Response to Prof. Dipika Jain’s article: “Law-Making by and for the People: A Case for Pre-legislative Processes in India” by Anirudh Burman

[Ed Note: As part of our New Scholarship Series, we have been inviting discussants to respond to specific articles. This Response Piece is part of a series of posts indexed here discussing the public law themed articles featured in the recently released Volume 41 Issue 2 of the Statute Law Review. We are grateful to Anirudh Burman for accepting our invitation to respond to the Paper by Prof. Dipika Jain. One can read the short summary of the Paper by Prof. Jain here, and the first response by Ritambhara Singh & Arun PS to the same Paper here]. 

Introduction

A ’pre-legislative process’ takes place before a particular legislation is formally debated in Parliament or before a regulation is enacted by a regulatory agency. Properly designed, such processes can potentially improve the quality of legislation and regulations. While the Indian state is slowly adopting such processes, many foundational issues regarding the role and design of these processes have not been suitably examined. Professor Dipika Jain’s article titled “Law-Making by and for the People: A Case for Pre-legislative Processes in India” (the summary of which can be found here) provides a good opportunity to examine these.

Prof. Jain argues that pre-legislative processes are an imperative for improving the quality of law-making in India, and uses the passage of the “Transgender Persons (Protection of Rights) Bill 2016” to highlight the importance of mandating their use in India. I critique this paper to highlight the importance of three issues:

  • There is a need for a standard definition of a pre-legislative process, and the paper fails to articulate one. The first step to arrive at a definition is to have clarity over the role of such processes in democratic decision-making.
  • Pre-legislative processes have to be judged as good or bad based on some standard procedural metrics, whereas the paper evaluates their utility based on substantive outcomes. By doing so, the paper attenuates the argument for mandating such governance improvements.
  • The design of pre-legislative processes has to incorporate a procedural standard for judicial review if a mandatory process has to have any meaning.

Summary of the paper

The paper begins by reviewing literature that emphasises the benefits of pre-legislative processes. The paper however chooses to adopt a rather restrictive definition of what a pre-legislative process entails:

The pre-legislative process involves holding consultations with interested groups and persons on the proposed policy, before a bill is drafted.

This narrow definitional framework affects the subsequent arguments in favour of pre-legislative processes. One example of this is the paper’s assertion that the lack of consultations is the root cause of many poorly drafted laws. While this may indeed be true to some extent, it is debatable whether consultations alone are the best mechanism for incorporating stakeholder interests.

Next, the paper reviews existing mechanisms for pre-legislative processes and highlights that while some such mechanisms have been adopted by the Central Government, they are not mandatory. The paper then goes on to review the actual practice of pre-legislative processes, and finds that such practices have varied from wide-ranging public consultations to no consultations at all.

The last part of the paper reviews the experience of the passage of the Transgender Bill and argues that the Bill is flawed because stakeholder views were not taken into account through a proper pre-legislative process. Prof. Jain uses this example to make the case that pre-legislative processes should be mandated in India.

Standard definition of pre-legislative process

The restrictive conception of a pre-legislative process in the paper is problematic. A pre-legislative process is intended to ensure law-making is as rigorous, holistic and participatory as possible. Such a process can be conducted through a variety of mechanisms, including some like the Parliamentary Standing Committee process noted in the paper. Others include: an analysis of costs and benefits, direct political engagement on draft legislation, stakeholder consultations and petitioning. All these mechanisms allow citizens to engage with government and politicians on legislative issues, and allow for the input of greater knowledge into the legislative process.

A formally designed pre-legislative process is not alien to India either. Some existing laws mandate pre-legislative processes for regulatory agencies. The Telecom Regulatory Authority of India Act, 1997 (‘TRAI’), the Airport Economic Regulatory Authority Act, 2008  (‘AERA’) and the Electricity Act, 2003 contain requirements for participatory processes prior to making regulations. There have also been other attempts to create a framework for pre-legislative processes in government decision-making in India. The Financial Sector Legislative Reforms Commission proposed standardised processes for regulation making for all financial sector regulators.

Global benchmarks on pre-legislative processes list requirements such as the publication of draft regulations and laws, providing adequate time to the public for comments, providing responses to them, performing and publishing cost-benefit analyses. Bhargavi Zaveri and I measured the regulatory responsiveness of four Indian regulators by creating a benchmark suitable for India. Most formally defined pre-legislative processes go well beyond consultations with stakeholders.

Additionally, a perusal of these standards highlights that these processes are intended to aid decision-making by public officials rather than to reduce the roles of politicians and bureaucrats to mere implementers of opinions. The reason for this is that democratic accountability rests with public officials. A proper pre-legislative process should allow for multiple sources of knowledge creation and deliberation that can feed into the decision-making process. The decision however has to be that of the elected official.

Measuring pre-legislative processes and judicial review

The conception of pre-legislative processes as a consultation and incorporation process leads to the next problematic argument implied in the paper. The paper argues that in many cases the final legislation did not meet an expected outcome because no pre-legislative process was followed. This begs two questions: Is the legitimacy of a pre-legislative process predicated on whether the outcomes are desirable or not? If the answer is yes, who gets to decide whether the outcomes are good or bad?

For example, the paper criticises the unresponsiveness of the then government to a Greenpeace introduced petition against the Nuclear Liability Bill that garnered 2 lakh signatures. This claim is however predicated on the assumptions that the Greenpeace petition was empirically correct, and that the opinions of 2-lakh signatories outweigh the interests of the vastly larger silent population whose interests the elected government is tasked with upholding.

Similarly, the paper states that the lack of deliberative decision-making led to a flawed legislation on transgender rights being passed by Parliament. This argument rests on three assumptions:

  • That the hearings before the Supreme Court, the piloting of an initial version of the Bill by an MP, the Bill’s ensuing debate and passage in the Parliament, the subsequent deliberations within the government and within Parliament on this issue cannot in any way be treated as pre-legislative processes.
  • That the problems or flaws with the Transgender Act are indeed “problems” in an objective, empirically testable sense of the word, and that these could have been addressed if the government had listened to more stakeholders. This assumption is hard to sustain in cases where social issues are involved.

For example, can it be empirically asserted that a self-declaration based framework for a change of gender identity is socially optimal compared to a framework that requires presenting oneself before a magistrate? The only way to make this assertion is to state the moral superiority of one framework over another. But that is an inherently subjective claim, and does not contend with the perhaps conflicting moral views of the rest of society who may prefer state intermediation in such matters.

  • That these problems can be put down to a lack of adequate consultation, rather than a deliberate decision to disregard views salient to Prof. Jain’s. The paper states that the “stark differences in the substance of the 2014 Private Member Bill and the 2016 Bill are a result of subsequent lack of deliberations“, but does not show any evidence to prove this causality.

It is true that a formal pre-legislative process as encoded in some existing Indian laws was not followed in either of these cases (and was not required either). However, it would be incorrect to say that stakeholders were not heard through other institutional mechanisms. As the paper notes, the transgender rights legislation started in a court, was piloted by a MP, debated in Parliament, and went through multiple iterations before a final legislation was passed. That the final law was not what some people wanted cannot therefore be put down solely to a lack of sufficient deliberation.

The larger point, however, is that judging the validity of a process on the basis of whether one likes the outcome is likely to lead to a situation where even a properly followed pre-legislative process can be declared inadequate if one does not agree with the outcomes. Such a situation can potentially increase democratic deficits rather than reduce them.

It is instead better to focus on procedural benchmarks for judging whether pre-legislative processes work or not. For example, if regulators and government departments show a consistent pattern of disregarding stakeholder comments, then this constitutes an objectively measurable ground to criticise the process. Similarly, if government departments do not undertake mandated processes, or carry out deficient cost-benefit analyses, these can be subjected to judicial review on grounds of procedural irregularity. Pre-legislative processes should therefore be conceptualised as mechanisms for increasing procedural fairness that may or may not improve substantive outcomes.

To conclude, pre-legislative processes do not provide a panacea to undesirable outcomes or bad decision-making. They do however perform an important role in improving transparency, engaging stakeholders and creating more knowledge about the social and economic consequences of laws and regulations. Their role within a democratic institutional framework must therefore be considered modestly.

Anirudh Burman

Anirudh Burman is an Associate fellow with Carnegie India. Views are personal.

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