Ex Machina
Let’s redesign the process of pre-legislative consultation
A wide net cast for inputs that can assure all stakeholders a real voice is an ideal we should fully embrace
In 2012, the Organization for Economic Cooperation and Development (OECD) issued a set of 12 recommendations on policy-making practices for member and non-member nations. While the document covered a wide range of issues—from developing regulatory capacity to ensuring accountability and oversight—the recommendation that really resonated with me was the need for consultative policy-making. The OECD underscored the need for transparency in the legislative process, pointing out the importance of ensuring that lawmakers keep in mind the concerns of all affected parties. This, it said, was only possible if regulators offer the public meaningful opportunities to participate in the legislative process.
In 2014, India’s ministry of law and justice issued a policy on pre-legislative consultation. It was heartening to note that parts of this document drew on the principles set out in the OECD recommendations. For instance, the Central government was now obliged to place legislative proposals in the public domain for a period of at least 30 days before they were submitted to the Cabinet for consideration. Each such draft proposal had to be accompanied by a brief note justifying its necessity, its broad financial implications and an assessment of its impact on the environment, as also on the fundamental rights and lives and livelihoods of the people it would affect. Comments received from the public had to be summarized and placed on the website of the department or ministry concerned. These also had to be included in a note to the Cabinet along with the draft proposal.
Most legislative proposals in India do follow this practice, making it a point to set aside time for public comments. However, the consultation itself is no more than a formality today. In many instances, the time set aside for consultation is too short to be of any practical consequence, and, since the government is under no obligation to justify why a given suggestion was excluded from the final draft, stakeholders have no way to tell whether their suggestion was rejected after due consideration or simply ignored. Not only has this diminished trust in the legislative process, it is a missed opportunity to evaluate how a proposed law would affect relevant stakeholders. And how it will be perceived. If we truly want to extract value from pre-legislative consultation, we will have to redesign the process.
In the first place, rather than leading with a draft legislation, the government should simply describe the issues for which legislative solutions are being sought, along with some of the concerns that key stakeholder groups could have. This, I believe, would be more conducive to a constructive conversation among stakeholders than presenting a draft law that implies commitment to a particular legislative position.
The issues for consultation should be set out in a paper that lists a set of questions for which stakeholder responses are being requested. Care should be taken to request feedback in a structured manner—ideally through a digital interface —that allows answers to be tabulated so that differing viewpoints of various competing stakeholders can be clustered into buckets. This will make it possible for the full range of stakeholder perspectives on a given issue to be taken up and weighed. Which in turn will make it that much easier for us to arrive at a regulatory solution that balances all these varied interests while still achieving the overall regulatory objective.
The final step would be to prepare a report that lists all the suggestions received and the final decision arrived at on each issue. If a given stakeholder perspective is not accepted, the report should clearly state the reasons why those suggestions were discarded. Once this is done, a draft legislation can be prepared along the lines of the final recommendation.
If this sounds familiar, it is because many consultations are already carried out in this manner. All Telecom Regulatory Authority of India recommendations are a result of a process exactly like this, which is probably why the reports it produces are among the most highly regarded policy papers produced by any department of the government. The Justice Srikrishna Committee on data protection also used a similar playbook, eliciting inputs from the stakeholders before making recommendations. This practice needs to be more widely implemented.
But just as it is important for the government to be accommodative of stakeholder viewpoints, it is equally if not more important for stakeholders to approach such an exercise constructively. They need to realize that policy-making is an exercise in compromise and that nobody can expect to get their way every time. In fact, successful policy negotiations are those where each stakeholder comes away having left something on the table.
Unfortunately, participants often come to the process with a deep conviction in their own point of view. So much so that they take it personally if their views are not accepted; and if their disappointment is expressed in strong terms, it could discredit the whole consultative process. This is unfortunate and counter-productive. The more often this behaviour is observed, the less inclined other stakeholders are to engage seriously with them. In my view, all we need to ensure is that the process is conducted fairly and everyone’s views are duly taken into consideration and understood.
After all, as with everything in life, we win some but just as often lose some too.
Rahul Matthan is a partner at Trilegal and also has a podcast by the name Ex Machina. His Twitter handle is @matthan
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First Published:7 Jun 2022, 10:46 PM IST
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