Consulting those governed by the law enables society to know the intent and purpose – it is only a consultation and not a vote
The need for public consultation before bringing in any new legal requirement keeps coming up every now and then. Most recently, it made it to the headlines yet again when the Supreme Court ruled that the manner in which the telecom regulator conducted public consultations and dealt with the inputs received was arbitrary and unconstitutional. The court had even remarked that India should have a law that makes it mandatory forlawmakers to conduct public consultations in an objective manner when writing new law.
Interestingly, the Union Cabinet had already directed in February 2014 that every government agency and department to follow a pre-consultative process when making law. The Union law secretary had communicated the Cabinet decision to all departments asking them to strictly abide by the requirement to conduct prior consultations with the public. The then United Progressive Alliance (UPA) government had burnt its fingers badly with civil society led by Anna Hazare andArvind Kejriwal over the draft law to create the Lokpal not having been properly discussed with the public. It had yet gone on to make this a self-complying requirement without getting Parliament to make law. The new National Democratic Alliance (NDA) government has not reversed this decision in the two-year-plus tenure it has had so far.
However, this requirement is followed more in the breach by government agencies uniformly – both under the residual term of the UPA and the newly-elected NDA. Worse, many government agencies provide lip service to the process by getting public comments on draft policy and draft legislation on some proposed actions even while pushing through numerous decisions, both routine and serious, with no public consultation at all. For some reason, it appears that this self-imposed requirement had either not been highlighted to the Supreme Court by any of the parties, but many writ courts are now being called upon to determine the legitimate expectation of Indian society arising out of the requirement to be consulted.
What is the charm in a pre-consultation? Asking those who are to be governed by the law for their views on the proposed law enables a society to know the intent and purpose underlying the law. The consultation process helps clear out unintended consequences and unforeseen difficulties that could be posed by the proposed law. Having this dialogue could enable addressing loopholes that the proposed law would leave, and removing unnecessary and onerous requirements that do not meet the objectives – the subjects governed by the law are best placed to give this feedback. This includes the beneficiaries of rights under the proposed law (those the law seeks to protect) and those on whom obligations are imposed under the proposed law.
A pre-consultative process is only a consultation. It does not give a veto to the public. When members of a society express reservations about the efficacy of the measures in the new law, it gives the lawmaker a chance to address the concern – demonstrate that they are wrong, or acknowledge that they may be right but still have good reason to overrule their concerns. The sovereignty of the lawmaker – be it Parliament, or a regulator, or a department of the government – would be intact and majestic. After the law is brought in, the society would know what was really expected under the law. When anyone is in doubt about what course of conduct to adopt, such clarity would enable them to choose the conduct most responsive to the objective of the law. In the field of business and industry, this process would contribute immensely to the ease of doing business in India.
Yet, all these arguments are usually wished away as Utopian by the bureaucracy that proposes law and policy. Indeed, there can be abuse of the consultative process, but the abusive feedback has to be stated to be rejected. For example, regulators have found numerous similarly worded responses from different members of the public, making it evident that one vested interest supported one point of view, outnumbering the contrary view. But no one said pre-consultation was a public vote. The telecom regulator has indeed made the point well on thepublic consultation over net neutrality when social media companies abused the process.
Every law requiring a pre-consultative process would also naturally protect the lawmakers’ right to bring in requirements on an emergency basis. Such requirements would hold good for a reasonably long period during which the consultative process can run its course. After applying the process, the law could be reiterated, modified or removed. Indeed, the Union government’s requirement that every government department and agency should follow pre-consultative process does not cover presidential ordinances.
In the absence of a pre-consultative process being mandated under a binding law governing how law should be made, it is left to the whims and fancies of the bureaucrats writing the law to sidestep the governmental directive to have pre-consultation. Any government officer worth her salt would be able to write some reasons on why she cannot wait for the pre-consultation process and how it would hurt public interest to do so. In much the same way that she would be able to decry the debilitating impact of the law on the right to information. This is how regulators get away with giving society no clue of when they provide the avenue, how they deal with inputs and why they accept or reject any suggestion even while creating a mirage of public consultationon some matters of law-making. It is time to intervene with a formal substantive law – which too may entail public consultation.
This was published in the September 5, 2016 edition of the Business Standard column titled Without Contempt