[This is a guest post by Shamik Datta and Ishika Garg. It was first published on the I-CONnect Blog, on 7 October 2021.]
Recently, in the case of Rajeev Suri v. Delhi Development Authority, the Supreme Court of India has recognised participatory democracy as a strong element of the Indian representative democracy, embedded in the Constitution itself. However, the government has failed to echo the judicial position towards public participation in its recent legislative processes. This is reflected in the ongoing Winter Session of the Parliament. Of the 29 Bills listed to be passed this Session, 17 have seen zero public consultation. Legislative processes of this kind are increasingly becoming a trend, with more than 73% of the Bills recently introduced seeing no public consultation. Even those legislations and regulations which saw a public consultation process on paper, were virtually deprived of any effective public scrutiny in practice. While some of these processes did not account for vernacular languages, the others suffered from the vice of an incredibly short public consultation period, and sometimes both. Examples of such legislations and regulations include the 2021 Draft Lakshadweep Development Authority Regulation (‘LDAR’) and the infamous draft Environment Impact Assessment (‘EIA’) notification. In this post, we argue for the inclusion of a right to public participation within the ambit of Article 21 of the Constitution, in cases which directly concern the right to life and livelihood. To support this, we shall draw strength from a comparative constitutional position on this subject-matter in other common-law jurisdictions, and rely on recent Indian legal developments.
Introduction: Locating the right to public participation
When it comes to locating the right to public participation in the Indian context, a lot can be gained through a reference to the jurisprudence evolved by the foreign courts in this regard. The true meaning of public participation has been realised by the Kenyan courts. Perhaps the most notable of these cases is that of the Mui Coal Basin Local Community, in which the Kenyan Court laid down a four-fold test to examine whether public participation has been realised in a particular case. First, the concerned governmental authority must craft a public participation programme which accounts for both the quantity and quality of those who are to be governed. This shall ensure that the governed can participate in their own governance. Second, a test of effectiveness was laid down by the Court. As per this, the concerned authority must provide the governed with a reasonable opportunity and forum through which they can adequately ventilate their views. Third, the programme must include access to and dissemination of the relevant information to the governed. Lastly, the public participation process must be diverse, and most importantly inclusive. This view was further affirmed by the Court in the Al Ghurair case, where it was held that the process must be inclusive as opposed to exclusive, and the concerned authority must undertake reasonable efforts to ensure the same.
Translating these requirements into the Indian context, we see that recently introduced legislation fails on all these counts. For example, the LDAR was published only in English, when only one person is registered as literate in English in Lakshadweep, as per the 2011 Census. By not accounting for the local vernacular languages, the LDAR has tainted the public participation process with an exclusionary approach. The authorities failed to factor in both the quality and quantity of the governed. This isn’t an isolated instance where the fundamentals of the process have been flouted. Previously, the government published the EIA notification only in the online format. Official data makes it clear that only 25.36% of the rural population, who will be most affected by this notification, have access to the internet. Far from providing the governed with a reasonable opportunity and forum to voice their views, the process denies them access to the relevant information.
South African jurisprudence supplements the Kenyan Courts’ reasoning in this regard. In Doctors for Life International v. Speaker of the National Assembly, the duty of legislative bodies to facilitate public involvement in the law-making process was examined. The South African Court in that case was of the view that participation by the public on a continuous basis is vital to the very functioning of a representative democracy. In fact, such participation is imperative to accommodate pluralistic viewpoints in order to ensure the wide acceptance and effectiveness of such laws in practice. This principle of including the duty to facilitate public involvement in legislative and other processes under public participation was reiterated in King v. Attorneys Fidelity and Matatiele Municipality.
Furthermore, in Doctors for Life it was held that the government’s duty to facilitate public participation manifests itself through two elements. The first element requires the government to ensure that the citizens have the necessary information to meaningfully engage with the law. The other component relates to granting citizens an effective opportunity to exercise their right to political participation. These elements have been recognised within Article 21 of the Indian Constitution in several cases. In Reliance Petrochemicals Ltd v. Indian Express Newspapers, the Supreme Court of India held that the right to know is a necessary ingredient of participatory democracy, and is included under Article 21. Additionally, in Kamil Siedczynski v. Union of India, it held that the expression of one’s free will through political participation is a part of their right to life and personal liberty. By recognising the two elements of public participation under the right to life and liberty, we believe that the Indian courts have effectively paved the way for the inclusion of a larger right to public participation within Article 21.
This line of reasoning is further substantiated by recent Indian jurisprudence surrounding public participation. The case of Hanuman Laxman Aroskar v. Union of India serves as the starting point for such an understanding. In that case, the Supreme Court of India held that public participation should not be reduced to a mere procedural formality which must be completed before proceeding to the next stage. The Court recognised that the constitutional value underlying public participation is that the decisions which affect the lives of individuals must, in a democracy, account for their concerns. In locating a larger right to public participation within the meaning of Article 21, we must understand the degree to which a particular policy affects the lives of the governed. In Research Foundation v. Union of India, the primary subject matter was the banning of the import of toxic and hazardous wastes. In that context, the Supreme Court of India held that the right to information and public participation in matters which concern the protection of the environment and human health, is an inalienable right under Article 21. While the right to information has already been recognised under Article 21, what is essential to the present discussion is the question of the status of public participation in the Indian jurisprudence.
This aspect can be better understood by referring to the Supreme Court of India’s decision in Rajeev Suri. Therein, the Supreme Court of India held that public participation is required in any instance, where the subject matter in question has a direct bearing on the lives and livelihoods of the concerned segment of the population. It can then be said that the courts have repeatedly recognised the need for public participation in those cases which directly impact on certain persons. As discussed, in Research Foundation, while emphasising on the large impact that a change in the environmental policy would have on the public, the Supreme Court of India even recognised such public participation as a right under Article 21. Translating the recent decisions into a broader framework, we argue that public participation must be viewed as a right under Article 21, in those contexts where a certain policy has a direct bearing on the lives and livelihood of those concerned.
The right to public participation is meant to cross-fertilise and enhance a particular policy decision with the views of those who will be most affected by the decision at hand. The engagement of the civil society in the law-making process serves to enrich the tapestry of a participatory democracy. However, the recognition of this right under Article 21 is only the first step towards fulfilling the ultimate goal of giving the governed a voice in their own governance. To truly realise the democratic constitutional ideals, the mere formal existence of public participation in any given case shall not suffice. In practice, the right must play out in the manner envisioned by the Kenyan and South African Courts. In our opinion, the sanctity of the public participation process cannot be entirely extinguished or reduced to a mere formality. Instead, these processes must adhere to the well-defined tests laid down by the Kenyan Court in Mui Coal Basin. As emphasised in Doctors for Life, the governed must be given a reasonable and effective opportunity to have a say in matters which directly affect them.