THE modern state has acquired a ‘Fifth Estate’, as articulate and assertive as the Fourth Estate, the media. This Fifth Estate is public opinion. The seemingly amorphous body that is ‘public opinion’ assumes a ferocity of its own whenever it feels neglected, cheated or deprived.

The Indian government has realised this just before the general elections. It decided last month to make pre-legislative consultation with the public mandatory, following the report of a committee of secretaries of ministries, the law ministry and departments, to involve many stakeholders, especially “the common man”, while finalising drafts of laws and amendments to existing law.

They will have to record their reasons in writing for the legislation. Ordinances will be outside the purview of the new practice.

The practice is followed in the US, Canada, South Africa, Switzerland and the UK. Suitable amendments will be made to the Manual for Parliamentary Procedures and Instructions issued by the government on writing cabinet notes.

Predictably, some civil servants baulked at the change raising “practical difficulties” in emulation of Sir Humphrey Appleby of Yes Minister fame. Fortunately, they were overruled.

Every department will be required proactively to publish proposed legislation on the internet as well as through other media. But what one civil servant said is not very reassuring.

According to him all that will be required to be published are “legislation or at least the information that may include brief justification for such legislation, essential elements of the proposed legislation, its broad financial implications and an estimated assessment of the impact of such legislation on the environment, fundamental rights, lives and livelihood of the affected people”.

The details will be kept in the public domain for a minimum of 30 days. This will not do. “Information” published by the government and “brief justification” for legislation are not enough.

The practice followed in other countries, especially the UK, goes far beyond this. The new rule leaves the volume of disclosure to the discretion of the secretary of the ministry.

A fuller account of the raison d’être of the proposed legislation is necessary. The promised “consultation with all stakeholders” would be meaningless without disclosure of all relevant facts.

But even this is not enough. The citizen should not be expected to be grateful for small mercies. He has a right to know and this right extends to consultation on the policy underlying the proposed legislation.

That means consultation before the policy is adopted. Consultation on the mere text of the draft legislation is nothing to be too proud of. The basic policy decision is far more important.

We have been used to White Papers but the ‘Green Paper’ would be a novelty. It is a consultative document in which the government outlines the problem it faces, lists the options, reveals the facts and invites public comment before taking a decision on policy.

It remains uncommitted even if its own preference is candidly set out. That is what the involvement of the Fifth Estate is about and there is nothing particularly revolutionary about it.

As a noted writer put it, democracy is “unfinished business”. The search for means of extending democratisation of the country and its institutions is an endless one.

In Britain precise rules have been evolved to regulate the practice of the pre-legislative consultation. In 1997 the Select Committee on Modernisation of the House of Commons noted that there had been little, if any, consultation with the house before bills were formally introduced, and that consultation with bodies outside parliament with a legitimate concern in the legislation had been “patchy and spasmodic”.

The government issued a Code of Practice on Consultation. It urges all government departments to consult widely throughout the process of policy development. Pre-legislative scrutiny by parliament requires that bills are published in draft well before their formal introduction.

Explanatory notes are published together with the bill, to inform the public of the background, structure and content of the bill.

A regulatory impact assessment is also published, if the bill has an impact on business, charities or the voluntary sector, identifying the interests affected and estimating the likely impact in terms of costs and benefits.

A memorandum must be produced for the legislative programme committee with regard to the bill’s compatibility with human rights.

South Asia has adopted the parliamentary system. But the emulation must cover the recent innovations as well. Legislators confidently cite British law when it suits them; for example on parliamentary privileges to be invoked against the media.

But they deliberately ignore changes in British law and practise which ensure greater accountability to the citizen. The Fifth Estate must assert itself with greater vigour. n

The writer is an author and lawyer based in Mumbai.