Tag Archives: politics of india

The war on the war on higher education

15 Jul

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

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

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

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

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

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

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

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

Let the public participate

5 Aug

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Disaster management: How prepared are we?

25 Jun

The flash floods and landslides caused by sudden heavy rains in Uttarakhand and Himachal Pradesh on June 15 have resulted in heavy casualty and loss of property.  The death toll is likely to be about 1000 while over 20,000 people still need to be evacuated.  Currently, rescue operations are being carried out by several agencies such as the Army, Indo-Tibetan Border Police (ITBP), Border Security Forces (BSF), and the National Disaster Response Force (NDRF) (see here for latest updates).

However, various news reports (see here, here and here) have highlighted the lack of disaster preparedness of the authorities in the state and the centre.  In fact, news reports suggest that the Indian Meteorological Department had warned Uttarakhand government of the likelyhood of heavy rainfall within 48 hours.  However, the local authorities failed to issue any warning or analyse the likely effect of such rainfall.  Given the size of its population and the high risk it faces from natural disasters, it would be absolutely criminal for India to be lackadaisical about its disaster preparedness.

In this blog post, I provide a quick analysis of where India stands in disaster management preparedness.

A blue-print for disaster management

India first woke up to the need for a holistic approach to disaster management (and not relief centric) after the devastation caused by the Indian Ocean tsunami, the super cyclone in Orissa and the earthquake in Gujarat.  Disaster management was recognized as a development issue for the first time during the 10th Five Year Plan (2002-2007).  In 2005, the government passed the Disaster Management Act, to provide for effective management of disasters.  It defined disaster as a catastrophe, calamity or grave occurrence in any area due to man-made or natural causes or by accident where there has been substantial loss of life and property.  The Disaster Management Policy was framed in 2009.

The Ministry of Home Affairs is the nodal ministry for disaster management.  The National Disaster Management Authority (NDMA) is mandated to deal with all types of disasters, natural or manmade with certain exceptions (such as terrorism, counter-insurgency, serial bomb blasts, and hijacking, mine disasters and forest fires).  The National Crisis Management Committee (NCMC), headed by the Cabinet Secretary handles these issues.  NCMC gives directions to the Crisis Management Group, which actually deals with all the matters related to relief activities in the case of any major disasters.

National level authorities under 2005 Act

  • The Act established the NDMA and provided for setting up advisory committees and a National Executive Committee to aid the NDMA in performing its functions.
  • NDMA’s functions include (a) laying down the policies, plans and guidelines for disaster management; (b) approving the National Plan and the plans of various ministries; and (c) laying guidelines for state authorities.  It shall also recommend guidelines for the minimum standard of relief to be provided to persons affected by the disaster (relief camps, ex-gratia assistance).
  • The National Executive Committee would prepare a National Plan for disaster management of the country.
  • The National Disaster Response Force (NDRF) would be under the general superintendence of NDMA but the command of the force shall be with the Director General of NDRF to be appointed by the central government.

State and district level authorities under 2005 Act

  • Every state government has to set up a State Disaster Management Authority, which would be assisted by advisory committees and State Executive Committee.  In addition, it has to set up District Disaster Management Authorities in every district of the state.  The State Executive Committee is responsible for implementing the national and state plans and act as the coordinating and monitoring body for management of disaster in the state.

Penalties

  • The Act also lays down penalties ranging from one to two years imprisonment and fine for offences related to obstruction of any officer in the performance of his duties, false claims, misappropriation of money or material and for making false warning (relevant government officials have been given blanket immunity from this provision).

On-ground status on implementation

By the end of the 10th Plan, a skeletal structure for disaster management had been put in place.  A central law on disaster management was enacted in 2005 and the National Disaster Management Authority was set up.  However, the Act itself had certain shortcomings which contributed to its poor implementation record.

Shortcomings in the Act

The Standing Committee on Home Affairs had examined the Disaster Management Bill and made certain recommendations, most of which were not incorporated in the 2005 Act.  It suggested that at each level, the respective authority should include elected representatives from the Parliament, State Legislatures and local government bodies.  At the district level, there should be a Relief Commissioner (other than the District Collector/Magistrate) to ensure that affected population in disaster hit areas get relief.  Although the Act included penalties for giving false warning and causing obstruction, it is not clear who would be the complainant in such cases.

Other experts (see here and here) also pointed out loopholes in the Act, which might make it less effective.  They include (a) lack of clear guidelines on who shall be entitled to relief and compensation under the Act; (b) lack of clarity on who shall be monitoring the performance of the various agencies set up under the Act; (c) lack of clarity about coordination between the different agencies; (d) no guideline on how to differentiate between a disaster and a disaster of severe magnitude; and (e) no provision for declaring a disaster prone zone or classifying disasters in various categories.

Poor implementation record

The level of preparedness for disaster management at the centre and the states is very uneven.  According to a 2012 report by the Institute of Defence Studies and Analyses, even after six years of the enactment of the Disaster Management Act, many states have not yet established the state-level authorities.  The report concludes that the present capability of civil administration for combating disasters remains inadequate and they rely on the armed forces for major emergency responses.

In 2013, the Comptroller and Auditor General (CAG) released a performance report on India’s disaster preparedness.  It found critical gaps in the preparedness level for various disasters.  It found NDMA to be ineffective in most of the core areas since it neither had information and control over the progress of the work at the state level nor could it successfully implement various projects.  The report stated that the National Executive Committee had not met after May 2008; the National Plan for Disaster Management has not yet been formulated and there were delays and mismanagement in respect of State Disaster Response Fund.

Response to a specific disaster is the best test of the level of disaster preparedness.  However, the response to the Uttarakhand floods has exposed the lack of preparedness of administrative machinery.  While natural disasters may be unpredictable, India cannot afford to wait for the next disaster to strike before getting its act together.

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

21 Jun

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

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

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

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

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

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

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

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

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

Public Services Legislations in India

 

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

* bill text is not available

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

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

Aside

Who watches Big Brother?

20 Jun

Recent news reports provide a sneak peek into the blueprint for the National Cyber Coordination Centre in India.  According to a 2012 Report of the Institute for Defence Studies and Analysis, India’s intelligence agencies and their policy development wings are extremely fragmented.  Thus, the decision to prefer a central authority that would coordinate between different intelligence departments is good, and should be heralded.  However, surveillance strategies typically raise concerns over the right to privacy.  Surveillance agencies are empowered to monitor, record, and intercept communications that may even be private, and access stored private information.  While intelligence collection is required for ensuring security, procedural safeguards are required to ensure that the right to privacy is not violated.  In this article I discuss privacy concerns in the context of their accountability to the electorate and hope to provide a solution that treads the fine balance between right to safe and secure environment and the right to privacy.

The devil lies in the details

Not all intelligence and information collection agencies in India are established under a statute.  For instance, National Intelligence Grid (NATGRID), Unique Identity Authority of India (UIDAI now proposed to be replaced by the National Identity Authority of India), Intelligence Bureau (IB), do not have statutory backing.  Other agencies, such as the Computer Emergency Response Team-India (CERT-In) and National Infrastructure Information Protection Centre (NIIPC), have been envisioned under the Information Technology Act, but its structure and procedures have not been dealt with. Right to private communications was held to be a fundamental right by the Supreme Court of India under Article 19 and 21.  However, communications can be intercepted in case of “public emergency” or “in the interest of public safety”.

Checks against agencies that conduct surveillance and collect information are often not borne out of the enactments under which they are constituted.  For instance, the Telegraph Act did not require surveillance agencies to adhere to procedures that protected the right to privacy.  It was only after the Supreme Court delivered its decision in PUCL vs. UOI (1997), Rules were notified to provide safeguards to privacy in case of interception of telephone calls.  The Rules require permission to intercept from the Home Secretary, which are reviewed by a Review Committee. Similarly, the Information Technology Act, 2000 does not provide guidelines to Computer Emergency Response Team-India or the National Infrastructure Information Protection Centre on how they may use surveillance powers.  Under various provisions of the enactment (Sections 69: interception or monitoring or decryption of any information; and Section 69B: monitor and collect traffic data or information) the government is empowered to monitor online communications.  The enactment however delegates the power to specify procedural safeguards to surveillance.  Admittedly, the safeguards provided under the Telegraph Act have been notified under the IT Act as well.  But the question remains, should the manner in which a fundamental right can be impinged, even on the ground of public interest, be left to the discretion of the executive?

While delegated legislation has developed to provide procedural safeguards to surveillance activities, there is merit in statutory provisions to this effect.  Delegated legislation, such as Rules and Regulations, do not require prior approval of the democratically elected representatives.  They are neither proposed by a member, or subject to in-depth scrutiny by a parliamentary committee that has expertise on the subject.  Rules are deemed to be passed by the parliament once they have been tabled for a period of time, unless they are specifically objected to by a member.  Past experience is telling in this respect.  The Information Technology Rules, 2011 relating to the rights of citizens to express themselves on the internet are in force despite an assurance to review the Rules by the Minister for Information Technology.  On the other hand, statutes undergo rigorous scrutiny by the parliament and allow for citizen engagement at various stages of development. A number of information collecting, sharing and monitoring agencies have been set up without concomitant legislations.  The UIDAI, which is established under the Planning Commission, is not a statutory body.

Similarly, the Crime and Criminal Tracking Network and System, launched by the Home Ministry, is not sanctioned by Parliament.  The NATGRID, which links various databases between intelligence and investigative agencies on the one hand and service providers, such as telecom companies, banks, etc, to enhance our counter terrorism capabilities is also not established through an enactment.  Functions performed by these entities and the powers they wield are likely to impinge the rights of citizens to privacy.  These bodies are not guided by statutory principles for protecting the fundamental right to privacy.  Therefore, the need for accountability in relation to these agencies is higher.

Parliamentary scrutiny of surveillance agencies

Indian law enforcement, surveillance and security agencies have preferred to stay in shadows, protected from demands of accountability.  While these agencies are responsible to the parliament through the Ministers, their accountability has been limited as: (a) there is no requirement for ministries to provide detailed reports about the functioning of these agencies to parliament; (b) annual reports that discuss their working are very skeletal (see here at page 24 – MHA’s annual report that discusses NATGRID). These agencies are also exempt from scrutiny of citizens under the Right to Information Act.  The RTI provides a blanket exemption to intelligence agencies such as IB and RAW and to other agencies when the information dealt with is sensitive in nature.

While such protections are warranted, given the nature of the information that they deal with, adequate mechanisms for accountability need to be developed to ensure that these agencies function within the fold of the policies envisioned by the legislature and the rights it seeks to protect.  The parliament, as the representative of the people, has the onus to ensure that agencies established by the government function according to the demands of national interest.  This may be done through means of direct accountability of officers from these agencies to the parliament, frequent detailed reports of their working, and institution of a parliamentary committee that oversees intelligence agencies across ministries. In developed democracies, intelligence agencies are responsible to the legislature and have to frequently justify their actions to the elected representatives.

For instance, the Government Communications Headquarters (GCHQ) that conducts surveillance in the UK, is responsible to the Intelligence and Security Committee, which comprises parliamentarians though it is not a parliamentary committee.  Government officials are statutorily required to share information with the Committee.  The Committee is answerable to the PM and through him to the parliament.  The Committee Reports are debated in parliament.  In response to the recent allegations arising from the Snowden leak, that the GCHQ relied upon the US surveillance systems to monitor British citizens, the agency is due to submit its report to the Committee.  On the basis of the Report, the Committee will decide its future action.  Such scrutiny ensures that agencies maintain the balance between national security and individual liberties.  It also helps the legislature innovate solutions in real-time to circumstances such as those in the UK today.

Need for Safeguards against “Big Brother”

The fractured politics of today have made the Opposition voices stronger.  The decision to roll-out National Counter Terrorism Centre was shelved when it was rejected by various regional party led governments.  Any move to increase surveillance, needs to be balanced with safeguards of parliamentary oversight and statutory protection of the right to privacy.  In the absence of these rudimentary good governance checks and an overarching law on privacy, the surveillance program would fail to secure the people’s buy-in and only increase the trust deficit between the elected and the electorate.

The Report of the Group of Experts on Privacy too had noted the importance of accountability to ensuring privacy.  It stated that “accountability provides directions for enterprise wide implementation of privacy. For the commitment to accountability, organisations are expected to undertake a trust building exercise in respect of its responsibility towards privacy.”  How the government will undertake trust building exercise remains to be seen.

The Naxal, the Tribal, and the Doctor

19 Jun

Recent news reports state that the Chhattisgarh government has asked International Committee of the Red Cross (ICRC) to suspend its operations in the Bijapur district where it had operated for the past two and a half years. ICRC had been providing medical help to violence hit people in the tribal dominated area. This order of suspension raises important questions about (a) the duty and ability of the state to provide medical services to the tribal population in that area, and (b) the willingness of the state to allow medical services to affected people in an area affected by Maoist violence.

 

Bastar district is a predominantly tribal area, with more than two-thirds of the population belonging to the Scheduled Tribes category. Ninety percent of the population is rural, more than 87% of the population is employed only seasonally, and literacy levels are among the lowest in Chhattisgarh. Two thirds of the Village Reports, or Jan Rapats prepared by the villagers themselves (Jan Rapats are prepared by all villages in Chhattisgarh, and reflect the needs and views of the villagers) state that health facilities in these areas are very poor.

“Most villages emphasise that the availability of medicines, appointment of health personnel, improvement in the quality of health care, Government aid, and the availability of clean drinking water are areas that require attention.”

 

Though 6.25% of Chhattisgarh’s population is based in the Bastar district, the area had 3 hospitals, no dispensaries, and 57 Primary Health Care centres as of 2001. Forty percent of the population had no access to toilet facilities, safe drinking water, and electricity as of 2001.

(Human Development Report Chhattisgarh, 2005. Available here.)

 

Bastar has also been in the news recently owing to the naxal attack on Congress’ Parivartan Yatra convoy on May 25, 2013, during which senior Chhattisgarh Congress functionaries and security personnel were killed.

ICRC first expressed its willingness to enter Naxal affected areas in Chhattisgarh in 2008, and was welcomed by Chief Minister Raman Singh (Sourced from here):

“Certainly, ICRC plays a vital role in mitigating the sufferings of people in conflict zones across the globe. With the kind of resources and expertise ICRC has at its command, its presence will benefit the poor tribals of the region where a huge population is suffering and hundreds of children have been orphaned in the conflict…”

Interestingly, he went on to say,

“We have no problem even if such organisations provide medical assistance to Naxalites injured in encounters with security forces…We also do the same thing. Whenever Naxalites are injured, they are hospitalised so that they can be punished by a court of law for their crimes.”

 

Since 2010, ICRC has run a Primary Health Care centre, mobile clinics, and a hand-pump rehabilitation programme to ensure safe drinking water for the tribal population. According to another Times of India story, international agencies have helped play a crucial role in providing essential health care facilities in the region:

“Last year, when a diarrhoea epidemic broke out in South Bastar, killing nearly 100 people, Bijapur administration had enlisted the support of MSF and UNICEF, apart from calling doctors from other districts. But in Dantewada, in the absence of such an intervention, and in the face of an acute shortage of doctors, a large unknown number of people died without medical support.”

Then why the order of suspension?

The order of suspension has ostensibly been given by the district administration because “…ICRC is yet to enter into a Memorandum of Understanding with the state government” regarding its work in the region. State government sources have said that since ICRC is an international organization, it needs “certain clearances from the centre” for carrying out its operations.

If ICRC has operated in Bastar since 2010, how was it able to function without obtaining clearances from the central and state governments for almost three years? How was it able to bring in medical equipment, and (presumably) foreign personnel into a security sensitive area, and operate without the required permissions for all this time? Does the state and district administration seriously expect people to believe that they allowed ICRC to work in a Naxal dominated area for close to three years without the proper paperwork?

 

News reports indicate that other reasons may also be at play here. In 2011, the police in south Bastar and Dantewada had alleged that ICRC, along with MSF (Doctors Without Borders) which had been operating there since before ICRC started working there, was facilitating the treatment of Maoist rebels. Two Maoist rebels who had been arrested claimed that they were being treated by ICRC and MSF.

“These two organisations are deliberately going to Maoist camps and spending weeks. The foreign doctors should know what they are doing. I am from an enforcement agency and can’t welcome them having extra love for Maoists, but not for people injured in Maoist brutalities.” – Senior Superintendent of Police, Dantewada (Sourced from here)

 

According to him, people from the two organisations could be prosecuted under the Chhattisgarh Special Public Security Act that prohibits direct or indirect contact with Maoists.

 

The recent order of suspension, coming soon after the Maoist attack on May 25 can then also be seen through the lens of an overzealous state and district administration irked by the fact that ICRC is treating Maoist rebels. If in fact this is the case, several questions beg to be asked: What prevents doctors from treating Maoist rebels injured in conflict, especially after the Chief Minister himself expressly stated that he would be fine with such treatment? Does the duty of a doctor to treat injured people depend on whether a person is suspected of being an insurgent or terrorist? Does such treatment in itself make a doctor an accomplice in the crimes the injured is suspected of having committed? If yes, should lawyers representing suspected terrorists also be made accomplices to crimes committed by their clients?

 

The central government has repeatedly touted its plan of combining development with improving law and order as a solution to Naxalism in these regions. ICRC is one of the most reputed health care agencies operating in Bastar, an area with a clearly documented lack of health care facilities. The administration at all levels clearly needs to reconcile its twin goals of development and security enforcement in a transparent, and rational way. Essential health care for tribals in a conflict-ridden area, and the work of doctors cannot be left to the alternating prioritization of security enforcement and development. This is especially so when the Jan Rapats reveal how miserably the state has failed in meeting the expectations of the local population.

 

Should cheque-bouncing be a crime? Issues and consequences

18 Jun

It has been estimated that about 30% of criminal cases in Indian courts are either cheque bouncing or traffic offences. The government has now proposed to amend the Negotiable Instruments Act (N.I. Act) to decriminalise the offence of bouncing cheques (called `138 N.I.’ in legal circles) (See here). This move is aimed a decongesting the judicial system.

The criminalisation of writing cheques without a sufficient balance was introduced in India in 1988. It was an addition to a much older British law called the Negotiable Instruments Act, made in 1881. The reason for the amendment was the endemic problem of cheques being dishonoured. This had made it difficult to do transactions where payment and delivery don’t happen instantaneously. Mistrust of cheques was encouraging cash transactions, with consequent problems of counterfeiting, costs of storing and moving cash, and the law enforcement problems of an underground economy.

In 1988, when the amendment was brought in, no estimation was done of the additional burden on the criminal court system because of the law. This episode has taught all of us that every time legislation is enacted, careful calculations need to be made about the costs of enforcing the law and these costs should find their way into budgets.

The de-criminalisation of cheque bouncing is a good move. It will reduce the burden on criminal courts. However, the cheque bouncing cases are symptomatic of a deeper malaise: poor contract enforcement. While we may cheer the demise of a poorly thought out and draconian measure in 1988, there is a dark side to this as well.

Consequences for contract law

One of the best achievements of the World Bank is their `Doing business’ database. India ranks poorly on many counts in the Doing Business 2013 report. Of the 10 indicators tracked by the report, India’s rank is worst in Enforcing Contracts, where it is ranked 184th out of 185 countries:

  1. It takes 1,420 days to resolve a contract dispute.
  2. 39.6 percent of the contract value is lost, of which 30% is paid out as fees to lawyers.
  3. Even after getting a judgment in your favour, it takes 305 days to enforce the judgment.

Given the absence of good contract enforcement, after 1988, cheques were often used by the recipient of funds to create a deterrent against reneging. A common method of ensuring regular payment of rent is to use post-dated cheques. The landlord takes the entire year’s rent in post-dated cheques. This allows the landlord to bypass the entire rent-controller and court system for evictions when rent is not paid on time. With the voucher from the bank (recording the dishonouring of the cheque), the landlord can file a criminal complaint against the tenant.

This is a bad system of contract enforcement! It is biased towards the party which expects payments and has no remedy to the party which is getting a service or good. As an example, if the tenant sets off some rent because of mandatory repairs which the landlord failed to carry out, the tenant is perfectly allowed to take a defence of `set-off’ in a contractual relationship. However, underlying the NI act is a presumption of debt, which will let the criminal case continue till the tenant is able to establish that there had been a valid set-off.

On a similar note, while the existing Section 138 of the NI Act is a draconian idea and bad in many ways, it has interesting positive effects when placed in an environment of bad contract enforcement. Consider the penalties for bouncing a cheque:

  1. Imprisonment for up to 2 years, or,
  2. Fine up to twice the amount involved, or,
  3. Both of the above.

This is draconian, but there is considerable legal certainty. In contrast, when a contract is violated, there is no statutory method for calculating the amount of damages that the violator has to pay. Given the delays in contract resolution, and the legal and administrative costs, which are usually not awarded, the net receipt is generally much lower than the amount owed. Indian courts are not bound by a strict statutory requirement of calculating litigation costs and interest accrued is rarely granted from the date of dispute. For this reason, there was some method in the madness of S.138 of the N.I. Act.

Consequences for courts

The proposed withdrawal of 138 N.I. has not adequately been thought through, in terms of the implications for the judiciary and the legal system. It is being argued that for many cases, arbitration will be done. However:

  1. What about the increased civil court burden? As argued above, post-dated cheques were used as a substitute for contract enforcement services of civil courts. When this mechanism is no longer available, there will be a surge in contract disputes. This flow of cases will atleast partially counteract the de-bottlenecking of courts that will come from removing cases associated with S.138.
  2. Where will we get the increased number of arbitrators? There are very few arbitrators in India, and there is no institutional system of providing arbitration services outside the larger cities.
  3. Who will bear the costs? The costs of arbitration are very high in India. While it may be appropriate for large businesses to internalise their dispute resolution mechanisms, smaller businesses should have access to a court system.
  4. Will arbitration be faster? There is no standardised procedure in the arbitration system in India for cheque bouncing cases. Evidentiary and procedural variety will lead to more challenges in appeal and increase the burden of the judiciary where every appeal will have to be checked for procedural propriety.
  5. Does the judiciary have the bandwidth to cope with the case load that will appear for review? Orders of arbitrators will be appealed to the higher judiciary. In many cases the courts will have to intervene to appoint arbitrators.
  6. Will people write more bad cheques? The authority of the arbitration system is based on the efficiency of the court system. The rational violator knows that the arbitral award will go to the same over-burdened judiciary where penal costs are rarely imposed, so there will be little incentive to honour arbitration awards.

Conclusion

S. 138 of the N. I. Act is a reminder to us of the complexity of public administration reforms. When liberal democracy works well, it is a Rube Goldberg machine with immense complexity of many moving parts. Simplistic reasoning will almost always lead us astray with unintended consequences. Hurried changes of law (such as those produced through weekend drafting projects) will almost always go wrong. Well done law will almost always require enormous effort, will require sophisticated thinking about incentives in envisioning legal effects, and will involve a certain element of complexity.

Faced with a problem like S.138 of the N. I. Act, what is a thinker of government to do? There is a real opportunity in thinking outside the box. The solution to making payments lies not in making cheques work better but in fundamental change in technology: by moving to electronic payments. All these problems go away if you pay me on an electronic system, and within one second, I know whether I have received the money or not. Our job is to dematerialise money, just as we have dematerialised shares. This will also require consequent changes in the Payments and Settlement Systems Act, which has mistakenly copied S.138 of the N. I. Act. This requires new thinking in financial policy so that India can get to a sensible payments system.

Electronic payments is of course no substitute for the public goods of contract enforcement. India desperately needs a good legal system, which comprises laws, lawyers and courts. But in this specific case, the storm of complexity associated with cheques is actually something that can be completely side-stepped. Amidst the debate around S.138 of the N. I. Act is a failure of imagination on policies about the payments system.

What ails India’s public health delivery system

17 Jun

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

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

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

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

India’s track-record so far…

Health indicators

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

Table 1: Health indicators of some countries

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

M

F

India

44

212

62.6

64.2

4.6

Pakistan

71

320

66.9

67.5

2.6

Ghana

50

350

61.8

63.6

6.9

Bangladesh

49

570

65.8

68.1

3.4

China

22

45

71.8

75.3

4.6

Sri Lanka

12

58

70.8

78.2

4

Malaysia

8

62

72.5

77.2

4.8

USA

7

24

75.4

80.5

16.2

UK

5

12

77.4

81.7

9.3

Sweden

3

5

78.8

82.9

9.9

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

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

Infrastructure

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

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

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

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

Availability of doctors

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

Table 3: Vacancies of doctors in PHCs and CHCs

State

% of vacancy in PHCs

% of vacancy in CHCs

ChhattisgarhWest BengalMaharashtraUttar PradeshMizoram

Madhya Pradesh

Gujarat

Andaman & Nicobar Islands

Odisha

Tamil Nadu

Himachal Pradesh

Uttarakhand

Manipur

Haryana

Sikkim

Meghalaya

Delhi

Goa

Karnataka

Kerala

Andhra Pradesh

Rajasthan

Arunachal Pradesh

Assam

Bihar

Chandigarh

Dadra & Nagar Haveli

Daman & Diu

Jammu & Kashmir

Jharkhand

Lakshadweep

Nagaland

Puducherry

Punjab

Tripura

India

71

44

37

36

35

34

31

30

28

27

22

22

20

19

19

18

14

11

10

7

3

0.4

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

24

90

0

34

NA

NA

88

0

100

62

0

NA

74

94

94

NA

0

0

67

NA

NA

27

49

NA

NA

60

50

0

0

53

81

0

NA

0

40

NA

59

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

Food for thought for policy-makers…

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

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

The extinction of the Telegram

14 Jun

Firstpost reports that the Telegraph service in India will be discontinued from July 15, 2013, 160 years after the service was started in India. While telegrams have really become a relic, a service that people hardly use anymore, the growth and advent of telegraphs in India parallels the growth and spread of the British empire in India.

 

As per a fantastic article in the Telegraph, telegraphs “expedited the East India Company’s total commercial dominance of the country”. The telegraph’s use in India was “pioneered by William O’Shaughnessy, a surgeon and inventor”. Lord Dalhousie, the then Governor General of India recognized its potential, and asked for the first telegraph line in India to be built near Calcutta. In 1857, telegrams proved decisive in the British victory over the Indians in the Revolt of 1857.

“…with one captured Indian soldier, on his way to the gallows, reportedly pointing at the telegram device and stating: “There is the accursed string that strangles us.”…” (Telegraph, linked above)

 

In 1947, Nehru sent a telegram to British Prime Minister Clement Atlee of an important development about Kashmir:

“A 230-word message sent in October 1947 by India’s first Prime Minister Jawaharlal Nehru informed his counterpart in London, Clement Attlee, that the disputed state of Kashmir had been invaded by Pakistani forces. “We have received urgent appeal for assistance from Kashmir government,” he wrote. “We would be disposed to give favourable consideration to such request from any friendly state.” (Sourced from The Independent, here)

 

Today, the BSNL sends only about 5,000 telegrams a day, down from several lakhs decades earlier. This is obviously because of the rise and spread of landline telephony, and now mobile telephony and internet. India is however, one of the few countries in the world to keep up and use telegrams on a large-scale in this day and age. The maintenance of this infrastructure, has according to Firstpost (linked above), become too expensive.

“Faced with declining revenues, the government had in May 2011, revised the telegram charges after a gap of 60 years. The telegram charges for inland services was hiked to Rs. 27/50 from Rs. 3/50, 4/50 earlier.””

 

Telegrams however, still have a role to play: apparently, for soldiers requesting leave, or a court requesting certified information, a stamped telegram is still the only document accepted (The Independent, cited above). As a lawyer, I find the latter assertion a little suspicious, but would not be surprised if it were true, given the archaic nature of some of our laws and judicial infrastructure!

P.s. Yes, this post has nothing to do with new and important policy developments in this country everyday. But extinction is at least as interesting as evolution. Thanks to Shubho Roy for giving me this idea.

 

John F. Kennedy used to joke during his 1960 presidential campaign that he had just received a telegram from his father. “Dear Jack: Don’t buy one more vote than necessary. I’ll be damned if I pay for a landslide.”

(The Telegraph, sourced from here)

 

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

13 Jun

In my previous post, I looked at the recent proposal to legalize betting in sports in India and reflected upon the question of the moral authority of the state to ban conduct such as betting. In this post, I examine some of the justifications offered for the non-implementation of betting laws and the impact of legalization of betting on fixing.

Even as the recent IPL scandal has exposed intricate links between fixing and betting, a solution to betting is being proposed as a solution to fixing. There is a difference between fixing and betting. I don’t think anyone would support legalized or regulated fixing. Fixing is deplorable; it turns a match to a scripted episode, denies honest players a chance to win (or lose) a game on their effort (or the lack of it), and undermines the faith the fans repose in the game and the players. However, legalization of betting in sports is being seen as one of the solutions to mitigate the practice of fixing.

There are mixed reactions to this proposal. On one hand, it seems that betting causes fixing, because bookies are willing to pay players and fix the game to make substantial profits by changing the odds in their favour and winning bets. On the other hand, it is argued that legalization will help monitor the conduct of bookies, take betting away from criminals to financed bookies who have incentive to report corruption, and provide regulatory authorities with a data source to rely on when investigating cases of suspicious bets and fixing. It is also argued that the law should allow regulated betting rather than waste resources imposing a blanket ban which, in any case, is impossible to implement fully. Whether legalization of betting will actually help check fixing or not is debatable. It is argued by some that such experiments in the past have not worked, for example, fixing exists in football even in countries where betting is legal, and spot fixing occurred in cricket in England in 2010 involving Pakistani players, although betting is legal in England.

Here, I do not want to pronounce upon whether a betting ban is in fact impossible to implement and whether legalization will actually help control instances of spot fixing and match fixing. What I do want to reflect upon is whether obedience to a law (i.e. whether a law is generally followed by people) should be a valid ground to repeal or change the law? Assuming these justifications are in fact correct, should that be a good reason to legalize betting? There are two aspects of this argument involved here: one, betting laws themselves are incapable of being fully enforced; and two, legalization of betting will make another law (anti-fixing law) more efficacious.

Enforcing Laws on betting

Let us begin with the first aspect. I believe that the argument in favour of changing betting laws due to their non-enforceability has been received quite comfortably and without much challenge. Similar arguments to legalize conduct because of the perceived difficulty in  implementing them have been made in other areas like prostitution and illegal migration. In India, many laws remain unenforced and many crimes happen despite strict criminal laws. I don’t believe anyone would argue that we should, for instance, legalize rape just because rapes will anyway continue to occur. What about anti-piracy measures under copyright laws?

Of course, no one is so naïve as to argue for legalization on the sole ground that implementation is not possible. However, we need to examine if this should be a ground at all. I feel there is some laziness involved in making the argument to change laws just because they are not being implemented. Questions on legalization of prostitution vis-a-vis rape has got nothing to do with implementation, but about substantive questions about what we consider legal and illegal. I am not saying that the consideration of actual enforcement of a law is irrelevant to law making. However, by itself, inefficacy and non-implementation are not the grounds to change a law.

Other considerations

So what are these other considerations? At first, we need to examine if a law is actually ‘impossible’ to enforce. Many laws may be easy to make but difficult to implement. Is the question really about the difficulty of enforcement or the inadequacy of our enforcement mechanisms? Road traffic laws may be ‘impossible’ to fully implement, but when they are strictly and correctly enforced by concerned authorities through fines and other penalties, these laws may become more efficacious.

Legal philosopher Hans Kelsen has a fascinating point of view on this. He states that the validity of a law is not conditional on the law being efficacious. In fact, according to him, if a norm is anyway followed by all, then the enactment of the very law is meaningless. This indicates that some discord between the law and reality is bound to exist. We may think of ways to make existing enforcement mechanisms better or consider adopting different enforcement mechanisms, without changing the substantive law.

Non-efficacy may help us question some more substantive aspects as well. We may look at the ‘mischief’ that the law seeks to remedy and reconsider if we really do want to regulate that ‘mischief’. For example, in my previous post I considered whether the state should criminalize victimless conducts like betting. If yes, what is the best way to address the mischief—stricter criminal laws as was done in recent amendments on rape laws, or decriminalization coupled with regulation as is being argued in the case of betting? If majority of people are disobeying a law, it might be a good ground to examine our motives and strategies, but not by itself to change the law.

We also need to consider some of the ‘side-effects’ of existing laws. Arguments for relaxation in betting (and prostitution and migration) laws involve not only the continuation of the banned conduct, but also that these laws drive illegal conduct underground, furthering the mischief. Drawing from Justice O.W. Holmes’ Bad Man theory, instead of eradicating the evil, the law may instead drive the bad man to engage in it more clandestinely, causing greater harm.

This brings us to the second aspect that legalization of betting will help address the bigger problem of fixing. The argument is to decriminalize one conduct to check another crime, probably a higher evil (like relaxed migration laws may help reduce vulnerability of migrants to exploitation and forced prostitution). Again, rather than treating this as a ground for legalization itself, there is a need to examine the motives and regulation strategies of the conduct sought to be legalized. There is also a need to examine the strategies being used to counter the higher evil, in this case, fixing. What other possible strategy may prevent a ‘bad man’ from engaging in a wrongful conduct? If the motives behind criminalizing the lesser evil are justified, the improved efficacy of the other law cannot by itself be a ground for decriminalization.

Thus, while concerns around efficacy and non-implementation are valid, we need to use these concerns to question and address the more significant issues. If the real problem lies elsewhere, we must not lazily use these as excuses to change the law.

Welcome to the surveillance state

12 Jun

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

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

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

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

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

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

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

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

 


[2] Id.

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

[4] Id.

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

[6] Joshi, supra note 2.

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

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

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

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

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

Link

The new Bill on Lobbying: Silver lining to the Walmart episode or lip service to the Indian populace?

11 Jun

In the upcoming issue of the Economic and Political Weekly, I critically analyse the draft Disclosure of Lobbying Activities Bill, 2013 recently introduced in the Parliament.

The article recognizes that the Bill is perhaps the first official recognition of the fact that lobbying practices are omnipresent. However, it questions the seriousness of political leaders in seeing the Bill through fruition. The full article can be found on:

http://www.epw.in/commentary/disclosure-lobbying-activities-bill-2013.html

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

10 Jun

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

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

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

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

Africa

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

 

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

 

UK

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

 

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

 

Australia

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

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

 

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

 

Canada

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

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

 

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

 

USA

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

 

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

 

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

 


Anti-corruption clauses in international trade agreements: Should the Indo-EU Agreement have one?

6 Jun

 

India and the European Union are closer, now more than ever before, to finalizing the Trade and Investment Agreement (Indo-EU TIA/ Agreement), which they have been negotiating since 2007.[1] This is perhaps the perfect time for India to press for ‘anti-corruption’ provisions to be included in the still-being negotiated Agreement. Taking cue from its experience in the Bofors scam, the 2G scam and more recently, the Augusta Westland scam, India could use the Indo-EU TIA as a platform to deter potential foreign investors and trade partners from inducing a corruption-infested culture in developing economies. Also, this would send out a strong anti-corruption message at a global level from a Government widely perceived as scam-ridden.

In the context of international trade and investment agreements, an ‘anti-corruption provision’ can have different meanings. It may mean a provision obligating the countries party to a trade agreement to combat corruption within their respective countries by adopting global anti-corruption conventions, increasing transparency in Government procurement processes, etc.[2] More unconventionally, it may refer to a provision that deprives a trade transaction or investment infected by corruption of the standard protection offered by the trade or investment agreement. This post concerns itself with the latter meaning.

International trade and investment treaties offer certain protections to foreign traders and investors. The existing legal regime in this area suggests that investments proved to have been tainted by corruption are divested of such standard protection. The award made by the International Centre for Settlement of Investment Disputes (ICSID) in what is popularly known as the World Duty Free case can be cited as the beacon in this direction.[3] The litigation involved a claim brought by a foreign investor against the Government of Kenya. The investor sought damages from Kenya for having wrongfully expropriated[4] the investor’s duty-free business. In the course of the proceedings, the claimant-investor admitted to having bribed the Kenyan President to procure a license to operate the duty-free business. On this basis alone, ICSID rejected the investor’s claim by relying on the concept of transnational public policy.

The more recent Argentine-Seimens case[5] should also inspire India to press for anti-corruption provisions in the Indo-EU TIA. In 2002, Siemens, a German conglomerate, instituted arbitration proceedings against Argentina under the German-Argentine Bilateral Investment Treaty. Siemens alleged unlawful expropriation by the Argentine Government for having unilaterally terminated a Government contract procured by Siemens in Argentina. The tribunal directed Argentina to pay damages to the tune of USD 200 million to Siemens for having unlawfully expropriated its investment in the country. During the pendency of the proceedings, it was found that Siemens had bribed Argentine officials for procuring the relevant tender. Consequently, Siemens voluntarily surrendered its award and withdrew all claims related to the case.

In addition to combating corruption within the country, inclusion of anti-corruption provisions in the Indo-EU TIA will benefit India strategically. Not only will it result in dispersing the general perception of the vulnerability of developing economies to corruption, such a provision will also enable the Indian Government to indisputably avoid extending the benefits of a treaty to a foreign investor who is proved to have engaged in corrupt practices in the course of doing business in India.

Many international trade and investment treaties contain provisions that protect only those investments that are made ‘in accordance with’ the law of the country in which investment is made (commonly referred to as the Host Country). More often than not, countries defend acts of expropriation by arguing that the investment in question was not, in fact, made in accordance with the law of the Host Country. For instance, in Inceysa Vallisoletana S.L. v. Republic of El Salvador[6], Inceysa, a Spanish company, instituted arbitration proceedings under the El Salvador/Spain BIT claiming compensation from the Salvadorian Government for unlawful expropriation of its Salvadorian business. El Salvador argued that Inceysa had obtained the relevant Salvadorian concession illegally by submitting false financial statements and making misrepresentations. The tribunal accepted these objections and dismissed the claim, as the investment was not made in accordance with law.

To conclude, both practice and jurisprudence indicate that the defense of corruption is increasingly available to countries fighting compensation claims for expropriation under investment and trade treaties. Such defense has, in the past, been allowed on the grounds of international public policy or the ‘in accordance with the law’ provision discussed above. However, instead of relying on jurisprudential history or a somewhat broadly defined concept of transnational public policy, it may well be worth India’s time to negotiate anti-corruption safeguards in the Indo-EU TIA at this stage itself. Moreover, given the track record of the EU in promoting anti-corruption and bribery conventions at a global level, it may be a far less contested issue in the negotiations.


[1] More details on the negotiations can be found on http://commerce.nic.in/trade/international_ta_current_details.asp#b24.

[2] For instance, several free trade agreements negotiated by the United States of America contain broad commitments to combat corruption in international trade and business.

[3] World Duty Free Co. Ltd. v. Republic of Kenya ICSID Case No. ARB/00/7, Award dated October 4, 2006.

[4] Expropriation broadly refers to the State depriving an individual or an entity of its business or property against the latter’s will. The State may indulge in expropriation by various means such as nationalization, revocation of license, unilateral appointment of a receiver, etc.

[5] Siemens A.G. v. The Argentine Republic ICSID Case No. ARB/02/8. Text of the judgment can be found on www.italaw.com/cases/1026

[6] ICSID Case No. ARB/03/26, Award of August 2, 2006, available at: http://ita.law.uvic.ca/documents/Inceysa_Vallisoletana_en_000.pdf

Are we water-secure or water-starved? – National Water Policy

5 Jun

By Esha Singh Alagh

 

Recent news reports suggest that Cherrapunji, once the wettest place on earth is now water starved in the summer season. While the population of India constitutes around 17% of the entire world’s population, its water resources comprise of only 4% of world’s renewable water resources.

Accepting the importance of protecting our water resources as well as regulating it, Ministry of Water Resources came up with a draft National Water Policy (NWP) in January 2012 and after many external deliberations and consultations published a revised draft in June 2012. Under the Indian Constitution, water comes under the State List (Item 17 in List II of the Seventh Schedule or the State List). There has been an increasing debate about studying water in a holistic manner with a national perspective in mind. The Ministry has stressed that the water policy consists of overarching principles of water which will be framed in close collaborations with its state counterparts.

Current Status

As of December 2012, the revised draft of the National Water Policy has been adopted by the National Water Resource Council which is governed under the chairmanship of Prime Minister Manmohan Singh. Union Water Minister, Harish Rawat has assured the states that the water framework law[i] will be drafted only after close discussions with the stakeholders to ensure that the powers of the state are not curtailed.

Outline of the NWP

The Draft National Water Policy suggests that water be treated as a common community resource held by the state under public trust doctrine. Another basic principle it stresses on is that water be treated as economic good after certain pre-emptive needs for safe drinking water, sanitation and high priority allocations for domestic needs such as agriculture, ecology and needs of animals are met. Other than these the NWP lists down various aspects relating to Integrated Water Management, steps for Clime Change Adaptation, Water Pricing, Demand Management, Water Infrastructure, Institutional Mechanisms and Groundwater Management.

Merits and de-merits

(a)   Does it account for climate change: The NWP has incorporated many forward thinking principles relating to climate change.

(b)  It moves from supply-based management to demand based management: It has also concentrated on demand management more than the commonly discussed supply management.

(c)   Dam safety: With the construction of large dams across the country, NWP recommends a legally empowered dam safety service.

(d)  Inter-state water disputes: It takes a step further to propose setting up of permanent water disputes tribunal at the Centre and make implementation of projects including clearances time bound.

Is water a community-resource for everyone, or an economic good which everyone should pay equally for?

The earlier draft of the NWP had proposed that various dimensions of water use are to be considered as an economic good including “basic livelihood support to the poor and ensuring national food security” and suggested a water-pricing module for “maximizing value from water”.

This would affect the poor the most especially farmers who might be forced to pay for water similar to say commercial projects like withdrawing water for a cricket field. It could also lead to preferential treatment as commercial projects are more profitable than cultivation. It has since been revised to adopting differential pricing for high priority uses “to achieve food security and to support livelihoods of the poor” reiterating the significant nature of these usages.

This revised approach to the NWP has placed emphasis on water as a community resource and has simultaneously stressed on treating it as an economic good. This dichotomy will have to be addressed very carefully and in detail in the draft Framework Law to ensure that there are no biases in terms of access economically and otherwise.

Depleting groundwater resources

The NWP also lists out the importance of groundwater. Groundwater is generally treated as private/individual property and there are no rules regulating the amount of water which can be withdrawn ignoring the question of sustainable use. The revised NWP suggests “groundwater levels in over exploited areas need to be arrested by introducing improved technologies of water use, incentivizing efficient water use and encouraging community based management of aquifers”. While it does not mandate community based management of groundwater but rather ‘encourages’ it, this might lead to questions over ownership in the future which will have to be addressed. It might also affect agricultural usage of groundwater which is extremely high in India.

Conclusion

The revised National Water Policy has accepted many recommendations from stakeholders and accepted them in its draft but as expressed above there are a couple of issues which might need more deliberation and clarification. While the policy is a forward thinking document, the apprehensions of the state could potentially delay its implementation.

Sources:

  1. “Draft National Water Policy (2012) as recommended by the National Water Board in its 14th meeting held on June 7, 2012.” Ministry of Water Resources, Government of India. http://www.mowr.gov.in/writereaddata/linkimages/DraftNWP2012_English9353289094.pdf
  2. Balani, Sakshi. “Report Summary: Draft National Water Policy”. PRS Legislative Research. 24 August 2012. http://www.prsindia.org/parliamenttrack/report-summaries/summary-on-draft-national-water-policy-2012-2431/
  3. Ramesh, S. “Revising the Draft National Policy.” Infochange Water Resources. September 2012. http://www.infochangeindia.org/water-resources/analysis/revising-the-draft-national-water-policy.html
  4. “Not The Farmers, Not The Environment: Draft National Policy 2012 Seems to Help Only Vested Interests.” Press release by SANDRP. http://www.indiawaterportal.org/post/23168
  5. “National Water Resources Council Adopts National Water Policy (2012).” Press Release, Ministry of Water Resources, India. 28 December 2012. http://pib.nic.in/newsite/erelease.aspx?relid=91240
  6. Dharmadhikary, Shripad. “Better, but needs more work.” India Together. 25 July 2012. http://www.indiatogether.org/2012/jul/env-nwp.htm

[i] “Framework law is an umbrella statement of general principles governing the exercise of legislative and/or executive (or devolved) powers by the Centre, the States and the local governing bodies.

Can’t bank on it

4 Jun

This article was co-authored by me, and appeared in the Indian Express on June 4, 2013. The original may be found here.

According to a recent press release by the Reserve Bank of India, its board met in early May. This was the first board meeting after the Cobrapost exposé, revealing widespread failure by banks in adhering to the RBI’s Know Your Customer (KYC) regulations. What did the RBI board discuss and what decisions did it take?

The first set of Cobrapost exposés happened on March 14, implicating three banks. On April 6, a second set of news stories exposed more banks. The exposés revealed widespread failure by banks in enforcing KYC regulations.

When the RBI central board met in Srinagar on May 9, one would have expected the board to take some decisions to look into the issue of KYC regulations. At the very least, the board might have asked for a report on the enforcement of KYC regulations, or a review of the audits carried out on banks by the regulator. Alternatively, the management of RBI would have informed the board of the steps to be taken to review the working of the KYC regulations. The board might have highlighted the need for better regulatory oversight.

The press release says that the board, however, took “four major decisions”: one, banks are to enhance the Credit Deposit Ratio (CDR) in the state from 36 per cent to 40 per cent by March 31, 2014. Two, the state government should legislate the SARFAESI (Securitisation and Reconstruction of Financial Assets and Enforcement of Securities) Act in the state. Three, the state government and banks are to take up electronic benefit transfer on a pilot basis. Four, banks are to have an active role in skill development for horticulture and other social activities in the state.

There are two important things to note. First, the RBI board did not express a view on the KYC regulations. Second, none of its decisions were about banking regulations or what the regulator may do. All its decisions were about about what the state government and banks will do.

The first decision related to commercial banks is not about risk, safety, or regulatory compliance. Giving more credit to increase the CDR is a commercial decision of a bank. The second decision is an instruction/ suggestion to elected legislatures of the state. While the RBI may assist the legislature on making the laws, it is not within the powers of the RBI board to decide that “The state government [has] to legislate the SARFAESI Act in the state”. Similarly, the decision of the RBI board that the J&K government take up a pilot project or that banks engage in skill development in horticulture are not decisions that the board of a financial regulatory authority should be taking.

None of the four major decisions of the RBI board had anything to do with its regulatory failure. There was no attempt at reviewing why the failure took place. There was no attempt to say what the RBI would do to prevent such failure.

The key function of the board of a regulator is to make regulations, to review the effects of the regulations, enforcement, performance review and cost benefit analysis. The board of any corporate body is created to maintain oversight of the functioning of the corporate body. For example, a company’s board reviews the functioning of the company, orders investigation into serious issues and gives direction to the company. The decisions of the board are actionable orders to the management of the company. For regulators, the main functioning is making regulations. The board of the regulator must exercise control, oversight and review the functioning of the regulator. Many regulatory boards develop modern corporate governance systems like risk committees and audit committees to discharge their duties.

In addition, boards of regulators have a responsibility to the public at large. Companies use funds of shareholders, and therefore, the board’s responsibility is limited to shareholders. For regulators, the entire public is the shareholder of the regulator. The board must also publicly demonstrate that it is discharging its statutory duties. Only issues that are decided to be sensitive may be closed to the public. To complete the cycle of accountability, it is important for the public to be aware of the outcomes of the decision of the board. A review of whether a regulation the board approved was enforced properly, and whether it achieved the purpose for which it was written, must be made public.

The Indian Financial Code, drafted by the Financial Sector Legislative Reforms Commission, addresses some of these issues. It incorporates modern-day developments in governance and oversight mechanisms for public institutions. The code requires every regulation to be approved by the board of the regulator through a resolution. Unlike the present system, the only regulatory instruments the regulator is allowed to issue are regulations. Today, the RBI issues regulations, circulars and master circulars that are not required to be approved by the board.

In contrast, at the RBI board meeting in Srinagar, the issue of the Cobrapost exposé and KYC was not even discussed. No review of the KYC regulations was done. No decision was taken about KYC. The board’s major decisions were ones that the RBI cannot implement. It is not even clear that the RBI board has the constitutional authority to decide what the J&K legislature will legislate, or even whether it can decide if banks should have a role in social activities in the state.

Though the IFC lays down in detail the role and functioning of the board of regulators, it is not necessary for the RBI to wait for adopting these good practices. The current RBI Act, Section 7 (2), says: “Subject to any such directions, the general superintendence and direction of the affairs and business of the bank shall be entrusted to a central board of directors which may exercise all powers and do all acts and things which may be exercised or done by the bank.” Under these powers, the RBI can transform its board from taking decisions advising banks to develop horticulture skills to writing better regulations that prevent money-laundering in India.

The writer, professor at the National Institute of Public Finance and Policy, Delhi, is a consulting editor for ‘The Indian Express’. This article has been co-authored by Shubho Roy.

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

4 Jun

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

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

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

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

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

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

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

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

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

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

How good is the data for monitoring government schemes?

3 Jun

Recently, a news item brought to attention a crucial but not often discussed matter on the quality of data collected at various levels of the government. It quoted a report from the Planning Commission’s think tank, Institute of Applied Manpower Research (IAMR) which found that the data on the government’s many flagship schemes was either incomplete or inconsistent.

Here’s a quick summary of the report.

The report examined the Management Information System (MIS) of 13 flagship central government schemes. MIS is a tool to collect data for a particular scheme or organization to help evidence-based programme management. The 13 schemes this report focused on are:

Total budgetary allocation for all these schemes is Rs 1,71, 582 crores.

Findings

  • The study ranked PMGSY and MNREGA in the top bracket in the design of MIS. NRHM, NRDWP, RGVY and TSC were ranked in the next category because they have recently started designing a more effective MIS. However, key schemes such as SSA, MDM, JNNURM and ICDS had poorly designed MIS and needed to take steps to strengthen the process.
  • A very important criteria is the reliability of data. Therefore, reliability and validity checks of data should be done at the district level. However, RGGVY, JNNURM, rural telephony and irrigation checked the data at the state level. Also, many of the data was not up to date.
  • The connection between implementation and outcome was weak for most schemes except MNREGS and PMGSY. There was also inconsistency in data. For example, ICDS and the National Family Health Survey are inconsistent with respect to data on level of malnutrition for each state. Since there was no effort to conduct an independent external verification or authentication of the data, there were discrepancies with the outcome/output data in the MIS and the sample survey data carried out by independent organizations.
  • Lack of use of data was a key weakness of the MIS of flagship programmes. Each scheme used the MIS data to get approval for next year’s budget and action plans but not for course correction.

New initiatives

Under the 12th Five Year Plan, the government has proposed new initiatives for effective management of centrally sponsored schemes. It proposed use of real-time technologies to monitor schemes. Furthermore, it planned to provide each beneficiary with a Unique Identity Number (Aadhaar) linked to his biometric data. This would make it easier to monitor whether the targeted beneficiaries actually receive the benefits. By 2014, about 600 million citizens are likely to have Aadhaar. Currently, there is no information on whether MIS data has been used to achieve the desired outcomes or if the implementation strategy has been modified with the help of MIS data. The 12th Plan intends to change this by focusing on outcome sustainability.

Implications for India

While statistics may not tell the whole story, it is well established that governments need timely and reliable facts to design effective policies. If the database is weak, resource allocation may get distorted and policies may not respond to the real needs of the community. Therefore, India’s lack of robustly designed data collection systems may be one of the reasons why innumerable government schemes fail to actually achieve the stated objectives.

Some experts have raised alarm bells about the lack of reliable data (see here, here and here) in various sectors and how it has hampered policy making. However, the government has not displayed major signs of urgency about tackling this problem. If concerned stakeholders are able to convince the government that designing a robust data collection system is going to give the government more bang for their buck it may actually take steps to address the problem.

Defamation: who should you fear more- Big Govt. or Big Corporate

31 May

Unlike many other countries, India has both civil defamation (if you defame someone, you have to pay compensation), and criminal defamation (you defame someone, you go to jail). Most other countries have removed criminal defamation as a crime from their law books. The result is that in India, not only does a publisher face the threat of having to pay stiff monetary penalties in case he/she defames, someone, there is the bigger threat of being imprisoned for defamation.

These two provisions put together, are increasingly being used by corporate houses to threaten journalists and bloggers from publishing uncomfortable facts. Aparajita Lath, a student of  NUJS, Kolkata, was recently threatened with both civil and criminal action by Times Publishing House Ltd., and their lawyers K. Dutta and Associates for “an excellent summary of the 19 year old litigation between Financial Times Ltd. and Times of India Group over the trademark “Financial Times” & “FT” on the blog SpicyIPIndia. According to Prof. Shamnad Basheer, owner of the Spicyip blog,

“According to the legal notice, served on Aparajita, the publication of her post, “caused an irreparable injury and loss of reputation” to Times Publishing House Ltd. The following paragraph is even better: “Pursuant to the publication of the impugned article our Client has been contacted by several persons, inquiring about the same. Our client has been questioned and subjected to contempt and ridicule and has suffered immense prejudice and loss of goodwill, reputation, standing and goodwill in the industry”. Oh my! And I guess the sky is going to fall on our heads next because of one post on this blog.
The allegedly defamatory post by Aparajita can be accessed here. In the post, she carried an excellent summary of the 19 year old litigation between Financial Times Ltd. and Times of India Group over the trademark “Financial Times” & “FT”. Aparajita’s post had very carefully referenced and summarized a number of articles which appeared in the Mint about the dispute and from the information we have, theMint has not been sued as yet.”
Prof. Shamnad Basheer has also posted here, stating that the magazine, Caravan, was recently served with a legal notice,

“from Agarwal Law Associates (ALA) on 18 April concerning the pending publication of a ‘defamatory’ story on the Attorney General (AG), Goolam Vahanvati. ALA’s clients, the Anil Dhirubhai Ambani Group (ADAG), were understandably flustered as a result of the article’s keen recording of Anil Ambani (head of ADAG) and the AG’s somewhat cosy relationship.The implication of course, was that Ambani’s ties with Vahanvati had a hand in forestalling investigation into the ownership history of Swan Telecom – Ambani’s ‘front’ company at the centre of the notorious 2G scandal…”

Earlier this year, Caravan was also sued by Arindam Chaudhuri, director of the Indian Institute of Planning and Management (IIPM), for defamation, and Mr. Chaudhuri claimed Rs. 50 crore in damages.

“The suit was filed, not in Delhi, where both the IIPM and the magazine’s publisher, Delhi Press, are based, but 2,200 km away in Silchar, Assam, 300 km from Guwahati, Assam’s capital. The IIPM filed the case at the Court of Civil Judge in Silchar district, through one Kishorendu Gupta, who operates Gupta Electrical Engineers in a Silchar suburb, and is the first plaintiff. IIPM is the second plaintiff.

In addition to The Caravan and its proprietors, the suit charges Siddhartha Deb, Penguin (the publisher of the upcoming book by Deb in which the article is a chapter), and Google India (which, the suit alleges, has been “publishing, distributing, giving coverage, circulating, blogging the defamatory, libelous and slanderous articles”).

The civil court in Silchar granted the IIPM a preliminary injunction, enjoining Delhi Press to remove the article in question from their website, ex-parte, without any pre-hearing notice.”

(Sourced from here)

Before this,

“In 2005, the IIPM filed a case against Rashmi Bansal, a blogger and editor of Just Another Magazine (JAM), who published an article in print and online questioning many of the claims made by the IIPM in its brochures and advertisements, which highlighted that the IIPM had not been accredited by any Indian agency such as AICTE, UGC or under other state acts. The IIPM filed a case against Bansal from Silchar, Assam, even though she runs a small independent outfit based in Mumbai. The IIPM managed to get an ex-parte order from the court, forcing Bansal to remove the article from the website. The IIPM also filed for damages.”

 

(Sourced from here)

 

Citizens usually have good reason to believe that the threat of criminal defamation will be used by the government to muzzle the freedom of speech and expression. However, increasingly, there is reason to worry that journalists and bloggers (especially those without the resources to fight back) will face harassment from powerful corporates and business houses. This is even more worrying for a country at our stage of development, where we are welcoming private investment into numerous sectors, allotting and selling off scarce resources to attain higher growth. A free media is important to ensure such transactions and investments are fair and not marked by crony capitalism. Well considered defamation laws are essential to ensure this journalistic freedom and integrity.

 

For more on defamation laws in India, read this.

Tumblr for our blog

30 May

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

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

 

– polityinindia

Law to regulate lobbying in India

29 May

Recent news reports suggest that the committee investigating the case of Walmart lobbying the Indian government to allow FDI in the retail sector is going to submit its report shortly.  It is reported that the committee could not find evidence of Walmart bribing any government official or indulging in any unlawful activity.  However, the committee may recommend that the government frame rules to regulate lobbying in India.

In this context, Harsimran Kalra and I published an article in the Oxford India Policy Blog that made a case for regulating lobbying in India.  It also flagged some issues that needs to be debated widely before a law on lobbying is drafted.

The full article can be accessed here.

An excerpt from the article is given below

At present, a few countries have laws to regulate lobbying.  These include Australia, Canada, US, Germany, Hungary, Poland, Lithuania, Slovenia, Israel and Taiwan.  Other countries such as France, Spain, Portugal, India and Japan do not have any such law while UK and Ireland regulate the lobbied.

Although India currently does not regulate lobbying, it is likely to move toward that direction.  Before the government drafts a law, it is essential to get clarity on the activities sought to be regulated and sanctioned.  In this article, we explore how other countries have defined lobbying, the mechanism they adopted to regulate these activities and the lessons India could learn from their experience.

Would a sex offender list reduce rapes?

29 May

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

An excerpt from the article is provided below.

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

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

The entire article may be accessed here.

Why have pre-legislative scrutiny for Acts of Parliament?

28 May

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

The pre-legislative proposal essentially mandates 3 things:

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

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

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

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

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

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

26 May

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

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

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

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

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

Back to blog!

25 May

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

My article in Seminar Magazine on Parliamentary obstruction

24 May

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

Communication

 

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

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

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

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

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

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

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

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

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

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

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

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

Anirudh Burman

Graduate from Harvard Law School, worked with PRS Legislative Research

 

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

Footnotes:

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

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

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

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

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

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

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

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

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

 

“Civil society” biases: Regionalism

27 Sep

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

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

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

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

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

 

Consumer protection or curb on right to speech and expression?

19 Sep

-writing from Harvard Law School

 

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

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

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

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

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

 

India’s Foodgrain policy

6 Feb

I am putting up an article by Prof. Kaushik Basu (working with the Finance Ministry, and authored the Economic Survey of 2009-10) on India’s foodgrain problem in Economic and Political Weekly.  He summarises the point of the article as:

The simultaneous occurrence of high food inflation and large foodgrain stocks in our granaries has been a matter of concern. The aim of this paper is to understand the fundamentals of our foodgrain market and policy that
lead to this situation and to suggest policies for rectifying this. The central argument of the paper is that it is imperative that we look at the entire system of food production, food procurement and the release and distribution of food. Trying to correct one segment of this complicated system is likely to end in failure. The paper argues that there are two different motives for foodgrain procurement by the state – to provide food
security to the vulnerable and to even out foodgrain price fluctuations from one year to another. Further, how we procure the food has an impact on how we release the food, and vice versa. Inspired by the sight of foodgrain
going waste, it is often made out to be that our central problem is that of poor foodgrain storage. This paper disagrees with this popular view. While we no doubt should improve our storage facilities, it is important to be clear that this in itself will not lower the price of food. To achieve that we need to redesign the mechanics of how we acquire and release food on the market.

Click below for the article:

Indias_Foodgrains_Kaushik_Basu

How lack of transparency kills the credibility of the government

29 Jan

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

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

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

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

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

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

Smart caFE JPC vs PAC

30 Nov

Smart caFE JPC vs PAC

read more…

My article in Financial Express

3 Sep

I co-wrote an article for Financial Express along-with my colleague Mr. Madhukar.  The following in the text:

The recent order of the ministry of environment and forests (MoE&F) rejecting the application for grant of forest clearance to the Orissa Mining Company (the Vedanta project) has raised a number of important questions. The order cited the company’s non-compliance with a number of laws. But the Vedanta case is just one example. There are several projects in the country where similar issues are relevant. The question really is, are the multiple laws that are applicable in such cases in harmony with each other or are they working at cross purposes?

In a sector such as mining, doing business is inherently complicated. There are at least four broad aspects that need to be addressed—obtaining mining licences, securing environmental clearances, acquiring land, and rehabilitation of people affected by such projects. We take a look at each of the four broad areas, to understand how the applicable laws interact with one another.

Obtaining mining licences

Doing business in the mining sector first entails obtaining a licence for activities such as prospecting and mining. The Mines and Minerals (Development and Regulation) Act, 1957, lays down the framework for any prospecting, leasing or mining activity to be carried out for specified minerals, and the licences that need to be obtained. The Act allows the central government to frame the rules and conditions applicable both for grant of licences and for the actual activity carried out by enterprises. The licensing authority for mining activities is the state government.

Securing environment clearances

Environmental clearances for industrial activities are governed by a number of laws. Most activities require clearances under the Environment (Protection) Act, 1986. Additionally, for activities in forest areas, clearance is also required under the Forest (Conservation) Act, 1980. Acts pertaining to wildlife protection, bio-diversity and the quality of air and water may also be applicable.

The Environment (Protection) Act, 1986, enables the central government to take measures for “protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution”. These measures may include (among others) (a) laying down standards for the quality of the environment, (b) areas in which industries or operations may not be carried out, or carried out subject to certain safeguards.

The rules framed under the Act make it compulsory for all new projects to take prior environmental clearance. For a specified category of activities clearance has to be obtained from the MoE&F, while for others, clearance has to be obtained from State Environment Impact Assessment Authorities (SEIAAs).

The Forest (Conservation) Act, 1980, prohibits state governments and other authorities from any unauthorised change in the status of areas declared to be reserved forests, and any diversion of forests for non-forest purposes. It prohibits felling of trees within forest areas. Any such action has to be undertaken with the prior permission of the central government. To divert any forest area for non-forest purposes, state governments have to submit formal proposals to the Centre. State governments also have to show proposals for compensatory afforestation.

Acquiring land for the project

Acquiring land for projects has become increasingly contentious in recent years. The Land Acquisition Act of 1894 appears to have outlived its utility, which led the UPA-1 to introduce a Bill in the Parliament to bring a new legal framework to facilitate land acquisition. The Bill tried to address several critical aspects of land acquisition. It tried to redefine ‘public purpose’ somewhat more strictly than in the existing Act. ‘Public purpose’ was redefined to include defence purposes, infrastructure projects or for any project useful to the general public where 70% of the land has already been purchased. For acquisitions by companies, the Bill mandated that 70% of the land will have to be acquired directly from the land owners at market prices and that the government would step in under the Act to acquire the remaining 30% for the project.

The Bill also aimed to provide for cases resulting in large-scale displacement. It stated that in such cases a social impact assessment study must be conducted. Tribals, forest dwellers and those with tenancy rights were also made eligible for compensation. It also mandated that the intended use of the land being acquired and the current market value of the land would have to be considered for determining compensation.

The Bill lapsed when the Lok Sabha was dissolved in 2009. It is not known when the government proposes to reintroduce a Bill in the Parliament to address this issue of land acquisition.

Rights of project-affected people

When large projects are planned and land is acquired for those, people are often displaced from the project areas and need to be rehabilitated appropriately. The UPA-1 had introduced a Bill in the Parliament to create a legal framework for rehabilitation of project-affected people. However, the proposed Rehabilitation and Resettlement Bill, 2007, lapsed when the Lok Sabha was dissolved before the last general elections.

But the UPA-1 government managed to pass a highly contested Bill that recognised the rights of scheduled tribes and other traditional forest dwellers. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act passed in 2006 focuses on the rights of forest-dwelling Scheduled Tribes and traditional forest dwellers. The Act seeks to recognise and vest forest rights in forest dwelling Scheduled Tribes with respect to forest land and their habitat. The Act mentions 13 separate rights given to forest dwellers. These include (a) living in the forest for habitation or for self-cultivation for livelihood, (b) right to own, use or dispose of minor forest produce, (c) right to protect and conserve any community resource that they have been traditionally protecting and (d) individual and community rights of habitat for primitive tribal groups. These rights have to be formally recorded/recognised by state governments. The Act also prevents any modification of forest rights or the resettlement of forest dwellers unless the Gram Sabha of the village consents to the proposal in writing.

There are additional requirements to be met if developmental activities are to be undertaken in tribal dominated areas (defined as Scheduled Areas in the Constitution). The Panchayat (Extension into Scheduled Areas) Act, 1996, extends the part of the Constitution providing for Panchayati Raj in rural areas to Scheduled Areas. The Act requires that government authorities consult the Panchayat or the Gram Sabha before acquiring land for development projects and for rehabilitating persons affected by such projects.

At a conceptual level, there is no apparent contradiction in the applicable laws and each of the laws mentioned above appear to be necessary to ensure that there is fairness for all stakeholders involved. However, a distinction has to be made between the legal principles these laws seek to enforce, and procedural formalities that need to be complied with to be on the right side of the law. Also, a closer look at these individual laws and their implementation will reveal a number of loopholes that need to be plugged to ensure that the spirit and basic principles enshrined in each law are enforced efficiently.

From the point of view of the company that intends to do business in India, all this adds up to a lot of time-consuming process. This is perhaps why the Doing Business index published annually by the World Bank group ranks India at 133 out of 183 counties in terms of ease of doing business. The challenge, going forward, is for us to strengthen processes that are fair to all stakeholders, but at the same time are not unduly burdensome on the company that seeks to make investments in the mining sector.

Who files the most court cases in India?

26 Aug

One of the major concerns for those seeking to improve our democracy is improving “access to justice”.  Simply put, “access to justice” implies a number of things such as getting larger people to resolve disputes through courts, disposing of cases speedily, ensuring judges give quality time to every dispute, etc.  One of the problems in ensuring better access is the large number of pending cases in the Country.

As of March 2010, there were 40,60,709 (more than 40 lakh) cases pending in High Courts, and 2,72,75,953 (2.7 crore) pending in District Courts in the country.  One of the key aspects of reducing these extraordinarily large numbers is to identify those who file the largest number of cases in order to get them to reduce their tendency to litigate.   Not surprisingly, the largest litigator in the country is the Government.

Recognising this rather disturbing fact, the government announced a National Litigation Policy.  The policy states the following:

  • The National Litigation Policy is based on the recognition that Government and its various agencies are the pre-dominant litigants in courts and Tribunals in the country.  Its aim is to transform Government into an Efficient and Responsible litigant.
  • Government must cease to be a compulsive litigant. The philosophy that matters should be left to the courts for ultimate decision has to be discarded.
  • The purpose underlying this policy is also to reduce Government litigation in courts so that valuable court time would be spent in resolving other pending cases so as to achieve the Goal in the National Legal Mission to reduce average pendency time from 15 years to 3 years.
  • Prioritisation in litigation has to be achieved with particular emphasis on welfare legislation, social reform, weaker sections and senior citizens and other categories requiring assistance must be given utmost priority.

It is both tragic and encouraging that the government recognises that over the years, it has itself become the largest impediment to ensuring access to justice for millions who are left out of the system.

While many would use this argument to say that the government has failed and must be trimmed down to allow greater private enterprise, I would argue that (a) government should be re-structured to enable people to get access to basic infrastructure, and (b) government should be rationally increased in areas that we need it most: more judges, more policemen, more food inspectors and engineers.

Our existing systems do not work because the government over-staffs departments that do not need people, while not doing enough to combat major manpower shortages elsewhere.  We have one of the lowest police-to-population ratio in the world.  We have one of the lowest judge-to-population ratio in the world.  And yet, go into a government department and there are innumerable peons at an officer’s beck and call, one regulating entrants into the hallowed portals of power, one stationed there only to serve food and water, and so on.

The need of the hour is to re-adjust the priorities of the government: whether employees are required to regulate rights of access to senior babus, or to serve citizens better.

Nuclear Bill – deciphering the “and” gesture

20 Aug

A number of newspapers have carried stories on the presence of a mysterious “and” in one of the provisions in the Nuclear Liability Bill.  I have put up a post on my office blog –

Parliament’s Recommendations on the Nuclear Liability Bill – Why the “and”?

The blog discusses the implications of what the insertion of a single innocuous word can mean.

One-third of poor are not born poor

17 Aug

In recent years, a number of studies have been conducted on the number of poor in India.  Some have estimated that 77% of India is poor, others say 37% of India is below the poverty line.  The Wall Street Journal contains an article on a new poverty study which the reasons for why people are poor.

The article is an interview with a Anirudh Krishna, a public policy professor.  The main points he makes are (quoted from the article):

One-third of people are not born poor. As many as one-third of all poor people were not born poor. They became poor within their lifetimes on account of factors that could have been prevented.

Reasons people become poor. Carolina. People have fallen into poverty on account of a chain of negative everyday events like illnesses and [spending on] marriages and deaths. Some of these factors vary considerably across and both within countries.  What’s common everywhere is the contribution illness and high health care costs make to the reproduction of poverty.

Weddings and funerals. A wedding is something you plan for. An illness is something that happens mostly unexpectedly, especially an injury, and that wipes out the savings you’ve accumulated. That said there’s an obscene amount of spending on weddings and dowries and these amounts are growing from year to year.

Some measures which should be undertaken.

(1) Health insurance is important but as important is the provision of high-quality health care. There are still several parts of India where there is no doctor available and we all know about the incidents of misconduct and overcharging so there’s also a case for the regulation of the healthcare sector.

(2) Institutions such as employment exchanges, career guides simply don’t exist so many young people are simply unaware about the different opportunities they could tap.

In the 80 villages surveyed, out of more than 1,000 who have graduated from high school in the past 10 years, only 10 or 12 have risen to any higher paying position. The rest are bus conductors or school teacher or electricity linemen.

India’s intelligence Agencies – II

13 Aug

In yesterday’s post, I had mentioned in passing the lack of any law, legal framework or accountability with regard to intelligence agencies being a major issue.  I elaborate on the subject here.

Parliamentary approval of the creation, mandate and powers of security agencies is a necessary but not sufficient condition for upholding the rule of law. A legal foundation increases the legitimacy both of the existence of these agencies and the (often exceptional) powers that they possess.”  In India, various intelligence agencies such as the Research and Analysis Wing, and the Intelligence Bureau are creations of administrative orders, and are not subject to scrutiny by Parliament. This is in direct contrast to the practise of the Legislature’s oversight of intelligence agencies in most countries.  Though different countries have different models of exercising such oversight, the common principle – that activities of intelligence agencies should be subject to Parliamentary scrutiny, remains uniform.

In the US for example, both the House and the Senate have a Committee which exercises such scrutiny.  Both committees have broad powers over the intelligence community.  They oversee budgetary appropriations as well as legislation on this subject.

In UK, the Intelligence Services Act of 1994 set up a similar framework for intelligence organisations in the UK, and also set up a mechanism for legislative oversight.  The Act set up a Committee which should consists mostly of Members of Parliament.

(Material from this post has been quoted from my blog post on another blog)

The arguments given here highlight a serious problem in our democracy.  Intelligence organisations, if not held properly accountable, can be used against the country’s own citizens, as well as for legitimate purposes.  In recent times, incidents of illegal phone tapping have also been highlighted by the media.  It is thus important to evolve a comprehensive legal framework to regulate the functioning of our intelligence agencies and make them accountable to the people.

India’s intelligence agencies

12 Aug

India has a variety of intelligence agencies.  Though not in the same league as the USA which has hundreds of agencies, there were many I had never heard of until I made a concerted effort to check for them.  What is more disturbing is that none of these have been set up by any law.  Most of them are completely free of any oversight by Parliament.  This in itself has serious implications.

Listed below are the main intelligence agencies operating in India:

Joint Intelligence Committee (JIC)

The Joint Intelligence Committee (JIC) of the government of India analyzes intelligence data from the Intelligence Bureau and the RAW, Directorate of Military Intelligence, Directorate of Naval Intelligence, Directorate of Air Intelligence. JIC has its own secretariat that is under the Cabinet Secretariat.

Research and Analysis Wing [RAW]

The Cabinet Secretariat Research and Analysis Wing [RAW], India’s most powerful intelligence agency, is India’s external intelligence agency. RAW has become an effective instrument of India’s national power, and has assumed a significant role in formulating India’s domestic and foreign policies.

Intelligence Bureau (IB)

The Intelligence Bureau (IB) is the Indian government’s domestic intelligence agency, and reputedly the world’s oldest intelligence agency. It is rather difficult to ascertain what the IB does, since its operations are outside the purview of audit or inquiry. In addition to domestic intelligence responsibilities, the IB is particularly tasked with intelligence collection in border areas, following the 1951 recommendations of the Himmatsinhji Committee (also known as the North and North-East Border Committee), a task entrusted to military intelligence organizations prior to independence in 1947. The IB was also tasked with other external intelligence responsibilities as of 1951.

Defence Intelligence Agency (DIA)

The Defence Intelligence Agency (DIA) was created in March 2002. The new agency combines the intelligence networks of all three armed services of India (Army, Navy, and Air Force) and is the product of long-standing demands by the armed forces for such an organization and the recommendation of the Group of Ministers’s report investigating the intelligence failures leading to the Kargil incident of 1999.

Joint Cipher Bureau

The inter-services Joint Cipher Bureau has primary responsibility for cryptology and SIGINT, providing coordination and direction to the other military service organisations with similar mission. Most current equipment providing tactical intelligence is of Russian origin, including specialised direction finding and monitoring equipment.

Economic Intelligence Council

In order to facilitate coordination amongst the Enforcement Agencies dealing with economic offences and ensure operational coordination amongst them, a two tier system has been established by the Government of India with an Economic Intelligence Council at the Centre under the Chairmanship of Union Minister Finance, and 18 Regional Economic Intelligence Committees at different places in India.

Central Economic Intelligence Bureau

It is well recognised that the evasion of one tax usually entails evasion of other taxes as well. For the purpose of effective information gathering, collation and dissemination, a close co-ordination between the Agencies enforcing different tax laws is essential.

Hence, the Central Economic Intelligence Bureau was set up with the intention of creating a body which would coordinate and strengthen the intelligence gathering activities as well as investigative efforts of all the Agencies which enforce economic laws.

Army Directorate of Military Intelligence

India’s military intelligence traces its origins to the appointment in 1885 of Maj. Gen. Sir Charles MacGregor as head of the Intelligence Department of the British Indian Army. Headquartered in Simla, the Department was primarily tasked collection and analysis of intelligence relating to Russian troop dispositions in Central Asia. The departure of the British in 1947 marked the low point, as the British left behind very little in the way of assets or infractructure for the Intelligence Corps of the newly independent India.

Through the 1960s Military Intelligence was largely focused on field security services rather than external intelligence collection. Responsibilities primarily consisted of policing the army, rooting out corruption and misuse of facilities and equipment by Army personnel. Subsequently the increasing deployment of Army units in support of civil authorities has led Military Intelligence to focus on counter-insurgency operations.

Special Security Bureau

The Special Security Bureau is unique, as it is both an intelligence agency and also a specialized commando organization for behind enemy line operations. Its strength is currently about two battalions.

Directorate of Air Intelligence

Air Force intelligence responsibilities include imagery intelligence collection MiG-25R and Jaguar recconnaissance aircraft. During the 1971 war with Pakistan, Russian satellite imagery provided India with information on Chinese force deployments. And with advances in the Indian space program, the Indian Air Force will be acquiring independent space-based imagery intelligence capabilities.

Naval Intelligence

The Navy Directorate of Signal Intelligence can intercept signals by means of communication equipment. Intercepts are routed through the Director of Naval Operations/Director of Naval Signals as part of operational tasking.

Kashmir II: The last Month

23 Jul

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

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

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

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

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

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

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

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

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

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

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

Kashmir as it stands today – I

17 Jul

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Major Government schemes II: Mid-day meal

15 Jul

In an earlier blog post this month I had put up a summarised version of an evaluation study done by the Planning Commission of India.  The Planning Commission had evaluated the Sarva Shiksha Abhiyan.  In this blog post, I am summarising their evaluation of the Mid-day meal scheme.

The Mid-day Meal Scheme was launched by the Government of India in 1995 with the objectives of:
  • Increasing enrolment in primary education;
  • Improving the nutritional status of students.
In September 2006, this scheme was revised to give cooked mid-day meal with 450 calories and 12 grams of protein content to all children in primary classes (I-V) in the country.
Some of the major issues are:
  1. Almost universal coverage of the scheme in states like Andhra Pradesh, Madhya Pradesh etc.
  2. 33 percent of the parents of the beneficiary children are illiterates.
  3. Although Steering –cum – Monitoring Committees have been constituted at all levels, they are not holding any regular meetings to co-ordinate and monitor the programme at the block/village level.
  4. Except for Tamilnadu and Kerala, in rest of the states a majority of sample  schools, on an average, suffer from the unavailability and poor functional condition of kitchen sheds.
  5. All the states suffer from the unavailability and poor functional condition of
  6. store rooms.
  7. Except for Kerala and Andhra Pradesh, there is a serious shortage of cooks
  8. for CMDM in the sample schools across the country.
  9. Some of the sample districts in Haryana, Jharkhand and Himachal Pradesh have utilized less than half the funds allocated to them.
  10. In most of the states teachers spend about one to two hours daily on activities related to CMDM thereby reducing precious teaching time.
  11. Out of the 17 sample states where the data was collected, students in 9 states reported that they were involved in washing utensils.
Bar and Bench

Observations on legal and political developments in India

Firstpost

Observations on legal and political developments in India

Mainstream Weekly

Observations on legal and political developments in India

Scholars without Borders

Observations on legal and political developments in India

Legal Blog

Observations on legal and political developments in India

LAW RESOURCE INDIA

LEGAL RESOURCE CENTRE / COURT JUDGMENTS / LEGAL ARCHIVES

India Together

Observations on legal and political developments in India

Concurring Opinions

Observations on legal and political developments in India

Bar & Bench

Observations on legal and political developments in India

Law and Other Things

Observations on legal and political developments in India

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the news. the views. the juice.

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