governance, political economy, institutional development and economic regulation

Posts tagged ‘property rights’

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

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/

The death of “rutba”

police colonial

Rutba, an urdu word, means status or honour. In sarkari parlance it equates to the “shock and awe” evoked by a single determined officer. Some of this is larger than life, the stuff that legends are made of- like a single Sikh soldier equaling 1.25 lakh opponents in battle or a Gurkha mowing down dozens with a flashing Khukri.

The Americans are more practical about such things. For them shock and awe is unleashed via devastating fire power from the sky and thousands of armed boots on the ground. In India belief in the rutba of a single District Officer or Superintendent of Police to quell a local disturbance, still lingers.

Clearly, rutba, either of the Indian or the American kind, was lacking in Mathura, Uttar Pradesh, last week, when an armed mob of land grabbers, operating under the guise of social do-gooders and political anarchists, murdered two senior police officers and injured many more. Twenty-two squatters are reported to have died in the retaliatory police firing.

The occasion for the ruckus was a High Court order for their eviction from a public park they had illegally occupied since 2014, adjacent to the local police headquarters. It is not easy to preserve rutba if a police force has to be on good neighbourly terms with criminals camping unauthorisedly, on public land, right under their nose.

No dearth of Police martyrs

martyrs

photo credit: rediff.com

Search the net and there are dozens of police martyrs you will unearth- in the North East, Bihar, Kashmir, Punjab, Andhra Pradesh and Mumbai, battling ideological or religious terror mixed up with mafiosi making a quick buck from fractured politics and instability. All police officers are trained to lay down their lives in public interest. But this ultimate sacrifice should be a last resort not a prime mechanism to evoke public or a substitute for full institutional support.Getting killed is not a good way to serve the nation. The idea should be to kill the sob across the line of fire – to paraphrase US General Patton. This is not easy in situations of domestic violence. The enemy is elusive, as are the support systems for an honest police officer.

Institutional collapse in the police

Rutba overrode such political economy obstacles in the past. But no longer. Rutba derives its salience from inherited institutional prestige and power. The only Indian institutions, which continue to demonstrate rutba are the Supreme Court of India and the army. A soldier, in uniform, still creates a stir and evokes awe. Similarly, the Supreme Court has retained its reputation for independence and fair play.

Under colonial rule, the police and the army were co-joined. Even today, in Uttar Pradesh, the Superintendent of Police is called kaptan sahib. Captains of the British Indian army, who had to be cashiered out because of injury, were appointed to the police, which was considered a “softer” job.

But the two institutions have been purposefully made to diverge, possibly to check mate each other and thus ensure the supremacy of civilian control over both. The army continues to be viewed favourably, as the one which does all the grunt work. The police are perceived to just hang about wielding a baton or a lathi, harassing people and pocketing bribes. In a 2002 Transparency International survey of citizen perceptions, the police were ranked as the most corrupt.

Bollywood, has for long, either reviled the policeman as a bumbling Inspector Clouseau- of the Pink Panther fame – or played up the image of the good, fearless cop- Amitabh Bachchan in Zanzeer; Om Puri in Ardh Satya and Ajay Devgun in Gangajal-  who take on criminals and vanquishe all. Neither over-the-top-image is helpful.

The hapless police officer

hapless policeman

Being a policeman is an unenviable task. The police work best, in a regulatory environment where the dos and don’ts are clear and align with the law. Today, there is nothing muddier than when and how, a police officer should wield the powers legitimately vested in her. Whom to challan or ignore for a traffic violation; how forcefully to quell unruly behavior on the streets –  each petty incident, requires the police officer to first think through the political consequences. Decisive, timely, preventive action consequently suffers. Events snowball, as the local police wait for directions from higher levels, who ignore such events, till they explode and become “above the radar” on centralized flash point monitors. By them it is too late to save lives.

The colonial mindset- all are unequal

But are we all blameless? Indians, view the rule of law, not as a framework within which to mould our behavior, but as a hurdle, crossing which, is a metric of our prowess and power. District Magistrates and Superintendents of Police are required to be adept at this game of privileging and stratifying people – just as their colonial predecessors did.

poor

photo credit: revleff.com

Your social status is reflected in the manner you are received by these worthies. The poorest, unorganized litigants are stopped outside the gate by police guards. Their only chance to get the big man’s attention is to hope his car will stop, as it moves through the gate, its window wound down, through which a written petition is allowed to be stuffed and heart rending pleas babbled.

For the middle class- petty businessmen, small farmers and the poor who come via intermediaries – lawyers, village and block level politicians or non-state actors – a darshan (face to face meeting) is usually arranged by the peon in tacit recognition of their collective power. The aggrieved persons stand before the big man and only the leader is offered a chair to sit, whilst the issue is briefly discussed and assurances given to get it “looked into”.

darbar

Photo credit: tribuneindia.com

MPs, MLAs, rich landlords, big business people and senior government officers are ushered into an “inner office” where the atmosphere is more relaxed and tea may be served or at least offered. When ministers visit and want to meet the DM/SP, who will “call on” (visit) whom, depends on the relative political weight -“closeness” – of the two to the Chief Minister.

Unreal laws

Under colonial rule, the rule of law primarily protected the interests of Europeans. Post-independence laws are aggressively egalitarian on paper but quite toothless on the ground. In Kenya, another previous British colony, till 2006 or so, a large land owner – usually European – could shoot to kill a trespasser, without application of the “quantum of force used” rule. In India this principle regulates the use of force for self-protection. The Kenyan rule, whilst unjust, was honest and aligned with political reality. It worked well to preserve property rights.

Our laws are hopelessly idealistic and un-enforceable. We have the right to private property but it can be taken away, quite casually, for ill defined “public purposes”. Purposefully poor oversight of public property and abetment drive encroachments. But the reason why we all view encroachment so benignly is that, the concept of property rights is very lightly embedded in our political and social consciousness.

The High Court was legally correct to order eviction. But the political circumstances which allowed the encroachment to happen, in the first place, made the order unenforceable. The cost of such hypocrisy is two dozen people dead, many more injured and a further nail in the coffin of the rule of law. We ignore the political economy, within which laws operate, only at our peril.

Adapted from the author’s article in Asian Age, June 11. 2016 http://www.asianage.com/columnists/mathura-failure-grassroots-governance-382

 

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