The Preamble to the Constitution of India begins with the words “WE THE PEOPLE OF INDIA”. To borrow the sentiment encompassed in Abraham Lincoln’s words for a somewhat similar context, our Constitution implies through its words that the sovereign power in the country is of the people, by the people and for the people. The Parliament represents the sovereign will of the people of the country. However, when we see several widespread protests springing up demanding a repeal of the legislation enacted by the Parliament, one cannot help but wonder if the legislature is indeed representing what the people want. The subsequent discussion highlights what has been done and what more can be done to build public trust in legislative mechanisms.
The Pre-Legislative Consultation Policy, 2014
The Pre-Legislative Consultation Policy, 2014 seeks to ensure transparency in the legislative process. It creates a mechanism for reaching out to stakeholders to deliberate on draft Bills and resolve any contentious or complex issues to build consensus. The aim of the policy is to increase the credibility and legitimacy of the legislative action, thereby also facilitating accountability to the public. Based on the recommendation of the National Commission to Review the Working of the Constitution (NCRWC), the policy requires that draft legislations should be placed in the public domain with a justification for such enactment, its financial and social costs, pros and cons. Furthermore, the policy states that an estimated impact assessment and key legal provisions have to be made public as well. All associated information should be available for public scrutiny for a minimum of 30 days. The application of the policy extends to not only legislative proposals but also subordinate legislations.
However, on many occasions, draft legislations have flouted the policy. Significant examples of this are the much-debated Farm Acts. The legislations were passed in a sense of unknown urgency without any discussion in the Parliament, let alone a prior consultation with the stakeholders. The protests that have erupted throughout the nation against these enactments are a testimony to the legislature failing to represent the will of the people and social groups which elect the Members of Parliament.
The argument that because the Members of Parliament are elected by the common man, therefore they are an extension of the public’s thought process can be sustained only in theory and is impractical in real terms. The citizens remain clueless regarding the laws and policies that are going to directly affect them. For instance, in 2019, the Government did not publish the Draft Coastal Zone Law, 2019 for comments and suggestions. Furthermore, it did not even pay heed to the objections raised by the fishing community which would bear the effects of the legislation.
A major drawback of the process of stakeholder consultations is that it is considered to be merely ‘good practice’. Impact assessment is not made mandatory either by the Pre-Legislative Consultation Policy, 2014 or the Manual on Parliamentary Procedures in India. The non-compulsory nature of the process leaves the public no choice but to place their discontent in non-institutional forums and setups. The lack of a facilitative institutional structure allows the Government to trivialize such opposition and dissent. This is clear from the handling of the protests against the Citizenship Amendment Act, 2019 and Farm Acts of 2020, without any comment on the merits of the said enactments. These examples highlight the need for the institutionalization of the Pre-Legislative Consultation Policy.
Stakeholder Consultation: A Part Of The Citizens ‘Right To Know’
It is a well-settled position by the Supreme Court that the ‘Right to Know’ is a species of the Right to Freedom of Speech and Expression and hence is a constitutional guarantee under Article 19(1) (a) and Article 21. In People’s Union for Civil Liberties v. Union of India, the right to information or knowledge was given the status of a human right which is necessary for transparent and accountable governance. Furthermore, it was emphasized that governance must be participatory.
In Bennett Coleman & Co. v. Union of India, it was held that “The people have a right to know every public act, everything that is done in a public way, by their public functionaries.” Taking into account the nature of the legislative activity, it cannot be denied that it is very much a public function. Therefore, keeping the judgement in the Bennett Coleman case as the background, it is argued that the entire legislative process should be in the knowledge of the public and the citizens must have an opportunity to make suggestions as the law ultimately affects them. This should imply that if stakeholder consultations do not take place as a precursor to a Bill becoming an Act, then it would make unjustified inroads in the Right to Know of the people. It is imperative to realise that absence of pre-legislative impact assessments has the effect of denying a critical constitutional guarantee.
In many countries, for example, in the United Kingdom, Canada, Switzerland and South Africa, the pre-legislative consultation process is mandatory. This means that a particular Act can be challenged in the Courts if this procedure is not followed or improperly followed. While there is no express statutory provision that allows the people to do the same in India, it is high time that creative interpretations are adopted and citizens make use of judicial forums to assert their right to know. The example of the enactment of the Right to Information Act, 2005 needs to be the guiding light. A plethora of cases finally led to the passage of the RTI Act. A similar process of institutionalization is required in the present scenario.
Transparent governance is not a novel aim. It is an ever-present beacon of light that is supposed to guide the actions of the public functionaries. Shrouding the process of legislation in a cloak of secrecy is a hurdle which can and should be immediately removed. Involvement of stakeholders at the stage of drafting also simplifies the process of dispute resolution, if they so arise. Therefore, for a better participatory democracy, it is necessary that the Pre-Legislative Consultation Policy, 2014 be institutionalized. This will lead to positive outcomes in the form of better thought-out laws and deep trust in public institutions for it is only a well-informed citizen who can demand greater accountability and hence increase the efficiency of the laws.
Photo Source: Rajya Sabha Website
 The Pre-Legislative Consultation Policy, 2014, available at: http://legislative.gov.in/documents/pre-legislative-consultation-policy (accessed on 31.01.2021)
 The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020; Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020; Essential Commodities (Amendment) Act, 2020
 Govt Disregarded 90% Objections To 2019 Coastal Zone Law: Investigation, available at: https://www.indiaspend.com/govt-disregarded-90-objections-to-2019-coastal-zone-law-investigation/ (accessed on 31.01.2021)
 On Parliamentary Procedures of Government of India, Lok Sabha Rules, available at: https://mpa.gov.in/sites/default/files/Manual2018_0_0.pdf (accessed on 31.01.2021)
 Bennett Coleman & Co. v. Union of India,  2 SCR 757; Express Newspaper v. Union of India, AIR 1958 SC 578; Union of India v. Association for Democratic Reforms, (2002) 3 SCR 294
 Reliance Petrochemicals Ltd. v. Indian Express Newspapers, 1988 SCR Supl. (3) 212
 (2004) 2 SCC 476
 Constitutional Perspective on the Right to Know, available at: https://www.lawteacher.net/free-law-essays/constitutional-law/constitutional-perspective-on-the-right-to-know-constitutional-law-essay.php (accessed on 31.01.2021)
  2 SCR 757
 India needs an institutional framework for Pre-legislative Consultations, available at: https://clpr.org.in/blog/india-needs-an-institutional-framework-for-pre-legislative-consultations/ (accessed on 31.01.2021)