Law-making by and for the people: A case for pre-legislative processes in India

Jain, Dipika (2020) Law-making by and for the people: A case for pre-legislative processes in India. Statute Law Review, 41 (2). pp. 189-206. ISSN 1443593

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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 consultation 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 consultation have been rendered more robust and effective than others. As exemplified by current 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 consultation 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 participation in law-making, particularly when such laws impact marginalized communities, legislation would reflect societal needs and eschew a top-down, majoritarian approach.

Item Type: Article
Keywords: Pre-legislative consultation | Transgender Bill
Subjects: Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Amees Mohammad
Date Deposited: 22 Dec 2021 10:36
Last Modified: 01 Feb 2022 11:57
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