5 min readJan 17, 2025 02:57 PM IST
First published on: Jan 17, 2025 at 06:58 AM IST
The release of the draft rules for the Digital Personal Data Protection Act, 2023 (DPDP Act) for public consultation, more than 16 months after the Act was passed, has restarted discussions on the importance of public participation in lawmaking, particularly for pieces of legislation that significantly impact individual rights. Given its implications for privacy and digital governance, the delay in consulting the public on the implementation of the DPDP Act has drawn scrutiny.
This instance is emblematic of the broader issues surrounding the Pre-Legislative Consultation Policy (PLCP). In 2014, PLCP was formulated by the Ministry of Law and Justice. The policy is supposed to be followed by all departments and ministries before any legislative proposal is submitted for consideration. It has been a decade since the PLCP has come into effect. The question is: How many legislative proposals have actually undergone public consultation, and to what extent has the policy been effectively implemented across ministries and departments? The Union government was asked a pointed question in Parliament: How many Bills had been placed in the public domain for consultation before introduction? The response from Kiren Rijiju, then Union Minister of Law and Justice, was that the Ministry does not maintain any record relating to compliance with respect to the PLCP. (Another example of NDA – No Data Available!)
Non-obligatory Nature of PLCP: Paragraph 11 of the PLCP allows ministries and departments significant discretion to bypass the policy’s requirements if they deem public consultation to be “not feasible” or “undesirable”. This broad exemption creates a major loophole that undermines the very purpose of the policy. By granting government bodies the power to unilaterally decide when public input can be avoided, the provision weakens the commitment to transparency, accountability, and participatory democracy.
Such flexibility can be easily misused, leading to important legislation being passed without considering the views of those who may be affected. The ability to sidestep consultations without clearly defined criteria opens the door for arbitrary decisions, potentially resulting in laws that do not adequately reflect public needs or address stakeholder concerns. In essence, this undermines the fundamental aim of the policy: To ensure that the legislative process is inclusive, deliberative, and that voices of citizens are heard and considered before laws are enacted.
Poor Scrutiny and Quality of Legislation: The widespread public protests and strong opposition to controversial legislation, such as the CAA-NRC Bills and the Farm Bills, are examples of hurriedly legislating without meaningful consultations with key stakeholders. Several other significant pieces of legislation, including the Right to Information (Amendment) Act, 2019, the Unlawful Activities (Prevention) Amendment Act, 2019, the Insolvency and Bankruptcy (Second Amendment) Bill, 2021, were all tabled in Parliament without any prior engagement or consultation with the public. These instances reflect a broader trend of flippant legislative procedure without adequate public input.
Even when consultations do take place under the PLCP, there is no mechanism to ensure that they are conducted in all relevant languages and are well publicised, limiting accessibility for many citizens. Here are some startling statistics. As per PRS’s data from January 2022, three out of four bills introduced in Parliament bypassed any form of prior public consultation. Also, bills that were subjected to consultation, more than half (a whopping 54 per cent) did not comply with the mandated 30-day consultation period.
Best Practices: In South Africa, the constitution requires that all proposed legislation undergo a process of public engagement before being enacted. This mandatory public involvement ensures transparency and accountability in lawmaking, with any law that does not follow the prescribed consultation process being deemed unconstitutional and struck down by the courts. The emphasis is on inclusivity, allowing citizens to actively participate in shaping the laws that govern them.
Similarly, South Korea has institutionalised public participation in the legislative process by mandating that draft bills be published in advance. The draft legislation is made available for a minimum of 20 days before being introduced in the legislature, providing ample time for citizens to review and voice their opinions.
Given the limitations of the current Pre-Legislative Consultation Policy, there is an urgent need for meaningful reform to make public consultations a mandatory and legally enforced part of the legislative process. Without such changes, there is a serious risk that lawmaking will drift further away from the concerns and aspirations of ordinary citizens.
The practices being followed by South Africa and South Korea are good examples of embedding public participation into the lawmaking process. This not only makes governance more transparent but also lends greater legitimacy to the laws by ensuring they are shaped by citizens. Embracing a stronger consultation framework would give India an opportunity to breathe new life into its democratic practices and rebuild public trust.
The writer is MP and leader, All India Trinamool Congress Parliamentary Party (Rajya Sabha). Research Credit: Chahat Mangtani
Given its implications for privacy and digital governance, the delay in consulting the public on the implementation of the DPDP Act has drawn scrutiny. 
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