Use of Media, Lobbying and Public Participation

The relationship with the right to information

Facts. Maneka Gandhi v. Union of India, AIR 1978 SC 597, concerned a passport impounded under section 10(3)(c) of the Passports Act 1967, the order reciting only that it was "in public interest". The petitioner was given no hearing, and when she asked for the reasons the Government declined to supply them, saying it was not in the interest of the general public to do so.

Held. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment; equality and arbitrariness are sworn enemies, one belonging to the rule of law in a republic and the other to the whim and caprice of an absolute monarch. The procedure contemplated by Article 21 must answer the test of reasonableness in order to conform to Article 14, being right and just and fair and not arbitrary, fanciful or oppressive; and natural justice may be implied even where the statute is silent.

Why it matters here. The Government's refusal to give reasons, on the ground that disclosure was not in the general public interest, is the administrative reflex this whole part of the syllabus exists to answer. The constitutional development from that refusal runs to the duty to give reasons in [Reasoned Decisions] and to the statutory right in [Transparency and the Right to Information: a Constitutional Imperative].

Lobbying

What it is

Lobbying is the organised attempt by an interest to influence the exercise of public power: trade associations, professional bodies, trade unions, industry groups, non-governmental organisations and citizens' campaigns all lobby.

The name comes from the lobby of a legislature, where those seeking to influence members waited.

The case for it

1. Information. A regulator setting a technical standard needs to know how an industry actually works, and the industry is where that knowledge is.
2. Representation. An organised interest can speak for many who could not individually be heard.
3. It is an exercise of the freedom of speech and of the right to petition the government.
4. It is inevitable. Where power is exercised, those affected will try to influence it. The only question is whether they do so openly.

The case against it

1. Unequal access. A well funded industry association is heard; unorganised consumers, the poor and future generations are not.
2. Concealment. Influence exercised privately cannot be evaluated by anybody.
3. The slide into corruption. The line between persuasion and inducement is exactly the line the Prevention of Corruption Act 1988 polices: [The Prevention of Corruption Act 1988].
4. Capture. A regulator that hears only the industry it regulates may come to see the world as that industry does.

The Indian position

India has no statute regulating or registering lobbyists, unlike some other countries where lobbyists must register and disclose their clients, their expenditure and the matters on which they lobby.

The Indian controls are indirect, and naming them is what a good answer does:

• The Prevention of Corruption Act 1988 makes the purchase of influence an offence, and covers a person who accepts gratification to influence a public servant by illegal or corrupt means or by the exercise of personal influence.
• The Right to Information Act 2005 makes the file discoverable, so representations made to a department can be obtained.
• Publication and consultation requirements in rule making bring representations onto the record.
• The requirement of reasons exposes what actually influenced a decision.
• Judicial review for irrelevant considerations, since a decision taken because of pressure rather than on the statutory criteria is bad: [Grounds of Judicial Review: Abuse of Discretion]. If an authority decides because it was told to, that is acting under dictation: [Grounds of Judicial Review: Failure to Exercise Discretion].

Public participation

What it means

The involvement of affected persons and the public in an administrative decision before it is made. Its forms are:

1. Publication of a draft rule, scheme or plan, with an invitation to object.
2. Consultation with named bodies or affected interests.
3. Public hearings, as in environmental clearance procedures and in tariff fixing by regulatory commissions.
4. Representation on statutory bodies, so that affected interests sit on the board.
5. Local self government and the gram sabha, which is participation at its most direct.
6. Access to information, without which participation is uninformed.

Its legal foundations

• Section 4 of the Right to Information Act 2005 requires every public authority to publish a great deal without being asked, including the norms it has set for the discharge of its functions, the rules and instructions it uses, and the particulars of any arrangement for consultation with or representation by members of the public in relation to the formulation of policy or its implementation. That last item is a statutory recognition of participation.
• Publication and previous publication requirements in parent Acts, with section 23 of the General Clauses Act 1897 supplying the machinery: [Other Controls: Publication, Consultation and Procedural Safeguards].
• Pre-legislative consultation policy, under which draft legislation and subordinate legislation are placed in the public domain for comment.
• Natural justice, where an identified person is affected, though not where a general rule is made: [Classification of Administrative Functions].

Its advantages and its limits

Advantages. Better decisions, because those affected know things the department does not; greater acceptance of the outcome; and legitimacy, since a decision preceded by a hearing is easier to defend.

Limits. Delay; the risk that only organised interests participate, which turns participation into lobbying by another name; consultation fatigue; and the fact that a duty to consult is only a duty to consider, not to agree.

A worked example

An Electricity Regulatory Commission proposes to raise domestic tariffs.

Participation. The statute requires the draft tariff order to be published and a public hearing held. Consumer groups, industry associations and the distribution licensee all appear. That is participation, and it improves the order because the Commission learns what the licensee's cost claims look like from the consumers' side.

Lobbying. The licensee's association also meets the Energy Secretary privately and presses for a higher tariff. That is lobbying. It is not unlawful, but if the Commission raises the tariff because the Secretary asked it to, the order is bad for acting under dictation, and if it raises it on considerations outside the statutory criteria, it is bad for irrelevant considerations.

Media. A newspaper obtains the licensee's cost filings and reports that the claimed distribution losses are inconsistent with an earlier filing. That report may prompt questions in the assembly, an audit objection, a complaint to a Lokayukta or a writ petition.

Right to information. A consumer group obtains the Commission's file, including the note of the meeting with the Secretary, under the Right to Information Act 2005. That converts a private representation into a public one, which is the single most effective control on lobbying that India has.

What it does NOT mean

It does not mean lobbying is unlawful. It is not, and it is a form of representation. What is unlawful is purchasing influence and deciding on irrelevant considerations.

It does not mean consultation obliges the authority to agree. It obliges genuine consideration.

It does not mean media reporting is a legal remedy. It is a pressure, not a sanction, though often a more immediate one.

It does not mean participation applies to every decision. It belongs to rule making, planning and policy; an individual determination attracts natural justice instead.

Quick revision

1. Freedom of the press in India is part of Article 19(1)(a) and is subject to the restrictions in Article 19(2). There is no separate press freedom clause.
2. Media functions: disclosure, scrutiny, agenda setting, publicity as sanction, and supplying the material for litigation. Limits: trial by media, ownership pressures, access, and Article 19(2) with contempt and defamation.
3. Lobbying is organised influence on public power. For: information, representation, free speech, inevitability. Against: unequal access, concealment, the slide into corruption, and regulatory capture.
4. India has no lobbying registration statute. The controls are indirect: the Prevention of Corruption Act 1988, the Right to Information Act 2005, publication and consultation, the duty to give reasons, and review for irrelevant considerations and acting under dictation.
5. Public participation: publication of drafts, consultation, public hearings, representation on bodies, local self government, and access to information.
6. Section 4 of the Right to Information Act 2005 requires publication of the norms set for discharging functions and of arrangements for consultation with the public in formulating policy.
7. Participation improves decisions and legitimacy; its limits are delay, domination by organised interests, and that consultation requires consideration and not agreement.

Test yourself

1. What is the constitutional basis of the freedom of the press in India, and what is its role in administrative accountability? There is no separate guarantee of press freedom in the Constitution. It is part of the freedom of speech and expression under Article 19(1)(a) and is subject to the reasonable restrictions in Article 19(2), which include the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation and incitement to an offence. Its role in administrative accountability is to disclose what authorities have done, to scrutinise decisions against the reasons given, to make an issue important enough that the legislature, the auditor or the courts take it up, to supply publicity which is often the only immediate consequence of maladministration, and to provide the material from which litigation begins. Its limits are trial by media, ownership and commercial pressures, and the fact that it can report only what it can discover, which is why the Right to Information Act 2005 matters more to journalism than any law about the press.

2. Is lobbying legitimate? How is it regulated in India? Lobbying is the organised representation of an interest to those exercising public power, and it is legitimate in itself: it supplies regulators with information they do not have, it allows many individuals to be heard through one voice, it is an exercise of the freedom of speech, and it is in any event inevitable wherever power is exercised. It becomes objectionable when access is unequal, when it is concealed, when it slides into the purchase of influence, and when a regulator comes to see the world as the industry it regulates does. India has no statute registering lobbyists or requiring disclosure of their clients and expenditure. The controls are indirect: the Prevention of Corruption Act 1988 makes the purchase of influence an offence; the Right to Information Act 2005 makes representations on the file discoverable; publication and consultation requirements bring representations onto the record; the duty to give reasons exposes what actually influenced the decision; and judicial review lies where the authority acted on irrelevant considerations or under dictation.

3. What is public participation in administration, and what forms does it take? It is the involvement of affected persons and the public in an administrative decision before it is taken. Its forms are the publication of a draft rule, scheme or plan with an invitation to object; consultation with named statutory bodies or with affected interests; public hearings, as in environmental clearances and in tariff fixing by regulatory commissions; representation of affected interests on the board of a statutory body; local self government and the gram sabha; and access to information, without which participation is uninformed. Its legal foundations include the publication and previous publication requirements in parent Acts, with section 23 of the General Clauses Act 1897 supplying the machinery, the pre-legislative consultation policy, and section 4 of the Right to Information Act 2005, which requires a public authority to publish the norms it has set for discharging its functions and the particulars of any arrangement for consultation with or representation by the public in formulating or implementing policy.

4. State the advantages and limitations of public participation. The advantages are that decisions are better informed, because those affected know things the department does not; that the outcome is more readily accepted; and that a decision preceded by a hearing is more legitimate and easier to defend. The limitations are delay; the risk that only well organised interests actually participate, so that participation becomes lobbying under another name and the unorganised are still unheard; consultation fatigue, where repeated exercises produce diminishing responses; and the fact that a duty to consult is only a duty to consider what is said with an open mind, not a duty to agree with it.

5. How does the Right to Information Act 2005 support the other influences described in this chapter? By making the record obtainable, which is the precondition of all of them. The media can report only what it can discover, so access to files, notings and inspection reports converts assertion into evidence. Lobbying, which is objectionable chiefly when it is concealed, becomes visible when the representations made to a department can be obtained by anybody. Participation becomes informed rather than formal, because those consulted can see the material the authority is working from. And section 4 goes further by requiring proactive publication, including of the norms set for discharging functions and of the arrangements for consultation with the public in formulating policy, so that the citizen need not even ask.