Mandakini Devasher

Every year the Parliament considers and debates a large number of draft bills. Whether it is the Civil Nuclear Liability Bill, the Whistleblowers Bill, the Judicial Standards and Accountability Bill or the UIDAI Bill, these draft laws have major policy implications. However, information about these bills is usually acquired by media and civil society groups post-facto – giving very little time for groups to study their contents and respond. While some Ministries have become quite good at putting up draft bills on their websites and inviting public comments, this is not an established or mandatory practice. In most cases the work of acquiring and disseminating information on draft laws and bills has been taken up by civil society groups such as PRS Legislative Research. The lack of transparency and public scrutiny in the drafting of bills has in recent times been a subject of intense criticism particularly over major bills such as the Civil Nuclear Liability Bill. At the height of the controversy over the nuclear bill, journalist, Siddhartha Varadharajan criticised the government for trying to push through a “complex legislation with the potential to affect the lives of tens of millions of people” with “stealth, subterfuge and the barest minimum of consultation”.

In many countries, pre-legislative scrutiny is an established process through which citizens are encouraged to give their comments and feedback on proposed legislation. In the UK, new pieces of legislation are often published a whole session before their intended introduction and passage. Draft Bills are normally examined by a joint-committee of MPs who invite comments from individuals and organisations. In India, the debate on pre-legislative scrutiny is slowly gathering speed. At a recent meeting organised by the National Campaign for People’s Right to Information (NCPRI) and Inclusive Media for Change (IM4C), the need for greater citizen engagement and oversight in the process of drafting legislation was centre stage. The meeting brought together civil society organisations such as Satark Nagarik Sangathan, CHRI, JOSH, Pardarshita, Association for Democratic Reforms etc along with noted activists such as Aruna Roy, Nikhil Dey, Shekhar Singh, Usha Ramanathan, Vrinda Grover, Maja Daruwala and others. Participants agreed on the need for establishing a robust mechanism for pre-legislative consultation and discussed different ways and means by which this could be achieved. Some of the major themes that emerged from the meeting were as follows:

• Exploring existing mechanisms and spaces for people’s participation in legislative processes was highlighted as a key first step. In this regard, Section 4(1)(d) of the RTI Act  – which mandates public authorities to disclose all relevant facts when formulating policies  – was discussed as a good starting point.

• In addition to spaces for consultation participants also discussed the necessity of procedures for mandatory debate and discussions on inputs received from the public.

• The need for greater focus and attention on subsidiary legislation and the framing of rules at the state level was also discussed. Participants spoke of the fact that in many states,  governments often frame rules are which are contrary to the spirit and intent of laws. The high application fees charged by many states under the RTI Act is a clear example of how state rules can often subvert a progressive law.

• Participants also voiced the need for striking a balance between widespread public consultation and parliamentary and executive privilege.

• The need to engage with MPs and MLAs, proactively sharing information with them and strengthening their research capacity and support was highlighted as another area for action.

In terms of taking the debate further it was suggested that civil society action could be oriented around three broad areas:

• Improving existing rules and procedures: Bringing in amendments to government rules and procedures that restrict pre-legislative scrutiny such as the Parliamentary Rules of Business, Cabinet procedures etc.

• Strengthening Section 4 of the RTI Act 2005 and ensuring effective implementation of  Section 4(1)(d) of the RTI by public authorities at all levels of government.

• Potentially drafting a separate law mandating pre-legislative consultation and bringing together provisions under existing laws and rules.

For more information about the meeting and the move towards greater pre-legislative scrutiny read the NCPRI-IM4C press release and approach paper attached with this post.

Mandakini Devasher is a Research Analyst with the Accountability Initiative.