Published in the Indian Express (Nikhil Dey and Ruchi Gupta)
Also Read: Deconstructing the NAC
The formal institutions of India’s Parliamentary democracy have provided little space for citizens’ participation in the making of laws. This has not however, prevented citizens, and citizens groups from making significant attempts to watch, critique, and contribute to the process. In fact, in recent years it is clear that the lack of space has brought citizens out onto the streets in multiple campaigns not just in protest, but also suggesting change and demanding solutions. Often this has culminated in the demand for a particular legislation, where different aspects of the legislation have been widely and energetically debated.
The debate over the Lok Pal Bill, or the submissions to the Justice J S Verma Committee are recent examples of the citizens effort – even struggle to be a part of the legislative process. During the campaign for the Lok Pal Bill there was some amount of debate about who can make a law, and what the role of the citizen should be. However, the obvious need to strengthen the parliamentary process through the participation of citizens got lost in this sharply adversarial debate.
Laws are instruments to amass or distribute power. There can be little argument that debates about legislation in the public domain, are not only inherently more democratic, but have also led to more informed, equitable, and robust legislative measures. The Right to Information law for instance benefited from over a decade of peoples dialogues and contributions in different parts of the country. The RTI campaign “model law” was used as an advocacy benchmark which served as a basis for the law that was eventually passed by Parliament in 2005. Consequently, citizens have used the law in a million creative ways, while resolutely resisting any amendments that might dilute it.
Popular participation of the kind we see in India is a strong validation of people’s democratic aspirations. There is actually an inherent value in what we often only perceive as an ‘untidy’ process of democratic decision making. We need to welcome, assimilate, and institutionalise such citizen’s engagement. In fact, citizen inputs will not undermine, but strengthen what comes out of the executive, and legislature. A mandatory consultative process for any change in law, major policy, or subordinate legislation is long overdue.
The draft recommendations of the National Advisory Council (NAC), to pass an executive order mandating consultations with citizens on all new legislations and rules (and amendments thereof), could be used as an opportunity to begin this process. As per the draft recommendations, all Central ministries would have to draft laws and rules through a transparent and participatory pre-legislative process (PLP) incorporating at least the following three components:
- Proactive Disclosure in two stages: First, a statement of the objectives and principles of the proposed legislation to include at least the need for such a legislation; main features of the proposed legislation; financial implications of the proposed legislation; and an impact assessment of the legislation on the “environment, fundamental rights, and the lives and livelihood of the concerned/affected people” – to be kept in the public domain for at least 45 days. Next, the draft legislation on the basis of the above must also be put in the public domain for at least 90 days, including decentralized dissemination through pamphlets/posters etc where the legislation affects a specific group of people. Public comments on both documents will be solicited through a set of questions on the main points of the law, and will also be hosted in the public domain.
- Consultations: The Ministry will be charged to hold public consultations with a particular focus on those who are likely to be impacted/ affected by the proposed legislation
- Incorporation of feedback: Public comments must be summarized along with responses of the concerned Department/Ministry and submitted to the Cabinet along with the draft legislation.
This is itself not to be a law. However, even a limited mandatory “pre legislative consultative process” has immense potential. It is evident that a process of mandatory disclosure and consultation would have precluded passing legislation by stealth, such as the SEZ Act. In any case the inevitable reaction that comes from affected people is eventually much worse in terms of healthy decision making. This protocol also provides an opportunity to question the intent of proposed legislation, as in the Biotechnology Regulatory Authority of India (BRAI) Bill where many citizen groups argue that the mandate of a Biotechnology Authority should be bio safety for citizens, as opposed to a predetermination to promote and regulate biotechnology. Equally the PLP provides citizens the space to question whether the provisions of the draft Bill are in consonance with the stated purpose, for instance in the now discarded Prevention of Torture Bill, which appeared less to prevent torture than provide impunity for the torturers.
If accepted by Government, these recommendations would be an important first step. Nevertheless, the recommendations fall short of what is required. Government policies have been left out of the scope of this process. Grand corruption and loss of revenue for government is often an outcome of flawed policies. This is apparent in the current scams on 2G spectrum allocation, coal block allocation etc. This exclusion would also allow the Government to use the executive route to implement something that actually needs to go through the legislative process. A case in point is the UIDAI, an Authority set up through an executive order. This UID number is now being made a mandatory interface between the government and the citizen. The Government has avoided Parliamentary scrutiny and monitoring by proceeding with it as a ‘policy decision’ even after the Parliamentary Standing Committee raised fundamental issues about the draft Bill.
There is an opportunity to try and have some of these shortcomings removed by participating in the process. The NAC has placed its draft recommendations on its web site (http://nac.nic.in/plp_press.htm) for 15 days, and invited public comment which it will consider before finalising the draft to send to Government for consideration and necessary action. The recommendations should be read, critiqued, and strengthened. The NAC is itself a kind of limited (and controversial) “pre legislative consultative body”. The basic idea should nevertheless be supported even by critics of the NAC, for if these recommendations were to be implemented, it would make the consultative process mandatory, and fundamentally inclusive. It is up to us to participate and set a progressive precedent for democracy. Institutionalising a mandatory process of consultation and dialogue would democratize not just law-making, but the State itself.