The Power of Babus

Sidekicks – they’ve got a good life. They’re the characters who are either super-incompetent, bumbling dolts or are hyper-competent geniuses. Whichever end of the spectrum, the sidekick exists for the Hero but adds a layer to the story. No wonder we love them.

So, just like Batman has Robin, Hans Solo has Chewbacca and Sherlock Holmes has Dr Watson, our legislators have sidekicks too: bureaucrats. You don’t see them, you don’t know about them; but they exist. They deal with piles of files and have ready solutions to a lot of the problems our legislators face. They are responsible for the implementation of legislation drafted by Parliament. But, they have one more power that’s usually kept under wraps. It’s called delegated legislation and it allows them to be a part of drafting laws.

The Parliament makes laws, but the devil is in the details. Details which are filled in by … bureaucrats.

Subordinate Legislation

The primary job of a Member of Parliament is law-making. When we look at Parliament, we see them talking and speaking their way throughout the day about various issues. But the ultimate intended result is the formation of public policy, based on those discussions.

Let’s get one thing straight: our MPs come from incredibly diverse backgrounds and with expertise in different areas. Apart from the lawyers, most of them are not adept at drafting actual laws using appropriate legal language. They are not (and cannot) be all-knowing beings who have all the facts and expertise when they enter the circular building. They can try to be, but it’s humanly impossible for one person to know everything that happens in Parliament.

Think about it. If you, dear reader, were to get elected in Parliament, wouldn’t it take you a while to read and understand oh-so-complicated bills like The Companies Act? As a legislator, your job is to not only understand the nuances, but make very important decisions and put in amendments to the original legislation that make it better. The five years (or more) that Netas spend in Parliament is a learning experience for them too. Much like college. Only much more insane and with way more higher stakes. Their participation actually affects the lives of 1.2 billion people.

So they need help.

By the power of babus

That is where the bureaucrats come in. The sidekicks are the ones our parliamentary heroes need and rely upon, making the right decisions. Laws that are passed in Parliament are mostly a skeleton structure, the details are filled in *after* they are passed.

Take the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 as an example.

The basic objective of this act is to ensure that government benefits reach the right people with minimum leakages. To achieve this, they have come up with a unique ID card that will identify the people that get these benefits. The law, however, cannot possibly hold ALL the details like: How will a citizen register for Aadhaar? How would the central database for Aadhaar operate? How will the verifications happen? How much salary will be given to the chairman of the authority handling the program?

The Parliament simply does not have the time to go into such minute details. So they left it for the bureaucrats to fill in, but only after the law was passed. Check out the Aadhaar Act and scroll to Page 34. There is a Memorandum of Delegated Legislation, which practically defines where the executives can tinker within the ambit of the law.

For ze ones who got a little worried after opening the bill link (also for the lazy), here’s a sample wall of text which is of great significance:

This goes on for two pages and it includes a provision that lets the executives define what ‘biometric information’ needs to be collected from the citizens (I have written about that in an earlier post). #JustSaying.

Aadhaar is just one drop in the ocean of subordinate legislations that are passed on a daily basis.

How NDTV India got sidekicked

To explain how important side-kick legislations are, let me give you a contemporary example: The NDTV India one day ban. We all know why it was done (let’s not get into that debate), but for the purpose of this column, let’s talk about how it was done.

TV News channels have to abide by the “Cable Television Networks Regulation Act, 1995”, which lays down the parameters for any private channel to operate.

Ever wondered why all cable operators and DTH services have to carry Government funded channels? It’s because of a provision this act. It’s compulsory to do so.

However, which channels should be carried are a part of delegated legislation. Because these are details which (a) are too minute for the Parliament to deal with, and (b) keep changing over a period of time. The Government can keep adding/removing channels that have to be compulsorily aired. One very recent example was when Prime Minister Modi launched the DD Kisan channel. Shortly after, a notification was issued that it was mandatory for all cable operators to carry this channel.

Now here’s the fun part. Like the power to add/ remove these channels, this act also allows the Government to make rules which would decide the ‘code’ by which channels operate. If they do not conform any of these codes, the government can pass an order to shut the channel down or penalize them.

NDTV India was a victim to this. The present government, according to ministry sources, changed this programming code in June 2015 by passing a notification. Amongst the ocean of rules that are notified in the Gazette of India, there is this one as well. Somewhere. Unfortunately, despite searching extensively, I wasn’t able to locate an official copy of this notification. However, in the awkwardly scanned copy of the order issued to NDTV India, the ministry mentions the particular part of this code which allowed them to ban the channel.

NDTV India actually lucked out a little because was banned for ONE day. The new rules actually allow channels to be banned for as long as 30 days.

Parliament scrutiny

The significance of these rules is immense and it makes the jobs of our representatives even more crucial. They have to ensure, beyond anything else, that those legislations which leave too much for executives to tinker with should not be passed.

If a law is passed in Parliament, our representatives are agreeing to certain major objectives under that law. If, at a later date, those objectives change in unexpected ways without the consent of the Parliament, it would mean that the people’s will is being bypassed.

This happens more frequently than you would expect. Just take a casual glance through the Gazette website and you’ll see a slew of rules being passed on a daily basis.

To be fair, these rules are to be laid before the Parliament for scrutiny within 15 days from publication in the Gazette and can be challenged in any house. If there is a delay, a statement has to be given explaining what caused the delay. PRS Legislative did a study in which they found that  Between June 2009 and September 2012, 4731 rules and regulations were tabled in the Parliament, of which 552, i.e., 11.7 per cent, were tabled with delay. To put it in context, just taking this period into consideration, it comes to approximately four changes through subordinate legislation per day.

Here are a few instances of notifications issued:

• Armed Forces Special Powers Act (AFSPA) extended to Nagaland.

The notification route was used to extend AFSPA to a few Districts in Arunachal Pradesh as well.

• The one about reducing disability pension of ex-servicemen.

• Notification relaxing minimum qualifications required to hire teachers in Government schools for West Bengal. The respective government issued the same for many other states.

• This one declares monkeys as ‘vermin’ in Himachal Pradesh for six months. It allows hunting these animals.

• Allowing foreign contributions to electoral trusts by amending the Income Tax Rules.

These are all very technical modifications to our laws which are incredibly difficult to find and understand. Subordinate legislations are a necessary evil, where executives have the power to amend laws whenever they want. But the problem arises when they do it and nobody knows about the changes they are making and why they are making them.

At this point of time, we need to devise techniques to keep a constant watch on what rules are being passed to keep a track of real-time changes in laws.

Till then, there is no option other than…

[freenews]