From net neutrality to IBC & Aadhaar, how Vidhi is framing key government legislation

by Admin — last modified Jan 04, 2018 02:45 PM

It's not every day that a 30-something former Oxford academic disrupts the plans of the world's biggest disruptor.

The article by Surabhi Agarwal and Samanwaya Rautray was published in Economic Times on January 4, 2018.

But Arghya Sengupta is no pushover — his boyish charm perfectly couches confidence, clarity and commitment towards translating law for the layman. That alone helped Sengupta and his team from the Vidhi Centre of Legal Policy to take on none other than Facebook's Mark Zukerberg and his army of public policy wonks and spin doctors during the fiery net neutrality debate, helping the telecom regulator draft guidelines. Vidhi's intervention had a huge impact and led to Facebook's Free Basics programme being called off, changing the global narrative on net neutrality forever. That zeal continues.

Walk into their office in a plush Defence Colony bungalow even at 7 pm and you will feel the fervour. The day ET did, two colleagues were discussing interference in appointments to tribunals.

Judicial reforms is one of the many independent research projects Vidhi has been pursuing since it came into existence in December 2013. It has since carved out a significant role for itself in framing key government legislations — perhaps more than any legal think tank in India. In fact, several of Vidhi's independent research projects on public policy have led to commissioned assignments from the government as well as the judiciary.

The Game Begins

Vidhi's first government assignment had to do with the ministry of finance's Public Procurement Bill. Since then, it has assisted in framing the Insolvency and Bankruptcy Code, the Aadhaar Act and amendments to the Companies Act. It has also helped in drafting differential pricing norms under net neutrality guidelines issued by Telecom Regulatory Authority of India. It is currently working on the Financial Resolution and Deposit Insurance (FRDI) and Data Protection Bills, and is also involved in deliberations over simplifying GST.

So how did this not-for-profit organisation manage such velocity? Sengupta, the 33-year-old founder of Vidhi, points to the void that exists between good legal research and framing of legislations in India. "A particular problem that exists within the governance framework is that good policy ideas don't often translate into good legislation because lawyers and policy makers don't talk to each other," he says to explain where Vidhi fits in. "There is nothing special about us...Policy and law is a new area and there are very few people doing high-quality work in it." Vidhi is mostly engaged directly by ministries or departments drafting a particular law, and not by the law ministry.

Sengupta, former faculty at Pembroke College in the UK, where he taught administrative law, emphasises that Vidhi does not draft laws, only assists in their drafting. "To some, we provide inputs and research, while for others we sit together to draft the legislation."

Their primary goal is to draft better law — and they have no competition. The only other organisation coming even close is NIPFP, providing sectorial services for government committees. In that sense, NIPFP doesn't have lawyers so they may not draft the law, says Sunil Abraham, executive director of Bengaluru-based think tank, Centre for Internet and Society (CIS). "Vidhi's efforts are pioneering and it's not surprising that they have become so successful. They are like that Mad Magazine tagline, number one in the field of one," he quips. "Other bodies such as Carnegie Mellon are vehicles for US MNCs to lobby but Vidhi doesn't have any foreign funding, so they are credible for the government," says Abraham, who was member of the Shah Committee when privacy principals were being drafted.

An Outsider Perspective

"Drafting of legislations requires a whole lot of research. Ten years ago, there weren't any institutions that did that kind of work," says Sumit Bose, Vidhi's current chairman. This retired bureaucrat was instrumental in getting Vidhi its first project as then finance secretary.

He was introduced to Sengupta through his daughter and son-in-law, a graduate of National Law School of India University (NLSIU), Bengaluru. Although things are better now, Bose says, many states still don't have enough capacity for the research behind laws. "You need one foot in the door, and then it's up to you," says Sengupta, son of a teacher and banker in Kolkata.

In a system where the legislative department is typically engaged to draft laws, Vidhi has emerged as the "new interface" between policy and law-making, says its board member Arvind Datar, a senior advocate in the Supreme Court. "They have the unique ability to give an outsider's perspective to any area of law." Datar says Vidhi did extensive research for former Attorney-General Mukul Rohatgi in debates on Aadhaar and the National Judicial Appointments Commission.

Other members on Vidhi's board include Star India chief executive Uday Shankar, strategic adviser Ireena Vittal and NLSIU associate professor Govindraj Hegde. A Union minister familiar with Vidhi's work offers an explanation as to why the government was roping it in. "It is about comfort as well as secrecy and they bring both," he says, asking not to be identified.

A top bureaucrat who has worked extensively with Vidhi says it is not a yes man, and this sets it apart. "Many times, they refuse to include our suggestions, telling us that it will not stand the scrutiny of court or it will not be proper from a legal standpoint," he explains, also requesting anonymity. "There is a lot of research that goes into drafting a legislation, be it pertaining to international best practices or previous judgements. Post a lot of internal discussions, these inputs are included."

Another government official says his department has a running advisory contract with Vidhi. "They are very young people with fresh ideas. They may not fight cases, but they do a lot of good table research, bringing up new legal points." Sengupta says not many organisations are doing similar work. "A lot of the work of this nature is done by universities."

Resistance to Change

Among the biggest reforms Vidhi has worked on are the Insolvency and Bankruptcy Code (IBC) and Aadhaar Act, with GST being an ongoing task. Vidhi helped translate Aadhaar from an executive order to a statutory body. As for the IBC, Sengupta's assessment is that it was a reform 50 years late and essential for entrepreneurship to grow.

But what remains " Vidhi's single-most rewarding experience" is shepherding the net neutrality guidelines. "I think this government is very keen on systemic reforms. They have the appetite to change status quo," says Sengupta. Even so, some legislations Vidhi has been involved with face stiff resistance from citizen-activists.

Sengupta isn't perturbed. He distinctly outlines Vidhi's purpose and role in policymaking — advise the government to ensure that a law being drafted is constitutional, clear, takes into account international best practices and can be implemented effectively. "I believe all opposition is good because it makes everybody think. A lot of the opposition—be it to Aadhaar or to payment-related clauses in IBC —is to the concept," he says. "We didn't come up with the concept so we don't see it as a criticism of our work."

Early Opportunities

Vidhi began as an idea when Sengupta was a graduate student at Oxford University. Along with a lawyer friend, he began sending unsolicited legal input to the parliamentary standing committee looking into the controversial Indo-US Nuclear Liability Bill. To the duo's surprise, it was called to depose before the committee; later, the Department of Atomic Energy sought help with some sections. "We drafted 17 sections and of those, two became law... It was a great opportunity for us," says Sengupta.

This was followed by solicited and unsolicited work during 2010-12 on eight projects, including the Judicial Standards and Accountability, Prevention of Torture and Public Procurement Bills.

The think tank currently has about 40 employees and opened a second office in Bengaluru in August.

Sengupta credits Vidhi's early success to Ashok Ganguly, former chairman of Hindustan Lever (now Unilever) who was also a member of Parliament. In 2011, Ganguly was putting together a representation on policy paralysis and wanted help with research. Ganguly, who would become Vidhi's first chairman, put Sengupta in touch with several people, some of whom provided grant funding to get the think tank going. That did raise some eyebrows.

Conflict of Interest

As they spread their wings, the think tank received funding from the Mahindra Group, Pirojsha Godrej Foundat ion, Vikram Sarabhai Foundation, Jamsetji Tata Trusts, Gourab Banerji, Mohandas Pai and Rohini Nilekani. Verticals within Vidhi have separate funding. For instance, the unit working on the Judicial Reforms Bill is funded by a group called Dasra, which is a collective of philanthropists. And yet, Sengupta says "fund-raising is a constant challenge."

While government work does cover costs, it is not enough to sustain the organisation. Sengupta did not divulge how much Vidhi earns from a typical government project. Over half of the work that Vidhi does is independent research on topics ranging from clean air in Delhi to euthanasia and judicial reform.

Vidhi's fundraising, though, brings up a serious issue of possible conflict of interest, given its work on key legislations such as the Aadhaar Act while being funded by entities that could be affected directly or indirectly by those legislations. For example, Rohini Nilekani, is the wife of Aadhaar architect Nandan Nilekani, who funds Vidhi which not only assisted in drafting the Aadhaar Act but is now also involved with the Data Protection Bill that has key implications on the unique identity number.

Sengupta has also been called to argue in the landmark debate on whether privacy is a fundamental right — ignited after the Supreme Court received scores of petitions against Aadhaar — on request of the government's top lawyers arguing against it. Sanjay Hegde, senior Supreme Court advocate, says, "I see credibility issues when Sengupta argues in favour of Aadhaar in court in the privacy debate and, at the same time, is nominated on the Dr Srikrishna Committee, which is drafting the Data Protection Bill."

He adds, "In a city replete with think tanks and law firms, it would be interesting to see what percentage of government advisory work in terms of billing is cornered by this think tank alone."

Sengupta's defence is that Vidhi believes in transparency and doesn't accept foreign or retail funding. All funding-related information is detailed on its website, he argues. "People are free to make whatever judgement they wish to because conflict is one thing that cannot be eliminated," he says. "The moment you take funding from anybody, there will always be conflict. My answer to that is transparency."

IVY League Talent

What matters is that till date, such issues have not deterred the flow of best Ivy League talent into Vidhi. The founding team included Dhyani Mehta, who heads its environmental vertical; Devanshu Mukherjee, who leads its financial sector work and Alok Prasanna, who heads its Bengaluru office.

Prasanna, had earlier worked with solicitor general Mohan Parasaran's office in Delhi in high profile cases such as the government versus Vodafone and the government versus Reliance Industries. A few "fellows"— Sriboni Sen, Rukhmini Das (pursuing a PhD now) and Ketan Paul (now litigating) — though have moved on.

Yet others like Nikita Khaitan, who graduated from Yale University in the summer of 2016, have stepped in since June last year. Khaitan, who comes from the family of the Khaitan and Co law firm, heard about Vidhi from her cousins who went to the same law school as Sengupta. "Vidhi is one of the few staples where you can do quality work that is not litigation or corporate law," she says, on what clinched the decision for her to join Vidhi after Yale. "A lot of young people today want to return to India and do work which is high-impact." Now that's an argument no one can disagree with.