[Ed Note: As part of our New Scholarship Section, 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 42 Issue 2 of the Statute Law Review. We are grateful to Ritambhara Singh & Arun PS 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 out here. The original article can be found here.]
Amid the current global pandemic, the Government of India is under severe criticism for finalising various important policies without adequate consultations. The consultation on the Draft Environment Impact Assessment (‘EIA’) 2020 resulted in mass outrage on social media that predominantly questioned the government’s motive in undertaking a stakeholder consultation during the COVID-19 lockdown. The draft EIA has also been criticised due to its controversial provisions of ex-post-facto environmental clearance and removing several activities from the purview of public consultation.
Need for a mandatory Pre-legislative consultation process
At this juncture, Prof. Dipika Jain’s paper published in 2019 that recommends citizen participation in law-making, assumes significance. Through this piece, Prof. Dipika has clearly established the significance of a mandatory pre-legislative consultation process enabling the participation of stakeholders, experts, and the public at large in the law-making process. The article also emphasised on the need for publicising the draft policy proposals through translations in regional languages, use of technology and media platforms, etc. It is worth noting that in Vikrant Tongad v. Union of India, the Delhi High Court directed the Government of India to publish the draft EIA 2020 in 22 scheduled languages to aid effective dissemination of the draft notification.
The Pre-legislative Consultation Policy, 2014 and its implementation
Prof. Dipika highlighted the executive circular popularly known as Pre Legislative Consultation Policy, 2014 (‘PLCP’). The Professor’s piece, though considered this policy as an important step towards establishing a pre-legislative process, didn’t evaluate the implementation of the policy. As pointed out by Arun PS and Sushmita Patel where they tracked the implementation of PLCP, a total of 186 bills were introduced in the Parliament during the period from June 2014 to May 2019, out of which 142 saw no consultation. During the same period, various administrative ministries and departments circulated 98 bills for comments, out of which only 55 bills consultations complied with the thirty-day deadline clause. The lack of statutory obligation seems to be a major bottleneck in the implementation of the same. Further, the Supreme Court of India in the Cellular Operator’s case had recommended the Parliament to frame legislation along the lines of the U.S. Administrative Procedure Act to facilitate transparent stakeholder consultation in rulemaking processes. The author could have used this judgment to substantiate the case for facilitating a participatory law-making process.
It must be noted that we haven’t been able to gather a lot of momentum in this regard though. Private Member bills moved by NCP MP Supriya Sule (Pre-Legislative Consultation Bill, 2019) and BJP MP Jagdambika Pal (National Consultation Commission Bill, 2019), seeking a legislative framework for public consultations, were supposed to be introduced in the Lok Sabha on 6th December 2019. However, this did not get tabled owing to the paucity of time, thanks to the rules of procedure that do not provide adequate time and attention to private member business in the Parliament.
Karnataka Police Bill as a successful model
Moreover, an inadvertent error may have also crept in Prof. Dipika’s piece while citing the Karnataka Police Bill, 2011 as an example (p. 7) of effective public consultation. Public records suggest that the Kerala Police Bill, 2010 consultation is considered as a fairly successful model, not the Karnataka one. Following the directions of the Supreme Court in Prakash Singh vs Union of India, the Kerala Police had constituted a Police Act Review Committee comprising senior police officers. Former Justice Krishna Iyer led Kerala Law Reforms Commission had similarly suggested comprehensive reforms through their report. In 2009, a bill incorporating these changes was uploaded on the Kerala police website. In 2010, a revised version of the bill was presented in the Kerala Legislative Assembly. The same was referred to a 19 member select committee (2 ministers included in the committee) that conducted consultation meetings at various district headquarters where the public participated in large numbers. Various organizations like the Commonwealth Human Rights Initiative and Asia Human Rights Initiative actively engaged with the policymakers in explaining the need for quality reforms in police legislation. As a result, the committee recommended around 800 amendments of which almost 240 were accepted by the Government while placing the final version of the bill for approval of the house.
Need for Institutional Framework and a Separate Law
It is pertinent that India develops an institutional framework for pre-legislative consultations. The Prof’s observations on the PLCP are squarely applicable to her recommendations as well. The two-step process is not binding and could be ignored by the policymakers since punitive actions are absent. In the report commissioned by the National Campaign for People’s Right to Information (‘NCPRI’), Prof. Tarunabh Khaitan’s team explained the need for a constitutional or statutory obligation to facilitate consultations. In their paper in William Mary Policy Review, Anirudh Barman and Bhargavi Zaveri observed that the degree of participation in the processes followed by regulators like Securities and Exchange Board of India (‘SEBI’), Reserve Bank of India (‘RBI’), Telecom Regulatory Authority of India (‘TRAI’) and Airport Economic Regulatory Authority (‘AERA’) seems to be directly proportional to the legal requirements mandated by the statute. We ideally require a strong Right of Citizens to Participate in Policymaking Act that imposes a statutory obligation on policymakers to facilitate pre-legislative consultations while prescribing punishments for defaulting officials and laying down clear timelines etc.
Deliberation- a two-way process
The piece distinguished pre-legislative consultation and deliberation with the help of the Transgender Bill as a case study. The lack of effective deliberations resulted in a violation of the fundamental rights of transgender people outlined in the National Legal Services Authority (‘NALSA’) judgment. The case study effectively established that the consultation processes that are not followed by effective deliberations lead to legislations that are not effective enough for the target stakeholders. However, we believe that the piece could have also included the example of the TRAI where the positive impact of deliberation is quite evident. The Telecom Regulator regularly publishes policy proposals for stakeholder comments. This is generally followed by uploading comments received, call for counter comments, open house discussions, etc. facilitating serious deliberations on various policy proposals. The TRAI’s consultation on Net Neutrality was probably the most popular policy consultation in India until recently (EIA consultation witnessed 20 Lakh representations to the Ministry of Environment) that saw the participation of more than 10 Lakh petitioners.
Conclusion
We agree with Prof. Dipika’s observation that India’s current unwillingness to institutionalise a framework for pre-legislative consultation hinders the progress that we could achieve through transparent and participatory law-making. We hope that someday our policymakers also arrive at this common conclusion and institutionalise a law to facilitate consultations. This law must be drafted in consultation (and deliberation) with stakeholders, experts, and the public at large.
Disclaimer: The opinions expressed in this piece are those of the authors. They do not necessarily reflect the opinions or views of their parent organisations.
