Thursday, April 15, 2010

NAC-II: Why we must oppose it, and what is the alternative

The National Advisory Council is being reconstituted. Its previous avatar saw a vigorous debate on its constitutional illegitimacy, one that is completely absent this time around. There is a sense that NAC-I did good things (RTI, NREGA), so why oppose it? PB Mehta wrote one of the more critical pieces on NAC-II, but even he focussed only on the lack of clarity over its 'mandate and priorities', rather than its fundamental illegitimacy.

I believe there are good reasons why it was a good thing NAC-I died abruptly, and why NAC-II should not be brought into existence. The critique is familiar: NAC is an undemocratic, unaccountable, constitutionally illegitimate body which must not be supported for strategic/pragmatic reasons. We are setting a dangerous precedent that will come back to haunt us -- how difficult is it to imagine a future government instituting an NAC packed with cultural-nationalists who direct the policy agenda of the country? No one will be able to object to it because no one is objecting to NAC-II. Its legitimacy appears to have been established. And it is not supposed to be democratic or accountable anyway - so who then can question its composition? On what grounds? The current balance of power may have induced some liberals and democrats to accept the NAC, but balance of power changes. We will come to regret having cheered NAC-II just as some of us came to regret having cheered judicial self-empowerment in the '80s. This is always a danger when we compromise on principles for short-term 'pragmatic' gains.

One way to understand the NAC is to see it as a unique institution made necessary by a unique set of circumstances where the leader of the party in power is not the Prime Minister. But political parties tend to have internal processes to influence governmental policy in any case: the letters exchanged between the Congress Party President and the Prime Minister over the last few years and made public recently suggest that this government is no exception. At any rate, the Cabinet, on the whole, reflects the Party leadership. The Party does not need an NAC to influence government policy. The real strength of NAC-I was in bringing in inputs of those who are engaged in non-electoral/civil society politics into governmental policy-making. Although government-appointed ad hoc commissions comprising experts and academics have always advised on policy, NAC is unique in being an official, apparently permanent, policy-proposing body with potentially limitless agenda, and whose members are hand-picked by the President of the ruling party.

While NAC-I may have been productive, this institutional arrangement remains a misguided response to an important and legitimate question: how do we make governmental policy-making consultative, where stake-holders, interest groups and experts are involved in the process. Our mid-20th century political institutions envisage political parties as the only actors in the polity, who make policy indirectly through control of the executive and the legislature. But politics and society have changed since then. NGOs, civil society, interest groups, academics, think-tanks and other experts have become important players in policy making, whose contribution is usually productive. But most of these actors tend not to seek or desire membership of legislatures.

A far better way to accommodate non-party-based democratic voices in the policy-making process is by reforming our legislative processes. Currently, draft Bills are publicly circulated only in an ad hoc fashion by the concerned Ministry. This news item suggests that even Opposition parties find it difficult to access draft Bills (See also, these opinion pieces calling for more transparency in law-making: I and II). Nothing stops the government from introducing a Bill and getting it passed by Parliament within a matter of days. Institutionalising pre-legislative processes where draft Bills are routinely made public, circulated and scrutinised before their introduction in Parliament will be a good start. Legislatures elsewhere have evolved mechanisms whereby their Committees regularly invite experts, academics and grassroots activists for giving evidence on policies being considered. Our parliamentary committees, on the other hand, still hold closed door meetings. Indeed, our system disincentivises even MPs from participating in policy-making. We burden our legislators with administrative duties, requiring them to disburse MPLAD funds. We offer them no research assistance. We do not even allow them to speak their minds and vote according to their conscience. All this needs a serious rethink.

The solution to the need for a more consultative, democratic policy-making lies in strengthening and adapting parliamentary procedures, rather than creating alternative power centres like the NAC that may come to challenge and discredit parliamentary authority. If Ms Gandhi still finds the NAC helpful, let it be a non-governmental think-tank. A democratically-elected Parliament (and state legislatures) must remain the only official fora where policy is discussed, scrutinised and finalised.

6 comments:

Anuj Bhuwania said...

Dear Tarunabh, while I am in substantial agreement with your post, I wanted to ask if you think the Planning Commission would be subject to similar objections as the NAC. Again some of us might prefer P.C. Mahalanobis to MS Ahluwalia, or vice versa, but the non-democratic nature of such a body remains an issue. Actually what is the legal basic of the Planning Commission? As far as I know, its neither a Constitutional nor a statutory body. What provides it with such an important policy mandate?

Tarunabh Khaitan said...

thank you anuj. another reader has asked me very difficult questions through email, and both of your comments have made me think further on some of my ideas. i had muddled too many issues in my post. here are some comments and clarifications:

1. i concede that policy-making and legislation do not entirely overlap. parliamentary preeminence only lies in the field of legislation.

2. there is a difference between initiating, discussing and scrutinising legislation and finalising it. parliament alone has the say in the latter. but with regard to initiating, discussing and scrutinising legislation, i am told, and i think rightly so, that parliament cannot be the only institution doing it. i concede this readily. many official and non-official institutions must play a role at the pre-legislative stage. but i can still restate my case (less strongly) - while we need pre-legislative work to be done at various fora, we should not invent new fora solely for the reason that parliament is not doing what it is supposed to do. if there is a problem with parliament, fix it (the main post suggests some ways of doing it).

3. parliament may not have an exclusive pre-legislative role (initiating, discussing and scrutinising legislation), but it must have a preeminent and prominant role in this regard. this claim relates to issues of political legitimacy (rather than procedural discomforts). if parliament is to enjoy political legitimacy that apex legislatures depend upon, it should not have any institutional rivals that can approximate its roles (even in perception). a politically powerful, unrestricted, NAC has the potential to delegitimise parliamentary preeminence.

4. the final worry in my post related to the undemocratic and unaccountable nature of the NAC. this worry also lies at the heart of Anuj's question. I really don't know what is the legal basis for the existence of the planning commission, whether its members have to satisfy any qualifications, who they are accountable to etc. if it does not have statutory or constitutional mandate, we must worry about the planning commission just as we worry about the NAC (of course, with the caveat that the NAC performed a more obvious 'legislative' role than, i suspect, planning commission does).

So, the NAC should either remain an unofficial/non-governmental body, or it must find statutory basis where its powers, functions, qualifications for membership, terms of reference and accountability structures are strictly defined.

in this light, let me restate the final sentence of my original post:

'Official/governmental fora where policy and legislation are initiated, discussed and scrutinised must be democratic, transparent, accountable, and (perhaps) have statutory pedigree. They should not impinge upon Parliament's formal powers, nor should they challenge or appear to challenge its legislative preeminence.'

Prasan Dhar said...

I think tarunabh has tabled an important point. and his clarification is welcome. but i think his suggestion is still too strong. although his concerns of legitimacy are correct, i dont think that the NAC will ever impinge on parliament's formal (even informal) powers. the ruling party should be free to consult whoever it wishes. after all, isnt the IAS something like the NAC, only formalized? but formality is not the issue. the issue i think tarunabh raises (i think he does) is that one cannot have whoever one wants on the NAC. if we wish to subject MPs to minimum qualifications like not having committed a crime, then so should members of the NAC. but i think that is the only limited sense in which we should meddle with the NAC. just like we want to minimize who we can legitimately elect to parliament.

Rohit said...

Tarunabh, thanks for starting this fascinating discussion.

The Planning Commission is a non-statutory body and was set up under a government resolution. The history of the planning commission as an institution goes back to 1940 where the Congress Party set up a National Planning Committee and invited experts to join. The role played by the planning commission is arguably important than legislation since it determines allocation and priority of functions and initiates several government projects.

If anything, the NAC appears to be a counter balance to the Planning Commission emphasizing the social over the economic.

The key problem here is not the existence of the NAC (indeed its formalization makes it more accountable, than a scenario where Mrs Gandhi had a group of experts advising her behind the scenes) but its the gradual irrelevance of parliament. Even before the NAC, under the NDA or UF governments parliamentary debate was kept to a minimum and most legislations were passed almost formulaically. The NAC does not challenge the parliament's legislative preemminence any more than unelected bureaucrats in the Law Ministry .

The reasons for this are both structural and 'cultural'. Chief amongst them are the strong anti-defection laws, coupled with (as Nick Robinson) pointed out the lack of support that most MP's have.

Perhaps, one needs to reconsider whether India needs to fit into the norms of liberal political theory, whose claims of universality have been successfully challenged. Partha Chatterjee has recently argued that the Indian electorate expectations are different from their representatives. So perhaps, Westminister practices cannot be used as a benchmark from which India (and I suspect most of the world) seems a deviation. Perhaps, we need to think examine more closely the provinciality of much of our political theory.

I have not seen any criticism of the NAC on the grounds of it being non transparent. In several ways, due to the involvement of social activists, its functioning was more transparent than the Cabinet and the Planning Commission.




The strongest point of concern raised by both Tarunabh and Anuj is perhaps the question of democratic gap. Yet, I am not sure whether a situation where the NAC members were all elected to the Rajya Sabha and sat in the same Parliamentary sub committee have would greatly reduce this perceived democratic deficit.

NAC's legitimacy comes from Sonia Gandhi and the Congress Mandate. Yes, the Congress is not the only political party with a power center outside the government. The Left and the BJP have their equivalents, though they are no where as dominant.

There is a lot of scope of criticism for individual projects that the NAC under this regime or if resurrected by other regimes might carry out.

Shamnad Basheer said...

Tarun,

apart from this important issue that you raise, the whole issue of legislation and law making itself needs to be subjected to more intense scrutiny and debate. Many bills are never made public (for debate) till they are tabled in Parliament. The Indian Bayh Dole bill (which many of us vehemently opposed) is an example in this regard. The copyright bill is another example. The government claims that there is no legal mandate to make it public prior to introduction in Parliament--and I suspect they are technically right. However, from a broader constitutional perspective, if "democratic" ideals have to have some meaning, shouldnt we able to legally insist on a more meaningful participatory legislative exercise?

Shamnad Basheer said...

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