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Opening up Indian Law Making?


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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.”

Open Innovation?

I also draw parallels with the open source movement and note:

“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.

 The IP Perspective: The Indian “Bayh Dole” Bill And Secret Law Making:

From an IP perspective, 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 here is the abstract.

 “In January 2009, the government introduced the Protection and Utilisation of Public Funded Intellectual Property Bill, 2008 in the Rajya Sabha. The bill is currently undergoing scrutiny by a Parliamentary select committee, after which it will be placed before the two houses of Parliament for approval. The Indian bill is based to some degree on the US Bayh Dole Act, which according to the Economist unlocked “all the inventions and discoveries that had been made in laboratories throughout the US with the help of taxpayers’ money” and one that helped “reverse America’s precipitous slide into industrial irrelevance.”

We are in broad agreement with commentators who are skeptical of the oft touted one sided wonders of the US Bayh Dole and its impact on innovation. However, we argue that these skeptics have missed an important advantage of this historic legislation, namely the possibility of regulating the patenting of publicly­ funded research, which hitherto proceeded uncontrolled.

This is not to suggest that the current Bayh­Dole structure is optimal, but that it provides a skeletal model which can be fleshed out and modified by countries adopting it to construct an optimal regulatory regime.  This is particularly attractive for countries, such as India, that are contemplating transplanting the Bayh­Dole structure but are worried about the potential negative effects of increased patent numbers.

Much like its parent, the Indian Bayh­Dole Bill vests institutes with the right to acquire patents over inventions deriving from publicly­funded R&D. However, instead of a facilitative framework encouraging patent applications, it imposes a harsh punitive framework mandating institutional patenting under threat of serious sanctions.

Thus, we offer some concrete recommendations in this paper to make the proposed Bill more palatable to the Indian audience. We propose regulating the patenting of publicly­ funded research by incorporating more public interest safeguards: mandating affordable pricing of all products deriving from publicly­ funded patents, making licensing of such patents compulsory in appropriate cases, favoring SMEs and local manufacturing, and vesting more discretion in the individual inventor to determine how to disseminate his invention. Some of these suggestions could be useful for other developing countries that are considering transplanting the U.S. Bayh­ Dole Act to their respective legal regimes.

We also reflect on the “secret” history of the Bill and how it was 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 the “don’ts” of lawmaking in a healthy democracy.”

Thankfully this flawed version of the Bill never saw the light of day. The Parliamentary committee came down very hard on the government recommending almost 75 changes to the Bill. As expected the government never bothered reintroducing the Bill in Parliament. For more on this, see our post here highlighting a report from leading IP journalist, CH Unnikrishnan.

Interestingly, even for alleged subject matter experts like me, it is awfully difficult to get your foot in the door when it comes to government deliberations and parliamentary committee hearings on intellectual property laws (select stakeholders almost always get preferential treatment). Even for the Bayh Dole bill (on which I’d written extensively), I had to threaten the secretary to the Chairman of that committee with going public about their closed coterie before they invited me to present my views before the Committee. So much for openness in Indian policy making!

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.

Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is 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 Professor Basheer joinedAnand 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. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

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