Prof. Dipika Jain Responds to the Discussion on her Pre-Legislative Consultation Paper

[Ed Note: Please find below Prof. Dipika Jain’s detailed response to the post(s) from Anirudh Burman and Ritambhara Singh & Arun PS regarding her Article in the SLR-OUP titled “Law-Making by and for the People: A Case for Pre-legislative Processes in India“. This is part of a series of posts discussing the public law themed articles featured in the recently released Volume 41 Issue 2 of the Statute Law Review. You can access all the posts in this discussion here.]

I would like to thank Ritambhara Singh, Arun PS and Anirudh Burman for their gracious engagement with my paper. Here is my response to both.

At a time when India, and the entire world, is grappling with the COVID-19 pandemic, the government has been introducing numerous draft legislations and policies, giving the public little time to review and submit comments. Many concerns have been raised around the draft Health Data Management Policy, for example, with health and technology activists questioning the privacy implications of such a policy as well as its lack of clarity. The constitution of the Committee for Reforms in Criminal Laws at National Law University-Delhi (‘NLU-D Committee’) has also met with backlash due to its all-male upper-caste composition and mode of operation, which appears to be entirely online and in English, this making it a very exclusionary process. 

Given this context, it is an important time to discuss the role of consultation and deliberation in the pre-legislative process and why it is imperative to solicit multiple stakeholder opinion while drafting laws. The article Law-Making by and for the People: A Case for Pre-legislative Processes in India discusses the need for a mandatory pre-legislative consultation and deliberation process. In his response to this article, Anirudh Burman’s critique rests on two main points:

First, that the article fails to articulate a standard definition of a pre-legislative process which is needed to ensure that there is clarity over the role of such processes in democratic decision-making. Burman points out that the article refers to a process of “holding consultations with interested groups and persons on the proposed policy, before a bill is drafted” which he argues is a narrow definitional framework. Burman’s assertion is that a lack of consultation alone is not the root cause of poorly drafted laws, nor is consultation necessarily the best mechanism for incorporating the interests of stakeholders.

Second, that the article evaluates the effectiveness of pre-legislative processes by their outcomes i.e. whether the resulting legislation is ‘good’ or ‘bad’ – a standard that Burman states is flawed. On the case study of the Transgender Persons (Protection of Rights) Bill, which was used to demonstrate the consequences of an ineffective consultation process, Burman argues that the article takes for granted the ‘moral superiority’ of the self-determination of gender framework over that of presenting oneself to a District Magistrate for examination. Burman notes that stakeholders were heard through certain institutional mechanisms and that the Bill went through multiple revisions before finally becoming law, and thus states that a lack of deliberation on stakeholder suggestions is not the sole reason this law has seen pushback. Burman then goes on to contend that the validity of a pre-legislative process should instead be judged through procedural benchmarks, such as if government departments consistently disregard stakeholder comments. 

Burman’s critiques do not push against commonly-held mainstream notions of elite lawmaking – where nationwide discourse on legislation and legal reform is taken for granted as the domain of a small, predominantly English-speaking elite with similar socio-economic backgrounds, ensconced within public institutions as public officials or designated as ‘experts’ within private bodies/think tanks. Although, as Burman states, lack of consultation with stakeholders by itself cannot be considered the root of poorly drafted laws, the consultation process is integral to ensuring a vibrant discourse encompassing narratives from different individuals, social movements, and communities who stand likely to be affected by the legislation. Burman and Zaveri formulated a detailed list of benchmarks for responsiveness by regulators which notably includes early engagement with stakeholders through information dissemination, awareness programmes with target groups, conduct of consultation exercises and providing adequate time for submission of comments. Stating that a ‘proper’ pre-legislative consultation process ‘should allow for multiple sources of knowledge creation and deliberation that can feed into the decision-making process’ but still labelling pre-legislative consultations with stakeholders as restrictive therefore reads as contradictory.

Burman’s first point on the restrictive definition for a pre-legislative process ties into his second point on the evaluation of the process by its outcome. Since the article conceptualizes pre-legislative processes as consultation and deliberation with stakeholders, it therefore measures the validity of the process by assessing not only whether consultations were held during the drafting of a law but ‘Who’ was consulted, what was the process of consultation and whether the comments received were deliberated upon. In doing so, the article uses the example of the Kerala Police Act (an inadvertent citation error had it as the Karnataka Police Act, as pointed out by Arun PS and Ritambhara Singh in their response) which went through multiple rounds of consultation and ultimately passed with 240 amendments suggested by the Police Act Review Committee. However, the article does not argue that consultations and deliberation necessarily result in ‘good’ outcomes for legislations. The claim made in the article is that consultative processes lend legitimacy to laws, and to the model of representative democracy. A piece of legislation is likely to be most effective and have the most beneficial impact on the communities affected by it when persons from these communities have the right to participate in the consultative process.  

Burman argues that “even a properly followed pre-legislative process can be declared inadequate if one does not agree with the outcome”. The article, however, does not focus on whether the legislation is agreeable to all but rather on the impact of the legislation, especially for laws that ostensibly serve marginalised communities. The Transgender Persons (Protection of Rights) Act 2019 and the Rules drafted pursuant to it violate the fundamental rights of transgender persons as many activists and scholars have pointed out. As the article details, the Ministry of Social Justice and Empowerment (‘MJSE’) did hold stakeholder consultations, and a Parliamentary Standing Committee was even set up in 2016 to discuss provisions of the Act with various stakeholders, especially trans-led organizations. The Committee was set up after much pushback by transgender persons against the Bills drafted by the MSJE. However, despite numerous suggestions being submitted, the final report fell short in terms of the recommendations made to the MSJE. Trans activist and scholar, Gee Imaan Semmalar has written that the entire process was a farce, criticizing the Committee for its use of the derogatory term ‘eunuch’, its conflation of transgender and intersex person (an issue that persists even today) and the continued criminalisation of begging. Although some changes were made by the time the 2019 Bill was introduced, the widespread protests and continued resistance to the Act and Rules indicate the need for a pre-legislative process that gives significance to deliberation. 

The Transgender Persons Act is now under challenge in the Supreme Court. During the drafting process of this legislation, the Ministry consistently failed to include key recommendations made by trans-led groups and activists pointing to the inadequacies of the drafted legislation and the fundamental rights violation. If the Ministry had deliberated carefully on the critical comments made by transgender persons at all stages of the drafting process, this outcome could likely have been avoided. As Vikramaditya Sahai argues, the Transgender Persons Act seems to say that transgender persons are best represented by experts, and not by themselves. 

Burman challenges the assertion that transgender persons should have the right to a say in lawmaking and policymaking that affects them directly, by noting that it conflicts with the “moral views of the rest of society who may prefer state intermediation in such matters”. One response to this critique is that those persons and communities that are likely to be directly affected directly by law and policies can be reasonably assumed to be its ‘stakeholders’, whereas opposing opinions cannot be imputed to the ‘rest of society’. Even ‘objectively’, people having transgender and gender-variant identities are stakeholders in respect of laws that define their identities, regulate their rights and set out processes for their identification and citizenship. Moreover, neither the ‘moral views’ of the rest of society (who remain largely unaffected by the Transgender Persons Act and are deeply prejudiced against non-cisgender/non-heteronormative identities) nor their ‘preferences’ for state intermediation can be considered at a time when affected transgender, intersex and gender-variant communities are vociferously protesting against the Transgender Persons Act (and the erstwhile Transgender Persons Bill), evidencing how high the stakes were (and are) in respect of this law destroying transgender identities by seeking to control and regulate them through a cis- heteronormative framework. Burman’s argument thus ignores the weighted interests of affected communities, positioning elected representatives as ‘mediators’ of conflicting interests, who are mostly cis gender. 

This is precisely the problem with the current legislative process that the article seeks to address. While relevant Ministries or Departments publish draft legislations and policies for public comment, the limited time and scope for consultation indicates the apathy of the State towards marginalised persons. The criminal law reform process that is currently underway and being spearheaded by the NLU-D Committee has met with a lot of backlash. Many senior advocates, retired judges, civil society organizations and activists have penned open letters to highlight the opaque process, the lack of diversity among committee members, and the push to solicit public opinion during a public health crisis such as the COVID-19 pandemic. Significantly, the Committee decided to hold consultations in two stages: one with ‘experts’ and one with the general public. At this stage it is important to ask how and why are a small group of academics, policy experts and activists ‘experts’? In Rethinking Expertise, Evans and Collins urge us to consider different kinds of expertise, including ones based on tacit knowledge people have – perhaps due to their daily lived experiences – that is difficult to explain. For example, transgender persons have regular interactions with various state authorities including law enforcement – an experience that most lawmakers cannot lay claim to and, therefore, will not respond to in the laws they draft. It thus becomes imperative to deliberate on the recommendations made by Trans movement, activists and advocacy groups in the process of drafting legislations that will affect them in order to ensure that their concerns are adequately addressed.  

Burman notes that certain laws mandate pre-legislative processes, such as the Telecom Regulatory Authority of India Act, 1997 (‘TRAI’) which requires public stakeholder consultations prior to making any regulatory changes. Arun PS and Ritambhara Singh also mentioned the example of TRAI in their response piece, stating that the positive impact of deliberation is quite evident in the context of the TRAI, which frequently publishes policy proposals for stakeholder comments and follows a whole process of serious deliberation on such proposals. However, TRAI is a regulatory agency that already has a specific stakeholdership. While this Act has an inbuilt consultative process, the article makes a larger point about mandatory consultations and deliberations for all laws that are drafted, and particularly laws that affect marginalised groups. Those who have the lived experiences of negotiating with the law and the state everyday must be centered in the process. 

Tarunabh Khaitan in Reforming the Pre-Legislative Process argues that “[d]eliberative democracy based on public reasons is good intrinsically as well as instrumentally”. It is good intrinsically because participants in the process have a say in decisions that affect them, and instrumentally because a deliberative process leads to better decision-making while laws “passed secretly and hurriedly tend to be bad laws”. Khaitan argues that even when the intentions of the government are benign – as was the case with Code of Criminal Procedure (Amendment) Bill – laws can still be met with strong protests by those who are most affected by it, if a robust consultation and deliberation process is not allowed.  

A very recent example of wholly inadequate pre-legislative consultation is seen in the framing of a draft policy on data privacy under the National Digital Health Mission. On 26 August 2020, the Central Government through the National Health Authority (‘NHA’) released the draft Health Data Management Policy, seeking comments and feedback from the public till 3 September 2020 – barely one weeks’ time. The data policy was criticised by scholars and activists across the country for its draconian provisions – they alleged that this policy would facilitate the expansion of a surveillance state – and was additionally called out for its tiny window for comments from stakeholders, namely eight calendar days. The CEO of NHA, Indu Bhushan, merely stated that he would “look forward to feedback, suggestions and inputs from experts and members of the general public to help us finalise the policy and make the implementation of the mission stronger and more effective”, failing to address the inadequate time period provided to stakeholders for exactly that purpose. 

Another recent example of a draconian law seeking to bypass public scrutiny and come into force is the Medical Termination of Pregnancy (Amendment) Bill 2020 (‘MTP Bill’), which was drafted with little consultation and passed hurriedly in the Lok Sabha. The Bill now faces serious criticism from reproductive rights activists, disability rights activists, health rights activists, doctors, lawyers, and academics among others. While the legal framework on abortion in India is long overdue for change, the issue is a complex one that requires analysis from multiple nuanced perspectives. The Bill has been touted by the Central Government as being a ‘women’s rights’ legislation, but falls short in several regards, the most important being that the decision to terminate pregnancies is still left in the hands of medical professionals, making no provision for ‘abortion at will’ by pregnant persons, ironically but not surprisingly in contradiction with the Supreme Court jurisprudence that has consistently upheld the right to reproductive decisional autonomy as a fundamental right in the Puttaswamy case. 

The MTP Bill extends the gestation period for termination of pregnancies to 24 weeks, but notably grants an exception only in cases where the foetus has ‘abnormalities’, advancing an admittedly eugenic agenda, mentioned in the preamble to the Bill. There has clearly been no substantive engagement with disability rights activists, or with transgender or gender-variant persons, given that the Bill still blatantly furthers hetero-patriarchal ideals of the state. Additionally, the Bill calls for the setting up of Medical Boards in every state, comprising of ‘experts’ (medical professionals working in different fields) who are not only granted highly discretionary authority to decide pregnancy outcomes, but whose bureaucratic presence will make reproductive health facilities all the more inaccessible, especially for poor or marginalised persons. India has a severe shortage of physicians and specialists in PHCs and CHCs, especially in rural and tribal areas across the country, and the requisite Medical Board opinion for termination of pregnancies after 24 weeks will cause inordinate delays and obstacles in pregnant persons receiving timely abortions. 

Many of these gaps in the Bill would have come to light had it gone through a robust consultation process prior to being introduced in the Lok Sabha; as it stands, the Bill does little to address the socio-legal barriers to safe abortion access. The Bill was drafted under a cloak of secrecy and none of the important stakeholders were consulted. This is in contrast to the 2014 draft of the MTP Bill which did go through a consultative process and, as a result, had a few significant provisions such as abortion on request up to 12 weeks and expansion of the healthcare provider base. The 2020 Bill was not referred to a Parliamentary Committee at any point and was hurriedly passed by the Lok Sabha on 17th March; it is likely to have been passed by the Rajya Sabha if there had been no announcement of lockdown due to the pandemic. It is important to question the role that the State is playing in the legal reform process. Is there no responsibility to consult with the people who will be most affected by a piece of legislation? 

The aim of the original article was not to argue for consultation on the basis of perceived outcomes, but to argue that weighted narratives, lived experiences, and perspectives of affected communities must be taken into account in order to facilitate a process of negotiation and to demand democratic accountability of state officials. Evaluating the impact of laws, especially those experienced by people outside the mainstream elite class, cannot be adequately carried out without meaningful pre-legislative consultation processes that are accessible and accommodating of such communities, their circumstances and constraints. Both consultation as well as deliberation are essential to ensure transparency in law-making, as seen in the Right to Information Act, 2005, which gave voice to public campaigns demanding state transparency and which act as evidence that interested groups do play critical roles in the drafting of effective laws. The legislative process that resulted in the Transgender Persons Act demonstrates that a tokenistic attempt at holding consultations is not enough; deliberation is imperative. Although the MSJE solicited public feedback, the continuing protests against this legislation have made it clear that many of the critical comments related to fundamental rights violations went unheeded. If deliberation were to be made a mandatory aspect of the pre-legislative consultative process, the MSJE would need to provide strong reasons for not incorporating certain suggestions in the drafting process. 

Burman’s final point is that although pre-legislative processes improve transparency, engage stakeholders and create better informed decisions, the final decision regarding the contents of laws must lie with elected officials, who should be able to disregard consultative inputs. He states that pre-legislative processes are wider than consultations and encompass judicial history and governmental deliberations on an issue. While these enhance procedural fairness, they may or may not improve substantive outcomes. 

A great deal of scholarship departs from this view. While none of the relevant literature argues for consultative inputs to simply reign over the decision of elected officials, many have argued that representatives must justify rejecting them. Arvind Kurian Abraham argues that pre-legislative consultation must be mandatory and should extend to delegated legislation. He illustrates the dangers of populist law-making with the examples of criminalisation of Triple Talaq, the Transgender Rights Bill 2018, and the death penalty for gang-rape for of a child. He recommends that the Rules of Procedure and Conduct of Business in both houses of Parliament be amended to restrict the power of the Government to ignore recommendations made in respect of a law, to clarify the intent of the legislation, and to provide assistance to courts, in the event that courts undertake to determine the purpose and intent of the statute.

The 2011 report A Comparative Survey of Procedures for Public. Participation in the Law-making Process is founded on the premise that ‘in democratic societies, legislation has the power to affect great transformations if it is responsive to the needs of the poorest and most vulnerable sections’. Too often, however, the law-making process is dominated by ministers pursuing their own agenda, and technocratic civil servants and lawyers, all of whom combine to make the legislative process inaccessible to the general public. Deficiencies in the legislative process can negatively affect the quality of legislation; an empirical study of some developing world countries suggests that their failure to enact legislation capable of transforming the social and economic order can be attributed in part to the disproportionate influence of the elite during the creation of the bill. A fair, transparent, accountable and participatory process is needed to enact laws that will bring about real change. 

Further, Pratap Bhanu Mehta, in his opinion piece titled ‘Betrayal of Procedure in Parliament is not just about Technicalities. Deference to Process Builds Trust’ speaks of the suspension of the ‘cornerstones of parliamentary practice’ by the Parliament in respect to the recently passed farm bills, where the Speaker denied the division of votes, and ‘railroaded’ the legislation through, ‘not on its deliberated merits but on the sheer dint of power’. Mehta explains that a significant portion of success of these bills depends on trust and consensus, and states that deference to proper procedure in Parliament isn’t just about technicalities, but about the government carrying out trust-building by showing that it is listening to diverse views, consulting and deliberating. The merits of pre-legislative consultation and deliberation procedures extend beyond the drafting of ‘effective’ laws, well into creating a sense of trust and comfort amongst affected communities, who are likely to already be significantly marginalised. Ensuring that proper processes are in place to not only consult with stakeholders but to engage in substantive deliberation is critical to promoting trust, consensus and solidarity with laws and policies.

In the 10 sittings (out of 18 originally planned) that the Rajya Sabha had during the monsoon session, 25 bills were passed, of which eight were passed in a mere four hours while Opposition parties boycotted the proceedings in protest over the farm bills. The Lok Sabha similarly passed 25 bills. These bills have been passed without any consultations and the farm bills in particular have met with considerable backlash and country-wide protests. The fact that these bills were introduced and passed in Parliament with little discussion is a testament to failing system. The resistance to these legislations such as the nationwide protests and ‘bandh’ against the Farm Bills demonstrates the need for a robust pre-legislative consultation and deliberation process.

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Dipika Jain is Professor of Law, Vice Dean (Research) and the Executive Director of the Centre for Health Law, Ethics, and Technology (C.H.L.E.T.) at Jindal Global Law School (JGLS), India. She works in the area of Law and Marginalisation and teaches Jurisprudence, Legal Methods, and Law and Social Movements.

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