Pre-Legislative Consultation: An Overview

Further, there are specific laws such as Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, The Protection of Children from Sexual Offences Act, 2012, The Transgender Persons (Protection of Rights) Act, 2019, The Protection of Women from Domestic Violence Act, 2005 catering the needs of certain groups or underprivileged individuals. Inclusion of such stakeholders prior to legislative enactment process will enable the legislators in understanding the ground realities. In enacting such legislations, the government should consider those interested persons for whom the law is enacted.

Understanding Pre-Legislative Consultation

The pre-legislative process entails consulting with interested parties and individuals about the proposed policy before a bill is drafted. Citizen consultation and deliberation not only helps legislation attains an enhanced democratic legitimacy, using a bottom-up method, but it also gives decision-makers the essential policy-related expertise they need to assure that legislations and policies will be effective once put into effect. According to the International Association for Public Participation, the principle underlying public participation in law-making is that everyone who may be impacted by a proposed law should have the opportunity to actively participate in the legislative process. Pre-legislative consultation is essential because it improves accountability and transparency in the decision-making process.

Pre-legislative consultation in general refers to consulting a set or whole of public for laws to be yet passed. This consultation is to seek the opinion of public or necessary stakeholders. For public participation, National Commission in its 2002 report to review the working of Constitution stated that the proposed legislations should undergo public discussion with professional bodies, academicians, interested persons etc.

Pre-Legislative Consultation Policy, 2014

The policy was adopted in 2014 mandating that the government should place a draft version of law in public domain prior to its enactment. The Department/Ministry concerned should publish/place in public domain the draft legislation or at least the information that may inter alia include brief justification for such legislation, essential elements of the proposed legislation, its broad financial implications, and an estimated assessment of the impact of such legislation on environment, fundamental rights, lives and livelihoods of the concerned/affected people, etc. Such details may be kept in the public domain for a minimum period of thirty days for being proactively shared with the public in such manner as may be specified by the Department/Ministry concerned.

Ministry of Corporate Affairs and its Pre-Legislative Consultation Approach

Several Ministries are responsible for administering their respective legislations. Ministry of Corporate Affairs has been such an example for taking pre-legislative consultation into consideration while framing legislation and its amendment. Recommendations of different committees are placed on MCA website. Attention of policy framers, regulatory and professional institutions is sought to such framed legislation. In context of the same, the Ministry has enacted a pre-consultation policy effective from January 01, 2024.

The phrase “be bound by such directions on questions of policy as the Central Government may give in writing to it from time to time” under section 55 of Competition Act, 2002 and section 225 of IBC, 2016 signifies that the policy framed by Ministry of Corporate Affairs, or any such ministry is advisory and not mandatory. The manner of consultation shall be mandatorily followed if it is expressly stated in the statute. Departments, divisions, and regulatory bodies so constituted under different statutes and so administered by such ministry had to comply with the policy. If there is a provision which is specifically and expressly stated in any statute regarding the manner of pre-legislative consultation, then such provision is mandatory and shall over-ride the policy of Ministry.

Paragraph 99 of Budget session speech (2023-2024) for regulating financial sector given by Hon'ble Finance and Corporate Affairs Minister read as under “To meet the needs of Amrit Kaal and to facilitate optimum regulation in the financial sector, public consultation, as necessary and feasible, will be brought to the process of regulation-making and issuing subsidiary directions.”

While pre-legislative consultation framework has been designed as a preventive strategy to outweigh the probable consequences of legislation in different aspects such as efficacy, dynamic necessity; it could also prove to be a hindrance for the government. A pre-legislative consultation if put into practice will habituative the public that a law so imposed by competent authority derives its validity from the public and, nonetheless. A requirement or a necessity of pre-legislative consultation would depend on the end outcome of proposed law. If such proposed law looks forward to addressing specific group, community, then their inclusion in public consultation mechanism would be a necessity.

The author is an Assistant Professor at School of Legal Studies, Reva University, Bengaluru. Views are personal.