Tag Archives: judiciary

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.

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

A Virgin’s inclination to be truthful

6 Jan

Indian Express published a story yesterday considering one of those Supreme Court judgments which makes us wonder just how out of touch judges in the Apex Court are with the evolving mores of society.  The issue is simple: The Court has observed that if an Indian woman or girl alleges sexual assault, courts need not look for corroborating evidence if her version of events “inspires confidence”. I have a bone to pick both with the judgment of the Apex Court and the story published concerning the same.

The judgment first: Wahid Khan v. State of Madhya Pradesh (Cr. Appeal No. 1798 of 2008) concerns the rape of a minor (the lady in question was then 12 years old) in 1988.   The minor was rescued from some miscreants by an auto-rickshaw driver, who offered to take her home.  The driver did not however drop her home, took her by an empty stretch of road, dragged her out into the bushes, gagged her and raped her.  He was caught red-handed while performing intercourse by two police personnel.

The judgment while discussing the evidence presented states how medical reports found that penetration had not been complete, and goes on in some detail regarding the intricacies of the act committed (probably routine in such judgments, but brutally insensitive all the same).  The point of contention arose when the counsel for the accused argued that as one of the medical examiners (who had recorded that there had been no penetration)  had not deposed before the lower court, there was not enough evidence to corroborate the story of the victim.

In all fairness, the Court’s first step was to state settled law in this regard, which is that:

Rameshwar v. State of Rajasthan (1952): “The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge….”

Essentially saying that corroborating evidence is not an essential requirement for conducting a person, but the need for corroboration should always be present in the mind of the judge.  Then however, the Court goes on to add:

It is also a matter of common law that in Indian society any girl or woman would not make such allegations against a person as she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are. (Para 21)

Some points which I found interesting in the above-quoted paragraph:

1. The Court mentions that it is a matter of “common law” that women do not make senseless allegations.  I hope this is a typing error, else our Apex Court actually believes “common law” (a well-defined body of law derived from our British colonial legacy) to include the degree of seriousness exhibited by women in rape cases!!

2. The Court assumes unmarried (also spelled ‘chaste’) women usually tell the truth.  Does this assumption include all unmarried women, or only ‘chaste’ unmarried women?  Importantly, will a different degree of corroboration be required in rape cases where the victims are married, or unchaste?

3. The Court rightly points out that Indian society is socially backward, but then proceeds to use that as a reason to argue that prevailing dogmas lend the evidence of women credibility to a point where no corroboration is required!!  To substantiate this point, I quote the next paragraph of the judgment:

Thus, in a case of rape, testimony of a prosecutrix stands at par with that of an injured witness. It is really not necessary to insist for corroboration if the evidence of the prosecutrix inspires confidence and appears to be credible.

While the previous paragraph could be considered mere observations by judges in a criminal case, the portion quoted above does read like a definitive interpretation/ clarification of existing law which would be binding in the future.  Will it lead to a flurry of decisions by judges who will consider evidence given by rape victims to be ‘credible’ and confidence-inspiring and dispose of the time-consuming task of looking at corroborative evidence?

The Article in Express: The article makes two points not mentioned above – (a) In a system cruelly stacked against women, the “sole testimony of the prosecutrix has been accepted as sufficient for conviction in most cases of sexual violence”, and rightly so; and (b)  While doing so, the Court however uses the approach of treating women as victims, and uses concepts of shame and violence to discuss sexual violence.

While I agree with the second point, I have serious issues with the first one.  While it is understandable that the judiciary will try to be innovative if it wants to dispense justice to victims of sexual assault and rape, dispensing with the need for corroboration constitutes a severe dilution of evidentiary standards.  Failure of the prosecution to adduce good evidence might definitely be one of the factors in the low conviction rate in rape cases.  It is however just one of many, including non-reporting of cases, refusal by the police to register FIRs, pressure by family and friends etc.

In fact, the Court need not even have discussed this issue, since it itself noted that in the present case, the evidence presented was consistent, and did not need corroboration at all!!

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