The Disclosure of Lobbying Activities Bill: Civil Services Mentor Magazine September 2013

In a society where lobbying is almost synonymous with bribery and where lobbyists often creatively couch themselves as political aides, public relations officers and advocates for policy change, the Disclosure of Lobbying Activities Bill, 2013 (DLA Bill/Bill) recently introduced in the Lok Sabha1 by a Member of Parliament can perhaps be seen as the first ever acknowledgement by a parliamentarian of India’s worstkept secret. This private member’s bill, introduced in the wake of the Nira Radia tapes scandal, and more recently, Walmart’s regulatory disclosure to United States authorities of having engaged in lobbying activities to secure enhanced access to Indian markets, the bill intends to procure transparency in the context of lobbying activity undertaken in India.

The DLA Bill is a significant step, as for the first time in the history of Indian lawmaking, a potential law recognises that lobbying is an integral part of democratic functioning.2 Whilst it remains to be seen whether or not the bill will ever translate into a law, it implicitly indicates lawmakers’ willingness to consider a proposal for a law, which requires them to shrug off years of denial of the omnipresent relationship between lobbying and lawmaking.

This article critically analyses the DLA Bill, identifies provisions thereof which will have an impact on stakeholders and highlights some conceptual and some not-soconceptual errors therein, which arouse suspicions about the genuineness and sincerity underlying its introduction.

Lobbyists Registration Authority

The DLA Bill requires the central government to set up a central authority for registration of lobbyists known as the Lobbyists Registration Authority (LRA). The bill, thus, deals with lobbying activity as an activity to be reported and disclosed from time to time. Interestingly, the bill fights shy of declaring that lobbying activity is legal in India as long as the requirements prescribed under the bill have been complied with. Admittedly, in light of the reporting provisions, a provision which expressly declares lobbying activity to be legal would be redundant. However, given that lobbying has been culturally and politically tabooed in India, it may be worthwhile considering making an express provision to this effect. The absence of such a provision is indicative of the political inhibitions and hesitation involved in making a declaration to this effect.

Prospective Scope

The DLA Bill requires every entity (including individuals, companies and all entities of any form whatsoever) that intends to engage in lobbying activity to register itself with the LRA. The bill, therefore, is not meant to procure disclosure of those cases wherein lobbying has already resulted in or otherwise had an impact on enacted laws, policies or executive orders. Thus, for instance, under the bill as it presently stands, Walmart will not require to report the lobbying activity undertaken by it to the LRA as the law does not apply retrospectively. Presumably, this seems to be a safer approach as a retrospective disclosure of such cases would only irreparably open a Pandora’s box, can have mammoth consequences for past governments and result in a complete breakdown of state machinery. The DLA Bill may, therefore, be interpreted as implicitly sending out a signal that past instances of lobbying are waived.

Covered Persons

The DLA Bill covers lobbying activities intended to be undertaken by any entity, whether by itself or on behalf of others. It, therefore, covers independent lobbying agencies, India Inc, trade unions, non-profit groups as well as trade and business associations such as the Federation of Indian Chambers of Commerce and Industry (FICCI), which presently regularly represent their respective interests before the government.

Further, the DLA Bill, if it does fructify into a law, may translate into a double-edged sword for legal and accountancy professionals who often make representations before legislative and executive committees for the benefit of their clients. As in countries where lobbying is legal and therefore a service sector in itself, such professionals could officially take advantage of this public platform to expand their practice areas. However, at the same time, it would mean being subjected to regulation in a practice area, which was hitherto unregulated. Also, if the bill progresses into a law, it would be interesting to see whether the governing bodies of such professions such as the Bar Council of India and the Institute of Chartered Accountants of India would be amenable to allowing their members to engage in lobbying practice.

Further, it is not clear whether foreign lobbyists engaged by foreign corporates to lobby in India (the typical Walmart scenario) or foreign lobbyists engaged by Indian corporates to lobby in India or abroad would be covered under the potential enactment.