This article was first published in the Livemint and the Wall Street journal on June 19th, 2013
Lobbying is arguably one of the most controversial activities in modern democracies. Lobbyists provide governments with valuable policy-related information and expertise but if the activity is not transparent, public interest may be put at risk in favour of specific interests. India currently does not have a law to regulate lobbying. But recent corruption scandals involving lobbying by big businesses have increased public pressure for a law to regulate the activity.
Should lobbying be treated as a legitimate activity in a representative democracy? It is worth noting that no country in the world, including India, has banned lobbying. In fact, only a few countries even regulate the activity, prominent among these are the US, Canada, Australia, Germany and Taiwan. These countries treat lobbying as a legitimate right of citizens. Regulations serve as a tool to enhance transparency in the policymaking process rather than restricting access to policymakers. In fact, that is one of the key reasons why the UK regulates the lobbied rather than lobbying. Therefore, the thrust of the Indian law should be to incentivize lobbyists to identify themselves and ensure that competing groups have reasonably equal access to policymakers.
The effectiveness of the law largely depends on how it defines lobbying and lobbyists. Countries such as the US, Australia and Canada define lobbying as any communication with a legislator or a bureaucrat to influence decisions on a policy matter. However, the law generally exempts communication with parliamentary committees and responses to requests made by the government from specific individuals or groups.
In India, there is some confusion among policymakers about what constitutes lobbying. For example, during the furore over Wal-Mart’s disclosure of lobbying activities in India, Bharatiya Janata Party (BJP) leader Ravi Shankar Prasad denounced lobbying as nothing but a euphemism for bribery. In contrast, a private member’s Bill to regulate lobbying was recently introduced in the Lok Sabha by Kalikesh Narayan Singh Deo, which defined the term as “an act of communication with and payment to a public servant with the aim of influencing” legislation or securing a government contract. The Bill required lobbyists to register with an authority and declare certain information.
However, a lobbying law should not legitimize bribery or corrupt practices since it prioritizes private gain over public interest. Lobbying should be defined to include only those activities that further the ideals of participative democracy.
In countries such as the US, Australia, Canada and Poland only professional lobbyists are regulated. Taiwan, however, includes both individuals who lobby on their own behalf and professional lobbyists.
In the Indian public consciousness, lobbyists are viewed as representatives of big businesses who indulge in corrupt practices to push their agenda. However, there are a large number of advocacy groups who campaigns for policy reforms. One of the most successful campaigns was run by the Mazdoor Kisan Shakti Sangathan (MKSS)—a coalition of non-governmental organizations—for the Right to Information Act. Women’s organizations have campaigned for women-friendly laws such as the Protection of Women from Domestic Violence Act, 2005. More recently, Anna Hazare led a popular campaign for the establishment of an anti-corruption body called the Lokpal.
The influence of these groups lies in the public support they command. Therefore, there is merit in including both commercial and advocacy groups in the definition of lobbyists so that neither have undue advantage in influencing policymakers nor is there a restriction to access for any group.
Most countries require lobbyists to register with an authority and disclose information about their clients and the methods they employ to lobby. For example, in the US, lobbyists are required to make quarterly disclosures of their expenses. In Germany, law makers are required to disclose their communications with lobbyists. Countries also levy different penalties for contravention of the law. In Australia and Slovenia, a lobbyist may be prohibited from engaging with policymakers if he violates the law. In the US and Canada, a defaulting lobbyist may be fined or imprisoned.
India needs to determine a regulatory model that suits its socio-political needs. Furthermore, it should tread a fine line while drafting the disclosure requirements. Too high disclosure requirements could drive lobbyists underground while too low penalties may not act as sufficient deterrent for law-breakers. It may be noted that the Right to Information Act, 2005, also stresses on voluntary disclosures by public authorities. If public authorities pro-actively disclose information, it can complement the disclosure requirements under a lobbying law.
Although lobbying by various interest and advocacy groups is widespread in India, the public mostly remains unaware of it unless a scandal breaks. A law to regulate lobbying could pave the way for transparency in the policymaking process. Disclosures of expenses incurred by lobbyists and financial accounts of law makers are likely to force interest groups to engage in the legislative process through legitimate means. Universal access to information on expenses and details of communications with policymakers would give impetus to more debates in the public domain. A shift to lobbying as a means of engaging with the legislative process would further the ideals of a participative democracy.