Advising the Authority

The National Advisory Council was recently reconstituted as the think tank of the Government after a gap of 4 years. Once again it is Congress President Sonia Gandhi who will be its chairperson. After her resignation from the post due to the office of profit controversy in March 2006, the NAC was subsequently dissolved. But with the Supreme Court upholding the validity of the exceptions to certain posts in the Office of Profit law, the NAC could again be reestablished by the Government. The National Advisory Council was originally set up by a Government Order in June 2004, to monitor the implementation of UPA’s Common Minimum Programme (CMP). The CMP was the basis on which the Left parties had given their support to the UPA which allowed them to form the government in 2004.

The functions of the NAC include the formation of policy of the government and assistance in the legislative business of the state. The NAC would have access to all the cabinet papers and files. It can make recommendations and submissions to the various ministries, but being just an advisory body none of them are bound to pass them. The members to this body, which may be up to 20 with a tenure of one year, will be appointed by the Prime Minister in consultation with the chairperson of the NAC. The members, like its last installment, is expected to be subject experts and civil society activists. In its first edition, the NAC included social and political activists like Aruna Roy and Jayapraksh Narayan, development economists like Jean Dreze and A.K. Siva Kumar amongst others.

The formation of such a body however, raises a few questions. The preliminary question is whether the NAC can play a positive role in the policy making exercise of the Government. One can also question whether there is a need for such an advisory body for the Indian state. The most challenging question it has to face is whether the formation of such a body goes against the framework of the executive and the legislature laid down in the Constitution of India. The NAC has already been accused by the opposition parties and few others as an unconstitutional body. However, these questions have to be addressed more sagaciously .

For addressing the first question, we need to look at the contribution of the NAC in UPA’s first tenure. It is important to note that some of the most celebrated aam admi legislations of the first UPA government has been because of the efforts of the NAC. The NAC was instrumental in the enactment of Right to Information Act and National Rural Employment Guarantee Act. Both these schemes were lobbied hard by the civil society for long and the presence of some of its advocates in the NAC would have helped. The reconstituted NAC is expected to propose changes that widen the scope of the Food Security Bill and the NREGA.

Though the Government has ministries which deal with most of the topics which the NAC deal with, it mostly works in a strict bureaucratic framework. Except when certain commissions are setup for specific topics, the government is deprived of experts from the civil society in its policy making. The existence of such a body will crystallize and legitimatize some of the demands the civil society has been raising for many years. So it can be argued that, there is a need for the presence of the NAC to fill the void in the present policy think tank in the ministries.

However, the worry is whether the NAC would emerge as an alternative cabinet. The NAC does not have any executive powers and can only give refutable advice to the government. However, given Sonia Gandhi's political standing, the other ministries may feel bound to follow the advice given by the NAC. So the allegation is that NAC would emerge as a parallel or a “super cabinet”. This would result in the unelected NAC, which is de jure an advisory body, de facto performing certain executive functions.

The Constitution of India makes the Executive answerable to the Legislature, but the NAC is not answerable to the Executive or any authority. Of course, the Constitution does not have any provision which provides for the NAC or a similar body. However, there is no provision which prevents the Government from constituting any advisory body. The allegation is that unlike the various advisory commissions which the government forms for particular tasks, the NAC exercises its advisory powers continuously over the government. The recommendations of the other Commissions are subject specific and often ignored as it disappears after it makes its recommendations. However the powerful Planning Commission of India, which also exercises its role continuously over many subject matters, is also not a Constitutional authority.

The constitutionality of the planning commission is seldom questioned as it’s a truism that it essentially performs an important role in planning for the government. The influence of the Planning Commission over the decisions of the government has been very high, especially in the last two decades. The “reforms” the Planning Commission is seen to bring in the different sectors lately, is often described as those supporting the “neo-liberal project”. Whereas the NAC has been seen to bring about more “pro-poor”, “aam admi” measures which is welfarist in nature. So is there some other reason for all the protest singled out against the NAC?

There is little opposition to the idea of institutionalizing expert advice from the civil society through the NAC. In fact, the opinion among the educated Indians is that the government simply doesn’t “perform” due to the unscrupulous politicians which the country has. So the prospect of bringing in experts from the non-political spectrum need not be damaging. However there is no scope of direct appointment of experts to executive posts under our parliamentary system. The top bureaucrats in the country have to go through the archaic Indian Administrative Services while all the Ministers have to be members of the Parliament.

The larger question is whether there is an need for the Indian polity to evolve into a system which strengthens the separation of powers (between the executive and legislature) and gives more meaning to executive accountability. Strengthening the Planning Commission and National Advisory Commission, both not being accountable to the Parliament, does not seem to solve the problem. A direct vault to the presidential system for having a more efficient executive seems far-fetched. But a Hybrid system, (which combines some of the features of the presidential system with the parliamentary system) whereby experts and activists are inducted into a council accountable to the parliament, seems to be an option. This cannot of course take place without some radical constitutional amendments which stand the “basic structure” test. Even in the present system the government has the option of appointing an expert as a minister and then try the Rajya Sabha route. Before all of this wider debates on the nature of Indian polity and a national consensus on changes in our political system, if any, is necessary.