That laws, policies and development projects should be evolved through consultative processes has been a rallying cry for some time now. But just how consultative is consultative, is something called for introspection. Is consultative about the views /votes of majorities? Is consultative about taking the views of technical people? Is consultative about setting up a Law Commission or a task force or a special committee or a House committee to look into a matter and they then calling the public to respond, often through an inconspicuous advertisement in some newspapers, to a proposed draft legislation? Is consultative about asking a law college or a public law school to take up the matter, discuss it at whatever levels it deems fit and give its feedback? Is consultation about outsourcing the process to an NGO? Is consultative about getting the matter discussed through the concerned Department’s functionaries at the taluka level organising a meeting, to take suggestions for the legislation concerned? Is consultative about discussing the matter at Panchayat meetings and gram sabha meetings everywhere and drawing the consensus from these? Is consultative about ward committees constituted by Panchayat discussing the topic allotted to them and giving their suggestions/feedback? Is consultation about feedback from each of the numerous special commissions that have been set up like the State Human Rights Commission, the State Commission for Women, the State Commission for Protection of Child Rights, Backward Classes Commission? Is consultation about public hearings? Is consultation about the “wisdom” of the Legislative Assembly since the elected persons are supposed to be representatives of the people?
Several of the above dimensions of ‘consultative’ in different permutations and combinations have been deployed at various points of time by successive Governments. These consultative processes have been engaged in sometimes for strategic reasons by the State itself, sometimes at the initiative of a politician, sometimes at the initiative of a dynamic bureaucrat, sometimes at the initiative of someone who wanted to score brownie points, sometimes on account of bending to people’s pressure, sometimes at the behest of vote-bank, sometimes on account of a well-orchestrated campaign. Successive Governments have primarily gone by the majoritarian logic in getting legislation enacted. Most legislation is enacted by passage by the ruling party. In a small state like Goa, a lot is also determined by ego-centric politics.
There have been several experiments in consultative processes and these could have otherwise been held up as salutary but for the fact that they faltered at critical points. For instance, when a bureaucrat of the day was keen on initiating a discussion on what is necessary for a child-friendly Goa, there was an entire consultative process that involved the Child Development Project Officers calling taluka level consultative meetings in collaboration with any one or two civil society organizations active in the taluka. This was followed by District level consultations and capped with State level consultations, from which it finally emerged that holistic legislation is necessary. There were even special consultations organized to factor the voices of children who were central.
Considering the dimensions of what was demanded, it would have been in place to initiate another round of consultations after what was proposed was drawn up into legislation by a mixed team of experts/law department with civil society representation, entrusted with the task. But that was not to be. It requires an inclusive spirit to recognize both professionalism and the intrinsic value of people’s experiences and thoughts. If this is lacking, then the process goes awry.
There were also no discussions in the Assembly for it probably was seen as politically incorrect to say anything against a proposed legislation that was meant to benefit children and which did not on the face of it seem to be harming any of their constituencies. To the extent that there were many a provision that were salutary and there were certain obligations cast on the State, the Government in fact sought to defeat participatory processes and initiated discussions with civil society organizations, after the passage of the law, with the ulterior motive of getting a voice vote in support of its own agenda of retreating from the obligations it had taken on itself in the legislation in the first place.
More recently on the Medium of Instruction issue, the Government constituted what it called a consultative committee to have what it called a clear policy on Medium of Instruction. Here again, they went half way in the sense that the Committee was constituted and people’s opinions were sought but no public hearing given.
A consultative process was also woven into the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The law requires that social impact assessment be done after consultation with bodies including the local self government bodies. The Chief Minister of Goa is on record to say that he finds the law restricting. In Goa, even the approach paper to Five Year Plan is not discussed with civil society, as it is in some other States of India, despite Goa being projected as a forward state. Not to speak of the amendments to the Constitution for Panchayat and Municipality Raj not reflecting even in the Town and Country Planning Act under which Regional Plans are drawn up.
Earlier this year, the Committee of Secretaries at its meeting on Pre-legislative Consultation Policy decided that every Department/Ministry should proactively publish the proposed legislations both on the internet as also through other means and set out details of the same in simple language giving the 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 environment, fundamental rights, lives and livelihoods of the concerned/affected people, etc. It further pointed out that such details may be kept in the public domain for a minimum period of thirty days for being proactively shared with the public and more particularly the people likely to be impacted by the concerned proposed legislation. It also required consultations to be held with all stakeholders. But this seems to have remained simply a dead letter at least in Goa.
One has also to be alert about a bald statement by the State about consultative and participatory processes without defining the same. The processes cannot but recognize the population politics in the State and yet it cannot be discussed in the simplistic terms that xenophobic interests do. Care has also to be taken to ensure that the participatory consultative process does not become a tool in the hands of manipulative forces or a tool of majoritarian politics.
In the ultimate analysis, one can say that in determining any legislation, plan or policy, there is need for both common wisdom as well as rigorous scientific wisdom, founded on the principle of substantive equality, and factoring the specificities of Goa’s ecological forms, history and social structures, as civil society organizations have been at pains to point out.
(Albertina Almeida is a lawyer)
