We’re part of participatory democracy

The Economic Times, April 25, 2011

By Pradeep S Mehta

Much has been written about the successful campaign by Anna Hazare in raising the ante on corruption and getting the government to agree on the participation of the civil society in drafting the Lokpal Bill. Cynics and sceptics questioned the process on various grounds, including defining civil society advocates as self-appointed guardians of public interest and so on.

The issue of having civil society representatives in this drafting committee is but a product of the huge mistrust with the policymaking process, precisely on the fundamental issue of corruption itself. But to say that the civil society should not have a role in drafting the law is a no-brainer. World over, including India, the civil society is engaged in law-making, which only enriches the tapestry of a participatory democracy.

Drafting a law is the duty of the executive either suo moto or under an international treaty obligation or when Parliament directs it. This is done through a consultative process to get views of all sections. It is the organised civil society that inputs in the process sometimes as part of a committee or through memoranda and/or hearings. Mass movements, like the one launched by Hazare, too work as catalysts and input providers.

The civil society typically comprises of business chambers, trade unions, professional associations and non-government non-profit organisations (NGOs). On all economic legislations, whether new or amendments, often all the four actively participate in the formulation depending on their interest. Business chambers are best endowed in advocacy but the others, including NGOs, are also able to make their views heard.

Indeed, it is the legislature that takes the final call, and that process cannot be usurped by any other process, except in cases where international treaty obligations reduce the space, like WTO agreements or UN conventions. In fact, the parliamentary standing committee system practised in India and other countries invite views of the civil society and citizens on Bills that come up for discussion before being sent back to the House for being adopted. The process does not end there, as the government keeps the power of notifying the law in full or parts, depending on the influence of the vested interests.

From my experience of running a research and advocacy NGO for over 28 years, I have participated in many processes of legislative drafting, both new laws and crucial amendments in some laws, as also commenting on Bills.

Let me narrate some of my experiences: the concept and drafting of the Consumer Protection Act, 1986. This unique socio-economic law was conceptualised by the consumer movement. The then-Prime Minister Rajiv Gandhi agreed with the idea and directed the food and civil supplies ministry to speed it up. The entire process took just about two years, one of the fastest in law-making. We encountered two types of opposition to the concept as well as on some crucial clauses. First, businesses opposed it with the refrain that it will create an inspector raj, when it was creating a free feedback system.

Second, the bureaucracy opposed it on various aspects, such as coverage of the public sector, and also limiting compensation to a ceiling of 20 times the price of the defective goods complained. Imagine receiving a compensation of 20 after losing a life due to an infected injection costing 1 made by a public sector company. Mr Gandhi overruled all the objections and, thus, we now have a very progressive law. Not only that, but several correcting amendments were made in the law over time through a vigorous and structured process of consultation with consumer groups. Even its implementation required several actions by the consumer movement, including filing a writ petition in the Supreme Court.

Another major legislation with which I have been involved is the whole idea and drafting of the Competition Act, 2002, which resulted from evidence-based advocacy with the then-finance minister Yashwant Sinha, in 1991. The Raghavan Committee, which was established to evolve a modern competition law, also had a representative of the consumer movement and we participated actively in drafting of the concept Bill that was floated as a discussion document.

Following that, we participated actively in discussions with the parliamentary standing committee that resulted in the Act, as it stands today. Alas, the government, which is empowered to do so, notified the provisions of the Act in stages. The most controversial section on merger regulation has been notified just now after hectic evidence-based advocacy by us and the Competition Commission of India .

I am sure that the committee that is now drafting the Lokpal Bill will also come out with a concept Bill for wider debate. The fact that the committee comprises of activists and legal brains will surely build confidence in the people and ultimately result in a good forward-looking law. But that will only be the beginning because, again, the civil society has to act as watchdogs and advocates to oversee its proper implementation – which will be another uphill task. There is no section in our society that is not engaged in corrupt activities, hence, implementation will suffer. Therefore, both corporates and NGOs should also be covered under the scope of the law.

But why did Anna Hazare and his colleagues agitate for the law, or why did people like me also lobby for legislative changes? It is because of our interaction at the grassroots we perceive the need for such a law to address the shortcomings in our legal system, knowing that we have to struggle against vested interests that will oppose such reforms.

Also, because we are bound to do so under Article 51A of the Constitution outlining fundamental duties of citizens, inter alia, to develop scientific temper, humanism and the spirit of inquiry and reform; and to strive towards excellence in all spheres of individual and collective activity so that the nation rises to higher levels of endeavour and achievement.

It is not only Hazare and Co but several like us in the civil society who are guided by these duties mandated on us in our Constitution, so that the nation constantly rises to higher levels of endeavour and achievement.

Pradeep S Mehta Secretary General, CUTS International

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