constitution – Derek O'Brien

The release of the draft rules for the Digital Personal Data Protection Act, 2023 (DPDP Act) for public consultation, more than 16 months after the Act was passed, has restarted discussions on the importance of public participation in lawmaking, particularly for pieces of legislation that significantly impact individual rights. Given its implications for privacy and digital governance, the delay in consulting the public on the implementation of the DPDP Act has drawn scrutiny.

This instance is emblematic of the broader issues surrounding the Pre-Legislative Consultation Policy (PLCP). In 2014, PLCP was formulated by the Ministry of Law and Justice. The policy is supposed to be followed by all departments and ministries before any legislative proposal is submitted for consideration. It has been a decade since the PLCP has come into effect. The question is: How many legislative proposals have actually undergone public consultation, and to what extent has the policy been effectively implemented across ministries and departments? The Union government was asked a pointed question in Parliament: How many Bills had been placed in the public domain for consultation before introduction? The response from Kiren Rijiju, then Union Minister of Law and Justice, was that the Ministry does not maintain any record relating to compliance with respect to the PLCP. (Another example of NDA – No Data Available!).

Non-obligatory Nature of PLCP: Paragraph 11 of the PLCP allows ministries and departments significant discretion to bypass the policy’s requirements if they deem public consultation to be “not feasible” or “undesirable”. This broad exemption creates a major loophole that undermines the very purpose of the policy. By granting government bodies the power to unilaterally decide when public input can be avoided, the provision weakens the commitment to transparency, accountability, and participatory democracy.

Such flexibility can be easily misused, leading to important legislation being passed without considering the views of those who may be affected. The ability to sidestep consultations without clearly defined criteria opens the door for arbitrary decisions, potentially resulting in laws that do not adequately reflect public needs or address stakeholder concerns. In essence, this undermines the fundamental aim of the policy: To ensure that the legislative process is inclusive, deliberative, and that voices of citizens are heard and considered before laws are enacted.

Poor Scrutiny and Quality of Legislation: The widespread public protests and strong opposition to controversial legislation, such as the CAA-NRC Bills and the Farm Bills, are examples of hurriedly legislating without meaningful consultations with key stakeholders. Several other significant pieces of legislation, including the Right to Information (Amendment) Act, 2019, the Unlawful Activities (Prevention) Amendment Act, 2019, the Insolvency and Bankruptcy (Second Amendment) Bill, 2021, were all tabled in Parliament without any prior engagement or consultation with the public. These instances reflect a broader trend of flippant legislative procedure without adequate public input.

Even when consultations do take place under the PLCP, there is no mechanism to ensure that they are conducted in all relevant languages and are well publicised, limiting accessibility for many citizens. Here are some startling statistics. As per PRS’s data from January 2022, three out of four bills introduced in Parliament bypassed any form of prior public consultation. Also, bills that were subjected to consultation, more than half (a whopping 54 per cent) did not comply with the mandated 30-day consultation period.

Best Practices: In South Africa, the constitution requires that all proposed legislation undergo a process of public engagement before being enacted. This mandatory public involvement ensures transparency and accountability in lawmaking, with any law that does not follow the prescribed consultation process being deemed unconstitutional and struck down by the courts. The emphasis is on inclusivity, allowing citizens to actively participate in shaping the laws that govern them.

Similarly, South Korea has institutionalised public participation in the legislative process by mandating that draft bills be published in advance. The draft legislation is made available for a minimum of 20 days before being introduced in the legislature, providing ample time for citizens to review and voice their opinions.

[This article was also published in The Indian Express| Friday, January 17, 2025]

Some people on Twitter say it like no other. “It’s rather amusing that One Nation, One Election abbreviates to ONOE – oh noe!”.

After the Union Cabinet cleared the One Nation One Election (ONOE) proposal, legacy television channels, dutifully, complied with the Bharatiya Janata Party (BJP) playbook. Distract from the real issues: unemployment, inflation, anti-federal policies, Manipur, a plummeting rupee, fuel prices not being cut despite a decline in global crude oil prices, and more.

Just Like The Women’s Reservation Bill

This is very similar to when the Women’s Reservation Bill was passed last year. The news stayed on primetime, tucking away the government’s ineffectual handling of the Manipur crisis. These con jobs have a pattern. The Women’s Reservation Bill can only come into effect after the Census and delimitation exercise have been completed. So, the earliest that it can happen is 2034. The ONOE is another ‘Weapon of Mass Distraction’!

As my colleague in Rajya Sabha and eminent jurist P. Chidambaram pointed out, “ONOE would require at least five constitutional amendments”. The High Level Committee (HLC) on ONOE, headed by a former President, recommended 18 amendments to the Constitution and other statutes of Union Territories having Legislative Assemblies. This would require a Constitution Amendment Bill to be passed in Parliament, with a special majority (a majority of the total membership of the House and a majority of not less than two-thirds of the members of the House present and voting). Daydreaming is a popular hobby.

Under Article 368(2) of the Constitution of India, ratification by not less than half of the states will be required to carry out amendments to Article 324A to facilitate simultaneous elections of Panchayats and Municipalities. Similarly, in order to have a Single Electoral Roll, an amendment to Article 325 is required. To implement this amendment, ratification by not less than half of the States would be required.

Here are six reasons why ONOE is antithetical to federalism:

In March 1994, the S.R. Bommai v. Union of India case, a landmark in safeguarding Indian federalism, strengthened the autonomy of states within the Indian polity. Thirty years later, in March 2024, the HLC submitted its report on simultaneous elections. However, the committee’s composition failed to reflect the federal nature of the Constitution, as it did not include a single Chief Minister or representative of states.
The Terms of Reference (ToR) of the HLC are, in themselves, conclusive proof of the government’s blatant disregard for federalism. The second ToR tasks the committee with the dubious mandate to “examine and recommend if amendments to the Constitution would require ratification by states”. Any constitutional amendment to implement simultaneous polls would directly impact the tenure of state assemblies and governments. Even the Law Commission in 2018 had suggested that while such amendments might not fall strictly under the proviso to Article 368(2), the government should still seek ratification from at least half of the states as a matter of abundant caution.
A study conducted by IDFC Institute showed that there is a 77% possibility of voters voting for the same party at centre and states if simultaneous elections take place. The study analysed voting behaviour for four rounds of Lok Sabha elections (1999, 2004, 2009 and 2014) in states where the assembly elections coincided with the Lok Sabha elections.
The BJP government, predictably, seeks to homogenise electoral opinion across all facets of political and personal life. As the 1960s, particularly 1962, demonstrated, simultaneous elections can sway voting behaviour and sideline regional aspirations and state-level issues. In the 1962 General Elections, the party that won at the Union swept the simultaneous State Assembly polls in Madras, Gujarat, Bihar, Andhra Pradesh and Assam.
The Election Commission has struggled with the logistical complexities of conducting multi-phase elections. The 2019 Jharkhand Assembly Elections were held in five phases and the 2021 West Bengal Assembly Elections were held in eight phases. Lok Sabha elections across three states were held in seven phases, and even then, it took 11 days just to release the voter turnout data for Phase 1. And you are talking about conducting simultaneous polls!
Why were the Maharashtra elections not announced along with elections in Haryana and Jammu & Kashmir? Here’s why. The Maharashtra government announced the Ladki Bahin scheme in the budget this June. The first tranche reached the bank accounts of women in August and second tranche will reach beneficiaries mid-October.

More questions. The Chief Minister of West Bengal, Mamata Banerjee, in a detailed letter to the HLC in January 2024, asked how many state assemblies’ terms would need to be curtailed or extended before implementation of ONOE? And once implemented, what would happen if a state assembly or the Lok Sabha is dissolved before its five-year term? So, fresh elections will be held for the remainder of the term. This in itself is contrary to the very idea of ONOE. Oh Noe!

[This article was also published in NDTV | Friday, September 20, 2024]

Tag: constitution

How laws are passed under NDA – in silence, without consultation

One Nation One Election (ONOE) Is Oh Noe!

Just Like The Women’s Reservation Bill