The recent invitation for public suggestions by the 22nd Law Commission (LC) on the feasibility of the Uniform Civil Code (UCC) has raised important questions about the approach taken by the commission regarding public consultation. In a diverse country like India, it becomes crucial to examine how the public is involved in such exercises. The focus of this article is not to discuss...
The recent invitation for public suggestions by the 22nd Law Commission (LC) on the feasibility of the Uniform Civil Code (UCC) has raised important questions about the approach taken by the commission regarding public consultation. In a diverse country like India, it becomes crucial to examine how the public is involved in such exercises. The focus of this article is not to discuss the merits or demerits of the UCC itself, but rather to provide a methodological critique of the process of consultation. Many public consultations conducted by the state on policy issues lack a robust design for objectively collecting and analysing data, which undermines public confidence in these consultations.
Public participation in policy-making is of utmost importance, as it enhances transparency, efficiency, and effectiveness in the formulation of regulations. According to the Organization for Economic Cooperation and Development (OECD), public consultation, through notification, consultation, and participation, plays a vital role in achieving these goals. In the United States, the Administrative Procedure Act of 1946 grants citizens a legal right to actively participate in the rule-making processes of the federal government. Seeking public opinion in a pre-legislative state enhances the ethos of participatory democracy, adding legitimacy and credibility to legislative actions. However, the current procedure employed by the LC suffers from significant logical and methodological deficiencies.
Firstly, the public notice for consultation on the UCC lacks a clearly defined statement of purpose. While it is commendable that the LC is open to all shades of opinions, the lack of focus undermines the effectiveness of the consultation. Without a well-defined scope, the consultation may miss out on meaningful and targeted public input, leading to unproductive exchanges of opinions.
Secondly, the LC's notice fails to consider that not all citizens of India would be familiar with complex terminologies such as "common civil code," "plurality of laws," or even the concept of "social injustice." The notice lacks a supporting document that could provide basic information to help the general public understand key concepts related to the UCC, such as its constitutional value, potential implications, and relevance to personal laws. Adequate information is essential to allow the public to form informed opinions. Placing the burden of self-education on the public undermines the legitimacy of the consultation process.
Thirdly, the LC's exclusive reliance on online platforms for public opinion fails to account for the digital illiteracy of a large percentage of the Indian population. Oxfam's India Inequality Report 2022 highlights that approximately 70% of the population has poor or no access to digital services, with rural areas having significantly lower internet usage compared to urban areas. The current online-only method lacks inclusivity and diversity in representing public opinion, as it effectively excludes a substantial portion of the population and their voices. A more reasonable and rational method of public outreach is necessary to ensure effective consultation.
Fourthly, the notice does not provide a roadmap outlining how public opinion on the UCC will be considered, discussed, and deliberated. In a democratic setup, transparency and accountability are crucial. Individuals should be informed whether their ideas have been considered or ignored, as this contributes to the seriousness and sanctity of public opinion. Establishing a mechanism to keep stakeholders informed and engaged throughout the process is vital to maintain public confidence in the functioning of pre-legislative scrutiny. This includes effective communication and engagement, with feedback and appropriate responses to those who express their opinions.
There is evidence to suggest that an inclusive, diligent, and fair public consultation process can yield positive outcomes. The example of the Kerala Police Act of 2011 demonstrates how public opinions and concerns were solicited, leading to proposed amendments and extensive deliberation in the legislature. Two hundred and forty amendments, based on public feedback, were approved. Such examples emphasize the importance of realizing public consultation in both letter and spirit. For public participation to be effective, it must provide a reasonable and realistic opportunity for all concerned to express their opinions.
To achieve this, inclusive efforts must be made to reach out to the public through diverse and informal methods of consultation. Canada and Japan offer examples of effective informal consultations that shape consensus and provide valuable insights. Town hall meetings, in-depth interviews, and focused group discussions can be conducted to engage the public in a more interactive and participatory manner. Providing guidance notes and using vernacular languages can overcome language barriers and make the consultation process more accessible to a larger section of the population. Taking inspiration from the Californian legislature, provisions can be incorporated in India to allow citizens to contact their local MPs or MLAs for more clarity on the subject matter or to express their opinions in person. Additionally, establishing a toll-free hotline dedicated to addressing queries and providing clarity on the UCC would be a valuable resource. This hotline could serve as a platform for educating interested individuals and addressing their concerns, further enhancing public understanding and participation.
Moreover, the consultative process should be tailored to the specific context of each country, legitimizing it through the inclusion of all relevant interest groups and transparent procedures. As regulators, it is essential to ask whether all interested parties have been allowed to express their perspectives. Recognizing direct public participation in the law-making process as an aspect of social justice is long overdue.
Professor (Dr.) G.S. Bajpai, is the Vice Chancellor of National Law University, Delhi & Sahajveer Baweja is a Criminologist and Advocate at High Court of Rajasthan. Views are personal.