governance, political economy, institutional development and economic regulation

Posts tagged ‘judicial activism’

Don’t demonise diesel

car jam

photo credit: How many 2000 cc plus private diesel cars can you spot in this randomly selected grid lock? Imposing a green cess on large diesel cars is populism at its worst. Less than 5% of private cars fall in this category and they have fairly competitive exhaust parameters because diesel engine technology has come a long way from the 1990s. The real culprit is the dirty fuel supplied in India. 

The practiced ease with which the Supreme Court settled the Uttarakhand political snafu and restored constitutional propriety and federalism there, with President’s Rule being lifted, compares unfavourably with its dilatory proceedings on the use of diesel for fuelling cars in Delhi.

To recap, the Supreme Court banned the registration of diesel cars with engine capacity of and above 2000cc in December 2015 at the height of the smog scare in Delhi. Earlier this month, it tried to enforce its April 1 deadline for all taxis in Delhi to convert from diesel to CNG, but later backed down due to the economic dislocation it would cause.

The court’s association with the micro-management of fuel, technology and urban air pollution in Delhi dates back to 1993, when it acted on a PIL to clean Delhi’s polluted air. Thereafter, the government practically ceded ground to the Supreme Court as the prime mover for preserving clean air in the nation’s capital. Citizens still applaud its historic 1998 order making CNG mandatory for all public transport in Delhi.

The Supreme Court didn’t like diesel as a fuel then, and its views today remain the same, though the technology and circumstance have changed considerably. It is generally accepted that bringing Indian fuel standards on par with Europe is the best option to lower urban pollution from motorised transport. The government has plans to upgrade fuel standards to European levels (Bharat VI) by 2019. But the government lacks credibility in making such promises, given its past record. This implies the need to monitor how well the government is working towards that goal.

Why diesel?


photo credit:

Globally, diesel has become the fuel of choice in the past two decades since the Kyoto Protocol on climate change imposed carbon emission targets on developed nations in the 1990s. Diesel cars produce considerably less carbon emissions than petrol cars, but have higher particulate and NO2 emissions. Improving the quality of diesel supplied — along the lines of city diesel, that is low-sulphur, clean diesel developed in Sweden — reduces the particulate and NO2 emissions to acceptable levels. This is what Europe has done. India can and should do the same.

Why ignore the low hanging fruits of rationalising fuel price incentives?

In the short term, the Union government should equalise customs and excise duty on diesel and petrol. The Delhi government should do the same for value added tax. This will remove the artificial retail price advantage of 20 per cent enjoyed by diesel.

The fatal preference for diesel versus petrol goes back to our ersatz socialist past, when the lazy rich drove petrol cars while others used tractors, agricultural pumps, buses and trucks running on diesel, which was thus subsidised.

Today, the rich use large diesel cars while the growing middle class uses petrol-based scooters, motorcycles and cars and small cars running on diesel.

All public transport has converted to CNG and there is negligible agricultural activity in Delhi. These are ideal conditions for scrapping the preferential tax structure on diesel.

Correcting a tax-based market distortion will not attract eyeballs, nor does it appear as high-minded as imposing a “green cess”. But this is the right thing to do. Expenditure on fuel comprises around 25 per cent of the life cycle cost of running a car. So getting the price of fuel right is a key step to change consumer preferences. If a litre of petrol comes at the same retail price as diesel, much of the demand for diesel cars — particularly in the sub 2000cc segment — will simply vanish.

Green cess on large cars- populism at its worst.

The wrong thing to do would be to put a “green cess” on the registration of large, private diesel cars in Delhi as the Supreme Court seems to prefer. First, if a “green cess” is to be imposed, then in the interest of equity, it should be imposed on all “polluting” passenger vehicles that are not fueled by CNG or electricity.

Second, prescribing engine capacity as a metric for punitive taxation encourages gaming. Manufacturers will go marginally under the radar by “cheating” on capacity calibration with no benefit in emissions.

Third, imposing a selective “green cess” on engine capacity rather than emissions, which is a better, albeit easy to cheat metric, can be misread as populism and just bleeding the rich. Large diesel cars are just around five per cent of the car stock in Delhi. The cheapest large diesel car comes at a price of `20 lakhs-plus on the road. Of this, 45 per cent is tax and other government levies collected by the Union and state governments. Budget 2016 imposed an additional cess on large cars on top of the existing high excise duty.

If the intention is to penalise the use of large cars per-se — defensible environmentally on multiple counts — then the green cess should be imposed on all large motorised vehicles and not just diesel cars. The excise duty structure does that already. Excise duty on large cars is three times higher as compared to the duty on small cars. The real question is why make large cars unaffordable? What are the economic consequences thereof on jobs and economic growth versus the environmental benefits?

Going back to ersatz socialism?

Prior to the 1990s, the government used to dictate to industry what to produce and thereby constrain consumer demand. The government abandoned its policy of invasive ersatz socialism for good reasons. Why revisit a model which penalises wealth creation that is rightly dead and buried?

Banning the registration of large diesel cars in Delhi is an avoidable knee-jerk administrative response with unfortunate economic consequences. It disrupts economic activity (car production and consumer choice); puts people (taxi owners, drivers and consumers) in financial jeopardy and creates uncertainty through a rule-by-fiat approach.

There was never much to be gained from this ban in terms of cleaning Delhi’s air even in the short term. The bulk of air pollution is from point sources other than diesel cars. Aggregate pollution from motorcycles and scooters that run on petrol far exceeds the pollution from cars. Dust, agricultural residue, industrial stack emissions and soot from coal comprise the bulk of particulate emissions.

Citizens welcome judicial activism in the supply of public goods like clean air as the government routinely failed to provide them in the past. But all governments are not the same. Should not the principle of “judicial forbearance” prevail till a government fails? Let the government do its job. But keep a sharp eye out for citizen rights. Economic policy is about experimenting with trade offs, across multiple objectives and options, for which the law provides no real answers.

Adapted from the authors article in Asian Age May 17, 2016

Subrata “Sahara” Roy: Victor, villain or victim?

Image Subrata Roy the florid, flashy, brash promoter of the Sahara Group has been in Tihar Jail since March 4, 2014. The crime committed by him baffles most aam admis, including this one.

The Supreme Court held way back in 2012 that his companies acted in contravention of the SEBI rules for public issues by unlisted companies. His legal arguments that SEBI has no jurisdiction over unadvertised issuance of Optionally Convertible Debentures by unlisted companies have been rejected by the Supreme Court and he was directed to refund Rs 175 billion (USD 4 billion) collected by his 1.2 million agents from an estimated 22 million small investors between 2008 and 2011.

In a more “liberal” environment Roy would be hailed as an innovator par excellence who extended financial inclusion to millions of investors and provided livelihood to over a million agents.

Wherein lay his innovation? Quite simply he profited by providing “informal financial services” on top of the wave of public corruption which has conservatively equaled between 2 to 5% of the GDP since the “ go go” years began in the 1990s. His modus operandi is probably simple. He provides a “cloak” of legit financial services to the corrupt public servant and politician by managing the cash generated illegally by them. This “cloak” of financial services is based on a micro-financial network of investors and agents on a staggering scale with around 3000 branches and massive investments in real estate…what else?

Similar to any other Ponzi scheme, his trick was to offer huge returns in excess of 25% per year. Ponzi schemes ultimately fail because they run out of new investors to provide the cash flow to service the existing investors because the underlying assets invariably never provide adequate return. This is where Sahara had a winning card. They possibly had access to an inexhaustible source of unaccounted cash coming to them from corrupt public servants and politicians. Forget for the moment, the cash flow available from the film industry, drugs or terrorism.

Since Sahara serviced the politically powerful, they were immune from censure. But a more basic reason why Sahara remained below the radar was possibly because they maintained a tight leash on the volume of “real” small time depositors who provided the cloak to “benami” big time investors. It is noteworthy that the Supreme Court wondered how many “real” investors they had. No one knows. But had these small time investors reached a volume where their investments exceeded the illegal cash, the scheme would have imploded. As it happens it never did.

It was Securities Exchange Bureau of India (SEBI the David) who slew Sahara (the Goliath). It investigated the retail cash collection done by Sahara agents (Rs 175 billion or around US $ 4 billion) between 2008 and 2011 against the issue of a “hybrid” instrument called Optional Convertible Debenture. It held that this was “akin” to a public issue and hence in their turf. Since Sahara had no approval from SEBI for issuing such “public” securities the cash collection was illegal. What motivated SEBI to wake up? Ostensibly they responded to a complaint by an association of investors. It is not clear if any of them had actually invested in the debentures or were simply being “high minded”. Other reasons could be: (1) the financial regulator fighting for turf with the Ministry of Corporate Affairs, who had approved the issue of debentures under the Companies Act; (2) SEBI’s apprehension that significant domestic savings were being directed away from the bourses where listed companies raise money under SEBI oversight . Between 2008 and 2011 listed companies, in India, raised USD 26 billion as new capital against USD 4 billion raised by Sahara, an unlisted Indian company, (3) as always in India, the possibility of government settling political scores.  We await an intrepid investigator to inform us, which of these was the case.

But what there are some intriguing aspects to this case:

First, why did the dog not bark? Why did no retail investor complain that Sahara had defrauded them? Subrata Roy asserts that not a single investor has been disadvantaged and that all assets are being serviced and redeemed. This seems entirely plausible in the light of the reasoning given above that the “beauty” (as Subrata himself would say) of the scheme lay in completely insulating the retail investors from risk and indeed to molly coddle them with fabulous returns, using the inexhaustible cash flow of the fatter investors.

Whilst Subrata is no Robin Hood, his novel method of socializing and distributing the gains from corruption across 30 million investors is unique in its scale . Reliance has had a similar strategy which makes investors forgiving of its poor public image.

Dhirubhai, was an early mover in this game. He had an uncanny feel for the pulse of the nation. He was the first to recognize that distributing profits to over 3 million shareholders is a good way of building social capital for a corporate. Subrata has gone much further with 30 million investors, though they are difficult to trace.

Second, why is it that the entire government machinery, except SEBI, has remained passive and silent? Why has no action been taken against the Ministry of Corporate Affairs, which since 2008 was sanguine enough about the operations of Sahara to clear their Red Herring Prospectus for collecting cash from investors?

Third, why is Subrata Roy in Jail? He is not a criminal. Even if he has committed contempt of the Supreme Court, why has SEBI failed to attach Sahara’s; issue a public notice to ascertain who their investors are and compensate them accordingly, despite being specifically directed by the Supreme Court to do so in 2012?

Is this a case of judicial activism where the Supreme Court has stepped in to discharge a public duty which appropriately lies with the executive? If so then why not name and shame those in the executive who have been hand and glove with Sahara? Why is the corruption angle not being investigated by the CBI and the CVC?

Arbitrary curtailment of human rights violates the Rule of Law, no matter how high the authority which falls into that trap.

Finally why pick only on Subrata Roy. Is he paying solely for the scale of his illegality (Rs 175 billion against Harshad Mehta’s Rs 40 billion); for his flashiness and love of the good life?

We aam admis can be forgiven for muddling the offence of corruption with the social opprobrium that an open flouting of the law should attract.

But a judicial determination guided by anger at the passivity of the executive, rather than cold, legal logic does not give comfort that India’s system of checks and balances is working.

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