Legally speaking

In a move to increase transparency within the democratic system, the Centre recently decided to make pre-legislative consultation mandatory.

Published: March 9, 2014 12:43 am

In a move to increase transparency within the democratic system, the Centre recently decided to make pre-legislative consultation mandatory. This effectively means that every draft Bill or amendment to an existing law should be put up in the public domain, accompanied by an explanatory note outlining the essential provisions of the Bill in simple language. Suggestions will then be sought from the public, with at least 30 days for them to comment. With this, India joins a few other nations in the world where pre-legislative scrutiny is practised.

United Kingdom
Pre-legislative scrutiny was first advocated in 1971 in the Renton report, but was only properly put into practice by the Tony Blair government in the late nineties. Increasingly, draft Bills are published about one session ahead of their intended introduction and passage. The Bills are then subjected to pre-legislative scrutiny at the hands of a joint committee of MPs and peers who invite suggestions from individuals and organisations. An online consultation tool called Directgov provides links to the consultations. The recommendations of the committee are not binding on the government, but they usually shape the debate on the Bill during its passage.

South Africa
With a constitutional duty to facilitate public participation, South Africa has some of the strongest obligations to ensure pre-legislative scrutiny. At the level of the local government, municipalities are told to “encourage the involvement of communities in matters of local government” and municipal councils are explicitly required to publish by-laws for public comment. At the national level, prior notice (including a summary of the draft Bill) must be published in the Government Gazette, inviting public comment. Information is also distributed through newspapers, radio, television and the Internet.

USA
The US Administrative Procedure Act, which governs the agency rule-making process, lays out the statutory requirements for public participation. The constitutionally protected ‘right to petition’ under the First Amendment formally requires the government to respond to grievances. As the duty no longer exists, it is now exercised through the lobbying process. The standing orders that govern access to standing committee meetings and public hearings during the passage of Bills are followed as a matter of precedent, but cannot be enforced by the courts.

Canada
The process is very similar to that in the UK, but has a “report stage”, during which the House can approve amendments made by the committee or propose new ones. There are strong policy commitments to public consultation listed in the guidelines issued by the Department of Justice. All draft Bills are published in the Canada Gazette. An online consultation portal called ‘Consulting with Canadians’ provides access to all government departmental consultations.

Switzerland
Displays its commitment to direct democracy with constitutional provisions granting its citizens the right to initiate constitutional amendments. Similar obligations are imposed by a statute called the Consultation Procedure Act. It even allows citizens to propose constitutional amendments upon collection of a requisite number of signatures within a particular time frame. An optional referendum may be exercised in relation to federal acts and decrees desired by 50,000 persons within 100 days of the enactment of the new law.

IN INDIA…
Kerala
In 2011, before passing the Kerala Police Bill in 2011, a questionnaire was prepared on police modernisation by a committee of the Legislative Assembly to allow for inclusive lawmaking. It was only after the views of the public were incorporated in the draft that the Bill was passed. The UDF government has even included an idea bank called Vision 2030 on its website where people can detail their ideas for the future of Kerala.

Compiled by Aleesha Matharu

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