Reforms are required to ensure that public debate and deliberation precede rather than merely follow legislative enactments. They may strengthen the State’s capacity to draw upon the expertise and experiences of Indian citizens, and may, ultimately, help us take a few more steps towards evolving into a robust deliberative democracy.

Tarunabh Khaitan (tarunabh@gmail.com) is at Christ Church College, University of Oxford, Oxford, UK and teaches law.

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For the founders of the Indian Constitution to constitutionalise representative democracy in the context of post-war ideological uncertainties and in the face of doubts over the political wisdom of India’s illiterate poor was audacious. While ideological uncertainties continue to exist in some quarters, the founding faith in the political wisdom of Indians, on the whole, stands vindicated. For all its aspirational foresight, however, a constitution must always be seen as providing a minimum threshold – a floor – over which successive generations must build, rather than as an upper limit – or a ceiling – for our progressively evolving political aspirations. Representative democracy, entitling citizens to choose their representatives to make decisions on their behalf every five years, may have been audacious in 1950; but it is thoroughly insufficient in 2010. Mind you, I do not doubt its importance or continued relevance for a moment. It is, however, the proverbial floor, and to build on it has been long overdue.

It is in this context that we must recognise the increasing academic, political and even judicial interest in deliberative democracy, essentially a system of political decision-making that relies on public deliberation to make policy. It is worth noting that “deliberation” is a step beyond

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(RTI) 2005 was an important, if small, first step towards our evolution from a representative to deliberative democracy.

Intrinsically Good

Deliberative democracy based on public reasons is good intrinsically as well as instrumentally. Its intrinsic good lies in the fact that participants are treated as free and equal, that they have the right to have a say in decisions that affect them, and that they are shown respect by being offered reasons acceptable to them by other participants. It is good instrumentally because participation and deliberation lead to better decisions, while, laws passed s ecretively and hurriedly tend to be bad laws.1 Often, governments use the opaque process to hurry through laws they know will be unpopular.2 The text of the Prevention of Torture Bill was kept secret until it was introduced in the Lok Sabha, which passed it in the budget session in 2010 after a brief debate late in the evening (in which not a single member of Parliament from the main opposition parties participated). Instead of providing a comprehensive mechanism for dealing with torture in India, not only does it fall way short of its stated objective of enforcing international obligations under the Convention Against Torture, it effectively establishes an impunity regime for public servants a ccused of torture.3 It was only after civil society made representations to some members of the Rajya Sabha that the latter referred the bill to a select committee, whose report has recommended extensive amendments to the shoddy initial draft.4 Getting it right the first time around would have been so much better.

Sometimes we end up with unpopular laws even if the government’s intentions are benign. Acts made without consultation often meet strong protests by groups who are affected by it after they have been duly passed by Parliament. The Code of Criminal Procedure (Amendment) Bill,

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2008 was one of the eight bills that the Lok Sabha passed in a matter of a few minutes in December 2009. Even though the content of the Act was, on the whole, benign, it ran into deep trouble with the lawyers’ associations for a variety of reasons.5 The government exercised its veto over the duly enacted parliamentary Act by refusing to bring it into force and returning to Parliament to meet some of the objections. One cannot blame the lawyers for protesting after the law was enacted, for it is only at this stage that they become aware of its provisions. If they had been consulted while the law was being formulated, resort to the exercise of a de f acto veto by the executive would have been unnecessary.6

All of the above examples are instances where the lack of deliberation was made up for by subsequent (legitimate and illegitimate) interventions. In most cases, poorly deliberated laws manage to make their way into the statute books and continue to blight our lives for decades thereafter. This problem arises because our lawmaking processes and institutions suffer from two major drawbacks:

From the limited data available with respect to state legislatures, C V Madhukar of the PRS claims that they tend to fare worse than the national Parliament on all aspects of deliberation.9 While the time devoted to legislative business by our legislatures is worrying, there are other features of their institutional design which make deliberation difficult. Although standing as well as ad hoc parliamentary committees often do good legislative work, they usually take up detailed consideration of bills only after these bills have been specifically referred to them for scrutiny.10 Not all bills are automatically scrutinised by these committees: extremely significant and controversial legislation like the Special Economic Zones Act, for example, was not sent to a parliamentary committee before its passage. Standing committees that perform legislative functions are a relatively recent innovation in India and the overall verdict on their role in scrutinising legislation must be reserved. Ad hoc committees, however, are dissolved after they have scrutinised the assigned bill, and thereby fail to generate any institutional memory or capacity. In any case, committee proceedings themselves remain opaque, making an evaluation of their performance difficult. Furthermore, there is no constitutional requirement for legislative involvement in India’s accession to international law i nstruments. Finally, paragraph 2(1)(b) of the 10th Schedule of the Constitution takes away an MP’s freedom to vote freely, thereby ensuring that MPs primarily represent their political parties rather than their constituents.11 Many of these concerns have been well documented in our public discourse.

Absence of Mechanisms

It is the second drawback – the absence of mechanisms to enable civil society to deliberate over laws before they reach and are passed by legislatures – which has received relatively less attention. Lawmaking in I ndia is a process shrouded in mystery. A typical bill is drafted in secret by the concerned government ministry (sometimes in consultation with other ministries), and this secret draft is approved by the cabinet for introduction before a house of Parliament (or the state legislature, as the case may be).12 Usually, it is only upon its introduction in the house that the contents of the bill are made public.

The legislative process, as it currently stands, does not even require informing the people of the content of putative laws until the very last minute, let alone consulting them. Making the contents of draft bills public rests on the magnanimity of the ministry concerned; this despite the legal duty under section 4(1)(c) of the Right to Information Act to “publish all relevant facts while formulating important policies

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or announcing the decisions which affect public” (emphasis added).

It is the content of this precise duty which was in question before the Central Information Commission in two important cases. At first glance, it seems obvious that draft bills fall within the purview of s 4(1)(c). Thus, in the case of Venkatesh Nayak vs Chief Secretary, Government of Delhi,13 the commission directed the respondent government

to develop a credible mechanism in all departments for proactive and timely disclosure of draft legislations/policies and amendments thereto or to existing laws/policies in the public domain, as required under Section 4(1)(c) of the RTI Act, during the process of their formulation and before finalisation.

It may be noted that the commission made this “direction” using the recommendatory powers available to it under section 25(3)(g)14 read with section 25(5)15 of the RTI Act. It is submitted that in order to implement the proactive publication duty under section 4 of the Act, the commission should have used its mandatory power under section 19(8)(a)(iii) of the Act instead. Under this provision, the central or state information commission has the power to

require the public authority to take any such steps as may be necessary to secure compliance with the provisions of this Act, including – ...by publishing certain information or categories of information.

It remains to be seen whether the government of Delhi treats this order under section 25 of the Act as a direction or a recommendation. Even if it was a direction, this case was addressed only to the government of Delhi, and it is quite unlikely that it will be voluntarily followed by other governments of other states.

The issue came up again before the commission in Venkatesh Nayak vs Department of Personnel and Training.16 In this case, the commission considered the defence that section 8(1)(i) of the RTI Act exempts “cabinet papers including records of deliberations of the Council of Ministers, Secretaries and their officers” from disclosure. Since all draft bills need the approval of the cabinet before they can be placed before the legislature, this provision posed an apparent hurdle to their public disclosure. The CIC held that exemption under section 8(1)(i) would not apply to deliberations leading to the formulation of a policy framework until such time as the draft was submitted by the relevant ministry to the cabinet secretariat. Thus when a cabinet note is finally approved for submission to the cabinet through the cabinet secretariat, section 8(1)(i) will apply. In addition, section 8(1)(c) exempts all information “the disclosure of which would cause a breach of privilege of Parliament or the State Legislature”. No one is quite sure what the scope of legislative privilege in India really is, but it seems that once approved by the cabinet for placing before the legislature, section 8(1)(c) will exempt the draft bill from disclosure under the RTI Act. Such bills will therefore become available to the public only after they are actually introduced in a house of the legislature.

The upshot of these decisions is that during the period between its submission to the cabinet secretariat and its introduction in a house of a legislature, a draft bill cannot be made public under the RTI Act. To put these hurdles in perspective, it is worth noting that they relate merely to accessing information, which is but the first stage in a meaningfully deliberative lawmaking process. Even this much, at the moment, appears to be a distant dream.

What we have, therefore, is an absence of participation of the demos in the lawmaking process, and increasingly non- deliberative, if representative, bodies entrusted with the task of lawmaking. It is with some urgency, therefore, that we must attend to the need to further democratise lawmaking in India. It was with this urgency in mind that the National Campaign for the People’s Right to Information commissioned a report from the Oxford Pro Bono Publico to understand how other democracies have dealt with the problem of democratic deficit in the pre-legislative process. The report was written by Oxford graduate students from India, South Africa and Switzerland under my supervision.17

Survey of Institutions Elsewhere

The students surveyed jurisdictions as diverse as international law, South Africa, Canada, the United Kingdom, the United States, Switzerland, and the European Union to find processes that facilitated public participation in lawmaking and made several suggestions in light of their insights from comparative law. Their suggestions included provision for a strong constitutional foundation for public participation in the pre-legislative process in line with the robust South African constitution. Chastened by the mistakes made elsewhere, they warn against agency capture of any pre-legislative process by elite groups with disproportionate influence. Some of their key suggestions are contained in the following paragraph:

The best ways of facilitating public participation are through publication and consultation. All instruments, at each stage (draft and final) must be published in the Official Gazette, which should be available in the paper form and electronically, ideally free of charge.18 Important legislative measures should be preceded by Green and White papers. Consultations ought to be decentralised....If the legislation is particularly complex, explanatory notes should supplement the bare text. Reasonable time frames ought to be set. It is also important for the government to explain the reasons for its final act/rule/decision, by responding to ‘key’ or ‘major’ criticisms and providing explanations for the rejection of ‘significant’ plausible alternatives (ibid: 69).

Admittedly, comparative law has its limitations. These suggestions have been presented not as prescriptions but with a view to present alternatives and open up the debate in India. At any rate, the process of reforming the pre-legislative process must itself be public and consultative. Furthermore, any proposals have to be considered alongside the need to reform the legislative process itself to improve deliberation by legislators.

It will also be necessary to ensure that the requirements of deliberation do not make enactment of legislation too difficult. Deliberation is important, but a democracy also requires final authorisation of decisions within reasonable time. Creative solutions, such as a requirement that a legislature cannot be prorogued until it has dealt with (i e, accepted, rejected or deferred for further consideration) government’s legislative agenda for a session, or providing for a minimum number of days every year when legislatures must conduct effective business must be considered

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alongside these recommendations. It will also be necessary to make provisions for doing away with the deliberative process in exceptional circumstances when time is of essence. When urgent legislation is necessary, some of the consultative (but not publication) requirements may, for example, be waived by the legislature through a resolution to that effect, before it can take up the urgent bill for consideration. Legislation passed without pre-legislative consultation may be brought before the legislature for a mandatory review after a specified time-limit.

These or other reforms may ensure that public debate precedes rather than (merely) follows legislative enactments. They may strengthen the state’s capacity to draw upon the expertise and experiences of Indian citizens. They may, ultimately, help us take a few more steps towards evolving into a robust deliberative democracy.

Notes

1 See Cohen and Sabel (1997:313). Generally this view was also echoed by the Select Committee on Modernisation of the House of Commons in the United Kingdom thus: “There is almost universal agreement that pre-legislative scrutiny is right in principle, subject to the circumstances and nature of the legislation. It provides an opportunity for the House as a whole, for individual backbenchers, and for the Opposition to have a real input into the form of the actual legislation which subsequently emerges, not least because ministers are likely to be far more receptive to suggestions for change before the Bill is actually published. It opens Parliament up to those outside affected by legislation. At the same time such pre-legislative scrutiny can be of real benefit to the government. It could, and indeed should, lead to less time being needed at later stages of the legislative process... Above all, it should lead to better legislation and less likelihood of subsequent amending legislation”. Select Committee on Modernisation of the House of Commons, “First Report: The Legislative Process”, 23 July 1997, HC 190 1997-98, para 20 (available at

http://www.publications.parliament.uk/pa/cm 199798/cmselect/cmmodern/190i/md0102.htm).

2 See, for example, Siddharth Varadarajan, “This Is No Way To Write a Law”, The Hindu, 25 August 2010 (available at http://hindu.com/2010/08/25/ stories/2010082553621200.htm).

3 See generally, Tarunabh Khaitan, “A Bill Designed to Fail”, The Hindu, 19 May 2010 (available at http://www.thehindu.com/opinion/op-ed/article433182.ece).

4 Report of the Select Committee on the Prevention of Torture Bill, 2010, Rajya Sabha, 6 December 2010 (available at http://prsindia.org/uploads/ media/Torture/Select%20Committee%20Report %20Prevention%20of%20Torture%20Bill%20 2010.pdf).

5 See generally, Tarunabh Khaitan, “Arresting Facts”, 17 January 2010, The Indian Express (available at http://www.indianexpress.com/news/arresting-facts/411767/0).

6 Currently, Parliament routinely vests in the executive government the power to bring any Act into force on a day it may deem fit. There are a numerous enactments, including section 3 of the 44th Constitution (Amendment) Act 1978, which are still to be brought into force after decades of being enacted. Data compiled by PRS Legislative Research indicates that of the 497 central acts passed by Parliament between 1995 and 2008, as many as 190 left the enforcement of the Act to the discretion of the government. Of these 190 Acts, 5% were not brought into force in their entirety, while a further 9% were only partially enforced at the time of the study! “Commencement of Central Acts (1995-2008)”, 3 February 2010. PRS Legislative Research (available at http:// www.prsindia.org/administrator/uploads/ general/ 1265278737~~NOTIFICATION%20 NOTE-complete.pdf).

Such frequent exercise of this veto has very serious consequences for our scheme of separation of powers. This executive usurpation of legislative role is especially problematic in a context where a combination of the Westminster model, anti- defection laws, power to promulgate ordinances and coalition politics have already resulted in remarkably weak legislatures. While the discourse on the judicial usurpation of legislative power in India is a familiar one, the gradual empowerment of the executive at the cost of the legislature is not a story told often enough.

7 Data provided by PRS Legislative Research, available at http://www.prsindia.org/index.php?name =Sections&id=5&parent_category=&category= 60&action=bill_details&bill_id=989

8 In the monsoon session of the Lok Sabha in 2010, the Indian Medical Council Bill was passed without any discussion, prompting a novel protest from the opposition parties. See, “When Lalu Became Prime Minister”, The Indian Express, 20 August 2010 (available at http://www.indianexpress.com/news/ when-lalu-became-prime-minister/662888/0 ).

9 C V Madhukar, “Bad Housekeeping”, The Indian Express, 18 December 2010 (available at http:// www.indianexpress.com/news/bad-housekeeping/726359/)

10 It may be noted that most standing committees that perform legislative functions in India are departmentally-related, i e, their work is organised on the basis of subject matter (such as defence, labour or railways). It may be useful to also have standing committees that scrutinise legislation on the basis of whether it satisfies certain objective constitutional, human rights or other standards, whatever the subject matter. Examples of such committees include the Joint Committee on Human Rights and the House of Lords’ Constitution Committee in the United Kingdom.

11 Constitution of India, 10th Schedule, section 2. Disqualification on ground of defection – Subject to the provisions of paragraphs 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House

– ...if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within 15 days from the date of such voting or abstention.

12 Even the main opposition parties are rarely consulted during the drafting process. See, Suman Jha, “Government Not Keeping Opposition on Board”, The Indian Express, 15 April 2010 (available at http://www.indianexpress.com/ news/govt-not-keeping-oppn-on-board-complains-bjp/606522/0 ).

13 Decision no CIC/SG/C/2010/000345+000400/ 8440, decided on 7 July 2010 (available at http:// indiankanoon.org/doc/622425/).

14 This provision allows Information Commissions to make “recommendations for reform, including recommendations in respect of the particular public authorities, for the development, improvement, modernisation, reform or amendment to this Act or other legislation or common law or any other matter relevant for operationalising the right to access information.”

15 This provision states that “If it appears to the Central Information Commission or State Information Commission, as the case may be, that the practice of a public authority in relation to the exercise of its functions under this Act does not conform with the provisions or spirit of this Act, it may give to the authority a recommendation specifying the steps which ought in its opinion to be taken for promoting such conformity.”

16 Complaint no CIC/WB/C/2010/000120, decided on 30 August 2010 (available at http://www.indiankanoon.org/doc/93879/).

17 See “A Comparative Survey of Procedures for Public Participation in the Lawmaking Process: Report for the National Campaign for People’s Right to Information”, April 2011, available at http:// denning.law.ox.ac.uk/news/events_files/A_Comparative_Survey_of_Public_Participation_in_the_ Legislative_Process.pdf

18 Copies of the Official Gazette, which contains all official notifications from government, are currently available only on payment of a fee! See, http://egazette.nic.in/

Reference

Cohen, J and C Sabel (1997): “Directly-Deliberative Polyarchy”, European Law Journal, 3(4).

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