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Archive for the ‘Law and regulation’ Category

#Gender & #sexuality norms #India 2018

LGBT 2

In Britain, “buggery” between consenting adults became legal in 1967. Let me hasten to assure that I use the crude term “buggery” not to mock the LGBT community. This is the physical act, defined by its antiseptic moniker “voluntary carnal intercourse against the order of nature”, which was excised from Section 377 of the Indian Penal Code (IPC), 1860, by a five-member Constitution Bench of the Supreme Court last week (Navtej Singh Johar case). Fali Nariman had argued in the Suresh Kumar Kaushal case. 2009 that the term used in the IPC was so vague that it could be interpreted to include all sexual acts which were for pleasure alone and not aimed at procreation – including fellatio, use of a condom by a hetrosexual couple and use of an artificial device by two women. All of them, per Mr Nariman, could be prosecuted. Luckily now that  transgress into privacy has ended.

The court tagged the right to choose one’s gender and sexual preferences to the expansive fundamental rights vested in our Constitution, which encourage every individual to express themselves, form like-minded communities and live enriched, free lives, albeit with reasonable restrictions.

Incremental inclusion of LGBT over a decade

Events have been moving in this direction for nearly a decade. In 2009, the Election Commission of India, under CEC Navin Chawla, encouraged voters to voluntarily register their gender as “other” rather than male or female, if it described them better. This revolutionary move was balm for the transgender community, traditionally called “hijra”, which were outlawed in the colonial period and exists today as society’s underbelly. It is easy to exclude a community legally but much tougher to excise it from social memory. Rare is the Indian parent who would risk not getting newborn children or newly-married couples blessed by hijras.

Anjali LGBT crusader

On July 2, 2009, the Delhi High Court made history by allowing the petition of Naz Foundation. It held that Section 377 of the IPC was unconstitutional. The 2011 census followed and recorded 0.5 million transgender people on a self-declaration basis.

The next milestone was the April 2013 judgment by a two-judge bench of the Supreme Court (National Legal Services Authority case) which recognised “transgenders” as a minority identity. It was the first step towards fuller state inclusion for benefits and protection. Unfortunately, the bill for enabling such rights has been under consideration since 2014 in Parliament.

Meanwhile, strongly influenced by the international narrative to actively protect individual privacy against the State or private predators, a nine-judge bench of the Supreme Court on August 24, 2017 (Puttaswamy case) ruled that individual privacy was a part of the constitutionally guaranteed fundamental rights. Using privacy as an entry point, the court also ruled that the law must not be normative on what consenting adults could do in private.

Why is the judiciary being implicitly used to make law?

Given this progressive trend, the decriminalization of Section 377 was a logical conclusion. But the lay person could well ask why adopt a tortuous, disjointed judicial process for what have been comprehensively dealt by a proactive legislation recognising first, that gender diversity is a reality and second, sexuality is a mutual choice not limited by laws or morality.

The answer is yes, these issues should be debated comprehensively and legislated on by Parliament. The judiciary has no original legislative power. It makes or unmakes law only as a default option on a petition for judicial review of whether or not a law is aligned with the basic framework of our Constitution (Keshwanand Bharati case 1973).

Electoral compulsions erode a consensus, within Parliament, on social reform with electoral gains are meagre

To be fair to Parliament, it reflects what citizens feel, think and expect. The tyranny of democracy is that it binds us to where we exist today, not where we might want to be a half century hence. History has also not helped. Rule by the Mughals, followed by the British Raj, had stymied organic social development. Alternative sexuality was hardly an issue in Ancient India. As evidence, one needs go no further than Section 282 of the Indian Penal Code, which defines “obscenity” as anything “lascivious”, appealing to “prurient interest” or which may “corrupt” or “deprave” persons and prescribes punishments for such acts or objects.

The exception to this section is revealing. Ancient monuments, their sculptures and art are exempted from prosecution under obscenity laws as are any sculptures or art meant for religious purposes. Our ancient culture and religion predates the puritanical social norms of the eighth century AD in Arabia and eighteenth century AD in Europe, which were internationalised through conquest.

Western civilisation turned the corner on including LGBT a half century ago

Europe

We are stuck in a past which is not our own. A past abandoned, even in Europe, from where we partially assimilated our prudish present. A survey by daliaresearch.com shows that six per cent Europeans identify themselves as being Lesbian-Gay-Bisexual-Transgender (LGBT). Those between 25 to 35 years are four times as likely to claim an alternative gender as compared to those above 60 years. Gender and sexual diversity is the future. But State support is crucial. In the UK, same-sex marriage is legal. But 20 per cent of LGBT have battled hate speech or worse from social conservatives.

Generating data on LGBT can improve their access to public services & make their electoral weight visible

If the European share of LGBT to total population is applied to India, we would have 70 million LGBT people. They may very well exist and if united would be a bigger vote bank than all our minorities other than the Muslims. But fear and oppression keep them in the closet. Changing the pattern of acceptable social behaviour is a long, hard struggle. Lofty judicial pronouncements change behaviour only when embedded, by law, into the lives of real people who study, marry, have or adopt children, work productively and raise families securely. This is a long haul given the current parliamentary passivity on this subject.

IIT Delhi geeks are at the frontier of change

It is endearing that 20 geeks from the Indian Institute of Technology, Delhi, an institution of eminence, are at the frontier of change. They challenged the regressive Supreme Court’s two-judge decision of December 11, 2013 (Suresh Kumar Koushal case), which had overturned the Delhi high court decision ruling that Section 377 was unconstitutional on the narrow ground that unproven harm to a small minority was not significant enough to warrant judicial intervention to curtail the legislative privilege of Parliament.

Three emerging institutional trends

The decision in the Navtej Singh Johar case last week illustrates three important trends. First, institutional collapse is not imminent in the higher judiciary. This is good news since they will have to lead social change in the face of parliamentary passivity.

Second, the Court, by coming out strongly against majoritarianism, has stirred up the political pot. This will continue to boil during the upcoming elections.

Third, failure of governance continue. Much can be done by executive action and in judicial review sanctified by the courts. Why cannot the government simply change the provision for survivor pensions for a “spouse” to “partner” as a one-time choice to be made by the pensioner? Similar changes in the definition of “family” for health insurance or social benefits can embed sexual and gender diversity deeply. Aadhaar was driven by executive zeal, and so can social reform.

Adapted from the authors Opinion Piece in The Asian Age, September 10, 2018 http://www.asianage.com/opinion/columnists/100918/377-need-a-real-change-in-state-society-norms.html

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bureaucracy, crime, Democracy, India, Law and regulation

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Unbundling State effectiveness – current perspectives

dreams

Context is everything. No one model exists of an effective State. Hugely diverse countries like India can benefit from a modular approach enabling sub-national jurisdictions to shape their State architecture taking into account their context, the available resources and their dreams. The last is important. “Dreams” -as opposed to short-term ambition- are a mix of inherited drivers for action. They determine who we want to be- a long term goal. Consider, that in the long term – any period after 20 years – every factor of production that appears fixed today -technology, natural resource use, and human capital- can be changed.

Core sovereign functions

A large part of the modern sovereigns effort relates to overcoming negative “externalities” (war, insecurity, crime, environmental degradation) or enhancing positive “externalities” (sanitation, public health, basic education, transport, energy and communication networks). An externality is a cost which cannot be allocated to any one entity or a benefit which is not enjoyed by just one individual. This results in the need for “collective action” to finance and execute plans to deal with externalities.

Dealing with the problem of “collective action”

Using State executive agencies to deal with externalities was the pervasive form of “collective action” till the 1970s. Experience shows that those State interventions, which work “along the grain” and align with public sentiment are effective. Consider the baffling, continuing insecurity in Kashmir despite a massive deployment of security forces. A wider domestic and diplomatic engagement with the root causes of Kashmiri disaffection could help. Note that in sharp contrast, China deals with Uigur resentment in its Xinjiang province with a heavy, repressive hand. If the Economist is to be believed, it keeps 1 million Uigurs – more than 10 per cent of this Muslim minority group- in detention camps for “re-education”.

Hybrid options for “collective action”

Hybrid options for “collective action” have emerged over the last four decades. These unbundle the core sovereign functions from those which can be undertaken by private entities. Private contractors perform even routine security functions; lease out, maintain and even operate equipment for government agencies. Government can get things done by others rather than do them itself. But using this model extensively requires government agencies to change its skill set from project implementation to project design, contracts, finance and monitoring. There is insufficient evidence that government is making that transition. Public Private Participation (PPP), with the private sector putting in capital and bearing the implementation risk, has died in India.  Government was unable to make the functional transition to design and manage contracts effectively for mutual gains. Private investors used the mechanism as a way of earning riskless returns using bank loans. The term “Public” in PPP gave banks carte blanche to extend loans to “lemons”- projects with dodgy financials.

Bridging information asymmetry

Managing information asymmetry is also a key sovereign function to reduce the transaction costs to efficient levels and allow market to grow. Legislating standards like “weights and measures” makes trade more efficient; making rules for disclosures on operational and financial results by business, makes stock markets more efficient; regulations for public disclosure of product contents, as in medicines and food, protect public health. These are “in situ” measures to bridge the information gap between buyers and sellers within a given market structure.

Making markets competitive

Non -competitive markets induce inefficiency and impede growth. On the supply side, the government’s job is to avoid cartelisation by existing suppliers and regulate the level of market dominance of individual suppliers. The Competition Commission of India, backed by appropriate legislation is the vehicle for doing this.

Aggregating demand is the flip side option to keep markets competitive. User’s cooperatives are one traditional option. Government owned demand aggregators, like the Energy Efficiency Services Limited (EESL) are another option. EESL reduced the retail sale price of energy efficient LED bulbs by 75 per cent over 2012 to 2015 just by buying and distributing at scale. Private demand and supply aggregators like Amazon and Flipkart are newer options which operate like mini-markets reducing transaction costs for both sellers and buyers.

Markets – building blocks of the future

Global ideological polarisation around the usefulness of markets for reducing transaction cost and spurring competition via innovation came when China, under Deng Xiaoping adopted, in 1979, what later came to be known as “capitalism with Chinese characteristics”. Collapse of the Berlin Wall in November 1989, signalled the end of Soviet Union style socialism and the ensuing ideological polarisation around markets.

Bumbling liberal democracy versus totalitarian efficiency

Political Science became simpler post 1990 as nations clustered around two major clusters. The larger chunk consists of nations which align with, or aspire to, the western model of governance – democracy, multi-party elections, citizen rights and public sector governance reform to minimize the direct intervention of the government in the economy. India fits squarely into this set.

A smaller set of nations, with China in the lead, subscribe to the supremacy of the Party as the mediator between the State and the people. State control remains pervasive via public investment and Party cadres in key positions in the private sector. The “national interest” dominates citizen interest. Controls on family size (till recently), continuing controls on domestic migration and a weak judiciary are the downsides.

The “middle kingdom” shines

china shine

The spectacular economic success of China over the last four decades, including in reducing poverty below 3 per cent, provides powerful evidence that the State can function as effectively as the private sector. This model produces results but also future tensions in an artificial short-term, trade-off between citizen rights and economic progress. If development empowers people, how will a system based on the sacrifices of the many for a few, shake-off the bonds of political subservience it engenders?

Listening to discordant voices or ignoring “noise”

China has the managerial freedom to implement decisions without catering to the “noise” from political opponents or muted public opinion. Curiously, this is not too different from what Elon Musk, the founder of Tesla wants. By taking Tesla private he can avoid the relentless scrutiny of shareholders and the discipline of market expectations.  In India the need for consensus is a brake distorting efficient solutions. Consider the case of the Goods and Services Tax.  The GST, an efficient tax reform, languished for over a decade. In 2016 the Union government conceded managerial ground to the GST Council. It agreed to make implementation “revenue neutral” for state governments. A back stop Union government guarantee protects against short fall in tax revenues. The potential risk of “moral hazard” is the risk.  Multiple tax rates, knowingly sacrifice the efficiency gains from a single rate of tax. But the architecture now exists; systems are stabilizing, the rates can be adjusted based on experience. Listening to the people via the state governments has paid off.

Living with the “nuisance” of judicial review

China has no patience with judicial review of its decisions. This makes the government and the Party supreme. India is a liberal democracy, even though we chose to call it “socialist” in 1976 via an amendment to the constitution. The power of “public interest litigation” effectively restricts the ability of the government to undertake significant change, except via constitutionally aligned legislation.

The initiative of the Vajpayee government to privatise State Owned Entities in 2000 quickly ground to a halt. It became impossible to implement the legislative changes required to change the public ownership of state owned enterprises like ONGC, what have statutory status since 1956 or banks, which were nationalised by legislation in 1969 and select private industries nationalised in the 1970s.  “Reform by stealth” – the Indian approach, truly has its limitations.

India, stolidly elephantine moves

Elephant

It is instructive that one and a half decades after electricity reforms were initiated in 2003 there are privatised electricity distribution utilities in the national capital of New Delhi but a State Electricity Board, created under the Electricity Supply Act 1948, continues to function in the state of Kerala – the last bastion of the Left.  India assimilates multiple ideological regimes, per the local context.

Local governments bring innovation and accountability

Successive Finance Commissions have devolved more resources and responsibilities to local bodies. But Panchayati Raj, the third level of government, embedded in the Constitution in 1992, remains sparingly implemented. One third of the annual growth in the pool of Union tax revenue must be incrementally, directly devolved to local government, as shared benefits. This will enhance local ownership of the growth process and facilitate empowered grassroots leaders to grow into future national leaders.

A nation of itinerants

train stations

Decentralisation brings to the fore, multiple potential threats – the problem of equitable allocation of funds; ideological permissiveness and political dismemberment. These are real threats.  But India has stabilizers built into the constitution– free migration and the rule of law. So long as our laws promote non-discrimination and equality, the market for work and liveability will make a person vote for national integration with her feet and move to a place, where she feels secure and productive.

One fourth of Indians do not live in the place where they were born. This is why the Aadhar unique digital identity, with appropriate safeguards for private information, is vital to secure seamless access to public services anywhere in this country of itinerants.

There is a curious dichotomy today. The world looks at India as a major determinant of its future. But we, within India, are still staring at our navel awaiting enlightenment from without. It is time we claim our place in the Sun by making our actions speak for us.

 

From the authors opinion piece at the Law School Policy Review, gust 19, 2018 https://lawschoolpolicyreview.com/2018/08/19/unbundling-state-effectiveness-current-perspectives/

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bureaucracy, Democracy, Economy, India, Infrastructure, Judiciary and Law, Law and regulation, politics

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Grandfather stranded power assets equitably

Coal

Economic reform has few friends. This truism is visible today as the 2003 de-licensing of power generation capacity is being unfairly fingered as the culprit for the Rs 1 trillion bank debt turning delinquent due to pending or actual bankruptcy of the power projects.

De-licensing of power generation delivered what it was supposed to – capacity addition in thermal generation exceeding the planned capacity addition over the period 2012 to 2017 by 30%. Fingers are also being pointed to low coal production or the prohibitive price of imported gas as additional culprits. This is disingenuous.

Drivers of stranded power assets

The primary reason why installed generation capacity remains underutilised is that distribution utilities have failed to develop new markets for electricity and are stuck at unreasonably high levels of operational inefficiency. The CRE/ICRA 6th Annual Rating for Distribution Utilities July 2018, rates just 7 out of 41 distribution utilities with a satisfyingly high performance. But remember that rating standards in India are contextually determined to offer an incentive for improvement. Lowering transmission and commercial loss below 25% accrues incentive points. International standards would be way better.

The average loss in distribution utilities, during FY 2016, after accounting for subsidy received from government, was Rs 0.65 per unit (kWh) sold. Is it any wonder then that distribution utilities have failed to absorb the available supply of electricity. Actual users have to undergo forced power outages till the utilities can generate cash to pay for purchasing electricity from the grid. Constraints on the supply side have been unplugged by reform. The problem lies in stodgy utilities failing to aggregate potential demand.

India night lights

SHAKTI a transparent, effective resource allocation mechanism

Union government steps for reducing financial stress in the power sector date back to 2017. SHAKTI (Scheme for Harnessing and Allocating Koyala (Coal) Transparently in India) skillfully used the auction methodology to allocate up to 80% of the assessed need for coal supply to 11 generators (31 entities applied but only 14 were found to be at a reasonable stage of project completion) . Generators without any coal linkage, bid for coal supply from Coal India Ltd. by agreeing to reduce their approved levelized tariff , thereby sharing the gain with their customers. Bids for reducing tariff by 4 to 1 paise per unit (kWh) were received. This was commercially smart rationing of coal supply to favour the most efficient generators.

RBI shakes complacent defaulting promoters awake with looming insolvency

Debt Recovery

Why has the debate around stressed power assets gained currency today? Election time, which we are clearly into, is a good time to press for benefits. This applies to requests for extending the time period beyond the 180 days allowed to promoters to rectify a loan default. Under the Insolvency and Bankruptcy Code 2016, promoters or their associates, become ineligible to bid for the assets during resolution proceedings. This severe penalty is meant to spur promoters to fulfil their loan repayment obligations and pay banks back on time.

Timely negotiated settlements better than the judicial option 

Draconian penalties are of little use when the default is due to a systemic shock. The Enron private power fiasco 1992-1999 was sparked by spiralling of imported gas price. Negotiations, rather than judicial options, finally resolved matters. In 2005, NTPC, GAIL and MSEB acquired the assets in Dahbol, Maharashtra abandoned by the bankrupt US company.

Enron solution redux- neither desirable nor feasible

Dahbol involved only 2GW of abandoned assets. Today, 10 GW of gas generators are stressed, like Enron. In addition around 12GW of coal fired generators are also stressed after excluding those which have benefited from the SHAKTI initiative. The stranded asset problem is more than 10X of the Enron problem. The bank loans – mostly of Indian banks – at stake are around Rs 1 trillion. Is there a way out causing the least disruption to embedded economic incentives?

Reduce the cost of coal based generation by lowering the implicit and explicit “tax” imposed on it.  

The most direct route would be to end the extortive levies on coal production and transportation by rail. Rahul Tongia and Puneet Kamboj of Brookings India recommend making the railway freight charges cost reflective. This would also make Indian Railways competitive with road transport, to which it has been losing market share.

Currently, coal transport by rail is charged more than the cost of service. This is an implict tax on freight which subsidises passenger traffic. The resultant excess freight cost feeds into the cost of electricity generated. This increases the cost of electricity by Rs 0.21 per unit (kWh) amounting to Rs 108 billion per year.

In addition, there is an explicit tax on coal via royalties, levies and coal cess. These increased from Rs 200 per tonne in 2011 to Rs 800 per tonne in 2017 pushing up further the cost of coal based power.

Why should electricity consumers pay to subsidise rail passengers?

Quite unfairly, it is the honest electricity user who is indirectly subsidising rail passenger traffic – that too in a poorly targeted non-merit way. Freight charges should become cost reflective and the levies on coal production reduced to Rs 400 per tonne. IR should generate the additional revenue required for keeping passenger fares reasonable, from commercial development of their physical assets.

Subsidise rail passengers explicitly via the budget

There is also a good case to use the revenues from coal cess and other levies for this purpose. Rail transport is more efficient and environmentally less toxic than road transport. Switching to electric rail from road, reduces the import burden imposed by using petro products. A direct subsidy of Rs 150 billion should be allocated to IR specifically for adopting cost based freight charges in the 2019 budget. Lowering the cost of coal based power will improve the finances of distribution utilities and enable them to buy more power, which would feed into the financials of coal based generators.

Spread the pain of low availability of domestic fuel across all thermal power generators

Why not replicate the SHAKTI auction template to allocate a portion – say 50% – of the annual coal demand to all generators (those owned by the Union, state governments or the private sector) whilst retaining the existing allocations for the remaining one half. Electricity prices at the grid would reduce. The principle of price competitiveness (electricity supply) as the door to preferential access to scarce domestic coal will incentivise all generators to become efficient.

competition

Grandfathering existing contracts is the gold standard of contracting norms. But extraordinary circumstances call for innovative options. When the available resources fall short of demand, the principle of efficiency of resource use overrides historical rights in a merit order system. New generators win the efficiency battle, hands down.

Adapted from the authors opinion piece in TOI blogs, August 9, 2018 https://blogs.timesofindia.indiatimes.com/opinion-india/equitable-grandfathering-needed-in-thermal-power/

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Economy, Energy, Environment, India, Law and regulation, Tax

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Secrecy, privacy and property rights

access denied

Rahul Gandhi alleged, during last week’s doomed-from the-start no-confidence motion in Parliament, that corruption in the 2016 agreement signed by the Narendra Modi government to purchase 36 Rafale fighter jets from France had forced defence minister Nirmala Sitharaman to backtrack from her assurance to disclose details of the price of purchase.

Parliamentary subterfuge – unnecessary, if there is nothing to hide

The matter could have been ended by Ms Sitharaman admitting that being new, she had overlooked the confidentiality clause – a plausible explanation since military purchases are a tough, black box to unravel. Instead, the government chose to hit back by pinning the blame on a 2008 bilateral security agreement signed by the then UPA government with France. This needed both parties to protect classified information which could compromise the security and operational capability of the defence equipment of either.

It is quite a stretch to argue that keeping the price paid a secret meets the test of “necessity” or “proportionality” which guide how much a citizen’s right to know can be restricted. The Chinese or the Pakistanis couldn’t care less what the Indian taxpayer shelled out for the fighter jets.

They likely already know the specifications of our purchases. But at the same time corruption cannot be lightly presumed to be the reason why Ms Sithraman backtracked. Expect this unresolved debate to hang like an ominous cloud as the counter to the BJP’s allegations of corruption during the previous UPA government.

The underside of unrestrained privacy

Privacy is to individuals what secrecy is to the State.  The debate on privacy got muddied by the recent arraignment of WhatsApp for being the conduit of fake news, which incited vigilante violence and hate crimes.

WhatsApp encrypts content in its pipes end-to-end like no one else. Complete secrecy attracts 1.5 billion active monthly users and 60 million messages per day. Its end-to-end encryption cannot even be decrypted by its own administrators. This rabid commitment to secure the privacy of its users doesn’t align with the extant law and is as over-the-top as is our government’s thirst for secrecy. The fundamental right to privacy is restricted by other fundamental rights, including public order, security and those embedded in Article 21 of the Constitution of India, to which privacy was also mapped by the Supreme Court in 2017.

A fundamentalist view on the right to privacy has spawned “dark”, impenetrable means of communication, like WhatsApp. This is a precursor of what could happen if the “dark web” becomes the norm. Similarly, if crypto currencies are allowed to subvert a sovereign’s power to issue currency and bury crime-related financial transactions underground, catastrophe beckons.

WhatsApp managers initially expressed technological helplessness to regulate the unsavoury use of its technology. They are now making conciliatory noises with an eye to their bottomline. Non-compliance could jeopardise their application for adding-on a payments app in India.

Psst! I have a secret

Secrets

Why has WhatsApp been allowed to linger on and not simply told to shut shop, as is China. The bottom-up view is that encrypted communication has wide appeal across political parties and individuals. We all have secrets.

WhatsApp democratises the power to have secrets, unlike the Official Secrets Act 1923, which locates this power only within the State. WhatsApp allows everyone to have secrets. This suits freewheeling democratic India.The last word on the privacy of digital data will be from the Justice B.N. Srikrishna Committee on data protection. This committee, appointed in August 2017, has worked in unprecedented grand isolation. Presumably, things have been decided behind closed doors and the collective wisdom will be revealed in due course.

TRAI recommendations on data privacy and security mundane, at best 

But in chaotic India, surprises are routine. Days before the report was to be submitted, the Telecom Regulatory Authority of India (Trai) published, on July 16, 2018, its recommendations on privacy, security and ownership of data. The TRAI recommendations are unlikely to make the committee pause and think again. It is already broadly agreed that the individual’s ownership of data is paramount. But both the fundamental right to privacy and the right to property over data are restricted. If the necessary safeguards exist to mask sensitive and personal information, the plea of privacy loses force for denying access to data, at least to the State.

Artificial intelligence requires masses of data to train machines to think and behave better than humans. Anonymised data aggregated across a large number of individuals is more valuable than oil, in order to understand and predict contextual human behaviour.

Who is “Free riding” on data?

The debate on free riding on data has focused on how aggregators free ride on individuals data. However, if an aggregator “pays” explicitly for using individual data, ownership over data should stand transferred to the aggregator. Consider that in touristy locations across the world, locals demand a fee to be photographed. Such contracts, for non-anonymised data, with adequate safeguards, should be encouraged not pushed underground.

With respect to strictly anonymised data the right to deny or withdraw access to, despite adequate masking safeguards, can be viewed as anti-development and also at a stretch anti-national. At the very least, denying or withdrawing access to anonymised data should attract a cost to be paid, since it amounts to “free riding” on the technological benefits gained by others providing their anonymised data.

TRAI has passed up an opportunity to assert that the ownership of anonymised aggregate data should vest with the entity doing the aggregation if a specific contract exists with the data generator (app user). This needs to be clarified to retain the value proposition in data aggregation.

A market for anonymised data

Conversely, TRAI has ignored the need for a market to price data. A market exists even today. But it is an informal and non-transparent market which hurts the commercial interests of the individual data owner and puts the controller or processor of data in the driver’s seat. This information asymmetry can be removed through innovative institutional development to ensure that individuals are not shortchanged and have to sell their data cheap – much like innocent tribals selling their land for peanuts. If data is the new oil, it must priced accordingly.

Restore property as a fundamental right 

demolition

We have grossly neglected property rights in general and specifically in the context of  data management. Civil society mostly focuses on safeguarding the privacy aspect of data management. There is a reason for this. Unlike privacy, the right to property stopped being a fundamental right in India in 1978. This makes it difficult to challenge laws infringing on property rights.

Conversely, the higher judiciary has been indulgent in admitting public interest litigation  (writs) challenging laws threatening fundamental rights generally, so privacy gets privileged legally over property. Privacy rights also align with the need to decriminalise gay sex. It is an emotive issue. In comparison, a right to property seems almost crass, where 60 per cent of people own no land or electric consumer durables; 40 per cent of households live in just one room and can fit their possessions into a gunny sack.

But make no mistake. Socialism erred in hiving-off the right to property from human rights. Property is intrinsic to the right to privacy and liberty. But we will have to keep arguing till we fix this error, eventually.

Adapted from the author’s opinion piece in The Asian Age, July 24, 2017 http://www.asianage.com/opinion/oped/230718/whatsapp-row-on-secrecy-privacy-property.html

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India, Judiciary and Law, Law and regulation, Public Institutions, RTI Act, technology

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Lives dedicated to change India

RTI story

This is not a glib account of mobilising the rural poor, penned by a peripatetic babu or a drive-in-fly-out development expert. It is, refreshingly, a record of activists, who elected to spend the better part of their working lives making a difference, bottom upwards, and three decades later remain rooted in their karmbhumi — village Devdungri, Rajasthan.

school for democracy

Some came from well-off urban backgrounds and yet stuck it out in the harsh and relentless realities of the rural poor. This testifies to their commitment. But even to attribute high moral incentives to them, betrays the tinted glasses of this urbanised reviewer. The authors do not vent their frustration, voice their regrets or betray even a whiff of resentment against an uncaring world. What shines through instead, is their quiet joy and fulfillment, at doing something useful.

Aruna Roy, for all her careful attempts to disperse the credit, is the central figure. Born into a family of lawyers, she drifted into the elite Indian Administrative Service in 1968 but resigned in 1975 to work with the Social Work and Research Center (SWRC) in Ajmer. Clearly, goaded by the need to be more immediately and directly involved with real people in rural India, she left SWRC in 1983. Nikhil Dey — recently returned after college in the United States, seeking something beyond a comfortable life, became a friend; Shanker Singh, a local village official’s gifted son, adroit puppeteer and communicator extraordinaire, completed the group which bonded and decided to check out the rural empowerment landscape in Jhabhua, Madhya Pradesh. That seed did not flower. But bonds between the three deepened.

They resolved, in 1987, to put down roots in village Devdungri, which today is part of district Rajsamand in the Mewar region of Rajasthan. This was close enough to Shanker’s village, Lotiyana, to give the group an entry into rural life through his local bonds of kinship. Here, in a mud hut, rented from his cousin, the small group lived like the villagers around them and awaited a gradual immersion into the rhythm of village life and hopefully, local social acceptance — their doors and hearts open. Trust and credibility is central to an activist’s effectiveness.

MKSS

Meanwhile, the group refined the credo of their concerns. These coalesced around the need to enable the rural poor and marginalised, to look beyond their sordid reality of traditional social and cultural constraints, to understand and avail of, the constitutional rights available to them, within India’s democratic and institutional architecture. The disastrous drought, blighting the region, presented an opportunity. The standard mechanism for drought relief was to initiate civil
works.

By 1983 the Supreme Court had directed that public works must comply with payment of minimum wages. But this was rarely done. The group resolved that getting workers minimum wages would be their central concern. A related opportunity arose due to the tyrannical ways of a local sarpanch who misappropriated village development schemes for personal benefits and whose benami holdings encroached on village land.

In both cases, empowering the poor meant getting access to the government records of money allocated by the government for different schemes; the amounts spent, on what and when. At that time ordinary citizens could not access these records as a right. Often mistakenly, even a list of Below Poverty Line cardholders was conveniently construed to be secret. Consequently, in any dispute with government entities — around wages or non-inclusion for welfare schemes “the villagers were always the liars”. They had no way to prove their case because the truth was hidden inside the official records, to which only the government had access.

Getting the dispossessed to appreciate that access to information and knowledge is vital, was the easiest part. The awareness that local government intermediaries were swindling them kindled anger, and sometimes outrage among villagers. While the immediate oppressor is visible and becomes vulnerable, the veiled support of those higher up in the hierarchy, maintains the status quo. Getting villagers their rights, means changing the status quo from the top.

The political vehicle used by Aruna and her activist colleagues to generate awareness; the desire for change and an ecosystem for long-term support to deliver rights to the rural poor was the Mazdoor Kisan Shakti Sangathan (MKSS). The artful, determined and collaborative way in which it was constituted, and the strategic depth of its functioning is a delight to read. The ideological roots of the MKSS lie in the life and thoughts of Gandhi ji (non-violent protests against government apathy), Babasaheb Ambedkar (equity and dignity for all) and J.P. Narayan (social and political revolution within constitutional constraints).

The movement for access to political and social rights, formally started in 1987, expanded organically over time from the village level to the state level by the mid-1990s and finally to the national level by 2005, when the Right to Information Act was passed by Parliament. Parivartan, the Delhi-based NGO, headed at the time by Arvind Kejriwal, evolved its strategy of “direct democracy” from the MKSS methodology — a mix of rootedness in organising the poor from within; high moral, ethical and personal values; imaginative use of local folklore and theatre like the Ghotala Rath to lampoon corrupt politicians; careful research to unearth government information to pinpoint negligence, fraud or corruption using the vehicle of Jan Sunwais (public hearings).

Less successfully the MKSS also branched into directly managing kirana (provisions) stores in villages as a competitive force to make local traders less rapacious and reduce their profit margins. While useful as a temporary local intervention to break a trader cartel in a small village market, this model proved difficult to scale up. The MKSS also dabbled in village-level elections to get some of its well-intentioned members, elected and collaborate with like-minded parties. But it is far from transmuting into a political party.

Aruna and the team

Aruna, 41 years of age in 1987, is 72 today, Shanker is 64 and “young” Nikhil is 55. During the last three decades of their struggle, the Right to Information has been embedded into the accountability structure of the State, bringing the much-needed transparency. But making the State accountable to the people, in real time, is a broader unfinished task — top-down accountability and bottom-up participation, both need deepening. The good news is that the indefatigable trio is upbeat about conquering this frontier too.

This book is a must read for cynics, who want their optimism restored; those eager to share the pain and the joy of activism; organisational behavior “experts” and budding activists looking for pathways to India’s development.

Adapted from the author’s book review in The Asian Age, April 22, 2019 http://www.asianage.com/books/220418/read-it-to-know-the-pain-and-joy-of-activism.html

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India’s 50-50 reforms

half reforms

Unlike politicians, who can choose their targets, business leaders have to dance to the tune of  shareholders, who buy or sell, based on the existing or the future bottom line. In politics. it is relatively easy to change the goal posts or indeed, shift the goal itself.

Changing goals

In India, the current metric for political performance, is jobs. Self -selected by the Bharatiya Janata Party, this may become a self-goal because even globally, there are few, near-term solutions.Prior to jobs, in the noughties, it was all about boosting economic growth — where again headwinds have built up. Before growth, it was about ending poverty in the 1990s. Earlier, in the late 1960s and till the mid-1970s, it was about boosting agriculture, becoming self-sufficient in food and avoiding famines. Even further back in the 1950s, heavy industrialisation and infrastructure were the mantra. Of course all these are part of development. But sequencing matters. Also, pancaking more reform targets on the existing ones, confuses even the reformers.

Partial success abounds, but excellence less visible

Seventy years on, we are only narrowly competitive in manufacturing; our infrastructure is vast but shoddy; agriculture has low productivity levels; 40 per cent of us are either poor or are vulnerable to poverty; we are still stretching for sustained real growth in high single digits; unemployment is rife and the participation rate in the workforce is a low 44 to 48 per cent, with women faring worse than men.

This is not to trash what we have achieved. But it is useful to look beyond the efforts made by the successive governments, at the outcomes and ask the question, why are the results always worse than expected?

Elusive transformative change

Tribal protest

Transformative change is disruptive. We have been slow in embedding credible instruments to mitigate the cost of disruption. This increases the risk perception of change, leading to a public push-back on reforms. Consider how poorly we acquire land in public interest. The instruments for identifying, determining and managing the acquisition are loosely supervised, at the cost of ensuing inequity and poor transparency.  Massive amounts of mineral resources continue to lie buried in tribal areas, whilst tribes prefer to eke out a subsistence level traditional life, rather than participate in the process of development. The overriding fear of every property owner, or occupier, is of being gypped in the process of acquisition, by forces beyond their control. In a democracy we cannot ignore insulating people, especially the poor, from the cost of disruption.

Public trust and credibility in short supply

Managing change successfully, requires a governance system good at modern parenting rather than a patriarchal approach to directing and controlling people and events. Our governance systems still follow the colonial legacy of collaborating with entrenched elites to get things done, somehow. Those affected at the bottom become a hindrance rather than participants. There is very limited institutional appetite or capacity to deal directly, as a change agent, with those who are most affected by change. Even when specific processes, like consultation are provided for, the approach degenerates to ticking the box, rather than using the opportunity to gather feedback on the process, test assumptions and obtain buy-in for the way forward.

“Accountable discretion” is not an oxymoron

It does not help that there is a near ubiquitous ban on the transparent use of executive discretion — prompted by misuse of the privilege in the past and a judicial preference for impossibly rigid rules, regardless of their negative impact on implementation.Consider, for example, the burgeoning non-performing loans of banks. The rule bound approach to bank lending insures the lender- manager, if sufficient security against the loan existed, on paper, when the loan is approved. The focus is on achieving secured lending targets rather than adding economic value. This makes gold plating of projects, to increase the notional value of an asset, a mutually convenient tactic between the lender and the borrower, especially at times when the real lending rate is low. Never mind that it can adversely affect the project’s viability and thereby the repayment capacity of the borrower. The public sector no longer trusts its employees. But ending supervised, executive discretion has significant efficiency costs.

Chasing impossible scale 

We succumb easily, to the insidious temptation to effect instant change at sub-continental levels, rather than build change, bottom upwards, block by block. India is heterogenous without parallel. For us, the political model should be Europe, rather than China. Multi party politics in India requires sufficient elbow room for diverse political agendas. The political architecture may prescribe the objectives and principles of public management. But being flexible in program implementation is a must.

The Constitution fixed past challenges, but under-provides for the future

Our constitution reflects the challenges faced at the time of independence rather than today’s priorities. Integration fears at the time led to a centrist constitution. This is what enabled the Union government in 1959 to dismiss the first elected E M S Namboodiripad government of Kerala. The governor of a state, appointed by the President, acting on the advice of the Union government, is another centrist feature as are the emergency powers of the Union government.

Overlapping mandates

The capacity constraints existing at independence shaped the lop-sided division of mandates between the Union and the state governments, with the former unduly burdened. The sub-state or local government came into existence only through a 1993 constitutional amendment.Delhi is a good example of poor inter-governmental allocation of mandate resulting in a governance logjam. Overlapping mandates confuse citizens. and reduce accountability. Consider that Members of Parliament get elected by getting drains made and Members of Legislative Assemblies by promising higher prices for agricultural products or by proposing a separate flag for their state — all areas outside their mandates.

Poor arrangements for resource management

The constitutional scheme for recruitment and management of the bureaucracy is unduly complex and diffuses accountability. Officials must be “owned” by the level of government they serve. Fiscal resources, at every level of the government, must be aligned with form, which should fit the functions executed at that level.

Avoid the Banyan Tree 

banyan tree

The top-down, centrist approach has the disadvantage of an overblown apex crushing the little people below. Remember, nothing grows under the Banyan tree.Change, sensitive to mitigating the costs thereof, flexible implementation of norms driven from below, with primacy for real value addition can deliver 100 per cent results in reforms.

 

Adapted from the author’s opinion piece in the Business Standard, March 27, 2018 http://www.business-standard.com/article/opinion/india-s-half-baked-reforms-why-are-the-results-always-worse-than-expected-118032601102_1.html#

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BJP’s new script – defending the losers

Modi grim

Thus far, the BJP has played to a core script of development; a more effective State and muscular nationalism, fanned by Hindu revivalism and an assertive foreign policy stance. This has resulted in a “tick all the boxes” type strategy, with the central focus being on winning elections. This strategy has paid rich dividends politically.
But some of the steam appears to be leaking out of this construct.

Admittedly, more Indians still put their faith in the BJP than in any other party – not least because of its charismatic Prime Minister – Narendra Modi. But voters are notoriously fickle. A politician is only as good as the last bag of goodies delivered to supporters. The BJP needs a strategy to generate goodwill in a more sustainable manner.

One option is to systematically address the concerns of those who have fallen through the cracks of the neo-liberal, open economy model we have followed since the 1990s. Of course, in doing so, the BJP will have to distinguish itself from populism and vote buying, which is the hall mark of a failed politician. Here are some options.

Protect children from malnutrition

stunted

First, we have smashed the pre-1980s growth, glass ceiling of 4 per cent per year, also called the “Hindu rate of growth”. Sustained growth reduced poverty to around 20 per cent with an additional 20 per cent teetering on the edge of the abyss of poverty. But it is shocking that 40% of children remain malnourished and not all of them are poor.

Unless a child is adequately nourished in the first eight years, there is a high likelihood of permanent damage to its brain. Clean air (to increase lung capacity), clean water (to avoid diarrhea) and micronutrient rich food can guard against stunting. Unless this is done, we are continually handicapping around 90 million kids or 7 percent of our population, from childhood.

Spending today, on these three inputs – clean air, clean water and nutritious food, is well worth the avoided economic cost of perpetually sustaining a stunted population of around 500 million. Do the math if you are not convinced. Consider also, that looking ahead, the quality of the human brain and not brawn, will determine if a nation succeeds or fails.

Social protection for the elderly- 50+ and poor

old man 2

Second, experts agree that the capacity of the average human brain to learn and innovate decreases sharply with age. Start up India, Make in India, Mudra – loans for MSMEs, all benefit those under 50 years of age, who retain the vitality to do new things. For those above 50, who have been thrown out of jobs or others who have never held a job, there is little on offer, except the back-breaking NREGA.

SKILLS India is also not a solution for them because failure rates in adult education are very high. Around 6 percent of the people above 50 years of age, or 80 million people, are poor. They could never have saved for their old age. Also, poverty is sticky and disadvantages entire families. Even their children must be barely able to keep body and soul together.

Cash benefits for this set of 80 million, at a paltry Rs 1000 per person per month would cost Rs 1 trillion per year. A progressive annual cash allocation, increasing with age, as the likelihood of doing gainful work decreases, would be sensible. This is expensive but an inevitable cost of our past public transgressions.

In addition, they must get free basic medical insurance schemes, allowing them to seek in and out-patient treatment, at any registered clinic for free, just like the middle class and rich do. This way the elderly poor will cease to be a burden on their children. The cash and other benefits for supporting the girl child have worked well. So can, a benefits scheme for the elderly poor.

Respect land ownership rights

Third, liberalization, whilst creating enormous private wealth, also generates inequalities. There are losers who fall through the cracks. Take our historic failure to provide credible commitment that acquisition would “cause no harm” to land holders. The common apprehension is that bank financed, land acquisition, incentivizes excess acquisition for speculation. It also robs the land holder of the ensuing value creation.

This creates resistance and fear. Even the latest version of the Land Acquisition Act is backward looking. It merely seeks to “compensate losers”. It should explicitly provide for “sharing of the ensuing value creation” between the land holder, the project developer and the government, using a Participative, Public, Private Partnership (PPPP) model.

land protest

India is land starved. The ownership of this valuable asset must be respected as an equity contribution to new projects, with pre-defined, time bound returns, insured by the government. Even “public purpose” must bow to the rule of law, which upholds the property rights of land-owners.

Penal sanctions for public delinquency

Lastly, some tough love is necessary to improve our public services. We should legislate – “The Public Services Act” – sanctioning those who fail to use the fiscal resources put at their disposal; we must attach criminal penalties to public actions which result in public harm, due to lack of due diligence whilst budgeting or poor implementation of projects.

death 2

If citizens die in road accidents because an ambulance cannot ferry them, in time, to hospitals; if hospitals negligently harm, not cure patients; if defective public buses, trucks, aircraft, ferries and ships are allowed to ply, resulting in deaths; if shoddy public construction causes death or disability; if an official values her time more than the life of a citizen in urgent need or if a citizen dies because the police is away on VIP duty, the delinquent officials must be held accountable. Only then can the right public service culture and moral fiber be created, so necessary, to deal with the ceaseless challenges in public life. It cannot be a one-way street with only citizens serving the State.

Also available at TOI Blogs, December 31, 2017 https://blogs.timesofindia.indiatimes.com/opinion-india/bjps-new-script-defending-the-losers/

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Aadhaar – catching crooks & criminals

UIDAI members

The Aadhaar fever started in 2009, when the UPA government was in office. It encountered turbulent times in 2014 when the government changed. But Prime Minister Narendra Modi, a technology enthusiast, was persuaded to look beyond the past at the opportunity it gave to reduce official discretion and corruption, whilst targeting and delivering public services.

Inspirational achievements: Speed, scale, low cost & sustainable institutions

The results have been impressive on three counts — speed, cost and sustainability. First, the system was scaled up at breathtaking speed. Around 15 citizens were digitally registered every second, over seven years, assuming a 60-hour week.  Registering 1.2 billion residents out of around 1.3 billion, in a country spanning 3.3 million sq km is by itself a “never- before” achievement.

Second, unbelievably, this feat was achieved at a nominal cost of Rs 73, a little more than $1, per person. The norm for biometric identification anywhere else has been at least $10 per person. Clearly, frugal Indian innovation was at its best here.

Third, Nandan Nilekani, the single parent of Aadhaar, moved on in early 2014, serially to politics, social impact ventures and today heads Infosys as its non-executive chairman. Small, effective public institutions — UIDAI had a sanctioned staff of just 115 in 2009 — tend to be helmed by charismatic banyan trees — leaders who allow nothing to grow under their horizontally spread branches. But the Unique Identification Authority of India (UIDAI), which he first headed, continues to flourish, which speaks volumes of its sustainable management systems and the quality of successor chairpersons.

Why, then, the angst?

So why then the public angst against Aadhaar? Three reasons come to mind — all of them related not to the technical effectiveness of the system itself but the manner in which it is proposed to be used.

Illegal immigrants are rich political fodder

First comes politics. Illegal immigrants from Bangladesh — between three million to 20 million — along with legal immigrants from Nepal, have acquired voter IDs and ration cards. They are difficult to distinguish from their neighbours. But it has also suited the government politically, till now, to not identify such immigrants. Aadhaar can upset political calculations. Targeting Aadhaar at residents — a more inclusive genre — than citizens was a compromise solution. But the threat remains that this powerful data set will feed into culling voter lists of duplicates or ghosts and weeding out passports wrongly issued to people who were never Indian citizens.

We are all “crooks”

Second is the scale of disruption associated with ending corruption. Consider that 14 per cent of Indians, or 180 million, have a driving licence. But one-third are fake and many more are improperly given to ineligible drivers — a key factor in road fatalities.  290 million Indians have a unique number called PAN, required for filing income-tax. But 80 per cent are not authenticated with the Aadhaar database. This illustrates the poor integrity of the tax database.

Big bang reform catches headlines but induces a push back

Third, managerial ambitions have outrun executive caution in graduating the pushback from those adversely affected. From being a back-office tool, Aadhaar has become a digital shortcut to cull ghosts from the burgeoning food security scheme; weed out manipulations in income-tax submissions; introduce a security check over phone connections or use big data to link bank accounts, phone numbers, vehicles, houses, financial investments with each biometrically identified individual. Aadhaar is the shortcut to dig out our dirty secrets. And no one likes that.

Protection needed against low data integrity at time of issue & poor connectivity for authentication of Aadhar

aadhar center

Section 7 of the Aadhaar Act 2016 specifies that Aadhaar shall not be the sole arbiter of identity for accessing public benefits.  Section 5 makes it obligatory for UIDAI to get those, who lack identity documents — children, women, the specially-abled, senior citizens, workers in the unorganised sector, nomads are mentioned — covered under Aadhaar by other means. The intention is clear. The State must devise methods to include all residents in the database and ensure, till then, that the flow of public benefits to eligible recipients continues uninterrupted. Similarly, the onus for protecting the privacy of the individual is on the State. The government has no option except to align with the law. Indeed, it seems to have already diluted its hard stance on the timeline for the implementation of Aadhaar.

Rolling back or stalling the program a poor option

Two options present themselves for the way forward. First, the government could downsize its ambitions for Aadhaar and allow other modes of identity verification to continue till the availability of Aadhaar becomes universal and, more important, the hardware for authenticating Aadhaar is widely available. This is unlikely, in the short term, till the Bharatnet fibre cables have been laid and are operational in all gram panchayats. Just one-fourth are connected today. But the more real downside here is of a slide into never-ending inertia. This seems alien to the present government’s style.

Prescribe fall-back identity authentications with better oversight over the quality of initial data capture 

AAdhaar alt

The second and better option is to deal with the fears of activists who have petitioned the Supreme Court against linking bank accounts and phones with Aadhaar. With respect to privacy, the fact that the State will be able to trace individuals behind phone conversations or bank accounts seems innocuous. On the contrary, both security and tax revenue considerations point to this being desirable, if not essential.

Better branding: disseminate tax and security advantages of Aadhar widely

The government has advertised the Aadhaar principally as a means to transfer benefits to citizens in a more targeted manner and thereby optimise the public subsidy on such benefits. But this is only part of the story. Aadhaar is a significant tool in increasing tax revenue and bringing criminals to justice. What is in it for those who do not enjoy social security benefits? They must be made aware of how Aadhaar creates a trade off between privacy on the one hand and public finance and security on the other. It must be re-branded as a broad governance tool. It should take a cue from what President Obama said about privacy concerns. No individual right, against the State, is perfect. It must needs bow to the larger public interest.

Theoretically, any information, available with the State, can be misused to violate the privacy of an individual. But surely an income-tax officer using the Aadhaar authentication to check if you have included all your bank accounts in your tax return does not fall in that category. What about a duly authorised police officer who traces the owners of phone numbers talking about crime or a threat to public security? Protocols for tapping phones and accessing details of private bank accounts already exist. The Aadhaar link simply makes it easier and faster to catch crooks and criminals.

recovery ITGovernments rely on their credibility to gain the trust of citizens. Safeguards for individual rights do help. But only for governments that are public-spirited and well-intentioned. Once this is no longer the case, the only recourse is to voice your opinion through your vote, and good luck to you on that.

Adapted form the author’s opinion piece in The Asian Age, December 13, 2017 http://www.asianage.com/opinion/columnists/131217/aadhaar-fever-unveiling-secrets-to-secure-india.html

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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/

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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

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BJP, Democracy, Economy, elections, Hindu leaders, India, Law and regulation, RSS, Uttar Pradesh

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