate subject matter experts should also have an opportunity to inform and refine draft bills. Especially in a country as diverse as India, transparent and inclusive law-making is more likely to reflect the will of the people.

That said, while India has seen some good examples including the Right to Information Act, often the only forum for inputs for legislation is behind the closed doors of a parliamentary committee. Too often, laws are made in haste to please a particular interest group or as knee-jerk reactions to public outcry, without the balance of competing views. Too often, the impact on the lives of the vulnerable is thrown out of the window.

The Kerala police law model

While the decision to introduce pre-legislative consultation is the first step in the right direction, the procedures to be followed to make this happen require careful thought. The mode of consultation must be made well-known, and the instruments for consultation will have to go beyond the Internet and electronic media. Needless to say, in a country where Internet penetration and literacy rates are low, publicising information through written and electronic means will effectively shut out a large per cent of the population. Effective consultation will require far more — in the way of resources and goodwill.

A robust model of pre-legislative consultation might resemble that carried out by Kerala in relation to police legislation. In 2011, the State government went all out to ensure true public participation in drafting its police law. The draft Bill was first placed on the Kerala police’s website with an email address inviting feedback from the public at large. Some of the suggestions that were received were incorporated into the draft.

At this stage, different groups began lobbying MLAs on the contents of the Bill and its possible impact on people. As a result, when the draft Bill was introduced in the House, many MLAs knew about it and acknowledged that, being a law of such wide public importance, it needed to be referred to a select committee.

Sensibly, from October to November 2011, the 19-member Select Committee, headed by the then Home Minister and comprising MLAs from almost every party, decided to tour the State and hold district-wide town hall meetings. Notices were placed in leading newspapers publicising the committee, its visit and its mandate. In the end, town hall meetings were held in all 14 districts of the State. At least 400-500 people attended every meeting.

The upshot of this process was that the select committee suggested 790 amendments to the original Bill introduced in the House. The Bill was then debated for almost four hours and 240 amendments — many based on the public’s feedback — were accepted and passed. Public consultation ensured that the legislation, while by no means perfect, included many people-friendly provisions related to police service delivery, and responses which are unique only to Kerala’s Police Act.

In formulating the most effective and inclusive procedures for pre-legislative consultation, the Central government should study and draw inspiration from Kerala’s example. Although this decision was limited to the Centre, the principles of pre-legislative scrutiny equally apply to States, which should follow the Centre’s lead.

When the Congress’ National Advisory Council recommended in 2013 that mandatory pre-legislative consultation be introduced for all proposed laws, it said that this would take India from a “representative democracy to a participatory, deliberative democracy.” Now that we have a framework in place, it is time to consider the best ways and means to make public consultation in law-making a tangible reality. Given the current climate of public discontent, now is the time to breathe new life into political engagement with the people.

(Anirudha Nagar is programme officer, Police Reforms, Commonwealth Human Rights Initiative.)

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