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Archive for the ‘Law and regulation’ Category

Privacy – an elite fantasy

privacy

Elite concerns are usually disconnected from the ground reality. For the 1 per cent of Indian who live privileged, cocooned lives, the judicial right to privacy created by the Supreme Court yesterday will add yet another layer with which they can insulate themselves from the “barbarians at the gate”. So, here is what the rich may now be able to do which they couldn’t earlier.

Is the right to euthanasia next?

First, they may now be able to refuse medical treatment and die in their beds, peacefully, instead of being compulsorily hooked up to tiresome, life-saving machines in hospitals. But try explaining this “right” to the millions of poor Indians for whom just getting admitted to hospitals is still a dream and refusing treatment would be unimaginable.

Deletable past lives

Second, the well-heeled may now be able to press for being judicially forgotten – all traces of their past lives and identities expunged, giving them a fresh start without having to flee to distant London or arid Dubai. Contrast this with the Herculean efforts the average Indian makes to become part of a database and have an officially recognized identity – a voter card, a passport, a PAN card, anything which proves that she exists.

LGBT sex may become legitimate

Third, those with alternative lifestyles – the Lesbian, Gay, Bisexual Transgender (LGBT) community might now hope to be free of the notoriously archaic Section 377 of the Indian Penal Code, which criminalizes everything other than straight sex. But would this give them the right to marry a partner of their choice; adopt children or be socially accepted?

Evidencing crime will become harder

Now ponder the downsides. Law enforcement agencies struggle to manage terrorism, Naxalism, urban mafiosi, drug pushers and armed rural gangsters even today. “Privacy” concerns will provide a legal shield to undermine information collection, crime detection and investigation. Nothing less than the over-the-top, draconian Armed Forces (Special Provisions) Act – used today only in the “disturbed” areas in Kashmir and parts of the North East – would be effective. Since gangsters can afford to hire the best lawyers, the violation of their fundamental right to privacy in the process of enforcing the law, will now become a favourite ploy to keep these worthies free to wreak havoc.

How intrusive is the Indian State anyway?

Will this fundamental to privacy help the 200 million slum dwellers or the unknown millions who sleep under the stars on urban streets? Is not our fear of the “big State” overblown? The India I know is under policed, under governed and under regulated. There is a plethora of agencies, laws and rules to bind down anyone and yet very few – mostly the timid, those mindful of their public image and the law respecting middle class get intimidated by the legal spaghetti. The rich buy their way out of any mess and the poor are so inured to danger and risk that it is second nature for them to live with uncertainty.

Biometric targeting of beneficiaries to be abandoned?

Take the case of Adhaar for verifying the identity of those using the Public Distribution System (PDS). Recent studies in Jharkhand by responsible social scientists – Jean Dreze and Reetika Khera – found that 15 percent of the eligible PDS beneficiaries were excluded because of technical glitches or access problems in using Aadhar as a test of identity. But 85 percent of the beneficiaries were targeted correctly. If the right to privacy eliminates the use of Adhaar, we will be back to what Rajiv Gandhi famously called the 25 percent approach to poverty reduction – where 75 percent of the funds are siphoned-off by intermediaries. How and why would a reversion to a system which has huge inclusion errors (ineligible people getting benefited) be any better?

Big data to be throttled?

Finally, consider how retrograde is the fight by “right to privacy” advocates against big data. It is big data – the billions of pieces of information on human behavior and preferences linked to specific human demographics, which enables algorithms to predict trends, thereby aligning products and services with customer needs. This is what makes big data commercially valuable. In price sensitive markets like India, telecom and e-commerce penetration is being driven by the potential to monetize big data. Putting brakes on this process means putting brakes on the rolling out of technology services which will become more expensive if the actual user is to pay for them.

India lost an opportunity in 2014 when facebook- Bharti Airtel wanted to roll out free internet services on mobiles. TRAI regulations ensured that this venture never took off, thereby slowing down internet access for all except the 300 million people in the upper most income segments who can afford it.

Tilting at windmills

Nandan Nilekani is now an evangelist against “digital colonialism” in the context of tech majors like Google and Amazon aggressively expanding their presence in India. We should be wary of tech industry insiders playing the “anti-foreign” card. Similar attempts were made by the infamous “Bombay Club” to scuttle the 1992 economic liberalization. Their contention was that liberalizing the domestic market was fine but Indian industry should continue to be protected from foreign competition. We are fortunate that the government of the day paid no heed to this self-serving agenda.

Keep India open for competition

India is a big economy with very shallow industrialization. We need to remain open to all economic actors – domestic and foreign who want to invest in India. It would be a huge mistake to emulate the xenophobia of the United States and draw up our bridges. Data is the new oil. Data security needs to be ensured, irrespective of whether data is stored in India, or overseas. But generating anti-foreign hysteria is not in our interest as we try to integrate into global supply chains and become a part of the global value creation eco-system.

It is easy enough to legislate rights. We have many notional rights. Creating a level playing field for all citizens to enjoy these rights, equally, is another matter altogether.

Also at http://blogs.timesofindia.indiatimes.com/opinion-india/privacy-an-elite-fantasy/

Is hubris slowing down Modi?

Hubris

So when does hubris — the corrosive comfort of undiluted power — overtake a government? Conventional wisdom points to three early red flags. First, when routine tasks are ignored for grand ambitions. Second, when party cadres act out of entitlement rather than commitment. Third, when rant replaces reason as public outreach. Has this already happened to the BJP government?

Ignore routine tasks at your peril

Venkaih

First, consider the recurrent trail of routine lapses. Take the embarrassment in July of being unable to get the non-controversial bill to give constitutional status to the Other Backward Castes Commission passed in the Rajya Sabha because BJP MPs did not even bother to attend in sufficient numbers. There is no glory in floor management. Ergo, it gets overlooked. Next, consider the election of Ahmed Patel to the Rajya Sabha from Gujarat. The strategy to keep him out was brilliant. But shoddy execution, or worse, deliberate sabotage, let down the BJP. Finally, the mass death of children in a Gorakhpur hospital. The hallmark of the RSS has been effective management during emergencies and disasters. That oxygen cylinders couldn’t be swiftly organised speaks volumes of how low the cadres have sunk.

Rulers can’t ignore the Rule of Law

Second, consider contempt for the rule of law. Mohan Bhagwat, the RSS supremo, violated the law in Kerala by unfurling the national flag, on Independence Day, at a school in Palghat, contravening a restraining order by the district collector. The order was perverse, based on pique and politics rather than prudence. The manner of its service — just prior to the occasion — was hurried and amateurish. But it was a legal order and anyone violating it is liable to be arrested. Mohan Bhagwat got away. But the lesson he taught the schoolkids and party cadres was that no law is sacrosanct if you are powerful enough.

Gandhiji would not have approved. Disobedience of an unjust law is fine, if followed by submission to its consequences, under the rule of law.

Gandhi

This contempt for the law is visible in the cadre vigilantes protecting cows, supporting unruly, disruptive religious yatras and the demonisation of alternative voices. Add to that, the raging testosterones of a BJP “princeling” in Haryana and you have party cadres which align more with gaali (abuse) and goli (bullets) rather than the galle lagana (hug) that Prime Minister Modi has espoused as the leitmotif of New India. Third, let us consider why no one came away inspired from Red Fort this year.

Outreach by high decibel rote no substitute for passion

The Prime Minister’s speech was a prime example of zombie behaviour, where the mind is elsewhere but the motions are acted out. The wide ramparts of Delhi’s historic Red Fort have set the stage for Prime Ministers to grandstand every year since 1947. Two (Lal Bahadur Shastri and Morarji Desai) barely had a chance to give a second speech before they were gone.

Four others (Charan Singh, V.P. Singh, H.D. Dewe Gowda and Inder Gujral) were even more transient, managing not more than a single speech each from Red Fort. One — Rajiv Gandhi, a young, stunning-looking charmer — was suddenly elevated to the position but never quite unbuckled the pilot’s seat he used to occupy earlier. Manmohan Singh had a decade to hone up his act. But he knew that he was a mere seat-warmer for the Nehru-Gandhi dynasty — having been taught his lesson earlier, when party workers sabotaged his election bid to the Lok Sabha. P. V. Narasimha Rao — a friendless, private man was not given to making big public gestures from the Red Fort. His political games were deadly effective, but played entirely in privacy.

Nehru, Indira Gandhi and Narendra Modi are the only three Prime Ministers who have had the mandate and the charisma to use the ramparts to strut their act. Mr Modi thrilled us in 2014 with his energy and his earthy enthusiasm at reaching out to people — quite a change from the taciturn Manmohan Singh or the imperiously distant Sonia Gandhi. In 2015, he filled in the vacant spaces in his act with data, slogans and acronyms. We were impressed. In 2016, we were still agreeable to look kindly on him, given that the economy was racing along and government performance was projected as trending sharply upwards.

By 2017, the act was flat as yesterday’s soda. This is remarkable considering that Indian testosterones are racing at the government effectively holding off the Chinese muscle-flexing at Doklam and now in Ladakh; Pakistan is reduced to being a mere vassal of the Dragon and economically hollowed out Western powers are fawning at our doors for Indian business.

Modi 2017 Red Fort 2017 (3)

International acquiescence has bred much-needed confidence. But it is disquieting that in domestic policy it has led to complacence, drift and distance from the public. Mr Modi’s speech was rambling, glib, unnecessarily argumentative and just plan stale. The turban was way too shiny to be classy. The stance too casual to be purposive. The look too staged. Very confusing was the discrete use of the terms — Bharat, India and Hindustan.

Bharat, India or Hindustan?

Hindustan was used in the context of pledging support for the victims of the irresponsible Muslim practice of triple talaq. Bharat was referred to as the mata (mother). But it is New India that we seek to build. Meaning?

Bharat, India or Hindustan, all three remember earlier episodes of hubris — disconnects between reality and rhetoric — which ended badly for us. In 1964, we discovered, too late that India needed the world, not the other way around. In 1975, we realised Indira needed India, but we didn’t need her. In 2017 (Delhi municipal and Uttar Pradesh elections), a shallow social revolution met its downfall. In 2004, we tired of using the stock market as a metric of progress. The metrics proposed for New India are similarly flawed. Corruption, poverty, filth, early death and unemployment are long-term outcomes, unachievable by 2022.

Child India

Focus on the essentials, Mr Prime Minister: Ending poverty by providing jobs and social security; improve results in education and health; build infrastructure for the 21st century and professionalise your government. We supported you in 2014. We want to do so again in 2019. But is your party up to this task?

Adapted from the author’s article in The Asian Age, August 17, 2017 http://www.asianage.com/opinion/columnists/170817/is-a-sense-of-hubris-slowing-down-modi.html

FM Jaitley, aim for the sweet spot

Manmohan Jaitley

Former Prime Minister Manmohan Singh, recently released a book titled India Transformed — 25 years of Economic Reform, edited by Rakesh Mohan, at the appropriately historic Nehru Memorial Library. After the obligatory photo-op, Dr Singh turned to finance minister Arun Jaitley and with a beatific smile, handed the book over to him, as if, symbolically, he was satisfied that he could hand over trusteeship of the economy, to the three-year-old NDA government, and walked off, disregarding the speech he was scheduled to deliver.

The reform baton passes on

It was indeed a poignant moment and well chosen, for the economic baton to be handed over. The high-decibel criticism by Left-oriented, liberal public intellectuals of the economic vacuity of the BJP government’s economic policies continues. But the fact is that we are now at a cusp, an inflexion point. In all likelihood, we shall do substantially better on inclusive growth. This may sound incredulous at a time when growth, industrial investment and exports have fallen from the earlier upward looking trend line. But a dip in the industrial investment and growth rate are natural short-term consequences of the BJP having finally walked the talk on corruption.

Pressing the economic accelerator is not enough

Over the first three years, the NDA merely pressed the accelerator harder on the positive legacy of the UPA — rural unemployment support, fast-forwarding Aadhar, digitisation of commerce and banking, financial inclusion, space technology competitiveness, making electricity surplus, making access to telecommunications even more affordable, better transport and urban infrastructure, disinvestment of minority shares of state-owned entities, ensuring fiscal stability and progressively higher financial devolution to sub-national governments, including local governments.

Burying past negativities is good but not enough

It also did very well to bury the negative legacy of the UPA. The biggest achievement is in fast forwarding of expenditure programmes without the viral outbreak of corruption scandals seen earlier. More positively a three-pronged action plan is in place to make public systems resilient to corruption.

GST – the corruption buster

First, getting the GST is the biggest legislative and operational achievement to dampen corruption and enhance value addition by integrating the national market. Glitches remain due to poor drafting of rules which burden the small, honest taxpayer. Many such are the obsessive dedication to maximising revenue, even at the expense of simplicity. As usual the pain is being most felt by those least able to bear it — ragpickers — at the bottom of the urban food chain – their daily income have halved because the “kabadis” (junk yards) they sell plastics and glass to, are playing safe on the likely new tax liabilities. Small individual consultants or homeowners,  who live in one state but get work or rent from another, re similarly caught in a bewildering tax reporting spaghetti.

Bankruptcy & NPA resolution – The crony capitalism killer app

Second, is the frontal attack on crony capitalism — identifying the borrowers who have defaulted on Rs 12 trillion owed to banks, getting the Bankruptcy Act operational and signaling public sector banks that there will be no more “Mundra scam (1950s)” type telephone calls from the government. Reaffirming that sensible lending shall be rewarded and inept or corrupt lending punished.

Big brother must watch use smart analytics

Big data

Third, the proposed use of “big data”, including data from social media, to zoom in on potential tax evasion and crime. Taken together, these actions lay the systemic capacity for reducing corruption.

Aim for the sweet spot

cricket sweet spot

Whilst perfecting its drive at real sector reforms, here are the four “tests” the government must pass.

Defang the trade Unions

First, the unleashing of genuine privatisation (offloading of majority shares in a state-owned entity) as proposed in the long-delayed case of Air India is the winner. It sends the signal that India is open to efficiency enhancing financial restructuring. That it intends to free up existing public capital to create new public goods — jobs, physical infrastructure, improved social services, like health and education, whilst fresh private capital gets infused into the commercially viable supply of private goods — air and rail travel, steel, metals, petroleum and electricity. The Labour Unions are up in arms. This is where privatisation flagged in 2003 under Minister Arun Jaitley and Prime Minister A.B. Vajpayee. Can the Modi-Jaitley team de-fang the inward looking, protectionist, labour “aristocracy” comprising the Trade Unions – the bedrock of the moribund CPI(M)?

TU

Grow private banking rapidly

Second, financial sector restructuring to make state-owned banks commercially viable. Uday Kotak, of the Kotak Mahindra Bank, surely over-stretches when he advocates the  wholesale exit of loss making public banks and their substitution by private banks. But clearly, the strategy of incremental privatisation, as done earlier to enhance telecom, aviation or electricity generation, will pressure state-owned banks to become competitive. This should also circumscribe the ability of the government to use banks like ATMs for populist goodies.

Nail large. serial loan defaulters as criminals 

Modi nail

Third, the strong action proposed for making collusive default on bank loans a criminal act is commendable. It brandishes a big stick for potential defaulters. The intention is virtuous. But experience shows that criminals, especially rich ones, find it easier to evade the law than poor innocents. To avoid this perverse outcome, criminal powers should not be delegated outside the judiciary. The record of tax tribunals and quasi-judicial agencies is not sanguine enough to empower them with criminal powers in addition to their economic mandates.

There is no option except to reform the judiciary through incentives and structural changes in judicial governance. This is a tough nut to crack, but shortcuts will give rise to the miscarriage of justice, vigilantism, and massive public resentment — specially in the middle class, which will be the most impacted in cases related to property and small business.

Remain a classic, fiscal fundamentalist

Lastly, the finance minister’s determination to maintain macro-economic stability has been amply demonstrated. This resolve must not weaken even during the run up to the 2019 general election. This will be the biggest economic win,lo if achieved. The report of the N.K. Singh Fiscal Responsibility and Budget Management Committee 2017 embeds too much flexibility to provide credible guidance for the future. Fiscal fundamentalism is better.

cricket defense

Good politics must also be good economics. There is an appetite now amongst voters for hard reform. This, by itself, is a tribute to the credibility of the NDA government. A populist pre-election budget would be seen by the voters as an early admission of defeat. That is not the winner’s way.

Adapted from the author’s article in The Asian Age, August 9, 2017 http://www.asianage.com/opinion/columnists/090817/hard-reforms-vital-nda-needs-to-shun-populism.html

Fix the “market” for political power

Indian army

Citizens expect governments to intervene when the markets fail. The market for Diplomacy failed last month at Doklam. If the Chinese Army is to be stopped well north of the tri-junction between India, Bhutan and Tibet/China, then only the Indian forces, funded by taxes, can do the job. This is a satisfactory arrangement for all Indian and Bhutanese citizens, who otherwise may be hard-pressed to secure their territory.

When State failure fails to fix the underlying market failure

But not all government actions have an obvious rationale. Demonetisation was unleashed in November 2016 to end black money. Few believe that this objective has been achieved. Black money is not an outcome of market failure. It is an outcome of governmental failure to tax income effectively; control corruption or control crime. Poor governance only encourages the generation of black money, which then requires another intervention to root out black money. Economist Shanta Devarajan of the World Bank, in New Delhi last week for the NCAER annual India Policy Forum <http://www.ncaer.org/event_details.php?EID=184>  believes such iterative interventions are ineffective in improving the quality of governance, and can reduce the legitimacy of governments. Far better instead to rethink how to deal with the underlying market failure – in this case the “market” for political power.

Poor tax administration

So why do governments tax ineffectively? Most commonly, multiple objectives in the tax policy are to blame. The sale of loose groundnuts — the ordinary person’s food — may be tax-free but packed groundnuts, even if unprocessed, are taxed. This creates a five per cent tax differential for arbitrage between the two categories, which are difficult to administer separately. A single rate of tax levied on a non-evadable tax base is the most effective. But consider that this would be akin to the colonial “poll or head tax” — levied on each person uniformly. Effective, but terribly inequitable.

The killer “app” for instant equity – Universal Basic Income- how effective?

Admittedly, mechanisms like transfer of a basic income to the poor can neutralise such an inequity. But transfer of a similar amount of cash, to each poor person, itself creates huge inequities, even among the 40 per cent population vulnerable to poverty. Transferring differential amounts, depending on need, attracts the same inefficiencies as trying to administer progressive tax rates fairly.

The big 2Cs – Corruption and Crime

Why is corruption or crime so hard to control in India? If citizens feel that political power can be acquired by subverting the “popular” vote, it reduces their faith in the power of their vote. It also delegitimises the government and undermines its ability to rule, in the eyes of those who voted against the government. Bihar faced this conundrum for two decades.

It does not help that, in India, governments can be formed even with a minority of the total votes cast in elections, so long as each elected member of the ruling party gets more votes than the next candidate. This first-past-the-post system fractionalises politics. It encourages parties to form coalition governments, which are unable to discipline errant behaviour by their constituents. This “coalition dharma” fosters crime and corruption.

Are laws aligned with context?

An alternative explanation for pervasive crime or corruption is that laws are out of sync with local customs. And not enough has been done to change social behaviour beyond legislating transformative rights and duties. Ending open defecation — a prime driver to reduce the vulnerability of women to crime — is one such example. The benefits from ending open defecation are dependent on collective action. One reason why we did not do more earlier could be that the political incentives are perverse. They favour exaggerating, rather than bridging, the social cleavages of caste and religion, which inhibit collective, progressive decision making.

Feudal governance patterns breed poor accountability

Low public accountability and lackadaisical collective action can also be traced to the continuation of feudal traditions of governance and poorly distributed income growth. Richer citizens are more resilient to State encroachment of their rights and less dependent on State largesse. Luckily, over the past three decades, we have become less poor, better educated and more aware of our rights versus the State.

But the extent of inequality remains significant as does the infrastructure deficit across rich and poor areas. The privileged crust is thinner than a hand-tossed Neapolitan pizza — possibly just 10 per cent of the population. The rest seethe in forlorn frustration. Can we get away from this low-level equilibrium? Yes, we can by fixing the market for political power.

End the perverse incentives in our political architecture 

Our political architecture is riddled with perverse incentives which  constrain the will to reform. Here are four changes which are overdue – deepening decentralisation; enhancing state government autonomy; enhancing the representativeness of the legislatures and regulating political parties better.

First, bridge the trust deficit and distance between citizens and the State. Empower state governments versus the Union government and local government versus state governments. Hopefully, the 15th Finance Commission will carry forward the trend of forcing the Centre to devolve functions and Central taxes to states and directly to local governments based on performance criteria.

Second, cut the colonial fat; abolish the titular but unedifying position of state governors. These are unelected nominees of the Union government exercising oversight over elected state governments. Transfer this role to the President, who is elected. This will level the playing field between states and the Centre versus the presidency.

Third, make Parliament and state Assemblies more representative. Sharply reduce the size of constituencies. Only directly-elected members should be eligible to become Prime Minister or chief minister. A candidate should be able to contest an election for only one seat at a time. The winner must secure a simple majority of the available votes and two-thirds of the votes cast. Municipalities must be headed by elected mayors.

Fourth, the functioning and finances of recognised political parties must be made transparent. Inner-party elections must conform to common but effective guidelines. The Election Commission must be empowered to determine constituency boundaries and diversified beyond the administration, to include citizen representatives and the judiciary with the chief election commissioner chosen specifically.

Use the GST process of risk-free consensual decision making

GST became a reality as a process of cooperative federalism was followed led by the finance minister. Reforming the market for political power could benefit from a similar approach.

Adapted from the author’s article in The Asian Age, July 19, 2017 http://www.asianage.com/opinion/columnists/190717/power-structure-needs-reform.html

India’s pressured public institutions

BOOK REVIEW
Rethinking Public Institutions in India
Devesh Kapur, Pratap Bhanu Mehta, Milan Vaishnav (Eds)
Oxford University Press
548 pages; Rs 995

Rethnking Pub Inst in India

Public institutional reform has a stale air about it. There are plenty of options but little action. The sombre packaging of this book adds to this gloom. Possibly, the “monkish”, value-for-money branding is a consciously adopted tactic, setting it apart from the current trend favouring glitz and hype. The authors appear to be flinging a dare — that in their case substance needs no gloss. They are right.

PBM

The editors’ academic pedigree is reassuring. Pratap Bhanu Mehta is the best-known of them, a public intellectual extraordinaire and the acknowledged voice of evidenced, liberal political thought.
Devesh
His co-editors Devesh Kapur and Milan Vaishnav are US-based academics.
milan vaishnav
This new publication is a follow-on of a 2007 publication Public Institutions in India: Performance and Design co-edited by Messrs Kapur and Mehta.
The contributors are an eclectic mix of UK-, US- and India-based academics and Indian civil servants, serving, repositioned or retired. What is common is their deep and systematic association with public institutional development and an enviable record of publishing their work and opinions.
Are public institutions in India doomed?
So, are central public institutions going to seed? And does that explain India’s future challenges? The introductory chapter, written by the editors, provides an elegant, broad sweep of drivers and trends in institutional malaise, highlighting areas where performance has been dangerously below par. But the helicopter view is a mite too one sided, veering to a dark view of the state of national institutions.
Institutional resilience outnumbers the failures 
A more nuanced and refreshing view emerges from the succeeding chapters, each about a single institution. James Manor, writing on the Presidency, exquisitely details how this apex institution, despite the occasional failures of individual incumbents – think Fakhruddin Ali Ahmed who signed on the dotted line to impose emergency in 1975 and Giani Zail Singh, who was not averse to being actively political – has been a steady hand, safeguarding constitutional propriety and citizen rights from potential executive and legislative transgressions.
Errol D’Souza, reviewing the Reserve Bank of India, describes its pugnacious success in enlarging its regulatory space, solely through its performance-driven credibility. E Sridharan and Milan Vaishnav pen a fluid and attractively rendered tale, about the Election Commission of India, which has similarly earned its spurs. Eighty per cent of Indians trust it because of its remarkable conduct of timely, fair and efficient elections. Madhav Khosla and Ananth Padmanabhan describe how the Supreme Court has nurtured the public’s trust by courageously and consistently ruling in favour of equity, inclusion and fair play. However, they warn that dark clouds loom unless justice is delivered more efficiently.
Navroz Dubash writing on new infrastructure regulatory institutions – the Central Electricity Regulatory Commission (CERC) and the Telecom Regulatory Authority of India (Trai) – acknowledges that in the initial years both had to fight severe challenges from publicly-owned monopolies and their patrons in government. Two decades on, they are the arbiters of positive change. The CERC has overseen competition in bulk electricity supply. The Trai has curated highly competitive private telecom customer services and tariffs. However, Dubash correctly points to the need for enlarging the regulatory space such that all actors – the Parliament, Judiciary and the Executive become active players in negotiating regulatory outcomes, with the Regulator playing the balancing role,
Institutional failure more visible in sub-national entities
“State failure” is a malaise more visible in sub-national institutions, which have failed to imbibe the positive changes taking place in related central public institutions. State governors, legislatures, the lower judiciary, state public financial management institutions, electricity regulatory commissions, vigilance departments, and election commissions are often severely blemished. T R Raghunandan woefully records that institutions of local government remain ignored, underfunded and underused, except in Kerala, Karnataka and West Bengal. Consequently, inclusive growth suffers and an opportunity is lost for embellishing and inculcating local traditions of results-based democratic functioning.
But there are black sheep at the national level too
Not all national institutions, despite inherited advantages, have developed benignly. Parliament is one such. M R Madhavan ruthlessly excavates the reasons it has lost the public trust. R Shridharan similarly unravels why the Central Vigilance Commission, India’s anti-corruption agency, and its investigative arm, the Central Bureau of Investigation, have failed to establish their credentials. The former is merely a tool, to be used selectively, by the executive against its own officials. The latter is at its nadir. The moniker “caged parrot” accurately reflects why it has lost credibility in the fight against corruption.
The Comptroller and Auditor General (CAG) of India, the supreme audit institution, gets mixed reviews from R. Shridharan and Amitabh Mukhopadhyay. The CAG is uniquely placed and significantly empowered, to guide and assist Parliament to exercise granular oversight over the executive. Its path-breaking exposure, under Vinod Rai, of massive inefficiency and financial impropriety in spectrum and coal allocations lifted its public profile. But, in its “independence”, also lies the danger of it being ignored, through a “conspiracy of silence”, between a dysfunctional Parliament and a pliant executive.
The civil service, particularly its elite component – the All India Services (AIS), which constitute 0.03 per cent of the total civil employees and just 1 per cent of the Group A employees of the Union Government – have unambiguously failed. K P Krishnan and T V Somanathan admit that nothing has changed for the better over the past decade. Recruited on merit, this tiny elite thereafter enjoy the rents accruing from that initial, one-time achievement. But the authors shrink from endorsing that the AIS be phased out and its functions reallocated to the specialist cadres of the Central Services — these constitute 99 per cent of the Group A civil employees, who currently fester despondently.
This is a multi-layered, exhaustively referenced publication, which surgically exposes the dark side of public institutional dysfunction. But it also provides sufficient evidence of institutional resilience, on which an enlightened political leadership can build. A must-have, for all those who either belong to, or wish to join, the frustratingly uplifting community of public institutional developers.
Adapted from the authors review in Business Standard June 15, 2017 http://www.business-standard.com/article/beyond-business/public-institutions-under-scrutiny-117061401505_1.html
raj ghat
Raj Ghat – Gandhi ji’s memorial keeps the flame of “independence” alive

Pensioning-off cows

cow veneration

So is “the cow” (including bulls) a living deity, like the Ganga or Yamuna rivers, to be revered as a “mother”, or just another productive asset like a buffalo or a goat? This debate dates to the Constituent Assembly sessions in the late 1940s.

Cow protection smuggled into a non operative part of the Constitution

constituent assembly

Hindu traditionalist members of the Constituent Assembly wanted complete protection for the cow as a fundamental right. This was stolidly opposed by realists like B.R. Ambedkar, who saw it as a veiled attempt to deify upper caste brahmanical practices, to the detriment of the poor — for whom the cow means a source of milk, meat and leather.

Modernists like Jawaharlal Nehru thought it would blemish the liberal, secular character of the Constitution. A consensus was urgently required. Clever drafting by Dr Ambedkar pleased all by inserting an ambivalently worded Article 48 (on working towards prohibiting cow slaughter) in the Directive Principles, that are not legally enforceable. Therein lies buried the knotty, seven-decade-old problem of what the cow means to Indians.

But Hindu reverence for the cow has increased seven decades later

Neither modern education nor “development” has diminished the demand for prohibition of slaughter. Educated, well-off Hindus, across castes, are avid supporters. Higher incomes enable more people to “Sanskritise” — fashion their customs by emulating brahmanical practices. Vegetarianism is a “luxury” in desperately poor India, as is substituting cereals with vegetables and lentils. The clamour to save the cow will increase as ever more people are economically capable of “assimilating” themselves, culturally, into upper castes. Beef is already an “inferior” food eaten mostly by the poor.

Our “secular” government and political parties are politically expedient

Rather than amend the Constitution outright to reflect this demand, devious bureaucratic means have been adopted to achieve the same effect, whilst hiding behind the economic usefulness of the cow. Nine state governments — Jammu and Kashmir, Haryana, Punjab, Himachal Pradesh, Delhi, Uttarakhand, Uttar Pradesh, Rajasthan and Gujarat — ban the slaughter of cows and bulls outright. Seven states — Arunachal Pradesh, Meghalaya, Nagaland, Mizoram, Manipur, Sikkim and Kerala — allow slaughter. Others permit slaughter of animals who are no longer productive — usually more than 15 years old. The varying levels of “protection” are directly related to Hindu upper caste political dominance in a state. The only exception is J&K — a Muslim-majority state, which bans cow slaughter. In more normal times this would be an example of our “syncretic” culture.

New rules drive Beef markets underground

cow markets

The Union government has chipped in by banning the export of beef and cows, thereby minimising the incentive for cow slaughter. It also promulgated rules on May 23, 2017 under a Central law, Prevention of Cruelty to Animals Act, 1960, which ensure cattle markets are not used to purchase “bovine” animals for slaughter. The rules are onerous. They require multiple certifications, declarations and identity verifications. They will ensure all sale/purchase of “cattle”, which includes buffalos and camels, would end in cattle markets. Curiously, a convenient “out” remains available. Direct purchase from a cattle owner doesn’t attract these rules. The net result will be trading will move to one-on-one sale/purchase, or to large commercial dairy farms — now facilitated by the agricultural land leasing policy. These will be informal cattle trading hubs, without health certification to ensure meat quality.

Ironically, even as the Niti Aayog and agriculture ministry are striving to make agricultural markets efficient, the trade in dairy animals is being driven underground. Perversely, the new rules are being touted as the fallout of a July 2016 Supreme Court order, that was intended primarily to stop the flourishing cross-border traffic of cattle into Nepal and Bangladesh. The loud protests by West Bengal and Kerala and muted noises from Tamil Nadu and Karnataka are as farcical, playing to the dalit and Muslim vote banks.

Are we willing to pay for pensioning-off cows?

Surely, this farce played out repeatedly, since 1948, should end now. Why not have a referendum to establish the extent of support for cow protection? Seth Govind Das suggested this in 1948. The cost would be around Rs 50 billion, equal to the cost of a general election. The outcome, as in Brexit, is by no means certain.

If the existing 190 million (2012 data) indigenous and hybrid cows are to be cared for after their useful life, for say an additional five years (underestimated), the annual cost at a daily spend per animal of Rs 50 is Rs 1.1 trillion.

This is four times the spend in 2017-18 on medical, public health, welfare of SC-ST, backward castes and minorities and social security — spread thinly across around 400 million of India’s income-insecure citizens. It’s more than half the spending on defence. Maneka Gandhi and animal rights activists will be delighted, but it’s impossible to fund a pension scheme for cows publicly.

cow employment

Cow retirement homes run by the private sector on viability gap funding basis will create around one million jobs. But there is no free lunch, even for spiritual or emotional fulfilment. So how many of the 280 million Indian households would be willing to pay an additional Rs 4,100 per year for protecting the cow?

What about the environmental consequences of keeping 70 million old cows

The 1.5 lakh hectares of land to house the “retired” cows can be found. But the additional water resources — far exceeding the needs of 200 million humans — would be a challenge. The retired, unproductive cows will increase methane emission, which are worse than carbon dioxide, by an estimated 0.6 per cent, even as we are struggling to reduce carbon emissions.

Of course, it may never come to this absurd end. Farmers won’t buy cows if they can’t sell them for slaughter. Bulls are redundant in mechanised farming. Buffalos are more productive milk producers. “Nandi” clone bulls and milk white cows might become like racehorses or elephants — the treasured preserve of rich people and temples. And this is how it should be.

bulls

If the suggestion by Justice Mahesh Chand Sharma of the Rajasthan high court (now retired) “trends” sufficiently, the cow could become India’s third national animal, alongside the other “big two” —tiger (de jure) and Gir lions (de facto). Welcome to India’s new-age action safari.

cow temple

Adapted from the authors article in The Asian Age June 3, 2017 http://www.asianage.com/opinion/columnists/030617/the-cow-indias-icon-wholl-pay-the-price.html

The coal-gate bell tolls selectively

patiala house

On Monday, May 22, 2017 CBI Special Judge, Bharat Parashar will sentence the five accused, convicted by him on May 19, 2017. Among the convicted are three officers – H.C. Gupta, retired Secretary of the Ministry of Coal (MOC) and two of his juniors, convicted under the Indian Penal Code (IPC) for criminal conspiracy and cheating and under the Prevention of Corruption Act, 1988 (PCC), for obtaining undue pecuniary advantage, against the public interest, for M/s Kamal Sponge Steel and Power Ltd (KSSPL).

The fearsome consequences of a criminal conviction

The conviction under the IPC invites a maximum sentence of up to six months with a possible fine. The conviction under the PCC invites a minimum sentence of one year, extending up to seven years with a possible fine. Associated outcomes would be the retrospective dismissal and withdrawal of retirement benefits for Mr. Gupta and dismissal for the two officers in service with no termination benefits. It can’t get worse for these officers.

Jail

The background to coal-gate

In November 2006, the UPA government, desiring to relieve the coal shortages crippling the economy, invited applications from end-users of coal in power, steel and cement sectors for allotment of captive coal mining licenses. 1.422 applications from 344 companies for 38 coal blocks were received.

But this gigantic liberalization measure quickly acquired notoriety. A Tsunami of public revulsion at the alleged, rampant corruption in allotment followed.  In August 2012, a report of the Comptroller and Auditor General – India’s public auditor, was leaked. It assessed the loss to the treasury from incorrect coal allocations between 2004 to 2009 at Rs 10.7 trillion.

CAG

The Vigilance Commissions waded in righteously and referred the case of allotment of the Thesgora B/Rudrapuri block in Madhya Pradesh, to the CBI for a preliminary investigation on June 1, 2012.

CBI lives up to its “caged parrot” reputation 

The CBI lodged an FIR on October 13, 2012 against M/s Kamal Sponge Steel and Power Ltd. (KSSPL) – one of the two joint allotees. It had identified deviations from the guidelines for allotment specified by the ministry of coal. However, after investigation, it filed a closure report, stating that there was insufficient evidence to prove a criminal conspiracy to cause unlawful gain for the allotee.

The Supreme Court bats straight and hard

Meanwhile, the Supreme Court, in a separate case regarding coal allotment, ruled in August 2014, that all the coal allotments done over the period 2004 to 2009 in favour of private companies were contrary to the provisions of law and terminated them.

The CBI court takes heart and revives the case 

Soon after, the CBI court rejected the agency’s closure report on October 13, 2014 and framed charges on October 1, 2015. Special Judge Parashar has been painstakingly diligent in avoiding judicial overreach. His approach has been technically exemplary. He has recorded how the ministry of coal subverted the process defined by itself and failed to exercise due diligence and adequate oversight over the actions of the coal allocation section of the ministry – headed by an undersecretary level officer. In an unedifying spectacle of poor leadership this junior officer was fingered by his immediate superiors as solely responsible for incorrectly processing the 1,422 applications received during the 36th round of coal allocation.

A tragedy of avoidable self goals in MOC

self goal

The entire process was replete with errors. The application of M/s KSSPL was incomplete. The last three years audited balance sheet were not attached as required by the advertised guidelines. But the lacuna was not red flagged. Instead, it was circulated, like all the other applications received, to the concerned administrative ministries – in this case the Ministry of Steel and the state government of Madhya Pradesh for comments and then tabled in the Screening Committee for consideration. The state government recommend that the block be allocated to M/s BLA Power – a power producer. But this recommendation was not accepted, presumably because this block was specified for non-power coal users.  But then why was the application of m/s BLA Power circulated to the concerned ministries and state government, without red flagging that it was ineligible?

M/s KSSPL – complicit conspirator or merely gaming an inefficient system

M/s KSSCL was invited to make a presentation to the screening committee despite their applications remaining incomplete. Worse, the prosecution established that the missing audited balance sheet had been with the applicant all along and that the applicant had overstated their production capacity and their net worth. Whilst there were no minimum conditions for net worth or production capacity, overstating both, could only have been done consciously to falsely claim a greater need for coal and a larger allotment than required. Having once stated this falsehood, producing the audited balance sheets was no longer possible. Considering these facts constructively, the charge against the company and its employees for cheating and conspiring to obtain pecuniary benefit at the expense of public interest is well established.

A conspiracy of one?

But who did the applicant conspire with in the government? Is it not possible that the applicant, simply used the loosely dispersed and poorly managed selection process to their own advantage, without the active criminal cooperation of anyone? Do not thieves enter through a door, inadvertently left open, to steal? Would the mere fact of an open door automatically make a beat policeman or the owner a co-conspirator?

Why the selective targeting of and within, the ministry of coal?

Second, even if there was a conspiracy, why was the relevant chain of officers in the administrative ministry (Ministry of Steel) or in the government of Madhya Pradesh not similarly charged? They did not object to the incorrect inclusion of the applicant. Nor did they object to the allocation, either during, or after the steering committee meeting. Was it sufficient for them to merely stress the need to evolve objective criteria for evaluating the applications in a pre-evaluation meeting convened by the MOC on May 11. 2007 without putting down their concrete suggestions on record? Secretary, Coal had specifically directed Coal India to identify the applications whose net worth was at least 20 percent of the capital needed to implement their proposed projects. The onus was on the MOC to follow up on these decisions. But nothing seems to have been done.

The fact that the MOC did not follow up on defining the evaluation process has been used as evidence of a conspiracy within the ministry to retain undue discretion possibly with the intent to cause pecuniary benefit against public interest, to be obtained by selected applicants. This is a valid concern.

But, if there was a conspiracy within the Ministry of Coal, surely the extent of it needs to be established. Could it not, for example, extend to the then Minister of Coal, who was also the Prime Minister- Dr. Manmohan Singh? Also, what about the undersecretary heading the coal allocations section.  He is clearly not solely to blame. But exonerating him completely, also appears extraordinarily generous, considering that he could produce no written orders directing him to circulate the applications without checking them for completeness or eligibility per the guidelines. Is it sufficient to rely on the mere fact that the three convicted officers were all from the IAS to establish that only they were part of a conspiracy?

Was the circumstantial evidence doubt proof enough to prove guilt?

Special Judge Parashar quotes the Supreme Court on the need for convictions, based on circumstantial evidence, to establish a clear, plausible, plainly visible connectedness between the actions of the conspirators for a common illegal objective. But the evidence to support this minimum requirement to establish guilt seems far too thin and speculative in substance.

Administrative disaster but criminal conspiracy…..?

What has been incontrovertibly established is that the pre-conditions for a conspiracy to be hatched existed. But in the absence of incontrovertible evidence that a criminal conspiracy existed, whilst there is ample ground for proceeding with disciplinary proceedings against the officers concerned, indicting them criminally seems excessive.

portia

Portia in Merchant of Venice – “The quality of mercy is not strain’d……….It is an attribute to God himself; And earthly power doth then show likest God’s; When mercy seasons justice.” William Shakespeare

The law must needs be blind, single-minded and mechanically predictable if it is to avoid selective targeting. Special Judge Parashar after penning a water tight judgement stopped short on excising the cancer of criminal conspiracy fully. Or can this be judicial self-restraint in the face of certainty, that additional indictments are around the corner to get to the root of the problem?

The blog is also available at http://blogs.timesofindia.indiatimes.com/opinion-india/the-coal-gate-bell-tolls-selectively/

Taming killer highways: Booze ban a marginal solution

booze bar

Thirsty travellers on highways are going to miss the inviting LED signboards offering “cold beer” to alleviate their boredom. But ask those who have lost a loved one in an accident, or been maimed in one — and they will enthusiastically support the Supreme Court’s ban on the availability of booze along our state and national highways. When the issue is emotive, the reflex response of both the judiciary and the executive is to do anything that appears adequately responsive. What could be easier than banishing booze from the highways, knowing full well that this could be just optics.

Target drivers and the owners of vehicles with punitive action

Traffic police

Curbing drunken driving requires that drivers, a small fraction of all travellers, be targeted. Most travellers are passengers. It doesn’t matter whether they tipple or not. Many of those at the wheel are licensed, professional cab, bus and truck drivers — much like commercial pilots. Surely the owners of these commercial vehicles should be held criminally accountable, along with the driver, for accidents caused by drunken driving, unless they can prove that they test their drivers randomly. This would automatically incentivise owners to use drivers who don’t drink. But this is a narrowly targeted option that requires follow-on administrative action and effective policing. Far splashier, instead, to go in for a blanket ban on booze —  and never mind if it causes collateral pain.

Our bias against booze is vested in the Constitution

Directive Principles

The origin of our half-hearted approach to the problem lies in the Directive Principles of our Constitution which enjoin the State to implement prohibition. These define the higher moral ground that we all must aspire to. But they are not mandatory and need a law to be passed to become implementable. We implement these only selectively — like universal education —  where there is near complete consensus. But we ignore others, like prohibition, where a consensus is missing. Hence the tension between the constitutional directives and reality.

We do not have a fundamental right to drink or sell booze. We do so only at the pleasure of the State. It can be withdrawn at any time. Many would argue it should not be summarily withdrawn, specially when it will disrupt ongoing business. And because other options exist to curb drunken driving. If we are uncomfortable with the ideals specified in the Directive Principles, then the correct approach is to amend them and expand the fundamental rights to include the freedom to drink responsibly. But who will support such an amendment?

We are not French – we have no tradition or social acceptance of booze

indian meal

Mainstream India has no tradition of the neighbourhood bar, from where it is all right to stagger home, helped along by acquaintances or friends. Yes, there is communal drinking in tribal areas and on special occasions in villages, where there is a lot of staggering about. But these are rare occasions. In the plains of India, most regular tipplers are men as drinking is done outside our homes. It is the anonymity of highway drinking that is attractive for furtive, male drinkers.

Economic impact of booze ban marginal – because tipplers will find a way to drink

How terrible will the booze ban be for the economy? The measure simply aims to make drinking and sale of liquor physically invisible from highways. Tippling will shift a couple of minutes away onto back streets, possibly with far worse consequences for public order. But its revenue impact will be negligible. Businesses will adjust. Web-based apps will guide travellers to back street bars and booze shops; private caches of pre-mixed booze in flasks will proliferate as will the illicit supply in dhabas along the highway.

Judiciary not the culprit – amend the constitution if you want a right to drink

Blaming the judiciary for ham-handedness is the easy part. But the Government of India and several state governments, including Delhi, Madhya Pradesh, Andhra Pradesh and Telangana, have accepted the verdict. Eighteen other states didn’t bother to contest the decision. This shows that the judiciary is aligned with the national and state-level executive in moving India, gradually, in the direction to which the Directive Principles point us.

The real culprit is drunken driving- only intelligent policing can help

Drunk driver

But without effective patrolling, behavioural change among drivers is highly unlikely. Ask any highway traveller. There is nothing more reassuring than regularly passing by a police patrol car, specially at night. Drunken or irresponsible driving can only be curbed if the Centre, with the consent of all state governments, directly polices all our national highways. Centrally-monitored and controlled mobile patrols, responsive to distress calls and SMSes like the National Ambulance Service, equipped with paramedic and trauma support teams, should be frequently visible along the 90,000-km national highway network.

Create a National Highway Police & Trauma Support System- NHP&TS

NHP

A National Highway Police Force should be created and empowered to regulate traffic; challan errant driving; provide trauma support in case of accidents and keep the highways free of crime and irresponsible social behaviour. Back-of-the-envelope calculations suggest that an officer-oriented, multi-skilled force of 11,000 employees would cost Rs 1,000 crores annually in overheads, maintenance and salaries, with a one-time capital cost of Rs 800 crores for equipment and housing. Sounds expensive? Implemented over a period of five years, it is just 0.3 per cent of the annual revenue expenditure and 1.5 per cent of the capital expenditure for the police in the Union Budget.

Compare this with the avoided cost of Rs 1,400 crores, being the value of lives lost (42,000 persons in 2009) in accidents on national highways, computed on a present value of Rs 3.5 lakhs per life lost, based on the average per capita income, over a residual working life of 20 years. The avoided cost of injuries to 1.5 lakh people (2009) is around Rs 180 crores, assuming medical treatment and lost wages at two months’ wages per injured person. The cost of vehicles and goods lost and cost of trauma suffered is over and above this.

The economic payback of a NHP&TS system is under one year

An international-quality high way security and trauma support system makes economic sense. More important, it is yet another bond sealing the social compact between Prime Minister Narendra Modi’s government and the travelling public — urban immigrants, business people and tourists —  estimated at around 230 million passengers in 2016 (assuming an average lead of 75 km) by the National Transport Development Policy Committee in 2013. There can be no better social impact investment than one which offers an economic payback of under one year.

Adapted from the authors article in Asian Age, April 8, 2017 http://www.asianage.com/opinion/columnists/080417/tame-killer-highways-liquor-ban-just-optics.html

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