Tag Archives: India

Capital controls against FDI in aviation: An example of bad governance in India

13 Jul

I am cross-posting an old post I had co-written on Prof. Ajay Shah’s blog (LINK). The post highlights some of the persistent failures in Indian administration to follow basic rule of law principles.

Excerpts:

“When the coercive power of the State is wielded by the executive, this should be accompanied by appropriate checks and balances. Good practice in regulatory governance requires that when regulators wish to make changes to regulations, and thus affect the rights of private parties, the regulators must furnish reasons for making those changes. This increases transparency, predictability, and accountability.”

“This multiplicity of regulations also leads to uncertainty of regulatory objectives. Investors have no idea of what criteria is used to assess their investments, and grant them business permissions. It is important to recognize that the justifications used to impose regulatory restrictions for relying on the distinctions between private and public, or domestic and foreign entities, is that these distinctions are reasonable proxies for the other characteristics (national security, systemic risk) that are a valid basis for differential treatment. As in so many areas of regulation, the misapplication of easy proxies for characteristics that are difficult to assess becomes a glaring reminder of regulatory uncertainty. It is important that regulatory objectives be identified clearly in relevant statues and regulations.”

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.

Sex Work and the Law: A Case for Nuanced Debate

23 Dec

The debate over legalization vs decriminalization of prostitution is in the public domain with reports that the National Commission for Women has recommended legalization to the Supreme Court appointed panel for rehabilitation of sex workers. The panel, formed in 2011 when the Supreme Court suo motu converted a criminal appeal relating to a murder of a sex worker into a PIL, is in the process of consulting various stakeholders.

The mandate of this panel was to recommend measures for the rehabilitation of sex workers who wished to leave sex work, and conducive conditions for sex workers who wish to continue working in the profession.

Magnitude of the issue

Estimates of the number of women engaged in prostitution have increased over the years. In 1997, a report of the National Commission of Women put it at 2 million, in 2004, a study sponsored by the Ministry of Women and Child Development estimated it to be 3 million of which 36% were children and a 2013 report on sex trafficking by Dasra, a philanthropic foundation estimated that about 20 million women were engaged in the profession. The 2013 report showed that 80% of these women are victims of sex trafficking. Most disturbingly, out of the estimated 16 million women who are trafficked, 6 million are children under 18 years of age. There is however no official estimates available since 2004 of the prevalence of prostitution.

According to the 2013 report, the prevalence of prostitution is highest in states such as Arunachal Pradesh, Andhra Pradesh, Gujarat, Karnataka, Goa, Madhya Pradesh, Maharashtra, Nagaland, Rajasthan, Tamil Nadu and West Bengal as well Union Territories like Chandigarh and Daman and Diu.

Multiple factors lead to women becoming prostitutes, the most common of which are illiteracy, lack of vocational skills, economic distress, migration, desertion by spouse, ill-treatment by parents and family tradition. Most work in miserable conditions leading to different types of diseases, depression and hopelessness. They are also faced with daily violence, constant police harassment and societal ostracisation. Given the informal economy in which they work, they also find it difficult to open bank accounts, get insurance or identification cards.

The threat of HIV/AIDS also looms large –  reports say prevalence of HIV/AIDS among this category ranged between 2% and 38% in India (globally it is about 12%). However, due to their ambiguous legal status, they are unable to get access to basic services including healthcare, education and bank accounts.

Not prohibited, but is it permitted?

According to the Immoral Trafficking Prevention Act, 1956 (ITP Act), “prostitution” is defined as the sexual exploitation of persons for commercial purposes. While it does not prohibit sex work per se, it imposes penalty for keeping a brothel, soliciting, pimping and plying the trade near a public place such as places of worship, schools and hospitals.

In 2006, India moved towards decriminalization of prostitution when it attempted to amend the ITP Act by deleting the provision that penalized soliciting and adding a provision that penalized clients of sex workers who were trafficked victims. However the Bill lapsed with the dissolution of the 14th Lok Sabha. These provisions were not well thought through given that it did not clarify the confusion about the profession’s basic legal status since provisions such as penalizing clients, prostitution in brothels and public places made it difficult for prostitutes to practice their trade legitimately.

What works?

In most of Asia, Africa and parts of the US, prostitution is illegal. Some states in Australia and New Zealand have decriminalized prostitution (no penalty for prostitutes) while Sweden, Norway, Iceland and Nepal penalize the client on the ground that prostitution is an aspect of male violence towards women. Prostitution is legal in most countries in Latin America and Europe and in some parts of the US.

The evidence however is not clear either ways. Some studies do show a correlation between legitimizing sex work and a drop in violence targeting sex workers while others show that it has resulted in increase in human trafficking.

Decriminalising – the way forward

As we re-open the debate about prostitution, Legalization in India may not improve matters given India’s lax law enforcement mechanism as well as cultural milieu. The safest option at this point may be decriminalizing the trade so that sex work per se is not legalised but sex workers are not harassed and exploited by the police, brothel owners and pimps (middlemen).   It would also reduce barriers to essential health services, education, bank accounts, insurance, voter identity cards. The government needs to play a crucial role by providing credible rehabilitation options if any of them want to opt out.

The recently enacted Criminal Laws (Amendment) Act, 2013 includes provision to penalize trafficking for any purpose. However, the government needs to strengthen its efforts to combat trafficking by dedicating resources, strengthening capacity of existing institutions and encouraging other stakeholders to leverage their own resources and expertise to address this serious problem. Considering the cross-regional and interdisciplinary nature of trafficking, there is a need to build and provide sustainable support to networks that bring together various stakeholders linking source and destination areas, frame common objectives and ensure accountability and effective delivery on the ground. 

The piece was first published on the Bharti Institute of Public Policy, ISB’s blog.

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.

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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

My paper on parliamentary oversight in India

9 Aug

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

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

Protecting the Harassed and the Harasser

19 Jul

The Supreme Court recently passed a controversial judgment condemning ‘automatic’ arrests by police in dowry harassment cases against husbands and in-laws. The judgment has received a mixed response. While its supporters praise the Court’s strong statement against misuse of this law by women, others raise concerns over the rights and safety of victim women. While the Court rightly asks for the correct implementation of criminal procedures to avoid harassment by misuse of law, its lack of a simultaneous emphasis on the need for protection of women is problematic.

The judgment speaks of the duties of police officers while making arrests and applies to cases beyond the context of cruelty against women. Thus, one way to understand the ratio of the judgment is to look at it as a criminal procedure case divorced from its gender context. The Court merely reminds police officers of their duty under the Criminal Procedure Code (Cr.P.C.) to exercise discretion while arresting even in non-bailable and cognizable offences and to do away with the attitude “to arrest first and then proceed with the rest”. Instead of mechanically making arrests on receiving an allegation, the police should first arrive at a reasonable satisfaction as to the genuineness of the allegation based on some investigation. Under the Cr.P.C., for offences with punishment of seven or less years, like the provision on cruelty in dispute here, the police can arrest without a warrant only when it is satisfied that arrest is necessary for reasons such as preventing tampering with evidence, preventing threat to witnesses, and preventing commission of further offence. An absolute non-exercise of discretion, whether by mechanically arresting or not arresting, is problematic and may cause unnecessary harassment and humiliation to the arrested person. The judgment requires police officers to forward to the Magistrate not only their reasons for arrest, but also reasons for their decision not to arrest, in the latter case within two weeks from the date of institution of the case. Failure to follow these guidelines may render police officers liable for both departmental action and contempt of court proceedings.

While the operative part of the judgment is written largely in such criminal jurisprudence terms, presenting the judgment in this gender-neutral manner will rob it of its true context and hide its possible implications. Even while the direction is to police officers, the Court is more concerned about harassment by “disgruntled wives” than by the police. The Court emphasizes how women are misusing the criminal provision that was intended to protect them from cruelty by husbands or his relatives, and causing harassment through arrests not only of the husband, but also his old or distant relatives, whether male or female. The Court also notes that marriage is a revered institution in India and seems to lament the increase in matrimonial disputes in the country.

The exclusive focus on misuse instead of use of the provision makes the apparently harmless verdict reiterating the criminal procedural law a questionable and unbalanced one. While the misuse of anti-dowry provisions may be common, but even more widespread is the incidence of dowry-related violence. In its attempt to “maintain a balance between individual liberty and societal order”, the Court totally ignores the concerns of women who may actually be victims of harassment. Patriarchal norms normalizing domestic violence, lack of support for women who fight against such violence and the private domain within which the abuse takes place already make legal remedies difficult to access for many women. In this context, valid concerns were raised around the judgment’s implications for a woman deciding whether or not to use criminal law to her rescue and for the safety of a woman who decides to use criminal law but is not able to procure arrest of the accused persons.

There is a need to take on board concerns both regarding protection of women from domestic violence and regarding harassment caused by arrests of falsely accused persons. While the Supreme Court takes care of the latter, it ignores the former. As a matter of fact, the law already provides this protection in the form of the Domestic Violence Act (DVA). The definition of “domestic violence” under the Act covers physical, mental and economic abuse and includes violence related to dowry demands. It further places a duty on a police officer who receives a complaint of domestic violence to inform the aggrieved woman of her rights to receive protection under the DVA. Thus, even where the police may not arrest the accused persons immediately, they may still assist the complainant woman to use the DVA machinery and seek protection and other reliefs.

While the Court reiterates Cr.P.C. provisions to curtail harassment by misuse of dowry laws, it surprisingly misses out a mention of DVA that can simultaneously be used to provide protection to abused women. The police officers need to be reminded of their duty under both these laws. One can hope that this slip by the apex Court will not result in dilution of the actual exercise of their duty under the other law.

Post on revising the regulatory framework for FDI and capital controls

21 Apr

I have a co-authored post on the reforming the FDI regulatory framework in India on Ajay Shah’s blog here. The post was published on April 21, 2014, and has been co-authored by me, Ajay Shah, and Arjun Rajagopal. The post is being reproduced below. 

 

Capital controls against FDI in aviation: An example of bad governance in India

by Anirudh Burman, Ajay Shah and Arjun Rajagopal.

FDI in aviation was liberalised by the Reserve Bank of India on September 21, 2012 through a change in the Foreign Exchange Management (Transfer or Issue of Security by a Person Resident outside India) Regulations, 2000 (link). Following that change, private players began putting together a number of complex transactions between Indian and foreign companies such as Jet-Etihad, AirAsia-Tata, and Tata-Singapore Airlines.

On November 20, 2013, the Directorate General of Civil Aviation (DGCA) revised its `Civil Aviation Requirements’ or “CAR” (CAR 4.1.5 to 4.1.16) to state that a domestic airline company cannot enter into an agreement with a foreign investing entity (including foreign airlines) that may give such foreign entity a right to control the management of the domestic operator ( link). This change in regulations has major consequences for some of the transactions which are in progress.
There are two important deficiencies in this action by DGCA:

  1. The CAR makes repeated mention of the requirement of control, without clarifying what the term `control’ means. This creates legal risk for transacting parties.
  2. No rationale has been offered to justify the use of the coercive power of the State via the CAR; no estimates of the costs or benefits of this regulatory action have been provided.

What does `control’ mean?

Rule 4.1.8 of the CAR (link) states:

A Scheduled Air Transport Service/Domestic Scheduled Passenger Airline shall not enter into an agreement with a foreign investing institution or a foreign airline, which may give such foreign investing institution or foreign airlines or others on behalf of them, the right to control the management of the domestic operator.

However, the `right to control the management’ has not been defined. This lack of clarity is compounded by two other regulatory requirements: (a) the directors appointed by the foreign entity cannot exceed more than one-third of the total (CAR 4.1.7), and (b) the substantial ownership and effective control of a domestic operator has to be vested in Indian nationals (CAR 3.1).

The new requirements must mean that `the right to control the management’ involves a form of control over and above these two earlier requirements, but no definition of that form of control is offered. Such lack of precision in drafting of laws results in increased legal risk and should be avoided.

Lack of transparency

When the coercive power of the State is wielded by the executive, this should be accompanied by appropriate checks and balances. Good practice in regulatory governance requires that when regulators wish to make changes to regulations, and thus affect the rights of private parties, the regulators must furnish reasons for making those changes. This increases transparency, predictability, and accountability.

In the case of investments, an investor who commits resources would want an element of control in order to ensure his money is not stolen or wasted. A substantial investment in a company is thus often accompanied by rights regarding management and control of the company. If a regulatory requirement interferes with these rights of investors, the onus is on the regulator to explain why. The changes to the CAR affect the rights of investors and potential investors in the aviation industry, but DGCA has not furnished any reasons for its revisions.

Regulatory actions must not be arbitrary acts of God. They must be steeped in the rule of law. The Draft Indian Financial Code, when enacted, will ensure financial sector regulators make qualitatively better regulations by blocking these kinds of mistakes. All draft regulations will have to be accompanied by reasons for the proposed regulations, as well as a cost-benefit analysis of the proposed regulations. These will be made available for public comment, before the final regulations are adopted. This regulation-making process will result in clearer and better regulations, and will enhance the legitimacy of the regulations and of regulators. The adoption of a similar process by DGCA would have led to a better outcome.

Barriers to international economic engagement: A strategic view

Consider trade barriers. The Indian State has the power to introduce customs duties. A number of government bodies undoubtedly have a major stake in the design of customs duties, and may even have critical expertise in the matter. Nonetheless, the power to introduce and modify customs duties is vested in a single authority — the Ministry of Finance. The Ministry of Textiles, for example, has no power to change the customs duty on imported cloth. This is a healthy arrangement: The Ministry of Finance is responsible for maintaining a unified strategic outlook on the question of trade barriers. The Ministry of Textiles can engage with the Ministry of Finance and suggest changes in tariffs, but responsibility for formulating and promulgating a coherent policy ultimately rests exclusively with Ministry of Finance.

This same strategy is required in the field of capital controls. If multiple regulators or government departments set about writing capital controls, we will have a balkanised mess.

Indeed, the current capital controls based framework is just such a balkanised mess. In the absence of a single governing law for foreign investment, a number of agencies have prescribed foreign investor regulations. The types of capital control restrictions and their rationale can be outlined as:

  1. Entry restrictions by financial regulators such as RBI and Ministry of Finance, usually to promote monetary policy and financial stability (under the Foreign Exchange Management Act, but not restricted to it);
  2. Entry restrictions imposed by DIPP and Ministry of Finance on grounds of national security (may include consideration of factors listed under FEMA as well); and
  3. Regulatory restrictions (including on control and ownership) imposed by sectoral regulators.

This multiplicity of regulations also leads to uncertainty of regulatory objectives. Investors have no idea of what criteria is used to assess their investments, and grant them business permissions. It is important to recognize that the justifications used to impose regulatory restrictions for relying on the distinctions between private and public, or domestic and foreign entities, is that these distinctions are reasonable proxies for the other characteristics (national security, systemic risk) that are a valid basis for differential treatment. As in so many areas of regulation, the misapplication of easy proxies for characteristics that are difficult to assess becomes a glaring reminder of regulatory uncertainty. It is important that regulatory objectives be identified clearly in relevant statues and regulations.

In addition to the legal and regulatory uncertainty created by such a multiplicity of regulators and regulations, the regulations themselves may violate India’s obligations under various multilateral and bilateral investment treaties: Many, if not, most such agreements provide for national treatment of investment once it has been allowed to enter the domestic market. Regulators should not be allowed to impose regulatory restrictions after foreign investment has already entered the domestic market. Under this principle of competitive neutrality, there should be no difference in the conditions imposed on the State Bank of India and those imposed on Etihad, when they invest in Jet Airways.

This requires more than administrative changes. A reform of the legalframework is essential. For example, the restrictions in the CAR appear to be grounded in the expansive powers granted to DGCA under the Aircraft Act, 1934. Section 5 of the Act (link) states:

Power of Central Government to make rules. – (1) Subject to the provisions of section 14, the Central Government may, by notification in the Official Gazette, make rules regulating the manufacture, possession, use, operation, sale, import or export of any aircraft or class of aircraft and for securing the safety of aircraft operation.

Those same powers could ground preferential treatment in other areas of regulation. To the extent that other regulatory bodies with responsibilities for other sectors have similar powers, those sectors too are vulnerable to violations of the principle of competitive neutrality.

The report of the FSLRC proposes a cleaner, clearer regulatory framework for foreign investment, one which is consistent with these obligations. Section 2.5 of the report states:

The Commission envisages a regulatory framework where governance standards for regulated entities will not depend on the form of organisation of the financial firm or its ownership structure. This will yield ‘competitive neutrality’. In this framework, the regulatory treatment of companies, co-operatives and partnerships; public and private financial firms; anddomestic and foreign firms, will be identical.

The draft Indian Financial Code, which encodes the principles articulated in the report, explicitly requires all regulators to maintain competitive neutrality while framing regulations. Section 84 (Principles of consumer protection) and section 141 (Principles of prudential regulation) contain the following identical language:

[C]ompetition in the markets for financial products and financial services is desirable in the interests of consumers and therefore… there should be competitive neutrality in the treatment of financial service providers;

This will ensure that sectoral regulators in the financial sector will not be able to discriminate against foreign and domestic firms/investment.

Pending the introduction of the Code, it would be helpful to incorporate its underlying principles into the existing regulatory framework. For example, the BJP has suggested that they will block FDI in retail but they will remove all capital controls against FDI in other sectors. Any government wishing to carry out such a change would need all capital controls be defined at only one place, where a single policy decision is taken. After this, it should not be possible for any other department of government or a regulatory agency to introduce capital controls.

The required single-window system should have the following characteristics:

  1. A comprehensive definition of foreign investment;
  2. A rule-of-law based mechanism for the government to allow/prohibit entry of foreign investment in specific sectors;
  3. A single regulatory barrier for foreign investment before it can enter the domestic market. Currently FIPB is an example of such a barrier;
  4. Clear documentation of approval of foreign investment that must be binding on all government authorities;
  5. Clear enumeration of reasons for which foreign investment can be restricted, and who can impose these restrictions (without any catch-all provisions like “for any other reason”);
  6. A positive obligation on the government to ensure competitive neutrality, OR a restriction preventing the government from discriminating against foreign investment once the investment has been allowed to enter India; and
  7. A review mechanism where foreign investors whose investment has either (a) been rejected, or (b) been subjected to discriminatory treatment compared to a domestic investor, can seek redressal.

Conclusion

There is great outrage in India today, against a capricious State that is a major source of risk for firms. These failures on capital controls are one important component of that problem. It is the right of politicians to interfere with international economic integration – e.g. to block FDI in retail or not or to have tariffs on import of apples or not. But there should be a single-barrier where this political decision is made.

Putting Carts Before Horses. And How?

9 Apr

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

Imagine,

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

Right to regulate all Economic Activities Completely Act, 2014

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

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

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

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

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

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

Continue imagining,

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

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

Dreams get real

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

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

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

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

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

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

Constituency-wise Manifestoes, their regulation and consequences

12 Mar

1 Introduction

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

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

2 Local Manifestoes

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

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

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

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

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

3 Regulation of election manifestoes

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

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

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

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

 

Why No One Listens to Arundhati

14 Feb

This post is an opinion piece on Arundhati Roy’s recent open letter regarding the banning of the book “The Hindus”

Whatever your views on the merits of Penguin’s actions in withdrawing Wendy Doniger’s book, ‘The Hindus’, it is hard to read Arundhati Roy’s open letter to Penguin and not cringe. In her letter Roy does what she does best. She is undoubtedly extraordinarily gifted when it comes to constructing beautiful prose, but sadly when it comes to writing on issues that affect the wider public, it seems beautiful prose is the extent of her gifts.

 

A closer analysis of her beautiful prose reveals that she has not really thought about how hypocritical she is being [or as many suspect, that she is a rather big hypocrite]. If she is in fact as deeply concerned with Penguin’s failure to protect its authors as she claims to be, the logical course of action would be for her to immediately drop them as her publisher. She would hit them where it hurts the most- their pockets; and if she is truly as non- materialistic as she has long claimed, the monetary loss that she would face should be of no significance. But for reasons best know to Roy that has not happened.

 

Instead of putting her money where her mouth is, Roy insists that Penguin is obligated to fight on behalf of everyone that has a problem with people demanding a ban on the book. According to Roy, Penguin and the people that work there should not only pay vast legal fees to fight for her cause, but also risk imprisonment under the Indian Penal Code as it exists- all while she does nothing beyond writing a letter.

 

Nor does Roy help her case by somehow connecting a settlement made by an international publishing house after years of litigation with the potential rise of “fascists” in India’s next general election (which I think it is reasonably safe to assume refers to the fact that Narendra Modi and the BJP might attain a majority). How Roy thinks convincing Penguin that taking up this issue is unlikely to endear it to what might possibly be the next government might encourage Penguin is unclear. I would argue that it is more likely to discourage Penguin to do as she asks, than it is to encourage it (assuming for the sake of argument that Roy is right in her thesis about the ‘fascists’).

 

Personally, I agree that the book should be available to the public and that those that have a problem with it should not read it. But, that said, the law in India allows people to object to the content of books and Penguin has to operate within the bounds of the law. It is not incumbent on anyone, much less on a business run for profit to fund legal battles for changing the law (and in fact, there is a strong argument to be made for the fact that large publishing houses should not be throwing cash into legal battles with the express aim of determining to what extent their actions can be regulated). As a prominent citizen and a veteran of taking on the State, Roy is far better placed to campaign for whatever change in the law she feels is needed than almost anyone else.

 

Why she seems to be shying away from doing so is anyone’s guess- and till she actually walks the talk, her letter is no more than the piteous bleating of a hypocrite.

 

Foreign direct investment in railways: Does national security matter?

9 Feb

This post has been written by Mr. Pratik Datta.

Background

Present Indian laws ’prohibit’ foreign direct investment (FDI) in railways (other than mass rapid transport system). Of late there has been growing expectation that the Indian Government might allow 100% FDI in construction and maintenance of railway projects (but not in operations). Suddenly the optimism seems to have yielded to apprehensions of ’national security’ concerns (link). These concerns reportedly stem out of potential Chinese investment in Indian railways. India and China have long standing border disputes. The deep penetration of the Indian railways into some remote border areas seem to be bothering the Government. But is this apprehension justified? Do other countries restrict foreign investment based on ’national security’ concerns? Is there no other option but to prohibit foreign investment in railways? These are some of the questions that I will try to answer in this post.

Do other jurisdictions restrict foreign investment on grounds of “national security”?

Yes.

Let’s take the example of US. Since World War II, US has traditionally been an ardent advocate of reduced restrictions on foreign investments. However, at different points of time, specific concerns over national security have shaped US policies on foreign investment. For instance, in 1970s, the US Congress had growing concerns about the increasing foreign investment into US from OPEC countries. This led to the establishment of the Committee on Foreign Investment in the US (CFIUS) in 1975 to oversee the national security implications of foreign investment. In 1988, amidst concerns over acquisition of some US companies by Japanese firms, the Congress approved the Exon-Florio provision that granted the President the power to block cross-border mergers with, or acquisition and takeovers of, certain US companies that might threaten national security.

Subsequently, the 9/11 attacks led to the passage of the Patriot Act, 2001 which declared certain sectors as ’critical infrastructure’ (including transportation) necessary for ’national defense, continuity of government, economic prosperity, and quality of life in the United States ’. The following year, the power to identify ’critical infrastructures’ was transferred to the Department of Homeland Security under the Homeland Security Act, 2002. In 2006, the proposed purchase of the US port operations of British-owned Peninsular and Oriental Steam Navigation Company by Dubai Port World fuelled much discontent among US policymakers. This culminated in the enactment of the Foreign Investment and National Security Act, 2007 that changed the way foreign direct investments are reviewed. First, it included ’critical infrastructures’ and ’homeland security’ as areas of concern comparable with ’national security’ under Exon-Florio provision. Second, it requires CFIUS to investigate all foreign investments involving foreign entities owned or controlled by a foreign government regardless of the nature of business. Therefore, it can safely be concluded that ’national security’ concerns may restrict the free flow of foreign investment into US.

Is US an exception?

No.

An OECD study across 39 jurisdictions found that transportation is the most targeted sector all the jurisdictions have discriminatory foreign investment policy in this sector. The discrimination usually takes three forms: blanket restrictions, sector-specific licensing provisions or contracting, and trans-sectoral measures. The study however concludes that discriminatory investment rules serve as a policy of last resort if all other mechanisms fail, investment policy can be used to prevent investments by foreign entities that may pose risks.

Can it be argued that there is a legitimate national security reason to prevent FDI in Indian railways?

No.

Railways and airways are both modes of transportation. Yet under the present Indian laws, FDI in railways is prohibited while it is allowed in ’air transport service’. In ’scheduled air transport service’ 49% FDI is allowed under automatic route and in ’non-scheduled air transport service’ 74% FDI is allowed – 49% under automatic route and beyond it through approval. Moreover, in ’helicopter services/seaplane services requiring DGCA approval’, 100% FDI is allowed under automatic route. If FDI is not prohibited for air transport on grounds of ’national security’, it is difficult to see why railways should be treated differently.

The prohibition of FDI in railways can be traced back to the Industrial Policy Resolution (IPR), 1948. Railways along with atomic energy, arms and ammunitions were reserved only for state monopolies. The position was reiterated in Schedule A of IPR 1956, which expanded the list of industries (to include air transport also) the ’future development of which would be the exclusive responsibility of the state’. The reason for including ’public utilities services’ within Schedule A was for ’planned and rapid development’ and to provide ’investment on a scale which only the State’ could provide. Evidently, national security never motivated the policy makers to include railways as a state monopoly in the first place. So, it is hard to justify the current blanket ’prohibition’ of FDI in railways on grounds of ’national security’.

If FDI in Indian railways is allowed, would it compromise ’national security’ concerns?

No.

Under the present regime, FDI can come in automatically (automatic route) or through Government approval (approval route). If FDI in railways is allowed under approval route, ’national security’ concerns can be looked into by Foreign Investment Promotion Board (FIPB). If it thinks the concerns are valid, it can reject the FDI proposal. If there is no such valid concern, FDI will be allowed. Subsequent to the FIPB approval, if any genuine ’national security’ concern arises, the foreign investment itself will not be protected under bilateral investment treaties (BITs). For example, Art. 14 of the India-China BIT provides for the ’exception’ clause which excludes from the scope of the treaty any action under domestic laws for protection of ’essential security interests’ by a Contracting Party. The ICSID held in CMS Gas Transmission Company v. Argentine Republic (link) (in paragraph 360) that ’essential security interests’ include ’national security’. Therefore, India can take appropriate actions under domestic law (even expropriate the foreign investment) if there are valid ’national security’ concerns.

To conclude, national security is certainly a crucial issue for foreign investment into any country including India. However, apprehension in itself should not be a ground to prohibit foreign investment. The current legal regime gives enough room to India to address these concerns within the rule of law framework. Imposing a blanket prohibition on foreign investment in Indian railways because of vague national security concerns is neither necessary nor justified.

AAP Governance:The dangerous and regressive fight over Electricity pricing

6 Feb

Introduction

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

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

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

 

Electricity regulation in the past

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

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

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

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

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

 

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

 

So what changed?

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

 

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

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

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

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

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

 

Electricity Act and Independent Regulators

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

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

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

State of the power sector today

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

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

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

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

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

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

The Delhi electricity price fight

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

 

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

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

 

————

1. Section 61

2. S. 62

3. S. 65

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

5. Ibid.

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

Interesting reads: Media, merit vs. communism, and elections 2013

10 Dec

Some good stuff to read this week:

Vinod K. Jose in Caravan on the lack of a larger philosophical framework for the Indian media to operate within: “Habits of Mind

Nobel Laureate physicist Walter Kohn remembers one-time partner, Indian physicist Chanchal Kumar Majumdar in “A master and his protege“.

Pratap Bhanu Mehta’s engaging piece on the election verdict in the Delhi, Rajasthan, Madhya Pradesh, Chhattisgarh: “Left Behind

Moiz Tundawala’s incisive piece on the rule of law in India: “ON INDIA’S POSTCOLONIAL ENGAGEMENT WITH THE RULE OF LAW

 

 

 

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.

A parliamentary budget office for India

22 Nov

By Kaushiki Sanyal and Sruti Bandyopadhyay
This article was first published in Mint on Nov 20,2013
At a time when India is going through an economic slow down, it seems counter-intuitive to enact legislation such as the National Food Security Law or continue to dole out subsidies that end up benefiting rich farmers. One reason for these economically questionable actions is the political dividend that parties hope to reap. However, there may be other reasons at work—the lack of understanding among parliamentarians of far-reaching economic impact of government policies. This has grave consequences for a parliamentary democracy where financial oversight is one of the key functions of a legislator. It may also explain to some extent the relative lack of debate on fiscal matters in Parliament.
Data released by PRS Legislative Research since 2000 shows that Lok Sabha has not spent more than 45% of its time discussing the budget. In 2013, Parliament did not discuss the budgetary proposals of any ministry (demand for grants). All were “guillotined” i.e., put to vote without any discussion. In case of Bills, the debate hardly ever goes into their fiscal implications. Financial memoranda of Bills only provide the estimated expenditure at the Union level. For example, the Right to Education Bill, 2008, which required the government to reimburse unaided schools for expenditure on every child, did not provide any estimate for this purpose. The Food Safety and Standards Bill, 2005, only budgeted for setting up the Food Safety and Standards Authority of India. It did not specify whether the cost of implementing this law would be different from the existing system, nor did it account for the enforcement costs to be borne by state governments.
What is holding back members of Parliament (MP) from questioning the executive on fiscal matters? The problem may be lack of expertise among MPs and lack of access to objective and high-quality research that is independent of the executive. Unfortunately, MPs in India do not have a staff of high quality researchers (unlike in other developed democracies) to help them gain expertise in budgetary matters. The institutional research support within Parliament such as a library and reference service is limited due to resource constraints, nor are their research products available readily in the public domain.
A remedy for this may be the establishment of a parliamentary budget office (PBO) in India—a common feature across many countries ranging from developed democracies such as the US, the UK, Canada, Australia, Korea, to Hungary, Uganda, Kenya, Thailand and Bangladesh. PBOs provide legislators with high-quality analysis that is independent of the executive. They specialize in objective and policy neutral analysis on the full budget cycle, the broad fiscal challenges facing the government, budgetary trade-offs and the financial implications of legislative proposals. Such research can raise the quality of debate and scrutiny in Parliament as well as enhance fiscal discipline. Most importantly, it strengthens the role of Parliament in financial oversight.
The key challenges faced by any country that establishes a PBO are threefold—guaranteeing independence and viability of the office in the long-run; ability to carry out truly independent analysis; and demonstrating impact. Countries have adopted different models to suit their specific needs.
The degree of independence of the PBOs varies across countries—in the US, Korea, Uganda, Kenya, Canada and Australia, PBOs fall within the jurisdiction of the parliament, while in Sweden and the UK, it is under the executive. India will need to ensure the independence and non-partisanship of such a body for it to have credibility with legislators. This may best be done if it is established as a statutory body reporting directly to Parliament. A clear set of deliverables may be desirable.
The functions of the PBOs may differ too. For example, the US Congressional Budget Office (CBO) provides information on economic outlook, cost estimates of specific legislative proposals, long-term budget outlook etc. The Canadian PBO provides independent budget projections, fiscal sustainability report, and financial analysis of Bills. In Uganda and Kenya, PBOs exclusively cater to requests from committees while Canada carries out service requests from individual MPs but ranks them below committee requests in terms of importance. The US services requests from committees as well as individual legislators. The UK also caters to individual MPs. It may be worth it in terms of strengthening the legislature if the Indian Parliament were to invest in a well-funded, professionally-run PBO that would cater to both individual MPs and committees.
Has there been any discernable improvement in fiscal oversight in countries which have established PBOs? This is a difficult question to answer given the complexity of policy-making. However, there are some encouraging results. The Canadian PBO contested the true cost of the war in Afghanistan and most famously, exposed the real cost of the government’s proposed F-35 fighter jet procurement. In the US, the CBO focuses on costing or scoring legislative proposals relative to the baseline. This has helped discourage Congress from making unaffordable proposals. In Australia, the PBO does a costing of different political parties’ electoral manifestos, which can discourage unaffordable election commitments.
India will surely benefit from an institutional mechanism that strengthens the capacity of the legislature to hold the executive responsible in financial matters.
It is important to understand that a PBO can only provide independent research; it certainly cannot prevent executives from taking bad fiscal decisions.

Bangalore ATM Attack and police abdication

20 Nov

A woman bank manager was brutally attacked yesterday while inside an ATM in Bangalore yesterday. Apart from the gruesome attack on the lady, what has been bizarrely shocking has been the response of the police to the same.

Facts: On Nov. 20, a woman, who is also a bank manager (not clear if she was the manager of the same bank as the ATM), was attacked brutally by a gun-wielding attacker, who hit her on the head with a machete after she resisted his demand to withdraw cash and hand it to him. The lady, Jyothi Uday, was attacked at 7.10 a.m., and lay unconscious for three hours until 2 schoolchildren saw her and raised an alarm. The right side of her body has reportedly been paralyzed due to the attack. Incidentally, the ATM is located in the LIC divisional office building, 50 metres away from a police station. (Read more here and here)

While the police have launched an extensive manhunt for the assailant (the entire incident has been recorded on CCTV), in a bizarre development, the Home Minister for Karnataka, has also done the following:

1. The Karnataka Government has set a 3-day deadline within which all banks have to provide security guards at all ATM kiosks.

2. ATMs that do not have this security may be locked up/shut down.

The specific statement is: “We are aware that Banks are governed by RBI guidelines. But law and order is a state subject and so we have powers to act against them to ensure Tuesday’s incidents do not recur…”

(This report was published here.)

So, if I may re-frame the argument for the Karnataka government, it is essentially saying:

Law and order is a state subject. That is, the state government has the responsibility to ensure law and order for its citizens. This is usually done by ensuring a well functioning police force, which is alert, and has a good response time. In this case, we do not have either. The lady was lying inside an ATM for 3 hours. The shutter of the ATM was down, when it is usually open. And we had to be alerted by schoolchildren. To get over our inability to provide security, we will force banks to hire security guards. We do not care if this increases the cost of running ATMs substantially. We also do not care if many ATMs have to be shut down, depriving people of access to an easy source of quick, and cheap cash dispensers. We may do a really really bad job of ensuring public safety, but by forcing banks to hire security guards, we can easily solve this problem. Not only do we not have to solve the problem to having to think hard and figure out ways to ensure a better police force, we also do not have to worry about boring stuff like financial inclusion, etc. Tomorrow if pedestrians are killed in road accidents, we will similarly ban people from crossing the road, and force them all to buy cars. So what if many people can then not walk on the road.

All hail our fewi-quik governance.

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.

What entities are public authorities under the RTI Act?

27 Sep

The text below is from my brief titled “Who is a Public Authority under the Right to Information Act, 2005?” as published on the website of Accountability Initiative, published in September 2013. The brief can be accessed here.

 

The definition of ‘public authorities’ under the Right to Information Act, 2005 (“RTI Act”) has been an extremely contentious issue since the RTI came into force. However, in the wake of an order of the Central Information Commission (“CIC”) declaring political parties as public authorities under the RTI Act1, the issue has taken centre stage in public debates. The Central Government sought to undo the CIC decision by proposing to amend the definition of Public Authorities to exclude political parties. This amendment has now been referred to a Parliamentary standing committee. This development affords an important opportunity to examine the definition of public authorities, and controversies arising from its interpretation. The specific focus of this brief is on a sample of cases that were brought to the High Courts.

The RTI Act empowers citizens with the right to access information under the control of ‘public authorities’. Accordingly, RTI Act creates a legal framework to make good this right by defining public authorities, allowing citizens to ask public authorities for information, and imposing penalties on officials of public authorities for failing to disclose ‘information’ defined in Section 2(f). The RTI Act also mandates that “every public authority shall pro-actively disclose information pertaining to it, and maintain its documents and records to facilitate the right to information under the Act”.
Therefore the question of “who is a public authority?” is critical one because it sets the boundaries of the scope of the RTI Act specifically and the transparency regime in the country, more generally. In the last seven years, a wide variety of entities otherwise considered to be private entities (such as schools, colleges and sports associations) have been declared public authorities, and have had to comply with the requirements of the RTI Act. A perusal of judgments of High Courts and the CIC reveals a diverse and at times, conflicting jurisprudence regarding the ambit of ‘public authorities’ under the RTI Act.

 

To read more, click here.

India’s BigLaw: Metamorphosis from deal making to policy activism

24 Sep

This post was first published on http://blogs.law.harvard.edu/legalprofession/, on September 23, 2013. 

As skepticism mounts over India’s economic resilience and economists rush to blame India’s policy framework for the woes of her economy, the role that India’s BigLaw plays in her law and policy making processes assumes greater significance now more than ever before. In the backdrop of an unpredictable, evolving and complex regulatory and legal regime, the quintessential Indian law firm is expected to not only play the flawless draftsman or the aggressive negotiator but also an organization capable of dealing with the regime, its regulators and policymakers. Indian corporate law firms have responded to this demand by claiming policy affairs as a niche area of their legal practice. In this backdrop, this post explores how and why the Indian corporate lawyer has transitioned from a boardroom negotiator and a draftsman to an active participant in India’s law and policy making processes, and highlights potential conflicts associated with this transition.

Today, India’s law and policymaking processes do not only involve the political class, bureaucrats, civil society actors or jurisprudential developments. A proposed policy or law (in particular, one that affects commerce in India) is regularly preceded by well-publicized detailed analyses proactively offered by leading corporate lawyers in the country. As members of expert committees constituted by the government and regulators, providers of feedback on government-released discussion papers, columnists or interviewees in the media, members of business associations interfacing with the government, Indian corporate law firms strive to make conspicuous contribution to proposed laws and policies. The fact that several prominent Indian corporate law firms now project themselves as having an established regulatory and policy practice (which typically includes reform initiatives, legislative drafting work and holding policy-oriented consultations with government actors), underscores their desire to be seen as being active in the policymaking space. A couple of large corporate Indian law firms are now reported to have dedicated, though limited, resources with profiles involving government affairs and policy formulation. These trends are indicative of a progressive tendency to pro-actively contribute towards law and policy making in India.

The growing participation of the corporate legal community in policy and legislative work is directly attributable to an inclusive approach being increasingly adopted by Indian legislators, policy makers and regulators in recent times. Take, for instance, the FDI policymaking space, a most coveted and crowded practice area dominated by India’s BigLaw. In sharp contrast to the pre-2010 era when FDI policymaking processes had no space for involvement of legal professionals, in 2010, the Department of Industrial Policy and Promotion (being the FDI policymaker in India) initiated a discussion paper series inviting comments on proposed FDI policies from all stakeholders [i]. In addition to responses from industry associations, these discussion papers have, in fact, garnered policy-oriented responses from law firms having an established practice in this space [ii]. Similarly, drafts of proposed rules and regulations released by the Ministry of Corporate Affairs and the Securities and Exchange Board of India (the Indian securities regulator) regularly elicits detailed analyses by corporate law firms known for their capital markets practice [iii].

In addition to the policy and regulatory framework, the contribution that Indian corporate law firms have been making to substantive lawmaking cannot be understated. Several substantive corporate laws (such as the Competition Act, 2002, the Companies Act, 2013, etc.) brought into effect in the last decade have been preceded by consultations with law firms known for their expertise in areas governed by such legislations. So much so, the drafting of certain provisions and filings under these legislations was reportedly entrusted to leading legal professionals in the corporate field. Similarly, leading corporate lawyers were engaged as consultants by the government-appointed commission entrusted with the responsibility of overhauling the legal framework applicable to the Indian financial services sector [iv].

Participation of the Indian corporate legal community extends to the implementation and enforcement stages of policies and regulations as well. Owing to the lack of institutional mechanisms that facilitate formal stakeholder participation at the implementation stages, most often, such participation occurs where a law firm identifies an ambiguity or an unaddressed situation in an implemented law or regulation in the course of assisting a client in a transaction, and approaches the regulator or policymaker for clarifications. In the past, queries seeking transaction-specific clarifications have resulted in the regulator or policymaker addressing the problem for the benefit of the general class of stakeholders. A perfect example of this situation are clarifications obtained through the Informal Guidance Scheme implemented by the Indian securities regulator, which is akin to the Interpretive Guidance initiative of the SEC.

In addition to direct contributions of the kind described above, corporate lawyers have made remarkable contributions to the Indian policy framework indirectly through participation in business associations such as the Confederation of Indian Industries, chambers of commerce, etc. Previous evaluations of government-stakeholder consultations in India have indicated that the interests of members of such associations are not always aligned [v]. Conflicting interests amongst members often restrict the ability of business associations to convey their views on proposed and implemented policies to policymakers. Corporate law firms, through their participation in such associations, are able to impart objectivity and clarity to the associations’ collective views on laws and policies that affect the industry. Through presentations made to such associations, participation in specialized committees and consultation processes initiated by the government and regulators with such business associations, corporate lawyers often end up contributing to the policy framework by participating in actual stakeholder and industry-level discussions. For instance, the post-budget announcement days regularly witness tax law firms explaining the implications of the budget on various industries. These views often supply the foundation for opinion-formation by industry-specific business associations on the budget.

Participation by BigLaw in policymaking is mutually beneficial to policymakers, regulators and the participating law firms. While the former are benefitted with the expertise and real-world experience that law firms bring to the table, a capacity to deal with and establish smooth interface with regulators and policymakers can potentially earn a premium for law firms from a client’s perspective. However, the increasing role of corporate law firms in policy formulation and implementation often raises several questions regarding the objectivity underlying their contribution. To what extent are a law firm’s views insulated from client requirements? Do law firms contribute toward policymaking only when warranted by specific transactions? How does one address the inherent conflict of interest while analyzing policy-oriented feedback offered by legal professionals in the corporate field? These questions often reduce the receptivity of lawyers’ views at policy-level discussions. As unregulated as this space currently is, these questions are open-ended and it remains to be seen whether the benefits of professional expertise and legal skills outweigh concerns of objectivity.

Be that as it may, with increasing inclusiveness in the Indian law and policy making space, credit for contributing towards law and policy making in India can no longer be restricted to socially activist lawyers, legal jurists and civil society actors. By volunteering in his own way towards improvisation of proposed and implemented policies, laws and regulations, India’s contemporary corporate lawyer is now making a leap from being a plain dealmaker to a contributor to the law, policy and rule making processes of the country.

Bhargavi Zaveri is a Mumbai-based solicitor with experience in M&A, private equity and corporate practice in India. She is presently an affiliated fellow with the HLS Program on the Legal Profession where she is researching FDI law and policymaking, and the interface between legal professionals and policymakers in India.

India – No country for women?

17 Sep

A fast track sessions court in Delhi awarded the death penalty to the four adult rapists in the December 16 gang-rape case where a young woman was raped and brutalized by six men.  One of the culprits was a juvenile who was sentenced to three years in a remand home (the highest punishment under the Juvenile Justice Act) and the fifth died in custody.  Ironically, according to a newspaper report, of the 23 rape cases Additional Sessions Judge Yogesh Khanna (the presiding judge) heard this year, 20 of them resulted in acquittal, primarily because the evidence against them was not strong.

In another recent incident, a photo-journalist was gang-raped at the Shakti Mills compound in Mumbai giving a blow to its reputation as one of the safest cities in India for women.  It has now come to light that these men were repeat offenders having raped around 10 women including a rag picker and a sex-worker in the last six months.

And this brings us to the core of the problem – the impunity with which the men feel they can get away with sexual crimes in India.  A toxic mix of patriarchal and regressive values about women’s honour and purity, inert judiciary and an unresponsive and ill-trained police force combines to ensure that women rarely report sexual crimes.  If they do report, they are often subjected to further trauma by the police force who may refuse to file FIRs, blame the victim, and make her undergo degrading medical tests.  While collection of forensic evidence is crucial for investigating a rape, the police are hardly trained in new and scientific investigating techniques nor are there sufficient laboratories to process forensic evidence in a timely manner (see here and here).  The judiciary is also no less to blame for causing trauma to a rape survivor – whether through delays or allowing the moral character of the woman to be called into question.

In India, women are subjected to milder forms of street sexual harassment such as groping, stalking, flashing, passing lewd remarks almost on a daily basis.  In fact, such harassment is so rampant in public places that it is taken as normal.  Often women themselves are blamed for such actions.  Therefore, few women even bother to complain and treat it as something that is upto them to avoid.

The public outrage triggered by the brutal rape of December 16 in Delhi finally broke the silence and apathy surrounding these issues.  It also forced the government to set up a committee under the chairmanship of Justice J.S. Verma to recommend changes to the rape laws.   It made wide-ranging recommendations on laws related to rape, sexual harassment, trafficking, child sexual abuse, medical examination of victims, police, electoral and educational reforms.  Based on some of these recommendations, the government promulgated the Criminal Laws (Amendment) Ordinance amending the Indian Penal Code.  The Ordinance became an Act of Parliament when it was passed in the Budget Session of 2013.

However, a lot of the public debate is focussed on the type of punishment that should be meted out to rapists – castration, death penalty or life-imprisonment.  High penalty may be a deterrent only if there is certainty of prosecution, which is sorely lacking given the condition of the police and judiciary.  The data from the National Crime Records Bureau show that while registration of cases has been rising, the conviction rate remains at a low 13%-14%.  The high number of pending cases is also a cause for concern.

Table 1 provides a snapshot of the penalty levied for certain sexual crimes against women and the number of cases registered each year since 2008.  It may be noted that the new Criminal Laws (Amendment) Act, 2013 which amended the Indian Penal Code among other Acts have added new offences such as acid attack and stalking and changed the quantum of punishment in existing offences.  The data for these offences would be available from next year.

Table 1: Penalty for sexual crimes and number of cases registered

Sexual Crimes Penalty 2009 2010 2011 2012
Rape (Sec 376 IPC) 7 years to life (lower for marital rape) 21,397 22,172 24,206 24,923
Molestation (Sec 354 IPC) Upto 2 years & fine 38,711 40,613 42,968 45,351
Sexual harassment (Sec 509 IPC) Upto 1 year & fine 11,009 9,961 8,570 9,173
Indecent Prohibition of Women (Prohibition) Act, 1986 Upto 2 years & fine of Rs 2000 (increases on second offence) 845 895 453 141
Immoral Traffic (Prevention) Act, 1956 Varies between 3 months to 14 years 2,474 2,499 2,435 2,563
Total crimes 74,436 76,140 78,632 82,151
Sources: Indian Penal Code; Indecent Representation of Women Act,1986; Immoral Traffic (Prevention) Act, 1956; “Crime in India -2012,” National Crime Records Bureau.

Table 2 provides the data for the cases of crimes against women that were tried, convicted and acquitted since 2009.  Crimes against women include rape, kidnapping & abduction of women and girls, dowry deaths, molestation, sexual harassment, cruelty by husband and relatives, importation of girls, Immoral Traffic (Prevention) Act, 1956, Dowry Prohibition Act, 1961, Indecent Representation of Women Act, 1986, and Sati Act,1987.

Table 2: Cases of crimes against women that were tried, convicted, acquitted and pending

 

Status of Cases

Year Registered Trials completed Conviction Acquittal % of convictions
2009 203,804 100,611 27,977 72,634 13.7%
2010 213,585 108,933 30,270 78,663 14%
2011 228,650 112,368 30,266 82,102 13%
Sources: “Crime in India – 2012”; National Crime Records Bureau.

As the data shows, there has certainly been an increase in registration of rape cases.  On the one hand this is a cause for concern, on the other it may be a sign that more people are coming forward to register rape cases.  Therefore, it is difficult to conclude whether the number of incidents of rape has gone up or the registration of cases has improved.  However, the high pendency in courts and the low rate of conviction point to the dire need for police and judicial reforms.  Various commissions such as the National Police Commission, the Law Commission, the Gore Committee, the Ribeiro Committee, the Padmanabhaiah Committee and the Malimath Committee have made extensive suggestions to reform the police.  However, hardly any far-reaching reforms have been undertaken to overhaul the law enforcement machinery in the country.

In order to ensure that women not only feel safe to venture unaccompanied in public places but also report crimes, the government, judiciary and civil society need to change their approaches drastically.  The government needs to muster the political will to ensure an independent, well-trained and well-equipped police force.  It also needs to legislate judiciously and ensure that the laws are implemented.  The judiciary needs to tackle pendency, fine-tune the process of selection of judges and ensure that there is better quality of judicial infrastructure and manpower.  Last but not the least, civil society is crucial for not only pressurizing the government to act but also to initiate far-reaching changes in the way women are treated in the country.

Let the public participate

5 Aug

This post was first published in Takshashila’s Pragati – The Indian National Interest Review on May 3, 2013.  The article can be accessed here.

Given the failure of many government legislations in achieving the objectives for which they were formulated, a case for institutionalising deeper public consultations in the legislative process has been made in the recent past. Currently, there are four entry points where citizens can participate in the legislative process: first, the identifying stage; second, the drafting stage; third, the legislative stage; and fourth, the post-legislative stage.

Civil society organisations can alert the government to the need for a particular legislation or changes in an existing law. The Mazdoor Kisan Shakti Sangathan, a farmers and workers group, ran a successful campaign for a Right to Information law, which was finally enacted in 2005. The recent anti-corruption agitation led to the introduction of a Lokpal Bill currently pending in the Rajya Sabha. The long-running Right to Food campaign by a network of NGOs has been instrumental in raising awareness about chronic hunger and the eventual introduction of the National Food Security Bill in 2011.

The government can also suo moto decide that a law is required in a particular sector. It may get inputs from specialised bodies such as the National Human Rights Commission and the Law Commission or appoint a group to study a sector and draft a law. These groups or bodies may hold consultations with independent experts and stakeholders. Furthermore, an individual Member of Parliament (MP) can also introduce a Bill in either House. This is known as a Private Member’s Bill (for example, Lok Sabha MP, Kalikesh Singh Deo introduced the Disclosure of Lobbying Activities Bill in 2013 to regulate lobbying activities). Although these are generally never passed, they act as signalling devices to the government, which may introduce its own legislation on the subject. It is possible for the public to approach their constituency representatives to advocate for a particular law.

Government Bills are drafted by the concerned ministry, which is then vetted by other ministries. There are also times when the government approaches an independent expert to draft a law. Recently, it appointed the Financial Sector Legislative Reforms Commission, under the chairmanship of Justice BN Srikrishna to reform the financial sector laws.

The government may publish the draft legislation in the public domain for feedback. Drafts of the Electronic Service Delivery Bill, the National Sports Bill and the Land Acquisition and Resettlement Bill were published for a specified time period (generally 20-30 days). It may also circulate the draft among a select set of stakeholders for comments.  An individual MP may solicit public feedback on his Private Member Legislation. For example, Biju Janata Dal, MP Baijayant Panda uses his personal website and social media tools such as Facebook to publicise the draft of his private member bills.

There are few avenues of public engagement once the Bill is introduced in the Parliament. Since 1993, 24 Department-related Standing Committees (DRSCs) were formed to scrutinise Bills and other policies of the Government (before 1993 Bills were sometimes referred to ad-hoc committees for scrutiny). Generally most Bills are referred to these DRSCs, however, the presiding officer of the House has the discretion not to do so. For instance, key Bills such as the Special Economic Zones Bill, 2005 and the National Investigation Agency Bill, 2008 were not referred to a DRSC. In contrast, the Lokpal Bill passed by the Lok Sabha was sent to a Select Committee by the Rajya Sabha although it had been examined by the DRSC.

These DRSCs may solicit feedback from the public by issuing notices in key newspapers and the Gazette of India. The public comments are also tabled in the form of a report. However, the level of public engagement varies with different Bills. For instance, the DRSC scrutinising the Companies Bill, 2009 received 101 comments while only 10 submissions were received for the Armed Forces Tribunal (Amendment) Bill, 2012.

The government is not bound to accept the recommendations of the DRSC but individual MPs may introduce amendments to the Bill when it is being considered by the House. The MP may suggest amendments based on the DRSC’s suggestions or any public feedback.

Once Bills are enacted, ministries draft and notify Rules (also known as subordinate legislation) to enable their implementation. These Rules may be scrutinised by the Subordinate Legislation Committee, which is empowered to seek public feedback.

Post legislative scrutiny of laws is not mandatory in India. It may however be undertaken by bodies such as the Law Commission of India, the DRSCs or a specific commission appointed for the purpose who may hold public consultations. Recently, rape laws were reviewed by the Justice Verma Committee before an Ordinance was promulgated on the matter.

Many other democracies have devised meaningful ways to encourage public participation in the legislative process. In countries such as the UK, Australia and South Africa, it is mandatory to hold public consultations or publish draft Bills for comments. In fact, in South Africa it is a constitutionally mandated provision. In the UK, the Government publishes Green Paper and White Paper, which sets out its central ideas on the Bill. After introduction, it is compulsory to refer a Bill to a committee in the UK and the US. However, there is no such requirement in Australia, Canada and South Africa. Unlike in India and South Africa, it is mandatory for the Government in countries such as the UK, Australia and Canada to respond to the recommendations of the committee. While post legislative scrutiny in India is largely a matter of discretion of the Government, in the UK it is compulsory to do so within three to five years. In the US, legislative oversight committees review laws on a continuous basis. In Australia, most laws have to be reviewed within three years.  Public comments are also solicited during the post-legislative scrutiny.

India can learn from the experience of these countries and tailor them to suit our requirements. There are many ways in which the government can deepen public engagement in the legislative process.

First, ministries can be mandatorily required to publish the draft Bill for a reasonable time and publicise it through different media. Along with the draft Bill, the ministry may be required to include available background information on the subject and facilitate access to legal and legislative record on the matter.

Second, it should be compulsory to refer a Bill to a DRSC or select committee for scrutiny. This could be at both the pre-legislative stage and the legislative stage.  These committees should be required to hold wide consultations with a variety of stakeholders (NGOs, state and local governments, special interest groups, academics and legal experts). Public participation may be facilitated by increasing access to constituency offices, using a variety of media outlets to publicise the Bill and creating public participation offices that can interface with the public.

Third, in order to increase transparency in the feedback process, the government could be required to publish a report demonstrating how the inputs from stakeholders have been considered while formulating the law.

Fourth, most Acts should be subject to a post legislative scrutiny through public engagement every three to five years.  This could be carried out if each Bill includes an Explanatory Note giving the criteria or outcomes by which the Bill could be judged for effectiveness.  This responsibility could be given to a specialised committee.

Such measures will result in robust legislations, which shall need lesser amendments and will be successful in achieving the objective with which that legislation was enacted.

State Building in India II: Indian Constitution and new states

31 Jul

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

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

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

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

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

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

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

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

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

Is the Food Security Ordinance a game-changer for India’s poor?

23 Jul

Citing the disruptions in Parliament, the UPA government decided to promulgate the National Food Security Ordinance on July 5. Under Article 123 of the Constitution, the President can promulgate an Ordinance when Parliament is not in session and there is need for ‘immediate action’. It is possible that the government has crossed a line of Constitutional propriety by promulgating this Ordinance since Parliament is about to convene in a few weeks and there is a similar Bill already pending in Parliament. This issue will be explored more fully in my next blog post. In this post, I propose to examine the key highlights of the Food Security Ordinance and whether it would deliver food security to the citizens of this country.

Highlights of the National Food Security Ordinance

  • It entitles upto 75% of the rural population and 50% of the urban population to 5 kg food grains per month at a subsidized rate.
  • Rice, wheat and coarse grains will be sold at Rs 3, Rs 2 and Rs 1 per kg respectively.
  • Central government shall decide the proportion of the population to be covered in each state.
  • State governments shall identify the eligible households in the states.
  • Food grains shall be distributed to the eligible persons through the network of fair price shops under the PDS.
  • In case the central government is unable to supply food grains to the state, it shall compensate the state governments who have to give a food security allowance to each entitled person.

Key milestones in India’s food security policy

The notion that access to food should be a right has its origin within the UN’s 1966 International Covenant on Economic, Social and Cultural Rights. Food security exists when all people at all times have access to sufficient, safe, nutritious food to maintain a healthy and active life.

India’s tryst with food security can be traced back to 1996 when the Supreme Court declared that the “right to live guaranteed in any civilized society implies the right to food”. This was followed by a writ petition filed in the Supreme Court by the People’s Union for Civil Liberties (PUCL) Rajasthan in April 2001 against the central government, Food Corporation of India (FCI), and six state governments. The petition contended that the right to food was a fundamental right under “the right to life” provided by Article 21 of the Constitution of India.

Although no final judgment has been given, the Supreme Court has issued several interim orders in the case. On May 8, 2002, the Supreme Court appointed two Commissioners for the purpose of monitoring the implementation of the interim orders (see reports).

Both UPA I and II made food security an electoral promise and entrusted the task of drafting a legislation to the Sonia Gandhi led National Advisory Council (NAC). On October 23, 2010, the NAC made certain recommendations about the basic framework of the Food Security Bill. In response, the Prime Minister set up an Expert Committee under Dr C. Rangarajan to examine the Bill, which submitted its report in January 2011. It stated that it would not be possible to implement the NAC recommendations because of lack of availability of food grains and huge subsidy implications. The NAC however disagreed with it and prepared a draft Bill in June 2011.

The government finally introduced the National Food Security Bill, 2011 in the Lok Sabha on December 22, 2011. It was referred to the Standing Committee on Food, Consumer Affairs and Public Distribution, which submitted its report in January 2013. The discussion on the Bill had been initiated during the Budget session of 2013. The government also introduced a set of official amendments to the Bill, which have been incorporated in the Ordinance that was promulgated recently.

Ordinance: A hit or miss?

Opinion is divided about the need and desirability of the Food Security Ordinance. Some experts such as Jean Dreze and Amartya Sen are staunch supporters of the Bill given India’s malnutrition rates. Others such as Arvind Panagariya, Surjit Bhalla and Abhijit Banerjee have raised certain key issues regarding the need and impact of such a legislation. In fact, the debate on food security has dove-tailed with a larger debate about India’s governance priorities between two renowned economists – Amartya Sen and Jagdish Bhagwati (see here and here for the Sen-Bhagwati debate on re-distribution vs growth).

The criticism of the Ordinance mainly falls into the following categories: (a) purpose of the Ordinance; (b) identification of beneficiaries; (c) mechanism for delivering food security; and (d) the impact on the food subsidy burden.

Purpose of the Ordinance: The basic premise of the Ordinance is that India has a problem of persistent hunger which has led to high rate of malnutrition. Therefore, the government needs to provide the population with subsidized food grains. These premises have been challenged by various experts. Prof Arvind Panagariya, an economist at Columbia University, has recently attacked the notion that India’s child malnutrition rates are higher than that of Sub-Saharan Africa. Blaming the flawed measurement methodology of WHO, he makes a persuasive case that it is improbable that India is ahead of Sub-Saharan Africa in all other health indicators except malnutrition.

Other experts such as Arvind Virmani point out that persistent hunger is a much lesser problem than malnutrition. According to NSSO, in 2004-05, about 2% of households suffered from hunger at some point during the year. This Ordinance only addresses hunger while the focus needs to be on malnutrition which is a problem of a higher magnitude. Given the data on hunger, it is clear that malnutrition exists not so much because of lack of access to food but because of faulty diet. However, the Ordinance only focuses on providing cereals rather than nutrition rich food like vegetable, pulses and fruits. In fact, it may even have the unintended consequence of forcing farmers to grow cereals rather than fruits, pulses and vegetables.

Some experts have also pointed out that one of the major causes of malnutrition is the lack of sanitation. Unless policies focus on addressing this, malnutrition will remain a severe problem (see here, here and here). Others such as Prof Kaushik Basu have suggested that there is need to redesign how the government acquires and releases food on the market.

Identification of beneficiaries: While the Bill had divided the population into three groups (priority, general and excluded), the Ordinance only has two categories (those entitled to subsidized food grains and those who are not). However, this does not do away with the need to identify beneficiaries and thus can lead to inclusion and exclusion errors. According to some estimates, 61% of the eligible population is excluded from the BPL list while 25% of non-poor households are included in the list. The only way to completely eliminate inclusion-exclusion errors is by universalizing the scheme or by having a clear-cut exclusion criteria (see here). However, given the issue of financial burden, the problem of identification may be tackled through the biometric-linked Aadhaar number (see here and here). Basically, Aadhaar will enable the government to authenticate the identity of a person. It may reduce duplicate and ghost beneficiaries (non-existent beneficiaries). However, the success of Aadhaar in weeding out ghost beneficiaries depends on mandatory enrolment. If enrolment is not mandatory, both authentication systems can co-exist. In such a scenario, people will be able to opt out of the Aadhaar system (see here).

Mechanism for delivering food security: The Ordinance legalizes the PDS even though there is a large body of evidence about the inefficiency of the system (see Wadhwa Committee reports, Planning Commission report). These committees have pointed out issues such as targeting errors, low off-take of foodgrains by households, leakages and diversions of food grains to the open market, adulteration of food grains and lack of viability of Fair Price Shops.

Many experts have suggested other alternatives to the PDS such as cash transfer (see here, here and here) and food coupons. There is evidence that these methods have worked in countries such as Brazil (see here and here). Some advantages of these are: reduced administrative costs, expanded choices for beneficiaries, and more competitive pricing among shops. Also, allowing alternate methods could give more flexibility to the states to adopt the mechanism that suits their needs (see here).

Impact on food subsidy burden: According to the government’s calculations, the Ordinance will take the total food subsidy bill to Rs 124, 747 crore in 2013-14. However, there are other costs related to the implementation of the scheme that may not have been factored in such as cost of procurement, storage and transport of food grains. The Bill had given an annual estimate of Rs 95,000 crore as the cost to the exchequer. However, various experts refuted this figure. Their estimations vary from Rs 2 lakh crore to Rs 3.5 lakh crore (see here and here). The basic problem of having a high food subsidy bill is the effect on the fiscal deficit and inflation. Also, given the limited resources available, if the government prioritises one policy, it adversely impacts resource allocation for other policy goals. Therefore, policy choices need to be made based on what would give the most bang for the buck (see here) rather than on populist rhetoric.

It is imperative that the government considers these critiques while framing its food security policy; otherwise the Ordinance would be another lost opportunity to address a key problem faced by the poor.

What ails India’s public health delivery system

17 Jun

Recently, the Cabinet approved the Ministry of Health and Family Welfare’s new programme, the National Urban Health Mission (NUHM), which seeks to focus on the public health needs of the urban poor. NUHM is the new scheme under the government’s overarching National Health Mission (NHM) programme.

The existing National Rural Health Mission (NRHM) is the other scheme under the NHM. NRHM was launched in April 2005 to provide comprehensive healthcare in rural areas. The programme focuses on 18 states. Each village with a population of 1,000 in these states are to have an Accredited Social Health Activist. NRHM proposes to (a) strengthen existing infrastructure; (b) prepare district health plans; (c) guide sanitation and hygiene projects; (d) strengthen disease control programmes; (e) foster public-private partnerships in healthcare; and (f) implement new finance mechanisms.

Although providing the urban poor with a well-functioning public health system is a dire necessity, it is unclear whether NUHM would succeed in doing so given the government’s poor track record in establishing a public health system in the country. Having said that, it is also true that India has come a long way from the time of independence in terms of providing health facilities to its citizens.

This post focusses on India’s present status in terms of health indicators and public health infrastructure based on the performance of NRHM. Since the NUHM would follow a similar model as NRHM, its chances of success may depend on addressing the bottlenecks in the NRHM.

India’s track-record so far…

Health indicators

India’s dysfunctional public health system has taken a toll on its citizens, especially the poor. Table 1 comparing India’s status with other countries on key health indicators shows that it lags behind many countries. However, public spending on health in India is among the lowest in the world at about 1.4% of the Gross Domestic Product (GDP). Also, households in India spend about 5-6% of their consumption expenditure on health.

Table 1: Health indicators of some countries

Country IMR MMR Life expectancy at birth Total Health Exp (as % of GDP)

M

F

India

44

212

62.6

64.2

4.6

Pakistan

71

320

66.9

67.5

2.6

Ghana

50

350

61.8

63.6

6.9

Bangladesh

49

570

65.8

68.1

3.4

China

22

45

71.8

75.3

4.6

Sri Lanka

12

58

70.8

78.2

4

Malaysia

8

62

72.5

77.2

4.8

USA

7

24

75.4

80.5

16.2

UK

5

12

77.4

81.7

9.3

Sweden

3

5

78.8

82.9

9.9

Sources:All India Progress under NRHM as on 31 Dec, 2012,” NRHM website; “World Population Prospects: the 2010 Revision,” UN, Dept of Economic and Social Affairs, 2011; “MDG Indicators,” UN; Databank of World Bank; 11th Five Year Plan, Planning Commission.

*Note: Infant Mortality Rate (IMR): Deaths per 1000 live births; Maternal Mortality Rate (MMR): Deaths per 100,000 live birth; Total Health Expenditure: Includes public and private expenditure.

Infrastructure

India has an elaborate public health infrastructure but it is mostly dysfunctional with neither proper infrastructure nor trained man-power. According to government norms, urban areas are supposed to have a two-tier system with Urban Health Centres for every 100,000 population, followed by general hospital. There are similar norms for rural areas. Table 2 gives an overview of the multi-tier network through which government health services are supposed to be delivered in rural areas.

Table 2: Norms for public health institutions in rural areas and the shortfall

Tiers Population and staff norms Services Status as of 2012
Sub-Health Centre Level(Gram Panchayat level) 1 Sub-Centre for a population of 5,000 in the plains and 3,000 in hilly areas.Staffed with Auxiliary Nurse Midwife and a male health worker. Perform tasks related to maternal and child health, nutrition, immunisation, diarrhoea control etc. Provided with basic drugs for minor ailments. 1,48,124 (shortfall of 35,762 Sub Centres)
Primary Health Centres (PHCs)(Cluster of Gram Panchayats) 1 PHC for a population of 30,000 in the plains and 20,000 in the hilly areas.Staffed with one Medical Officer and 14 other workers. Acts as a referral unit for 6 sub-centres and has 4-6 beds for patients. Provides a package of essential public health programmes. 23,887 (shortfall of 7,048 PHCs)
Community Health Centres (CHCs)(Block level) 1 CHC for a population of 1,20,000 in the plains and 80,000 in hilly areas.Staffed with 4 Medical Specialists and 21 paramedical and other staff. Has 30 in-door beds and serves as a referral centre for 4 PHCs. Provides facilities for emergency obstetrics care and specialist consultations. 4,809 (shortfall of 2766 CHCs)
District and Sub-District Hospitals(District level) 1 hospital for each district, which is linked to sub-district hospitals, CHCs, PHCs and Sub-Centres.Staff norms vary based on the size of the hospitals i.e. the number of beds. District hospitals generally have 75 to 500 beds. Sub-District hospitals have 31 to 50 beds. Services include OPD, indoor and emergency services. Provides consultation services with specialists. District hospitals provide secondary level referral services for institutions below district level. 627 district hospitals and 305 health facilities

Sources: Annual Report 2010-2011, Ministry of Health and Family Welfare; “Indian Public Health Standards for 201-300 Bedded District Hospitals: Guidelines,” January 2007, MoHFW; “All India Progress under NRHM as on 31 Dec, 2012,” NRHM website; NRHM MIS.

Availability of doctors

Even in places where the infrastructure is in place, there is a shortfall in trained doctors and support staff. Qualified doctors do not want to be posted to rural areas because of lack of educational facilities, irregular electricity supply, lack of potable water, safety issues and lack of well-equipped laboratories. Table 3 shows the percentage of vacancies of doctors at both the PHC and CHC level.

Table 3: Vacancies of doctors in PHCs and CHCs

State

% of vacancy in PHCs

% of vacancy in CHCs

ChhattisgarhWest BengalMaharashtraUttar PradeshMizoram

Madhya Pradesh

Gujarat

Andaman & Nicobar Islands

Odisha

Tamil Nadu

Himachal Pradesh

Uttarakhand

Manipur

Haryana

Sikkim

Meghalaya

Delhi

Goa

Karnataka

Kerala

Andhra Pradesh

Rajasthan

Arunachal Pradesh

Assam

Bihar

Chandigarh

Dadra & Nagar Haveli

Daman & Diu

Jammu & Kashmir

Jharkhand

Lakshadweep

Nagaland

Puducherry

Punjab

Tripura

India

71

44

37

36

35

34

31

30

28

27

22

22

20

19

19

18

14

11

10

7

3

0.4

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

24

90

0

34

NA

NA

88

0

100

62

0

NA

74

94

94

NA

0

0

67

NA

NA

27

49

NA

NA

60

50

0

0

53

81

0

NA

0

40

NA

59

Sources: National Rural Health Mission (available at http://nrhm-mis.nic.in/UI/RHS/RHS%202011/RHS%20-March%202011-%20Tables-%20Final%209.4.2012.pdf). The data for all states is as of March 2011 except Bihar, UP, Mizoram and Delhi where data is as of 2010

Food for thought for policy-makers…

The existing system does not approach the task of providing healthcare in a comprehensive manner. It takes a fragmented disease specific approach with limited scope for innovations. In addition to dysfunctional health infrastructure, there is lack of accountability and discipline in the whole system. Over the years various committees such as the Bhore Committee 1946, Jungalwalla Committee 1967, Bajaj Committee 1996, Mashelkar Committee 2003 and the National Commission on Macroeconomics and Health 2005 have suggested ways to strengthen the health sector. Based on the recommendations of these committees and other experts, below are some policy options the government can consider.

  • Given that out of pocket expenditure on health is very high for Indians, the government needs to focus on reducing household expenditure of the poor by financing comprehensive healthcare package. The Planning Commission’s report on Universal Health Coverage can be a starting point for framing a suitable package that has the most impact on the poor.
  • One of key reasons why the public healthcare system is dysfunctional is the lack of accountability and discipline among the stakeholders. Since government functionaries have security of tenure, there is very little incentive to perform on the job. Therefore, it is essential to establish institutional mechanisms for oversight functions as well as incentivize health personnel to perform well. Some experts have suggested that the community and locally elected bodies through Village Health Committees and empowered management committees be involved in overseeing the functioning of PHCs and CHCs. Similarly, a District Health Authority may be constituted with public representatives. Also, there needs to be performance based monitoring of health personnel.
  • The role of the private sector in providing health care is already well-established. The private sector includes a range of providers addressing different market segments (voluntary, not-for-profit, corporate, for-profit, trusts, and stand-alone specialist services). While there are a number of super-specialty hospitals such as Medinova, Max, Escorts, and Apollo, most providers are sole practitioners or small nursing homes with 1-20 beds. They serve urban or semi-urban clientele. According to some experts, there is need to enforce sufficient regulations on the private sector to ensure that the unqualified health providers or quacks are not able to harm the patients.
  • The focus of any health policy should be the quality of care provided to a patient. A recent study by experts at the World Bank has comprehensively shown that the problem lies not so much in access to public health care but of the quality of care being provided. According to these experts, so far, government policy has focussed primarily on increasing access to public health rather than devising ways to ensure that everyone gets access to quality care. The study suggests some solutions: (a) fundamentally reforming the way medical degrees are awarded and requiring doctors to go for re-certification periodically; (b) doctors may perform better if there is some performance based pay, better monitoring and a denser peer network; and (c) educating people about issues such as over-medication, sanitation, hygiene and waste management.

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).

 

Can “civil” society also reform the state?

13 Sep

-writing from Harvard Law School.

 

Over the last few months, people have either whole-heartedly supported Ana Hazare’s crusade against corruption, or have cautioned against the dangers of un-deliberated actions by civil society. Some have also taken pains to highlight how the movement is seemingly undemocratic.  One of the most interesting analyses I read of the whole movement explains the middle class support for the movement like this (my paraphrasing):

The reason the Indian middle-class came out in such high numbers to support Anna Hazare is not it’s particular concern for corruption. It goes deeper than that. This government promised economic and infrastructural reform to the Indian middle class, and it has not done anything in this regard. The tenure of this government has also been marked by high inflation, to which a global recession has also added. These factors have hit India’s growing middle class hard. They saw their incomes and their standard of living grow during the 1990s, and are becoming more and more aspirational. The lack of any energy on the part of the government in bringing in essential reforms, combined with a stagnation in income levels has greatly annoyed the middle-class.

This has in turn exacerbated this population’s anger against acts of corruption by government officials. In short, “There is a clear connection between the dramatic curbing of lifestyles and ambitions through rising prices and dips in earnings to growing insecurity and coming out on the streets in anger at the threat to the Great Middle Class Dream. The anger is directed at the government headed by Manmohan Singh for letting them down after giving them so much hope.”

Of all the opinions going around on whether the Lokpal movement was needed, or whether it is good, this reasoning for its broad-based support seems the most appealing to me. If it were not for the fact that many acts of corruption have come to light during its tenure, this government has done so little it may as well not have existed!

Local Government II: Central government and local bodies

8 Apr

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

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

The Jawaharlal Nehru National Urban Renewal Mission (JNNURM)

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

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

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

Implementation of projects:

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

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

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

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

What is a true welfare state?

20 Mar

This post tries to pen down my recent pre-occupation with the concept of the ‘welfare state’ as we understand in India.  The dominant story of our democracy through the last 60 years has been of bringing the majority of our population out of poverty, and providing them a social security net.  Even the economic reforms package of 1991 is explained in terms of the ‘trickle-down effect’ i.e. create enough wealth in the country, and it will trickle down to the poorest, making them better off.  My major concern is whether this works best by creating schemes and structures that hand out sops to the poor, or by making it easier for them to find jobs.  I feel that this merits discussion, and so am penning down some illustrations.

Simply put, the main issue I have been thinking about, is whether it is better to create efficient laws that enable the creation of jobs and wealth, rather than creating programs which essentially function as doles.  Take NREGA for example.  It is touted to be the largest social-welfare scheme in the country.  Its purpose is to provide employment, and in doing so, create infrastructure and assets.  However, as many critics point out, the NREGA provides jobs, not creates them.  There is no target on how people will be employed to build a certain amount of infrastructure.  It merely mandates that whoever cannot find a job, has to be given one.  This may involve digging a pit for 50 days, and covering it up for the other 50.

The scheme is not generating employment, or infrastructure.  It is merely handing out cash to poor unemployed farmers, while not really creating any long-term assets that will be useful to them in the long-run.  Agreed, it puts more money in the hands of rural Indians.  But it’s merely taking money from one pocket and putting it in the other!!  This does not generate more wealth in the country.  It just makes rural India richer at the expense of taxpayers!!

Another example could be that of the Factories Act.  The professed reasons for having the same is to regulate factories and the conditions of workers employed in them.  However, many critics point out their inherent inefficiencies.  Factory owners deliberately evade the provisions of the Act because it is so difficult to comply with.  There are innumerable anecdotal stories where one hears of factory owners running four different establishments (instead of one) with less than 20 workers to avoid coming under the Factories Act. Therefore, a law which is ostensibly a welfare legislation, is so difficult to comply with that owner prefer to stay outside its purview, defeating its very purpose.

Or take the Minimum Wage Act.  Workers under it are to be provided as minimum of Rs. 100 a day for every day’s work.  If one works 20 days a month for 12 months a year, one’s earning would be nearly Rs. 25,000 for the year.  However, there must be an analysis of whether minimum wage actually reduces potential for more people finding employment.  The argument is that if it is cheaper for a factory owner to invest in machinery than to pay workers Rs. 100 a day, he will mechanize his factory, thus reducing employment.  This conclusion was also reached by a Joint Economic Committee of the US Congress during the Clinton Administration.

While Rs. 100 seems like a paltry sum, what needs to be considered is whether there is a large number of people willing to work for say, Rs. 70-80 per month, who would otherwise have been employed, but now cannot find work because of our minimum wage law.

I am not proposing that this is indeed the case, but the truth is that in our country, there seems to be no strong alternative view to the dominant view of handing out welfare-based sops, rather than create an efficient and enabling state, which will help job creation, while also preventing exploitation.

Selective transparency: CAG Reports on Defence

17 Mar

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

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

How much does a Supreme Court judgement cost?

3 Feb

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

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

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

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

The judgement of the court:

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

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

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

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

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

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

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

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

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

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.

India v. China II: Tibet

26 Jan

For this entry, I decided to look into the question of Tibet, and came across references to a meeting very few have heard of.  It was probably the last meeting at an international forum that Tibet represented itself as an independent country.

The meeting I refer to is called the Asian Relations Conference of 1947. references to it seem to be strewn all over the net, with speeches of Nehru, Gandhi, and the Tibetan representative being quoted.  Surprisingly, these documents do not mention what representatives from other countries said!!  One prominent expert on the subject states that most countries, including China, had differences of opinion with India, and made them clear at the Conference.

Interestingly, one other write-up on the event also mentions something relevant to the current border dispute regarding Arunachal Pradesh.  It appears that when Tibet was invited to the Conference as an independent nation, it thought the Conference was primarily about border delimitation.  “They collected seven boxes of original documents relating to the Indo-Tibetan borders, including the original Simla Convention documents. They thought that they could eventually claim back some parts of the NEFA (today Arunachal Pradesh) and perhaps also Darjeeling, Kalimpong.”  This statement gives some historical context to the current border dispute between China and India in that region.

Immediately prior to the conference, the Chinese objected to the Tibetan delegation appearing independently.  They objected saying that they would represent Tibet and that it was not necessary to have a separate delegation of Tibetans.  However, the Indian government, after consulting on this matter at the highest levels, decided to allow the Tibetans to represent themselves independently.  Nehru himself replied to Menon a few days before the beginning of the Conference:

“Unable to understand Chinese attitude to Asian Conference when Conference Organisers have fully explained the position which is in no way injurious to Chinese interests. Non-official cultural conference cannot be expected to consider political niceties. We are unable to say whom Tibetans represent till they come.

This statement, and the government’s step of consulting internally without bothering to clarify the particular anxieties of China and Tibet reflects a serious lack of knowledge about diplomatic niceties.  Another criticism levelled against Nehru and his conduct of foreign policy was that because he was head and shoulders above most others in the country in matters of foreign policy, he never invested enough in creating a cohesive institution to deal with foreign affairs.  For a long time, he handled both foreign affairs along with his job as Prime Minister.  His, and the government’s lack of application to a tangible border problem (as well as Tibet) must have only served to heighten tensions between China and India.

India v. China I: Early on

25 Jan

Beginning today, I am planning to write a series of posts on relations between India and China.  I mainly intend to summarise facts and opinions which are being talked about, rather than formulate my own opinions.  My sources are mostly going to be newspaper articles and so on, and also government information, whenever possible.  In this post, I am going to start from the early years of our foreign relations.  I apologise in advance if the series of posts are not historically continuous in spite of my best efforts.

Part I: Before the War

Most conventional knowledge of Indo-China relations before the 1962 war basically rests on the assumption that the two countries were great friends.  I for one, was taught how we welcomed the newly communist China into the international arena, and pushed for its acceptance in the global community.  Then we signed the Panchsheel agreement, and “Hindi – Chini bhai bhai” became the catch-phrase for discussing our relations.  Then we gave refuge to the Dalai Lama, and the Chinese got angry, and decided to invade us, thereby stabbing us in the back.

Recent documents challenge this rosy understanding of our relations with China.  According to a recent newspaper article, India’s ambassador to China in 1958 was told by Prime Minister Nehru not to trust the country despite the Panchsheel agreement. The Indian premier was extremely wary of the country and thought that Beijing had “deliberately chosen to be anti-Indian”. The newspaper article quotes from the Indian ambassador’s (G. Parthasarathi) diary:

“So, GP, when has the foreign office told you Hindi-Chini bhai-bhai? Don’t you believe it. I don’t trust the Chinese one bit, despite Panchsheel and all that. The Chinese are arrogant, devious, hypocritical and thoroughly unreliable.”

“They have deliberately chosen to be anti-India. Your brief from me, therefore, is to be extremely vigilant about all Chinese intentions, policies and actions towards us.”

These words make it amply clear that contrary to conventional understanding that India was caught napping when the Chinese attacked, the Indian leadership was apprehensive of China.

China also saw the Indian Prime Minister as ‘discourteous’.  It was also wary of the world view expressed by Nehru in his book ‘Discovery of India’. China believed that Nehru’s book revealed his idea of a great Indian empire encompassing Malaysia, Ceylon among others.

The mutual distrust highlights how little effort was made to understand each other by the governments of the time.

Judging our judges

20 Jan

Today’s post is an article appearing in the Indian Express, concerning the condition of judges in our country:

In defence of their lordships (Indian Express)

GOPAL SANKARANARAYANAN Posted online: Wednesday, Jan 20, 2010 at 0250 hrs

On September 1 2009, Neeraj Kishan Kaul stepped down as a judge of the Delhi High Court — a mere four months after being sworn into that coveted office. Exactly two months later, Justice V. Giri of the Kerala High Court followed suit, being the first permanent judge of that court to do so. At a time when brickbats are cast on the courts by social activists and judge-baiters, it is a matter of concern that some of the finest judicial talent decline the gavel. Some reflections on the life of a judge in India, could perhaps explain why the Bench is losing its allure.

Overworked: Every week, the average superior court judge is expected to peruse a hundred paperbooks — tightly stitched files containing the fate of the litigant — some of which run into thousands of pages. Coupled with this are the actual court hearings from 10 am to 4:30 pm every weekday, many of which require elaborate, well-reasoned judgments, citing appropriate precedent, culled out through meticulous research. After all, the law of the land is being laid down. In addition are various social engagements, lectures, committee meetings and teaching assignments. Such being the lot of a judge’s life, little time is available for self and family.

Outcast: Thanks to an ill-conceived and overly moralistic resolution passed by the Supreme Court in 1997, those elevated to man the courts are advised to “eschew” contact with members of the Bar and to “practice a degree of aloofness”. Spare a thought for one who has spent the past 20 years in the lap of a convivial Bar with fellow lawyers, only to now be asked to isolate oneself from those very companions of many a tea-room chat.

Obsolescent: In a tongue-in-cheek remark that formed a part of one of his judgments, the English judge, Lord Bridge had said “the populist image of the geriatric judge, out of touch with the real world, is now reflected in the statutory presumption of judicial incompetence at the age of 75”. In India, with Constitutionally prescribed retirement ages of only 65 for the Supreme Court and 62 for the High Courts, judges are presumed to be past their “sell by” date when that golden birthday arrives, even if all their contemporaries at the Bar are still at the peak of their powers. Simply put, if Ram Jethmalani had accepted judicial office, he would have retired 22 years ago.

Impoverished: While a judge in Singapore earns a million dollars a year and his British counterpart makes almost half that amount, as per the recently enacted High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Act, 2009, the Chief Justice of India sits pretty at the top of the Indian judicial ladder with about $ 26,000. That amount is just a little less than what the nation’s reputed corporate firms offer graduating law students. For a more direct perspective, the top 20 lawyers in the country earn that amount in a single day’s hearings. It is little wonder then, that each of them had declined judgeship when offered.

Accused: Enough homilies have been delivered, especially in the recent past, on the conduct of the judiciary. Some arguments have had merit, while others have been plainly motivated. Yet, in all of this, when the integrity of judges have been questioned and the institution’s lack of transparency attacked, little thought is given to the vast majority of honest and industrious members of the Bench who have sacrificed much to be of service to the nation. To weather all of this in the grim knowledge that only silence is permitted requires rare mettle.

Kaul and Giri have returned to enrich the Bar, both commencing practice at the Supreme Court. Their reasons for demitting office remain personal. Yet, one cannot help but wonder that if the factors enumerated above had been different, the result might have been otherwise. Unfortunately, in today’s India, a judge’s chamber no longer possesses the warm hearth on which justice curls up to rest for the night. It is a cold, wet floor, where the silence is only broken by the ticking of a relentless clock.

The writer practices law at the Supreme Court of India

Drugs Hurricane in one of the richest states in the Country

18 Jan

The cover-story of a recent issue of COVERT magazine provides an alarming picture of drug-abuse in Punjab (‘THE DRUGS HURRICANE OF PUNJAB‘).  To quote some statistics:

1. 16% of the population of Punjab is hooked to hard drugs.

2. As of 2000, 67% of rural households in Punjab had at least one drug addict in the family.  The situation has apparently worsened.

3. The State accounts for one-fifth of the total heroin confiscated in the country.

4. HIV infection among intravenous drug users cover 13% of Punjab’s population.

5. Health Ministry officials said, “According to a survey conducted among industrial workers from 200 large scale industries in Ludhiana, 25% of drug users are using morphine, sedatives and tranquilizers. 51% got their supplies from chemists.”

6. Government estimates place 40 lakh persons as addicted to hard drugs, but the number is contested by drug counsellors and others working in the field.

What struck me from this story is that there is no mention of recreational drugs at all.  Such prevalence of abuse of hard-drugs in one of the wealthiest states in the country is shocking indeed.

Amount of freedom in the world

15 Jan

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

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

Ruchika and the Indian Visa embargo

31 Dec

Two new op-eds in Indian Express offer substantial views on the issues discussed in the last entry:

Call off the mob

Article on the Ruchika case highlighting the following issues: (1) the easy acceptance of injustice in society, (2) the systemic failure which prompts the Union Law Minister to say one particular case should be treated as a ‘model case’ (by basically assuring law takes its due course, (3) the government’s sudden anxiety to take up the case after the state has colluded with the alleged wrong-doer for nearly 2 decades, and (4) the surprisingly weak penal provisions for molestation of minors.

Visa wheeze

Highlights the concerns raised in my blog entry about (1) the fact that increasing the number of foreigners visiting the country and our national security at the same time are not mutually exclusive, (2)  such restrictions harm India’s own interests and is bad publicity for us.

Already, four countries including the US and the UK have issued travel advisories against travel to India.

State building in India – I

19 Dec

The re-organisation of states in India may not simply be a question of giving voice to the aspirations of neglected groups within a specific region of the country.  It is also a question of whether such a group will be able to form capable institutions of administration to reap the benefits of statehood.  This is one of the major points of Prof. Mehta’s recent article in the Indian Express.  So on the one hand, while there is a definite case for giving greater regional autonomy to regions which feel they can manage themselves better as independent states, there is also the question of the country as a while assessing whether such a smaller state has the capability to do so.

This is where the central government’s decision to unilaterally concede to the demand for a separate state appears high-handed and arbitrary, and even weak (since they gave in to the demands of a political party which managed just two seats in the last general elections).  It will probably never be known whether the Congress high-command just gave in to blackmail, or whether the decision has been based on a deeper understanding of the issue at hand.

What we do know is that even in 2001, the Congress Working Committee was in favour of a separate state of Telengana, and had asked for the creation of a new States Reorganisation Commission to consider the whole issue.  If the ruling party did have an inclination to look at the Telengana issue favourably, why has it failed to constitute a new States Reorganisation Commission so far?  Why could the government not announce the setting up of a States Reorganisation Commission to look into demands for smaller states in a rational and well-thought out manner, instead of conceding to the demand for a smaller state?  Why did it risk throwing its state-party unit into virtual turmoil soon after it had recovered from the unrest created due to YSR’s death?

There is also the justness of the demand to consider:  The first States Reorganisation Commission (1955) had this to say about Telengana:

377. When plans for future development are taken into account, Telangana fears that the claims of this area may not receive adequate consideration in Vishalandhra [Andhra Pradesh]. The Nandikonda and Kushtapuram (Godavari) projects are, for example among the most important which Telangana or the country as a whole has undertaken. Irrigation in the coastal as of these two great rivers is however, also being planned, Telangana. Therefore, does not wish to lose its present independent rights in relation to the utilization of the waters of Krishna and Godavari.

378. One of the principal causes of opposition of Vishalandhra also seems to be the apprehension felt by the educationally backward people of Telangana that they may be swamped and exploited by the more advanced people of the coacation is woefully backward. The result is that a lower qualification than in Andstal areas. In the Telangana districts outside the city of Hyderabad, eduhra is accepted for public services The real fear of the people of Telangana is that if they enjoy Andhra they will be unequally placed in relation to the people of Andhra and in this partnership the major partner will derive all the advantages immediately, while Telangana, itself may be converted into a colony by the enterprising coastal Andhra.

379. ‘ The Telangana’ it has .further been argued, can be stable and viable, unit considered by itself. The revenue receipts of this area on current account have been estimated at about Rs. 17 crores, and although the financing of the Krishna and Godavari projects will impose a recurring burden on the new State by way of interest charges, the probable deficit, if any is unlikely to be large. In favorable conditions, the revenue budget may even be balanced or indicate a marginal surplus. This fairly optimistic forecast can be explained or justified by a variety of reasons.”

The Committee therefore had focussed on the source and quantum of revenue collection, the capacity of the region to generate revenue, and the apprehensions of the local population.  To put in a nutshell, poorer Andhra would feed off richer but smaller Telengana, and the lack of political space within the state would retard the region’s growth.  For reasons justified or unjustified, these concerns were overlooked, and Telengana has remained a part of greater Andhra for more than five decades.  A new States Reorganisation Commission needs to be setup now, if only to examine whether present agitations  highlight the justification of these concerns, or whether the agitators are merely continuing to voice the same apprehensions which have not borne fruition in Andhra’s history as a state.

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