Wednesday, September 10, 2014

The JAC Bills: From Representative to Deliberative Democracy?

In a recent op-ed in the Mint, I lament the lack of public consultation in Indian law and policy making. I argue that its high time we moved from representative to deliberative democracy. I note the existence of a cabinet resolution calling for public consultation but note that it is weakly worded and that we need a stronger legal entitlement to the same. I extract some portions below. And welcome thoughts and suggestions. You can access the full piece here

Judging a Democratic Deficit: Some Excerpts

"I intend neither to praise the Bills nor to bury them, but to point to a cardinal flaw in the lawmaking process here—that the law was introduced in Parliament without any significant public consultation. And this despite the fact that the Bills related to one of the three key pillars that constitute the modern state—the judiciary. The genesis of the present set of Bills can be traced to an earlier set presented before the Rajya Sabha in 2013. Since they lapsed with the dissolution of the Lok Sabha, the government reintroduced the Bills in Parliament after taking into account most suggestions of the parliamentary standing committee. However, neither the present set of Bills nor the earlier ones was ever thrown up for public deliberation prior to their introduction in Parliament. In a country that prides itself as the world’s largest democracy, this is utterly shocking, but hardly new. One can cite numerous instances of more egregious infractions, where the public had no inkling of a new law being afoot before they read about it in the papers as having been introduced in Parliament. 

Clearly, this must change. One cannot remain content with a mere representative democracy, where the public engagement begins and ends with the casting of a vote, lasting but a few seconds (not counting the wait in the queue to get to the polling booth). Rather, one needs to move to a more direct and deliberative engagement with democracy. One way of bringing about this transition is through the fostering of public participation in law and policymaking. 

.....Interestingly enough, a cabinet resolution issued in January this year mandates public disclosure of draft Bills, but leaves the issue of consultation with key stakeholders as a discretionary power in the hands of the concerned ministry. This cabinet resolution might be the best place to start with in terms of ushering in a new era of deliberative democracy. The government should immediately make this more public, as it is conveniently hidden in one of the pages of the unsearchable ministry of law website, and solicit views to help improve it. It should then take the suggestions into account and draw up a Bill that would convert this toothless cabinet policy into an enforceable legal entitlement. More importantly, given our alleged technology leadership, it would help to first build an easy-to-navigate digital platform for eliciting public views on any new law or policy.

Opening up lawmaking in this way is likely to have other benefits as well. For one, as with open source software and the wonderful innovation that it helped unleash, an open platform benefits from the ingenuity of multiple minds and may throw up far better ideas than a closed-door setting. The challenge, of course, is to coordinate this openness in such a way that the costs do not outweigh the benefits....." 

Oxford Report on Pre Legislative Briefing

For an in-depth view of these issues and a comparative perspective on pre-legislative consultation, see this insightful report by Tarunabh and team. He'd blogged on it earlier here

Anna Hazare and Law Making:

In a piece penned around two years ago (during the height of the Anna Hazare agitation), I had reflected on a similar theme for the Times Crest and noted:

"Given this backdrop, the moral success of the Hazare agitation throws up an excellent opportunity to open up this closed law-making process and to pave the way for more deliberative discussions. Unfortunately, the Hazare movement has come across as controlled by a select few who wish to replace the government coterie with their own. 

Questionable as their means are, Hazare and club have broken new ground by gaining admission to a closed-door law making process. It would be a travesty if they now replicated the hegemony they seek to challenge. They must now leverage the moral capital gained so far and translate it to a call for wider and more informed public policy and law making. This must involve not just educating and sensitising the public, but also our ministers and parliamentarians. For, in the allegedly selfless act of starvation by an endangered Gandhian species lies the hidden potential to begin the slow process of transformation from a largely formal democracy to a more substantive and participatory one."

The Indian "Bayh Dole" Bill And Secret Law Making:

Also for those interested, this sheer lack of public consultation in law making was most egregiously witnessed during the making of a bill relating to publicly funded intellectual property. I reflect on this in this article for the Columbia Journal of Asia Studies. The full piece can be downloaded from SSRN here and the key portion of the abstract dealing with "secret" law making is as below:

"We also reflect on the “secret” history of the Bill and how it was for­ formalistically drafted without thorough study and investigation of the realities pertaining to publicly funded research and patenting activities in India. The paper will show that the passage of the Bill demonstrates non­ transparency of the highest order and lessons in he “don’ts” of lawmaking in a healthy democracy."

ps: I want to thank Arghya Sengupta, Sai Vinod and Prianka Rao for helpful inputs that went into shaping the Mint editorial. As always, grateful for reader comments and suggestions. 
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