Towards A Participatory Democracy—A Case For Inclusive Public Participation In Law-Making

Abstract

Any society is governed by a set of laws. In modern democratic nations, especially nations governed by post-war constitutions, such laws are enacted by an elected legislature. The legislature is bound by the constitution itself, both in procedure and in substance. In India, such protection exists in the forms of legislative competence, fundamental rights, and other provisions of the constitution. However, India lacks a direct say of the people in the law-making process which governs the citizenry. The recent controversy in India, including the farm laws reform undertaken in 2020, highlights the need for the participation of stakeholders, experts, and the public in general in the law-making process. The Supreme Court of India has interpreted the right to participation in a limited sense and majorly in cases relating to environmental pollution. There exists a lacuna in the rights-based framework with respect to the right to participate in law-making. India has had a Pre-Legislative Consultation Policy in place since 2014 that mandates publishing the bill thirty days prior to introduction in the parliament for public comments. However, data reflects disregard of the policy by the Government. Furthermore, there is a downward trend in the number of bills being referred to parliamentary committees for scrutiny. This impacts negatively in two ways—first, leading to a lacuna in legislative drafting, and second, depriving the stakeholder and public of the opportunity to submit their comments on a bill under consideration. The extra-parliamentary avenues like the Law Commission of India, which have a significant impact on the legal framework in the country, are under a shadow. The authors argue that there is a need to incorporate a binding consultation policy ensuring public consultation in the process of law-making. This will have both an intrinsic as well as instrumental value.