State discretion trumps due process

Replacing MGNREGA without adequate consultation involving the workers is an arbitrary exercise of power

While responding to the debate on the Sabka Bima, Sabki Raksha Bill, which amends three insurance laws and, among other things, permits 100% FDI in Indian insurance companies, Finance Minister Nirmala Sitharaman informed Members of Lok Sabha that these draft amendments were shared with all the states and Union Territories in November 2024 for their comments. The Bill was introduced in the Lok Sabha a year later and passed the same day.

When MPs questioned the rush, the minister responded by saying that not only were the states consulted, but the Department of Financial Services also consulted other stakeholders, such as insurers, industry bodies, regulators, and the public, through their website. Therefore, she argued, it was not a rushed legislation. The government agreed to refer two bills introduced in Lok Sabha in the last week of the winter session – the Viksit Bharat Shiksha Adhishthan Bill and the Securities Market Code Bill – to a Joint Parliament Committee and the Standing Committee on Finance, respectively.

However, for the Viksit Bharat Guarantee for Rozgar and Aajeevika Mission (Gramin) Bill, which repeals and replaces MGNREGA, neither the states nor the public were consulted, nor was the Bill referred to a Committee of Parliament. The government offered no justification for carrying out extensive consultations on some bills but wrongly withholding them on another bill.

This is largely because neither the Pre-Legislative Consultation Policy, 2014, which generally governs consultations before bills are introduced in Parliament, nor the reference of introduced bills to Committees of Parliament is mandatory. Both these processes enable the exercise of discretion by the government. However, when discretion is exercised without justification, it becomes an arbitrary exercise of State power.

In this case, it can be argued that when state governments could be consulted on the amendment of insurance laws a year in advance, why not on the changes made to MGNREGA, considering the ramifications on state finances? MGNREGA workers also have a higher claim to being involved in the making of laws that affect their rights than the insurance companies. But it’s the latter that the government favoured in its exercise of discretion.

This is a violation of Article 14, which mandates the State not to deny equality before law to any person. Extending this non-discrimination principle to law-making processes, it can be argued that the arbitrary exclusion of any stakeholder likely to be affected by a proposed law and policy from the making of that law and policy is violative of Article 14.

Furthermore, any unjustified exercise of discretion by the government which extinguishes avenues for citizens to express their opinion, feedback, agreement, as well as dissent with any proposed government law and policy will fall foul of the mandate under Article 19(1)(a).

Undermining life and livelihoods

The Supreme Court has held that ‘life’ under Article 21 is not mere animal existence, but consists of elements that enable life with dignity. To be able to exercise one’s agency by participating in democratic processes, including law-making processes, is an important aspect of a dignified life.

Besides, livelihood has been identified as a protected right under Article 21 by the Supreme Court, which cannot be taken away by the State without due process. Applying this to the repealing of MGNREGA, which alters the fundamental nature of employment under the Act (from a right to a State charity), the due process should, at least, include the workers’ participation in the making of the new law.

In 2006, the South African Constitutional Court invalidated a series of laws in the Doctors for Life case for failing to involve the public in the making of the laws. The Constitution of South Africa explicitly mandates the National Assembly to facilitate public involvement in the law-making processes, but it doesn’t lay down the means to do that. In this specific case, while consultations were held, the Court found those to be insufficient to meet the constitutional requirement.

Though the Indian Constitution doesn’t explicitly acknowledge a right to meaningful public participation in law-making, it is a necessary manifestation of our constitutional democracy and can be derived from Articles 14, 19, and 21. It must translate into law-making processes which are transparent and inclusive, provide reasonable time and opportunities to all stakeholders to inform laws and policies, and involve unbiased application of mind to the feedback received. None of this happened before MGNREGA was replaced, and for that reason, it can be argued that the new Act fails the test of constitutionality.

(The writer is a lawyer and founder of Maadhyam, a civic engagement initiative)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.