“If I need to open a paint can, I don’t need to use the can opener; I can use my screwdriver to jam holes into it.” This, according to Alok Prasanna Kumar, a senior resident fellow at Vidhi Centre for Legal Policy, is what characterises regulatory approach in India. “Unfortunately that is the regulatory approach because I [the regulator] have the power to make rules or issue notifications or circulars, I will do whatever I feel like because this is most convenient for me or this is most useful for me,” Kumar continued.
MediaNama’s first #PolicyNext conference was held in Delhi on June 27th. One of the areas of discussion was the evolving process of policymaking.
Policy-making needs to be participative
The key problems with the policy-making process that the panel highlighted were inconsistency, and lack of diversity, inclusion, transparency, accessibility, and accountability. Additionally, the policies failed to identify the problem adequately, and often came up with disproportionate solutions.
NIPFP’s Smriti Parsheera drew on the work of the Financial Sector Legislative Reforms Commission, set up by the Ministry of Finance between 2011 to 2013, and led by Justice Srikrishna, to illustrate the principles that should govern the work of any regulatory body.
The first thing to consider is the functioning of the board of any regulatory body: who is on the board, how many people are executive, how many are non-executive, how do they function, what are the criteria for the meetings, how is it held, what is their level of transparency, do we know who dissented. That, Parsheera argued, is the first pillar of a well-functioning structure.
The second is the recognition of the fact that a regulatory agency functions like a mini-state. “There are some clear demarcations between .. legislative, executive and judicial functions. But when you look at a regulatory agency, its functioning like a mini-state, that’s the term FSLRC uses, it’s doing all of these three functions, which is why it is so important that there’ll be different standards of accountability and transparency in the way that they function because they are doing something which ordinarily is not meant to be done, this is meant to be done by different agencies but when one person is doing all of this, you need to be all the more careful,” Parsheera said.
The last is about reporting and accountability. “It’s about like you know what do you see in an annual report of a ministry or an annual report of a regulatory, you just see like tons of information about the events they organised or conferences that happened, where did they go, etc. but you see very little about the outcomes and really tangible stuff,” Parsheera explained.
How should consultation processes be run?
Public participation needs to happen with four different audiences: the public, the relevant stakeholders, intern-ministerial and inter-departmental participation (participated collaboration), and experts and activists who are working in this space. Parsheera argued that closed door meetings were also valuable, but there has to be transparency about the fact that the discussion happened, and what the outcome of that discussion was.
Parsheera cited an article by Anirudh Burman and Bhargavi Zaveri that measures “the extent to which Indian regulators are responsive in the performance of their functions”.
So, they [Burman and Zaveri] look at TRAI, IRDA, SEBI and AERA, which is the Airports Economic Regulatory Authority, and they try to map like so most of these steps are you know followed by TRAI but what they find in their papers that despite the fact that this is being done, they don’t score very high, I think they score about 5 point something or 6 out of 10. It’s because they go behind the, you know the meat of what is the outcome of this process, so and this is something I think we’ll get into later, its something which courts have also hold up, it’s not enough to just do the consultation, you need to explain how that consultation fed into decision-making and what you didn’t agree with. It’s fair not to agree with everything that people say but you need to have some rationale and explanation put out in writing about why you didn’t agree with certain things.
— Smriti Parsheera
She listed the steps for participative policymaking:
Deepak Maheshwari, Director of Government Affairs (India, ASEAN and China) at Symantec pointed out that when Ofcom was setup in 2002, one of the first things that they did was come out with a paper on how they would do consultations, including:
- Publishing their calendar, for each quarter,
- How they would deal with consultations, including publishing a summary of the consultation in not more than 4 pages (or something like that), and if it is longer, then they’ll explain why they couldn’t condense it;
- They identified how long they would give to respond. “It was not on adhoc basis that, sometimes you give one month, sometimes two months, sometimes like two weeks more.”
- They created a process where comments could be given even via a call center: you could call up and give your comments.
Tech policies haven’t had a great history with process
An assessment of how bills were introduced recently revealed that the Personal Data Protection encouraged the maximum participation, while the RBI’s payments data localisation order sought no input from the public.
Kumar argued that a tussle for jurisdiction between different regulators isn’t necessarily a bad thing.
I don’t think necessarily regulators sort of pushing back against each other, questioning the other’s jurisdiction, asserting themselves unnecessarily is a bad thing. It would be dangerous if all of them got onto the same page. That would probably be more harmful for our rights. If today, a regulator is able to show [that] regulators don’t really operate on the basis of success or failure because there is no way to define this. A much better accesses relevance or irrelevance, are people taking you seriously as a regulator or are people ignoring what you’d have to stay into about this and I think there, here’s a chance for regulatory competition to evolve best practices.
— Alok Prasanna Kumar
Law will enable greater transparency in the process
Parsheera drew attention to the role of the law in the policy-making process. A lot of what drives the processes of different regulatory bodies is determined by law. She highlighted three different types of Indian regulators that emerge by the legal restrictions imposed on them:
- The law demands that they be transparent and transparency is defined. “The law actually says you need to be transparent in your functioning and goes a step ahead and says this is what being transparent means. It means you need to do consultations. You need to take written responses. You need to give responses to people. So it spells it out. You need to do a cost benefit analysis,” Parsheera explained. IBBI and AERA (Airports Economic Regulatory Authority of India) operate this way.
- The law demands that they be transparent in discharging their functions, such as TRAI. “So while they are giving TRAI a lot of credit which I think is fairly due but it is complying with the law under which it was created,” Parsheera analysed TRAI’s much-discussed transparent way of operating.
- Nothing in the law that requires them to be transparent. Example: RBI, SEBI and other financial regulators. “You know you can anyway take them to court because of the factor that they are the state but the chances of that being upheld are lower as opposed to someone like AERA or TRAI because the law [says] so,” she said.
We need to push for laws to be amended, whether it be formulating a common minimum framework of regulatory governance or amending an individual law.
— Smriti Parsheera
Kumar and Maheshwari, both agreed with Parsheera’s assessment that law needs to mandate accountability and transparency.
A document for processes already exists
During the event, Deepak Maheshwari, director of government affairs (India, ASEAN and China) at Symantec said. “There is already a document from the Ministry of Law and Justice dating back to 2014 that mandates all these things that we are talking about. It says that there should be consultation paper, there should be a consultation process, it says that you should invite comments, you should publish them on the website, you should invite people for counter comments, you should give opportunity for open house, everything. So, whatever we are discussing, it’s all part of executive policy already from the Ministry of Law and Justice. Unfortunately, awareness of that is very very low within the government, forget about outside, within this committee, for example, I don’t think too many people are aware of that”.
A single repository for past and on-going consultations
Later during the discussion, MediaNama’s editor Nikhil Pahwa highlighted that in 2009, when the Copyright Act was being amended, he found out from industry sources, and there was barely any public information. He had considered launching a site called openpolicy.in for enabling transparency.
Maheshwari pointed out that in addition to being transparent and inclusive, the policymaking process also needs to be accessible. In the US, he said, “there is a legislation that mandates every federal agencies to publish NPR which is the term for draft consultations there, which is a notice for proposed rule making in the American Federal Register, which is like our Gazette in India.” That then becomes a single point of information, and “having that type of repository might be useful”.
“Having a single source and having broad process which have been codified and, of course, consistency across how different regulators function in the sectors” should be included in the regulatory design going forward, Maheshwari said.
Regulators: collaboration or competition?
Going back to Ofcom, Maheshwari highlighted that Ofcom itself comments on other regulatory consultations. “One very important thing is, how do we ensure and how do we encourage the regulators to participate in other area where they may have some interests or commonality or maybe a difference of opinion or anything like that and having in a respectful open but still transparent manner?” Ofcom he added, may have have commented something on a treasury notification, and that is available on their website. “They may have commented on another telecom regulator around the world.”
“That is something which I think we should encourage. So for example TRAI had this consultation a few years back on USSD for payments, which of course had something to do with RBI also, now maybe RBI had commented – I am not aware of that – but it might be useful for us to have in the public domain what RBI had said, if anything on that particular issue.”
Parsheera responded, saying that “On this collaboration versus competition issue, there is, I am definitely more on the collaboration side of it, because I really think the domains between regulators are not so clearly defined, but you know you can be in a situation where [one thinks] I want to go to CCI, [but] I just go to TRAI and that will solve my problem. It will just promote a lot of forum shopping.”
MediaNama’s first #PolicyNext conference, held in Delhi, was supported by Internet Society (APAC), OYO, Google, Amazon, and Facebook. Digital Empowerment Foundation was the community partner for the event.
*** Update (July 12, 2019 2:15 pm): This article was corrected for a few typos.