By Kaushiki Sanyal, Senior Analyst, Bharti Institute of Public Policy, ISB
This article was first published in Responsible Business India on April 4, 2013
Given the diversity of our country, how can we ensure that citizens have a say in the laws and policies that are made on their behalf? All citizens need to be treated as agents or stakeholders rather than passive recipients. Therefore, allowing them legitimate ways of engaging and participating in policy designing helps in promoting a strong conception of citizenship. This can be extended to include business entities in India. They are affected by the laws and policies of the land and their legitimate concerns merit due consideration of the policy-makers. Furthermore, by engaging with citizens and businesses, the government can benefit from expert knowledge beyond its immediate realm of information, expertise and advice, while at the same time creating opportunities to educate them about policy alternatives. The increasing complexity of policies coupled with pluralism in society makes this engagement no simple task since the policy-maker has to balance competing interests while formulating policies that serve the best interest of the country.
In this article, I describe the various ways of engaging with Parliamentarians that are available to the citizens, list the gaps and propose that allowing lobbying in a regulated manner would not only increase access for citizens and businesses but also bring in more transparency and accountability into the system.
Current opportunities for public engagement
Currently, stakeholders can participate in legislative process in different ways. First, citizens can launch campaigns to raise awareness about the need for a law in a particular sector or changes to an existing law. Landmark legislations such as the Right to Information Act, the National Food Security Act, the Lokpal and Lokayuktas Act and the amendments to the rape laws are the result of long running campaigns by various activist groups.
The government can also seek the help of expert groups such as the Law Commission or ad hoc committees to draft laws. These committees may seek feedback from all stakeholders including concerned businesses about the provisions of the law. Individual Members of Parliament (MP) can be petitioned, who can then introduce a private member’s bill in Parliament. Although these Bills generally do not get enacted, they act as signaling devices to the government about the need for legislation in a certain area.
The ministry may also seek public comments after it has drafted a law or policy or circulate it among select stakeholders. For example, the administrative ministries sought feedback on the Draft CSR rules in the Company Bill; the Draft Land Acquisition and Resettlement Bill and the Draft Water Policy 2012 within a specified time period (generally 20-30 days). In fact, recently the Committee of Secretaries chaired by the Cabinet Secretary has decided that each ministry should proactively publish proposed legislation on the internet and other media.
Once a Bill is introduced in Parliament, it is generally referred to one of the 24 Department-related Standing Committees (DRSCs), which were formed to scrutinize Bills and other policies of the government in 1993. These DRSCs may solicit feedback from the public by issuing notices in key newspapers and the Gazette of India. The public comments are also tabled in the form of a report. However, the level of public engagement varies with different Bills. For instance, the DRSC scrutinizing the National Food Security Bill, 2011 received about 1.5 lakh suggestions from individuals and organizations while only 16 submissions were received for the Agricultural Biosecurity, 2013. Regulators such as the Securities and Exchange Board of India (SEBI), Telecom Regulatory Authority of India (TRAI) and the Reserve Bank of India (RBI) also solicit public feedback on their draft regulations. For instance, in December 2013, SEBI invited public comments on the Justice Sodhi Committee Report on Insider Trading Regulations and RBI sought comments on the Draft Framework for Dealing with Domestic Systemically Important Banks.
After a Bill is enacted, ministries draft and notify Rules (also known as subordinate legislation) to enable its implementation. These Rules may be scrutinized by the Subordinate Legislation Committee, which is empowered to seek public feedback.
Post legislative scrutiny allows the Parliament to review and evaluate the effects and consequences of an Act following its implementation. However, it is not mandatory in India. It may however be undertaken by bodies such as the Law Commission of India, the DRSCs or a specific commission appointed for the purpose that may hold public consultations.
Addressing the gaps
There are primarily two types of gaps in the policy-making process that need to be addressed. One, the limited opportunities for public participation in the policy-making process and two, the lack of transparency about who has access to policy-makers to influence the decision-making process.
I propose a few ideas to address both types of problems.
Increasing public participation in policy making
The Indian policy-making process provides some opportunities of stakeholder participation but there is significant scope for making the system more inclusive, collaborative and deliberative. Currently, public participation is not statutorily mandated, it is done at the discretion of the ministry or committee. Furthermore, there is little attempt to inform the stakeholders of the process of engaging; it remains confined to a relatively small group which is actively involved in advocacy. Also, there is little transparency in the process itself which allows it to be open to manipulation by interest groups.
India could resolve these issues by adopting some of the best practices followed in other democracies. For instance, it could run civic awareness campaigns, devise political internships and fellowships for young people and increase access to MPs and the Parliament. It could also institutionalize feedback mechanisms in the legislative process. The decision on making pre-legislative scrutiny mandatory is a step in the right direction. Further, after a Bill is introduced in the Indian Parliament, India could make it compulsory to refer it to a DRSC (as is the case in the U.K. and the U.S.). There have been instances where important legislation such as the Special Economic Zone Bill and the National Investigation Agency Bill have not been referred to DRSCs. In order to increase transparency in the feedback process, the government could be required to publish a report demonstrating how the inputs from stakeholders have been considered while formulating the law.
Since post legislative scrutiny occurs rarely in India and is a matter of discretion of the government, there is hardly any avenue for citizens to express their views on the implementation of an Act or policy. India cantake cue from countries where post legislative scrutiny is carried out regularly. . In the U.K., it is compulsory to conduct post-legislative scrutiny within three to five years of the enactment. In the U.S., legislative oversight committees review laws on a continuous basis. In Australia, most laws have to be reviewed within three years. Stakeholders’ comments are also solicited as part of the post-legislative scrutiny process.
Increasing access to policy-makers
Currently, industry bodies, big businesses as well as advocacy groups attempt to influence policy-makers in various ways. However, in India, influencing policy-makers or lobbying is synonymous with bribing and any attempt to legitimise lobbying through regulation is viewed as an attempt to legitimise bribery. However, the simple truth is as follows. First, lobbying is not bribing which is an offence under the Prevention of Corruption Act, 1987. Lobbying simply means providing information and expertise to a policy-maker to further ones cause or interest. Second, it is simplistic to assume that if there is no law that regulates lobbying, the activity is not taking place. Third, in a democracy, lobbying should not be viewed as a necessary evil but a legitimate activity of citizens. However, if the activity is not transparent, public interest may be put at risk in favour of specific interests.
Therefore, India needs to enact a law that treats lobbying as a legitimate activity where the rules serve as a tool to enhance transparency in the policy-making process rather than restricting access to policy-makers. This would also ensure that competing groups have reasonably equal access to policy-makers. Many countries such as the US, Canada, Germany and Taiwan have laws regulating lobbying. Most countries require lobbyists to register with an authority and disclose information about their clients and the methods they employ to lobby.
India can adopt a model that suits its own socio-political needs. Requiring lobbyists to disclose expenses incurred is 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. Thus, removing the stigma attached to lobbying while at the same time regulating it would provide a means to citizens and business entities to participate in the legislative process transparently.