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Posts tagged ‘Rule of Law’

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

Indian angst

Abandoned Faujis

abandoned faujis

Delhi. Fauji veterans agitate, unsuccessfully thus far, for implementing the One Rank One Pension principle. This is a promise, unadvisedly made to them, by both the previous and the present government. They boycott the celebrations commemorating the 1965 war. Even those who fought to win that war stay away effectively devaluing the event. An unintended and unfortunate outcome is that scores of disciplined ex-soldiers and one prominent fauji brat get on-the-job training, on how to enter politics to safeguard your rights.

Mandal revisited

Patel

Ahmedabad. An angry, young man clad in faux fauji combat fatigues, conducts a caste maha-panchayat of half a million Patels. The occasion is the demand for inclusion in the list of backward castes, eligible for affirmative action (reservation) as a fast track route to a government job or admission into schools and colleges. The young leader’s social media profile has him posing with a gun in hand-very much like Bihar’s notorious upper-caste Ranvir Sena or the face-book friendly young militants in Kashmir today.

Life on the edge

Mumbai, the city of dreams, a sordid, family drama unfolds of a possible filicide; secret serial marriages and shady doings, so bizarre that it could only happen in star crossed Bollywood.

The Proletariat strikes back

strike

Across India, labour unions prepare for a general strike of all workers on September 2 to express their rage. The cause- dissent against dilution of the regulatory ambit of the labour laws; opposition to privatization of State Owned Enterprises and Foreign Direct Investment in Railways, Insurance and Defence; support for regularization of contract workers and the demand for better social protection measures.

Were all these happening in the 1970s it would be pretty commonplace in that decade of social unrest and hartals. But this is 2015, with a stable BJP government in place and more than half way through the first quarter, of what was once touted, as the India Millennium.

Have we than gone horribly wrong already even before we have begun? or is there a grand design behind this ripple of disquiet?

Has the OROP been deliberately allowed to fester so that it can be settled, with a flourish, just prior to the Bihar elections with the personal intervention of the PM, making the fauji vote thereby indebted to him?

Is the Patel agitation merely a manufactured storm? Is it calculated to subside with strong and reassuring intervention from Delhi to help the floundering Chief Minister Anandiben, thereby reinforcing the “strong leader” image of the PM?

Is the impending general strike and the prospect of extended labour unrest; lost jobs and forgone income, meant to scare voters in Bihar into opting for stability and the BJP, rather than taking a punt at the alternative politics of the rag-tag combination of Nitish Kumar, Lalluji and Arvind Kejriwal?

Truth is stranger than fiction, so none of these scenarios can be summarily discounted. But one thing is clear. The government needs to tighten its boot straps if it is to be an instrument of economic and social change.

Four priorities emerge:

Legally correct but bi-partisan

First, the rule of law must prevail in spirit. This is not yet visible. Using the letter of the law for one’s own ends is not the same as the rule of law prevailing. The golden rule is to err on the side of administrative effectiveness, simplicity and comprehensive reading of the law. Delhi presents an opportunity. The electoral mandate of the Delhi government is unquestionable. Respecting it and developing a positive functional relationship with it is in the long term interest of democratic governance. After all in every harmonious family-as the Speaker Mahajan of the Lok Sabha views Delhi to be- the youngest – even a rebellious, member’s foibles are accommodated.

Where are the tough economic reforms?

Second, clear signals for undertaking tough economic reform are a must. This is a government which garnered far reaching support on the basis of its reformist credentials. The government agenda is long on “win-win” options but not so impressive where there is no option to causing some pain. Initiatives crying out for attention are- (a) restructure electricity utility debt to make them financially viable; use the energy and commodity price decline to move to a “hands off” regulatory regime for energy prices; (b) make State Owned Entities/Public Sector Banks autonomous. Delink them from the control of their administrative ministries. (c) Enhance government effectiveness by boosting the availability of specialized, functional skills at decision making levels. The absence of even a game plan towards these objectives is worrying.

Make one, keep one-the mantra for government employees

Third, make jobs not skills. People learn better on-the-job. Medium, Small and Micro Enterprises (MSME) are ideal for maximizing the jobs per unit of capital. Facilitate them by- (a) Ensuring metered supply of 24X7 electricity on priority feeders (b) Supply electricity at the actual cost of grid supply (c) Provide incentives for such businesses to meet environmental standards. Forge a compact with state governments to make the rural development, panchayati raj, labour and industries department staff focused on employment and migration at the Development Block level. Encourage monitoring using rapid survey techniques. Remember what is monitored gets done. Reward Blocks which excel at growing employment in MSME. These measures fit well with the financial inclusion and social protection initiatives already underway.

Junk the colonial district management architecture

Fourth, change from the bottom-upwards is always the prudent way to start. End a relic of colonial rule, under which the District Magistrate is mandated to exercise oversight of the police via judicial powers under the Criminal Procedure Code. It is high time that the Police Commissioner system, already functioning in metros, is extended to all districts. The district level civilian administration would consequently be free to focus on development- for which they are best trained and equipped. This simultaneously empowers Police Officers and makes them squarely responsible for maintaining law and order- an unpardonably ambiguous mandate today. It also kick starts the process of modernizing the somewhat creaky, colonial legacy of district level general management- often the missing link in speedy implementation today.

The calendar from now to 2019 is chock a block with state assembly elections starting with Bihar later this year. The die has already been cast, the major populist decisions have been taken, including special aid for Bihar and Smart Cities. Now the outcome will depend on smart vote management- an area where the BJP excels. Time to strategize on improving the knotty fundamentals of growth and development with decisions kicking-in as soon as the votes are cast in November.

PM Modi fails first governance test

Image

Good intentions do not a good government make. As many as 8 out of 44 Modi ministers have serious criminal charges against them (Association for Democratic Reform report, May 27, 2014). The existing laws do not bar such citizens from either becoming MPs, or ministers thereafter. However, the test of a government committed to good governance is if they are bold enough to push the frontiers of public probity. This opportunity has been missed.

Admittedly, our judicial system does not help with its in-built opportunities for process delay. Our law holds that no one is guilty unless convicted. This is based on the principle of Natural Justice which allows an accused to plead her case before conviction. It is a much needed protection for innocent victims, wrongly accused; sloppily investigated against by the police; complicitly prosecuted by our civil prosecution architecture and usually, wilfully charged by the lower judiciary. Politicians too, can be victims of such a system especially when they are out of power, as BJP and supporters were for long.

However, there is a difference between legal eligibility to be an MP and the minimum requirements to be a minister. An MP becomes a minister only if the PM selects her. Modi, who enjoys a gargantuan majority in the Lok Sabha, was under no compulsion to elevate MPs, charged with serious criminal offences, to ministership.

Consider the degrees of political freedom available to him today. He has the fire power to keep Advani hanging. He has ignored the claims of Murli Manohar Joshi- a powerful BJP satrap. He only needs to pay lip service to the BJP party President, who may soon be his acolyte: Amit Shah. This illustrates his leverage with the party and the RSS.

It is unconscionable, in this context, for him to have made the eight MPs charged with serious crimes into ministers. Imagine the shock to his good governance image if any of these is convicted and then, by law, has to resign. Nothing illegal here. But good governance is mostly about the ability to claim the high moral ground, as Modi has done and then walk the talk. He has not done so.

Viewed in the larger context of distancing himself from Godhra and breaking fresh ground for rapprochement with the minorities, he has done himself a disservice by appointing as minister, an MP, who is associated with the sorry episode of the Muzzafarnagar hate crimes of 2014.  The MP does not have a serious criminal charge against him. But perception matters. The MP, who has little else to commend himself, seems to have been “rewarded” for being the BJP front man in Muzzafarnagar.

All the eight ministers have obviously been put in place with an eye on forthcoming state elections; Ram Vilas Paswan (the Dalit face of the NDA in Bihar); Upendra Kushwaha, a BJP ally from Bihar; Uma Bharti (the Hindutva face of the BJP in UP); Maneka Gandhi the Punjabi face of the BJP in UP Terai; Vijay Kumar Singh from Ghaziabad, UP; Nitin Gadkari and Gopinath Munde from Maharshtra and Dr. Harsh Vardhan in Delhi.

Pursuing good governance is like being on an escalator. There is no escape from constantly elevating yourself and pushing the envelope. Modi elected to ride the good governance escalator. Now, there is no escape from being judged on the elevated standards he has set from himself.

Admittedly, no previous government, in the recent past, has sacrificed the political returns from rewarding politically convenient appointments but remaining committed to creating a political environment for good governance. But then, we did not vote for Modi to get more of the same. We voted for Modi because we thought he was different.

Earlier, in 2004 we voted for Manmohan Singh because we thought he was different. We were wrong in his case.

But please Mr. PM, do not prove us and yourself, wrong. There is more riding on you and your government, than the blossoming of saffron pan-India. Your decade as PM can only be useful if you leave behind a political system which respects and uphold, by personal example, the Rule of Law and the principles of good governance.

Every ministerial appointment made on a purely political calculus sacrifices merit, fair play, efficiency, effectiveness and sustainability. These are preconditions for inclusive growth.

(Photo credit: dailymail.co.uk)

Modi governance milestone 1: No “tainted” MP to be a Minister

 

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The Modi led “near national” government has been voted in on the basis of its perceived capacity for good governance. Good governance is an amorphous concept. But one essential component is access to timely justice. Punishing people for the crimes they commit, at the earliest, through due process, becomes a key measure to make commitment to the Rule of Law credible.

India is a terrible laggard in this regard. Criminal cases drag on for years with the perpetrators, if they are rich, either out on bail or ensconced in jail with all comforts and privileges.

The Association of Democratic Reforms (ADR) has done stellar work in informing citizens about the criminality of Lok Sabha candidates, using the information submitted by the candidates themselves at the time of filing their nominations.  It is tragic that whilst the Election Commission does not highlight such information for the public, it is left to NGOs to cull and present it to citizens.

ADR has reported on 8163 out of the 8236 candidates who contested the 2014 elections. Of these 889 declared that they had serious criminal cases pending against them, including murder, attempt to murder, assault on women and hate crimes. Sadly the proportion of such candidates increased from 8% in 2009 to 11% in 2014.

21% of the candidates the Bharatiya Janta Party (BJP) put up, belong to this category. Nine parties fielded a lower proportion of “tainted” candidates: Amma’s AIDMK (8%), Didi’s Trinamool Congress (10%), Aam Admi Party (10%), Biju Janta Dal (10%), CPI (12%), Congress (13%), DMK (14%), Bhenji’s BSP (15%) and the CPI (M) (16%)

ADR has yet to report on how many “tainted” candidates have won from each party. But 21% of the 521 studied by ADR had serious criminal cases against them as compared to 15% in 2009. Unless candidates are convicted of serious criminal crimes, they remain eligible for becoming MPs. There is little Modi can do about that till the law is changed.

But there is one major way in which Modi can herald the era of good governance in India to which he and his party are committed. He can declare that no BJP MP shall be made a minister if there is a serious criminal case pending against her. The data is a bit fuzzy here. What is a criminal case? Is it the filing of a First Information Report; completion of investigation report by the police; presentation of charge sheet by the prosecution in court or the framing of charges by the court? But this is a technicality and can be used to massage the data.

Good governance is as much about changing the reality as it about shaping perception. Modi is the proclaimed master of perception and should rightly be concerned that his government starts off on the right foot.  

The World Justice Project which tracks the health of the Rule of Law worldwide, in its Index 2014, ranks the criminal justice system in India at 48 out of 99 countries; better than China (rank 51) or Malaysia (rank 53) but lower than Brazil (rank 37) or Sri Lanka (rank 38). More importantly on the factor of “timeliness and effectiveness” India does worse that all these countries, except Brazil.

Improving the criminal justice system, to developed country standards, is a time consuming effort involving change in practices; incentives for judges to conclude cases; better investigation practices and capacity and more motivated prosecution. These are deep procedural and bureaucratic reforms which should be started, but are unlikely to kick in with results by 2019.

In the meantime, the problem of sitting MPs with unresolved criminal cases needs to be deal with pronto if Modi’s promise of good governance is to be implemented. Modi and his team are not one to let the grass grow under their feet.  So here are three initiatives to deal with the problem:

  1. An all-party committee of the Lok Sabha should review the cases of all MPs with pending criminal cases to identify those with serious charges against them.
  2. Modi to request the new Chief Justice of India to constitute a fast track court specially mandated to decide all such cases by June 2015.  
  3. In the meantime, all MPs with serious criminal cases against them to be embargoed from getting Ministerial berths in his government.

The electorate dealt harshly, in 2014, with parties which claim to align with good governance norms but fail to take effective action, when mandated to rule. Across India, the electorate has rewarded parties with strong leaders and a record of effective governance (BJP, BJD, AIDMK, TMC) and punished those which are ideological without being pragmatic (AAP, CPM) or enabled but self-serving (Congress and Alkali Dal). This is not the moment to disappoint them with false integrity.

Making public commitments on the manner in which Ministers are going to be appointed is unprecedented. It takes away some discretion from the PM. But good governance is also about tying your hands publicly to do the right thing and burning your bridges, lest one is tempted to retreat into half-truths. Best to start now.    

 

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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