A great debate has surged, in recent weeks in India, about democracy and “tough” economic reforms. In the field of finance, the main path of reforms is intertwined with deepening of democracy. This is what has been observed elsewhere in the world, in the early experience of India with reforms, and in the way ahead for financial economic policy. The essence of democracy — dispersion of power, and the rule of law — generates the precise conditions for the flowering of the market economy, of which finance is the core.
The NITI Aayog CEO, Amitabh Kant, reportedly said that “tough” reforms are “very difficult in the Indian context,” as “we are too much of a democracy” but the government has shown “courage” and “determination” in pushing such reforms across sectors, including in areas like mining, coal, labour and agriculture. This led to a storm, with many critics fervently defending Indian democracy, and the CEO clarifying in a column in The Indian Express that he had been misunderstood.
While the concept of peaceful handover of power through elections looms large in our minds, there is much more to democracy than elections that determine who is the elected ruler. The essence of democracy lies in dispersion of power, in containing arbitrary state power, in channelling state power into the path of the rule of law. Under the rule of law, private persons and economic agents feel safe that the coercive power of the state will be deployed in a predictable and rules-based way, impartially. This encourages investments in building firms and building personal wealth. There is thus a deep connection between the emergence of democracy and the willingness of the private sector to commit, to spend decades building organisations, and to keep their wealth in the country.
These concepts apply with full force in the essence of the market economy, i.e. finance. Every financial system involves financial regulation. When state and regulatory power is unchecked, regulators have discretion on who is targeted. Under these conditions, private persons invest in the power game, in influencing the use of state power. The focus of private persons is then more on managing the political regulatory and bureaucratic environment, and less on understanding consumers, technology and efficient methods of running organisations.
For these reasons, there is a strong connection between bolstering democracy and achieving a better functioning financial system. A common law framework is one where legislators or regulators operate in a more principles-based way, where the state does not prescribe details of products or processes, where the state does not pick winners, where micro-management of private persons is absent, which give a bigger role to judges to think about a novel situation and to effectively make law. Many researchers, starting from Brown University Professor Rafael La Porta and co-authors in the Journal of Financial Economic Policy in 2016. In this sense, in finance, we know that more democracy is good for financial development.
Illustration: Binay Sinha
The Financial Sector Legislative Reforms Commission (FSLRC) was set up by the Government of India, Ministry of Finance, on March 24, 2011, to review and rewrite the legal-institutional architecture of the Indian financial sector. This Commission was chaired by a former Judge of the Supreme Court of India Justice B N Srikrishna and had an unusual mix of expert members drawn from the fields of finance, economics, public administration and law. The Commission was also uniquely staffed as other than the secretary of the Commission all the others who worked on the mandate were academics/researchers and market practitioners. Right at the outset, the FSLRC located financial policy frameworks within the Constitution of India and Indian democracy.
It stated that “the drafting of law in a democracy must necessarily give opportunities for all viewpoints to be heard”.
The substance of the report, and the draft law, directly harness democracy to serve the objective of a capable financial sector. The commission’s basic proposition is that “in a liberal democracy, the ‘separation of powers’ doctrine encourages a separation between the legislative, executive and judicial functions. Financial regulators are unique in the extent to which all three functions are placed in a single agency. This concentration of power needs to go along with strong accountability mechanisms.”
Emphasising that there is a strong case for independence of regulators, as independent regulators would yield greater legal certainty, the commission suggested that the quest for independence of the regulator requires two planks of work. On the one hand, independence needs to be enshrined in the law, by setting out many processes in great detail in the law. On the other hand, the Commission drew attention to the dangers of the administrative state, of the unchecked rule of officials who have the power to even draft law and write judicial orders. Hence, alongside independence, there is a requirement of accountability mechanisms.
The Commission recommended five pathways to accountability. The processes that the regulator must adhere to were written down in considerable detail in the draft Indian Financial Code (IFC). The regulation-making process (where Parliament has delegated law-making power to regulators) was established and elaborated in the draft IFC with great care, with elaborate checks and balances, as there are special dangers when unelected officials are given the power to write laws. Systems of supervision were developed with a great emphasis on the rule of law. Strong reporting mechanisms were prescribed. Finally, a mechanism for judicial review was enshrined for all actions of regulators through a specialised tribunal, with special attention on the problem of mere civil servants acting as judges.