MAKING PRE-LEGISLATIVE ENGAGEMENT & NEGOTIATION MANDATORY-LYING GROUNDWORK FOR DEMOCRATIC GOVERNANCE
Democracy is the system of government under which supreme power is vested with the people of the state and it is to protect the fundamental rights of citizens and liberties as mentioned in the preamble of the constitution of India. There is a great advantage that Indian citizens have, that is, people have the authority to decide on the legislation. But the law-making procedure in India is becoming controversial and vague due to lack of community participation, Typical Bills are drafted and consulted by the concerned government department or with certain bureaucrats or joint committee after approval by the cabinet those bills are presented before the house of parliament, Indian citizens have rights to participate in the law-making procedure but the public consensus is not even taken into account, successfully it is invaluable.
By introducing a mandatory pre-legislative process in India, not only ensures transparency and accountability around the legal environment but also deliberation and consultation with the society which makes the regulations more secure and less susceptible. To review legislation in its proposed form by a unity government which ensures compliance with –
Human rights legislation
The universal declaration of human rights
Civil rights legislation, ethical, just, fair, and moral sense of duty of Indian citizens
Such law will impact marginalized communities and legislation would reflect social needs which leads to benefit of legitimacy and a majoritarian approach.
pre-legislative scrutiny - A constructive policy
the pre-legislative process creates a representative and collaborative process which scrutinizes the detailed examination of the early draft of the bill before it has given majority consent by the cabinets. This process involves accountability and transparency for mature and responsible democracy. By potential law affected ones ought to have rights to actively participate in the legislative process, pre-legislative scrutiny is valuable enhances decision-making procedure which ensures transparency in the legislature and builds nexus between representatives and represented, effectively collaborative democratic process connect with social realities for an informed government to be responsive in contemporary legal and social issues. It has been scrutinized that pre-legislative process involves effective consultations with an interested group of people in the society on proposed bills before it has been drafted and given consent. Some of the academics shared that the poor and vulnerable have suffered gradually because the legislation is passed without any public participation, consultations, deliberation, and other forms of citizen-government relations are worth investment because it creates a proper understanding that where the law-making procedures are lacking and what needs to be installed as a tool for good governance and to make the democracy more effective.
The lacuna between pre-legislative scrutiny and the legislative process is that India does not have a mandatory legislative procedure requiring pre-legislative consultation. Ministry of law and justice (MOJ) has taken steps towards transparency in the law-making procedure by establishing the pre-legislative scrutiny and making consultation and deliberation mandatory. Ministry of law and justice (MOJ) in 2014 executive circular dictates that drafted legislation should be published in the public domain through the internet or other sources and also its publicity should be wide so that it could reach the potential stakeholders as much as it can, so ministries and departments could connect with stakeholders and discuss the proposed legislation also chronologically through the internet the proposed legislation has been publicized among the affected group of people which will potentially impact them by their feedbacks to the government. But the MOJ circular suffered a failure in two significant ways by ignoring two of the mandatory objectives:-
Consultations and deliberations are obliterated and
The government didn’t feel necessary to deliberate on the feedbacks by the affected ones presented in the public domain.
This shows the entirety of ignorance from the side of government towards vulnerable communities.
Formulation of accountability and transparency- RTI Act,2005
Section 4 of the RTI act mandates that:-
“4(1) Every public authority shall—
c) publish all relevant facts while formulating important policies or announcing the decisions which affect public;”
RTI enactment is successfully democratic because it has been legitimized by proper consultation and deliberation by the eminent individual activist, civil society organization(CSO), scholars, and potential stakeholders who with their skillful coordination maintains transparency and accountability in the law-making procedure by publicizing the information through the internet or other resources for the most affected communities especially the vulnerable and the poor underprivileged ones who did not even aware about their rights and liabilities. RTI movement describes as a unique case of participatory democracy, law-making process in India has become controversial and contentious as the only opportunity left for the people to express their opinions and complaints before the passage of the law is parliamentary committees which scrutinizes and report only those bills which are submitted to them by the parliament. In 2009, only 16% of the total Parliamentary time was spent on legislative business. 27% of the total Bills passed in the year by Lok-Sabha were discussed for less than 5 minutes.
Only five Bills passed by the Lok- Sabha in 2009 were debated for more than three hours.
Making the contents of draft Bills rests on the magnanimity of the Ministry concerned; this despite the legal duty imposed by the Right to Information Act to ‘publish all relevant facts while performing important policies or announcing the decision which affects public. Thus RTI act 2005 is one of the shining examples of democracy in action.
Reforming agenda for pre-legislative process
By exploring some of the possibilities government proactively should start consulting in the public domain:-
The stakeholders and the underprivileged ones by publicizing the drafted bill in the official gazette for at least 2 months.
All major bills and policies should be introduced in the green paper which explains broad policy and objectives for public debate. The green paper followed by a white paper with precise proposals of the government.
The green and white paper and drafted bills should be available on the specific sections of the official gazette which should be easily accessible on the dictated website in Hindi and English languages so that no one could face any difficulty while receiving the information.
Legislation passed without pre-legislative consultation may be brought for review before the parliamentary committees for a mandatory negotiation. Also, the feedbacks and comments on the bills should be publicly available.
Consultation and deliberation should be mandatory to obliterate lacuna between the public at large/stakeholders and government in the law-making procedure which could be later helpful while negotiation.
This all the agendas would democratize in law-making procedure and allow the civil society to know their rights and liabilities through public participation and mandatory consultations on the feedbacks and comments which helps in the formulation of the policies, thus reinforcing the legitimacy of the decision-makers.
THE TRANSGENDER BILL-ROBUST DELIBERATION
The Transgender Bill from 2014 to 2018 has brought robust deliberation during the pre-legislative process in India. It enhanced and encouraged the process by striking a fine balance between philosophical, legal and practical consideration that surrounds the area of gender equality and identity. In 2014 supreme court issued a landmark judgment in National legal authority vs. union of India, in this case, supreme court allowed a petition on behalf of the transgender community and held that right to express one's own identity is a non-binary gender which is an essential part of freedom of expression of the constitution[Article 19(a)] as it directed the government for the legal recognition of the third gender and to remove the social stigma, promote transgender health programs, and equal legal protection. The national legal service authority is a statutory body constituted to provide legal representation to the marginalized section of the society. The court by referring to article 14 of the constitution which states that- "the State shall not deny to 'any person equality before the law or the equal protection of the laws within the territory of India." "transgender persons who are neither male/female fall within the expression 'person' and, hence, entitled to legal protection of laws in all spheres of State activity, including employment, healthcare, education as well as equal civil and citizenship rights, as enjoyed by any other citizen of this country."
The court also referred to articles 15 and 16 of the constitutional prohibition of discrimination of inter alia, on the ground of sex equally applies to transsexual persons. According to the Court, the use of the word ‘sex’ in the articles “is not just limited to the biological sex of male or female, but intended to include people who consider themselves to be neither male nor female.”
Lastly, the Court referred to Article 21 of the Constitution, which says “no person shall be deprived of his life or personal liberty except according to procedure established by law.” It interpreted that this provision broadly protects “those aspects of life, which go to make a person’s life meaningful,” including one’s right of self-determination of the gender to which a person belongs. Accordingly, the Court held that “Hijras/Eunuchs, therefore, have to be considered as the third Gender, over and above binary genders under our Constitution and the laws."
All the above explanation and formulation of agenda refers to mandatory negotiation to install the process of pre-legislative law-making procedure so that it could promote community participation and improve the legislation by expunging the secrecy in the law-making process and involving transparency and accountability as a central pillar to make the legal environment safeguard from corruption and for the mature and responsible government from the time of drafting the bill till finalizing the bill will follow the dialectic of public scrutiny and legislation drafting. Also, this will help in strengthening the democracy by giving equal importance to the vulnerable and underprivileged people to participate in the process and comment on the same, at the same time potential stakeholders feedback helps to improve the structure of pre-legislative scrutiny which leads the government to rectify the law-making process and to harmonize their relation with civil society without undermining legislative and executive prerogative which will enlighten the law-making process.
1. Law-making by and for the people- A case for pre-legislative process in India- Dipika Jain
2. Pre-legislative consultative process Prepared by Mandakini Devasher Surie, Legislative scrutiny final draft
1. National Legal Services Authority v. Union of India and Ors, [(2014) 5 SCC 438]
W.P. 400/2012, Application for Clarification/Modification of the Judgment and Order of the Supreme Hon’ble Court dated 15.04.2014,
2. RTI ACT 2005 (Section 4)
3. Indian constitution Article 15,16,19 cl(a),and 21
Author- Ritika Verma
BBA LLB(H), 4th year
Amity University Raipur, Chhattisgarh