विधायी परामर्श में कमी और लोकतंत्र का न्यायालयीकरण: भारत का केस स्टडी

An analysis of India’s pre-legislative consultation process and the resulting shift of deliberation from Parliament to the courts, using the Transgender Persons (Protection of Rights) Amendment Act, 2026 and Aadhaar Act, 2016 as case studies to examine legislative consultation, judicial review and democratic legitimacy.

Introduction

The legitimacy of representative democracy rests on elections: Citizens choose representatives, who then exercise legislative authority on their behalf. In a country as large and diverse as India, this model of legitimacy strains against a basic demographic fact, which is that Parliament does not represent the population it governs. In a country where half the population is made up of women, they hold only 14.3 per cent of seats in Parliament. Muslims make up roughly 14 per cent of India’s population1 but only 4.4 per cent of the Lok Sabha2, and sexual minorities remain almost entirely absent from parliamentary representation.3 Parliament nevertheless legislates for all of these communities, regardless of whether their concerns are represented within it.

This gap between who Parliament represents and who it legislates for raises the question examined in this article: if elections cannot guarantee that every affected community is heard before a law is made, what closes that gap? One answer lies in consultation, the practice of inviting citizens, experts, and stakeholders to weigh in on a law before it is passed. In 2014, the Government of India introduced the Pre-Legislative Consultation Policy (PLCP) to institutionalise exactly this practice.4 A decade on, however, its implementation has been inconsistent. The large majority of bills introduced since 2014 have bypassed consultation altogether, and even where consultation has occurred, it has just been more of a procedural formality, with very short time-frames, and public comments not being published. The test this paper applies throughout is a simple one, following Habermas and Bellamy: A lawmaking process is deliberatively legitimate only if those it affects have a genuine opportunity to reason about it before it is made.5

This article argues that the failure of Parliament to act as a deliberative forum has significant consequences. When Parliament does not consult those it legislates for, the deliberation that should have taken place before a law is passed moves instead to the courts post facto. Constitutional litigation has become the forum in which affected communities, experts, and civil society organisations present their views that pre-legislative consultation should have solicited. However, this occurs once the law is in force, thus making changes far more difficult to implement. The article caveats that the shift in the deliberative forum from Parliament to the courts does not mean that courts are institutionally better suited than Parliament to adjudicate these questions. The courts are built on an adversarial format, not a deliberative one. Rather, following Aileen Kavanagh’s account of collaborative constitutionalism, this article treats judicial deliberation as a response to legislative failure; it is a constitutional necessity rather than an ideal arrangement, which carries its own costs to democratic legitimacy and access.6

The article proceeds in three parts. The first section examines the PLCP’s design and its record in practice. The second section develops the article’s central argument through two case studies Transgender Persons (Protection of Rights) Amendment Act, 2026 and Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (Aadhaar Act, 2016), each illustrating a different dimension of Parliament’s deliberative failure. The final section concludes that Parliament’s deliberative deficit persists even after the PLCP, and that the courts’ resulting role as a site of deliberation, while necessary, cannot substitute for a functioning legislature.

Pre-legislative consultation in India

The PLCP requires Ministries to place draft legislation and explanatory materials in the public domain, provide at least thirty days for public comments, and publish summaries of responses received.7 In practice, this means departments must publish the draft alongside an explanatory note written in simple language. They may record reasons for dispensing with consultation altogether where it is considered “not feasible or desirable”, a discretion vested entirely in the same department whose legislation is under scrutiny.8

Unlike a statutory obligation, the PLCP is not legally binding. Ministries face no legal consequences for failing to comply, and citizens possess no enforceable right to consultation. As a result, the implementation of the policy has remained limited. This weakness is representative of Bellamy’s concern that political legitimacy requires not just the existence of participatory mechanisms but institutions making genuine use of them.9

Research by PRS Legislative Research indicates that since the introduction of the PLCP, 227 out of 301 bills introduced in Parliament from 2014-2022 were not subjected to any prior consultation process.10 Even where consultation occurred, compliance with procedural requirements was often incomplete. More than half of the bills placed in the public domain failed to satisfy the policy’s minimum thirty-day consultation period. Consultation therefore frequently functioned as a procedural formality rather than a meaningful opportunity for public engagement.11

The consequences of weak consultation are visible in several significant legislative controversies. The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020, the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020 and the Essential Commodities (Amendment) Act, 2020, the Muslim Women (Protection of Rights on Marriage) Act, 2019 and the Transgender Persons (Protection of Rights) Amendment Act, 2026, all generated substantial opposition after enactment. In each case, concerns that later became the subject of public controversy could potentially have been identified through meaningful consultation before legislation was passed.12

The judiciary then assumes increasing significance. Individuals and communities excluded from the legislative process frequently challenge legislation through constitutional litigation. The courts become spaces where affected groups, experts, academics and civil society organisations can present competing perspectives and contest legislative choices. The failure of the PLCP therefore does more than weaken deliberative democracy within Parliament; it shifts the institutional location at which deliberation occurs. The failure of legislative consultation disrupts the dialogue between institutions discussed by Dyzenhaus.13 It forces the courts to address questions that should have been resolved through democratic participation before legislation.

The judiciary was not designed to function as a primary forum for public consultation. Yet the persistent failure of legislative consultation has created conditions in which courts increasingly perform deliberative functions that legislatures have neglected. This does not imply that judicial deliberation is preferable to legislative deliberation. Instead, as is consistent with the idea of collaborative constitutionalism, it demonstrates an institutional imbalance where courts are increasingly required to compensate for legislative failures.

The judiciary as a site of deliberative democracy

Under the Constitution of India, courts are tasked with interpreting and applying the law. The developments made through mechanisms like judicial review and public interest litigation (PIL) have widened the domain of the judiciary from being limited to resolving disputes to participating in the process of constitutional governance.

Such development is directly associated with the doctrine of judicial activism. Judicial activism refers to those instances where courts take part in the process of making constitutional standards and public policies, rather than merely interpreting the law. The expansion of judicial power in India is best explained by the “theory of vacuum filling”, developed by S.P. Sathe. This theory suggests that when the political branches fail to adequately discharge their constitutional responsibilities, courts intervene to protect constitutional rights.14

PIL made a notable contribution in this regard. The traditional doctrine of locus standi restricted access to courts because it allowed only those persons who suffered personal injuries to challenge the State. PIL relaxed the doctrine of locus standi and allowed persons concerned and organisations to file petitions on behalf of disadvantaged sections of society. The Supreme Court in Hussainara Khatoon (1) v. State of Bihar increased access to constitutional remedy for undertrial prisoners.15

During constitutional litigation, the consultative process that should have occurred in Parliament instead takes place before the courts. This process involves submissions from a variety of stakeholders, including governments, affected communities, experts, academics and civil society organisations. The courts hear competing perspectives and engage in detailed constitutional reasoning. Although these processes occur after legislation has been enacted, they perform many functions ordinarily associated with legislative consultation.

This understanding of judicial deliberation corresponds with Dworkin’s conception of adjudication. Dworkin argues that constitutional adjudication is an exercise in moral reasoning that requires judges to interpret legal principles in a way that best fits and justifies the constitutional order.16 Constitutional litigation allows for a forum where competing ideas of rights and justice are openly reasoned. Dyzenhaus theorises that the Rule of Law depends upon a “culture of justification”, in which the exercise of public power must be capable of being publicly defended, which is strengthened by judicial review.17

At the same time, judicial deliberation cannot fully substitute for legislative deliberation. The courts are unelected institutions and do not derive legitimacy through democratic representation. Access to courts is limited, while public consultation is theoretically available to every citizen. Shifting deliberation to courts risks displacing democratic judgment with the views of a small group of unelected Judges. The growing role of the judiciary as a deliberative forum is therefore evidence of legislative failure rather than judicial superiority. When legislative authority fails to address the problems arising from a lack of consultation, the courts are forced to step in and become the site of deliberation, out of necessity.

The tale of two failures of consultation

The following sections substantiate the argument above through two illustrations. The first argument concerns Parliament’s failure to consult communities that are structurally excluded from the legislature itself. The second concerns Parliament’s failure to consult even where a law affects virtually the entire population, through a deliberate procedural choice to limit scrutiny. Together, these arguments show that the shift of deliberation to the courts is a recurring pattern that persists even after the PLCP was introduced in 2014.

The exclusion of marginalised voices — the Transgender Persons (Protection of Rights) Amendment Act, 2026

This pattern begins with National Legal Services Authority v. Union of India (NALSA), where the Supreme Court held that there is a fundamental right to self-identification of one’s own gender.18 The court treated gender identity as an essential part of the right to dignity, personal liberty and autonomy guaranteed by Article 21 of the Constitution.

Parliament’s response came five years later, in the Transgender Persons (Protection of Rights) Act, 2019, enacted ostensibly to give effect to NALSA. In practice, however, the Act fell short: rather than recognising self-identification outright, it required a person to obtain a certificate of identity from the District Magistrate, and made recognition as male or female conditional on proof of surgery, reintroducing precisely the external verification that NALSA had rejected.19 These provisions were challenged before the Supreme Court by transgender rights activists.20 That petition remains pending, but it captures a pattern that recurs throughout this case study: legislation nominally responding to a rights-bearing judgment, drafted and passed with little input from the community it concerns.

The gap between the 2019 Act and its implementation became evident in Jane Kaushik (Transgender Rights Enforcement) v. Union of India, where the Supreme Court directed the creation of an Advisory Committee consisting of specialists, noting the gap in implementing the 2019 Act and requiring this committee to suggest measures to better implement it.21 This demonstrates how expert consultation that should have occurred before enactment instead took place through judicial proceedings. Iris Marion Young argues that democratic legitimacy presupposes the involvement of voices that tend to be marginalised in processes of representation.22 The Advisory Committee partially addressed Parliament’s representative deficit by allowing experts and representatives of the transgender community to participate in constitutional discussion, although only after the law had already been adopted.

Rather than closing this gap, the Transgender Persons (Protection of Rights) Amendment Act, 202623 repeated the same mistake at a larger scale. While the 2019 Act defined “transgender” as “a person whose gender does not match with the gender assigned to that person at birth“, the amendment narrowed this definition to: 1) a person having such socio-cultural identities as kinner, hijra, aravani and jogta, or eunuch; 2) a person with intersex variations; or 3) any person or child who has been compelled to present a transgender identity.

The change in law was enacted in relation to a historically disadvantaged group that lacks adequate representation in Parliament, and there was no process of public consultation prior to its enactment. The National Council for Transgender Persons itself publicly objected to the fact that the draft had been kept confidential and that the Council had not been consulted during its formulation.24 This is significant because the Council is a statutory body whose stated objective is “to advise the Central Government on the formulation of policies, programmes, legislation and projects with respect to transgender persons”.25

The amendment worsened the protections available to the trans community in three ways, as the Vidhi Centre for Legal Policy’s submission to the Ministry of Social Justice and Empowerment argued.26 First, it narrowed the statutory definition of “transgender person” and removed the statutory right to self-perceived gender identity that NALSA had recognised and that the 2019 Act itself had at least nominally retained.27 Second, it shifted the process of gender identity determination further toward medical gatekeeping, requiring a District Magistrate to act on the recommendation of a medical board before issuing a certificate.28 Third, it introduced vague and overbroad criminal offences targeting conduct such as “compelling” a person to present as transgender.29

Many transgender people accordingly viewed the Amendment as a withdrawal of the rights recognised by the Supreme Court in the NALSA case, rather than as an administrative adjustment.30 As noted by the Vidhi Centre for Legal Policy, legislation on gender identity ought to take into account the interests of the persons it concerns.31 Through consultation, legislators would have had the opportunity to evaluate the potential effects of the proposed framework and its compliance with the constitutional principles established in the NALSA case.

Such a lack of consultation led to extensive criticism from numerous civil society organisations and rights groups, including opposition parliamentarians and medical bodies who argued that the amendment’s provisions were scientifically and constitutionally regressive.32 Since their claims had not been taken into consideration during the drafting process, several of these organisations petitioned the Supreme Court directly: the court has since issued notice on multiple petitions filed under Article 32 challenging the amendment’s constitutional validity, though it has thus far declined to stay the law’s operation.33

Thus, the public sphere in which the affected community should have exerted influence on the decision-making process only appeared after enactment of the law, during the litigation itself. Following Habermas34, one can say that this process of communication should have taken place within Parliament before the law was enacted. However, it took place in the judicial arena instead because the legislative process of deliberation had already failed. This case shows that when Parliament fails to consult those who are least represented within it in the first place, courts become the last remaining space where their voices can shape the law, even though this happens only after their rights have already been narrowed.

Procedural evasion of scrutiny — the Aadhaar Act, 2016

The second argument is that Parliament’s deliberative failure is not always passive. At times, it is an active procedural choice to limit scrutiny altogether, even where the resulting law affects virtually every citizen rather than a single, identifiable minority. Similar controversy surrounded the Aadhaar Act, 2016. The Act established a nationwide biometric identification system involving the collection and storage of personal data, which affects all residents in India

Concerns regarding state surveillance, privacy, data security and exclusion from welfare programmes were raised, but had not been properly resolved through any consultation process. Furthermore, the Aadhaar Act, 2016 was passed as a Money Bill under Article 110 of the Constitution, which prevents the Rajya Sabha from playing an active role and thus limits parliamentary deliberation. This procedural choice truncated opportunities for public debate, because questions of constitutional importance were not extensively deliberated before enactment. The process for passing a Money Bill is such that once it is approved by a simple majority in the Lok Sabha, it is sent to the Rajya Sabha for its recommendations, which Lok Sabha may reject if it chooses to. If such recommendations are not given within fourteen days, it will be deemed to be passed by Parliament.35 The legislative process is therefore effectively shortened from passing muster in two houses, to only one house of Parliament, in the case of a Money Bill.

These concerns subsequently became the subject of extensive constitutional litigation, including in K.S. Puttaswamy (Privacy-9J.) v. Union of India, where the judiciary became the principal site of deliberation regarding Aadhaar.36 The court examined comparative constitutional jurisprudence and balanced arguments relating to privacy, individual liberty and governmental interests. The litigation resulted in a nine-Judge Bench recognising privacy as a fundamental right under Article 21. The subsequent Aadhaar judgment then assessed whether the statutory framework complied with that constitutional protection.37

Constitutional concerns associated with the Aadhaar Act, 2016 were debated far more extensively before the court than during the legislative process itself. Justice Chandrachud’s dissenting opinion in the Aadhaar-5J. judgment directly engaged with this deliberative deficit by holding that the Bill could not properly have been certified as a Money Bill, and drawing attention to the resulting reduction in parliamentary scrutiny.38 That the question of parliamentary scrutiny itself had to be litigated shows how completely the deliberative function of the legislature had migrated from Parliament to the courts.

The Aadhaar case shows that even a law touching every citizen can bypass deliberation altogether through procedural design. The courts were, in this instance, able to reason deeply about the resulting rights questions and to recognise privacy as a fundamental right. But this depth of reasoning came only after the law was already in force, and it could not fully substitute for the scrutiny that Parliament itself chose to avoid.

Conclusion

This article has demonstrated that the failure of pre-legislative consultation in India has created a disconnect between representative democracy and deliberative democracy. Although India possesses a formal mechanism to facilitate consultation through the PLCP, its inconsistent implementation has done little to change the underlying pattern. Most bills are still enacted without consultation, and where consultation does occur, it is frequently reduced to a procedural formality. Measured against the test set out at the outset of this paper (that a lawmaking process is deliberatively legitimate only if those it affects have a genuine opportunity to reason about it before it is made), Parliament continues to fall short.

The two arguments developed above demonstrate this institutional pattern from different angles. The Transgender Persons (Protection of Rights) Amendment Act shows how Parliament’s failure to consult worsens the position for communities that are already structurally excluded from the legislature itself. The Aadhaar Act, 2016 shows that legislation of universal application can bypass consultation altogether through deliberate procedural design. In both cases, courts became the forum in which the deliberation that should have preceded the law instead occurred after it.

This pattern supports the central hypothesis of this article: In these contexts, Indian Courts have become more deliberative than Parliament. This is not because courts are inherently more democratic institutions, but because developments such as PIL have expanded access to constitutional adjudication, allowing courts to hear voices that legislative consultation failed to reach. Parliament fails to meet the basic requirements of a deliberative democracy, and the 2014 policy meant to fix this has not meaningfully done so; as a result, courts have become the space in which deliberation actually happens in India today.

The challenge for Indian democracy, then, is not to expand judicial deliberation further, but to restore deliberation to its proper institutional location. Until pre-legislative consultation becomes a genuine and enforceable feature of lawmaking, courts will keep filling a vacuum that Parliament itself created. For pre-legislative consultation to have any meaning, the following measures ought to be implemented: 1) pre-legislative consultation with the public at large ought to be mandatory, it is currently being treated as an instruction that can be disregarded; 2) a draft of the intended legislation ought to be published on an online portal along with a public announcement inviting comments; 3) the 30 day time period prescribed ought to be adhered to with no effort to truncate it; 4) all comments received be published online and be publicly accessible; and 5) a fresh draft should be uploaded after taking into consideration the results of public consultation, if any amendments were made. Until the process of pre-legislative consultation be made mandatory and meaningful, courts will continue to remain a deliberative public space rather than the space of last resort that they should be.

*Student, Vasant Valley School. Author can be reached at: zoyas@vasantvalley.edu.in.

1. Census of India, “Religion Data (2011 Census): Muslims”, available at <https://www.census2011.co.in/data/religion/2-muslims.html>.

2. The Hindu Data Team, “Eighteenth Lok Sabha Has the Lowest Share of Muslim MPs in Six Decades”, The Hindu (18-6-2024).

3. “Who is Menaka Guruswamy, India’s First Openly Queer Rajya Sabha MP?” (Firstpost.com, 07-04, 2026).

4. Ministry of Law and Justice, Government of India, Pre-Legislative Consultation Policy (2014).

5. Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (William Rehg tr, MIT Press, 1996); Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge University Press, 2007).

6. Aileen Kavanagh, The Collaborative Constitution (Cambridge University Press, 2023).

7. Ministry of Law and Justice, Government of India, Pre-Legislative Consultation Policy (2014).

8. Ministry of Law and Justice, Government of India, Pre-Legislative Consultation Policy (2014).

9. Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge University Press, 2007).

10. PRS Legislative Research, Functioning of the 17th Lok Sabha (2024) available at <https://prsindia.org/files/parliament/vital_stats/Functioning-17th_Lok_Sabha.pdf>.

11. Chakshu Roy, “The Faults in India’s Law-Making Process”, PRS Legislative Research, (28-1-2022) available at <https://prsindia.org/articles-by-prs-team/the-faults-in-india%E2%80%99s-law-making-process>.

12. Kaushik Basu, “India’s Farm Laws Are a Global Problem”, (Brookings.edu 19-2-2021); “Punishment for Triple Talaq Can Worsen Woman’s Plight” (Deccan Herald, 31-7-2019).

13. David Dyzenhaus, The Constitution of Law (Cambridge University Press, 2006).

14. S.P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits (2nd edn., Oxford University Press, 2003).

15. (1980) 1 SCC 81 : 1980 SCC (Cri) 23.

16. Ronald Dworkin, Law’s Empire (Harvard University Press, 1986).

17. David Dyzenhaus, The Constitution of Law (Cambridge University Press, 2006).

19. Transgender Persons (Protection of Rights) Act, 2019, Ss. 5—7.

20. Grace Banu Ganesan v. Union of India, W.P. (Civil) No. 406 of 2020 (Supreme Court of India, pending).

22. Iris Marion Young, Inclusion and Democracy (Oxford University Press, 2002).

23. Transgender Persons (Protection of Rights) Amendment Act, 2026, amending Transgender Persons (Protection of Rights) Act, 2019.

24. Rajeev Ramachandra, “Why has the Transgender Persons Amendment Bill Drawn Widespread Flak?”, (idronline.org, 24-03-2026).

25. Press Release, Ministry of Social Justice & Empowerment, Central Government Constitutes National Council for Transgender Persons (24-8-2020) available at <https://www.pib.gov.in/PressReleaseIframePage.aspx?PRID=1648221®=48&lang=2>.

26. Aashna Mansata, Namrata Mukherjee, Jwalika Balaji, Naveed Mehmood Ahmad and Kahaan Mehta, Submissions on the Transgender Persons (Protection of Rights) Amendment Bill, 2026 (Vidhi Centre for Legal Policy, 26-3-2026).

27. Mihir Rajamane, “The 2026 Transgender Amendment Bill and its Roll-Back of Constitutional Rights”, Centre for Law & Policy Research Blog (25-3-2026).

28. Mihir Rajamane, “The 2026 Transgender Amendment Bill and its Roll-Back of Constitutional Rights”, Centre for Law & Policy Research Blog (25-3-2026).

29. Mihir Rajamane, “The 2026 Transgender Amendment Bill and its Roll-Back of Constitutional Rights”, Centre for Law & Policy Research Blog (25-3-2026).

30. Aashna Mansata, Namrata Mukherjee, Jwalika Balaji, Naveed Mehmood Ahmad and Kahaan Mehta, Submissions on the Transgender Persons (Protection of Rights) Amendment Bill, 2026 (Vidhi Centre for Legal Policy, 26-3-2026).

31. Aashna Mansata, Namrata Mukherjee, Jwalika Balaji, Naveed Mehmood Ahmad and Kahaan Mehta, Submissions on the Transgender Persons (Protection of Rights) Amendment Bill, 2026 (Vidhi Centre for Legal Policy, 26-3-2026).

32. Rajeev Ramachandra, “Why has the Transgender Persons Amendment Bill Drawn Widespread Flak?”, (idronline.org, 24-03-2026).

33. Sukriti Mishra, “Supreme Court Stays All High Court Cases Against Transgender Amendment Act, 2026; Will Hear Matter Itself”, LawBeat (15-6-2026).

34. Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (William Rehg tr, MIT Press, 1996).

35. Prianka Rao, “Money Bills v. Other Bills”, (22-12-2015) available at <https://prsindia.org/theprsblog/money-bills-vs-other-bills?page=51&per-page=1#_edn8>.

37. K.S. Puttaswamy (Aadhaar-5J.) v. Union of India, (2019) 1 SCC 1.

38. K.S. Puttaswamy (Aadhaar-5J.) v. Union of India, (2019) 1 SCC 1, per Chandrachud, J. (dissenting); see also Beghar Foundation v. K.S. Puttaswamy (Aadhaar Review-5 J.), (2021) 3 SCC 1, where a 4:1 majority declined to refer the money bill question for reconsideration, with Chandrachud, J. again dissenting.

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