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Law-Making by and for the People: A Case for Pre-legislative Processes in

India

Article  in  Statute Law Review · July 2020

DOI: 10.1093/slr/hmz005

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Law-Making by and for the People:
A Case for Pre-legislative Processes in
India
Dipika Jain*

A B ST R A CT
Recent legislative trends in India reflect the need for a mandatory pre-legislative process.
Pre-legislative consultation affords the benefit of legitimacy to laws arrived at through
citizen participation. Furthermore, it informs decision-makers of the lived experiences
of those most likely impacted by the legislation. Laws that receive pre-legislative consult-
ation are attuned to realities, which increases the likelihood of their effectiveness. This
article explores how several of India’s recent laws that received pre-legislative consult-
ation have been rendered more robust and effective than others. As exemplified by cur-
rent protests by transgender, intersex and gender non-conforming people in India, the
Government’s most recent Transgender Bill, which neglected pre-legislative deliberation
process, fails the people it purports to protect. As explored in this article, the Bill fails to
uphold constitutionally protected principles, as recognized in the recent Supreme Court
case that upheld transgender persons’ fundamental rights. As such, the Transgender Bill
reflects a need to engage with the intrinsic and instrumental value of pre-legislative con-
sultation and deliberation in India. In locating transnational trends towards employing
such a process, this article argues that India would greatly benefit from mandatory pre-
legislative consultation and deliberation. By creating a process that allows for citizen par-
ticipation in law-making, particularly when such laws impact marginalized communities,
legislation would reflect societal needs and eschew a top-down, majoritarian approach.

1.  I N T RO D U CT I O N
Dialogue and deliberation form the fulcrum of the democratic process, and law-making
ought to reflect these foundational democratic principles to create effective, collabora-
tive, and representative legislations. The aim of this article is to build a case for introducing
a mandatory pre-legislative process in India, through intensive consultations with
*
Professor of Law and Executive Director of the Centre for Health Law, Ethics and Technology (CHLET) at the Jindal Global
Law School (India). I would like to thank Yashraj Singh Deora and Rehan Abeyratne for their excellent comments on the
initial drafts. I would like to acknowledge the excellent research and editorial assistance of Kavya Kartik. I am also thankful to
Kimberly Rhoten, Vandita Khanna, Tyler McKenna, Justin Jos, Didon Misri, Pankhuri Malhotra, Shayani Sarkar and Gauri
Pillai for their research assistance at different phases. I am grateful to Prof. Rohe Mathias and the Erlangen Centre for Islam &
Law in Europe, Germany, for giving me the opportunity to spend some time at the Centre. I was able to work on this article
during this time. Finally, my gratitude to Mr. Greenberg, Angel and the editors and blind reviewers of Statue Law Review for
their assistance on making this paper read much better, and Dr. C. Rajkumar for all the institutional support.

© The Author(s) 2019. Published by Oxford University Press. All rights reserved.
For permissions, please e-mail: [email protected].

• 1
Page 2 of 18  •  Law-Making by and for the People

important stakeholders. The first section of the article provides the context to recognize
the need for community participation at the pre-legislative stage. To show that such a

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process is not only practical but easily implementable, the second section of the article
explores how other countries have approached this, including South Africa, Scotland,
and the United Kingdom. Furthermore, it examines a few recent examples from these
countries, indicating the increased benefits to using pre-legislative processes. In the
third section, the article explores India’s recent legislations that were greatly improved
by employing such a legislative process and contrasts them with other laws that were
not given an opportunity for pre-legislative review, consultation, or deliberation. The
article then addresses the need for deliberation as an integral part of the pre-legislative
process, by analysing the eruption of protests by transgender people in light of recent
legislation—indicating a failure in law-making. Last, based on the examples explored
throughout, this article urges that India concretely consider a pre-legislative process
that includes deliberation and not merely a consultative process; one that requires the
Government to either incorporate community responses or respond with explanations
to the suggestions that were not included.
In its various manifestations across the world, pre-legislative consultation has sought
to increase the effectiveness and legitimacy of laws and policies. The pre-legislative pro-
cess involves holding consultations with interested groups and persons on the proposed
policy, before a bill is drafted. Not only does consulting and deliberating with citizens
help bring greater democratic legitimacy to laws through a bottom-up approach; it also
provides decision-makers with much-needed policy-related expertise in order to ensure
that laws and policies will be effective once implemented. The lack of such public con-
sultation and participation in legislative formulation in India has led to several poorly
drafted laws. These laws are often met with strong opposition by affected groups, who
criticize them for failing to adequately account for their needs and interests.
Law-making processes in a democracy derive legitimacy from the assumption of
genuine democratic assent and that the law reflects the will of the people.1 In repre-
sentative democratic models, this assent is typically assumed based on the governed
citizens’ ability to choose political representatives, who then make legislative decisions.
However, legislative processes should include a more proximal reflection of commu-
nity needs than merely their ability to elect an official to address their concerns. The
International Association for Public Participation states that public participation in
law-making is grounded on the rationale that those affected by a potential law ought
to have the right to be actively involved in the legislative process.2 Pre-legislative scru-
tiny is valuable in that it enhances transparency and accountability in decision-making.3
Furthermore, it cultivates a strong nexus between the representatives and the repre-
sented, introduces a collaborative and democratic process of incorporating social

1
The question of legitimacy has long been controversial. Locke first proposed the social contract theory and individual con-
sent to political authority as the primary source of legitimacy. Habermas argues that the legitimacy of democratic decisions
will depend on people’s participation in the processes of deliberative democracy. Only through this kind of decision-making
can laws and policies be produced that everyone has reason to endorse and comply with. J Habermas Moral Consciousness
and Communicative Action (MIT Press Cambridge 1990).
2
International Association for Public Participation ‘Core Values’ <https://www.iap2.org/page/corevalues>.
3
S Dhawan and J Sebastian ‘Governments Must Be Held to Account’ The Hindu Business Line <https://www.
thehindubusinessline.com/opinion/governments-must-be-held-to-account/article9557590.ece>.
 Law-Making by and for the People  •  Page 3 of 18

realities into legislative processes, and builds firm foundations for an informed govern-
ment that is responsive to contemporary legal and social issues.

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In order to have meaningful laws, the content of these laws ought to be arrived at
by the people through processes of community consultation, feedback, cross-sectoral
negotiation, and consensus. Democratic governance gains legitimacy and credibility
when laws on the books are responsive to the lived experiences and technical expertise
of all stakeholders. The incorporation of consultation and deliberation ensures that
the law or policy is an outcome acceptable to the broadest range of interests and is
in accordance with public priorities and values, which not only furthers the goals of
legalism, but also cultivates a stronger faith in the effectiveness and durability of the
democratic model.4 Carolyn and Simon Evans argue that citizen participation can also
give effect to human rights:

In established democratic States, legislatures perform several distinct functions.

They are representative bodies providing a mechanism by which citizens partici-
pate in public affairs and government; they are forums in which governments can
be held accountable for their conduct; and they are (more or less) deliberative
law-making bodies. In discharging each of these functions they can affect the en-
joyment of human rights.5

Therefore, we see that incorporation of wider public opinion through a transparent

pre-legislative procedure is critically significant for a modern democratic government.6
Thus, legitimacy is the pre-eminent theoretical explanation for requiring pre-legislative
consultation.7 Legitimacy flows from the following additional factors: (i) efficiency:
consultation ensures that obstacles to the policy are identified at an early stage and are
addressed, leading to greater understanding and implementation; (ii) expertise: relying
on expertise of stakeholders outside the government enhances credibility of the policy,
particularly when it involves technical aspects; (iii) elicitation of values from the public:
the policy will thus be in accordance with public priorities and values; and (iv) nego-
tiated consensus: negotiations between the stakeholders and the government to en-
sure that the final outcome is one which is most acceptable to the broadest range of
interests.8
Some critics of consultation argue that this process is time consuming, particularly
when the government is required to take legislative action immediately.9 It is also ar-
gued that public opinion is sought when the Bill is placed before their elected repre-
sentatives, and therefore, the absence of the consultation process does not imply that

4
C Karpowitz et al. ‘Deliberative Democracy and Inequality: Two Cheers for Enclave Deliberation among the Disempowered’
(2009) 37 Politics and Society 576.
5
C Evans and S Evans ‘Evaluating the Human Rights Performance of Legislatures’ (2006) 6 Human Rights Law Review
545, 548.
6
PKP Shreyaskar RTI Act in India: Futures and Implications (India: McGraw Hill, 2013).
7
Stuart Bell and Laurence Etherington ‘The Role of Consultation in Making Environmental Policy and Law’ (1999) 8
Nottingham Law Journal p. 51.
8
Ibid.
9
PP Biribonwoha ‘Efficiency of Legislative Process in Uganda’ (2005) 7 European Journal of Law Reform 142; K Patchett
‘Preparation, Drafting and Management of Legislative Projects’ (a paper presented at the Workshop on the Development of
Legislative Drafting for Arab Parliaments) (Beirut 2003).
Page 4 of 18  •  Law-Making by and for the People

public consensus is not taken into account.10 Consultation is also regarded as an ex-
pensive exercise.11 Despite these arguments, public participation in the legislative pro-

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cess is invaluable and important for successfully incorporating community and civil
society’s opinion in draft legislations. Some academics have also noted that ‘the poor
and the vulnerable have suffered systematically because of legislations passed without
public participation in the process of shaping it’.12 Some have also argued that public
participation is a three consecutive step process involving stakeholders, experts, and
citizens, with everyone giving their best.13 Stakeholders highlight genuine concerns
and develop ‘evaluative criteria’ as their interests are involved.14 Experts share their
deep understanding of the issue and provide ‘functional relationships between options
and impacts’.15 Citizens are the future benefactors or losers of any proposed legislation
and are, therefore, often the ‘best judge’ to understand and weigh the consequences.16
Furthermore, given the problems that arise from poorly designed policies, governments
find consultations, deliberations, and other forms of government–citizen relations
worth the investment: their absence often entails higher costs through policy failure
in the short term, and loss of trust in and legitimacy of government in the long term.17

2.  P R E -L E G I S L AT I V E P RO C E S S I N   I N D I A
India does not have a legislative mandate requiring pre-legislative consultation. The
Manual of Parliamentary Procedures states that any legislative proposal must be for-
mulated ‘in consultation with all the interests and authorities concerned essentially
from administrative and financial points of view’ but makes no mention of public de-
liberation.18 Currently, a Bill drafted by one of the ministries is sent to other ministries
for consultation. Once comments have been received and reviewed, it is sent to the
Law Ministry for finalization. The draft bill is then sent to the Cabinet for approval
and finally introduced in either house of the Parliament, except for money bills which
are exclusively introduced in the Lok Sabha (Lower House). After the bill is intro-
duced in Parliament, it may be sent for reference to the Department Related Standing
Committee (DRSC) by either the Chairman of the Rajya Sabha (Upper House) or
the Speaker of Lok Sabha; this is not mandatory.19 The DRSC creates a detailed report
within three months, which constitutes persuasive advice.20

10
M Zander The Law-Making Process (Cambridge University Press Cambridge 2004) 8.
11
Biribonwoha, above n 9 at 143.
12
Shreyaskar, above n 6 at 123.
13
O Renn, T Webler, H Rakel, P Dienel and B Johnson ‘Public Participation in Decision Making: A Three-Step Procedure’
(1993) 26 Pol Sci 189–214.
14
Ibid.
15
Ibid.
16
Ibid.
17
OECD Handbook Citizens as Partners (OECD Publications 2001)  <https://www.internationalbudget.org/wp-content/­
uploads/Citizens-as-Partners-OECD-Handbook.pdf>.
18
Ministry of Parliamentary Affairs Manual of Parliamentary Procedures in the Government of India (New Delhi: Ministry of
Parliamentary Affairs, 2004).
19
Devika ‘FAQs on the Lok Pal Bill Standing Committee’ (PRS Legislative Research) <https://www.prsindia.org/theprsblog/
faqs-lok-pal-bill-standing-committee>.
20
Rule 277, Rules relating to the Department-Related Parliamentary Standing Committees (Extracts from the Rules of
Procedure and Conduct of Business in the Council of States) 2013.
 Law-Making by and for the People  •  Page 5 of 18

However, the Ministry of Law and Justice (MOJ) has taken steps towards
establishing a pre-legislative process; albeit, one that does not mandate consultation

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or deliberation. An executive circular issued by the MOJ in 2014 states that all depart-
ments and ministries must place any draft legislation in the public domain, including
the internet, and take steps to ensure wide publicity to reach potential stakeholders.21
Specifically, the circular dictates that every department/ministry must actively publish
the proposed legislations on the internet and through other means so that such legisla-
tion is widely disseminated. Of significance is the fact that the circular requires that the
department or ministry ensure that, when such legislation would affect a specific group
of individuals, the draft legislation should be disclosed in a manner that gives it wide
publicity to ensure that it reaches the concerned group. Furthermore, the circular notes
that the department or ministry may wish to hold a consultation with key stakeholders,
depending on the ‘nature of the subject and the potential impact on those who will be
affected by such legislation’. While this is indeed a step in the right direction, the MOJ
circular suffers from two significant failures: (i) consultation is not mandatory and (ii)
the Government is not required to deliberate on the feedback presented in public con-
sultations. In other words, the Government is not beholden to weighing any of the feed-
back received in non-mandatory consultations. It could, in fact, ignore the entirety of
information received from affected communities.
To understand the importance of consultations and deliberation, it is imperative to
study the processes of law-making in other jurisdictions.

3.  P R E -L E G I S L AT I V E P RO C E S S E S A RO U N D T H E   G LO B E
Countries such as South Africa, Australia, Ireland, and the United Kingdom have strong
pre-legislative consultative processes.
For example, South Africa has a constitutional provision for pre-legislative scru-
tiny of bills, wherein sections 59(1) and 79(1) mandate the National Assembly and
National Council of Provinces (lower and upper house of Parliament respectively) to
facilitate public involvement in the legislative process and conduct their business in an
open manner.22 In 2006, the Constitutional Court of South Africa struck down two le-
gislations related to abortion and traditional health practices, stating that the National
Council had failed to fulfil its obligation of facilitating public participation.23 The Court
held that adequate consultation is especially crucial in ‘contexts where the affected
groups have been previously discriminated against, marginalized, silenced, received no
recognition, and have an interest in laws that will directly impact them’.24 The legisla-
tive process in Australia also involves a mandatory publication of the draft bill on the
Parliament’s website for the public to read and give comments on.25

21
Ministry of Law and Justice, Legislative Department ‘Decisions Taken in the Meeting of the Committee of Secretaries
(CoS) Held on 10th January, 2014 under the Chairmanship of Cabinet Secretary on the Pre-legislative Consultation Policy
(PLCP)’ D.O. No. 11 (35)/2013-L.I (5 February 2014).
22
South African Constitution 1996, section 59(1) for National Assembly.
23
Doctors for Life International v. Speaker of the National Assembly, et al. [2006] ZACC 11.
24
KS Czapanskiy and R Manjoo ‘The Right of Public Participation in the Law-Making Process and the Role of Legislature in
the Promotion of this Right’ (2008) 19 Duke Journal of Comparative and International Law, 1–40.
25
Parliament of Australia ‘Making Laws’ <https://www.aph.gov.au/About_Parliament/House_of_Representatives/
Powers_practice_and_procedure/00_-_Infosheets/Infosheet_7_-_Making_laws>.
Page 6 of 18  •  Law-Making by and for the People

In the United Kingdom, in the case of R (Greenpeace Ltd) v. Secretary of State for
Trade and Industry,26 the High Court termed the government’s failure to conduct

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‘fullest public consultation’ as a serious flaw, noting that it deprived the stakeholders
of a chance to give their ‘intelligent response’. The United Kingdom is also currently
in the process of holding wide public consultations to reform the Gender Recognition
Act.27 Similarly, Ireland has held pre-legislative consultations prior to developing new
policies or laws. For example, the Department of Communications, Energy and Natural
Resources (DCENR) published a Green Paper in 2014 setting out the main develop-
ments in the Irish and global energy landscape.28 It was meant to stimulate discussion
‘between citizens, policymakers, businesses and other stakeholders on such a vision
for Irish energy policy, through written submissions and a number of seminars held
across Ireland’. The government envisioned a strong public consultation process that
would contribute to the development of an Energy Policy for Ireland. In 2015, the
DCENR launched a comprehensive new policy, setting out goals for a transition into a
low-carbon future by 2030.29
The Scottish Parliament has an even stricter requirement—before a proposal be-
comes a bill, individuals and interest groups must be consulted. The consultation
process is meant to be open and transparent, to prevent the government from being
selective about which groups have an opportunity to review the proposal. Once the
comments are received, the outcome of the consultation must be attached as a memo-
randum to the draft bill, which is open to opposition from the public.30 The passage
of the Land Reform (Scotland) Act 2016 is worth mentioning here. In 2012, the
government commissioned a review of land reforms in Scotland, gathering evidence
from several communities, organizations, and individuals.31 The Review Group then
published its report, and consultations were held between 2014 and 2015 on the pro-
posed legislation. Meanwhile, Parliament passed the Community Empowerment Act
in 2015, making several changes to community land rights. This Act can be traced
back to the Scottish Government’s Community Empowerment Action Plan of 2009,
which described a ‘process where people work together to make change happen in
their communities by having more power and influence over what matters to them’.32
Finally, in 2016, the Land Reform Act was passed, which established the Scottish Land
Commission and included various provisions on land ownership. Many organizations
such as Community Land Scotland and the Scottish Tenant Farmers Association hailed

26
[2007] EWHC (Admin) 311.
27
Minister for Women and Equalities ‘Reform of the Gender Recognition Act – Government Consultation’ (2018) <https://
consult.education.gov.uk/government-equalities-office/reform-of-the-gender-recognition-act/user_uploads/gra-
consultation-document.pdf>.
28
Department of Communications, Energy and Natural Resources ‘Consultation Process: Summary of Responses on Green
Paper on Energy Policy in Ireland’ (2015) <https://www.dccae.gov.ie/documents/Green%20Paper%20consultation%20
process_summary%20of%20responses.pdf>.
29
BÓ Cléirigh ‘Ireland’s New Energy Policy’ (2016) <http://boc.ie/News-And-insights/Ireland-s-new-energy-policy>.
30
The Scottish Parliament ‘Stages of a Bill’ <https://www.parliament.scot/visitandlearn/Education/18641.aspx>.
31
Scottish Government ‘Policy: Land Reform’ <https://www.gov.scot/policies/land-reform/>.
32
IC Elliot et al. ‘The Community Empowerment Act and Localism under Devolution in Scotland: The Perspective of Multiple
Stakeholders in a Council Ward’ (2018) International Journal of Public Sector Management <https://doi:10.1108/
ijpsm-03-2018-0080>.
 Law-Making by and for the People  •  Page 7 of 18

the Community Empowerment Act as a significant reform and enormous step forward
for land rights and community ownership.33

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This type of citizen participation is more likely to lead to the development of pol-
icies and laws that account for on-the-ground realities and directly address issues of the
public.34

4.  I N D I A’S L E G I S L AT I V E P RO C E S S E S I N P R A CT I C E

(A)  Legislations with a Consultative Process

Consultation provides an opportunity to collect external views—including critical
ones—making sure that government policies are based on best available informa-
tion. Efficient consultation also guarantees transparency in the legislative process.
Transparency is a central pillar of effective regulation, guaranteeing accountability and
increasing confidence in the legal environment and making regulations more secure
and accessible and less susceptible to special interests. One of the best examples of this
process is the drafting of the Karnataka Police Bill 2011, where wide public consult-
ations were carried out and 290 suggested amendments were finally passed.
Furthermore, an established pre-legislative scrutiny process can act as an additional
stage of examination of the proposed provisions of the draft bill. It provides oppor-
tunity for all stakeholders to influence the legislation and thus improve its quality in the
long run. Legislations spearheaded by community participation and consultation have
been much more effective and have had greater legitimacy and acceptance. One such
example is the Right to Information (RTI) Act 2005. A group of government workers in
Rajasthan formed the group Mazdoor Kisan Shakti Sangathan (MKSS) in 1990 and led
a movement to demand government transparency after having been deprived of com-
pensation for work completed during a famine. This was the beginning of a long cam-
paign to establish the RTI. Propelled by support from various social activists and the
press, the National Campaign for People’s Right to Information (NCPRI) was founded
in 1996. The NCPRI, in collaboration with the Press Council of India, put forth a draft
that solidified the basis for a RTI law. The Freedom of Information Bill was introduced
in 2002 and, after several amendments, proposed in Parliament in August 2004. The
Bill formally became the RTI Act in 2005. The RTI campaign and its following legisla-
tion are heralded as shining examples of democracy in action. Citizens could rely upon
proper democratic channels to produce substantive policy, and this exemplified the ac-
tive roles for various civil society groups to assume in the policy-making arena.

(B)  Legislations without a Consultative Process

Most legislations in India are not subjected to any consultation process. For instance, in
2014, the Delhi Special Police Establishment (Amendment) Bill 2014 and the Aadhaar
Bill did not go through a consultation process. Furthermore, even in cases where

33
Community Land Scotland ‘Latest Stage of Land Reform Welcomed’ <https://www.communitylandscotland.org.uk/
wp-content/uploads/2016/03/Land-Reform-Bill-Passage-Statement-by-Community-Land-Scotland.pdf>; Scottish
Tenant Farmers Association ‘News Release: Land Reform Bill an Enormous Step Forward’ (2016) <http://www.tfascotland.
org.uk/land-reform-bill-an-enormous-step-forward/>.
34
R Irvin and J Stansbury ‘Citizen Participation in Decision Making: Is It Worth the Effort?’ (2004) 64 Pub Admin Rev 55–65.
Page 8 of 18  •  Law-Making by and for the People

pre-legislative or other consultation does take place, the Government has not always
implemented suggestions to initial drafts of proposed legislations.

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The legislative process behind the Civil Liability for Nuclear Damage Act 2010
makes clear the ramifications of not giving due consideration to community interests.
This Act was fiercely opposed by the public who argued that the law was unconstitu-
tional and should be jettisoned, citing direct violations of the right to life. Greenpeace
India requested for wider consultation. The government responded by issuing only a
15-day time frame for discussions and restricted publication of notices solely to English
media. Despite the short time frame, the aggrieved community—consisting of 50,000
displaced people collectively—aired its opposition to the Bill, highlighting that the
government had spent a mere Rs. 86 crores on their rehabilitation. Supreme Court jur-
isprudence on the Polluter Pays Principle and the Precautionary Principle firmly es-
tablishes that industries deemed hazardous or dangerous are obligated by an ‘absolute
and non-delegable’ duty to provide for community safety. Yet, this Bill proposed to cap
the amount of compensation in a nuclear-related accident, blatantly contravening prior
rulings. The Central Government’s overall liability was limited to $300 million Special
Drawing Rights, which is strikingly insufficient.35
In March 2010, Greenpeace initiated a petition requesting that people become re-
gistered with the Prime Minister’s Office for their protest. The petition reached almost
two lakh signatures, including approximately 74 law outfits and associations. Despite
these efforts, the Bill was approved by the President and subsequently codified. The
sequence of events perfectly illustrates the Government’s gross ineptitude and reluc-
tance in hosting an open conversation to properly address the legitimate concerns of
the community it governs. The result is an established law completely divorced from
the will of the people.

(C)  Legislations with Consultation but without Deliberation

Although legislation that receives pre-legislative consultation involves stakeholders and
therefore lends to the credibility of the law; without deliberation, it fails to hold the
Government accountable for responding to consultative feedback. The historical evo-
lution of the National Food Security Act 2013 warrants attention here.
The National Advisory Council, bolstered by support from UPA Chief Sonia
Gandhi, allowed the seeds of this concept to germinate. The initial Bill was introduced
in December 2011 in a tumultuous political landscape. A sufficient time frame of one
year was designated for public consultation, where the text of the Bill would be open to
public comments and criticisms. Several parties engaged with the Parliament, and the
government remained sensitive to these concerns, implementing successive amend-
ments that were advocated by various party interests. In January 2013, the standing
committee issued their report regarding the Bill. Although the Bill gained passage in
the Lok Sabha in August 2013, the National Food Security Act was never brought to
fruition. As a result, the Bill had to be withdrawn. Bending to alleged electoral pressure,
UPA ultimately decided to pursue action through an ordinance, resulting in the prom-
ulgation of the National Food Security Ordinance in July 2013. The ordinance was

35
To contextualize this figure, it is necessary to note that Union Carbide was mandated to provide $470 million in compensa-
tion in the aftermath of the Bhopal Gas tragedy.
 Law-Making by and for the People  •  Page 9 of 18

subsequently replaced by the National Food Security Bill 2013 which suffered severe
backlash.36 Nonetheless, it was pushed through in both houses, resulting in the final

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National Food Security Act. Despite claims that standing committee recommendations
were included in the new bill, the final Act bears marked and significant differences.
Another example is the Personal Data Protection Bill 2018, wherein the Ministry
of Electronics and Information Technology constituted the Srikrishna Committee to
identify main issues. A White Paper prepared by the Committee was put in the public
domain and consultations with stakeholders were held in Delhi and Mumbai.37 The
Ministry explicitly stated that the paper was drafted in order to get public comments
on what a data protection law should look like.38 Despite these efforts, the final bill ap-
proved by the Cabinet did not incorporate many of the recommendations and received
criticism for its numerous flaws.39
The enactment of the Right of Persons with Disabilities (RPWD) Act 2016
also demonstrates the need for pre-legislative deliberation. The first draft was
prepared in 2011 by civil society actors and ministers with country-wide recom-
mendations and national and regional consultations. However, the Ministry of
Social Justice and Empowerment (MSJE) watered down this draft and the Cabinet
approved it in 2013.40 When the RPWD Bill was presented in Parliament in 2014,
serious objections were raised and it was referred to a Standing Committee. The
Committee’s report neglected to address serious flaws in the bill and misunder-
stood the need for a rights-based framework.41 Finally, the RPWD Act was passed
by Parliament in 2016, and activists and scholars have lamented the infirmities it
continues to suffer from.42
Thus, both times, the laws eventually enacted were completely different from the
drafts initially circulated by the ministry. Even when consultations were held, many
of the recommendations made were not incorporated in the final versions of the
legislations.

36
R Jha ‘India’s Food Security Bill: An Inadequate Remedy?’ The Guardian (2013) <https://www.theguardian.com/
global-development-professionals-network/2013/jul/15/india-food-security-bill>.
37
Ministry of Electronics and Information Technology ‘Press Release’ (28 December 2017)  <https://meity.gov.in/
writereaddata/files/public_consultation_on_white_paper.pdf>.
38
Ministry of Electronics and Information Technology ‘White Paper on Data Protection Framework for India – Public
Comments Invited’ <https://meity.gov.in/white-paper-data-protection-framework-india-public-comments-invited>.
39
AGupta‘DraftofDataProtectionBillMoreanUneasyCompromiseThanaClearCommitment’HindustanTimes(2018)<https://
www.hindustantimes.com/opinion/draft-of-data-protection-bill-more-an-uneasy-compromise-than-a-clear-commitment/
story-HgLObaO58GzuWWj9CF3lnN.html>; A Bhattacharya ‘India’s First Data Protection Bill Is Riddled with Problems’
Quartz India (2018) <https://qz.com/india/1343154/justice-srikrishnas-data-protection-bill-for-india-is-full-of-holes/>.
40
M Chari ‘Why People with Disabilities Want to Kill the New Disability Rights Bill’ Scroll (2014) <https://scroll.in/
article/655880/why-people-with-disabilities-want-to-kill-the-new-disability-rights-bill>.
41
J Kothari and N de Puy Kamp ‘The Wait for a Progressive Disabilities Law Is a Long One’ The Wire (2015) <https://thewire.
in/law/the-wait-for-a-progressive-disabilities-law-is-a-long-one>.
42
GV Bhatnagar ‘Disability Activists Slam Regressive Clause in New Act That Allows Discrimination’ The Wire (2017)
<https://thewire.in/health/disability-sector-aghast-silence-draft-rules-controversial-clause-rights-pwds-act-2016>; M
Pratim Gohain ‘Activists Term Disability Bill a “Sceptical Act”’ The Times of India (2016).
Page 10 of 18  •  Law-Making by and for the People

5.  I M P O RTA N C E O F D E L I B E R AT I O N : A   C A S E ST U DY O F T H E
T R A N S G E N D E R R I G H TS   B I L L S

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Deliberation is at the heart of a truly democratic political process.43 According to
Benjamin Barber, deliberation is characterized by listening as much as speaking, being
affective as well as cognitive, and existing in the world of action rather than pure reflec-
tion.44 A strong democratic process ‘requires active, animated citizens, who engage with
each other to identify and understand their political interests, to discover their social
values and to decide public issues through public debate’.45 It is crucial to recognize
the importance of ‘deliberative democracy’, which is essentially a system of political
decision-making that relies on public deliberation to make policy.46
Deliberation is a step beyond mere consultation and is based on the notion of ‘public
reasons’ in the Rawlsian tradition: the idea that decisions must be justified by reasons
that can be acceptable to others.47 Thus, deliberation carries with it a duty incumbent
upon the drafting ministry or department to carefully consider the recommendations
made by stakeholders during the consultation process. If certain recommendations are
not accepted, then sufficient reasons must be provided to make the process transparent
to the public. Without this explanation, the ministry cannot be held accountable for its
actions.
The developments in the Transgender Rights Bills from 2014 to 2018 bear out the
need for robust deliberations during the pre-legislative process in India.

(A)  The Transgender Rights Bill 2014

In 2014, the Supreme Court issued a landmark decision in National Legal Services
Authority v.  Union of India48 upholding transgender persons’ right to gender
self-identification and directing the Centre and State Governments to grant legal
recognition of their gender identity as male, female, or third gender. The judgement
was considered ‘path-breaking’ for striking ‘a fine balance between philosophical,
legal and practical considerations that surround the area of gender identity and
recognition’.49
MSJE requested a clarification from the Supreme Court on some of the conten-
tious issues—who is included in the term ‘transgender people’; the Court’s use of eu-
nuch as interchangeable with transgender;50 and the feasibility of the implementation
timeframe of six months and so on.51 Subsequently, Tiruchi Siva’s Private Member’s
43
KS Czapanskiy and R Manjoo ‘The Right of Public Participation in the Law-Making Process and the Role of Legislature in
the Promotion of this Right’ (2008) 19 Duke Journal of Comparative and International Law, 1–40.
44
BR Barber Strong Democracy: Participatory Politics for a New Age (California: University of California Press, 2003) 174.
45
Czapanskiy, above n 43.
46
T Khaitan ‘Reforming the Pre-legislative Process’ (2011) 46 Economic and Political Weekly 27–30.
47
Ibid.
48
National Legal Services Authority v.  Union of India [2014] 5 SCC 438  <http://orinam.net/content/wp-content/­
uploads/2014/09/NALSA_UOI.pdf>.
49
Lawyers Collective ‘Supreme Court Recognizes the Right to Determine and Express One’s Gender; Grants Legal Status
to “Third Gender”’ <http://orinam.net/content/wp-content/uploads/2014/04/LC_statement.pdf> (accessed 5 April
2019).
50
The Supreme Court used the term ‘eunuch’ interchangeably with the term ‘transgender’ and ‘hijra’ throughout the judgment.
Hence, the clarification by MSJE sought to address this concern.
51
National Legal Services Authority v. Union of India and Ors, W.P. 400/2012, Application for Clarification/Modification
of the Judgment and Order of the Supreme Hon’ble Court dated 15.04.2014, <http://orinam.net/content/wpcontent/
uploads/2014/09/NALSA_UOI.pdf> (accessed 5 April 2019).
 Law-Making by and for the People  •  Page 11 of 18

Bill,52 namely the Rights of Transgender Persons Bill 2014 (hereafter, referred to as
the Private Member’s Bill) was introduced in the Rajya Sabha on 12 December 2014.

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According to Siva, he was motivated to draft the Bill as he had been engaged with trans-
gender groups  for a long time.53 He also explains in an interview that he interacted
with them before introducing the Bill.54
A Private Member’s Bill can be introduced by any member of Parliament. The
2014 Bill unanimously passed in the Rajya Sabha,55 making it the first Private
Member Bill to pass in the upper house after a gap of 45  years. The Bill had sig-
nificant progressive clauses, including recognizing the right of transgender persons
to self-identify as well as creating commissions and legal courts to consider trans-
gender persons’ grievances. Furthermore, the Bill guaranteed reservations for place-
ments in government employment, financial aid awards, and education services for
transgender persons.
Clause 2(t) of the 2014 Bill defined a ‘transgender person’ as follows:

[A] person, whose gender does not match with the gender assigned to that
person at birth and includes trans-men and trans-women (whether or not they
have undergone sex reassignment surgery or hormone therapy or laser therapy
etc.), gender-queers and a number of socio-cultural identities such as—kinnars,
hijras, aravanis, jogtas etc.

This definition transcended the binary understanding of gender and included a wide
range of socio-cultural identities. It is interesting to note that the wording is such that
it is open to a broad interpretation. Supreme Court jurisprudence holds that the use
of phrases such as ‘includes’, ‘whether or not’, ‘a number of ’, and ‘etc.’ in a legal pro-
vision imply that the definition is prima facie extensive.56 The Government said that
it would bring the Private Member’s Bill to the Lok Sabha for vote after ‘correct[ing]
infirmities’. However, the Bill never made it to the Lok Sabha allegedly because it ‘put
too much onus on the government’ and had provisions for reservation which the gov-
ernment had problems with.57

(B)  The Transgender Rights Bill 2016

In March 2016, the MSJE drafted the Transgender Persons (Protection of Rights)
Bill 2016 and sent it only for limited inter-ministerial consultation for two weeks.58

52
Siva is a Rajya Sabha MP, representing the state of Tamil Nadu and the Dravida Munnetra Kazahagam (DMK) party.
53
P Chandra ‘Why Tiruchi Siva Moved a Private Member’s Bill to Ensure Rights for Transgender People’ Scroll (2015) <https://
scroll.in/article/723205/why-tiruchi-siva-moved-a-private-members-bill-to-ensure-rights-for-transgender-people>.
54
CG Manoj ‘5 Questions: Tiruchi Siva, Man Behind Rights of Transgender Persons Bill’ Indian Express (2015) <https://
indianexpress.com/article/india/india-others/5-questions-tiruchi-siva-man-behind-rights-of-transgender-persons-bill/>.
55
‘Rajya Sabha Passes Transgenders Rights Bill, First Private Member Proposal in 46 Years’ India Today <https://www.
indiatoday.in/india/story/rajya-sabha-private-member-bill-transgenders-rights-250096-2015-04-24>.
56
Gollaleshwar Dev v. Gangawwa Kom Shantayya Math [1985] 4 SCC 393, 401.
57
V Lalwani ‘How Parliament Came to Have Two Bills on Transgender Persons’ Rights (and Why Neither May Pass)’ Scroll
(2018) <https://scroll.in/article/906587/how-parliament-came-to-have-two-bills-on-transgender-persons-rights-and-
why-neither-may-pass>.
58
J Jos ‘Limiting Gender Variance: Critical Reflections on the Transgender Persons Bill’ (2017) 3 Economic & Political
Weekly, 21–23.
Page 12 of 18  •  Law-Making by and for the People

Although the comments from other ministries were inadequately forthcoming, the Bill
was sent to the Law Ministry (prior to being sent for cabinet approval) in April 2016.59

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To understand the importance of post-consultation deliberation, it is worth noting
that in 2015, the MSJE had drafted another bill, the Rights of Transgender Persons
Bill, which seemed to be more in keeping with the 2014 Private Member Bill.60 The
Ministry invited comments on this Bill but many organizations stated that the time-
line for sending recommendations was too short and unfeasible.61 Nevertheless, several
transgender-led groups submitted recommendations for this draft.62 However, sugges-
tions on expanding the bill to cover intersex people, streamlining gender recognition
procedures, incorporating rights of transgender children, repealing section 377 and so
on all appear to have gone unheard. The 2015 Bill was never introduced in Parliament
and appears to be have been shelved to make room for the more draconian 2016 Bill.
Although the government made efforts to hold public consultations after drafting the
2015 Bill, it did not deliberate on any of the recommendations made by any transgender
groups. Instead, the MSJE drafted another bill that deleted many of the important pro-
visions that were present in the 2014 and 2015 Bills. Thus, a uniform policy on proper
consultation and deliberation is required to avoid such issues.
On 2 August 2016, the MSJE introduced its newly drafted Bill in the Lok Sabha. It
inevitably met with severe backlash from transgender people because of its failure to
adopt a right-based framework. Due to the backlash, Lok Sabha’s Standing Committee
invited recommendations on the Bill. Crowdsourced responses from transgender and
intersex people indicated that the 2016 Bill was a massive disappointment, with many
calling it a ‘diluted, criminalizing and anthologizing text while standing on distorted
premises that amount to human rights violations’.63 This Bill continued to use a re-
habilitation framework that many transgender groups had expressed opposition to in
the consultations.64

(C)  Analysis of and Comparisons Between the Two Bills

The 2016 Bill deviated considerably from the Private Member’s Bill as well as the 2015
Bill. Of significance is the fact that the definition of ‘transgender’ inaccurately includes
intersex persons:

[A] person whose gender does not match with the gender assigned to that person
at birth and includes trans-man or trans-woman (whether or not such person has

59
Ibid.
60
‘The Rights of Transgender Persons Bill, 2015’ Live Law <http://orinam.net/content/wp-content/uploads/2014/04/
TGBill_2015.pdf>.
61
See Orinam ‘MSJE Rights of Transgender Persons Bill 2015’ <http://orinam.net/resources-for/law-and-enforcement/
nalsa-petition-tg-rights-india/msje-rights-of-transgender-persons-bill-2015/>.
62
Sampoorna Working Group ‘Response to MSJE’s Rights of Transgender Persons Bill’ (2015) <http://orinam.net/
sampoorna-response-msje-trans-rights-bill/>; ‘Telangana Hijra Intersex Transgender Samiti Responds to MSJE
Transgender Rights Bill (2015)’ <http://orinam.net/telangana-samiti-response-msje-trans-rights-bill/>; Sangama, Aneka
and ReachLaw ‘Recommendations from Discussions Involving 33 Organizations across Southern India’ (2016) <http://
orinam.net/content/wp-content/uploads/2016/01/Sangama-Aneka-ReachLaw_MSJEBill_responses.pdf>.
63
Orinam ‘Responses from the Trans & Intersex Communities’ (2016) <http://orinam.net/content/wp-content/up-
loads/2016/08/Trans-led_CommunityResponse_to-StandComm_TGBill_2016.pdf>.
64
Ibid.
 Law-Making by and for the People  •  Page 13 of 18

undergone Sex Reassignment Surgery or hormone therapy or laser therapy or

such other therapy), person with intersex variations, gender-queer and person

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having such socio-cultural identities as kinnar, hijra, aravani and jogta.

Notably, the definition does not ensure that gender self-identification is sufficient
and, therefore, undermines the importance of gender fluidity recognized in the
NALSA decision and the Private Member’s Bill. Furthermore, important defin-
itions such as those of ‘violence’, ‘exploitation’, ‘discrimination’, and ‘abuse’ are ab-
sent. Although Chapter II prohibits discrimination against transgender persons,
without the requisite definitions, the Chapter remains largely ambiguous and un-
availing. Chapter III has been extremely contentious65 as it purports to protect the
right of transgender people to ‘self-perceived gender identity’, but persons wishing
to identify as such are required to jump through considerable and lengthy bureau-
cratic hoops. It requires that a District Screening Committee, composed of med-
ical personnel, government officials, and a member of the transgender community,
control whether the government recognizes a person as transgender. The District
Magistrate issues a certificate of transgender identity to the applicant only after
the District Committee submits a recommendation of approval. This procedure
is prima facie in contradiction to the rights granted by the Supreme Court with re-
spect to self-identification in the NALSA judgement.
The 2016 Bill further failed to incorporate demands from transgender and gender
non-conforming groups in reservations for education and employment, and concrete
schemes for insurance, livelihood, and healthcare facilities. The absence of a grievance
redressal mechanism in the text of the draft Bill effectively meant that despite recog-
nizing a limited corpus of transgender rights, the Bill was reluctant to allow aggrieved
transgender people to enforce those rights against the State or private persons.
The stark differences in the substance of the 2014 Private Member Bill and the 2016
Bill are a result of subsequent lack of deliberations. The robust rights-based framework
in the 2014 Bill went amiss in the 2016 Bill, which moreover entrenched the notion of
a pathologized transgender identity and reoriented the conversation on transgender
rights to one of rehabilitation and protection. In fact, the Bill paternalistically stated:

The appropriate Government shall take steps for the rescue, protection and re-
habilitation of transgender persons to address the needs of such person.

The Bill was eventually amended and approved on 17 December 2018 by the Lok
Sabha, but met with intense backlash and protests by transgender people.66

65
Orinam ‘LBT and Ally Groups Write to Standing Committee on Trans Bill 2016’ <http://orinam.net/lbt-ally-letters-
standing-committee-tg-bill-2016/>; UNAIDS Consultation with Transgender Hijra Community and Experts ‘Charter of
Demands: Revision on Transgender Bill 2016 Introduced by Social Welfare Ministry India’ (2016) <http://orinam.net/
content/wp-content/uploads/2016/08/Charter-of-Demands-_UNAIDS_consult_TGBill_2016.pdf>.
66
SS Thapa ‘Kill Bill, Say Protesters against the Trans Bill’ The Citizen (2018) <https://www.thecitizen.in/index.php/en/
NewsDetail/index/7/15897/Kill-Bill-Say-Protesters-Against-the-Trans-Bill>; TCN News ‘Thousands Gather to Protest the
Transgender Persons (Protection of Rights) Bill, 2018 at Jantar Mantar’ <http://twocircles.net/2018dec30/428070.html>.
Page 14 of 18  •  Law-Making by and for the People

(D)  The 2018 Bill and the Need for Pre-legislative Processes in India
The importance of consulting stakeholders and the public at large lies in the fact that it

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provides a means by which those who are ultimately impacted by policy choices may
express their views and have their interests reflected in policy outcomes.67 The MOJ
itself noted that a policy requiring pre-legislative consultation helps to ‘resolve conten-
tious and complex policies’, as well as in areas that the government wishes to ‘build
consensus’. Anthony Giddens posits that such ‘experiments in democracy’ fulfil two
crucial benefits.68 First, decision-makers rely on input from consultations to determine
where the majority of support lies on an issue, as well as to gather technical expertise
required to help reduce uncertainties about policy outcomes. Secondly, direct involve-
ment of individuals and representative groups through consultations helps to garner
greater trust and transparency in the decision-making process, thus reinforcing the le-
gitimacy of decision-makers.
This is particularly important in the context of drafting a legislation on the rights
of transgender people, a marginalized group whose experiences, needs, and realities
cannot be fathomed by legislatures without consultation with the affected people. This
is because communities who are directly affected by legislation are likely to be better
equipped to identify drawbacks and shortcomings in the draft text. Irvin and Stansbury
further argue that citizen participation might lead to policies, which actually address
on-the-ground realities and, therefore, create a less confrontational population.69
Moreover, legislation that is drafted and passed without consultation and deliberation
often ignores the social realities of the context in which the legislation is sought to be
implemented. This is especially true in situations where the legislature simply trans-
plants a legislation from another jurisdiction and adopts it in India without consid-
ering whether it suits the domestic social fabric. The 2016 Bill, for instance, was, in large
part, taken from the Australian intersex law70 and therefore failed to address the unique
issues and challenges that are faced by transgender persons in India. Furthermore, such
a process neglectfully resulted in the inclusion of intersex persons in the definition of
transgender persons.
After much protest by transgender and gender non-conforming individuals and or-
ganizations, the Standing Committee invited limited suggestions on the 2016 Draft
Bill from stakeholders. The Government Draft Bill clearly had ‘potential impact on
those who will be affected by such legislation’, as the Bill controls how transgender per-
sons can legally identify themselves. Several transgender, gender non-conforming and
intersex organizations participated in this limited feedback process. Detailed critiques
of the Bill were sent to the Committee, and thereafter, members of transgender-led
groups were called to depose before the Committee. Organizations such as Sampoorna
Working Group, Lawyers Collective, Amnesty International India, Kinnar Bharti, and
South Indian Transgenders Federation deposed before the Committee as non-official

67
A Chalmers ‘In Over Their Heads: Public Consultation, Administrative Capacity and Legislative Duration in the European
Union’ (2014) 15 European Union Politics 595–613.
68
A Giddens The Third Way: The Renewal of Social Democracy (Polity Press Cambridge 1998).
69
R Irvin and J Stansbury ‘Citizen Participation in Decision Making: Is It Worth the Effort?’ (2004) 64 Pub Admin Rev 55–65.
70
U Bhattacharya ‘The Transgender Community and Legal Researchers on the Transgender Bill 2016’ The Citizen <https://
www.thecitizen.in/index.php/en/NewsDetail/index/7/9471/The-Transgender-Community-And-Legal-Researchers-on-the-
Transgender-Bill-2016>.
 Law-Making by and for the People  •  Page 15 of 18

witnesses and suggested fundamental amendments to the Bill. For example, Sampoorna
specifically recommended that the requirement of District Screening Committees be

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struck down as it violated the right to gender self-identification as upheld in the NALSA
judgment. Additionally, the group proposed expanding the definition of family to stop
the criminalization and stigmatization of Hijra family structures.71
Other recommendations included following the Supreme Court mandate in the
NALSA judgment while defining ‘transgender persons’; excluding medical practi-
tioners from the composition of the screening committee; including provisions for res-
ervation in education and employment for transgender persons; providing equal rights
of self-identification, social recognition, and protection to trans-men and intersex per-
sons within the text of the Bill; deleting the provision that criminalizes beggary; and
explicitly extending protections under the Atrocities Act to transgender people.72
In 2018, the Cabinet approved 27 changes to the 2016 Bill.73 However, the definition
was the only major change accommodated in the new draft. The definition of ‘trans-
gender person’ was changed to ‘a person whose gender does not match with the gender
assigned at birth and includes trans-men, trans-women, gender-queers, and other
sociocultural identities, such as kinnars, hijras, aravanis, jogtas etc.’. It also incorporated
self-declaration/self-recognition of gender identity, i.e. a person would have the right
to choose to be identified as a man, woman, or transgender, irrespective of sex reassign-
ment surgery (SRS), hormonal therapy, laser therapy, or other such therapy. However,
all the other suggestions from transgender groups were ignored. The 2018 Bill upholds
criminalization of begging, includes lighter penalties for discrimination against trans-
gender people, and creates a two-tier system wherein only persons who have not under-
gone SRS can identify as transgender.74 Hence, the Bill in its current form violates the
fundamental rights of transgender and gender non-conforming people as recognized in
the NALSA judgment.
These developments in the Transgender Rights Bills are an excellent example of the
importance of deliberation. The process during drafting of the 2014 Bill and later de-
bates on the 2016 Bill indicated that education, employment, housing, healthcare, and
freedom from violence are routine concerns of transgender people that ought to be
engaged with in law and policy-making. Furthermore, it is imperative to have multiple
perspectives on the table as transgender people in India make up a very heterogenous
community. Failure to meaningfully engage with these ground realities is bound to be
met with severe backlash. This means that the government must not only hold con-
sultations prior to the drafting of a bill, but must also incorporate suggestions made
by stakeholders during and after drafting. At multiple stages in the drafting of the
Transgender Rights Bills, the government failed to address the needs of transgender

71
Sampoorna ‘TG Bill 2016 Factsheet: Bill Provisions & Community Demands’ (2017) <https://sampoornaindiablog.
wordpress.com/2017/11/23/tg-bill-2016-factsheet-bill-provisions-community-demands/>.
72
‘Minutes of the Fifth Sitting of the Standing Committee on Social Justice and Empowerment held on Wednesday, 28th
December 2016’, Annex III, in Forty Third Report on the Transgender Persons (Protection of Rights) Bill 2016, Standing
Committee on Social Justice and Empowerment (2016–17).
73
S Nair and D Tiwary ‘Lok Sabha Passes Transgender Persons Bill with 27 Changes’ Indian Express (2018) <https://
indianexpress.com/article/india/parliament-winter-session-lok-sabha-passes-transgender-bill-5497844/>.
74
Orinam ‘The Transgender Persons (Protection of Rights) Bill, 2018’ <http://orinam.net/resources-for/
law-and-enforcement/trans-persons-protection-rights-bill-2018/>.
Page 16 of 18  •  Law-Making by and for the People

people by not reflecting upon the recommendations made by them. This shows how
crucial deliberation is in the pre-legislative process, in order to feed meaningful and

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substantive content to laws.

6.  R E CO M M E N DAT I O N S
Even when government intentions are benign, as Tarunabh Khaitan argues, laws en-
acted may still be unpopular if passed without proper consultation and deliberation.75
To ensure public participation in the legislative process, and to hold the government
accountable, a two-step process should be followed.
First, the ministry that wishes to propose a new law or change in policy should hold
wide public consultation with all stakeholders, including roundtable conversations (or
on-table) with groups most affected by the proposed legislation. In many countries,
such as the United Kingdom, government departments publish ‘green papers’, which
are discussion papers meant to lay out the policy aims of the government in tackling cer-
tain issues.76 This is the very first stage of the pre-legislative process. The public should
be invited to comment on the papers, and all suggestions should be reviewed and given
due consideration. Once the bill has been drafted, it should be placed in the public
domain for at least 30 days,77 allowing the public sufficient time to review and respond
to it. However, some discretion must be given to Parliament to decide the timeframe
for receiving public responses depending on the nature of the Bill. It is imperative to
consider diverse opinions from stakeholders as it allows the bill to incorporate a wider
range of perspectives and be less susceptible to loopholes. At this stage, the drafting
ministry or department should also hold debates to discuss provisions of the proposed
legislation. This kind of scrutiny affords an opportunity to conduct a thorough analysis
of the bill and rectify any flaws. Specifically, it enables ‘measured consideration of a Bill’s
principles, questioning of new policy initiatives contained within it, and consideration
of any practical and technical issues which might arise from the proposed provisions’.78
It is at this second stage of review that deliberation becomes crucial.79 As evidenced
by the developments in the Transgender Bills, consultation processes without any de-
liberation lead to legislations that do not address the needs of the communities they
purport to serve. Although numerous transgender groups submitted detailed recom-
mendations to the MSJE on its 2015 Draft Bill, none of the suggestions were given
consideration. The 2016 Bill, which then became the 2018 Bill, incorporated very few
recommendations made by transgender groups during consultations. Such a legislative
process leads to a disengaged public, with citizens feeling that the government does not
75
Khaitan, above n 46.
76
A green paper, in the United Kingdom, is the preliminary report of proposals that a government department publishes in
order to stimulate discussions. It generally details specific issues and possible courses of action. The Guardian ‘What Is a
Green Paper?’ (2009) <https://www.theguardian.com/careandsupportreform/what-green-paper>.
77
The MOJ circular on pre-legislative processes suggests a time frame of 30 days.
78
Hansard Society, Pre-Legislative Scrutiny, Issues in Law Making, Hansard Society Briefing Paper (2004) <http://citeseerx.
ist.psu.edu/viewdoc/download;jsessionid=01C5E265109965EEAEF669D35DABCEF0?doi=10.1.1.593.5880&rep=rep1
&type=pdf>. (accessed 5 April 2019).
79
The Guardian, above n 76. The United Kingdom, at this stage, often publishes the outcome of pre-legislative consultation as
a White Paper, which sets out legislative changes and invites debate from the public. The outcome of these debates feeds into
the drafting and eventual introduction of a Bill in the Parliament. The public is then able to see all of the comments received
by the government during consultations, and how those comments were incorporated into the proposed legislation. This
makes for a much more transparent process.
 Law-Making by and for the People  •  Page 17 of 18

value their opinions. Thus, when comments are received on proposed legislations, they
must be used to revise the legislation; when suggestions are rejected, adequate reasons

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must be provided.
Finally, it is imperative to give wide publication to draft bills so that the public has
an opportunity to send in any oppositions, suggestions, and feedback. It is not enough
to publish the bill in the Government Gazette;80 steps must be taken to ensure that na-
tional and regional language media outlets circulate translated versions of the bill, and
it should also be published online for easy access. The government also has a duty to
ensure that people in rural areas can participate in the process. The feasibility of holding
consultations through gram panchayats, taluk offices, and other local administrative
bodies needs to be explored so that the public is actively involved at every stage of the
legislative process.
To ensure that laws are not unworkable and unacceptable to the public once they
are enforced, consultation and subsequent deliberation ought to be mandatory pre-
legislative mechanisms by which stakeholders and affected groups can aid in the pro-
cess of legislative drafting. The purpose of consultation is to gather views, information,
and experiences of stakeholders about matters that are to be deliberated upon. The
views and information from stakeholders, especially experts and directly affected par-
ties, are of great consequence to the eventual success of a legislation, as they are better
equipped than anyone else to identify shortcomings or potential consequences of such
legislation. As such, the government, during the deliberation process, should either in-
corporate such feedback or indicate why it has chosen not to.

7.  CO N C LU S I O N
The article argues that the current institutional structures do not adequately facilitate
citizens’ participation in the pre-legislative process in India and that, as evidenced by
successes in other countries as well as legislative failures within India, the government
should consider mandating pre-legislative consultation and deliberation. This is largely
due to the assumption that the interests of affected groups will be voiced and articu-
lated by their chosen representative and that the representative bodies in which such
policies will be debated are deliberative enough to account for the range of concerns
that stakeholders may have. The importance of taking stakeholder inputs into account
cannot, however, be underestimated. This is especially true in the context of India,
where laws are not subject to public debate and are hastily passed and then are met
with vehement opposition by the public once enacted. Consultative processes, on the
other hand, promote the creation of a ‘deliberative democracy’, wherein civil society is
able to deliberate over laws before they are passed by legislature.
As explored above, legislations that have received pre-legislative feedback from
stakeholders and representatives from affected communities have been far more well
received by the public. Legislations, such as the RTI Act, that undergo pre-legislative
scrutiny benefit immenself from the feedback they receive. Pre-legislative consultation
provides a locus of guidance for parliamentarians in order to ensure the effective-
ness of laws. On the other hand, the absence of pre-legislative consultations for other

80
Currently, bills are published in the Official Gazette after their introduction in Parliament. Lok Sabha Secretariat ‘How a Bill
Becomes an Act?’ <http://164.100.47.194/our%20parliament/How%20a%20bill%20become%20an%20act.pdf>.
 Page 18 of 18  •  Law-Making by and for the People

legislations, such as the Aadhaar Bill or Nuclear Damage Act, has meant that the nu-
merous shortcomings of these laws have gone unaddressed, despite harsh criticisms,

Downloaded from https://academic.oup.com/slr/advance-article-abstract/doi/10.1093/slr/hmz005/5476389 by Bukkyo University user on 26 April 2019

and the public has suffered as a result. Recently, the Transgender Rights Bill stands as
one such example, as the Government’s bill (which sought no pre-legislative process)
has received violent opposition from transgender, intersex and gender non-conforming
people.
India stands to gain considerably from adopting a pre-legislative consultation and
deliberation process that allows for community and stakeholder feedback and expertise.
In order for people to have faith in their representatives, a concerted effort needs to be
made to ensure that all voices are heard and given due consideration during the drafting
of a legislation. Such pre-legislative processes could include a mandated consultation
with affected groups and communities, as well as a required deliberation process in
which the government, after having had solicited comments from stakeholders, must
either incorporate the suggestion or respond as to why it chose not to incorporate the
feedback. India’s current unwillingness to create a mandate for pre-legislative consult-
ation impedes the gains that could be made by a more transparent and collaborative
democratic process of law-making.
When the contents of laws are determined through consensus and a fair process,
they are more likely to be meaningful and have the greatest impact on the lives of
people. Furthermore, they are more likely to be accepted by the public. Ignoring the ex-
periences of marginalized groups and not allowing stakeholders to voice their concerns
on legislations that affect them casts a shadow of doubt over the legitimacy of demo-
cratic institutions. A government that purports to act for the people must necessarily
make room for them to participate in the decision-making process. The successes of le-
gislations that have come from or been subjected to extensive community participation
pave the way forward for India to introduce a mandate for pre-legislative scrutiny using
both consultation and deliberation.

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