Codifying citizens' role in lawmaking for more accountable legislation
When legislation skips public consultation, it bypasses the very foundation of democracy. Is it time to question the legitimacy of such laws?
Prof. M. S. Sahoo
Distinguished Professor (Honorary)
School of Legal Studies and Governance
Deregulation is the central theme of this year’s Economic Survey and the Union Budget, with the government seeking to roll back many of the regulations it previously introduced. Much of this reversal could have been avoided had robust public consultations been conducted at the outset. A well- structured consultation process acts as a safeguard against both overregulation and under-regulation, ensuring that only well-reasoned, necessary, and bal- anced measures are implemented. In a democracy, citizens hold the highest office, vested with significant rights and responsibilities. Foremost among these are: (a) the authority to vote and run for public office, enabling them to install a government of their choice, and (b) the ability to influ- ence government decisions and poli- cies, ensuring the governance aligns with their collective will. A respon- sive government upholds this second right, as failing to do so may prompt citizens to exercise their first right to uninstall it. Public consultation in lawmaking exemplifies the exercise of this second right, reinforcing the government’s commitment to citizen engagement in policy formulation while emphasising the citizens’ duty to contribute to this process. Such engagement enhances the legitimacy of legislation, fosters transparency, and builds trust between the government and its citizens. By securing early buy-ins from stakeholders and synchronising their diverse interests, it minimises the risk of legislative rollbacks, delays, or implementation hurdles. Acknowledging the vital role of citizen involvement, many democracies have institutionalised public consultation as an essential part of the legislative process. India has a rich history of public participation, dating back to the drafting of its Constitution. Several statutes mandated the prior publication of subordinate legislation to seek inputs from stakeholders. The Securities and Exchange Board of India (Sebi), the market regulator, pioneered public consultations in the Indian regulatory landscape as early as 2002. With the advent of digital platforms, public consultations have become more accessible, enabling broader participation, real-time feedback, and more inclusive law-making. The government formalised this practice through its 2014 policy, requiring public consultation for all draft legislation and subordinate regulations. In further reinforcement, the Supreme Court, in its 2016 judgment, recommended institutionalising stakeholder consultation in legislative and regulatory processes. Public consultation has gained greater prominence since then. In her 2023-24 Budget speech, the finance minister, in the interest of optimal regulation in the financial sector, underscored the importance of public consultation in framing regulations and issuing subsidiary directions. The Competition (Amendment) Act of 2023 mandated the regulator to consult the public in making regulations and prescribed the manner of such consultation. Several regulators have voluntarily adopted frameworks that require them to conduct public consultations for making regulations. Despite the intent, the practice has been far from encouraging. Many primary and subordinate legislation continue to be enacted without public consultation. This is particularly concerning when non-elected regulators issue regulations or instruments carrying legal norms, without public input. Even when public consultations take place, barring notable exceptions, they often lack the rigour, omitting economic analysis, failing to disclose responses to public feedback, and lacking meaningful stakeholder engagement. The art and science of public consultation have evolved since then. Authorities employ diverse methods — online platforms, offline interactions, and faceto-face engagements — to reach the public. They utilise various formats, including advisory committees, working groups, roundtables, seminars, workshops, and discussion papers. In India, civil society has established platforms that facilitate the public to submit their comments on draft legislation. Internationally, the OECD’s Practitioner’s Guide for Engaging Stakeholders in RuleMaking provides structured methodologies and best practices for involving stakeholders effectively in the regulatory process. The UNDP’s Public Consultation Index offers a framework for assessing the quality and effectiveness of public consultation efforts. A robust consultation framework must ensure clarity, inclusivity, and accountability to be truly effective. First, meaningful engagement begins with well-structured consultation materials that provide stakeholders with the necessary context, a clearly articulated rationale, empirical assessments, persuasive economic analysis, and a draft of proposed laws and policies. The consultations on “One Nation, One Election” largely followed this approach, offering a dedicated portal where citizens could access relevant government reports and documents, enabling them to provide informed feedback grounded in historical and policy perspectives. Second, the effectiveness of consultations depends on their ability to reach relevant stakeholders. Lawmakers use multiple dissemination strategies, including formal notices, digital platforms, and direct outreach. A notable example is the Ministry of Social Justice’s consultation on the new national policy for persons with disabilities. To ensure accessibility, outreach was conducted in disability-friendly formats, including Braille and Indian Sign Language, with the entire policy translated and disseminated via the websites of the ministry and state governments. Third, transparency enhances credibility and trust in the consultation process. Best practices include publishing stakeholder submissions, summaries of the authority’s deliberations on these submissions, and its responses. The Telecom Regulatory Authority of India operates a centralised digital portal where all comments and counter-comments are publicly available. This allows stakeholders to compare proposals before and after consultations, fostering a transparent and accountable process. Fourth, international bodies advocate for independent oversight entities to monitor consultation practices, whereas lawmaking bodies tend to prioritise execution over procedural evaluation, limiting systematic assessments. To address this, the public consultation process—including methodology, minimum engagement requirements, and evaluation criteria—should be standardised. Lawmaking authorities should be mandated to follow structured consultation methodologies and disclose the quality and effectiveness of engagements through a standardised index. Finally, with the growing complexity of governance, there is a notable shift towards more active engagement. Authorities are increasingly leveraging crowdsourcing platforms like MyGov to continuously gather ideas. Regulators like the Insolvency and Bankruptcy Board of India (IBBI) allow stakeholders to propose new regulations or amendments at any time, with a mandatory obligation for the regulator to consider them. Expanding this practice to all ministries and regulatory bodies, allowing the public to suggest laws and amendments year-round, coupled with an obligation on lawmaking agencies to consider them, would significantly enhance participatory governance and improve the quality of legislative and regulatory outcomes. Codifying these practices would ensure that lawmakers adhere to the same standards of accountability that they expect from stakeholders. Failure to conduct public consultation should render the legislation void ab initio and attract penalties on those responsible. Simultaneously, efforts must focus on building capacity and creating an incentive structure within the ecosystem to facilitate public consultations with the necessary rigour.
