Photo: Reuters
Photo: Reuters

Opinion | Policy advocacy is really an exercise in compromise

The government can play an active role by engaging more constructively in pre-legislative consultation

Last week I had the opportunity to participate in a panel discussing the present and future state of technology policy in India. Over the course of that very engaging discussion, I was reminded of the many stark contrasts that characterize the way that tech policy is made in the country.

On the one hand, we have the Telecom Regulatory Authority of India (Trai), a regulatory body that has pioneered consultative legislation and elevated it to an art form. As someone who has participated in these consultations, I am convinced of the sincerity with which Trai approaches the process and the consideration that it gives to the inputs it receives. From discussions with lawyers around the world, I have come to realize with some pride that Trai consultation papers and recommendations are widely used as reference material by telecom professionals everywhere for the breadth of their analysis and the depth of the issues they cover.

At the other end of the spectrum are the many opaque regulations that the government has issued over the years on matters ranging from encryption to intermediary liability, legislative proposals that ignore public sentiment, to the extent that in many instances, the government has been forced to withdraw them in the face of vehement opposition. Of those that do make it into the statute book despite all this, a good proportion have been challenged and read down by the courts.

Surely there is a better way to bridge these two extremes, to ensure that all legislative arms of the government engage with relevant stakeholders in a manner that is designed to throw up relevant issues while ensuring that the legislative proposals that finally make it into the statute book have adequately considered the views of all relevant stakeholders.

In February 2014, the ministry of law and justice issued a letter to all the ministries of the central government instructing them to engage in pre-legislative consultation before enacting any principal or subordinate legislation. Every department and ministry is now required to proactively publish all legislative proposals on the internet, setting out a brief justification for the proposed law, its essential elements, broad financial implications and the impact that it would have on the environment, fundamental rights and the lives and livelihoods of affected people. All these details are required be kept in the public domain for at least 30 days for feedback.

As much as this seems to be a step in the right direction, to many of us engaged in the space, it feels as if more needs to be done to achieve the objective of pre-legislative consultation. While we do get to see laws before they are enacted, it seems as if the responses we provide fall on deaf ears. Going by the way it is currently implemented, the process appears to be little more than an exercise in appeasement—a means by which the government can pay lip service to the concept of consultation and then do exactly what it wanted to in the first place.

Before I launch any further salvos against the government, I’d like to briefly address my colleagues in the technology policy space—civil society, think tanks, law firms and in-house policy teams alike. More often than not, I feel that we, me included, enter into policy debates with a take-it-or-leave-it approach, adopting hard positions that brook no compromise. As a result we end up disappointed with the outcomes. What’s worse, because we’re so convinced that our own narrow perspectives constitute what’s best for us all, we’ve begun to distrust anyone who diverges, even marginally, with our own firmly held beliefs. This has resulted in unhealthy divisions among us, leading, in extreme situations, to ad hominem attacks and a regrettable refusal to engage.

We must consciously walk back from this. Policy advocacy is, by definition, an exercise in compromise. Broad societal issues affect such a wide range of stakeholders that it is impossible to satisfy everyone all the time. If we aren’t, in every instance, willing to negotiate a middle path, we will end up being disappointed most of the time. Corporations must be willing to forgo profits for social good and at the same time, civil society must recognize that growth in shareholder value is not always inimical with social outcomes. It is only through an understanding of each other’s interests and a willingness to find solutions that we are going to find lasting solutions.

The government can play an active role in facilitating this by engaging more constructively in pre-legislative consultation. Rather than simply publishing policies that it has no intention of amending, the government should, instead, put up draft proposals that will only be finalized based on the inputs received. It should plan to hold effective consultations with the public and where it receives proposals from multiple stakeholders, it should carefully evaluate the competing suggestions on their respective merits, making sure that its reasons for choosing one over the other are in consonance with the liberal values that characterize our democracy.

None of us can, or ever should, expect to have our way all the time. But if we can be sure that our government will make policies after due and thoughtful consideration of the views of all stakeholders, it will give us the comfort to engage more meaningfully in the policymaking process.

Rahul Matthan is a partner at Trilegal and author of ‘Privacy 3.0: Unlocking our Data Driven Future’

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