A representative democracy is the kind of democracy where people rule through their representatives, wherein these representatives make laws and policies and ensure their implementation. In a country like India, the citizens seldom have a say in the legislation process. It is to be noted that, where the Government should otherwise be deriving power from the people, it ends up engaging in such tactics that lead to unjust outcomes, thus making a mockery out of the democratic principles enshrined by the Constitution.
With the advent and omnipresence of technology, these problems faced the world over by democracies can be brought down. The same can be used in different forms to bolster the participation of the public in the lawmaking process, thus leading to more accountability and transparency.
Pre-Legislative Consultation Policy in India
- Every Department/Ministry shall proactively publish the proposed legislation both on the internet as also through other means; the detailed modalities of such publication may be worked out by the Department/Ministry concerned.
- The Department/Ministry concerned should publish/place in public domain the draft legislation or at least the information that may inter alia include brief justification for such legislation, essential elements of the proposed legislation, its broad financial implications, and an estimated assessment of the impact of such legislation on environment, fundamental rights, lives and livelihoods of the concerned/affected people, etc. Such details may be kept in the public domain for a minimum period of thirty days for being proactively shared with the public in such manner as may be specified by the Department/Ministry concerned.
- Where such legislation affects a specific group of people, it may be documented and disclosed through print or electronic media or in such other manner, as may be considered necessary to give wide publicity to reach the affected people.
- As a matter of practice, a provision regarding the previous publication of rules should be made in all new principal legislation.
- Every draft legislation or rules, placed in the public domain through the pre-legislative process should be accompanied by an explanatory note explaining key legal provisions in a simple language.
- The summary of feedback/comments received from the public/other stakeholders should also be placed on the website of the Department/Ministry concerned.
- The Department/Ministry concerned might, in addition to placing the proposal in public domain, also hold consultations with all stakeholders. However, the degree of participation and mode of consultations may be decided by the Department/Ministry concerned and may vary according to the nature of the subject and the potential impact on those who will be affected by such legislation.
- The Bill should be referred to the Ministry of Law and Justice for vetting after the pre-legislative consultation as well as inter-ministerial consultations are over. The Ministry of Law and Justice shall also, at the time of examination of the draft legislation or rules, ensure that the concerned Department/Ministry has complied with the process of pre-legislative consultation.
- The Department/Ministry concerned should include a brief summary of the feedback received from stakeholders (including Government Departments and the public) along with its response in the note for the Cabinet along with the draft legislation.
- The summary of the pre-legislative process should also be placed before the Department Related Parliamentary Standing Committee by the Department/Ministry concerned when the proposed legislation is brought to the Parliament and is referred to the Standing Committee.
- If the Department/Ministry concerned is of the view that it is not feasible or desirable to hold a pre-legislative consultation as detailed above, it may record the reasons in the note for the Cabinet.
- The Manual for Parliamentary Procedures in the Government of India and the instructions issued by the Cabinet Secretariat on writing Cabinet Notes may, to the extent required, be suitably modified.
- Dr Subhash C Kashyap, in his book,‘Reviewing the Constitution?’, in a chapter on ‘Working of Parliament and Need for Reforms’: “It is ordinary people who have to be enabled to feel that they are participants in the decision-making and legislative processes and that through Parliament their voice can reach the government and that it counts. Parliament must have access to public opinion and the public must have access to Parliament.”
In January 2014, the Ministry of Law and Justice came out with a Pre-Legislative Consultation Policy which was to be followed by every ministry/department for every principal (Act) and subordinate legislation (rules under an Act). The policy provided that the draft of the proposed law be placed in public domain, for a minimum period of 30 days, along with supporting documents explaining the rationale, the broad financial implications, the likely impact and an explanation of the legal provisions in simple language. It was also stated that a summary of the feedback received be also placed in the public domain.
Is this being followed? In the last couple of years, the government has used MyGov.in, an online portal, in some instances to undertake public consultation – like for the Draft Indian Institute of Management Bill, 2015, the Draft Trafficking Of Persons (Prevention, Protection, and Rehabilitation) Bill, 2016.
But, barring rare examples, in a majority of cases, consultations on Draft Bills happen beyond public gaze and in a manner which borders on opaqueness. Case in point, the drafting of the Aadhaar Bill, which as revealed by a recent Parliamentary Question, was undertaken by an organization paid for this exercise by the government. There is no clarity on the procedure followed and on the stakeholders which were consulted by the organization for coming up with the Bill, which has become the subject of many challenges since its passing.
Even in those cases, where public consultation was undertaken through MyGov.in, there are several apparent shortcomings: Government uses its discretion to decide whether it wishes to use the portal to undertake public consultation for a particular Bill; no formal mechanism exists to mandate the government to take the comments into consideration; only the Draft Bill is placed in the public domain without any supporting documents explaining the rationale; there is no compulsion on the government to respond to concerns raised and several ministries continue to use their own websites to publish Draft Rules and invite comments, which dilutes the universal character of a citizen engagement portal like MyGov.in.
These shortcomings, however, can be addressed to some extent through the mechanism of Parliamentary Standing Committees, where government officials need to render explanations to parliamentarians, but which, unfortunately, suffer from their own weaknesses.
During the law-making process:
This stage arises after a Draft Bill has been approved by the Cabinet and has been introduced in either House of the Parliament. As per the procedure approved by the Ministry of Parliamentary Affairs, with some exceptions, each Bill may be referred to a department-related Parliamentary Standing Committee.
These Committees invariably invite comments from the public on such Draft Bills and present their reports which aid lawmakers while debating and reviewing the Bill. As has been pointed out, our parliamentary system, which provides that a Bill may or may not be referred to a Committee, is based on British parliamentary system in which every Bill compulsorily gets referred to a Committee. Moreover, in recent times, there has emerged a trend of evading reference to a Committee completely.
As per an analysis was undertaken by PRS Legislative Research, in the five years of 14th Lok Sabha, 60 percent Bills were referred to a Standing Committee; 71 percent were referred in the 15th Lok Sabha but in the three years between 2014-2017, only 29 percent Bills were referred to a Standing Committee. Some very crucial Bills have not been referred to a Committee, thereby raising questions on the very existence of parliamentary oversight.
Standing Committees may also aid in the policy-making process by taking up subjects for review on which a legislation may be imminent. For instance, the recent call for comments by the Standing Committee on information and technology on the subject of Citizens’ Data Security and Privacy is clearly in anticipation of a possible legislation.
The manner of consultation, however, has invited some criticism, for providing a very short window of just two weeks to send in comments and for treating such comments as ‘confidential’, a Parliamentary Convention, striking a blow to transparency around public consultation processes.
These are usually undertaken to review the workings of an Act, a function either delegated to specialised bodies like the National Commission on Scheduled Caste (NCST) which prepares an annual report on working of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, or may be undertaken by a Standing Committee of Parliament. At this stage, stakeholder consultation does take place sometimes, but there are no guidelines for this and no transparency with regard to who appeared before the Committee with what representation. As against constitutional bodies like the NCST, which publicize their hearings, it is usually not possible for a common citizen to witness and participate in a Parliamentary Standing Committee meeting.
Following are the practices adopted by successful democracies to ensure public participation in lawmaking:
Public Participation in legislative procedure through Gazettes and Online Consultation process: Pre-legislative scrutiny is conducted by Parliamentary Committees and a report is made by the select Committee post scrutinization, wherein Ministers may be called to give evidence. These Pieces of evidence are usually taken in the presence of the public. The Government may or may not accept the recommendations made by the Committees but they usually submit a formal response to the Committee’s report.
In order to inform the Committee and the wider section of the affected public of how the bill has changed as a result of pre-legislative scrutiny; departments should, on the introduction of the bill, simultaneously publish a list of changes. These might also be included in a narrative document accompanying the publication of the final bill.
- As a part of the ensuing consultation process, the Government may publish a paper for public discussion and response. The best examples of this are Green Papers and White Papers.
- Green Paper begins a formal period of consultation, usually lasting three months, where the government seeks feedback and ideas from specialists and the general public. They are consultation documents produced by the Government when it is considering introducing a new law
- After the formal consultation period is over, the government will normally publish a ‘White Paper’. However, the process can begin with a White Paper, skipping the Green Paper stage. In a White Paper, the government states its intention to introduce legislation and indicates its central ideas. Although White Papers do not provide the same scope for the public to get involved as Green Papers, there is still usually a period to make comments on the proposals.
- Departments may wish to publish a consultation document or White Paper at the same time as, or before, the draft Bill. This should include a copy of the Impact Assessment.
An Impact Assessment is an analysis of the likely impact of a range of possible options for implementing a policy change. An Impact Assessment must set out the risk or problem to be addressed and the options available.
- The Cabinet Office’s Code of Practice on Consultation sets out the approach the Government ought to adopt when it decides to run a formal, written, public consultation exercise. These guidelines help to ensure that a common standard exists across government for consulting the public. The Code does not have legal force and cannot prevail over statutory or mandatory requirements.
CODE OF PRACTICE ON CONSULTATION
The six consultation criteria:
- Consult widely throughout the process, allowing a minimum of 12 weeks for written consultation at least once during the development of the policy.
- Be clear about what your proposals are, who may be affected, what questions are being asked and the timescale for responses.
- Ensure that your consultation is clear, concise and widely accessible.
- Give feedback regarding the responses received and how the consultation process influenced the policy.
- Monitor your department’s effectiveness at the consultation, including through the use of a designated consultation coordinator.
- Ensure your consultation follows the better regulation best practice, including carrying out a Regulatory Impact Assessment if appropriate. These criteria must be reproduced within all consultation documents.
A Sample of the Green Paper published for Online Consultation is annexed herewith as Annexure No.1.
The Consultation ran from 11 October 2017 to 7 December 2017
The Green Paper is also available on the following link:
Internet Safety Strategy Green Paper:
Online Consultation through this Green Paper consists of the following topics and documents:
- Consultation Description
- Detail of outcome
- Documents for the public’s perusal:
- Internet Safety Strategy Green Paper which outlines the issue, the summary of the issue, the approach of the concerned department, the existing legislation and regulations, the proposed strategy, method of consultation and points wise areas with the explanation on which the particular consultation is sought.
- Government Response to the Internet Safety Strategy Green Paper: This is submitted after the consultation is over, it lists
- the areas on which views were sought,
- the issues highlighted by the responses received,
- details of the consultation survey
- analysis of the responses
- concerns brought about by the responses,
- Government response to the consultation process and public views received
A reading of the document gives one an idea about the way citizen’s views are taken into consideration before laws are framed or amendments are made, the responses received through the consultation are even analyzed and brought to the knowledge of the participants, and individual anonymity is maintained.
- In Canada, permission to consult must be obtained from either the Cabinet or the Prime Minister depending upon the type of draft bill involved.
- If a draft bill is intended to be consulted before it is tabled in Parliament, a Memorandum to the Cabinet (MC) should state such intention and request the Cabinet’s agreement.
- The strength of the policy commitment towards public consultation is witnessed in the Department of Justice’s Policy Statement and Guidelines for Public Participation.
- The Department must ensure that public participation activities as part of the policy-making process are open, meaningful, timely and adequately resourced. Determining the policy areas that will include a public participation component is the responsibility of the appropriate departmental authority.
- At a minimum, the Department must ensure the transparency of its policy development process through the timely provision of information and accountability through reporting to citizens on results and how their views have been considered in the decision-making process.
The manner of Facilitating Public Participation:
Notice and Comment:
Pre-publication in Part I of the Canada Gazette allows interested groups and individuals, and Canadians, in general, a final opportunity to review and comment on a proposed regulation at the last stages of the regulation-making process, before it is enacted and published in Part II of the Canada Gazette. It also enables them to see whether the final draft is in keeping with previous consultation drafts.
The government of Canada consultations can be accessed through the Government of Canada Consultation Portal, “Consulting with Canadians”.This Consultation Portal provides a list of links to departmental consultation activities and to related information; an example of the format of which is given below.
Department of Citizenship and Immigration
Proposed Regulations: Regulations Amending the Immigration and Refugee Protection
RIAS: Regulatory Impact Analysis Statement
Date of publication: Saturday, February 26, 2011
Number of days for comments: 15 days (Until March 13, 2011)
Key features of the Consulting with Canadians site include:
- Current Consultations: A list of current consultations underway across participating government departments and agencies.
- Past Consultations: A selection of consultations that are now finished, including links to background information and reports, where available.
- Consultations can be viewed by
– Participating Department or Agency
- Consultations Calendar: An at-a-glance view of when consultations are scheduled to take place
- Search: It can be used to find a consultation listed by Title, Subject, or Department or Agency.
Each Consultation listing contains the contact information for the department or agency holding the Consultation to allow people who have a question concerning a specific Consultation to directly contact the department or agency.
Consultations are created and controlled by their individual departments and agencies. Each Consultation will have its own method for submitting comments and questions.
An online consultation ran from March to April 2018 titled:- Countering Online Child Sexual Exploitation: Sharing Knowledge, Enhancing Safety
Link to the consultation is provided herein under:
This Consultation states the issue from all angles in the form of Why, Who, What, What we heard and the contact details for the submission of responses
It is pertinent to note that the Department stated that the full report on the consultation would be provided to participants, along with a detailed report on the online survey.
Thus, the results weren’t published on the portal and hence unavailable to the public.
The Swiss Confederation or Confoederatio Helvetica is a federal state, with a political structure comprising three governmental levels: the Confederation, 26 cantons, and 2551 communes. This three-level polity is also mirrored in the concept of a three-fold citizenship- federal, cantonal and municipal. Switzerland has a particularly strong tradition of participatory democracy, with the cantons enjoying wide-ranging powers of ‘self-rule’ and ‘shared rule.’ As regards the former, cantons possess their own legislative, executive, and judicial bodies .i.e each canton has its own constitution, parliament, government, and courts, with the opportunity of making decisions about its own democratic system and organization.
Cantons participate in three ways-
- Through their elected representatives in the Council of State (one of the chambers of the Federal Assembly)
- In the constitution-making process- according to Article 140(1)(a) of the Constitution, amendments to the Constitution must be submitted to the vote of the people and the cantons. Consequently, revisions of the Constitution are only accepted if a majority of the people and a majority of the cantons approve them.
- In the federal law-making process- when drafting provisions of a federal act, the Federal Council or the Parliamentary committee have to initiate a consultation procedure, which allows the cantons, political parties, and other interested groups to express their view about the new law.
The Consultation Procedure Act sets out the requirements for public participation in the lawmaking process.
In particular, the following participants are invited to submit an opinion in order to obtain information on the material accuracy, feasibility of implementation and public acceptance of a federal law:
- the cantons;
- the political parties represented in the Federal Assembly;
- the national umbrella organizations for the communes, cities and mountain regions;
- the national umbrella organizations for the economic sector;
- any further interest groups relevant to the individual case.
TYPES OF INSTRUMENTS FOR PUBLIC PARTICIPATION
The Right to Initiative:
- The citizens of Switzerland are guaranteed the opportunity to be directly involved in the lawmaking process through the right of initiative.
- Citizens may request a complete or a partial revision of the Constitution if they can muster 100,000 signatures within eighteen months.
- The amendments enter into force only if the majority of the people and the majority of the cantons accept them.
A popular initiative may be formulated as:
- a general proposal or
- a specific draft of the provisions proposed.
- If a general proposal is submitted and the Federal Assembly is in agreement, it drafts a partial revision on the basis of the initiative and submits it to the vote of the of the people and the cantons.
- Even if the Federal Assembly rejects the initiative, it is submitted to the vote of the people who decide whether to adopt it or not. If there is an affirmative vote, the Federal Assembly is required to draft a corresponding bill.
POPULAR INITIATIVES CAN BE FOUND ON THE FOLLOWING LINK:
The page has options to view the following:
- ‘Popular’ Popular Initiatives,
- Unfulfilled Popular Initiatives
- State Popular Initiatives
- Withdrawn Popular Initiatives
- Aborted Popular Initiatives, etc
- People’s Initiatives Adopted by the People and the Estates- This list enlists the initiatives adopted along with the date of ‘entry into force’
The Right of Referendum
The right of referendum, similar to a veto, entitles citizens and the cantons to supervise the political process by approving or rejecting constitutional and legislative amendments adopted by the Federal Assembly.
Two types of referendum exist at the federal level:-
Mandatory Referendum: Article 140 of the Constitution provides for the following to be submitted compulsorily to the vote of the people and the cantons:
- amendments to the Federal Constitution;
- accession to organizations for collective security or to supranational communities;
- emergency federal acts that are not based on a provision of the Constitution and whose term of validity exceeds one year
Optional Referendum: According to Article 141 the following instruments are to be submitted to a vote of the people if, within 100 days of the official publication of the enactment, any 50,000 persons eligible to vote or any eight cantons request it.
- federal acts;
- emergency federal acts whose term of validity exceeds one year;
- federal decrees, provided the Constitution or an act so requires;
- international treaties that
- are of unlimited duration and may not be terminated;
- provide for accession to an international organization;
- contain important legislative provisions or whose implementation requires the enactment of federal legislation.
One can also find the list of Optional Referendums on the Website of Federal Chancellery:
The page contains a list of referenda- chronologically, also the state-made referendums and ongoing/pending referendums
The optional referendum is a cornerstone of direct democracy. Upon request, the Federal Chancellery informs the authors of a referendum on the modalities of collecting signatures; then it checks after submitting the signatures, whether the referendum has come about.
Information on Upcoming Referenda and their details are found on the following page:
The page also provides the following details:
- Which optional referendums came about?
- What decrees were put to the people for a referendum vote and when?
- What decrees were adopted in the referendum following an optional referendum
The public can find all the results of optional referendums since 1874 in the database of the Federal Chancellery.
Need for Change
Even in all these disjointed manners in which public consultations may occur, serious flaws remain – the process is undertaken at will and there is no remedy available in law if a policy is drafted without public consultation; there exists no single point platform for undertaking such consultations and every ministry essentially uses their own website to invite comments as opposed to, say, in the United Kingdom which has one website to not just invite comments but also to publish the outcomes of such consultations.
Moreover, whenever any consultation takes place, on any medium, the government does not proactively disclose the evidence relied on for reaching a conclusion, the compelling circumstances justifying a particular policy, the alternatives which were considered and the likely economic and social implications. All of this is left to the stakeholders to figure out for themselves or to suggest to the government.
Consultation ought to provide for:
Appropriate, and as far as possible, a single platform for undertaking consultation;
- Identification of relevant and targeted stakeholders;
- Communication strategy to reach the widest possible audience, preferably in multiple languages;
- Suitable time frame, in some cases, as much as 12 weeks;
- Evidence generation for each policy;
- Transparency and accountability in reporting the outcome of the consultation.
It is stated that not much is being done for the inclusion of citizens in the lawmaking process, which is fundamental for the functioning of a democracy. Accessibility and transparency in the legislative process are required for effective public participation in the law making which is otherwise dominated by ministers and civil servants who are pursuing their own agenda and thus making the legislative process inaccessible to the citizens. The disadvantaged sections of the society are unaware as to how laws are made and also that they should ideally have a role in the lawmaking.
Democracies around the world have evolved mechanisms through which they engage the public in the legislative process through technology and hence ensure transparency and accountability. India has a lot to learn and imbibe from them so as to transform itself into an open government by involving the public in the legislation and policy making.