Judging a democratic deficit
The passage of Bills on judicial appointments in near-record time point to a flaw in law-makinglegislation without significant public consultation
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India is often chided for its culture of delay, mockingly referred to as Indian standard time. Almost all our institutions are prone to this disease, particularly courts, where cases clog the system for decades on end. And yet, when it comes to legislation, one sees an unparalleled swiftness, with Bills being peddled at the speed of lightning. In December 2008, eight Bills were passed by the Lok Sabha in less than 18 minutes!
The latest in this line of Shinkansen style of lawmaking are the two Bills relating to judicial appointments. Both made their way through the Lok Sabha and the Rajya Sabha in near-record time. As with most other laws, it met with bouquets and brickbats. While some hailed it as a significant improvement over the present collegium that selected their very own through a twisted stretch of constitutional provisions, others lambasted it as a grave threat to the independence of the judiciary.
It remains to be seen if the present framework ends up tipping the selection balance in favour of the government, acting in concert with co-opted persons of eminence. However, the paradox of it all is that while a large part of the earlier critique was directed against the non-transparent functioning of a cabal-like collegium, the present regime does little to redress this opacity. There is no statutory mandate for transparent and reasoned decision-making, such that the public would know exactly why someone was chosen at the cost of another.
I intend neither to praise the Bills nor to bury them, but to point to a cardinal flaw in the lawmaking process here—that the law was introduced in Parliament without any significant public consultation. And this despite the fact that the Bills related to one of the three key pillars that constitute the modern state—the judiciary.
The genesis of the present set of Bills can be traced to an earlier set presented before the Rajya Sabha in 2013. Since they lapsed with the dissolution of the Lok Sabha, the government reintroduced the Bills in Parliament after taking into account most suggestions of the parliamentary standing committee. However, neither the present set of Bills nor the earlier ones was ever thrown up for public deliberation prior to their introduction in Parliament.
In a country that prides itself as the world’s largest democracy, this is utterly shocking, but hardly new. One can cite numerous instances of more egregious infractions, where the public had no inkling of a new law being afoot before they read about it in the papers as having been introduced in Parliament.
Clearly, this must change. One cannot remain content with a mere representative democracy, where the public engagement begins and ends with the casting of a vote, lasting but a few seconds (not counting the wait in the queue to get to the polling booth). Rather, one needs to move to a more direct and deliberative engagement with democracy.
One way of bringing about this transition is through the fostering of public participation in law and policymaking. After all, these laws are intended to regulate the lives of the public in myriad ways and it is only fair that they have a say in it. Indeed, a number of countries including Switzerland, South Africa and the US provide for this.
As we did with the Constitution several decades ago, India must study these foreign regimes and craft a creative framework that suits its specific needs. Interestingly enough, a cabinet resolution issued in January this year mandates public disclosure of draft Bills, but leaves the issue of consultation with key stakeholders as a discretionary power in the hands of the concerned ministry.
This cabinet resolution might be the best place to start with in terms of ushering in a new era of deliberative democracy. The government should immediately make this more public, as it is conveniently hidden in one of the pages of the unsearchable ministry of law website, and solicit views to help improve it. It should then take the suggestions into account and draw up a Bill that would convert this toothless cabinet policy into an enforceable legal entitlement.
More importantly, given our alleged technology leadership, it would help to first build an easy-to-navigate digital platform for eliciting public views on any new law or policy.
Opening up lawmaking in this way is likely to have other benefits as well. For one, as with open source software and the wonderful innovation that it helped unleash, an open platform benefits from the ingenuity of multiple minds and may throw up far better ideas than a closed-door setting. The challenge, of course, is to coordinate this openness in such a way that the costs do not outweigh the benefits.
However, merely opening up the lawmaking processes to public participation is not enough. For, such openness will come to naught if the public does not avail of its participatory rights. Therefore, it is necessary to educate the public on the various nuances of law and policymaking, hold sessions with the public on the various themes that the putative law intends to tackle and build capacity from within. This could also be made mandatory under the proposed law.
Given the thumping electoral mandate bestowed on the present government, it is only fair that they empower the electorate by entitling them to participate in law and policymaking. Only then can we redress a vital democratic deficit and transcend from mere representativeness to a more direct and deliberative role for our demos.
Shamnad Basheer is a former professor of law at West Bengal National University of Juridical Sciences and founder of non-profit Promoting Public Interest Lawyering.
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