A case for transparency in lawmaking

"Public consultations" have been only for public consumption so far

danish

Danish Raza | December 27, 2010



Last week, the department of personal and training (DoPT) found itself in a strange situation. It received more than 13,000 emails in response to the proposed RTI rules. The huge chunk of emails sent its server for a toss. The department was flooded with phone calls from all over the country with people telling the officials that the emails they had sent had bounced back. It had to rope in technical experts to solve the problem.

Now, whether or not DoPT will scrutinise each and every comment is anybody’s guess.

In September, the cabinet approved the national identification authority of India bill. This was preceded by several rounds of consultations with civil society organisations, stakeholders and ministries, names of which are available on the UIDAI website.

What were the suggestions given in these meetings? What was the response of UIDAI to them? How serious is the UIDAI on considering these suggestions? We don’t know.

In May, the national green tribunal bill which intends to set up special environment courts across the country was passed in parliament. The environment and forest ministry held three consultations on the bill with NGOs, minutes of which are not in public domain. There was no public debate.

The way the government held consultations while drafting the direct tax code bill is considered by the civil society as one of the best methods to go about making a law. But here too, we don’t know what transpired in the consultation and how many of the suggestions actually found their way in the act.

These are some examples which show that public participation is far from reality when it comes to formulating laws in the country. As Aruna Roy, member of the national advisory council, puts it, “laws are made in an era of exclusivity, if not secrecy.”

Yes, we have the provision of parliamentary standing committees which hold deliberations on laws and is supposed to be reflective of the views of the stakeholders (read "a pre-decided lot").

Yes, the government is opening up and the civil society has been able to push the envelope by convincing the government to consult it while making laws or tinkering with them.

Yes, things are moving.

But, how about public participation in the real sense? How about telling them the ‘what’ and ‘why’ of a given law? How about informing them that this is how an upcoming law will affect their daily lives? 

A meeting conducted by the national campaign for people’s right to information held in Delhi last week, discussed how to make the legislative process more participatory. The gathering included former central information commission chief Wajahat Habibullah, retired chief justice A P Shah, environmentalists, former bureaucrats, NCPRI members and Aruna Roy.

This was the first in a series of meetings to form a draft paper on pre-legislative consultation process. More meetings will follow in the coming months after which the group will submit a paper to the government.

Though the attendees had differing views on how to approach the law-making process, the brainstorming session threw up many workable solutions. Here are some of them:

* There is a need to link existing institutions such as the national commissions on human rights, minorities and women with the proposed consultative process so as to avoid duplication.

* We should focus not just on disclosures and opening for giving inputs, but also on mandatory deliberations that ensure that these inputs get due attention.

* There is a need to pay attention to subsidiary legislation and the rule framing at the level of the states, for that is where much of the tinkering takes place.

* Certain kinds of legislations should be referred to the local bodies set up under the 73rd and 74th amendments.

* There should be a provision for referendum for a certain types of legislation keeping in mind the social realities that define the day-to-day lives of a diverse population like that of India.

* All such legislations need to be supplemented by some changes in the existing legislative process, like sharing more information with the MPs, adding research capacity of the MPs and MLAs, expanded time period and improved mechanism for receiving public feedback, reducing the tendency to bypass committees and ending procedural adhocism.

About giving effects to these proposals, there were three broad suggestions:

1. Improving existing rules and procedures such as Parliamentary Rules of Business, greater recourse to 'Notes on Clauses', amendments in circular from the cabinet secretariat etc.

2. Strengthening of the RTI Act, 2005.

3. Perhaps even consider drafting a separate law that brings together all such provisions.

All in all, there was a general agreement that the absence of any secure and robust mechanisms of pre-legislative consultation is one of the weaker links of our political and policy process that requires to be redressed.

Anybody listening?
 

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