Let’s redesign the process of pre-legislative consultation

Context: In 2014, India’s ministry of law and justice issued a policy on pre-legislative consultation.

Background

In 2012, the Organization for Economic Cooperation and Development (OECD) issued a set of 12 recommendations on policymaking practices for member and non-member nations.

Importance of Pre-Legislative Consultation

It ensures transparency in the legislative process. Further, lawmakers keep in mind the concerns of all affected parties.

To do so, regulators should offer meaningful opportunities to the public to participate in the legislative process.

Features of Indian policy

The Central government should place legislative proposals in the public domain for a period of at least 30 days before they are submitted to the Cabinet for consideration.

The proposal must be accompanied by a brief note justifying its necessity, its broad financial implications, an assessment of its impact on the environment as well as the fundamental rights and lives and livelihoods of the people.

Public comments be summarized and placed on the website of the department or ministry concerned. These also had to be included in a note to the Cabinet along with the draft proposal.

What are the issues?

Most legislative proposals in India do follow this practice, but the consultation itself is no more than a formality today.

In many instances, the time set aside for consultation is too short to be of any practical consequence,

The government is under no obligation to justify why a given suggestion was excluded from the final draft.

Stakeholders have no way to tell whether their suggestion was rejected after due consideration or simply ignored.

Way Forward

In order to extract value from pre-legislative consultation, there is a need to redesign the process.

(1) In the first place, instead of putting a draft legislation, the government should first describe the issues for which legislative solutions are being sought. This will lead to the start of a constructive conversation.

The issues for consultation should be put in public domain with a set of questions, to seek responses from the stakeholders.

The feedback should be taken in a structured manner, ideally through a digital interface.

(2) The final step would be to prepare a report that lists all the suggestions received and the final decision arrived at on each issue.

The report should clearly state the reasons for non-acceptance or discarding of the suggestions.

(3) Thereafter, a draft legislation can be prepared along the lines of the final recommendation.

(4) Some Good Cases in India

(a) Telecom Regulatory Authority of India Model: All its recommendations are a result of a process exactly like mentioned above. Therefore, the TRAI reports are highly regarded policy papers in India.

(b) The Justice Srikrishna Committee on data protection also used a similar process. It sought inputs from the stakeholders before making recommendations.

(5) In addition to the government’s approach for accommodating viewpoints of the stakeholder, the stakeholders should also approach such an exercise constructively. They need to realize that policy-making is an exercise in compromise. All their demands during negotiations cannot come on final papers, otherwise the process will become unfortunate and counter-productive.

Source: The post is based on an article “Let’s redesign the process of pre-legislative consultation” published in the Live Mint on 7^th June 2022.