Published in the Seminar, July 2011
The past couple of months have seen a renewed attack on the National Advisory Council (NAC). The NAC has been decried as an unconstitutional, undemocratic, “super-cabinet” where unaccountable “jholawalas” hatch harebrained schemes guaranteed to run the government aground. Another line of criticism has focused on the process of the formation of the NAC, its space within the Indian Constitution, and its capacity to influence policy. The two criticisms merge with the demand to disband the NAC on the count that the NAC does not have to face the outcome of its recommendations, and by virtue of it being chaired by the head of the ruling Alliance, can arbitrarily force the implementation of its recommendations.
There is however, a need to examine how the NAC has functioned, what it has done, as well as understand the space it occupies in the policy-making paradigm of the country. While the concerns about the legitimacy of the NAC relate to important issues of Constitutionality, the criticism about the nature of its policy recommendations is motivated by ideology and is of much less relevance to its impact on democratic processes.
It is true that the NAC is an entity created to give the leader of the ruling alliance a role in policy making. Nevertheless, partly through the kind of members chosen, and the norms of functioning it has evolved, it has opened up the otherwise closed and secretive processes of formulation of law and policy, beyond its own membership to citizens groups and people with expertise. It can, in fact with some effort become a platform to further a more just and participative democracy. In this essay, we deconstruct the NAC and situate it in its political context to understand both its pitfalls and potential.
The Notion Of A National Advisory Council
The NAC is, as its name suggests an advisory body, and in that capacity it is similar to any other Committee that the government constitutes by the dozens. While Committees often come under fire for being a dilatory tactic by the government – they do not undermine democratic precepts in any way. It is true that the NAC derives its apex status and position from the status of its Chairperson, Mrs Sonia Gandhi who is also the Chairperson of the UPA government. When Mrs Gandhi resigned after the office of profit controversy, the NAC quickly became defunct and was dissolved soon after. It is however, worth asking whether such an entity could serve any useful purpose even if there were not special circumstances that created two power centres in the ruling alliance.
The NAC has not hidden its objectives, and its members have not hidden their biases. In fact the members were selected for their work and ideological biases[i]. It is also obvious that the ruling government will induct individuals who subscribe to the ideology of the government (although it is often difficult to determine the ideology of an alliance like the UPA, or a big tent party like the Congress). Seen in this context, it is apparent that the NAC is a product of the bipolar nature of the Indian National Congress with its calibrated separation of the “party” and the “government”. If there weren’t two power/ ideological centers, the NAC would not have been born. The NAC provides heft to a sensibility within the ruling party and thus impetus for action in the administration. Though the genesis of the NAC can be traced to intra-party politics, the NAC has a useful purpose even in an ideologically unified party, as we will see later in the essay.
In any case, this intra-party politics is within the democratic realm. It is not as if the ideology of the head of the political executive is not reflected in the choice of recruits into the Executive. In a growth-obsessed, increasingly conservative government, lateral entries from the corporate sector have been made straight into the Executive, such as in the Planning Commission, NATGRID, UID[ii]. These decisions have met with near universal, and glowing endorsements from a corporate friendly media. In fact, it could be argued that by selecting many of those who have adopted a contrarian stance to that of the government, from the social sector or academia, in an advisory capacity, the purpose might be more to co-opt their credibility, as opposed to putting their experience and skills into action.
This leads to a related point: the NAC as a body is constituted for its usefulness to the party and/or the government, not to advance the agenda of its members. This is evident in the composition of the Council[iii] itself – the members are a disparate group without longstanding close associations or ideological overlap. In addition to the “jholawalas”, members of the Council include two former Secretaries of the Government of India, two members of the Rajya Sabha, one member of the Planning Commission, two internationally renowned development economists, an academic, and a Supreme Court advisor among others. Consensus in this group is by no means given. Nor does consensus within the group take precedence over the Chairperson’s decision. But most importantly, the Chairperson’s decisions do not take precedence over that of the Executive, much less the Parliament. In the enthusiasm to establish the real (or perceived) power of the Gandhi family, there has been a projection that the NAC’s advice is a diktat to Government.
This is a significant misunderstanding of the role of the NAC. The NAC has remained an important advisory input into the deliberative process of the Executive. Its policy advice may or may not be accepted (as has happened frequently) and its draft laws are routed through the Executive to the Parliament, where they are subject to the routine Parliamentary procedures. It is worth noting that none of the NAC 1 draft legislations have made it to the Parliament without substantial change. Even its two flagship legislations, the RTI Act and NREGA were substantively altered by the Cabinet before introduction in the Parliament. The lost ground was regained only through representation to the multi-party Standing Committees – an avenue equally accessible to the entire citizenry. The reaction of the Government to the legislations proposed by NAC 2 has been even more hostile, with Committees set up to vet NAC recommendations even before they are finalized.
It is thus difficult to understand the criticism of the NAC when it comes to its conception and powers. For a body lamented as the “Notional” Advisory Council[iv] by a member on the continued paring of the Food Security Bill by the Government, clearly the “super-cabinet” title has no basis. The NAC also comes under fire for being unelected (and by insinuation unelectable) persons and thus not fit to exercise any influence over the government. But the entire bureaucracy is unelected, as is the Planning Commission, as are the nominated members of the Rajya Sabha. Yet none draw the same ire. Similarly, the NAC is criticized for the arbitrariness of its membership. Executive privilege of the elected government is an essential feature of representative democracy. An elected government comes with the people’s mandate to obtain the support of any groups or individuals to better implement promises made to the electorate. The real issue as always is in the transparency of these selective interactions in so far that they affect transparency and accountability of the State.
Therefore, it is in the functioning of the NAC (not its construct) where one must evaluate its potential to strengthen or undermine democratic practice.
The Functioning of the NAC
As per its website, the National Advisory Council (NAC) has been “set up as an interface with Civil Society [to] provide policy and legislative inputs to Government with special focus on social policy and the rights of the disadvantaged groups[v]”. The NAC is thus mandated to be a platform for State-citizen engagement on legislation and policy. Legislation and policy define the modes and process of engagement between (and intra) the State and the people. In a democracy where the State itself derives legitimacy from popular consent, the process of law making too must be transparent and consultative with active public engagement. Seen thus, the efficacy of the NAC must be largely evaluated on its ability to aggregate the plurality of viewpoints and aspirations inherent in a citizenry as large and diverse as ours.
The intent appears to match its mandate. As per the NAC procedures unanimously adopted by its members, inclusiveness, openness and transparency are guiding principles while formulating recommendations for the government. Accordingly, the procedures prescribe a consultation process which mandatorily requires dialogue with stakeholders and representatives of organizations likely to be affected by the proposed policy and also putting draft proposals, legislations in the public domain through the NAC website. The NAC website also duly catalogues all the recommendations made by the Council to the government[vi].
It is true though that the NAC has had mixed innings thus far with significant differences between NAC 1 and NAC 2. The primary distinction between the first and second term of the NAC is that of mandate, which has had cascading effects on its performance. NAC 1 was mandated to monitor the implementation of the National Common Minimum Program (NCMP); NAC 2 has been tasked mostly to “give attention to the priorities stated in the address of the President of India to Parliament on 4 June, 2009[vii]”. The NCMP is a set of specific pre-poll promises made by all the constituent parties of the UPA coalition while the President’s speech as speeches are wont to be is more rhetoric than substance.
The contrasting promises of the employment guarantee program and the food security bill are a case in point. The NCMP promised, “UPA Government will immediately enact a National Employment Guarantee Act. This will provide a legal guarantee for at least 100 days of employment, to begin with, on asset-creating public works programmes every year at minimum wages for at least one able-bodied person in every rural, urban poor and lower-middle class household[viii]”. Contrast this with the President’s speech that “proposes to enact a new law — the National Food Security Act — that will provide a statutory basis for a framework which assures food security for all. Every family below the poverty line in rural as well as urban areas will be entitled, by law, to 25 kilograms of rice or wheat per month at Rs. 3 per kilogram. This legislation will also be used to bring about broader systemic reform in the public distribution system[ix]”. The former explicitly defines all the main entitlements of the NREGA – 100 days of work at minimum wage to all rural households, which the first NAC operationalized through its draft. The latter defines the entitlement, but makes it contingent on the poverty line, which is now the source of bitter politicking. “Systemic PDS reform” too leaves room for polarized interpretations with one group advocating its universalization and the other its outright dismantlement!
NAC 1 was also politically well placed both within and outside the government. The NCMP, positioned as an alternative to the India Shining rhetoric of the incumbent NDA, resonated demands of Bharat’s masses – and was thus both a democratic and political mandate. Three of the most progressive legislative achievements attributed to the NAC 1 (RTI, NREGA and FRA) all find mention in the NCMP. These legislations also have a history of large protracted public campaigns where internal dissonance could be discussed and much of the collective thinking crystallized. Thus NAC 1, despite being a nascent platform, functioned with a fair degree of efficacy.
The NAC 2 on the other hand has been hobbled for multiple reasons. In addition to the lack of a clear mandate, the NAC 2 functions without the pressures of the Left – much more in tune with its proposals than the PMO and the Finance Ministry. Even as the impact of the global financial meltdown has waned, the conservative groups advocating capital-led growth and rollback of the State have gained prominence, and the priorities of the current government have shifted towards the private sector at the cost of the social sector. The tortured trajectory of the National Food Security Bill (NFSB), despite a strong public campaign with well-articulated demands is instructive in the repercussions of this shift. Even as the buoyant corporate sector enjoys generous subsidies, the Food Security Bill has been subject to repeated pruning on account of rising fiscal deficit and fallacious supply constraints. Jean Dreze, member of the NAC writes of the NFSB, “These [NAC] recommendations are very mild, coming as they did at the end of a long process of consultation with various Ministries, when the government went out of its way to ensure that the NAC did not hatch any “unreasonable” proposal[x]”. This bureaucratizing of the NAC where the government monitors NAC proposals during development to influence and constrain/manage the outcome transforms the NAC in to a negotiating body while undermining both its advisory (and hence implicitly independent) status. This has also led to the charge from the opposite end of the spectrum – that the NAC is a clever exercise in containment – its members and the causes they espouse co-opted by the government.
At the same time, the Communal Violence Bill for which the NAC has come under maximum fire demonstrates the limits of the Council as it stands now. The pogrom in Gujarat has brought a sense of urgency but there is an absence of well-defined collective thought on the State’s role in situations of communal violence (perhaps due to the sporadic and localized nature of communal violence in the country). The polarized response to the draft NAC bill reflects the difficulty of aggregating/harmonizing perspectives from all stakeholders, and placing them within the Constitutional and legal paradigm.
This underscores the need of institutionalized platforms where collective engagement can take place in a comprehensive, transparent and inclusive manner to evolve common ground before the State legislates. The NAC, which already functions as an interface between the government and the people, is well positioned to be one such platform. It is in its nascent stages yet, and an attempt must be made to make it into a clearly defined structure for facilitation. In fact if the Council were expanded into a real people’s platform, with its members accountable for maintaining the integrity of processes, co-option if any, too would be difficult. This further reinforces the Council’s democratic relevance.
It is evident that the salvos fired at the Council are ideological in nature and not motivated by concerns for democratic or Constitutional propriety. It is not mere coincidence that the most vocal critics of the Council are also ardent votaries of privatization, relentlessly arguing for the rollback of the State in a bid to weaken popular control by turning the citizen into a consumer. With 78% of our GDP controlled by the private sector, the government itself is increasingly becoming a tool in the hands of big business. Forcible land acquisition for private enterprise is a classic example of using state power against the people to further corporate interest. The leaked Niira Radia tapes laid bare the illegitimate nexus between big business, government and media. The tapes incontrovertibly show the unbridled access enjoyed by Corporations and their stooges to the highest level of the government and strongly indicate illegality, yet the bulk of the protagonists remain untouched. In response to the national outrage, the pro-establishment group sagely advised us to put the conversations in “context”, a tactic aimed not at explication but obfuscation. In fact the real objection to the Council is that it is jostling for space that has been co-opted by private enterprise. The problem with the NAC is not that it violates democratic precepts but that is seen as an impediment against the corporate takeover of the country.
The chaotic events of the past couple months reflect a failure of existing platforms to adequately reflect and respond to the aspirations of the public. People’s mobilization, however absurd the issue reflects the desire to participate in and influence society’s trajectory – it is for the State to provide democratic platforms for productive outcomes. The NAC could be institutionalized as one such platform. At the end of its meeting in June, the NAC announced that it will “evolve a policy on ‘pre-legislative consultative processes’ for recommending to the Government as part of strengthening participatory democracy[xi]”. It is important to ensure that these recommendations are robust, as these principles must be applied to the NAC itself. If the NAC were to demonstrate and initiate transparent and participative processes required for the formulation of policy in a mature democracy, it would not only succeed in formulating a policy of democratic participation, but begin its implementation. That would be a more lasting democratic legacy than any.
[ii] Corporate Leader’s New Turf-The Government, Forbes India, Feb 15, 2010 (http://business.in.com/article/boardroom/corporate-leaderes-new-turfthe-government/10262/0)
[iv] A Notional Advisory Council, The Hindu, January 9, 2011 (http://www.thehindu.com/opinion/op-ed/article1075384.ece)
[x] A Notional Advisory Council, The Hindu, January 9, 2011 (http://www.thehindu.com/opinion/op-ed/article1075384.ece)