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Problematic terms in the demonetisation debate

28 Nov

I have a new post up on Prof. Ajay Shah’s blog discussing the Government’s move on demonetisation, and the problems with the way the discourse on demonetization is being shaped, and the probable ripple effects of this move on society. Here is the link:

The post is reproduced below:
The Government’s move to demonetise Rs. 500 and Rs. 1000 notes, and place restrictions on withdrawals, exchanges and deposits has attracted both appreciation and criticism. This piece analyses the framework of this discourse and its implications for the economy and society. Terms like “demonetisation”, “corruption”, “inconvenience and hardship”, “implementation” form the basis of this discourse. Interestingly, most of these terms have originated from the Government itself. This piece argues that by confining ourselves to these terms, we fail to grasp the true nature and impact of this measure.

The economic context

The Indian government’s move to withdraw the legal tender status of Rs. 500 and Rs. 1000 notes has had widespread effects on the economy. Holding these beyond a certain notified date will be
illegal. Those left with these notes after December 31 will lose their wealth by a corresponding amount. There are daily reports of the plight of urban daily wage labourers, farmers and those in unbanked areas.

The economic impact of this measure is being contested. A great piece by my colleague Suyash Rai argues that the costs of imposing this measure far outweigh the benefits are likely to affect the poor and under-banked areas disproportionately and may have a modest impact on corruption at best. Others have played down the likely impact on the poor and rural areas. They have supported the demonetisation as a courageous and bold step towards a larger effort at wiping out endemic corruption and black money.

What is already safe to assert is that for better or for worse, there has been large-scale disruption within the economy. Print and electronic media, social media, daily conversations are consumed with conversations around the principle and implementation of demonetisation, and around issues of corruption and black money. Yet, most of this discourse follows a predefined framework, using terms and nomenclatures propagated by the Government. The framework of this discourse is problematic, and this framework itself may have deleterious effects on our society.

Problematic term: “Demonetisation”

Characterising the government’s move as “demonetisation” is the most problematic fallacy of the current discursive framework. In this case, the Central Government has said that the RBI will refuse to honour its promise to provide legal backing to Rs. 500 and Rs. 1000 currency notes. They will effectively refuse to honour the property rights of those holding them. Every time the RBI issues a currency note, it adds a liability to its balance sheet. By refusing to honour these notes as legal tender, the RBI will extinguish its liability towards persons holding them, in effect enriching itself. In addition, substantial restrictions have been placed on exchanging old notes for new, withdrawal and exchange of money. This is a substantial interference in the rights of people from accessing their own money. This is expropriation, not demonetisation.

In its broadest sense, expropriation refers to a taking of certain items or goods by the government by refusing to honour the property rights of those holding such items or goods. Bank nationalisation was an act of expropriation. The Indian government refused to honour the property rights of the owners of banks and transferred the ownership of the banks to itself.

Land acquisition is an act of expropriation.  The government expropriates the property rights of individuals. Land reforms undertaken in the 1940s and 1950s were acts of expropriation where property held by zamindars was transferred to the states by virtue of laws passed by them.

The Vodafone tax demand by the Indian government has been alleged to be an expropriatory action as Vodafone’s income is being expropriated by imposing an allegedly unfair tax on it. Expropriation need not be an absolute taking or extinguishment of property rights in all cases.

Even a high degree of restriction or interference with property rights has been held to be expropriatory in many jurisdictions worldwide. Therefore, the Government and RBI’s decision to (a) withdraw legal tender status, and (b) impose severe restrictions on withdrawals from one’s own account is definitely an act of expropriation.

This act of expropriation is singular, given the nature of the expropriation and the views of the political party in power. Two of its cabinet ministers favoured a debate early last year on whether the word socialist should remain in the Preamble to the Indian Constitution and its ally the Shiv Sena demanded the removal of the word (link here)! This same Government is now justifying this expropriatory act as a moral imperative.

The nature of the expropriation is much more problematic. There are at least three ways in which this expropriation is remarkable:

  1. In most cases, property rights of certain defined individuals or classes are expropriated. The owners of banks were identifiable individuals, and so were the zamindars who were expropriated when land reform laws were passed. In this case, it is not so. Property rights across the entire economy are being expropriated without distinction. At the same time, there is no single identifiable person who is being expropriated. This is likely to have societal consequences I will elaborate later.
  2. Governments usually expropriate rights, or assets – like wealth, mineral resources, land, intellectual property (through compulsory licensing). In this case, the medium of exchange in society is asset being expropriated. This is an expropriation of cash, not wealth. This is singular in the annals of expropriatory actions by governments worldwide. Many governments have demonetised currencies to combat hyperinflation, but no one has withdrawn legal tender status on currency notes in times of normalcy, and imposed restrictions on an individual’s ability to hold cash at the same time. In an economy that is almost completely cash driven, and where most households hold Rs. 500 and Rs. 1000 notes as means of exchange for sustenance, this is bound to have serious repercussions.
    Money is not just a medium of exchange and a store of value, it is also, as has been argued, a source of social prestige and psychological security. In a cash-based economy like ours, people primarily derive social capital and psychological security from money in the form of cash. This expropriatory measure has therefore arguably extinguished or imperiled the social prestige and psychological security of those who relied on cash money to provide these for them.
  3. Governments usually expropriate the rich to redistribute to the poor (at least ostensibly) or to create benefits for the public good (roads, highways, etc). Bank nationalisation expropriated the rich bank owners so that Indira Gandhi could use banks as agents of poverty reduction. Land reforms were done to expropriate zamindars and redistribute land to the poor. In other countries, governments expropriate owners of oil fields and mineral deposits so that the government can channel the benefits from such resources for the public good. Since this expropriation is economy-wide, everyone’s medium of exchange is being confiscated/ restricted regardless of whether they are rich or poor. However, the main brunt of the expropriatory action is on the poor. There are two main ideas being talked about with regard to what the government might do with the windfall in order to redistribute wealth to the poor. To clarify, neither the Government nor the RBI have stated or clarified on what they intend to do, and what legislative changes will need to be made. It is however worthwhile to discuss these as the two broad ideas that are being discussed –
    1. The government may improve its fiscal situation and use the fiscal space to provide income tax relief/ loan waivers. The poor are not going to benefit from income tax relief since only 4 percent of India’s population pays income tax. The Sixth Economic Census of the CSO (March 2016) finds that only 2.3 percent of non-agricultural establishments received financial assistance from financial institutions. This number is likely to be the same or even lower for agricultural establishments. Loan waivers are therefore going to have minuscule impact, and benefit only those who are well-off enough to access the formal financial system.
    2. The government may, through some legislative jugglery, recapitalise banks and kick-start lending. Again, the gains are going to accrue mostly to the rich and the middle class. It is debatable as to how the unbanked and expropriated 40 percent would reap the benefits of any bank-led redistributive measure since 40 percent of the country is unbanked (Census 2011).

This is therefore, a unique expropriatory measure that expropriates from everyone in society to benefit those who suffer the least “inconvenience” from the expropriation (more on this later).
Discussing this step as an expropriatory measure brings to the fore legal protections and requirements that are concomitant with expropriation: what is the legal authority for taking away the
property of individuals? Is compensation due to those who have been expropriated and if yes, in what form? What due process is applicable to expropriatory measures taken by the Government? Coining this expropriation demonetisation is putting lipstick on a pig in its truest sense.

Problematic term: “Corruption”

Equally problematic is the way this expropriatory action has re-defined the “corrupt” and “corruption”. All preceding actions against corruption taken by the Indian State in the past have been against those who have either evaded taxes or earned money by committing illegal acts. The issue was that certain people either evaded taxes or did something they were not supposed to, and such people had to be identified and punished. The voluntary disclosure scheme followed this overarching principle by encouraging people who did not pay taxes to come forward. The same principle is at play in the issue over identifying people who have stashed their illegal money abroad, and in the identification and prosecution of officials violating the Prevention of Corruption Act.

This expropriatory measure has the potential to re-define how people think about the corrupt and corruption. For one, the focus is now on confiscating corrupt wealth and black money. Identifying the corrupt and identifying individual acts of corruption has taken a backstage. Expropriation itself has become a mode of punishment. It is being suggestively implied that society has a chance to start again with a clean slate if black money is wiped out. The complete failure of the state to act against corruption is being used as an excuse to infuse society with a new kind of morality.

Second, corruption has now become a crime without a perpetrator. Multiple people I have talked to situate themselves as victims of corruption. A landlord who has built an illegal flat does
not give his tenant a lease-deed and accepts payments only in cash told me he was proud the Prime Minister had taken this step on behalf of honest people like him. An auto-wallah who confessed to driving without a permit and did not agree to go by meter railed against the corrupt during the duration of my journey. An Uber-driver praised the expropriation repeatedly while he ferried me. Close to the end of the ride he nonchalantly told me he had to drive carefully since the police had impounded his license the previous day. While these anecdotes hardly constitute statistical evidence, they are indicative of the fact that people go to great lengths to justify their actions as moral and honest.

However, the logic goes, everyone else must be corrupt if corruption is endemic enough to justify this kind of measure. This discourse is elevating the widespread cynicism and hatred against politicians, bureaucrats, the police, big business, small business and the media. Everyone feels like a victim and everyone else is suspect. But no one is a perpetrator or an agent. Everyone wants to sock it to the rich and the corrupt though no one knows who they are. So it is acceptable to take some punches yourself if the corrupt suffer in the process. The Government is at once elevating the pitch for shared sacrifice while also (most probably and hopefully, unintentionally) exacerbating the conditions for social and institutional distrust. Issues of class envy and class conflict are already coming to the fore and may get further magnified in the future.

This, in turn, is likely to create a collective psyche where no individual or institution can be trusted. No one is deserving of empathy since their corruption might be the cause of your suffering. This is happening even though the Government is at pains to explain that this will be one among many previous and future steps against corruption. By re-framing corruption as a crime without an agent through this singular action, the Government has perhaps unwittingly created the conditions in which the nature of discourse regarding solving corruption in society changes permanently.

This is a simple expropriation at its core. The object and effect of this measure are predominantly expropriatory. The confiscation of black money is an incidental benefit by design. The rhetoric of sweeping up black money and the design of the expropriatory measure do not match up to each other.

Problematic terms: “Inconvenience”

It is inconvenient to have to switch to a mobile wallet and stand in an ATM queue for 2-3 hours once a week. Many people I have spoken to are ready to suffer this inconvenience if it helps achieve the stated objective of finishing off black money in the economy. When individuals who depend on their daily wage to feed themselves and their families are laid off, this cannot be called an inconvenience. The tribulations of agricultural workers and small entrepreneurs cannot be called an inconvenience if their enterprise fails due to the lack of liquid cash. Sectors of the economy that function largely in cash are suffering disproportionately compared to those with access to plastic money and mobile wallets. There is an attempt to normalise and standardise the way the effects of this expropriation are to be thought about by using this one word to describe the depth and diversity of suffering within the economy.

There is a breadth of literature on the impact of income shocks on those who are at the lower end of the poverty line. Income shocks push many just above the poverty line back into poverty. They also push many into debt, since their savings are not sufficient to sustain themselves. Small incidents like an unanticipated illness have an outsized impact on their long-term well-being and potential for growth. The current actions of the Government have administered just such an income shock on the poorest.

The Government should have taken much more aggressive measures to protect the worst affected economic classes in society, but calling this suffering an inconvenience allows it to paper over this failure. Had the Government instead defined the consequences of this measure as a “scarcity” of currency, corresponding actions may have been discussed, and some implemented. Government actions and popular discourse during times of scarcity are motivated by a desire to ensure everyone has adequate rations to sustain themselves.

Scarcity creates its own social dynamics. It creates new intermediaries in the market – when food is rationed, black marketeers emerge to supply food at above-market prices. After this expropriation, intermediaries are delivering white money for black for a commission. The war against corruption is creating new forms of corruption.

Mobile applications with horrifying names like “Book my chotu” are advertising hired help who can go stand in queues for those who can afford it. Most troublingly, scarcity changes relationships in society by creating new power dynamics. Hitherto bankers were service providers. Now they are agents of rationing. They have asymmetric power compared to those standing in the queues before them. It is a credit to them that they are still providing services under conditions of extreme difficulty. On the other hand, like any agent of rationing, they are now exposed to mob fury and mob violence. The customer has now become a beggar. His/her money is locked up in a bank. The psychological security gained from holding money that I alluded to earlier has vanished. Whereas earlier he or she could demand service, now they pray they get to exchange\withdraw money, and can suffer at the hands of a capricious banker.

Conclusion

Some have argued that even if the Government wanted to take this step, it could have been timed better. But what is a good time for extinguishing property rights? Any time is equally good and equally bad. Others have argued that the step has been implemented badly. But expropriatory actions are judged first and foremost by the validity of the expropriation itself. We have been too quick to assume the validity of this measure and debate its implementation. As long as the terms of the discourse are set by those who introduced the measure, we will also be confined to their predefined moral straitjacket of honesty versus corruption, sacrifice versus timidity and sincerity versus venality. Empathy will be a casualty.

The Government has framed this step against corruption as a moral question. Should we not ask a moral question of the Government: Is it ethical for any State to expropriate the predominant means of exchange from everyone in society, especially in a poor cash-dependent economy?

Ram temple to Ramayana museum: 

18 Oct

India has now witnessed a three decade long agenda of revivalist Hinduism centred around the city of Ayodhya.  The latest proposal to construct something in Ayodhya is however a bewildering move given how symbolic the agenda of constructing a Ram temple in Ayodhya is to the Hindu right wing of the country. 

As per the news report linked below, the Union Tourism Ministry has proposed the construction of a Ramayana museum in Ayodhya. Given the hyper masculine image this government likes to project, building a museum instead of a temple sounds strangely emasculating. On the other hand, as gimmicks go, it’s clever. The agenda to demolish a mosque and build a temple, and thereby using violence to effectuate one’s agenda  is far easier to critique than a supposedly pacifist proposal to build a museum. While opposition political parties have lambasted it as an election gimmick, they have not per se dismissed the idea of a Ramayana museum. 

Based on the positions opposition parties have taken in the past, such a statement is also unlikely to be made. The BJP knows and exploits the political ambivalence of other opposition parties to Hindu nationalist demands. In doing so, all opposition parties are shown up to be “soft” Hindutva champions, rather than espousing secularism. The BJP on the other hand repeatedly does, and in this case also, be able to signal it’s hyper masculinity to Hindutva bhakts and consolidate it’s core constituencies. 

In the long run, the story of aggressive majoritarian interference may turn out to be less due to the failure to ensure high growth and low corruption, than the failure of the current opposition to create a contemporary aspirational narrative grounded in economic development. 

http://google.com/newsstand/s/CBIwzqmXgTA

What does it mean to vote against misogynists? 

15 Oct

USA First Lady Michelle Obama absolutely excoriated Donald Trump in a speech the day before. Must watch for everyone. 

Freedom of movement and residence in India

24 Dec

I have a chapter in an upcoming publication — “The Oxford Handbook of the Indian Constitution” on the freedom of movement and residence in India.

 

 

The war on the war on higher education

15 Jul

Which government is worse for higher education in India? That has become an interesting point of debate on the Indian Express in the last few days. On July 8, an interview of Amartya Sen appeared in the paper (Link), where he explained the circumstances behind his recusal from being considered for the position of Chancellor of Nalanda University in February this year.  According to him, the ruling dispensation was completely convinced about his non-acceptability for the post. He went public with his recusal as he wanted to prevent a right-wing ideologue from being appointed as Chancellor (we have seen many instances of this occurring over the past year).

On July 12, Tavleen Singh responded with a typically angry column basically arguing that Dr. Sen’s opinions were extremely biased, and accused him of doing nothing while he was in a position of much greater influence during the UPA governments. Dr. Pratap Bhanu Mehta weighed in with a more nuanced response to Dr. Sen. His two primary arguments were:

  1. What happened to Dr. Sen with respect to Nalanda has been a recurring theme of higher education in India. Administrators, professors and chancellors at various levels have been continually harassed and their work interfered with by unfriendly dispensations. He states: “This history is important not to make the obvious point about hypocrisy. It is to make the analytical point that the fraught relationship between academia and politics far transcends particular governments. This is not a troubling truth that we can understand through easy recourse to one particular ideology or government. The ideological narrative of interference, rather than the larger political one, allows us to don the garb of victims fighting for a good cause much more easily, and academics love that self-image. It also prevents us from getting greater vertigo as we should if we were to really look over the abyss. But, more practically, it prevents us from asking why it is so difficult to build meaningful alliances for higher education.”
  2. Dr. Mehta argues that the complaints of many current ousted administrators, vice chancellors should be seen as the complaints of a privileged elite who benefited from earlier dispensations. Additionally, during their tenures in academic positions, they failed to build coalitions that would insulate higher education from political interference.

Today, Dr. Sen responds to Tavleen Singh and Dr. Mehta in another piece in the Express. His piece is essentially a defence of his earlier position.

Both Dr. Mehta and Dr. Sen however seem to agree on a few basic points:

1. We as a society have failed to insulate higher educational institutions from political interference.

2. This lack of insulation is a major cause of our rotting higher educational system.

3. While we produce many brilliant students in India, the average student is just not good enough.

Sharing post on how the Indian Constitution and PSUs conflict

16 Mar

I have a post on Prof. Ajay Shah’s blog discussing how the constitution prevents PSUs from taking pure commercial decisions from their very inception: Click Here.

Treasure Hunting

22 Nov

I have a recent piece in the Indian Express on the misplaced prioritisation on bringing back black money. The op-ed can be found here.  The piece is reproduced below.

————————————————–

Suppose you are the government of a country badly in need of gold, but with only Rs 100 with which to get some.

You have two options on how to spend the money you have at your disposal for this purpose: Option one, try and tap the vast and readily available gold deposits in your country or option two, send your generals out to wage war against a neighbouring country rumoured to have large quantities of gold in circulation already. The first option would require the government to build durable capacity to extract the gold. It would require skill-building and long-term investments with the expectation of long-term gains. In short, there would be few short-term political gains.

The second would require sending some of your most able generals out to war. You know the war is going to be long and costly. You are unsure of how much gold you will get even after you win the war, but rumours suggest a possibility of acquiring vast quantities that would instantly make your country rich. Also, war-mongering has its benefits: It riles up people and unites them behind a common enemy. A chance of winning the war would ensure immediate and long-term political success. And you would not need to do the hard work of building state capacity at home. It sounds like a better bet, except that the probability of a win is unknown.

In the choice between spending Rs 100 on either building a more capable and effective tax administration or waging war against black money, we seem to have opted almost exclusively for option two. In doing so, we are sacrificing the historic need and opportunity to reform tax administration within India. Consider the facts: We rank 158th globally with regard to ease of paying taxes. Our tax-GDP ratio is hovering around 5.5 per cent, among the lowest in the world, and has not kept pace with recent growth rates. This points to a lack of investment in state capacity commensurate with a rapidly growing and changing economy. Less than 5 per cent of our population pays progressive income tax, while everyone pays the more inegalitarian indirect taxes every time they consume. This also points to low state capacity, especially since indirect taxes are relatively easier to collect. Consequently, much of our population does not feel the direct burden of taxation. In the long term, this dilutes the level of accountability demanded from the state. The power to demand greater oversight of government expenditure is critical in any democracy.

The world over, developed democracies keep making continuous but major reforms to tax administration. Countries such as the UK, US, Germany, Australia and Sweden have made important changes to their tax administration systems in the areas of taxpayer registration, processing customer information, information collection about taxable transactions, and investment in research. In India, the Tax Administration Reform Commission has already made a number of important recommendations to systematically reform the tax administrative machinery in line with global best practices. Among other suggestions, it recommends the establishment of an independent evaluation office to continuously review tax administration and suggest areas of reform. The TARC has put forward a review of global best practices in each area of tax administration which, if implemented, would substantially improve the collection and administration of taxes.

The implementation of these and other related reforms are urgently required, and they are a long-term investment for the benefit of the country. While it is important to catch tax evaders who have stashed money abroad, it is perhaps more important to collect taxes from somewhat more than 5 per cent of the resident population. A country with low state capacity such as ours cannot afford to focus equally on both goals. A prioritisation has to be made and, so far, in public discourse, we seem to have opted for an option that holds the illusory promise of windfall gain rather than building durable state institutions.

The writer is with NIPFP, Delhi, and ‘The Indian Express

When Sex is not Rape

9 Dec

In October this year, an additional sessions judge in Delhi pronounced a controversial judgment in a rape case involving sexual intercourse between a man and a woman after they informally performed certain marriage-related ceremonies without getting legally married. This post reflects upon the judgment and highlights certain ironies that flow out from the ideology behind this judgment as well as the Indian law that allows marital rape.

In this case, the accused man had applied vermillion over the 24-year-old woman’s forehead and declared themselves as married, after which she consented to sexual intercourse with him. They also went to Jammu for court marriage but the marriage had not been solemnized yet. The judge held that she was a mature woman who should have known that mere performance of certain ceremonies does not suffice to constitute a valid marriage. He also expressed his disturbance at the trend of complaint of rape on false assurance of marriage by girls who consensually engage in sexual intercourse after the performance of some marriage-related ceremonies. The judge remarked that these are mature women who voluntarily elope with their lovers for bodily pleasure and fabricate the story of kidnap and rape to escape harsh treatment from their parents. It is difficult to believe that such women, even if they may belong to rural areas, do not understand what constitutes a valid marriage and are misled by performance of some rites and ceremonies by men. Such complaints trivialize the offence of rape. He also remarked that “girls are morally and socially bound not to indulge in sexual intercourse before a proper marriage and if they do so, it would be to their peril and they cannot be heard to cry later on that it was rape.”

While many have criticized this judgment, comments posted below the online news report show that the judgment has also been hailed as correct by many people.

Both the Indian Supreme Court (see Deepak Gulati v. State of Haryana, 20 May 2013) and the Delhi High Court (see Abhishek Jain v. State,7 June 2013) have held that sexual intercourse on false promise of marriage amounts to rape. This case involves not merely a promise to marry, but overt acts clearly indicating the intention of the man to marry the woman. It of course needs to be established that the woman’s consent was obtained on the false promise of marriage and there were no subsequent events as a result of which the marriage did not take place, although the intention to marry was present. The judge and the comments that accuse the woman of misusing the law need to worry about the meaning of free consent. This is not a case where a woman forced a man to marry her after she realized the moral consequences of having sexual intercourse without marriage, and then filed a complaint of rape when he refused marriage. If this was such a case, then why did the man perform the drama of putting vermillion and going to court for court marriage? After declaring them as married, why did he later refuse to accept the woman as his wife? Even though performance of some ceremonies does not constitute a legal marriage, such conduct does indicate expression of intention to marry. And if this promise of marriage was falsely made with the sole intention of having sexual intercourse, the conduct does amount to rape as per Indian law.

This judgment reflects the attitude of a society that blames women for rape, even where the man knowingly commits fraud. The judgment also reflects the tendency to understand rape only as ‘stranger rape’, where an unknown man forcefully assaults a woman who tried to physically resist him but was overcome. A number of reports indicate that most rapes are committed by known men. There is a need to understand the notions of passive submission and wrongfully obtained (even if not physically forcefully obtained) consent.

There are two further ironies that flow from this judgment.

First, the judgment recognises the agency of women where it was missing, but undermines agency where it should have been recognized. Recent developments in feminism have asked for the recognition of agency or autonomy of women and have argued against treating women as passive victims of male domination. In this judgment, by claiming that the woman is mature enough to understand the meaning of marriage the judge recognises the agency of a woman and refrains from treating her as a helpless victim of male domination. At the same time, the judgment preaches women not to have sex before marriage, thus denying them sexual autonomy. Thus, the judgment seems to be giving agency to women for the purpose of depriving a legally available benefit, but not actually providing liberty or any benefit. This is not how the agency discourse should work—viewing agency where there was probably none or very limited, and denying it where it is required to enhance individual liberty.

Second, the judgment, coupled with the Indian law that continues to condone marital rape, leaves women in an awkward position legally. In this case, the woman filed a rape complaint after the man refused to recognize her as his wife. Thus, where sexual intercourse takes place after performance of some informal ceremonies, the judge put the blame on the woman, holding her responsible for her actions, stating that she should know what a valid marriage is, and admonishing her for making false allegations of rape against the man. However, in case a woman is able to prove that the man did in fact marry her by performing these ceremonies, the man then becomes legally absolved from all allegations of rape, since marital rape is not considered a crime. This makes the promise or actual performance of marriage irrelevant, leaving the woman in both cases without any remedy.

In times where we are trying to establish the law on conduct such as sexual harassment and provide legal space to nuanced concepts like ‘a hostile work environment’, it is deplorable that we haven’t even got the basics of a patently grave crime like rape right.

Introducing the Indian Public Administration Lexicon or “iPal”*

31 Oct

iPal is an attempt to make comprehensible certain words that sound familiar, but mean something entirely different when used in Indian governance and politics.

1. Aam Aadmi: Rich people who dress badly.

2. Public interest: a) Interest of Aam aadmi.

b) source of power to override law, constitution, logic, reason, everything.

3. Subsidy: Screw you poor aadmi. Yours sincerely, Aam aadmi.

4. Taxpayer money: Kalpavriksha (mythological, wish-fulfilling divine tree said to fulfill all desires). Also, free lunch.

5. Neo-liberals: Jerks who inconvenience us with facts.

6. Public goods: Stuff the government wants to do with your money. Includes running hotels, making bread etc.

7. Free market fundamentalist: Anyone who wants the government to get out of the business of running hotels or making bread.

8. Pro-Poor: Anti-growth

9. Pro-growth: Crony capitalism

10. Rule of law: Nobody’s business.

11. Sustainable growth: slow growth

12. Due-Process: See, “The Trial” by Kafka.

13. Economic justice/Inclusion: Socialism.

14. Freedom: It’s nice, till you exercise it.

15. Right to free speech: Right to say nice things.

16. Judiciary: Legislation without representation.

17. PIL: Your interest, my litigation.

18. Justice: Often delivered without reference to law.

19. Clearance: Roadblock with a welcome sign.

20. Parliament: World’s most efficient law-making body. Has passed 8 bills in 17 minutes.

21. IAS: Individuals anointed as saviours.

22. Competent authority:  ??         (See definition of ‘due process’)

23. Evidence-based policymaking: “My 20 years of experience says…”

24. Lal Bahadur Shastri Academy for IAS probationers: Hogwarts.

*By Anirudh Burman and Suyash Rai.

Not so NEET

14 Aug

This is a guest post by Jeet H. Shroff. Jeet has completed his Masters’ in law from Harvard Law. 

The recent decision of the Supreme Court striking down, by a majority of 2:1, the common medical entrance examination conducted by the Medical Council of India (MCI) raises important questions on the now-obvious contradiction between the Court’s stated pro-merit, pro-poor pitch and its steadily growing record for handing down pro-rich, status quoist decisions on critical issues. For long, legal observers in India and around the world have feted the visibly activist tilt of India’s highest court. Whether in matters of environmental law, socio-economic rights or political reforms, Supreme Court decisions have usually preceded and often catalyzed changes in legislative policies. Yet, a growing line of decisions in the past decade or so, have bolstered claims by those who see the Supreme Court as being activist only in speech while being status quoist in practice. Its most recent decision, striking down the single-window National Eligibility Entrance Test (NEET), which would have provided relief to millions of poor and meritorious medical students across the country, calls into serious question its progressive reputation.

The MCI-administered NEET was intended to provide medical students across the country a one-stop shop to appear for medical entrance examinations as well as to serve as a common admission standard to both government and private medical colleges. By striking down the NEET however, the decision restores the older system of separate medical examinations and separate admissions processes for different state and central medical institutions. More egregiously, it maintains the status quo on admissions by private and deemed medical colleges, which may not only conduct their own independent examinations but may also continue to profiteer from the scarcity of quality medical institutions by charging massively inflated capitation fees for admitting less meritorious students. Ruling that the MCI’s mandate to ensure ‘excellence of medical education’ in India extended only to the laying down of standards but not to actually conducting examinations, the majority found the NEET to be beyond the powers of the MCI as well as an unconstitutional interference with the right of private educational institutions to function autonomously. Yet, despite the majority’s strenuous reliance on the statutory text, the decision appears to be a classic case of form over substance. After all, many of the Supreme Court’s most well regarded decisions have been a result of creative statutory interpretations calculated to achieve just results. Given this past record, the majority’s literal and restrictive reading of MCI’s charter is not so much an indication of judicial discipline or helplessness as it is of judicial preference.

Troublingly, the NEET decision is one amongst a growing number of decisions, which point to a dichotomy in judicial speech and action. For instance, despite its pro-environment assertions, the Supreme Court preferred to allow the development of Mumbai’s mill lands as against leaving them as open spaces for the common enjoyment of all. Similarly, despite requiring elected representatives to make asset disclosures, the Supreme Court contested a similar demand in respect of itself and eventually gave in only after concerted political and public pressure. In the realm of socio-economic rights too, while the Supreme Court has been a trail-blazer in declaring the existence of un-enumerated rights to food, housing, employment and education, it has done little to enforce its declarations on a case to case basis. In the context of the NEET, this trend continues. Despite numerous Supreme Court decisions declaring education to be a strictly non-profit activity, the NEET decision fails to check the growing corruption and profiteering that are now commonplace in private and deemed institutions. Even as lakhs of medical students steel themselves for another round of frustrating examinations and admissions, hints in the dissenting opinion of inadequate judicial deliberations and undue haste could provide a narrow ground for a review of the decision. But whether or not the decision is formally reconsidered by the Court itself, its wider ramifications on medical education in India merit a comprehensive legislative response.

Mumbai Dance Bar Ban: Differing Perspectives

30 Jul

In 2005, the Government of Maharashtra banned dance performances in eating houses, permit rooms and beer bars through an amendment in the Bombay Police Act, 1951. The ban was recently struck down both by the High Court of Bombay and the Supreme Court of India as unconstitutional.

The High Court and the Supreme Court held the ban to be violative of Article 14 (right to equality) and Article 19(1)(g) (right to practice any profession or occupation). The courts observed that the amendment unreasonably prohibited dance performances in some establishments while permitting them in other establishments like hotels starred three and above. This classification seems to be based on elitist presumptions about the morality of people with lesser incomes and was held to be violating the right to equality. The courts also noted that the prohibition on dancing forced many establishments to shut down and rendered many women workers unemployed. Contrary to its purpose, the law forced many dancers to take up prostitution to earn their living. Thus, the law infringed upon the guarantee under Article 19(1)(g). Now, the state of Maharashtra is likely to revert to the licensing system for regulation of dance bars.

Below, I try to put the debate around prohibiting/regulating dance bars within the framework of various broader perspectives, not necessarily drawn from the judgments, which might help in a better analysis of this debate. My purpose is not to give a definite answer on this issue, but to separate and present the differing strands that get implicated here. Here are the different arguments:

Morality: Dances in beer bars and similar places are obscene and vulgar. They not only degrade women, but also lead to an increase in other immoral activities like prostitution and alcoholism. It can be said this argument belongs to the ‘Conservatives’, though I am wary of using this classification as our prejudices against being a ‘conservative’ may prevent us from fairly appreciating the merits of the argument.

Equality: Performances in dance bars are derogatory to women because they commodity and objectify women. They also often involve minor girls who are trafficked, exploited and forced into dancing in bars. This view is likely to be advocated most strongly by radical feminists who find the root of sex inequality in sexual exploitation of women and argue also against prostitution and pornography on these grounds. They deny that women choose these occupations with their ‘free consent’. This argument opposes bar dancing as being degrading to women not for reasons of protection of public morality, but due to concern for equality of women.

Practical offshoots: Allowing dance bars to flourish may enhance the occurrence of other undesirable activities or hinder implementation of other laws. For example, dance bars are seen as hubs of prostitution and human trafficking. They increase the vulnerability of minor girls and women to sexual exploitation. They may also lead to increased alcohol addiction and related crimes. These practical concerns call for regulation or banning of dance bars.

Right to work and livelihood: All persons have the right to work which includes women’s right to dance in bars. Banning bar dancing not only took away a form of employment, but also forced many bar dancers to take up prostitution to sustain themselves and their families. The ban also forced many establishments to shut down altogether, affecting the livelihood of other workers employed there.

Autonomy: Autonomy feminists seek respect for the agency or choice of women in entering professions such as bar dance, sex work or pornography. They reject the view that women do not take up these activities with their free consent. It is paternalistic to label what is the free choice of a woman as force or exploitation.

Free expression: Dance is a form of expression and prohibition on dance performances in certain establishments is an excessive restriction on the freedom of speech and expression of bar dancers.

Elitism: Selective ban on dances of certain types or in establishments most frequented by people belonging to certain classes or having lesser incomes is based on elitist assumptions about their morality. It is assumed that similar dance performances in establishments like five star hotels do not lead to illegal or immoral activities. It may also imply greater respect for the autonomy of women dancers of a particular class while viewing other women dancers as victims of exploitation. Such bans may stem from beliefs regarding the need to regulate the conduct of certain classes of people. Based on the position on the wider debate on bar dance, this argument may advocate either across-the-board increase or across-the-board decrease in the regulation of dance bars.

This is not an exhaustive set of views on the issue of bar dancing, but I have tried to cover a wide ground. I hope this puts the debate in a wider perspective and helps us avoid conflating the different arguments when responding to the debate.

Key Principles of Right To Public Service Delivery Legislations

3 Jul

In my last post titled  “Time-bound delivery of Public Services now a reality?!“, I lamented on the need and the importance of the right to public service delivery legislation. In this post I shall be discussing some of the main principles of the acts. While, all the acts differ, the essence of their rules remain the same – providing the public with time bound delivery of specific services of particular departments as mentioned in the rules and notifications which are made after the bill has been passed. This bill penalizes the service provider for failing in his duty according to the rules made with the aim of achieving efficient and effective delivery of the public service to the citizens at large.

Key Principle of the Legislations:

1.      Departments and Services Covered

The number of departments to be covered under this act along with services provided by them is released through notifications. These notifications are revised from time to time and the list is updated accordingly. The list includes some of the services including issuing ration cards, water connections, death certificates, driving licences, electricity connections, mark sheets, attestations and so on. The departments covered include Human Resource Development, Revenue Department, Department of Police, Transport Department, Labour Department and General Administration Department. The services offered are dependent on a number of factors including the demand from the citizens, willingness of the departments or even their current efficiency.

2.      Time Period

The time period is stipulated according to each service offered and differs from state to state. This depends on varied reasons like the simplicity of the service provided, the volume of the applications etc. The time period is measured from the time that an application is submitted to the officer-in-charge (designated officer) or an official responsible/authorized on the officer’s behalf and acknowledged through a receipt. In case the application is rejected, written reasons are to be recorded by the officer and the citizen is to be intimated. For instance, in Jammu and Kashmir, the inclusion of a new born child’s name is to take a maximum of 7 days after the submission of the birth certification. In Rajasthan, the health department is to issue the amount due to the woman under the Janani Shishu Suraksha Yojana (JSSY) immediately after delivery. In Punjab, the Housing and Urban Development Department is stipulated to sanction Building Plans/Revised Building Plans of a residential place within 30 days and of a commercial space within 60 days.

3.      Nodal Departments

The nodal departments are those which are assigned by each government to be incharge of implementing the Right to Public Service Legislation. The nodal departments differ in each state. Some of them include General Administration Department, Administrative Reforms Department, Department of Home, Department of Information Technology or even the Department of Revenue.

4.      Appeals

Every state legislation on public service delivery has its own rules on the number of appeals available to its citizens under the right to services legislation. For instance, in Madhya Pradesh if the application is rejected by the officer-in-charge, the applicant can file an appeal with the First Appellant Officer (FAO) within 30 days of the date of rejection or on expiry of the prescribed time limit. If the FAO rejects the application again, the applicant can appeal for the second time to the Second Appellant Authority (SAT) within 60 days of rejection by the FAO. Similarly, Bihar, UP and Rajasthan also give the applicants an option of two sets of appeal.  On the other hand, the legislation also gives an option to an aggrieved designated officer as well as the FAO to file for a revision before the nominated officer. While, J&K also has an option of two sets of appeal although an aggrieved officer may file a revision before a special tribunal to be set up. Punjab and Uttarakhand provide for three rounds of appeal with the third and final round of appeal to be addressed to the special commission set up under this act.

5.      Penalty

Every government officer who fails to provide the service within the stipulated time period is liable to a certain amount of penalty.  In most of the states (MP, UK, Delhi, J&K, Bihar, Rajasthan, Punjab, Jharkhand, Kerala and Orissa) the penalty is of Rs. 250 per day with the total amount not exceeding Rs. 5000. In Delhi, the penalty is of Rs. 10 per day not exceeding Rs. 200 while in Karnataka it is Rs. 20 per day not exceeding Rs. 500. In Himachal, the penalty can range anywhere between Rs. 1000 to Rs. 5000.

State

Number of Services

Number of departments covered

Penalty for not providing service

Nodal Department

Madhya Pradesh

52

16

Rs. 250 per day, max Rs. 5000

Department of Public Service Management

Uttar Pradesh

13

4

Rs. 250 per day, max Rs. 5000

Department of Revenue

Delhi

96

22

Rs 10 per day, max Rs. 200

Department of Information Technology

Jammu and Kashmir

45

6

Rs. 250 per day, max Rs. 5000

General Administration Department

Bihar

50

10

Rs. 250 per day, max Rs. 5000

General Administration Department

Rajasthan

108

15

Rs. 250 per day, max Rs. 5000

Administrative Reforms Department

Uttarakhand

63

10

Rs. 250 per day, max Rs. 5000

General Administration Department

Himachal Pradesh

 

12

Min Rs. 1000, max Rs. 5000

Department of Home

Punjab

69

11

Rs. 250 per day, max Rs. 5000

Department of Governance Reforms

Jharkhand

54

20

Rs. 250 per day, max Rs. 5000

 

Chattisgarh

139

20

Rs. 100 per day, max Rs. 1000

 

Assam

55

14

Rs. 50 per day, max Rs. 2000

Administrative Reforms and Training Department

Karnataka

334

45

Rs. 20 per day, max Rs. 500

Department of Personal and Administrative Reforms

Kerala

   

Rs. 250 per day, max Rs. 5000

Personal and Administrative Reforms Department

Orissa

56

10

Rs. 250 per day, max Rs. 5000

General Administrations Department

Gujarat

       

Goa

   

Rs 50 per day or Rs. 2500 whichever is less

 

* Information on the services and departments to come under the act is published as notifications. The gaps in the table above are due to lack of sufficient information. They will be updated as and when the information can be accessed. As for Goa and Gujarat both the bills are new and hence the implementation is still in the planning stage.

In my final blog post I will be analysing the working of some of these acts. Some of the questions that arise and that I will be looking into will be relating –

  1. Is penalizing officers the best way of achieving efficiency in delivering public services?
  2. Do these acts simplify the procedures for an applicant? Is there still scope for corruption within these acts?
  3. The success, if any, of the acts in providing better services to the public.

 

Time-bound delivery of Public Services now a reality?!

21 Jun

Tired of paying repeated bribes for common public services?  Tired of running around in circles to collect government documents? Tired of waiting forever for your file to move? The Right to Public Services Legislation could be the one stop solution for all your woes!

My experiences with government services haven’t been the most pleasant ones. There have been many instances where I’ve heard people complaining about public service delivery mechanisms but I never understood the extent of their misery till I had to face it myself. For instance, the number of bribes I had to pay to get a simple passport made in addition to the extra bucks for tatkal for a speedy delivery was not only taxing financially but also mentally tiring.

1. Bribe number one was to the police to verify my identity,

2. Bribe number two was for the scribe who pushed me ahead in line so that I get my turn faster (I did not belong to the city where the closest passport office was located) and

3. Bribe number three for a special agent as my first application had been denied as they did not believe in the authenticity of my birth certificate because my name was written on the top corner with a pen (was marked during school admission to keep it safe).

This is just one such example. This got me thinking about how it has become a part of our life now. As long as we can pay and get the work done, we go ahead with it. There are people who are harassed because they do not have the means to pay a bribe. Filing a complaint with the courts or the lokayukta for every little bribe that has been asked for or paid till date is not only arduous but also time consuming.

Trying to emphasize on the nature of the issue at hand, Janaagraha, a not for profit institution based in Bangalore came up with a website called IPAIDABRIBE.COM. The website has reports from regular people relating to bribes they have paid, accounts of their tryst with honest policemen and stories from people who fought against it. According to data collected by the website, 23110 reports has been filed from 548 cities in India where people have paid a cumulative bribe of around 186 crores as of 19 June 2013. These are people who 1.) have access to internet, 2.) know about the website and 3.) have taken time out to file a report. Imagine the extent of the unaccounted bribes paid across the country just to get the public services sector to do its job.

India has witnessed an encouraging momentum of people who united against the cause of corruption led by Anna Hazare. While this moment emphasized on an overarching regulating body like the Lokpal in the centre and Lokayuktas in the states, there are other legislations which bring about change which is felt closer home. The crusade on improving public service delivery mechanisms was started in 1997, where in a conference of Chief Ministers of various states and union territories presided by the then Prime Minister, it was decided that both the central and state governments would formulate a citizen’s charter. In 2002, the Government of India under the aegis of Department of Administrative Reforms and Public Grievances set up a comprehensive website. While, this move was good in principle its implementation faced setbacks in terms of lack of will from the lethargic bureaucracy, lack of awareness, constant transfers of concerned officers as well as wrongful understanding of standards or norms relating to the service provided. In 2005, the momentous Right to Information act was passed with the aim to make Indian governance more transparent.

Indian states have come a long way from the non-binding citizen charter to introducing legally binding legislations that guarantee its citizens time bound delivery of select public services. Madhya Pradesh in 2010 under chief minister Shivraj Singh Chouhan was the first state to enact the Madhya Pradesh Lok Sewaon Ke Pradan Ki Guarantee Adhiniyam. The Right to Public services legislation has since been adopted by 16 other states. The bill texts can be found in the table below.

Public Services Legislations in India

 

Title of the Bill Date of passing
The Madhya Pradesh Lok Sewaon Ke Pradan Ki Guarantee  Adhiniyam, 2010 August 18, 2010
The Uttar Pradesh Janhit Guarantee Adhyadesh, 2011 January 13, 2011
The Delhi (Right of Citizen to Time Bound Delivery of Services) Act, 2011 April 28, 2011
The Jammu and Kashmir Public Services Guarantee Act, 2011 April 13, 2011
The Bihar Right to Public Services Act, 2011 August 15, 2011
The Rajasthan Guaranteed Delivery of Public Services Act, 2011 September 21, 2011
The Uttarakhand Right to Service Act, 2011 October 4, 2011
The Himachal Pradesh Public Services Guarantee Act, 2011 October 17, 2011
The Punjab Right to Service Act, 2011 October 20, 2011
The Jharkhand Right to Service Act, 2011 November 15, 2011
The Chattisgarh Lok Seva Guarantee Act, 2011 December 12, 2011
The Assam Right to Public Services Act, 2012 March 29, 2012
The Karnataka (Right Of Citizens to Time Bound Delivery Of Services) Bill, 2011 April 2, 2012
The Kerala Right to Service Bill, 2012 July 27, 2012
The Odisha Right to Public Services Act, 2012 September 6, 2012
The Gujarat (Right of Citizens to Public Services) Bill, 2013* April 1, 2013
The Goa (Right of Citizens to Time-Bound. Delivery of Public Services) Bill, 2013 May 2, 2013

* bill text is not available

The Government of India has also come up with the Right of Citizens for Time Bound Delivery of Goods and Services and Redressal of their Grievances Bill, 2011. The bill was introduced in the Lok Sabha on December 20, 2011 and was sent to the Standing Committee which submitted its report on August 28, 2011.

While, the implementation of these acts as well as its impact is yet to be analysed thoroughly, it’s a step in the right direction. Awareness relating to these acts is low among the local populace. Steps need to be taken to promote the use of these acts just as it was done for the Right to Information Act. In my next blog post, I will be discussing the main principles of these acts and examine its implementation in select states.

Tumblr for our blog

30 May

Dear all, please note we have also created a tumblr page for our blog, and will be sharing posts there simultaneously as well. The tumblr page can be accessed at: polityinindia.tumblr.com. 

W.e.f this week, this blog has become a collaborative effort between 8-9 young professionals working broadly in the law and public policy sector. The names of the contributors are visible on the right hand side. We hope to put up quality posts 4-5 times a week, and hope to engage you meaningfully. Please do let us know if you have any comments/suggestions. 

 

– polityinindia

Why have pre-legislative scrutiny for Acts of Parliament?

28 May

This post is part-comment, part-response to Nick Robinson’s post on the Law and Other Things Blog (please do check the blog out!) regarding the NAC’s proposal for having pre-legislative scrutiny of Bills to be passed by Parliament. The National Advisory Council came out with “Draft Recommendations on Pre Legislative Process” for both draft rules, and draft laws or Bills. As a response to Nick’s post, I restrict my focus to the latter i.e. the need for pre-legislative scrutiny of Bills, or draft laws.

The pre-legislative proposal essentially mandates 3 things:

(a) Any public authority/government department has to publish a Statement of Essential Objectives and Principles, on the basis of which it will draft legislation.

(b) After the Statement has been in the public domain for 45 days, the public authority shall draft the legislation and keep it in public domain for 90 days and proactively share with the public.

(c) The public authority will then hold consultations and give comments on the feedback received, before the Bill is finalized and presented to Parliament.

(For those who do not know, most laws are first drafted by the concerned government department, and then discussed, debated and passed in Parliament)

Nick’s main critique of this process is the following:

“…Rules are created by out-of-touch administrators who never have to run for office. Legislation is passed and debated by Parliament – theoretically the central citadel in the Indian democratic system. Not only is Parliament the empowered representatives of the people, but while considering legislation Parliament often solicits outside comment through standing committees.
Should this not be enough? Doesn’t this provide legislation with adequate legitimacy? Shouldn’t Parliament be in charge of demanding proper justification and reason-giving for legislation? Indeed, does draft legislation even have to be based on sound reasoning? After all, legislation – unlike rulemaking – is often the product of compromise between different political factions. A vote is enough. No reasons necessary….”
As Nick says, there is merit to the argument for the NAC’s proposal to democratize the law-making process further since (a) laws are framed by unaccountable bureaucrats, (b) major changes are difficult to make once Bills have been introduced in Parliament, and (c) Parliament has been spending very little time on actual deliberation of legislation.
I believe that Nick is correct when he says that the NAC proposals are essentially a parallel process mirroring the process followed by Parliamentary Standing Committees, and that strengthening the Committee system might be a better idea. It is however, also important to note that there is no legal/ethical bar on pre-legislative scrutiny. The government is free to follow any process it wants in the drafting of legislation. However, a more participatory process may in most cases be better than a less participatory one. The important thing I believe, is to get the participatory process correct. Getting this process right would help prevent the process from getting dominated by civil-society and corporate elites.
On the other hand, it is also important to note that while as a matter of practise, most Bills passed are drafted and introduced by the Government, individual MPs are also free to introduce private-member Bills. Though private member Bills are rarely enacted in to law, individual MPs drafting such laws are also free to pursue any process for drafting their Bill, as per their convenience. They may follow a process more participatory than that of a Government Bill, or merely introduce their personally drafted Bill without any consultation whatsoever. As a matter of principle, this supports Nick’s theoretical position that the law making process does not require pre-legislative scrutiny.
Nick also discusses the importance of getting “…more parliamentary involvement at this earlier drafting stage. MPs (from all parties) could play an important role in giving feedback in drafting…” I would just like to state that a number of Ministries, if not all, have Parliamentary Consultative Committees, with the Minister as Chairman. These Consultative Committees discuss a number of issues regarding the day to day functioning of the Ministry. They do not currently, have any clear-cut role regarding draft legislation. A start could perhaps be made by institutionalizing pre-legislative scrutiny by these parliamentary Consultative Committees.
I believe that creating pre-legislative scrutiny as a process is more a statement of principle as a commitment towards greater democratization. It fits less well within the conventional understanding of the law-making process. However, there are a number of factors which in fact militate towards greater participation through these mechanisms: (a) Patrick French points out the increasing trend towards “hereditary” politics, (b) the erosion of Parliamentary incentives for deliberating legislation, (c) the ease with which Ministries can disregard recommendations of Standing Committees (see Action Taken Reports w.r.t. the higher education Bills), etc.
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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

Back to blog!

25 May

Dear All! Welcome back. I have been away from the blog for a while, but have decided to renew blogging actively again. I hope to give you interesting stuff to read once or twice every week, and engage you in some sort of debate on the stuff I write. So please let me know if there are any suggestions regarding subjects/topics you would like me to write on, and I will try my best to come up with something informative and engaging. Cheers!!

My article in Seminar Magazine on Parliamentary obstruction

24 May

Following is the article I wrote for Seminar Magazine (May 2013 issue) as a response to a piece on obstructions in Parliament: 

Communication

 

AN article in the February 2013 issue of Seminar titled ‘The Real Price of Parliamentary Obstruction’ by Tarunabh Khaitan highlights the issue of recent obstructionism in Parliament and elaborates on its attendant consequences. The piece highlights the fact that crucial parliamentary plenary time has been lost, and important legislation not passed due to obstructionism by (sometimes small) groups of opposition parliamentarians. It states that as a consequence of such obstructionism, the majority rule for passing legislation in Parliament has been translated to a de facto unanimity rule. A further consequence of such a unanimity rule and the consequent legislative paralysis, according to the article, has been the progressive ‘muscularization’ of the executive and the judiciary at the cost of the legislature.

This article attempts to contest three themes within this narrative. First, while some legislation has been held hostage to obstructions, obstructionism has not led to complete legislative paralysis. Such paralysis extends mainly to big-ticket legislation. Second, that the prioritization of local issues over legislative business by individual members of Parliament is in itself unhealthy, and worsens the pre-existing logjam (caused by legislative paralysis) in Parliament. Third, the ‘muscularization’ of the executive is at least as important a cause of parliamentary obstructionism as it is a consequence. A reconsideration of the issue of parliamentary obstruction on these lines may be crucial to design incentives for better usage of Parliament’s time.

In the winter session of 2012, the government introduced seven bills in the Lok Sabha. All seven were passed. In the monsoon session of 2013, this ratio dropped down to seven introduced, and two passed. However, in all other sessions of the 15th Lok Sabha, the Lok Sabha passed at least 50% of the number of bills the government introduced. In fact, the government has introduced 176 bills in the 15th Lok Sabha, while the Lok Sabha has passed 146 bills over the same period.1 While these numbers do not take into account the large number of bills still left pending, they do not indicate a state of paralysis either. Indeed, as Khaitan points out, the government has been more than willing to pass legislation, disregarding obstruction even as senior ministers have expressed grief over the passage of legislation in such a manner.

What is interesting is that while the government introduced seven bills in the 2012 winter session, it had listed 26 bills in all for consideration and passing.2 What does seem to be paralyzed, therefore, is the ability of the government to push through the legislation it wants passed. Legislation on goods and services tax, women’s reservation, companies law, direct tax, land acquisition and relief and rehabilitation, and higher education are still pending in Parliament. It may make interesting reading to see the total number of bills that have actually come up for discussion, and have been obstructed. In other words, the spectre of obstructionism causing ‘plenary bottleneck’, does not arise if legislation is not even debated during Parliament’s plenary time.

Various reasons other than obstructive logjam could be responsible for this state of affairs. The inability to form consensus, especially with coalition partners, may be one such reason. Ineptness in dealing with opposition demands may be another reason. The winter session of 2010 is one such example,3 where almost the entire session was wasted in protests over the government’s reluctance to form a JPC to look into the irregularities in 2G-spectrum allocation.4 One may characterize the loss of an entire session to obstruction as legislative paralysis. However, both the ruling coalition and the opposition should be considered as responsible for such paralysis. Lastly, legislative logjam could also simply be the result of not putting up legislation for a vote on the floor of either House due to apprehension about the passage of the bill. In other words, it may be more convenient to blame obstructionism if the ruling coalition is unsure of its ability to ensure passage of a bill.

Obstruction in Parliament can generally be said to occur for one of two reasons – opposition to government business to be conducted in Parliament, or the raising of local or non-legislative issues. The former is usually led by, or at the behest of party leaders, given the predominant strength of political parties and party leaders in our democracy. The latter, the raising of local issues, or other non-legislative issues and grievances is an important representative function that present parliamentary practice completely undermines.

In the First Lok Sabha, 489 elected members of the Lok Sabha5 represented an electorate of approximately 173 million.6 In the 15th Lok Sabha the same number of elected members represent an electorate of 700 million. At the same time, Lok Sabha met for an average of 127 days in the 1950s and Rajya Sabha for 93 days. This has decreased to 73 days for both Houses in 2011.7 Therefore, while the burden of representation on legislators during Parliament’s plenary time has increased nearly four-fold, the available plenary time to do so has decreased by a quarter.

The ‘plenary bottleneck’ therefore, is first and foremost a function of the inadequate time for a legislator to represent his/her constituency. While passing legislation is an important function for a legislator, oversight and representation are equally important. Present parliamentary practice and incentive structures create a bottleneck with respect to not just legislation, but also to representationper se. Obstruction in some cases at least, then becomes a perverse method of representing local issues, a symptom of the institutional weakness of Parliament in allowing legislators to represent their constituencies, and not just a publicity stunt.

Evidence indicates that the growing strength of the executive is as important a cause, as a consequence for obstructionism and paralysis. Since the early 1990s, the number of centrally sponsored schemes (CSS) has grown significantly (147 presently8 ), providing for direct transfer from the central government to the states. Parliamentary oversight over CSS during plenary time is limited to discussions on the budget. Data shows that an overwhelming majority of demands for grants by various ministries get guillotined, i.e. never get discussed (79% of demands for grants in 2009-109). Therefore, a large amount of government resources are being spent on CSS with no role for legislators for effective accountability or oversight during Parliament’s plenary time.

Further, the government has established a pension fund regulator, and started the largest programme in the world for capturing biometric information through the UIDAI without legislative mandate. The only significant social welfare scheme to get Parliament’s mandate was the MGNREGA, and even then, the legislation was passed after the NREGS was already operational! The executive has thus continually bypassed Parliament for various reasons, consequently reducing incentives and the ability of parliamentarians to perform their representation and oversight roles. Parliament, as many parliamentarians complain, has effectively become a rubber stamp.

Additionally, MPLADS provides a counter-incentive to parliamentarians to move away from legislative functions to executive roles. Stripped of the ability to perform roles in a representative manner within Parliament, MPLADS allows parliamentarians to focus on nurturing their constituencies by undertaking developmental works instead. Political leaders have also jostled for, and created executive decision-making roles for themselves, especially at the state level (MLALADS for example), leading to greater interference with bureaucratic processes, disregarding their legislative responsibilities and causing bureaucratic emasculation.

Parliamentary obstructionism is not just a case of errant behaviour gone unchecked. It is a consequence of a systemic de-prioritization of a parliamentarian’s representative role. The lack of adequate plenary time, prioritization of government business over all other work in Parliament, and a host of other perverse incentives are responsible for this logjam, and obstructionism is its most festering, visible symptom.

Anirudh Burman

Graduate from Harvard Law School, worked with PRS Legislative Research

 

* I am grateful to Dr. K.P. Krishnan and Dr. Kaushiki Sanyal for their comments and inputs.

Footnotes:

1. Lok Sabha Secretariat, Twelfth Session of the Fifteenth Lok Sabha – An Overview. Lok Sabha Secretariat, Press and Public Relations Wing, p.8 (available at: http://164.100.47.132/lssnew/ overview/11th_15LS_statement.pdf, visited on 04/04/13).

2. Kusum Malik, Plan vs. Performance – Winter Session 2012: November 22 to December 20. PRS Legislative Research, December 2012.

3. Another example would be the paralysis in Parliament over the issue of reservations in promotion in the 2012 winter session.

4. Data from PRS Legislative Research shows that the Lok Sabha and Rajya Sabha worked for 5.5% and 2.4% of their respective available time. (Rohit Kumar, Vital Stats: Parliament in Winter Session 2010. PRS Legislative Research, December 2010.)

5. Election Commission of India, Statistical Report on General Elections, 1951 to the First Lok Sabha. Vol. I. (http://eci.nic.in/eci_main/StatisticalReports/LS_1951/VOL_1_51_LS.PDF, visited on 11/04/13).

6. Ibid., p. 4 (visited on 04/04/13).

7. Rohit Kumar and Devika Malik, Vital Stats: 60 Years of Parliament. PRS Legislative Research (available at: http://www. prsindia.org/administrator/uploads/general/1336864627~~ Sixty%20years%20of%20Parliament%20v2.pdf, visited on 04/04/13)

8. Planning Commission of India, Report of the Committee on Restructuring of Centrally Sponsored Schemes. September 2011, p. ii.

9. Anirudh Burman, Financial Oversight by Parliament: Background Note for the Conference on Effective Legislatures. PRS Legislative Research, November 2010 (available at: http://www. prsindia.org/administrator/uploads/media Conference% 20noteConference%20note%20on%20financial%20oversight.pdf, visited on 05/04/13).

 

“Civil society” biases: Regionalism

27 Sep

India’s civil society has by now patted itself on the back for the umpteenth time having shown the political classes its raw, real-grassroot-democratic power by having its version of the Lokpal Bill passed. Let it now look inward to examine its own internal corruption. News reports and trending blogs indicate how wide, and how deep the problem of regional parochialism runs in our country. While corruption in high government offices and public services bleed the country dry, the issue of regional bias and hatred festers like a sore on our collective psyche.

A recent news report details how a Bengali migrant laborer in Kerala was refused help by residents after falling off a train. Oran, injured and bleeding, went door to door asking for help, and nobody answered. I do not intend to highlight regional antipathy in one particular state or part of the country. His story is probably true of millions of migrant labourers in different parts of the country. Many of them probably take the same ignoble decision that Oran took: he managed to reach the nearest temple, and hanged himself with a rope.

Suicide may serve as a gory extremity of this divisive issue. But it also serves as a timely reminder of a much more difficult issue that India’s “civil” society has to solve for itself. If one were to believe that such antipathy is reserved only for poor migrants, take a look at one of the most trending blogposts in India recently: “Open Letter to a Delhi Boy“, and its sequel: “The National Loss of Collective Shit“. The posts intend to highlight and confirm many stereotypes regarding the allegedly less-than-intellectual-little-more-than-neanderthal Delhi crowd, by a girl from, well, somewhere south of Delhi.

What could have been a well aimed jibe at all that is funny and stupid about Delhi’s brash and rich, turned out to be a venomous rant against Delhi culture. So the posts themselves turn out to be a reflection of cultural prejudices rather than posts trying to indicate the perceived hollowness of Delhi culture.

Indeed, these prejudices run deep within us: the “Madarasis eat sambhar-chawl” to “Punjabis eat rajma-chawl” to how “south Indian languages are so funny” to how “Punjabi is so crude”. These are a reflection of how inward-looking we remain for all our newly acquired prosperity. And this problem cannot be solved by a mass agitation involving Anna Hazare and his cronies. It cannot be solved by hunger strikes and political boycotts. It is a social issue which requires a collective response, but such collective response hinges on collective awakening, and a collective will to action that has nothing to do with corruption, caste, poverty, or religion. Let us see how much stomach civil society has for this fight.

 

Borders, Elitism & False Development

22 Sep

Some interesting comments on the Maoist movement being made by Arundhati Roy (minute 10 onwards). I generally find her a little difficult to make sense of, but she was fairly lucid during this part of the conversation.

Smart caFE JPC vs PAC

30 Nov

Smart caFE JPC vs PAC

read more…

How much does a Bandh Cost

9 Jul

Noted economist Prof. Bibek Debroy has written on how to estimate how much Bandhs cost.  This seems to be in response to figures given by industry associations on the cost of the recent Bandh organised by the BJP and left-parties.  I am pasting the article below:

Price of a bandh

Bibek Debroy Posted online: Fri Jul 09 2010, 04:23 hrs
The DNA of industry chambers is anti-bandh. Perhaps that’s the reason why industry chambers are the only ones who immediately come out with figures on losses from bandhs, to illustrate what a terrible idea a bandh is. For the Bharat Bandh of July 5, we have three sets of figures floating around —CII (Rs 3,000 crore), Assocham (Rs 10,000 crore) and FICCI (Rs 13,000 crore). That’s quite a range. How do industry chambers arrive at such figures, when professional economists and statisticians fear to tread such hazardous ground? First, we arrive at a GDP figure for 2010-11. We know the GDP figure for 2009-10. That happens to be Rs 57,91,268 crore in current prices. Nominal GDP growth will be around 12.5 per cent. Therefore, GDP in 2010-11 will be of the order of Rs 65,15,177 crore. This is spread over 365 days. Per day, GDP is Rs 17,849 crore. That ought to be the loss because of bandh. As far as one can make out, there are three reasons why there is such a range, though principles used are similar. First, sometimes one uses 2009-10 rather than a 2010-11 GDP figure. Second, sometimes one uses real GDP growth rather than nominal GDP growth on the 2009-10 base. Third, there are differences on how much of a day’s GDP is estimated to have been wiped out. Is it 100 per cent or less? Voila, we have the figure, like a rabbit out of a hat!

How many holidays are there in India? There is no simple answer. We have 14 compulsory (gazetted) national holidays, three additional holidays from a list of 12, and restricted holidays, with the last numbering 34 (no exaggeration) for Delhi government offices in 2010. There are state-level variations, especially religious ones, thrown in. But on an average, we are certainly talking about at least 50 holidays.

Since we are fond of making comparisons with China, there are seven national public holidays there. Our favourite country now, the United States, has 11 federal holidays. We clearly have too many holidays. There have been suggestions (such as Pay Commission recommendations) that there should be fewer holidays, perhaps 11. Three national holidays (January 26, August 15, October 2) and eight that an individual chooses and opts for, depending on his/ her religious preferences. There are compelling arguments against religion-based holidays in a secular country. Assuming we should have 11 holidays, we have around 39 in excess. That’s a loss of 39 multiplied by 17,849 or

Rs 6,96,111 crore a year. Or so it would seem, if one uses the kind of calculations the chambers do. This is quite apart from Sundays and/ or Saturdays. It is a separate matter that last Sunday, we went for a film and ate out. Film theatres, restaurants and shops were open.

Yes, we have too many holidays. But the assumption that a country’s GDP machine stops working on holidays is false. This is common sense and obvious. Why is it that in the context of a bandh this becomes less obvious? Let’s look at the CSO’s factor cost contributions of GDP and there are eight of these — agriculture, forestry and fishing, mining and quarrying, manufacturing, electricity, gas and water supply, construction, trade, hotels, transport and communication, financing, insurance, real estate and business services, and community, social and personal services. Bandhs are urban phenomena, even metro phenomena. At best, they spill over into some semi-urban areas. Of those eight listed, agriculture, forestry and fishing, mining and quarrying, electricity, gas and water supply are almost completely outside the purview of any bandh. Of the base of Rs 57,91,268 crore in 2009-10, one has thus shaved off Rs 12,12,348 crore immediately. What is left is still substantial. But even then, there is a problem. Cessation of economic activity on a specific date is often not a permanent loss. It is recouped on the succeeding working day, assuming a bandh is a 6 am to 6 pm type and not more permanent. This recouping effect is also true of visibly disrupted sectors like transport.

GDP computations muddy waters more. GDP is value of goods and services, price multiplied by volume. Even if there is a volume dip for 12 hours on a particular day, will the price decline? To state it differently, will anyone’s wages be deducted for that single day? Therefore, GDP-wise, such bandhs are only pertinent for those whose earnings are affected by a single day’s disruption in urban India — daily wage earners and self-employed (own account enterprises). In urban India, we have around 14 million in the first category and around 21 million in the second category. For the first category, at Rs 100 per day, the loss is Rs 140 crore, assuming a bandh disrupts all urban India and not just states where non-Congress parties dominate. For the second category, there is a further catch. Unlike the first category of daily wage earners, for own account enterprises, economic activity revives post 6 pm and recoups a bit on the day of the bandh itself. Even if one assumes Rs 200 per day (this is actually on the high side) for 21 million self-employed, assumes there is no recouping post 6 pm and universal bandh across states, we have a loss of Rs 420 crore. That’s a total of Rs 560 crore. But because of those caveats, this is the higher end of the range. In all probability, the loss is lower, more like Rs 250 crore. This is far out of line with scary numbers touted by industry chambers.

This isn’t a justification for bandhs. On the contrary, such disaggregation establishes why bandhs are anti-poor. In urban India, unskilled daily wage earners are at the lowest end of the spectrum. Bandhs aren’t distributionally neutral. A Rs 140 crore shock to them is difficult to absorb. A Rs 3,000 crore shock to the rest of the economy (assuming that figure was true) is easier to absorb. Flight and rail disruptions, so evident on electronic media, aren’t the real problem. There is inflation too, proximate reason for the bandh. Inflation has rightly been described as a regressive tax, because of its anti-poor distributional angle. Employment in the organised sector and formal employment in the unorganised sector (this exists too) is relatively protected because of wage indexation to inflation. If one sticks to urban India (rural India is somewhat different), there is also wage indexation for much of informal employment in the unorganised sector, even if it is less than adequate. Think of what has been called the ABCD (ayah, bai, cook, driver) market. Within that urban segment, wage indexation is non-existent for own account enterprises and virtually non-existent for daily wage workers, minimum wage stipulations notwithstanding.

The writer is a Delhi-based economist

BJP’s “Audacity of Hope”: Gadkari’s Maharashtra manifesto

11 Apr

An article in the April issue of Caravan Magazine drew my attention to the writings of Nitin Gadkari, the newly elected President of the BJP.  Caravan mentioned a short 90-page book titled “Politics for Development” which was written by Gadkari.   This post summarises my impressions of his book.

One of the first things that struck me (it also struck the author of the article in Caravan magazine) is that his book seems to be devoid of any criticism of opposition political parties.  In fact, he explicitly states that opposition should not be merely for the sake of opposition.  The other fact I felt was significant is his emphasis on discourse, dissent and deliberation within our democratic framework.

The other interesting factor is his argument that while elected representatives have a responsibility to work towards development, electors also have a responsibility to be pragmatic and vote for those who push a development agenda.  He states clearly that electors should not hesitate to vote for candidates of other parties than their preferred choice for the sake of ensuring development.  He signs off on this particular issue by highlighting the election of American presidents and how their governing philosophies and their agendas are scrutinised exhaustively by the public before the election.

The other portions in his book (the majority in fact) are devoted to discussions on how to reforms various sectors of Maharashtra’s government.  He lays down very simply argued ideas on sectors such as irrigation, power, fuel consumption etc.

These points seemed interesting mainly because of conventional political and journalistic wisdom proclaiming the BJP’s crisis of faith.  And to be honest, while his writings seem to be a clear departure from the majority of the views expressed by the BJP, so far his contribution to the party’s progress is hard to judge.

Though I consider myself ambiguous in terms of political affiliation to political parties (no doubt many of the urban educated electorate do), I found his book illuminating if only for getting an insight into a politician’s stated thought process.  It would no doubt be interesting to understand how political leaders in other parties view their roles in politics and governance.  I hope over time that we will be able to hold our representatives accountable not only on the basis of their party agenda, but also their individual opinions and governing ideologies.  That at least, is what Gadkari seems to want the electorate to do!!

India v. China III: Current Flashpoints

1 Feb

In this post, I very briefly summarise the current flashpoints between India and China.  I am also mentioning 10 points about the strategic interests of both countries in the Indian Ocean, as we tend to overlook that in most discussions on border disputes.

Jammu and Kashmir – Since India was invaded by China in 1962, The part known as Aksai Chin continues to be occupied by China.  India claims the occupied territory to be an integral part of Jammu and Kashmir, whereas the Chinese do not show Aksai Chin as an Indian territory on their maps of the region.

Tibet – One of the original points of dispute between the two countries.  India recognised Tibet as an independent country before China invaded the country, and then gave refuge to the Dalai Lama.

Arunachal and Sikkim – As one of my previous posts on China discussed, the Tibetans also considered parts of Arunachal to be their territory.  After the Sino-Indian conflict, the dispute became a Sino-Indian one.  Depending on varying media reports, the Chinese claim all of Arunachal (or one small part) and Sikkim is their territory.

Pakistan – India alleges that China proliferated nuclear weapons as well as other arms to Pakistan, and that it also provides substantial military aid to the Pakistani government.

River-Water disputes – From time to time, one hears reports of the Chinese planning to build large dams on rivers which originate in China or the Tibetan plateau and flow into India (and also into Pakistan). The major ones of these such as the Indus and the Brahmaputra support thousands of kilometres of local economies.  Any news of dam building is therefore met with great consternation, though the Indian government downplays such reports.

The Indian Ocean: The Indian Ocean is bordered from side to side by almost all the major Islamic countries, it is also dominated by two immense bays – The Arabian Sea and the Bay of Bengal which border Pakistan and Myanmar respectively.

In other words, more than just a geographic feature, the Indian Ocean is also an idea. It combines the centrality of Islam with global energy politics and the rise of India and China to reveal a multilayered, multipolar world.

The article from which the lines above are quoted makes the following points (quoted):

1.  India’s and China’s aspirations…have compelled the two countries “to redirect their gazes from land to the seas…”

2. 90 percent of global commerce and about 65 percent of all oil travel by sea. Globalization has been made possible by the cheap and easy shipping of containers on tankers, and the Indian Ocean accounts for fully half the world’s container traffic.  Global energy needs are expected to rise by 45 percent between 2006 and 2030, and almost half of the growth in demand will come from India and China.

3.  India is seeking to increase its influence from the Plateau of Iran to the Gulf of Thailand — an expansion west and east meant to span the zone of influence of the Raj’s viceroys. India’s trade with the Arab countries of the Persian Gulf and Iran, with which India has long enjoyed close economic and cultural ties, is booming.

4.  India has also been expanding its military and economic ties with Myanmar, to the east. Democratic India does not have the luxury of spurning Myanmar’s junta because Myanmar is rich in natural resources — oil, natural gas, coal, zinc, copper, uranium, timber, and hydropower — resources in which the Chinese are also heavily invested.

5.  India is enlarging its navy in the same spirit. With its 155 warships, the Indian navy is already one of the world’s largest.

6. The Chinese government has already adopted a “string of pearls” strategy for the Indian Ocean, which consists of setting up a series of ports in friendly countries along the ocean’s northern seaboard.

7.  Beijing operates surveillance facilities on islands deep in the Bay of Bengal. In Myanmar, whose junta gets billions of dollars in military assistance from Beijing, the Chinese are constructing (or upgrading) commercial and naval bases and building roads, waterways, and pipelines to link the Bay of Bengal to the southern Chinese province of Yunnan.

8.  The Chinese government is also envisioning a canal across the Isthmus of Kra, in Thailand, to link the Indian Ocean to China’s Pacific coast — a project on the scale of the Panama Canal and one that could further tip Asia’s balance of power in China’s favor by giving China’s burgeoning navy and commercial maritime fleet easy access to a vast oceanic continuum stretching all the way from East Africa to Japan and the Korean Peninsula.

9.  All of these activities are unnerving the Indian government. With China building deep-water ports to its west and east and a preponderance of Chinese arms sales going to Indian Ocean states, India fears being encircled by China unless it expands its own sphere of influence. The two countries’ overlapping commercial and political interests are fostering competition, and even more so in the naval realm than on land.

10.  As the competition between India and China suggests, the Indian Ocean is where global struggles will play out in the twenty-first century.  The US has already recognised this and has started making necessary shifts.  The document Marine Corps Vision and Strategy 2025 also concluded that the Indian Ocean and its adjacent waters will be a central theater of global conflict and competition this century.

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