India urgently needs a legal framework to regulate lobbying

Despite the fact that it is a practice widely prevalent in the Indian policy ecosystem, lobbying often lends itself to a negative connotation. But with proper regulation, lobbying can be an intrinsic and legitimate part of the democratic process and policy making.

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THERE is some ambivalence in the manner in which policy lobbying is perceived in India.

Despite the fact that it is a practice widely prevalent in the Indian policy ecosystem, lobbying often lends itself to a negative connotation. It is equated with influencing policy actors holding public offices with monetary and other forms of gratification.

This perception is also bolstered because on the Indian policy scene, lobbying operates in a legal and policy vacuum without any regulatory regime to define or delimit it.

It is nevertheless important to understand that lobbying in itself is not always negative or undesirable. Lobbying can be an intrinsic and legitimate part of the democratic process and policy making.

Lobbying activities can, in fact, contribute effectively to the input gathering process and agenda setting for a more informed decision on policy choices and alternatives.

Lobbyists intervene in the policy process using various strategies such as conducting and showcasing research, advocacy and persuasion, mobilising public opinion, and engaging with policymakers in an attempt to steer policy in the direction of their stated positions or interests.

The perils of unethical lobbying

Problems start creeping in when unethical means and ulterior motives overshadow the legitimate lobbying process. When parochial vested interests try to negatively influence policy making, it robs public policy of its representative and welfare-oriented character.

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Also, given the legal and policy silence in India, lobbying activities are often carried out behind the scenes and with an absolute lack of transparency which exacerbates the perception as well as apprehensions of corruption and clandestine dealings.

A number of scandals that have rocked India have brought to light the deleterious effect of vested interests exercising undue influence on public policy making. The cash-for-vote scam way back in 2008 demonstrated how even the highest-level public policy actors including members of Parliament are susceptible to unethical lobbying influences in the form of monetary inducements to vote in favour of or against a particular party and vitiate deliberative parliamentary processes on sensitive policy issues.

In the same year the Radia tapes controversy, relating to the leaked telephonic conversations of corporate lobbyist Nira Radia with the then telecom minister, journalists, prominent politician and corporate houses exposed how highly networked corporate lobbyists manipulate and work behind the scenes to influence crucial policy decisions (spectrum allocation in this case) and can also play a role in influencing even cabinet level political appointments.

In 2013, Walmart's report to the US Congress (as part of mandatory disclosures of its lobbying activities) that it has spent millions of dollars to secure legal and regulatory approvals to secure enhanced market access in India also caused a huge furor in the public domain and spurred allegations of bribery.

While these examples garnered public attention because of their high-profile nature, business lobbies are also usually known to operate incognito by engaging in influential and sustained lobbying activities but in a more subtle manner to avoid public gaze.

Lobbying is a deeply entrenched phenomenon and works systematically often under the radar of public scrutiny. It can potentially contaminate multiple stages of the policy process.

Lobbying activities prevalent  in the tobacco control laws and policies in the country serve as an apt example. Tobacco industry is resource-rich, adept in lobbying and employs a diversity of tactics to circumvent tobacco control measures.

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Such tactics include but are not limited to blocking progressive legislations by introducing vexatious litigation in various courts as well as devising innovative marketing strategies such as surrogate advertising to circumvent rules. Tobacco lobby has also attempted to build a narrative that tobacco control policies are anti-farmer.

The subtle yet significant role played by tobacco lobby networks has perhaps been most evident in restricting or opposing pictorial warning on the packaging of tobacco products.

India enacted the Cigarette and Other Tobacco Products (Prohibition on Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COPTA), which envisioned replacing the text-alone warning by pictorial warnings on packets containing tobacco products such as cigarettes and beedis.

However, tobacco lobbies successfully managed to dilute the pictorial warnings by influencing the group of ministers (GoM) created to study the impact of such advertising. As a consequence, successive notifications brought out a toned-down version of the warnings which was much less explicit, non-communicative and had a smaller coverage area on packets.

Such examples abound and clearly demonstrate how behind-the-scenes lobbying by powerful and resourceful vested business interests can trump social welfare objectives of public policy formulation and implementation by the government.

This points to a need for a strong legal framework to regulate the unethical aspects of lobbying so that it serves as an enabler to the policy making process and not a hindrance.

Lobbying laws: A global perspective

Many countries have laws that regulate lobbying and watch over unethical lobbying practices. In the last two decades or so an increasing number of countries have adopted laws to regulate lobbying practices. The US, Australia, Canada, France, Poland, Taiwan, Germany and Hungary are only some of the notable examples.

In the US, the Lobbying Disclosures Act (LDA) has been in existence since 1995. The act was strengthened through the Honest Leadership and Open Government Act of 2007 which further enhanced the disclosure requirements requiring lobbyists to disclose information regarding the issues they work on, the stakeholders they work with and the amount of money spent on lobbying campaigns.

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Another example of a structured legal approach to lobbying is the French Transparency Law for Public Life Act (2013) amended subsequently by the law on Transparency Anti-Corruption and Modernization of Economic Life (Sapin II law) in 2016.

In France, in addition to these enactments an independent regulatory authority known as the High Authority for Transparency in Public Life (HATVP) is in charge of enforcing the legal obligations flowing from the Acts, looking into any conflict of interests and also counselling and advertising administrators and public officials.

These laws inter alia contain provisions for creating statutory registers where the lobbyists have to register themselves and report their activities such as communication with public officials, and funding and expenditure information within specific timeframes.

In July 2023, the HATVP in France further reinforced the legal framework by publishing additional lobbying disclosure guidelines enhancing the ambit of declarations, number of employees working full time, etc.

In contrast to the global trend, however, in India, a legal framework around lobbying is virtually non-existent. Lack of a regulatory framework entails the risk of jeopardising transparent policy actions and decisions. It enables  a narrow set of vested interests to exercise disproportionate influence in the policy space besides increasing the risk of parochial business interests superseding larger public welfare policy objectives.

Need for a lobbying code for India

The creation of a strong legal framework is thus essential to bring transparency and encourage ethical practices in the lobbying domain in India. India squarely lacks the legal framework or guidelines in this area although multiple pressure, interest and advocacy groups are active in the Indian policy scene, often working in tandem but also in unhealthy competition with each other.

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Existence of a legal vacuum results in lobbying organisations with insufficient guidelines to carry out their campaigns or activities. Furthermore, lack of a regulatory oversight and absence of disclosure requirements helps unscrupulous elements within the lobbying ecosystem to evade public scrutiny and operate in a perpetual grey area.

Their activities thus only come to light post facto and if and when a scandal is unearthed. Just like the proverbial tip of the iceberg a large portion of their network remains under the radar.

For the aforementioned reasons, a structured approach to regulate policy making is the need of the hour in India. Hitherto, the only small push in this direction was a private member Bill named the Disclosure of Lobbying Activities Bill by Kailash Singh Deo, a member of Parliament from the Biju Janata Dal in 2013. However, the Bill lapsed and despite its reintroduction in 2015 there has been no further progress or any debate in this matter.

In policy parlance, the initiatives to regulate lobbying have not been able to secure the attention of policy makers and are not a priority in the "agenda setting process".

A renewed effort to establish a statutory framework to regulate lobbying is needed for a more robust and structured public policy legal ecosystem in India. Such a law needs to be initiated by the government itself and should inter alia make provisions for registration of lobbying organisations and groups, maintenance and upkeep of digital registers, strict disclosure norms for all activities undertaken by the groups, public officials and other policy makers engaged, sources of funding and money spent on financing campaigns, etc.

To sum up, a legal framework to regulate lobbying shall serve as a catalyst for unleashing a host of positive changes in the policy making–lobbying interface. It will bring more openness in the lobbying process and consequently an increased public awareness for such activities.

A law for lobbying shall enable symbiotic and healthy interactions between the policy makers, public officials and lobby groups in an environment of transparency, thus curbing favouritism and corruption. It would also bring more accountability in the lobbying activities, and discourage unregulated and opaque lobbying practices, thereby strengthening the policy making process overall.

Such a law will go a long way in bringing out the much needed structural reforms in the area of public policy formulation, implementation and evaluation.