Hazare Hunger and Policy Making


The Hazare anti corruption hunger strike captured the imagination of the nation for the last few weeks.

As many of you know, corruption is an issue that is of immense interest to SpicyIP, which has attempted to cure this evil plague in the IP space through the deployment of one principle, namely that of transparency.

Needless to state, corruption is a complex multifactorial issue and we need to hit it from several angles, the law being just one of them.

Hazare and crew have earned both bouquets and brickbats. Without delving into the legitimacy of a hunger strike in a supposedly functioning democracy, I merely reflect (in this Times of India piece,) on the opportunity that this agitation provides to open up the law/policy making space in India. The piece includes a detailed reference to the Indian Bayh Dole bill and the abysmal level of stakeholder and public consultation that one witnessed during that process.

Since the online version of the piece can be accessed only after your register (freely) on the TOI site, I’m reproducing it below:

“It fell several notches short of a Tahrir square. But it was enough to capture the imagination of nation, a nation that has witnessed scam after scam in the recent past, and where, attempt after attempt to introduce an anti-corruption law failed for four long and continuous decades.

Indeed, thanks to a man who threatened to take his own life, “Lokpal”, a term that might have had raised eyebrows till a month ago, has now gained common currency. Some see the man as an enlightened saviour of sorts. Others as a dangerous blackmailer at the brink of subverting a precious democratic process that many believe we enjoy in India. I come neither to praise Anna Hazare nor to bury him. But to simply point to an enormous opportunity that his act of starving presents for us as a country.

That Hazare gained enormous public support by threatening to sacrifice his own life at the altar of an anti-corruption principle that he staunchly believes in is beyond doubt. However, what of the implementation of this principle through the technicality of a law? It’s a fair guess that many of those who came out in support through rallies and candle light processions would have failed to read the bill, be it the government “Lok Pal” version or any of the many civil society “Jan Lok Pal” versions.

It is this participatory deficit that the Hazare movement must seek to redress. It must leverage the popular sentiment it has thus far gained by actively encouraging the public to participate in the law-making process. That government laws are drafted in secret for the most part is no new revelation. Even at the stage of parliamentary scrutiny, most intensively felt during the myriad “sittings” of standing committees, the ones consulted are a select few;not the public and in most cases, not those with subject matter expertise.

To this extent, law and policy-making processes in this country suffer from a serious democratic deficit. Granted that the formal processes (such as the act of voting by elected representatives, many of whom may have never read beyond the title of the bills presented) are all complied with, but substantively, the process is a largely non-deliberative one, with bills being presented and voted upon, for and at the behest of a select few.

Apparent government efforts to instill public participation are far from optimal. Many a time, bills are never released for public views or participation. And even when they are, the websites that call for participation are far from welcoming. The Indian “Bayh Dole” bill, seeking to regulate the management of intellectual property at universities, is an excellent example of the sheer deficit in the process. A law firm with very close ties to the government was tasked with drafting the bill. It borrowed significantly from a US legislation on the same theme, sans any consideration of the techno-cultural specifities of India, and even more problematically, sans any consultation with key stakeholders, namely universities and public-funded research institutions.

The bill was then secretly peddled between different ministries. After much public hue and cry, the bill was made available on a government website, but with no indication that public comments were welcome, and after four years since the first draft of the bill. Subsequently, even at the stage of parliamentary review by a standing committee, it was not until the Indian Institute of Science went to the press claiming that it was never consulted, that the committee relented and called for wider stakeholder participation.

Thanks to this participation, the committee was able to appreciate that the bill was fundamentally flawed. It therefore directed the government to make extensive changes to the bill. By this time, five years had elapsed and the government was forced to go back to the drawing board. A process that fostered wider consultation earlier on in the lawmaking process would have saved us all this wasted time and effort.

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. Further, several discordant notes have already been struck by the various statements by Hazare, his lieutenants and others that he chose to share stage with. Little wonder then that the movement has attracted the ire of many who are suspicious of the threat to our democratic process.

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.”

ps: image from here.

Shamnad Basheer

Shamnad Basheer

Prof. (Dr.) Shamnad Basheer founded SpicyIP in 2005. He's also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof. Amartya Sen. Professional History: After graduating from the NLS, Bangalore Prof. Basheer joined Anand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Later, he was the Honorary Research Chair of IP Law at Nirma University and also a visiting professor of law at the National Law School (NLS), Bangalore. Prof. Basheer has published widely and his articles have won awards, including those instituted by ATRIP, the Stanford Technology Law Review and CREATe. He was consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also served on several government committees.

3 comments.

  1. AvatarAnonymous

    “participatory democracy” reminds me about justice aiyyngar who sent a questionnaire to all mp’s prior to his legendary report

    ravi

    Reply
  2. AvatarAnonymous

    I read this article in crest edition and as usual it is outspoken and clear. i agree with you that the public (at least the domain expertise) should be involved in making/amending the respective law as they are the actual people who know the pros and cons.
    But I beg to differ on the basic thrust of this issue. It is not Anna Hazare but the people who have won. [Let me tell you that I have the greatest respect for this man. And I am fortunate to see him personally when we visited ralegan siddhi last time. fantastic blend of self-discipline, self-sufficiency and simplicity.]

    I find the act of strike as mere blackmailing stunt. Why are we needed to do so? In british raj, what MK gandhi did was , may be a need of that time as we were not independent. But today we are independent, soveriegn and democratic. It is like a situation where the master of the house is on hungerstrike, why? because his servant is not serving him properly. Now tell me, should the master remove the servant out of his job or wait to see if the servant responds to his hunger strike??

    Regards
    S

    Reply
  3. AvatarAnonymous

    Anonymous @ 12.05
    I really respect your views expressed in the second paragraph but do not agree coz they are ideal not practical. You said “…today we are independent, sovereign and democratic…” look around and you really think we independent (or slave of corruption and corrupt politics)….. you really believe we Indian believe in ONE INDIA or SOVEREIGN INDIA……. are we exercising democratic rights and duties????
    they are servants of the house ………..in true scenario are they really servant or masters???? SERVANT DOES NOT DECIDE THE ACTIONS OF THE MASTERS BUT MASTER DO FOR SERVANT.
    Look at the history since independence how many times these servants have been fired????? And who will guarantee the new servant……..
    In fact I don’t believe in this definition of masters (millions) and servants (few hundred)
    Its not flaw of the ‘servant” but the system (law) of the house!!!!! that is ANNAJI fighting for.
    I think what this YOUNG MAN (ADARNIYA ANNAJI) focused is on result in honest way, and instead of debating and deviating, we ALL should support him.

    SD

    Reply

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