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My paper on parliamentary oversight in India

9 Aug

My paper proposing a framework for Parliamentary Oversight in India has been published in the NUJS Law Review (link). A brief description of the paper: 

The need for a strong monitoring mechanism of the Executive in India has been made clearer by recent allegations of corruption against high-ranking officials of the central government. The Indian Parliament is the ideal institution to perform such a monitoring function through oversight of the central executive. The Executive in India is directly accountable to the Parliament. Making oversight by Parliament stronger and more effective would therefore increase the accountability of the Executive. Additionally, an increased oversight role would allow for greater policy inputs from Parliament to the Executive. It would also increase the general level of expertise within Parliament by making parliamentarians more technocratic and giving them greater avenues for specialization in different aspects of policymaking. This has held true in varying degrees in different countries as examined in this paper. Enacting a law that formalizes mechanisms of oversight within Parliament, especially within the committee system, can create such a framework in India. The central focus of a strong oversight framework is the system of parliamentary committees. Reinvigorating existing committees by giving them greater autonomy, clearer powers and research support are central tenets of the proposals made in this paper. Along with restructuring parliamentary committees, the incentive structure for Indian parliamentarians to conduct oversight is also examined, and proposals are suggested to ensure they perform their oversight function effectively. Such a law should reshape the way Parliamentary business is conducted with a view to holding government accountable, while at the same time allowing the central executive to function independently, and with greater efficiency.”

Putting Carts Before Horses. And How?

9 Apr

This post was first published by Humorlessindianlawyer.blogspot.in on April 8, 2014.

Imagine,

living in India with a Parliament that makes laws, an executive that implements these laws and a court system that interprets these laws. Now, imagine Parliament making the following law:

Right to regulate all Economic Activities Completely Act, 2014

Section 1. This Act applies to all of India. Except J&K, because we don’t feel like it.

Section 2. The central government will have the power to ban any economic activity if: (a) it is useful, (b) people can make money from it, (c) it increases the work of government officers, or (d) the concerned officer is in a bad mood that morning.

Section 3. Yes, we really mean business. This time.

Section 4. Notwithstanding thereto anything therefore whereas provided that “economic activity” includes sand mining, coal mining, writing books or, buying, selling, making, eating, drinking, consuming, excreting, advertising any product or service, but does not include the buying or selling of votes.

Section 5. The central government can make rules for the purpose of implementing this Act.

Section 6. This Act will become applicable on the date the central government notifies it in our super cool official gazette. The central government can selectively notify some sections of this Act on days it rains.

Continue imagining,

some super-zealous government officer notifies Section 5 of the Act, but forgets to notify any other section. So out of the entire Act, only Section 5 is in force and applicable law. Thank god, you may say. But the central government goes ahead and starts making rules banning sand mining.

But how? Sections 2 and 4, the two most bad-ass sections have not even been notified yet! People challenge this stupid Act and the rule made under it in the courts.

Dreams get real

In 1988, the Indian Supreme Court made this nightmarish dystopia a reality. In Ajay Canu vs. Union of India the Supreme Court was hearing an appeal from the High Court of Andhra Pradesh. The petitioner had challenged a rule by the state of Andhra Pradesh that required all persons driving motor cycles and scooters to wear helmets.

One of the issues the petitioner raised was that this rule was made under Section 85-A of the Motor Vehicles Act that had not yet been enforced (the other issue was that the Act violated the freedom of movement under the Constitution). Without the section in the parent Act coming into force, no rule, surely could be made under that section? The court swatted away this contention in a majestic display of its wisdom.

The Court pointed to Section 91 of the Motor Vehicles Act. Section 91 gives the government the power to make rules for implementing the Motor Vehicles Act (Importantly, while Section 85-A had not been enforced, Section 91 had been). The Court said it would proceed on the assumption that Section 85-A had not been enforced. However, even if it were not enforced, Section 91 gives the power to the government to make the rules requiring drivers of motorcycles to wear helmets!

Lets re-state this: The Section that gives the power to require drivers of motor cycles to wear helmets has not been enforced. The Section that gives the government the power to make rules for implementing this section is in force. Without the specific power, the rule-making power is useless, one would think. Section 91 specifically states “The … government may make rules for the purpose of carrying into effect the provisions of this chapter…“. And yet, the Supreme Court says it is ok to make rules enforcing a Section that is not even applicable law yet!.

Even worse, this case concerned a challenge to the fundamental right to movement. The Supreme Court held that the rules made by the Andhra Pradesh government did not violate this fundamental right. The net effect of this decision is that the government can impose restrictions on fundamental rights (including, on the freedom to carry on trade and commerce, say, by banning sand mining) by passing a law, and notifying only one section that states that the government can make rules to implement this Act!!

This of course, works brilliantly if you are the government. Suppose the law that is used to do all this provides a right to challenge the government order. Simple. Don’t notify the useless giving-losers-a-chance-to-whine section, and you are good to go!

Constituency-wise Manifestoes, their regulation and consequences

12 Mar

1 Introduction

Today’s Mint carries an article on how political parties have increasingly moved to a system of “localised” manifestoes for the 2014 general election. This is a significant trend that began with Aam Aadmi Party’s Delhi election campaign where it released local manifestoes for each assembly constituency (link). The BJP followed suit in Delhi, and according to news reports, is planning to do the same for the national elections (link). The Congress under Rahul Gandhi is sticking to one manifesto, but its leaders are making the right noises about making manifesto preparation a participatory process.

At the same time, the Election Commission of India has recently started regulating election manifestoes under its Model Code of Conduct pursuant to a Supreme Court judgement. It has stated that election manifestoes should explain the “rationale” for its proposals and how these proposals will be funded. Both these developments, (a) the localization of manifestoes, and (b) the regulation of manifestoes are significant markers for electoral democracy in India.

2 Local Manifestoes

Election manifestoes represent a charter of goals that political parties will strive to achieve if voted into power. The adoption of a system of local manifestoes is both exciting as a tool of political participation, and worrying if one pauses to think of how the aggregation of local manifestoes will work to inform a national government.

On the one hand, this localization process is heartening. Indian political parties seem to be involving the electorate directly in the preparation of manifestoes, and paying greater attention to their voices. This is a marked departure from a process where, as Mint states, “a group of leaders would discuss and determine the content of the manifesto.” AAP has clearly brought in an innovative idea for running political campaigns, and it is being tested by both BJP and the Congress. It makes manifestoes more relevant, and increases (to at least some extent), the level of accountability of elected leaders as voters may have greater recollection of a local manifesto than a national one. If developed properly, this system of local manifestoes could also help make elections more issue-based, albeit at a level where local issues are more relevant. It could also improve the transmission of political messages from voters to politicians by giving the latter a clear charter to try and implement, rather than be a passive responder to powerful local interest groups.

However, while democracy is about representation, but it is also about leadership. The benefit of a centralized process of making a manifesto is that a political party takes an a priori call on what it stands for, and wishes to achieve. This manifesto can then be tempered once voters respond to the manifesto during the campaign. However, here the process of political communication emphasizes leadership and vision. It allows political parties to communicate what they stand for, rather than just try and respond to every constituency’s preference. Incorporating a process where manifesto preparation is completely decentralized creates a risk of parties losing sight of any non-negotiable principles they may stand for.

Obviously, both these arguments assume that it political parties will follow only one of these two approaches, while most political campaigns are likely a blend of both central decision-making and feedback from local constituencies. And given the inordinate amount of power leaders of political parties enjoy, a decentralized process may be the best thing to have occurred in electoral democracy recently. “Garibi hatao” was enormously successful for Indira Gandhi, but it is debatable whether she would have come up with it if the commnication of voter preferences were better. Ditto for NDA’s unsuccessful “India shining” campaign.

Lastly, this argument pre-supposes that political parties and voters take manifestoes seriously! It is in this context that the recent judgement of the Supreme Court (linked above), and the consequent actions of the Election Commission are so significant.

3 Regulation of election manifestoes

The Election Commission has brought election manifestoes under the Model Code of Conduct. In para 3 of “VIII Guidelines on Election Manifestos” of the MCC, the EC states:

(i) The election manifesto shall not contain anything repugnant to the ideals and principles enshrined in the Constitution and further that it shall be consistent with the letter and spirit of other provisions of Model Code of Conduct. (ii) The Directive Principles of State Policy enshrined in the Constitution enjoin upon the State to frame various welfare measures for the citizens and therefore there can be no objection to the promise of such welfare measures in election manifestos. However, political parties should avoid making those promises which are likely to vitiate the purity of the election process or exert undue influence on the voters in exercising their franchise. (iii) In the interest of transparency, level playing field and credibility of promises, it is expected that manifestos also reflect the rationale for the promises and broadly indicate the ways and means to meet the financial requirements for it. Trust of voters should be sought only on those promises which are possible to be fulfilled.

Para (iii) is extremely significant. It requires political parties, for the first time, to (a) explain the reason why the political party is making a particular promise, and (b) explain what resources, including finances it will utilise to fulfill these promises. This is extremely important for the following reasons:

  1. Political parties will have to explain why they want to do something. Ensuring they give proper reasons for wanting to do something will make it more difficult to throw in mindless freebies without any justification. Also, it will reduce room for ideological inconsistencies. Since they have to provide rationales for every promise, it will lead to greater scrutiny of the political party’s overall philosophy, and therefore require parties to think harder about what to put in the manifesto. Lastly, it will reduce incentives to throw in a laundry list of promises without any intention of fulfilling them. Manifestoes have to be readable documents and they have to help the political campaign project an easily communicable message. To ensure this is maintained, the process of picking what to promise will become more selective once the reasons for the promises also have to be included.
  2. Political parties will have to explain what financial resources will be used to achieve its promises. Even if at present they have to only “broadly indicate” how they wil do so, it is a milestone in nudging political parties towards being fiscally responsible. If a political party wants to spend 25% of the country’s budget on defence, it will have to show how it intends to also deliver on its promise of giving everyone free hospitals, food, television sets, electricity, water and the like at the same time. Even if the average voter is not concerned with these issues to start off, it will lead to greater expert and media scrutiny of election promises. We can at least begin to aspire for substantive debates on poll-promises rather than a game of upmanship based on who can promise how much.

 

AAP Governance:The dangerous and regressive fight over Electricity pricing

6 Feb

Introduction

The Aam Aadmi Party led Delhi Government has (link) slashed power tariffs in Delhi, and is in the midst of an ongoing tussle (link) with Reliance owned discom BSES over the supply of electricity in certain parts of Delhi. The AAP, even before taking the reins of the Delhi Government had long accused the Delhi discoms of overcharging consumers, and had demanded an audit into their activities, something they have now initiated (link).

Meanwhile, Delhi’s electricity regulator, the Delhi Electricity Regulatory Commission (DERC) has raised tariffs (link), and also stated that the Delhi Government cannot “cannot interfere in fixing tariff” (link).

What is going on here? On the one hand is the claim by the AAP Government that discoms are over-charging consumers. They seek to resolve this issue by (a) asking discoms to reduce tariffs by 50 percent, and (b) asking the CAG to audit the discoms to see whether they are overcharging. Added to this mix is the DERC which states that the Delhi Government has no power to reduce tariffs. It can only subsidize consumers if it wants. There is a complex legal and regulatory framework with a complex history that needs to be understood here.

 

Electricity regulation in the past

“Electricity” is an entry in List III (Concurrent List) of the Seventh Schedule of the Indian Constitution. This means that electricity can be regulated by both the states and the Central Government. How this works in practice is that purely intra-state generation, production, distribution and consumption of electricity is regulated by the state. Any inter-state aspect of this process is regulated by the Central Government. For example, if a power distribution company in Delhi buys power from a generation company that sells power to 4-5 other states, the terms of the purchase will be regulated by the Central Government.

Until about 10 years ago, electricity distribution in most states was run by state-owned companies (one may remember the infamous DESU in Delhi). Electricity distribution in many states is still run by state-owned companies, but many states have privatised this function to a large extent. More importantly, the process of fixing tariffs for electricity has changed. Why?

State governments have an obvious incentive to keep power prices low. It is a sop given to consumers who then vote for the party in government. How this was being done was broadly the following: the state government would direct the state-owned electricity distribution company to keep electricity prices artificially low. The company would consequently be charging consumers a price lower than the cost of providing them electricity. Since the company never recovered the cost of providing electricity, it basically provided poor quality of electricity. They were essentially loss-making entities, being told by the state government to keep operating as loss-making companies to subsidise consumers. The consequences were poor quality of electricity, and lack of expansion of the electricity supply to all segments of the population.

Most importantly, and conveniently for state governments, the loss from under-charging consumers was borne by the distribution company, and not the state government. State governments, rarely transferred the difference between the cost and the price being charged to the distribution company. So even though discoms became more and more financially unviable, state governments never suffered any financial consequences. They could therefore afford to get away while being fiscally irresponsible, and consumers got low quality electricity at low prices.

Parliament’s Standing Committee on Energy noted in 2002(link):

 

“…tariffs not related to costs of operation, the inefficient operational phases and nearly 50% of the energy consumed not metered which go towards agricultural consumption, hut lighting, T&D losses and pilferage. T&D losses reported by many SEBs are fudged figures. There is free or subsidised power supply and absence of commercial outlook. Political intervention in decision-making by SEBs is rampant. Shortage of power and energy is perennial. There was lack of clear cut policies, organisational purpose, control or responsibility and frequent change of leadership. This is coupled with overstaffing and low productivity and revenue earning distribution function totally neglected.”

 

So what changed?

The condition of discoms throughout the country became acute by the mid-1990s. This extract is from a debate in Parliament in 1998 (link):

 

“…we are today in a critical financial situation in the power sector…I have already explained about the poor and fast deteriorating financial health of the SEBs [State Electricity Boards]. With their finances fast getting eroded, the SEBs will find it difficult to realise any improvement in their operational performance and unless their financial condition improves, they may not be able to realise even the limited capacity addition programme that is now envisaged in the State sector during the next four to five years…In short, if the present scenario of the power sector is allowed to continue, the ability of the SEBs to provide adequate electricity in a reliable manner to the consumers will fast get eroded…”

Starting in 1998, efforts were made to create independent regulators in the electricity sector. These regulators were intended to be independent bodies that would set power prices in a technocratic manner, and be independent of political pressures. This would help discoms charge the cost-price of electricity and make the sector financially viable.

At the same time, a slow process of privatisation of electricity generation and distribution was also initiated. By 2006, the National Electricity Policy of the Central Government explicitly stated that there was a need to attract private investments into the power sector (link)

“…It is therefore essential to attract adequate investments in the power sector by providing appropriate return on investment as budgetary resources of the Central and State Governments are incapable of providing the requisite funds…”

Private investors require certainty and clarity. Unlike discoms owned by states and the Central Government, they are unable to absorb losses on an endless basis. They therefore require a proper, technical mechanism of price fixation, and require that the government will stand by the price fixed by it. This was the reason for setting up independent regulators.

 

Electricity Act and Independent Regulators

In 2003, Parliament passed the Electricity Act (Act) (link). The Act set up independent regulators at the Central (The Central Electricity Regulatory Commission or CERCs) and state levels (SERCs). The Act allows the “Appropriate Commission” to determine tariff according to certain principles laid down in the Act.1 These include keeping in mind that the generation, distribution and supply of electricity is done on “commercial principles”, competition, rewarding efficiency in performance, safeguarding consumer interest, etc. It also stated that tariffs cannot be amended more than once during a year.2 Importantly, the Act states that if the State Government requires a discom to provide a direct subsidy to consumers, the state government will compensate the discom in advance.3

The CERC and SERCs are therefore established as independent bodies, and one of their major functions is to regulate the tariff of electricity. The Act also set up an Appellate Tribunal for Electricity (APTEL). APTEL hears appeals from all orders of the CERC and the SERCs, including orders that fix tariff. State governments and discoms can appeal against orders of the CERC and SERCs if they feel the order is inadequate.

There was thus a very conscious move towards creating a legal framework where electricity prices were to be set by an independent body acting in a technocratic manner. It was hoped that this would lead to private investment and competition, and create a more efficient power sector in India.

State of the power sector today

The provisions of the Electricity Act, 2003 have not been implemented in letter and spirit. Electricity tariffs are not revised and set properly, SERCs are not independent enough, and state governments have done a half-hearted job of privatizing the state-owned discoms. The Chairman, CERC told Parliament’s Standing Committee on Energy in 2012 that the state of State Electricity Boards (SEBs or discoms) is almost as bad as it was in 1998.4 The Tamil Nadu State Electricity Board was reported to be bankrupt (in 2011) (link).

The CERC Chairman told Parliament’s Standing Committee on Energy in 2012 that:

“There are State Commissions which have not rationalised tariff for seven to eight years and there, even if they had taken up any kind of rationalisation exercise, it had been more of a formality. All this has contributed to the Electricity Boards coming back to the situation which they were in 2001 and probably getting worse”5

In response to a question raised in Parliament, the Power Minister stated that the situation of state owned power companies was so bad, that,

“A scheme for Financial restructuring of Discoms has been approved recently (October, 2012) with objective to enable the State Governments and the Discoms to carve out a strategy for the financial turnaround of the distribution companies in the State power sector which will be enabled by the lenders agreeing to restructure/reschedule the existing short-term debt…”6

The answer clearly lies in a continued move towards more technocratic tariff setting, and getting state governments to cede control over state-owned discoms/privatise the electricity sector. It is in this context that we must study the conflicts over the prices of electricity in Delhi.

The Delhi electricity price fight

Delhi privatised its electricity distribution some time in 2002 (link) As per a news report, during the last 10 years, “cost of power has increased 300%, mainly because of higher coal prices and a rise in the financing charges due to higher interest rates, while the rate at which it is sold to retail consumers has increased by only 70% during the period…” (link). Whether the increase in prices is correct needs to be determined through a process of audits and reviews. However, some points need to be made:

 

  1. Electricity prices in Delhi are set by the Delhi Electricity Regulatory Commission (DERC), and not by the Discoms or the State Government. The DERC follows an extremely transparent method of determining tariffs. It involves stakeholders in every stage of this tariff determination process (a recent order can be accessed here).
  2. The Delhi Government is legally not permitted to direct discoms or the DERC to reduce tariffs. The reduction or increase in tariffs is dependent on the process followed by the DERC under the Electricity Act, 2003.
  3. If the Delhi Government thinks the DERC has erred in setting the tariff, it is free to go to the APTEL and challenge DERC’s order.
  4. It is free to order an audit of the discoms, and then take a decision on the functioning of these discoms after the results of the audit are published.
  5. If the Delhi Government still thinks that the electricity prices are too high, it is free to subsidise consumers. There is however, one crucial difference between a subsidy the Delhi Government would give now, as opposed to before discoms in Delhi were privatized. Before privatization, the Delhi Government could have forced state-owned discoms to absorb the losses. Today, the burden of funding this subsidy has to be borne by the Delhi Government. According to news reports, this subsidy will force the government to cough up an additional Rs. 201 crore in the lastquarter of 2013-14… (link). This subsidy is apparently being paid for by scrapping infrastructure projects. Notably, there is no rational basis (yet) for claiming that electricity is over-priced by 50 percent. And as pointed out earlier, even after all the tariff hikes in the recent past, the cost of electricity in Delhi is far higher than what consumers pay for it.

As point 5 shows, once the government bears the burden of the subsidy, taxpayers have a very real stake in the game. We may decide that it is fine for the government to subsidise electricity. But at what cost? We are discussing not just a financial cost, but the cost of trying to bulldoze legal institutions such as the DERC into submission on the basis of a simplistic claim of corruption without any actual evidence (yet) of over-priced electricity. We are also discussing the cost of going back to a regressive era where we consumers received poor quality electricity at low prices because elected governments were playing a cynical game of charging less for less. The current fight over electricity pricing goes to the heart of what kind of institutions we build for the future.

 

————

1. Section 61

2. S. 62

3. S. 65

4. Oral evidence of Chairman, CERC to Standing Committee on Energy in its 30th Report on Functioning of Central Electricity Regulatory Commission (CERC), August 2012.

5. Ibid.

6. Unstarred question no.1635 on Provision of electricity at economical rate, by Shri Wakchaure Bhausaheb Rajaram, answered on 07.03.2013, Lok Sabha.

Fatal attraction: The State’s “public purpose” in Land Acquisition

12 Sep

This post was first published in The Broad Mind, on September 12, 2013. 

 

Both houses of Parliament recently passed The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (“2013 Act”), repealing the century-old Land Acquisition Act, 1894. For years, the new law was touted as the panacea to the evils the old Act perpetuated, not least, the broad discretionary powers to state authorities for acquiring land for a “public purpose”. News reports have pointed to how land is allegedly bought at below market prices (read here and here), and consequently sparks loud protests.

 The new Act seeks to resolve this controversy by providing for higher compensation (up to four times the market value in rural areas), requiring prior consent for land acquisition (80 percent of affected families for land acquired on behalf of private companies and 70 percent for public private partnership projects), providing detailed time lines for each stage of the acquisition process (estimated to take approximately 4 years!), rehabilitation and resettlement of affected families in certain cases, etc. This however does not address the main cause of the controversy: state intervention in land acquisition on behalf of private entities.

The old 1894 Act created an expansive definition of “public purpose” based on the assumption that the state would be the chief architect of industrial development, for which it needed to have the power to acquire land for a multitude of purposes. This included some arguably legitimate purposes such as the provision for town planning, development of land from public funds, and “for carrying out any educational, housing, health or slum clearance scheme sponsored by Government or by any authority established by Government. But it also included other purposes such as (a) on behalf of PSUs, and most importantly, (b) “the provision of land for any other scheme of development sponsored by Government or, with the prior approval of the appropriate Government, by a local authority”.

Many protests (including those mentioned in the news reports linked above) arose primarily because of the heavy-handedness of the state in acquiring land, sometimes on behalf of private companies, at below market prices. The new Act intends to correct this heavy-handedness. It does not however question the basic assumption of the role of the state as an interventionist intermediary in land acquisition. Instead, it tries to improve the existing condition by creating more state agencies and broadening consensus-making processes. It requires a social impact assessment through consultation with local municipalities, gram sabhas and panchayats. It creates an expert group consisting of social scientists, representatives of gram sabhas, panchayats or municipalities, technical experts and experts on rehabilitation to evaluate social impact assessment. It also creates a committee for rehabilitation and resettlement, and land acquisition and relief and rehabilitation and resettlement authorities at the state and central levels.

Whether these institutions will work efficiently is hard to predict, but their establishment is an irrevocable step down the path of establishing the state as an intermediary in all land acquisitions for a public purpose. This brings us to the root of the problem: the definition of “public purpose” in the 2013 Act. The definition of public purpose in the 2013 Act has become, if anything, more expansive and explicit. It covers acquisition for strategic purposes, infrastructure purposes (which includes everything from agro-processing units established by government entities to projects for industrial corridors), and retains most of the clauses from the 1894 Act. Worse, this definition is not exhaustive!

The philosophy behind this 2013 Act is therefore seemingly this: the existing role of the state in land acquisitions is non-negotiable. However, multiple controversies have arisen where compensation paid has allegedly been below market prices, or insufficient (This is due to the fault of state agencies since they assess market prices and give compensation.) To correct this wrong, we need to do two things: (1) create more detailed legal process to ensure clear parameters for fixing compensation, and (2) create monitoring and oversight mechanisms.

The question is this: when did the role of the state become non-negotiable? Consider the original Land Acquisition Bill introduced by the UPA in 2007. The Land Acquisition (Amendment) Bill, 2007 (“2007 Bill”), was passed by the Lok Sabha in 2009, but lapsed when the Lok Sabha dissolved prior to the elections. The 2007 Bill contained a narrow, restrictive definition of “public purpose” based on a different premise of the role of the state in land acquisition. The definition is a complete contrast to the page-long definitions in the 1894 Act and the 2013 Act. It includes:

  1. acquisition for strategic purposes,
  2. infrastructure projects of the government where benefits accrue to the public, and
  3. any other purpose where land has already been purchased to the extent of 70%.

The 2007 Bill, which nearly became law, would therefore have been a complete change to this assumption of state intervention that the 2013 Act is predicated on. Between 2009 and 2013, the philosophy of reform which first motivated proposed changes to land acquisition law were completely replaced by a philosophy of incremental change. In this context, our final legislative product, the 2013 Act that replaces a century-old, much-maligned law, is a comparatively small step to prevent market abuses. It does nothing to address the cause of market failure: the role of the state.

Anirudh Burman is a Takshashila Scholar, a law graduate from Harvard, and consults with the National Institute of Public Finance and Policy and the Center for Policy Research.

RTI Amendment: Questioning the largesse of retrospective laws.

12 Aug

On June 3, 2013, a full bench of the Central Information Commission (CIC) passed an order declaring six political parties to be public authorities[i], and consequently bringing them under the ambit of the Right to Information Act, 2005 (RTI/ Act). Not unexpectedly, the Centre was quick to react. The UPA and the opposition were quicker to find unanimity on this issue. The media is rife with reports that the Cabinet has approved the introduction of an amendment to the RTI granting immunity to political parties from the Act.[ii] This episode echoes the numerous instances when the Parliament has resorted to retrospective amendments for nullifying the effect of inconvenient judicial pronouncements. It also  reiterates the vulnerability of judicial pronouncements to the legislature’s power to turn the clock back in time. In this post, I trace the checkered history of retrospective amendments, and question the Indian legislature’s aggressive tendency of overruling bothersome judicial pronouncements by large-scale retrospective amendments to the law.

At the outset, it is nobody’s case that the legislature cannot enact laws having retrospective effect, for the power to do so is bestowed on it under the Constitution and fortified by numerous judicial pronouncements.[iii] This post also does not seek to argue for or against political parties being covered under the RTI. What this post questions is the righteousness of an obstinate legislative tendency to wriggle out of judicial pronouncements by making retrospective amendments, especially when redress against an unjustifiable order is available through appeal to a higher forum.

The proposed amendment of the RTI refreshes one’s memories of the numerous election validating laws of the 1970s that were enacted retrospectively for political convenience. One is reminded of the Rajasthan State Legislature’s act of retrospectively amending the definition of office of profit under the The Representation of the People Act, 1951 (RP Act) as applicable to Rajasthan. The amendment was made to override the judgment of the Rajasthan High Court that invalidated a candidate’s election to the Legislative Assembly on the ground that he held an office of profit as defined under the RP Act as it stood at the time of the election. The RTI amendment also reminds one of the landmark judgment of the Allahabad High Court invalidating Indira Gandhi’s election to the Lok Sabha on the grounds of her having engaged in electoral malpractices as defined under the RP Act, as it stood at the time of the election. Indira Gandhi appealed to the Supreme Court against this judgment. During the pendency of the appeal, the Congress-controlled Parliament passed a law amending inter alia the RP Act, so as to obviate the grounds that formed the basis of the Allahabad High Court judgment. The rest, as they say, is history. In both these cases[iv], the Supreme Court respected the unbridled power of the legislature to enact retrospective laws notwithstanding their effect on judicial pronouncements.[v]

Retrospective amendments are most commonly known for neutralizing the effect of anti-Government tax rulings. Of recent prominence is the retrospective amendment that sought to override the Supreme Court’s judgment in the Vodafone dispute, and bring offshore share transfers within the tax net. The amendment was a fall-out of a 2 year-long battle that the Government waged against Vodafone for recovering taxes in respect of an offshore share-sale transaction, and ultimately lost.  In the tax regime, one will recollect numerous such retrospective amendments (some of them turning the clock as many as 30 years behind) that have altered tax liabilities of assessees. For instance, the amendment that brought renting of immovable property within the service tax net nullifying the judgment of the Delhi High Court in the Home Solutions case[vi]; the amendment that retrospectively taxed fees paid for services rendered abroad seeking to defeat the Supreme Court judgement in the Ishikawajma-Harima case[vii], the amendment that nullified the Supreme Court’s decision which held that once a price-classification list was approved by the Excise department[viii], the department could not re-open the matter for levying additional excise duty, to name only a few.

Legislative power to amend laws retrospectively for obviating the effect of a judgment has been justified on several grounds, namely the legislature being empowered to cure defects and infirmities in the law, absence of restrictive language in the plenary powers conferred on the legislature under the Constitution, and the inability of lawmakers to envisage every possible situation that the law may need to address. Often, the power of retrospective legislation has been used to plug genuine loopholes in welfare legislations. At the same time, there is no gainsaying the unforeseen consequences imposed on those who are targeted by retrospective laws, often on those who have fought until the highest court of the land to get their due under the law prevalent at the relevant time.

Even if one were to give the legislature the benefit of doubt for retrospective amendments to taxing statutes as they generally help the exchequer, the question assumes greater significance in the context of retrospective amendments made for political convenience. Particularly so, when the amendment is intended to benefit the amendment-makers alone. For instance and at the risk of digressing from the main issue of retroactivity, has the Government followed the regular process in connection with the potential RTI amendment that it would ordinarily follow whilst enacting any other law? Have consultations been held with all stakeholders? The only argument put forward by the Centre justifying the exemption of political parties from the RTI is the potential of its abuse. However, the legislature’s power to enact retrospective laws has equally been challenged in the past on grounds of potential abuse. This challenge has failed and Courts have repeatedly held that potential for abuse of a law cannot be a ground of challenge.[ix] Does the same principle not defeat the Centre’s argument for exemption of political parties from the RTI?

With the legislature aggressively amending laws retrospectively and with many such amendments being triggered by inconvenient judicial pronouncements, it is perhaps time for lawmakers to introspect on the generous use of its retrospective powers. Let me spell out why – because it will lend much predictability to the Indian legal regime, enable citizens to plan their affairs with more certainty, enhance confidence in the future of the regime, and more importantly, it will restore the sanctity of judicial pronouncements.


[i] The CIC declared the Indian National Congress/ All India Congress Committee (AICC), Bhartiya Janata Party(BJP), Communist Party of India (Marxist) (CPM), Communist Party of India(CPI), Nationalist Congress Party(NCP) and Bahujan Samaj Party(BSP) to be public authorities under the RTI.

[iii] Article 245 of the Indian Constitution that empowers the Parliament and State Legislatures to make laws for the whole of India and the concerned State respectively does not contain restrictive language. The only exception to this can be found in Article 20 of the Constitution which prohibits the conviction or penalization of a person under a retrospective law.

[iv] See Kanta Kathuria v. Manak Chand Surana (1969) SCC 268 and Indira Gandhi v. Raj Narain (1975) 2 SCC 159.

[v] In Indira Gandhi v. Raj Narain (Supra Note iv), the Supreme Court upheld retrospective amendments to the RP Act, and struck down certain retrospective amendments made to Article 329A of the Constitution. However, the latter amendment was struck down on grounds other than retroactivity.

[vi] Home Solutions Retail India Ltd v. Union of India and Ors. 2009-TIOL-196-HC-DEL-ST

[vii] Ishikawajima Harinia Heavy Industries Ltd. v. DIT, Mumbai, (2007) 3 SCC 481

[viii] Collector of Central Excise, Baroda v. Cotspun Ltd. 1999 (113) ELT 353 (S.C)

[ix] In Kanta Kathuria v. Manak Chand Surana (Supra) responded to a challenge to the legislature’s powers to enact retrospective amendments overruling judicial pronouncements, as under:

“The apprehension that it may not be a healthy practice and this power might be abused in a particular case are again no grounds for limiting the powers of the State Legislature.”

State Building in India II: Indian Constitution and new states

31 Jul

I had written this post in 2009 when Telengana first became a major political issue. I am re-posting it since major decisions about the creation of Telengana are underway. Minor edits and updates have been made and are provided in italics. 

In my earlier post on the issue of Telengana’s statehood, I tried to provide a look at the high-handed exercise of the central government’s power to start processes for the creation of new states.  In this part, I try to look at two issues (1) Constitutional provisions regarding state formation, and (2) centre-state relations in relation to state formation.

The provisions for creating new states, and changing the boundaries of new states are provided in Articles 2-4 of the Constitution.  Simply put, a simple law passed by both the Lok Sabha and Rajya Sabha is enough to create a new state.  However, only the central government (“President”) can introduce a Bill for this purpose.  And before introducing the Bill, the states which will be affected have to be consulted.

The process of consultation followed has the following features: (1) The matter is referred to the legislatures of the affected states.  (2) No specific time period within which states have to send their decision back to the centre has been mentioned in the Constitution.  The central government can specify the time period while referring the matter. (3) The Constitution does not mention that the state legislatures have to agree to the proposed creation/alteration of states.  The Parliament can therefore, pass a law creating a new state even if affected states do not agree to the proposal.

Lastly, the names of the states in the Union are mentioned in the First Schedule of the Constitution.  Similarly, the Fourth Schedule lists the number of seats each state is allotted in the Rajya Sabha.  Any law creating a new state would necessarily affect these two Schedules.  Schedules to the Constitution are usually considered parts of the Constitution, and any change to the Schedules has to be done through a constitutional amendment.  However, Article 4(2) of the constitution clearly says that no law creating or altering a new state will be considered a constitutional amendment.

The implications of these provisions are clear: for all practical considerations, the Constitution only requires that the central government should have a simple majority in both houses of Parliament.  The obvious question to ask is whether this system is representative enough to create a new state, and this brings me to the second issue highlighted at the beginning of the page.

These provisions in the Constitution were created at a time when India’s security and sovereignty was at stake, when a number of independent states were forced to merge with the larger Indian state.  There were obvious concerns about giving greater representative power to states who had recently agreed to be governed under the Indian union.  Over the years however, threats of secessionist politics have reduced greatly.  People almost throughout the country acknowledge themselves to be part of a greater Indian union.

However, maintaining the status quo in the Constitutional scheme has greatly reduced political space for raising legitimate regional or geopolitical aspirations within the country.  The Parliament maybe the supreme representative platform for raising issues affecting citizens, it may however not be representative enough.  Though there is no bar for state legislatures on discussing these issues, there seems to be little substantive gain from debating issues they have no practical control over.

Therefore, not only does the present constitutional scheme make it exceedingly simple for the central government to pass laws  creating new states, the procedure involved also undermines the importance of local governments, constituents and state legislatures in the consensus-building process.  It is little wonder then, that groups resort to violence to attract national consciousness.

This shortcut weakens democracy

25 Jul

By Harsimran Kalra and Kaushiki Sanyal

This article was first published in the Hindustan Times on July 23, 2013 (see here)

The promulgation of the National Food Security Ordinance on July 5, shortly before the Parliament session, has raised many eyebrows. Political pundits are speculating that it is a last ditch attempt by the UPA to garner votes before the 2014 general elections. The UPA 2, on its part, has blamed the repeated disruptions in Parliament for this executive intervention.

Leaving political motives aside, the circumstances in which this ordinance was promulgated also raise the issue of propriety. An ordinance can be promulgated by the president only when Parliament is not in session and ‘immediate action’ is required. Therefore, it is in the nature of an emergency power, rather than a means to bypass the legislature. Given that Parliament is going to reconvene in a few weeks and there is already a similar Bill pending in Parliament, has the government acted within the lakshman rekha crafted by the Constitution over the executive’s law making capacity?

The power of ordinance was devised to overcome extraordinary circumstances, however, this power has not been used sparingly. Over 600 ordinances have been promulgated in India. Except, 1963, not a single year has gone by without the government resorting to the ordinance-making power. In fact, in 1994, 34 ordinances were promulgated, the highest in a year till date. Also, in this year itself, the government has promulgated four more ordinances, including the Criminal Laws (Amendment) Ordinance, which amended India’s rape laws.

Successive governments have given short shrift to the ’emergency’ test. Right from the inception of the Constitution, reliance was often placed on ordinance powers to deal, not with emergencies, but failures in negotiating the legislative process. Within the first 20 years after the Constitution was adopted, over 30 ordinances were promulgated a few days before Parliament began or after it ended. The two recent ordinances – Criminal Law (Amendment) Ordinance and the Food Security Ordinance – also hardly meet the emergency criteria. Both these ordinances seek to address deep-rooted problems of the country, which have been raised by many experts and activists over the years. The government has not shown any urgency in taking action over the years so it is not clear what recent emergency triggered their promulgation. Moreover, both these ordinances replaced related Bills that were already at an advanced stage in the legislative process. The Criminal Laws (Amendment) Bill was pending with the standing committee while the discussion on the food security Bill had already been initiated in the Budget session of Parliament.

Parliamentary process and democratic checks are circumvented when an ordinance is issued while a related Bill is pending in Parliament. Instances of this disregard for the spirit of the Constitution are many, right from 1954 when the Press (Objectionable Matters) Amendment Ordinance was promulgated. Other instances include the Essential Commodities (Special Provision) Ordinance, 1997 and the Indian Telegraph (Amendment) Ordinance, 2003.

In light of the public debate that raged around both the recent ordinances, due opportunity ought to have been secured to discuss the issues in Parliament. Although the ordinance has to stand the test of Parliament and be passed within six weeks of the session, this is more in the nature of a check in the political plan of the government. Passage of the ordinance on the floor of the House within the stipulated time becomes a face saving exercise instead of a deliberative, consensus building effort. What does the repeated use of ordinance-making power mean for a democratic nation with a robust parliamentary system? Are there structural weaknesses that need to be addressed so that governments are not allowed to rely excessively on ordinances? The time is ripe to devise measures that would deepen our democratic credentials such as allowing for wider public consultations; encouraging governments to engage with the Opposition to break the legislative log-jam and a stricter test of ’emergency’ for issuing an ordinance that would be open to assessment by the legislature.

Transparency and Political Parties – Finding the Right Instrument

12 Jul

In a recent post, I had written on why I think bringing political parties under the Right to Information Act is a bad idea. Economic and Political Weekly recently published my article on the same topic, where I critique the judgement of the Central Information Commission in detail, and argue that transparency in incomes and expenditures of political parties should be enforced by the Election Commission, rather than under the RTI Act.

While the CIC judgment follows developing judicial precedent under the RTI Act, bringing political parties under the purview of this Act opens a Pandora’s box that the CIC itself probably has not thought through. International practice demonstrates that the onus of creating more transparency within the political system is the task of independent election commissions.

 

The EPW article can be found here

US v. Windsor: A Case for Same-Sex Marriages?

9 Jul

The US Supreme Court recently gave a landmark decision in US v. Windsor holding Section 3 of the Defense of Marriage Act, 1996 (DOMA), which defines “marriage” as excluding same-sex unions, unconstitutional. Here’s a quick summary of the judgment. The full 77-page judgment is available here. The decision also contains some lessons for the treatment of homosexual conduct in India, as this post highlights at the end.

Background
The case began with a tax dispute. Two women residents of New York, Edith Windsor and Thea Spyer, got married in Ontario, Canada in 2007. Their marriage was recognized in the state of New York. Spyer died in 2009 leaving her entire estate to Windsor. Windsor paid $3,63,053 as estate taxes but claimed a refund seeking federal estate tax exemption for surviving spouses. This is where the controversial legislation DOMA steps in. Because DOMA excludes same-sex partners from its definition of “marriage” and “spouse”, the tax refund was denied. Thereafter Windsor challenged the constitutionality of DOMA.

Judgment
The District Court, the Court of Appeals as well as the Supreme Court declared Section 3 of DOMA unconstitutional. In a 5:4 majority decision, the US Supreme Court held DOMA as violative of the Fifth Amendment of the US Constitution. While the judgment also involved jurisdictional issues, I will deal only with the judgment on merits here.

The majority court noted that regulation of marriage has historically been within the authority of states. DOMA departs from the tradition of federal government deferring to this state authority. Although the statute does not prevent states from enacting laws allowing or providing benefits to same-sex marriages, DOMA holds a wide reach and extent by laying down a comprehensive definition of marriage for purposes of all federal laws. It affects over 1000 federal laws on various aspects involving marital status including social security, housing, taxes, crimi¬nal sanctions, copyright and veterans’ benefits.

The state of New York, by allowing same-sex marriages, confers dignity and protection on same-sex couples to enjoy their liberty. But the federal government has imposed restrictions and disabilities on them through DOMA. Fifth Amendment’s Due Process Clause protects liberty, which includes equal protection of laws. DOMA singles out and injures and degrades the very class of persons that the state considers entitled to recognition and protection, violating basic due process and equal protection principles.

The court observed that both purpose and effect of DOMA are to impose disadvantage, inferior status and stigma upon same-sex couples, whose marriage has been recognized by the state. Looking at the legislative history and title of DOMA, the majority noted that it is based on moral disapproval of homosexuality and aims to defend the heterosexual marriage institution. Further, the purpose of DOMA was to discourage state laws allowing same-sex marriages and to restrict the freedom and choice of lawful same-sex couples. DOMA treats same-sex unions deemed lawful by states as second-class marriages and also humiliates the children raised in same-sex unions. The majority concluded that the principal purpose and effect of DOMA are to impose inequality. And no legitimate objective overcomes this purpose and effect.

Thus, the court held that Section 3 of DOMA violates Fifth Amendment of the US Constitution. Notably, the court explicitly denied deciding whether DOMA’s intrusion violates the principle of federalism. The majority also cautioned that the judgment is confined to same-sex marriages that have been recognized as lawful by a state.

Dissents

Four of the nine Justices expressed their dissents and held that DOMA is constitutional. The major points of dissent from the separate dissenting opinions are summarized here.

The judges pointed out that it is not clear what the majority’s conclusion of unconstitutionality is based on. There are three possibilities:

(1) Federalism. While the majority does refer to federal government’s departure from deferring to state authority, it itself denies basing its judgment on the grounds of violation of federalism.

(2) Equal Protection. If the decision is based on the violation of equal protection principle, the court has failed to address the basic issue of the level of scrutiny that must be applied to laws against same-sex unions. US equality jurisprudence provides three levels of scrutiny (strict, intermediate and rational-basis) that courts may apply to test the constitutionality of laws. The majority does not seem to apply any of these. Further, the court fails to appreciate the legitimate governmental interests behind this statute in ensuring stability and uniformity in the definition of marriage for the purposes of federal laws, especially in the presence of varying state laws on the status of same-sex unions. Relying on the title of the Act and snippets of legislative history, the majority strikes down the law based solely on its opinion of illicit legislative motive of harming a class of persons.

(3) Liberty and Due Process. The majority held that DOMA deprives liberty and violates basic due process principles. This suggests that the court used substantive due process, which protects rights and liberties deeply rooted in American history and tradition. The court did not assert that right to same-sex marriage is one such right. There is no constitutional right to same-sex marriages. Thus, this is a claim for recognition of new right from the judiciary, and deserves certain judicial restraint.

The dissenting opinions also highlight how this decision acts as a judicial invasion of democracy. The Constitution does not choose between opposing views on the institution of marriage. The dispute over same-sex marriages should be democratically decided by the people, acting through their elected representatives at state and federal levels, and not the court. The court casts the supporters of the traditional institution of marriage as bigots, wrongfully appropriating an important public policy debate.

Position in India
US v. Windsor inevitably reminds India of the pending decision from the Indian Supreme Court on an appeal against the Delhi High Court decision in Naz Foundation case. But there are important distinctions between the two disputes. The Naz judgment held unconstitutional Section 377 of the Indian Penal Code (IPC) that criminalized consensual sexual conduct between same-sex adults, appeal against which is pending before Supreme Court. There is a difference between homosexuality as an identity, homosexual conduct that IPC criminalized and same-sex marriages. The issue of same-sex marriage is yet to be dealt with by Indian courts.

While decriminalization may be an easier issue than same-sex marriages as it spares decision on questions on the institution of marriage, the Naz judgment does seem to be much more legally and constitutionally grounded that the majority opinion in US v. Windsor. Perhaps a bit more nuanced analysis could have at least saved the majority from dissenting Justice Scalia’s remark of the court’s opinion being just “nonspecific hand-waving”.

The narrative of judicial appointments

4 Jul

This post first appeared as an article on Bar and Bench on July 2, 2013, and can be accessed at their website here

News reports have indicated the government’s plan to establish a judicial appointments commission (“JAC”) for the appointment of Supreme Court and High Court judges. If established, the body would not only mark a sharp change from the current appointment process, but also from the constitutionally mandated procedure for appointment. The system at present however, is also markedly different from what the Indian constitution mandates. It remains to be seen whether the proposed JAC leads to better outcomes.

The crucial aspect in measuring outcomes is however, the correct determination of the desiredoutcome. In order to assess this issue, certain other considerations need to be examined, which are explained in this paper. These are: (a) constitutional provisions, and the original process of appointment, (b) the present process of appointment and their historical development, (c) the views of different experts and commissions on the issue, and (d) the determination of the desired outcome, and whether the proposed JAC would lead to this desired outcome.

Constitutional provisions

Section 124(2) of the Constitution provides a fairly neat method of appointing judges to the Supreme Court. It states that the President (read the Executive) shall appoint a judge of the Supreme Court after consultation with such judges of the Supreme Court and High Courts as he may deem necessary. The Chief Justice of India (“CJI”) has to be mandatorily consulted regarding the appointment of every judge other than to the position of the CJI. Similarly, under Article 217(1), the President of India appoints judges to High Courts after consultation with the CJI, the Governor of the State, and the Chief Justice of the High Court (for the appointment of a judge other than as Chief Justice of that High Court).

The primary authority for the appointment of judges under the Constitution is thus the President, or the central executive (“Executive”). The Executive has to discharge this function in consultation with other constitutional functionaries. Notice however, that this consultation process is not mandatory (apart from with the CJI for Supreme Court judges, and the Chief Justices of the High Courts for High Court judges). The Constitution also does not state that the Executive has to abide by the opinion of other constitutional functionaries while appointing judges.

Over the years though, this position has been completely deviated from, for reasons many consider completely justified.

Present process and origin of process

The Indian Constitution, like many other constitutions, creates a separation of powers between different wings of the state i.e. Executive, Legislature, and Judiciary. However, all three wings remain accountable to each other in some form or the other. The central and state executives for example, are directly accountable to Parliament and state legislatures respectively. Similarly, while the judiciary is independent of the Legislature and the Executive in most aspects, the power of appointment vests with the Executive as explained above, and the power of removal rests with Parliament. This system is designed to enable the judiciary to remain accountable to the democratic process in some measure.

The present process of appointments arose out of a perceived need to remedy certain ills that became apparent with the constitutionally mandated procedure. Seervai’s Constitutional Law of India (4th Ed., Vol. 3) records that the day before CJI Venkataramaiah retired from the Supreme Court, he gave an interview stating:

…such judges are appointed, as are willing to be ‘influenced’ by lavish parties and whisky bottles…in every High Court, there are at least 4 to 5 judges who are practically out every evening, wining and dining either at a lawyer’s house or a foreign embassy…practically in all 22 High Courts, close relations of judges are thriving. There are allegations that certain judgements have been influenced though they have not been directly engaged in lawyers in such cases.

This extract encapsulates, in brief, the concerns regarding the improper behaviour and conduct of judges in the higher judiciary. Though a number of past judgements had interpreted the respective powers of constitutional functionaries regarding the transfer and re-appointment of judges, the case of Supreme Court Advocates-on-Record v. Union of India (“Judges Appointment case”) is responsible for moving towards the present system of appointment of judges. I summarise the main points laid down by the court below:

1.     The process of appointment of judges “is an integrated participatory consultative process”. All constitutional functionaries must perform this duty collectively to reach an agreed decision.

2.     The proposal for appointment of a judge must arise from the CJI (for appointment of a Supreme Court judge) and from the Chief Justice of a High Court (for a High Court judge).

3.     In the event of conflicting opinions, the opinion of the CJI has primacy. No appointment can be made without the concurrence of the CJI.

4.     A collegium system of appointment must be initiated.

In 1998, in the case In Re Presidential Reference: Under Article 143(1) of the Constitution of India (“2nd Judges Appointment Case”)the Supreme Court further evolved this doctrine and created a system wherein judges would be appointed by a collegium consisting of the four senior-most judges of the Supreme Court. Though the Executive would make the actual appointment, it would have no other role in the appointment of judges to the High Court or Supreme Court. As recently as January 2013, the Supreme Court rejected a plea to revisit the Judges Appointment Cases (read more here).

These two cases therefore departed considerably from the procedure enshrined in the Constitution. Many have argued that insulation of appointments from executive influence is necessary to promote judicial independence, but it is debatable whether this insulation has led to a qualitative betterment in the conduct of the judiciary as a whole, or the quality of judgements. Additionally, various administrative and structural issues have been highlighted. Over the years, political parties, experts and commissions have proposed a number of mechanisms for the appointment of judges. It may be worthwhile to consider them briefly below.

Alternative mechanisms

The table below encapsulates in brief the proposals of various bodies regarding the appointment of judges.

Report/Commission/Body Recommendations
Law Commission – 80thReport (1979) Appointment process in High Courts to be initiated by CJ of that High Court. Constitutional procedure to be followed in other aspects. The Chief Minister of the state is free to disagree with choice of the CJ. One-third of judges appointed should be from outside the state.Interestingly, the report mentioned the need for a “Judges Appointment Commission”, for eliminating the “sway of political or other extraneous considerations…”.
Law Commission – 121stReport (1987) Recommended the establishment of a National Judicial Service Commission. The CJI would be the Chairman, and there would be three senior-most judges of the Supreme Court, three senior-most CJs of the High Courts, the Minister for Law and Justice, the Attorney General of India, the outgoing CJI, and a legal academic in the Commission. Additionally, while deciding a vacancy in a particular High Court, the CJ of the High Court, the Chief Minister and Governor of that state must be co-opted into the deliberations of the Commission.
67th Constitutional Amendment Bill, 1990 Proposed the creation of a National Judicial Commission composed of serving judges headed by the CJI.
Law Commission – 214thReport (2008) Recommended restoration of the original constitutional procedure to be followed in wake of the Supreme Court’s decisions in the Judges Appointments cases.
National Advisory Council Paper titled “A National Judicial Commission: Judicial Appointments and Oversight Recommended creation of National Judicial Commission with the Vice-President as Chairperson, and the Prime Minister, Speaker of Lok Sabha, Law Minister, Leaders of Opposition from both Houses of Parliament, and the CJI as other members. The President would have the power to reject a candidate recommended by the NJC.

As may be noticed from the table above, all the reports above emphasize the need for a broad-based consultative framework for the appointment of judges. Significantly, all these reports have also been informed by practices in other countries, most of which allow for some sort of a consultative process between members of the judiciary, executive, legislature, and civil society. The process being proposed by the Central Government at present also aims to create a broad-based consultative process.

Proposed process

According to news reports (here and here), the proposed Judicial Appointments Commission will probably have the Prime Minister, the Leader of Opposition, the Law Minister, the CJI, four other senior judges of the Supreme Court, and a prominent jurist as members.  The process therefore seeks to give the executive and legislature a greater role in the appointment of judges than the collegium system.

The question however remains: what is the desired outcome? The proposed system seeks to increase democratic accountability in the process of appointments. This is thought to be necessary due to the widespread perception that judicial appointments remain non-transparent, that delays in appointments occur due to the current in-house process of appointment, leading to a huge backlog of pending cases, and finally, that democratic accountability is an end in itself.

But is democratic accountability an end in itself? Does democratic accountability also not seek to further other expectations we may have from the judiciary, such as the writing of better judgements, decrease in backlogs and an increase in access to courts? If yes, would these goals be served merely by the creation of a Judicial Appointments Commission? The point I am trying to make is whether the judiciary can be made more accountable, more accessible, and qualitatively better without tinkering with the present appointment process? Those in favour of changing the status quo would point out that the present system is a complete departure from the constitutionally prescribed procedure. The simplest response is that the process being contemplated would also require a constitutional amendment!

There is a great need to reform the present system of appointment, in order to make it more transparent, and to achieve other social and economic ends. However, we need to think through the available alternatives for meeting our goals, and ensure that the legislative measures we take actually help in the realization of those goals.

Death at Kedarnath: Mule owners and their right to strike

26 Jun

Little noticed news reports in a couple of papers (here and here) indicate that the death of many pilgrims in Kedarnath may have been exacerbated by the actions of local mule owners and contractors for car parking lots in the days leading up to the heavy rains and clash floods. The local mule owners and and contractors apparently went on a strike, and prevented private chopper services from operating on June 14, 15, and 16.

Ten private helicopter services ferry pilgrims from Phata and Guptkashi to Kedarnath and back. The car park owners are located in Gaurikund, from where pilgrims walk, or ride on mules to reach Kedarnath. The helicopters were not allowed to land in Kedarnath for two days. Additionally, the mule owners also went on a strike. As a result, there was an unusually large concentration of pilgrims in Kedarnath who could not travel back. This may have contributed to the increase in loss of human life, as so many pilgrims were left stranded when the flash floods struck the region.

 

Why were the mule operators and car parking contractors striking?

As per the news report, local officials said the strike was ostensibly on grounds of “environment protection”. The actual dispute was however that the helicopter services were seen hurting the economic interests of the mule owners and contractors. Their business was suffering due to the decrease in demand for their services owing to the helicopter ferry service. The state government was able to convince these protesting groups to allow helicopter services to land only on June 16. June 16 was also when the rains and flash floods struck the region.

 

How could this have been prevented?

At one level this incident is just a story of short-sighted self interest causing the unnecessary loss of human lives. However, as vague as it sounds, developing a culture that emphasizes the protection of fundamental rights could in the long run, prevent such occurrences.

Let us for one moment keep the humanitarian tragedy to one side. On June 14 and 15, there was little indication (apart from forecasts of heavy rainfall) that a natural calamity of such magnitude would befall the region. At that point of time, the “dispute” between the mule owners and contractors on the one hand, and the helicopter service providers on the other hand was a conflict between two sets of individuals trying to protect their fundamental rights. Article 19(1)(g) of the Constitution allows all citizens the right to “practise any profession, or to carry on any occupation, trade or business”. What this means is that the state cannot take away this right from any individual.

The Supreme Court has clearly held, that since all citizens possess this right, the right of one citizen cannot be curtailed for facilitating the exercise of the Fundamental right of another person (Railway Board v. Niranjan AIR 1971 SC 966). In short, the right of the helicopter service provider cannot be curtailed to facilitate the fundamental right of the mule owner or the car park contractor. One may argue that in this case, the fundamental right of the helicopter service providers was not curtailed by the state, but by other private citizens. However, the state, by failing to protect the rights of the helicopter service providers, and by allowing the local protesters to prevent the helicopters from landing, did in fact prioritze one right over the other. The state may not have violated fundamental rights, and it may not suffer any liability for the same. However, fundamental rights were curtailed in the present case, and the state could have done more to prevent the same.

It must also be stated that while the Constitution allows people the freedom to protest, it does not allow protesters to infringe on the fundamental rights of other citizens while protesting. The mule owners and car park contractors are well within their rights to protest, but in doing so, they cannot prevent the helicopter services from operating, as that infringes on someone else’s freedom to conduct business. The Supreme Court has held that violation of the fundamental right of one individual by another individual (without the support of the state) is not considered a violation of Article 19 (Samdasani v. Central Bank of India AIR 1952 SC 59). On the face of it then, fundamental rights cannot be said to have violated as the mule owners were private operators. However, the district administration was in charge of regulating the mule service. The district administration therefore had an obligation to resolve issues faced by mule owners and also not allowed the rights of the helicopter service providers to be infringed.

Moreover, even if the state has no positive obligation to protect fundamental rights under Article 19, it does have the power to create reasonable restrictions. Sometimes, the creation of such restrictions enable the better enforcement of these fundamental rights. For example, the Supreme Court has held the following to be reasonable restrictions on fundamental rights: (a) protection of slum-dwellers against excessive rent, (b) protection of slum dwellers against eviction, and, (c) protection of debtors from excessive interest. There was thus, nothing preventing the district or state administration from interfering in the protest by the locals to impose a reasonable restriction in the interests of the general public. The state may not have violated a fundamental right by failing to do so. But it does have certain powers given to it under the Constitution, which it could have utilised to ensure the general public was not affected.

 

To be clear, I am not making the case that the state violated fundamental rights in this case. However, the state could, and should have taken a rights-based approach and made sure that helicopter ferry services were not interrupted due to the ongoing protests. If the helicopter service providers had the required permissions and clearances to ferry passengers to and fro from Kedarnath, the government should in no case have allowed local protesters to prevent such a service. It affected the rights of the service providers, and it in effect was restricting the rights of the pilgrims to enter into a contract with a service provider of their choice. While the pilgrims were held to ransom and for all practical purposes denied any means of transport, the state administration merely sent two officials to negotiate with the striking individuals. In short, the government was trying to negotiate the extraction of stranded pilgrims by locals who were acting completely illegally!

This is by no means an isolated incident. While the state routinely subverts many legitimate protests for the enforcement of fundamental rights, it also bends over backwards routinely to negotiate with misbehaving, but important constituencies. Protection of rights in such cases often takes a backseat, and every once in a while, this leads to a completely unnecessary, and tragic loss of human lives. Pilgrims, literally, be damned.

Welcome to the surveillance state

12 Jun

Last week brought us explosive revelations from the The Guardian that the US National Security Agency (NSA) is conducting extensive surveillance on internet traffic patterns, email, and telecommunications. While perhaps not surprising, the news was shocking on at least three levels – (1) the program’s extensive reach, (2) its corporate participation from the likes of Google, Facebook, Microsoft and Apple, and (3) the fact that it was entirely secret from the public.

In an editorial today entitled “Do not emulate the US on surveillance.”[1] The Economic Times reminds us that in India, “[t]he actual situation might already be alarming: remember, a leading service provider not too long ago revealed it had intercepted around 1.5 lakh phone calls over a five-year period. And that’s just one service provider.” The editorial goes on to declare, “[w]anton use of such capability isn’t just illegal, it vitiates the notions of transparency and accountability central to democracy.”[2]

So what is the actual situation? What is the reach of the Indian cyber surveillance state?

Yesterday, The Hindu reported on an upcoming government initiative that looks eerily similar to the US program, dubbed the National Cyber Coordination Centre (NCCC).[3] According to the newspaper, it obtained details of the program from a “secret government note.” The goal of the NCCC will be to  provide a “real-time assessment of cyber security threats and generate actionable reports/alerts for proactive actions by law enforcement agencies.” In order to accomplish this, the NCCC will “collect, integrate and scan [Internet] traffic data from different gateway routers of major ISPs at a centralised location for analysis,”[4] which also happens to be the backbone activity of the US program.[5] In addition, the NCCC will have several members of the national security apparatus as active participants, including: the IB, RAW, the National Technical Research Organisation (NTRO), DRDO, and all three branches of the military, among others. The NCCC will be under the Department of Electronics and Information Technology and is expected to cost around Rs. 1000 crore.[6]

The NCCC may not be in place just yet, but extensive government surveillance capabilities, both physical and legal, are already in place. The Information Technology Rules, 2011, provide for the release of sensitive personal information (including passwords, bank accounts, credit and debit card details,  physical, physiological and mental health conditions, sexual orientation, medical records, and biometric information) to government officials on written request for the purpose of investigation and prosecution.[7] The free speech implications of provisions in the Rules prohibiting certain types of internet content are already well known, with numerous cases of individuals facing legal action and jail over social media posts.[8]

Just last month, the government began to roll out the Central Monitoring System, which will give government organizations like the Intelligence Bureau, National Investigation Agency, and tax authorities access to the entire spectrum of personal communications, including online activities, phone calls, SMS messages, and social media.[9] Last week, Human Rights Watch issued a statement calling the CMS “chilling.”[10]

This post presents a very cursory sketch of the cyber surveillance apparatus, and nothing in it is intended to say that the government has no legitimate interest in protecting the country from cyber threats. In the modern security landscape, coordinated cyber attacks (especially from China) present a significant national security threat and alarming incidents have already been documented.[11] Assuming the story in The Hindu is accurate, however, the formation of the NCCC and roll out of the CMS, will have huge implications for the privacy of internet and telecom users.

Coupled with  the IT rules and recent developments in the erosion of free speech,[12] such provisions have the potential to further dampen political dissent on internet forums and social media. Unlike the American spying program, however, the basic framework of India’s cyber surveillance state is still in its nascent stages, and public debate may yet impact its scope. A quick search of  parliamentary questions and debates from the Fifteenth Lok Sabha yields many logistical questions about cyber security, but few concerns about cyber privacy. One can only hope that, as programs such as the NCCC are developed further, some measure of parliamentary accountability takes hold and an even more robust public debate ensues.

 


[2] Id.

[3] Sandeep Joshi, India gets ready to roll out cyber snooping agency, The Hindu (Jun. 10, 2013), http://www.thehindu.com/news/national/india-gets-ready-to-roll-out-cyber-snooping-agency/article4798049.ece?homepage=true

[4] Id.

[5]Barton Gellman & Laura Poitras, U.S., British intelligence mining data from nine U.S. Internet companies in broad secret program, The Washington Post (Jun. 7, 2013), http://www.washingtonpost.com/investigations/us-intelligence-mining-data-from-nine-us-internet-companies-in-broad-secret-program/2013/06/06/3a0c0da8-cebf-11e2-8845-d970ccb04497_story.html

[6] Joshi, supra note 2.

[7]Chakshu Roy & Harsimran Kalra, Rules and Regulations Review: The Information Technology Rules, 2011, PRS Legislative Research (Aug. 12, 2011), http://www.prsindia.org/uploads/media/IT%20Rules/IT%20Rules%20and%20Regulations%20Brief%202011.pdf

[8] India’s centralised monitoring system comes under scanner, reckless and irresponsible usage is chilling, DNA (Jun. 8, 2013), http://www.dnaindia.com/india/1845205/report-india-s-centralised-monitoring-system-comes-under-scanner-reckless-and-irresponsible-usage-is-chilling

[9] Indu Nandakumar & J. Srikant, Central Monitoring System to make government privy to phone calls, text messages and social media conversations, Economic Times (May 7, 2013), http://articles.economictimes.indiatimes.com/2013-05-07/news/39091148_1_single-window-pranesh-prakash-internet

[10] India: New Monitoring System Threatens Rights, Human Rights Watch (Jun. 7, 2013), http://www.hrw.org/news/2013/06/07/india-new-monitoring-system-threatens-rights

[11] Manu Kaushik & Pierre Mario Fitter, Beware of the bugs, Business Today (Feb. 17, 2013),  http://businesstoday.intoday.in/story/india-cyber-security-at-risk/1/191786.html

Should political parties be subject to the Right to Information Act?

10 Jun

The Central Information Commission (CIC), on June 3, 2013, stated that political parties are “public authorities” under the Right to Information Act, 2005 (RTI Act). Public authorities under the RTI Act are required to make pro active disclosures regarding their organization and its functioning. In addition, they have to appoint Public Information Officers (PIOs). Members of the public can write to PIOs as per the procedure under the RTI Act, and get any information about that public authority which is not an official secret. The CIC’s decision has been uploaded here: CIC_order.

While I am an ardent supporter of greater transparency into the working of political parties, I do have reservations about the CIC’s decision. In this post, I intend to address one such reservation: information asymmetry. The RTI Act gives individuals the right to receive information from public authorities. However, it does not mandate that such information received should then also be further shared with a wider public. Therefore, if I receive some information from a political party under the RTI Act, I have the right to not share such information with anyone else. Therefore, there is an asymmetry in information between me, and every other member of the public, who would also be interested in this information. How I choose to use such information is then up to me.

I am of the opinion that this asymmetry in information is not an issue when citizens seek information from government departments about ration cards and electricity bills. Those pieces of information pertain to individuals, and there is nothing to be gained by making such information public to all. However, the chief concern about political parties are these: (a) their sources of funding, (b) their manner of expenditure, and (c) how they use any public money/subsidies given to them. This information should be provided to everyone freely. It should not be left to an individual applicant to file an RTI application to get this information. Therefore, it would be much better if the Election Commission frames rules requiring disclosure by political parties of all their sources of income and their utilisation of public funds.

Given below are excerpts from a book titled “Funding of Political Parties and Election Campaigns” which show how parties are funded, and what reporting requirements exist in some other countries around the world (The information given below is copied directly from the linked document). In light of these, I would be very interested in hearing your thoughts on the same. Please feel free to comment and respond.

Africa

Sources: Donations are the modal source of political financing in Africa. The major sources of funding remain big business leaders or corporate elites.

 

Indirect funding: Free air time on radio and television or free advertising space in the publicly-owned print media. Inmany African countries the opposition parties have been too weak and divided to succeed in extracting from the government even the most basic aid the state can give to political parties, namely, free and equal access to the government-owned and -controlled mass media. In Kenya it took the threat of a lawsuit and the personal intervention of the visiting SecretaryGeneral of the Commonwealth to secure equal access for the opposition parties – 90 seconds per day “paid up” advertising on Kenya Broadcasting Corporation’s radio and television, and live coverage “where possible” of their rallies.

 

UK

Disclosure requirements: Parties must publish both the names of donors and the exact amounts of their donations when they amount to GBP 5.000 (Int’l $ 6.900) or more annually, or GBP 1.000 (Int’l $ 1.400) at the constituency level. Under the new law, audited annual accounts of parties’ income and expenditures will have to be delivered to the Electoral Commission within six months of each year’s end.

 

Indirect funding: In the UK free broadcasting time is conventionally allocated to parties both during election campaigns and between elections by the BBC, and on a voluntary basis by commercial channels, which consider it a public duty.

 

Australia

Disclosure requirements: At present each party’s agent is required to give detailed information in their annual report of transactions of an aggregate of AUD 500 (Int’l $ 330) or more with persons or organizations.For those over AUD 1.500 (Int’l $ 1.000), names and addresses must be supplied. Non-monetary donations (subsidies in kind by private donors), such as loans of company cars or business jets, must also be included, with a market price equivalent.

The parties must disclose totals of their receipts, payments and debts. The annual reports, covering the period from 1 July to 30 June, must be lodged with the AEC by 20 October. Although they are not published they become available for public inspection at the AEC offices from 1 February of each year.

 

Indirect funding: In Australia free media time has traditionally been provided by state-owned radio and television services for policy speeches (which correspond to a party election manifesto) and advertisements, and by commercial radio and television stations for policy speeches. In Australia donations up to AUD 100 (Int’l $ 67) by individuals are tax-exempt.

 

Canada

Disclosure requirements: In Canada the source and amount of contributions over CAD 200 (Int’l $ 160) have to be disclosed. Individuals will be mentioned by name and the amount donated stated. Privacy concerns, however, mean that the address, employer and occupation of the donor and even the date of the donation are not included in the information disclosed on contributions.

The chief agent of a registered party has to transmit to the Chief Electoral Officer (CEO) an annual return of the party’s receipts and expenses (other than election expenses) within six month of the end of the fiscal (i.e., calendar) year. In addition, within six months from the date of a general election the chief agent must file a return of the election expenses incurred by the party.

 

Indirect Funding: In Canada radio and television stations have to make up to 6,5 hours of prime time available for paid advertising or political broadcasts by the parties during the last four weeks of the election campaign. In Canada federal and provincial tax credits for political donations and legal provisions for issuing tax receipts have supported efforts to solicit small donations from individual citizens and small businesses

 

USA

Sources: In the USA stipulations of the FECA and decisions of the Supreme Court have distinguished between “hard money” – money directly given to a party, an issue or a candidate’s committees – and funds which are raised beyond the limits set by the FECA – “soft money”. The domain of “soft money” was extended considerably when the Supreme Court, on various occasions, lifted the ban on certain contributions. Contributions by individuals are the most important source of income for US federal parties. Legally these contributions belong to the category of hard money, i.e., they go directly to a candidate’s campaign committee for use at its discretion.

 

Disclosures: Disclosure is at the heart of public supervision of political finance in the USA. The FECA requires candidate committees, party committees and other PACs to file periodic reports disclosing the sources of their funds. Candidates must identify, for example, all PACs and party committees which gave them a contribution. All committees must identify individuals who gave to them more than USD 200 in one year. With respect to independent expenditures the FECA requires persons (and parties since 1991) making such independent expenditures (soft money) to disclose the sources of the funds they used, although there are no limits on independent expenditures.

 

All candidate committees, party committees and other PACs are obliged by the FECA to file periodic reports on the money they raise and spend. In addition, candidates or candidate committees must report all expenditures exceeding USD 200 per year to any individual or vendor. Persons and parties undertaking independent expenditure (soft money) have to report the amounts of their expenses, even though there are no limits on independent expenditures. All reports filed are open for public scrutiny at the FEC, a public agency.

 


Legalizing Betting in Sports: Some Reflections on Law Making (Part I)

4 Jun

The recent IPL betting and fixing scandal has brought shame on the country and the sport. It has also got the law makers thinking about their laws and policies to check such practices. One of the solutions being offered is to legalize betting in sports in India. A complete ban on betting is often thought to be difficult to implement, and that legalization may help regulate betting instead of driving it underground. Legalization will also allow regulated betting to act as a potential source of funds, and will help reduce instances of match fixing and spot fixing.

This proposal has received mixed reactions and has both pros and cons. But there are two broader questions these recent debates evoke about our law and policy making and the way we respond to scandals such as these. Firstly, what moral authority does the state have to ban conduct such as betting? And secondly, should inefficacy of law be a valid ground to repeal or change the law? I will devote this post to the first question, and my next post on the second one shall (hopefully) follow soon.

The debate on legalization of betting raises interesting questions around the moral authority of the state to ban betting in the first place. There is no doubt that the state has legal authority to pass laws on betting. Entry 34 of the State List in the Indian Constitution allows states to make laws on betting and gambling and Entry 62 allows imposition of taxes on such luxuries. Further, Entry 40 of the Union List allows the centre to regulate lotteries. But should a state interfere in activities such as betting by criminalizing such conduct?

What could be the justifications behind criminalization of betting? Criminal law is usually invoked in cases involving a public wrong, causing a harm or threat of harm to another person. However, in case of betting, it is possible that two parties consensually enter into a betting arrangement, where one loses and the other wins, and there is no harm caused to anyone else. Some acts are criminalized based on the threat to the unity and integrity of the nation, like the offence of sedition. It is unlikely that betting poses such a risk. The state also sometimes criminalizes conduct that it perceives as immoral or which are likely to offend society’s collective morality. The law criminalizing homosexual conduct was one such law. It is debatable if betting is considered ‘immoral’ in this sense, and whether the state can or should make conduct which is immoral illegal, even if such actions are not harmful or violative of any person’s right. If betting is a ‘victimless crime’, the debate over its legalization raises interesting questions around the liberty of citizens, the government’s role in modern India and the legitimacy of the state to take decisions on behalf of the people to prohibit acts it considers undesirable.

Interestingly, the Constituent Assembly debates reveal that the insertion of the entry on betting and gambling was opposed on the ground that such insertion might lead to legalization of such activities. One of the members, Shri Lakshminarayan Sahu, argued that mention of such activities should have no place in a constitution built on the ideals of truth and non-violence practiced by Mahatama Gandhi. It was when Chairman Ambedkar clarified that insertion of the entry will in fact empower the state to prohibit such activities, that the motion to insert the entry was passed. [Constituent Assembly Debates, Volume IX, 2 September 1949].

The negative stance towards betting and some of the justifications behind its criminalization are visible in Supreme Court judgments. The court has referred to the Vedas, Mahabharat and other ancient texts to conclude that Indian law makers have always viewed gambling as a “sinful and pernicious vice”. Such practices leave people indebted and homeless, disrupt families, destroy wealth, disavow values like honesty and truth and lower the standard of living. Interestingly, there were also references to texts like that of Kautilya who would have allowed regulated gambling and enabled the state to earn revenue from it. The court has developed a distinction between games of chance and games of skill and allowed games such as horse racing and rummy to legally exist as falling in the category of games of skill. [Dr. K.R. Lakshmanan v. State Of Tamil Nadu, AIR 1996 SC 1153; State of Andhra Pradesh v. K. Satyanarayana (1968) 2 SCR 387; State of Bombay v. RMD Chamarbaugwala, AIR 1957 SC 699].

Irrespective of whether betting in cricket is a game of chance or skill, should a state prohibit even games of chance? Should it be the state’s business to criminalize activities to make sure that people spend their time and money in productive activities instead of getting addicted to wasteful acts which might have some negative effects in society? What about activities like drinking and smoking, which are perhaps more ‘harmful’ than betting, in terms of harming the person doing the act, disrupting families, increasing risk of other crimes, and are engaged in by a larger number of people. Even if it may not involve any skill, betting might be a form of private entertainment for some people.

This also raises the question whether criminal law is the proper law to regulate betting. Undesirable conduct in society can be regulated through other means such as civil law, tort law and tax law. Criminal law involves a higher level of social sanction, as opposed to others. Should betting be subject to that?

There is an implicit assumption about the illegality of betting in the Constituent Assembly Debates and the Supreme Court judgments. The recent debates on legalization of betting have also largely failed to engage with the wider questions about the state’s moral authority to ban betting. The debates have largely focused on the practicalities of implementation and the economics of regulation. The exercise of the power of the state to ban or regulate the conduct has remained unquestioned. While there is no doubt such practical concerns are significant, I find questions around the role of the state and liberty of the people more interesting. As a state, India needs to consider if it should deal with certain private acts which may have some negative offshoots for society through the medium of law, and, if yes, what will be the best legal strategy to regulate such conduct. Perhaps we should use moments of legal uncertainty and possible change such as these to engage with these larger questions on the ethics of law making in India.

My next post will deal with the second question raised above on inefficacy of laws. It is often stated that full implementation of a blanket ban on betting is impossible. It is also argued that legalization of betting will help reduce instances of the crime of fixing. My next post will examine, assuming that the state has a legitimate ground to ban betting, if these arguments would justify legalization of betting.

Would a sex offender list reduce rapes?

29 May

Today the Firstpost carried a news piece on the decision of the Himachal Pradesh government to publish a sex offender list. As per the report, the state’s police will maintain a register of sexual offenders and their names will be displayed on its official website.  Recently, in an article for the ‘Arena, by The Hindu Centre, I questioned the presumption that universalising information would reduce crime.  The article seeks to throw light on the legality of sex-offender lists and explores the social impact such lists may have.

An excerpt from the article is provided below.

The demand for making sex offender lists public stems from the desire to identify and protect oneself from likely threats. India’s parliamentarians have argued for such comprehensive list of sex offenders to be made accessible by all. However, public dissemination of a person’s crime record and personally identifiable information, such as details of address and social network accounts, may infringe an offender’s fundamental right to privacy. It may also run the risk of treating different categories of offenders similarly.

When sex offender registries were first instituted in the US, the law enforcement agencies were required to keep the information private. However, subsequently the law was amended to require mandatory disclosure of information on a website accessible by all. Studies have revealed that the publication of sex offender lists have had little negative impact on the rate of crime and recidivism. According to some of these studies, public access to the lists increases the likelihood of repeat offences by convicts.

The entire article may be accessed here.

New uses of UID/Aadhaar operationalised

26 May

According to a NY Times blog post today, 3 different uses of UID numbers, or Aadhaar were operationalised recently:

Those in the Aadhaar system will now be able to identify themselves by using an eye scanner, which checks the unique patterns in their irises, and providing their ID number. Those with mobile phones can also request a one-time numerical password to be sent by text message, which would be used in conjunction with the user’s ID number. The third service, dubbed e-KYC (“know your customer”), allows users to authorize businesses like banks to receive electronic proof of the users’ identify and home address.

“This is a major step in the direction of enabling Aadhaar holders to avail various services by using the Aadhaar identity platform,” Nandan Nilekeni, chairman of the Unique Identification Authority of India, which oversees Aadhaar, said in a statement.

“It also makes sense for various user agencies — public or private — as they can identify a beneficiary or customer using a secure, economical and paperless format,” he said. “The direct benefit transfer is the biggest benefit, but we will find so many applications in future in banking, telecommunication, insurance, health sectors, including carrying an individual’s health data…
…Residents can update their details at permanent Aadhaar centers set up around the country. At present 500 centers are operational, and another 500 will be opened in the next three months.”

Read more here: http://india.blogs.nytimes.com/2013/05/24/aadhar-program-introduces-instant-verification-services/#more-64350

Consumer protection or curb on right to speech and expression?

19 Sep

-writing from Harvard Law School

 

There have been recent news reports (though surprisingly few – here and here) on new government regulations that ostensibly seek to protect cell phone users from unwanted marketing calls, but may actually amount to restrictions on individual rights to free speech and expression. The telecom regulator TRAI introduced regulations which will come into effect on September 27, which limit the number of free SMSes a person can send to 100 a day.

The TELECOM COMMERCIAL COMMUNICATIONS CUSTOMER PREFERENCE (SIXTH AMENDMENT) REGULATIONS (read clause 8), 2011 state that call phone service providers cannot permit the sending of more than 100 SMSes a day. For post-paid subscribers, the limit is 3,000 SMSes per month. According to news reports, TRAI’s reason for this regulation is to check “Unsolicited Commercial Communications”. While this may reduce the number of marketing messages being received by irate cell-phone users, the larger ramifications of this regulation directly affects the freedom of individuals to send as many messages a person wants.

One direct effect of this regulation is on the competition between service providers and the benefit to cell-phone users: If Airtel can provide more free messages to its consumers than Vodafone or vice-versa, it means the two will compete to provide cheaper and cheaper services for free SMSes to consumers. In the end, consumers benefit.  Putting a blanket limit on free SMSes ensures that the cell phone companies now don’t have to compete to provide cheaper services. Net result: consumers lose.

More importantly, this affects how individuals communicate with others in society. In this respect, it is similar to saying, person A cannot speak more than 1,000 words a day, or person B cannot put up more than 3 blog posts or 5 Facebook updates a day. Granted these are extreme examples, but the effect of these regulations is similar. And why a 100 SMSes? How can anyone decide what is a reasonable limit on the number of free SMSes which can be sent? Why not 1,000? Why should someone set a limit on this at all? Suppose ardent supporters of Anna Hazare (I am not one!) wish to broadcast the latest demonstration he wants to conduct at Jantar Mantar, should they be restricted by a limit on the number of free SMSes they can send?

Lastly, is the convenience of not receiving marketing messages worth this restriction? Is this the only way TRAI can find to prevent marketing communications to consumers? Can marketing companies not give each of their agents 15 SIMs and allow them to send 1,500 SMSes a day? Do all marketing companies only use the facility of free SMSes, and can they not afford to pay for sending SMSes if the government sets a limit on free messaging? The truth is that only cell-phone users will be hurt by this regulation, and in a bad way.

 

How lack of transparency kills the credibility of the government

29 Jan

Lack of routine information available in the public domain plays a huge role in reducing the credibility of the state, and making citizens more suspicious of it than we need to.   A prime example of this would be related to the appointment of Mr. Thomas as CVC chief, and the apparent changing of rules to allow his appointment as an officer at the central level.

Today’s Hindustan Times reports that rules were changed to allow Mr. Thomas to make him eligible for a post at the centre.  The government apparently creates a shortlist of officers who can hold the posts of joint secretary and above at the centre.  If an officer doe not make it to this panel, he cannot make it to Delhi.  This rule was amended to allow those who had vigilance cases against them, but were cleared, to be empaneled.  The news report further states that Mr.  Thomas may have been the only beneficiary of this rule-change.

One issue here is definitely the ease with which rules can be changed to favour/ disfavour officers within the government.  However, the other issue is that of transparency.  The rules that stipulate restrictions on the empaneling of officers do not seem confidential.  However, they are not in the public domain.  After searching for a while, what I could find was this set of guidelines for the promotion of IAS officers.  This is also a departmental note, and not simplified so that the general public can understand it.

On the face of it, if a rule/ law benefits only one person, it can be struck down as unequal, and therefore violative of the Constitution.  However, because such rules, regulations etc are not put out in the public domain, no one knows how to challenge them.  The argument may be made that aggrieved civil servants can always challenge them since they would know of the existence of such rules.  However, appointments to senior positions within the government affect the general public as well, since the decisions they take shape policies which directly affect citizens.

It is thus, very important that (1) rules regarding appointment, selection, transfer be made available in a simple language to the people at large, (2) the process of changing these rules should be made difficult.  This ensures that rules cannot be changed arbitrarily to suit particular individuals or lobbies, and (3) all decisions regarding appointment which are not deemed to be confidential, should be made public.

The Right to Information Act can only help when people know that such information exists, and can ask for it.  The government has to adopt a policy of disclosing everything that is not otherwise confidential, or trust in government will continue to erode.

Kashmir II: The last Month

23 Jul

In my last blog post, I had summarised the main events in Jammu and Kashmir’s past history to try and give a context to the post I am writing today.  I encapsulate the main events which have taken place within Jammu and Kashmir within the last month or so.  In doing this, I have also relied a lot on local English-language newspapers in Kashmir.  For brevity’s sake, rather than try and tell a story, I am giving a timeline of events collated through newspaper reports:

March 2010: Omar Abdullah stated that more than 35,000 troops have been reduced from J& K over the past 15 months.  He and his party were of the view that an improvement in the security situation necessitates reduction of troops in the Valley.  Abdullah promised that there would be a further decline in the number of troops.  “With the gradual restoration of peace and tranquility, the footprints of the security forces in the state would lessen.”

July 2010: Protests break out in Kashmir over the killing of protesters during clashes with security forces.  A curfew was clamped and the army moved in to assist the civil administration in maintaining law and order.

The valley is witnessing a complete shutdown against the killings on the call by the Hurriyat Conference (G) to protest against the killings. Most of the government and private offices, educational institutions and shops are completely shut and traffic is off the roads. (Click here for source)

July 10, 2010: Farooq Abdullah (CM Omar Abdullah’s father) met Home Minister P Chidambaram and discussed the prevailing situation in Kashmir.  Both believe that terror outfit Lashkar-e-Tayiba has played a role in instigating violence in the valley.

July 17, 2010: Omar Abdullah met P. Chidambaram to discuss the violence in Kashmir.  About 14 civillians have been killed in the unrest.

July 22, 2010: An undeclared curfew in some areas and general strike in rest of Kashmir affected normal life.  Restrictions were imposed by the authorities in all the district headquarters and other townships of south Kashmir to scuttle any effort by the people to come out of their houses and stage protest demonstrations. However, amid restrictions and rains people in Shopian took to roads and staged protests. Police resorted to heavy tear gassing and aerial firing to quell the protesting people triggering clashes. Police arrested nearly half-a-dozen youth after the clashes.

Contingents of police and para-military CRPF personnel were deployed in the streets of all the district headquarters like  Anantnag, Pulwama , Kulgam and Shopian and other townships of the region. Though in most areas of the region heavy rains prevented the people from staging sit-ins on the roads but in some areas, but in Shopian, braving the rainfall, people took to roads after afternoon prayers and staged pro-freedom protests.

The National Conference had a seven hour long working committee meeting which concluded with a demand for the release of Kashmiri political detenues and restoration of greater autonomy.

“It has been our consistent stand. If you remember, the Chief Minister, Omar Abdullah, told a rally during inauguration of the rail service by Prime Minister in Islamabad that Kashmir is a political problem and needs to be solved politically. The CWC resolved that restoration of the autonomy in its pristine form as guaranteed under Constitution of India is the only way to bring peace.”

July 23, 2010: Authorities on Friday imposed curfew in this north Kashmir town to prevent people from coming out and staging demonstrations.

Kashmir as it stands today – I

17 Jul

The recent violence in Kashmir has dealt a great deal of damage to the gains made there in recent years.  In this and the next blog post (will be up soon), I encapsulate a summary of the main events concerning Kashmir, and also an attempt at making a timeline of recent events there.

Main events in Kashmir’s history (as taken from “Understanding Kashmir“):

1846: Jammu and Kashmir(J&K*) State is created under the Treaty of Amritsar between the East India company and Raja Gulab Singh of Jammu who buys Kashmir Valley from the East India Company for Rs.75,00,000 and adds it to Jammu and Ladakh already under his rule.

1931: The movement against the repressive Maharaja Hari Singh begins; it is brutally suppressed by the State forces. Hari Singh is part of a Hindu Dogra dynasty, ruling over a majority Muslim State.

1946: National Conference launches Quit Kashmir movement demanding abrogation of the Treaty of Amritsar and restoration of sovereignty to the people of Kashmir.

1947: On 15 August, the Indian subcontinent becomes independent. Kashmir signs Standstill Agreement with Pakistan. Rulers of Princely States are encouraged to accede their States to either Dominion – India or Pakistan.  The Maharaja of Kashmir delays his decision in an effort to remain independent.


In Spring 1947, internal revolt begins in the Poonch region against oppressive taxation under the recently imposed direct rule by the Maharaja; Poonch was a predominantly Muslim area. Maharaja strengthens the Sikh and Hindu garrisons in the Muslim areas and orders the Muslims to deposit arms with the police.

In August, Maharaja’s forces fire upon demonstrations in favour of Kashmir joining Pakistan, killing innocent people. The people of Poonch evacuate their families, cross over to Pakistan and return with arms.

In September, massacre of Muslims start in Jammu by armed bands of Hindus and Sikhs with active support from the State forces. Hundreds of thousands of Muslims flee Jammu.

On 22 October, thousands of Pathan tribesmen from Pakistan, recruited by the Poonch rebels, invade Kashmir along with the Poonch rebels, allegedly incensed by the atrocities against fellow Muslims in Poonch and Jammu. The tribesmen engage in looting and killing along the way. The tribesmen and the Poonch rebels are unofficially supported by various individuals and high ranking officials in Pakistan including Prime Minister Liaquat Ali Khan and Chief Minister of North West Frontier Province.

The Maharaja of the State of Jammu and Kashmir signs the Instrument of Accession (IOA) on 26 October, acceding the 75% majority Muslim region to the Indian Union, following invasion by the tribesmen from Pakistan, according to the 1948 Indian White Paper; India accepts the accession, regarding it provisional until such time as the will of the people can be ascertained by a plebiscite, since Kashmir was recognized as a disputed territory.

1948: India takes the Kashmir problem to the United Nations (UN) Security Council on 1 January.

1949: On 17 October, the Indian Constituent Assembly adopts Article 370 of the Constitution, ensuring a special status and internal autonomy for Jammu and Kashmir with Indian jurisdiction in Kashmir limited to the three areas agreed in the IOA, namely, defence, foreign affairs and communications.

1951: First post-independence elections. The UN passes a resolution to the effect that such elections do not substitute a plebiscite, because a plebiscite offers the option of choosing between India and Pakistan.

1953-54: The governments of India and Pakistan agree to appoint a Plebiscite Administrator by the end of April 1954. Abdullah procrastinates in confirming the accession of Kashmir to India. In August 1953, Abdullah is dismissed and arrested. Bakshi Ghulam Mohammed is installed in power, who then gets the accession formally ratified in 1954.

1956-1959: On 30 October 1956, the state Constituent Assembly adopts a constitution for the state declaring it an integral part of the Indian Union.

1962: India and China go to war on account of a border dispute in the Ladakh region; At the end of war, China occupies 37,555 sq. kms from Indian held Kashmir at Aksai-chin and Demochok in Ladakh.

In Aug 1965, Pakistan undertakes Operation Gibraltar and sends in a few thousand armed infiltrators across the cease-fire line, and incidents of violence increase in Kashmir valley. A full Indo-Pakistani war breaks out which ends in a ceasefire on 23 September. In January 1966, Tashkent Declaration is signed by both countries agreeing to revert to pre-1965 position, under Russian mediation.

1971: India backs sends troops to East Pakistan to defend its secessionist movement against the repressive Pakistani army. Pakistan launches an attack from the West including Kashmir. India defeats Pakistan and East Pakistan becomes independent Bangladesh. The cease-fire line in Kashmir becomes the ‘Line of Control'(LOC).

1984: Indian and Pakistani armies engage in clashes in Siachen Glacier, a no-man’s land at an altitude of 20,000ft with extreme weather conditions, where the cease-fire line had been left undefined by 1972 Simla Agreement.

1987: Farooq Abdullah wins the elections. The Muslim United Front (MUF) accuses that the elections have been rigged. The MUF candidate Mohammad Yousuf Shah is imprisoned and he would later become Syed Salahuddin, chief of militant outfit Hizb-ul-Mujahedin.

1988: Protests begin in the Valley along with anti-India demonstrations, followed by police firing and curfew.

1989: Militancy increases with bomb blasts. On 8 December, Rubaiya Sayeed, daughter of the Home Minister Mufti Mohammed Sayeed is kidnapped by the JKLF. She is released safely on 13 December in exchange for the release of five JKLF leaders.

1990: In January, Jagmohan is appointed as the Governor. Farooq Abdullah resigns. On 20 January, an estimated 100 people are killed when a large group of unarmed protesters are fired upon by the Indian troops at the Gawakadal bridge.

On March 1, an estimated one million take to the streets and more than forty people are killed in police firing. Massive protest marches by unarmed civilians continue in Srinagar.

The JKLF tries to explain that the killings of Pandits were not communal. The rise of new militant groups, some warnings in anonymous posters and some unexplained killings of innocent members of the community contribute to an atmosphere of insecurity for the Kashmiri Pandits.

Most of the estimated 162,500 Hindus in the Valley, including the entire Kashmiri Pandit community, flee in March.

1991 – 2000: In April 1991, Kashmiris hold anti-Pakistan demonstrations in Srinagar following killing of a JKLF area commander by the Hizb.

JKLF militancy declines. The JKLF faction led by Yasin Malik announces unilateral ceasefire in 1994 and pursues political agenda under the All Parties Hurriyat (Freedom) Conference (APHC) umbrella, followed by Amanulla Khan’s JKLF faction’s ceasefire in 1997.

The most serious incident of a communal nature namely the murder of sixteen male Hindus in Kishtwar in August 1993 is condemned by the JKLF and the Hizb. According to official reports, 307 Hindus and 377 Muslims have been killed in the Doda and Rajouri districts as of 1998.

In June 1998 A Farooq Abdullah instituted Regional Autonomy Committee (RAC) proposes devolution of political power at regional, district, block and panchayats levels and allocation of funds according to an objective and equitable formula.

In June 2000, the State Autonomy Committee( SAC) Report is discussed and an autonomy resolution is adopted in the J&K Assembly. The SAC Report recommends restoration of Article 370 to pre-1953 status with Indian jurisdiction limited to defence, foreign affairs and communications. The Indian Cabinet rejects the autonomy recommendation in July.

Who holds intelligence agencies accountable?

8 Jul

I have put up a blog post on my organisation’s blog on the issue of Parliament’s oversight of intelligence agencies such as RAW and IB.  In India, there is absolutely no scrutiny by our popularly elected Parliament of the intelligence agencies in the country.  The blog post “Parliamentary Oversight of Intelligence Agencies” cites examples from other countries and highlights best practices on the subject.

India’s Constitution that Gandhi (never) wrote

6 Jun

India has developed a rich tradition of Parliamentary democracy over the past sixty years or so.  However, time and again we face major disruptions and challenges to the form of government that our founding fathers established.  It might therefore be worthwhile to examine whether there was any alternative form of democracy we could have adopted at the time of independence.

Granville Austin’s Cornerstone of a Nation (one of the best books on the framing  of India’s Constitution) mentions that there was in fact another alternative:  finding indigenous institutions capable of meeting the country’s needs.  This would most likely mean that the village would be the basis of the Constitution, and we would have a decentralised and indirect form of government.  The chief exponent of this was Mahatma Gandhi.

The book goes on to say that though Gandhi never believed that life in the villages was ideal (it needed to be reformed socially and economically), according to him, only in a village can man lead a life of simplicity and follow the right code of conduct.

Gandhi submitted two plans, in 1946, and in 1948 (incidentally on the day of his murder).  The 2nd plan would have disbanded the Indian National Congress as ‘a propaganda vehicle and a parliamentary machine’ and turned it into a social service machine based on a nation-wide network of panchayats.  Needless to say, the party did not accept Gandhi’s position.

One follower of Gandhi, Shriman Narayan Agarwal, drafted a “Gandhian Constitution for Free India”.  It was based on the principle that ‘violence leads to centralisation; the essence of non-violence is decentralisation.  In his draft Constitution, the primary political unit would be the village panchayat (panchayat members would be elected by the village elders).  The panchayat would control the watchmen, the people who kept the land and tax records, and the police and schools.  The panchayat would also assess and collect land revenue, supervise farming and irrigation, and also village industries.

Village panchayats would be part of the district panchayats who would elect leaders to the provincial panchayats who would choose a president to serve as the head of the provincial government, or state.  Presidents of these state panchayats would include an all-India Panchayat whose head would be the head of the national government.  The idea was that the state should be minimalist, (as a necessary evil) to perform certain essential functions, while all other aspects of decision-making should be left to the panchayats.

While reading through this, I was struck by the kind of solutions it offered to so many problems within our present system of government: (a) policies being framed by those who have minimal contact with those who it will affect, (b) finances for every policy or project being controlled by someone in the bureaucracy (who, instead of being accountable to the beneficiaries, is answerable to some other bureaucrat who is even further removed from the beneficiaries), (c) and the consequent mess of ineffective laws, weak implementation, and inefficient allocation of resources.

However, to me the Gandhian constitution fails on one crucial count: the absence of universal adult franchise.

By envisaging that only the village elders would have a say in the composition of the Panchayats, and depriving the general population of the village of a say in their own governance this system would relegate India back to the age-old problems of stagnation and social obscurantism.  Selected exercise of franchise by a notable few would merely create an oligarchy within villages, where those already in power get to frame policies which will ensure their continuation in power, instead of bringing about a social and economic transformation.

Khap Panchayats: Krap or dangerously reasonable

26 Apr

Khap Panchayats have been in the news recently.  Following the conviction of some members for killing a couple who married against the wishes of the Panchayat, leaders of various Khap Panchayats have sounded a defiant note and want changes in marriage laws.  This post tries to look at the validity of their claim.

First, a little background: Khap is a cluster of villages united by caste and geography.  It is as old as 14th century started by upper caste jats to consolidate their power and position.  The main rule is that all boys and girls within a khap are considered siblings. Many village people also defend these caste panchayats as they deliver the verdict in one sitting whereas court cases drag for years.  According to them ,in many cases innocent people get harassed in the court and by police.  Here as everyone is known so they cross check everything to ensure neutrality.

The Court case:  On the 25th of March, 2010, the Karnal Sessions Court held six people guilty of killing a couple who married against the wishes of the khap panchayat.  The couple, Manoj and Babli was murdered in June 2007.  The Times of India reports that the families of the couple also faced social boycotts, and a fine of Rs. 25,000 since the couple were from the same gotra.  Even though a court had granted the two police protection, reportedly, the police constables were in constant contact with one of the Khap members.  One of the killers was protected by the Khap leaders, and it was only when pressure mounted that he surrendered.  Horrifyingly, he was even felicitated at a function for killing Manoj and Babli.

Aftermath: On April13, 2010 in an assembly, Khap Panchayats condemned the court ruling and pledged their support to those convicted.  They had also held an earlier meeting where they decided to set up a core committee to suggest amendments to the Act to disallow same-gotra and same-village marriages as per Jat tradition.  They also demanded an amendment to the Hindu Marriage Act, 1955, terming it unscientific.  Their specific demand is that the Act should be able to check whether the couple should be getting married or not.  It might sound ridiculous, but the fact is that the Act already does so.

The Hindu Marriage Act, 1955 prohibits marriage between Hindus on various grounds.  Two of them pertain to the relation between the two parties:

1.  They should not be Sapindas of each other. A Sapinda relationship is traced through common ancestor.  People within 5 generations of each other on the father’s side and 3 generations of each other on the mother’s side, or having common ancestors within 5 and 3 degrees of separation are treated as Sapindas.

2.  They should not fall within “degrees of a prohibited relationship”.  This includes lineal descendants and close family members.

I doubt these conditions were imposed on a scientific basis.  They are more probably, if not certainly a codification of the dominant Hindu custom which was being followed prior to the enactment of this law.  If so, the Khap Panchayat’s demand to have a law barring marriage within the same gotras is also merely a matter of codifying an existing custom prevalent within their community.

Their other practices of social boycotts, honour killings and fines are completely illegal, but on this one aspect at least, they can claim to have a legitimate issue.  I am not supporting the demand, merely stating that if a law were to be enacted validating their demand, there is precedent to indicate that such a law would be valid.

The issue however is whether such a law would be a good law.  Whether it is reformist, or populist, and whether a populist law is necessarily good law in the first place.  That is an essential contradiction our society will have to deal with.  The law-making process is supposed to be populist by nature, as laws are passed by a majority of our representatives.  Whether the law passed is any good however, is only proven by passage of time, when many people who the law affects have the weight of their horrific experiences to add to their arguments.

Local Government IV: India’s municipal bodies

13 Apr

Municipal Corporations

Municipal corporations are formed in large urban areas, and usually have one head appointed by the government who is the ‘Commissioner’.  The other head of the municipal corporation is the Mayor, who is elected either directly by the people, or indirectly from among the elected members of the municipal corporation.[i] Though the Mayor is the formal head of the municipal corporation, real administrative authority lies with the Commissioner.  Table below compares the powers of the Mayor in municipal corporations in various states.

Powers of Mayors and Commissioners in Bangalore and Kolkata
Bangalore Kolkata
Mayor Commissioner Mayor Commissioner
Presides over meetings of the corporation. Any power or function vested in the corporation shall be discharged by the commissioner. Presides over meetings of the corporation. Discharge of all duties vested under any applicable law.
General powers of inspection. Discharge of all duties vested under any applicable law. Can give directions for implementing projects he thinks are important. Assign duties and supervise the functioning of all officers and employees.
Can give directions to the Commissioner for the implementation of any decision of the corporation. Power to act in emergencies for public safety or to prevent damage to property. Prepare the annual report and be responsible for the custody of all records of the corporation.
Sources: Karnataka Municipal Corporations Act, 1976; West Bengal Municipal Corporation Act, 2006.

Apart from these two officials, some municipalities also have standing committees which form policies, and direct the functioning of the corporation.  The elected councillors recommend policies to govern the municipal area to the administrative organization led by the Commissioner, and have supervisory as well as financial powers.[ii] These powers are clearly defined by state legislations.  Among these powers are (a) deciding which taxes are to be imposed, and in what proportion, (b) formulating and passing a budget and raise loans if required, (c) formulation of bye-laws relating to water supply, building and construction, public markets, regulation and use of public streets, control and supervision of slaughter houses etc, and (d) preparation of draft development plans.[iii]

Municipal Councils

The governor of a state has the power to notify any area as a smaller urban area for which a municipal council must be set up.[i] Usually, factors such as the population or the economic importance of such an area are considerations for creating a municipal council.  Members of municipal councils are usually elected directly, and the number of members in a particular council is decided in proportion to the population of that area.[ii]The state of Maharashtra for example has created three different categories of councils with fixed number of seats for each category.[iii] Karnataka has also made such a classification.

The head of the municipal council is elected from among the councillors, and is called the President.  Though the president is the elected head similar to a mayor, his powers are much broader.  The president not only presides over all the meetings, he is also required to watch over the financial and executive functioning of the council.  The president is helped in the discharge of his functions by an executive officer usually appointed by the state government.  The powers and functions of municipal councils are almost similar to those of municipal corporations.  Municipal councils may also have to discharge duties under some other acts, which may be specified by the state government.[iv] West Bengal has created a Chairman-in-council for municipal councils, similar to the Mayor-in-council for municipal corporations.

Structure of local governments in other countries

Brazil United States Philippines Malaysia
Constitutional arrangement: Municipal government bodies are independent organs of government. Constitutional arrangement: Largely autonomous and independent municipal bodies exist either on a territorial basis, or are incorporated for specific reasons by the state governments. Constitutional arrangement: The country is divided into a number of provinces (states) and municipalities are subordinate to the provinces.  Apart from this, there are also chartered cities which are not part of any province. Constitutional arrangement: local councils are appointed by the state governments.  Urban local government bodies are divided into city councils and municipalities.
Elections: There is a scheme of separation of powers.  The Mayor is directly elected, and the legislative council elections are held separately. Different models: There are three different models of local government in cities: (a) Mayor-in-Council, (b) the Commission, (c) the City-Manager. Municipalities: Each municipality is headed by a Mayor who is elected directly.  In addition, eight councillors, and presidents of youth councils and local unions form the legislative council. City Councils: Executive power is vested with the Mayor, who is appointed by the state government.
Powers: Municipal bodies share powers regarding health, education, and infrastructure with state governments.

Primary responsibility for pre-school education and urban development plans if the population is greater than 2,00,000

Mayor in Council: The Mayor is elected directly, a legislative council for which elections are held separately.

The Mayor appoints the officials of the departments in the city, and has veto powers in some matters as well.  The Council passes ordinances, decides house-tax rates and allocates money among the departments.

Chartered cities: They are at the same level of government as the municipalities, but are given more subsidies by the central government to fulfill their duties.  They stand on their own and have powers to levy some taxes. Municipalities:Municipalities are led by Presidents who are also appointed by the state governments.  State governments also elect all the councillors.
Finances:

  1. Primary source of revenue is federal transfers.
  2. Other sources of funding are taxes on industrial production, vehicle and rural property taxes, and short-term loans.
The Commission: Both executive and legislative functions are combined in one group of Commissioners who are directly elected.  Each commissioner supervises the work of one or more departments. Functions: Local branches of government are responsible for public health, sanitation, waste removal, and management.  They also have responsibilities with regard to town planning, and social and economic development.
City manager: A directly elected legislative council appoints a highly trained professional manager to run the administration.  The elected council sets the policies, and the manager implements them.
Sources: Various sources[1].

[1]. “Malaysia’s towns and cities are governed by appointed mayors”,  by Andrew Stevens, athttp://www.citymayors.com/government/malaysia_government.html;  “Mayors play the central role in US municipal government”, by Nick Swift, athttp://www.citymayors.com/usa/usa_locgov.html;  “A country of many governments”, at http://countrystudies.us/united-states/government-17.htm;  “Brazil’s latest constitution guarantees local government significant autonomy”, by Guy Burton and Andrew Stevens, athttp://www.citymayors.com/government/brazil_ government.html;  “State and Local Governments”, at http://countrystudies.us/brazil/89.htm;  “Local government” at http://countrystudies.us/philippines/81.htm.

[i]. See for example, Karnataka Municipalities Act, 1964.

[ii]. West Bengal also provides for appointment of certain members to the council. Appointed members and elected members are collectively referred to as the Board of Councillors.

[iii]. Maharashtra Municipalities Act, 1965. West Bengal has also done the same under the West Bengal Municipal Act, 1993.

[iv]. In Maharashtra, the municipal councils execute the provisions of the Prevention of Food Adulteration Act.


[i]. In Karnataka, the Mayor is elected indirectly from one of the Councillors as per the Municipal Corporations Act, 1976.

[ii]. “Local government in India still carries characteristics of its colonial heritage” by Mayraj Fahim, athttp://www.citymayors.com/government/india_government.html.

[iii]. Karnataka Municipal corporations Act, 1976, West Bengal Municipal Corporation Act, 2006, Municipal Corporation of Greater Mumbai, athttp://www.mcgm.gov.in/.

Local Government III: States – Culprits or bystanders?

9 Apr

The Constitution gives the state governments the power to make laws on all matters relating to the local government, the composition and powers of municipal bodies, and other local bodies for the purpose of self-government.[i] All states therefore have legislations setting out in detail the powers and functions of municipal bodies, and other local bodies.

Apart from municipal institutions, there are also a number of other statutory bodies which are set up to administer one particular aspect of urban governance (The Delhi Jal Board for example, looks after the supply and treatment of water within the city of Delhi). Since these specialized bodies also work under the control of the state government, the functions and powers of such bodies (‘parastatals’) and ULBs often overlap, and the state government retains most of the power over urban governance.

State governments also retain control over the finances of the municipal bodies.  Though municipal bodies are expected to raise taxes and duties on their own, the majority of their finances comes from the state government.  One of the principal duties of state governments is however to implement the changes brought about by the 74th Constitutional Amendment.  These changes were to be brought about in the following areas:

Elections to ULBs: State governments are required to form a State Election Commission which would conduct elections for municipalities every five years.  Most states are performing this task as per their obligations.[ii]

Devolution of functional powers to municipalities: The 74th Amendment inserted a list of 18 essential functions  which state governments had to assign to ULBs through enacting new laws or regulations under existing laws.  There are wide variations in the number of functions which ULBs are performing in different states.  Some other functions are being performed exclusively by the state department.[iii] The functions of ULBs in Karnataka, for example, are mentioned in the Karnataka Municipalities Act, 1964.[iv]

Devolution of financial power: All states were required to grant essential financial powers of raising taxes and collecting duties to ULBs as per the 74th Amendment.  A study of various municipal acts of states shows that ULBs already had the power to levy such taxes. States were also required to set up State Finance Commissions which would allocate funds for rural and urban bodies of local government.  What has been done in this regard by various states is highly questionable.

Next:  Different Types of Urban Local Bodies


[i]. Entry 5 of List II of the Seventh Schedule of the Constitution.

[ii]. NIUA report on the Impact of the Constitution (74th Amendment) Act on the working of Urban local Bodies, New Delhi, 2005.

[iii]. NIUA report on the Impact of the Constitution.  The findings are based on a review of some Indian states, but not all.  Karnataka was not among the states reviewed for this purpose.

[iv]. Section 87 of the Act.

Local Government II: Central government and local bodies

8 Apr

The central government does not have a direct role to play in the functioning of municipal bodies.  It however releases funds to state governments annually for urban development.  These funds are released based on the recommendations of the Central Finance Commission’s report.

The central government also has a role in municipal administration by promoting urban development through various schemes.  The Ministry of Urban Development at the centre is the main agency through which these schemes are implemented (See Below).

The Jawaharlal Nehru National Urban Renewal Mission (JNNURM)

Sectors under coverage: Water supply, sewage and sanitation, waste management, road network, urban transport, development of bus and truck terminals, storm water drainage, slum area development, street lighting, basic services to the poor, development of inner city areas and heritage sites.

Obligations of state governments: States have some mandatory and some optional obligations relating to legal reform of urban laws, rationalization of stamp duties, making laws for increasing public and community participation.  Municipal level reforms also have to be undertaken.  These include improvement in accounting standards, introduction of e-governance, and provision of basic services for the poor.

How states become eligible for funds: States have to submit a City Development Plan, a Detailed Project Report, and a timeline for Implementation to the central government.

Implementation of projects:

Centre: A National Steering Group frames policies, monitors and reviews progress of various projects.

State: State Level steering Committees are formed, headed by the Chief Minister, and are assisted in monitoring projects by nodal agencies.

Example – The Implementation of JNNURM in Karnataka: A total of 46 projects in various cities have been granted funds by the central government under JNNURM.  Bangalore is one such city where projects under JNNURM are being implemented.  Under the City Development Plan for Bangalore, 35 percent of funds are granted by the central government, 15 percent by the state government, and 50 percent is contributed by the urban bodies in-charge of implementation.  The state government has mentioned in the City Development Plan that the main task of implementation of the projects shall lie with the municipal bodies which are empowered to perform these tasks.

Sources: JNNURM City Development Plan For Bangalore; JNNURM Brochure prepared by the Ministry for Urban Development (GOI)

How bodies such as the MCD, BMC, KMC function

7 Apr

India likes to tout the fact that its experiments with local self-government and decentralisation have worked wonders over the years.  Starting today, I will be putting out a series of posts on how precisely these Urban Local Bodies (ULBs) function.

Part I: Background

Since independence, the urban population of India has grown nearly five times.  This has happened both because industrial development has led to parts of the country becoming more urbanized, and also because of a large number of people migrating from rural to urban areas in search of better opportunities.  This has stretched the resources of cities and have caused massive problems in urban administration such as increasing urban poverty, provision of housing, sanitation, drinking water and health facilities for a rapidly increasing urban population.

The subject of local governance is a state subject.  Local municipal bodies are creations of laws made by states, and state governments have the responsibility for providing adequate finances to them.[i] The state government till recently, also had wide powers to make appointments to these bodies, and also dictate their functions and responsibilities.  These powers were however limited by the 74th Amendment to the Constitution in 1992.[ii]

The table below highlights the main changes the 74th Amendment made.  Needless to say, since most of these provisions do not make it compulsory for states to give such powers to states, we do not really see our local municipal bodies discharging such functions.

Changes in the organization, powers and functions of municipal bodies made by the 74th Amendment
Subject Area Constitutional Provision
Powers of local municipal bodies State governments may devolve powers relating to:

1. Preparation of plans for economic development and social justice.

2. Performance of functions and implementation of schemes, including those listed in the Twelfth Schedule of the Constitution.

3. Levy and collect taxes, tolls and duties.

Composition of municipalities States may provide for:

1. Election for all seats in a municipality from the territorial constituencies in the municipal area.

2. Representation of members of Parliament, and members of the state legislature who represent constituencies in that municipal area.

3.  Reservation of seats for SCs and STs in every municipality on a proportional basis.

4.  Persons having special knowledge or experience in municipal administration.

5. Representation of Chairpersons of Ward Committees in the municipal bodies.

Notes

[i]. “State-Local fiscal relations in India: Some Vital Issues”, by K.M. Raipuria, in Municipal and Urban India, Ed. By Abhijit Dutta, Indian Institute of Public Administration, 1980.

[ii]. The Constitution (Seventy-Fourth Amendment) Act, 1992.

Selective transparency: CAG Reports on Defence

17 Mar

The Comptroller and Auditor General of India audits the accounts and performance of government ministries, departments, and various schemes that are being run in the country.  It is a body set up under the Constitution of India (Article 148), and its reports have to be tabled in Parliament (Article 151).  A report or document tabled in Parliament is a public document i.e. any document tabled in Parliament cannot be classified as confidential.

Interestingly, a perusal of the CAG website shows that while Compliance Audits (Audits showing whether the department has bees used as authorised, and in compliance with laws, regulations etc.) of the Ministry of Defence are available, Performance Audits (“to see that Government programmes have achieved the desired objectives at lowest cost and given the intended benefits.”)  are not put up on the website.  This is weird, considering most government departments have access to the hard-copies.  Moreover, any foreign government wishing to procure one of these can simply subscribe to the same.  Consequently, the only loser in the process are common citizens.  Making a recent attempt to procure one of these, I was told to get a letter from the govt. department I was from (they presumed I was from one) and then I might be handed the available copies over.  Additionally, though some of the older audits mention a price of Rs. 65, they had no idea of where I could buy one from!!

How Rajya Sabha succeeded: Women’s Reservation

9 Mar

I do not wish to enter the debate on the efficacy of reservation of women in Parliament.  I do not wish to do so for the simple reason that I think it is a good idea.  In this post I wish to focus on the story of how the Rajya Sabha passed the Bill.  This so for the reason that in many ways today encapsulated the best and worst of parliamentary democracy.

To start from the beginning, let’s mark out the central characters:

1. The Congress, the BJP, the Left and their allies who all supported of the Bill.  The BJP had however said that they would refuse to vote for the Bill if the Congress tried to pass it without a discussion.  The Bill had no hope of passing without BJP support as a 2/3rd majority is required to amend India’s Constitution (which is what the Bill does).

2. The RJD, the SP, BSP, the JD(U) and some other parties who opposed the Bill with varying degrees of vehemence and violence.

3. India’s Vice-President and Chairman of the Rajya Sabha, Mr. Hamid Ansari, the deputy-Chairman, and the marshalls and other officers of the House.

The chain of events really begins from last evening when some MPs tried to get on to the Chairman’s platform, tore off a copy of the sheets he was holding, and created a ruckus in the House when the Bill was to be debated.

This morning started by the Chairman decisively suspending 7 MP’s involved in the previous day’s ruckus for the rest of the budget session of Parliament.  Having categorically shown his authority, he re-convened the House at 2.00 pm.  At 2.00 pm, some people still descended to the ‘well’ of the House in front of the Chairman and tried to create a ruckus.

This usually results in the Speaker or the Chairman adjourning the House since the business of the House cannot be conducted amid such chaos.  Today however, all other MPs remained in their seats silently, and patiently, just waiting for the dissenters to quieten.  The Chairman also remained in his seat, quiet for most of the time.  After around 15-20 minutes, the 5-7 dissenting MPs were escorted out by the marshalls, who also formed a chain around the well of the House to prevent further disruption.

Gradually, the din abated, and the leader of the opposition spoke.  A number of MPs spoke for short intervals, giving their support to the Bill, for many varied, but equally tenable reasons.  Finally, the Law Minister, Veerappa Moily closed the debate, and while doing so, fittingly thanked the Chairman of the House for being strong-willed and fearless, and seeing the Bill through to its end.

Whatever one’s opinion on the Bill, the day saw MPs being suspended for the type of misbehaviour which has so far been unprecedented in our Parliament.  It also saw marshalls being called in to restore order.  It witnessed also strong and patient behaviour by an overwhelming majority of our usually squabbling politicians, and also most importantly, it saw strong and decisive behaviour by the Vice-President and Chairman, who seemed firmly in control of his House.

Secret uncovered: How our cabinet works

1 Mar

Today, I am summarising some key  rules regarding how the business of the Government of India is conducted.  At the top of the Executive wing f the government in India is the Union Cabinet consisting of the Prime Minister, various departments directly under his control, and his Council of Ministers. One of the key Rules on their functioning (the Government of India (Transaction of Business) Rules, 1961) was a secret until recently, and has been made public only recently.  It is this particular rule I am simplifying and summarizing.

The Business of the Government of India is conducted at various levels primarily within the Ministries/ Departments in terms of the Government of India (Allocation of Business) Rules, 1961. However, in terms of the Government of India (Transaction of Business) Rules, 1961, such disposal of business is subject to the provisions concerning consultation with other Ministries, approval of the Prime Minister, the Cabinet and its Committees and the President.

The Rules cover the following broad topics:

1. How ministries dispose of “business”.

2. How and when inter-departmental consultations are to take place.

3. How and for what matters the Ministry of law and justice should be consulted.

4. Powers of the Prime Minister and the Finance Minister to call for papers from any department.

5. The existence of standing committees within the Cabinet, their role and function.

6.  A list of matters which have to be placed before the Cabinet.

The cases or class of cases that need approval of the Cabinet, are indicated in the Second Schedule, and those requiring approval of the Cabinet Committees are indicated in the First Schedule to the Government of India (Transaction of Business) Rules, 1961.  Some interesting Cabinet Committees and their brief functions are:

Cabinet Committee on World Trade Organisation Matters:   self-explanatory.

Cabinet Committee on Political Affairs:  Among other things, it deals with center-state issues, and “consider economic and political issues that have to be judged with a wider perspective” (sounds a little vague, doesn’t it!!).

Appointments Committee of the Cabinet:  This committee takes decisions on appointments for certain specified posts mentioned in the Rules.

Cabinet Committee on Accommodation:  Frames rules and regulates how government employees and MPs get accommodation.

There are also other committees on economic issues, on security, on food prices and natural calamities.

What is very striking is that none of these provisions seem like they needed to be classified as ‘secrets’ for so long!!  In fact, keeping them secret I think, has only contributed to the de-democratization of this country.  By keeping them secret, the government ensured that lay-people had no idea of how business within the Union cabinet is conducted, and therefore had no idea regarding who to approach at which particular time.  However, those with resources would anyway be able to invest enough energy to find out how things operate within the Cabinet.  This, I think, has only created a gulf between those who had enough time and resources to spend uncovering something as uncontroversial as the stuff mentioned above.

How much does a Supreme Court judgement cost?

3 Feb

“What kind of impact do some judgements have on the finances of the government?”  In this post, I propose to look at this question using a judgement delivered in April 2009.  In the course of this post, I also argue that judges should refrain from delivering judgements which have huge financial and policy implications, as they sometimes have the effect of re-shaping government policies, and do not always result in public good.

The case I am using is: Avinash Mehrotra v. Union of India (Supreme Court – W.P No. 483 of 2004, judgement by Justice Dalveer Bhandari and Justice Lokeshwar Panta, accessible here).

The relevant facts: The case was a PIL filed relating to a fire in a private school in a district of Tamil Nadu.  The fire started in the school’s kitchen while the cooks were preparing the mid-day meal.  Usually around 900 students attended the school daily, and a large number perished in the fire.

What the PIL was for: (1) Every child should get free, safe, secure, and good education (!);  (2) Stringent rules and regulations at par with the highest standards should be framed for ensuring safety in schools;  (3) such standards should be enforced effectively;  (4) Manuals for fire-safety procedures should be framed;  (5) kitchens in the school should have adequate safety mechanisms;  (6) schools should not exceed the limit of children it can admit;  (7) Schools must prepare emergency safety plans, assign duties to teachers, staff, and students and teachers, and also local authorities should be trained for responding to emergencies;  (8) a committee of jurists, legal experts and lawyers be constituted to formulate a comprehensive report for carrying out reforms in the safety standards.

The judgement of the court:

First, the Court noted that States admit that many schools do not meet self-determined safety standards, let alone those of the National Building Code.

Second, it noted that thousands of schools lack any fire suppression equipment.

Third, it noted that thousands more schools do not have adequate emergency exits or non-inflammable roofs.

Fourth, it said that the complainant’s brief was viewed by them as a document which crystallised safety standards for schools.

Fifth, it then rambled on for a bit about the importance of education.

Sixth, it said that the right to a safe and secure education is a part of the fundamental right to education.

Lastly, it said that portions of the National Building Code of India, 2005 will have to be complied with, and named the specific parts it wanted complied. These include (DISCLAIMER: Some points which I thought were very reasonable have not been mentioned.  This post already seems never ending!!):

(a) Fire fighting training to all teachers and students from X to XII standards.

(b) Fire Task Force in every school comprising of Head of the institution, two teachers / staff members and one member from the Fire and Rescue Department should be constituted.
(c) Display of emergency telephone numbers and list of persons to be contacted on the notice board, and also Mock drills to be conducted regularly. Fire alarm to be provided in each floor and for rural schools
separate long bell arrangement in case of emergency.
(d) There shall be a School Safety Advisory Committee and an Emergency Response Plan drafted by the Committee in approval and consultation with the concerned Fire & Rescue Department.
(e) All schools to observe Fire Safety Day on 14th of April every year.
(f) Existing school buildings shall be provided with additional doors in the main entrances as well as the class rooms if required.
(g) Kitchen and other activities involving use of fire shall be carried out in a secure and safe location away from the main school building.
(h) An Inspection Team consisting of experts like a Civil Engineer, a Health Officer, a Revenue Officer, a Psychologist, a Fire Officer, a local body officer and a development officer besides the educational authorities shall carry inspection and assessment of infrastructural facilities before the commencement of each academic year.
My issues:
Positives: It noted the lack of planning, training, infrastructure and the consequent danger posed to students in schools in emergency situations.  The court rightly asked state governments to ensure these issues are addressed.
Negatives:
First, the court went on to address the specific question of how these deficiencies are to be addressed.  The court was right in pointing out the government was not discharging its duties adequately.  It was not right in pointing out how it should be doing it.
Second, by telling the government to impart fire-safety related education, it also partially decided school curriculum!! Note, that while the necessity of such education is undoubted, it is the role of the government to decide whether such education should be given, or can be given.
Third, the government has been asked to implement directions it would find difficult to do, even while acting in good faith.  As discussed in an earlier post, there are nearly 7.5 lakh primary schools in the country.  Setting up, (1) Fire Task Forces, (2) inspection teams, (3) separate kitchens, and so on requires a great mobilisation of resources when a large number of schools do not have pukka roofs, buildings, or even toilets.
My criticisms lead me to the point of stating that while the directions of the court are well intentioned, since the government is forced to abide by them, the judgement actually not just re-shapes the priority of the government, but also reduces the flexibility of the government in ensuring that the spirit of the judgement is upheld.

Govt. Preparing to influence media perception??

31 Jan

While doing some work-related research, I found an interesting sub-heading under the Ministry of Home Affairs’ Action Plan document for October, 09 – March, 10.  Page 44 of this document (Under the sub-heading Naxal Management Division) mentions a heading called the “Media / Perception Management Plan“.  The activities planned under it pertain mainly to inane activities such as advertisements and Tribal Youth Cultural Exchange Programmes.

So, I did a Wiki-search for the term Media / Perception Management Plan.  Apparently, “Perception management is a term originated by the U. S. military.”  The Wiki-article also goes on to state that

“The phrase “perception management” has often functioned as a “euphemism” for “an aspect of information warfare.” A scholar in the field notes a distinction between “perception management” and public diplomacy, which “does not, as a rule, involve falsehood and deception, whereas these are important ingredients of perception management; the purpose is to get the other side to believe what one wishes it to believe,whatever the truth may be.”

This is another quote from an article talking about the Bush administration’s policy of perception management:

“Perception management” — also known as “public diplomacy” — is a propaganda strategy for controlling how a target population views political events. Refined by intelligence services as they tried to manipulate foreign populations, the practice eventually seeped into domestic U.S. politics as a way to manipulate post-Vietnam-War-era public opinion.”

I am not asserting that the Indian government is doing something similar.  The facts do not seem to support such an assertion.  I however, do find the use of the term very striking, considering its historical usage.

Amount of freedom in the world

15 Jan

This is from a link a colleague forwarded.  A group called Freedom House has just completed a ‘Freedom in the World 2010‘ survey.  Here are a couple of graphs from their work:

The graphs show, (1) the number of democracies in the world today are the least since 1996, and (2) the percentage of electoral democracies in the world is the least since 1995.  India thankfully, does not show a slip in the rankings, but neither does it show an increase.

Update on reservation for Minorities: Ranganath Mishra Committee Report

14 Jan

The government has asked ministries for feedback on the implementation of the Ranganath Mishra Commission Reforms (Govt eliciting views of ministries on Ranganath Misra report).  The ministries have been asked to report whether there are ‘insurmountable difficulties’ in giving identified minorities adequate reservation.  I had posted a piece on the subject some time earlier.  Please read if interested.

Bestseller II: How scholarly are our courts?

12 Jan

Yesterday I posted a piece on a judgement of the Bombay High Court banning a book.  I had mentioned the facts of the book and the main points raised by the author of the book.  Today, I am quoting the main points of the court’s judgement.  After that I argue that banning books on sensitive issues does not necessarily maintain or promote harmony in society.  It might in fact, curb opportunities for dialogue in society.

The judgement: The High Court upheld the ban on the book.  There were many procedural and substantive grounds given.  I am summarising only the substantive points:

The Constitution allows the state to frame laws to restrict our freedom of speech and expression in the “interest of public order”, and not just “maintenance of public order”.   Interest has a broader meaning than maintenance.

For a Notification banning books to be valid, the government’s opinion and reasons should be clearly mentioned in the notification.  In this case, they were clearly expressed.

An author has a right to put forth a perspective that a particular religion is not secular.  However, if a book reeks of hatred for a particular community…..one must pause and consider whether it is in the interest of general public to allow its circulation.”

According to us, the lurid details allegedly of Mohammad Paigambar’s life, the authenticity of which may be challenged by some, could have been avoided by

the author…..It is not possible for us to conclude that they are in the nature of historical research. We feel that the attempt is to show Mohammad Paigambar in poor light to hurt Muslim sentiments.”

Thus, Mohammad Paigambar is designedly painted as a debauched person and anything which can be said in his favour is discounted. “

We have no doubt that the author must be allowed to criticize Islam….But, here the criticism is not academic. The author has gone on to pass insulting comments on Muslims with particular reference to Indian Muslims.”

My argument: These points were made somewhere in between nearly 100-pages of a scholarly ‘exposition’ by the court.  The court examined a number of extracts quoted from the book, and referred to other books it considered scholarly and definitive, and tried to examine the true nature of the words and phrases of Muslim religious texts which had allegedly been wrongly represented.

I would like to point out some features of the government action and the court’s judgement:

1.  The government acted in 2007 when the book was first published in 2003.  It would be interesting to ponder over whether they would ban a book had it not sold 10,000 copies.

2. Banning the book may have done two things: (a) it may have sent out a signal that the government is ‘pseudo-secularist’, and over protective of minorities;, (b) it might also have stifled genuine debate by deciding for itself that the book is derogatory, insulting, and a threat to public order.

3. The length of the court’s ‘treatise’ on the authentic interpretation of the sources used and mis-quoted form nearly half the length of the 150-page judgement!!  The court, even though it said it has no business laying down authoritative interpretation of religious law, went ahead and did exactly that.

In any society, debate on religion and culture (as indeed so many other things) should take part in civil society.  That the government should be able to regulate matters inciting violence and hatred is granted, but does not this particular form of regulation i.e. banning a book, also stifle debate likely to happen in civil society when controversial arguments are made?

Consider an alternative scenario: The government does not have the power to ban a book outright.  it can however issue an ‘advisory’ stating that a particular book is factually incorrect/ provocative/ misrepresents historical facts, and so on.  If such a book does subsequently lead to a direct role in violence or public disorder, the government can ask the courts to ban it.

In such a case, if the government issues an advisory stating its reasons for doing so, information about the book and its contents will be given wider publicity.  Wider publicity will also in turn attract greater public scrutiny, greater criticism, greater debate, and if the material is truly objectionable, even a case for defamation.

Greater public scrutiny, in my opinion would also help different sections of society voice their opinions more often, and may also help in the expression of pent-up voices that are otherwise expressed with destructive intent.

In the occasional situation that a particular book etc. is taken to court, the court may be in a position to resolve a dispute between two people from different backgrounds in society.  In such a case, its 100-page ramblings might settle a question of authenticity of cultural and religious texts in a manner that gives closure to at least one individual in society.

In the present circumstances, the court usually has to decide on the very legitimacy of the government’s action of banning a book.  It might appease a community, but still leaves individuals simmering.

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