governance, political economy, institutional development and economic regulation

Posts tagged ‘Supreme Court of India’

India’s pressured public institutions

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

Rethnking Pub Inst in India

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

PBM

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

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

 

Disaster sans democracy in Uttarakhand

harish-rawat 2

Photo credit: NDTV.com: Harish Rawat – the unfortunate Congress Chief Minister, sacked by the President of India for failing to fulfill his constitutional mandate to get the budget approved

Nothing illustrates the cost of wantonly discarding democracy and handing over the government to unelected officials (Governor) than the case of Uttarakhand. To recap the turn of events , the President of India (read the BJP Union government) was pleased to take control of Uttarakhand on March 27, 2016, by invoking constitutionally vested emergency powers available to it if an elected state government fails to discharge its constitutional mandate.

The occasion for doing so was an allegation, by the Bharatiya Janata Party’s members of the Legislative Assembly, who are in a minority, that the Budget for 2016-17 was not approved by a majority vote in March, as required, to keep public finances running in the new year — April onwards. The ousted Congess government strongly refuted the allegation and approached the Uttarakhand high court, in appeal against the Presidents order. On March 28, a single judge of the Uttrakhand rubbished the President’s order. The Union government filed for revision of this order. A division bench however confirmed on April 21 that Presidents rule was unwarranted. The matter is now in the Supreme Court on appeal against the high court order. A ruling is expected this week but early indications are that the Court leans towards asking the ousted government to prove its majority on the floor of the Legislative Assembly, as is the norm and which aligns with what the Uttarakhand Governor had directed in the first place, once the dispute arose.

The absence of political leadership shows

But forget the legalese. The fact is that Uttarakhand has been without an elected government to take charge and be accountable for over a month now. It is fashionable for citizens to blame politicians for all the ills in the country. Unfortunately, the official machinery has failed miserably to showcase its strengths by managing the ongoing forest fire disaster. This illustrates that the “iron frame” of the bureaucracy is now so rusted that it fails to be proactive even when there are no visible political constraints on them.

Jhoom an age old practice

Jpeg

The people of Uttarakhand are no strangers to forest fires. Indeed, this writer has had out of control fires in previous years licking the boundary of his home and it has happened again this year. Just like in California, where habitations co-exist with forests, lighting fires can be property and life threatening. In India, the foresters and villagers resort to it as a low-cost, low-labour intensive practice to clear the fallen pine needles and accumulated undergrowth so that fresh grass sprouts from underneath for cattle to graze on. Till not so very long ago jhoom (slash and burn) cultivation — regularly setting fire to land and leaving it fallow to regenerate — was common practice. It is still followed in the Northeast.

The problem arises when local fires are poorly managed and they grow out of control and ravage vulnerable people (the old, the differently abled and the very young), homes, cattle, wildlife and indeed trees, none of whom can get away quickly.

Lack of advance red alerts 

Unfortunately, this year was different in a manner which people never recognised. The lack of rain created tinder box conditions. A more proactive bureaucracy would have sounded the red alert early, launched a communications campaign to sensitise the public against the danger, set up a war room fed by daily updates via sms and Facebook and designated local champions to lead the effort and build public opinion against jhoom.

chandi pd bhatt

Photo credit: indiatogether.org: C.P.Bhatt- Uttarakhand’s pragmatic Ecologist and community leader

Remember how Chandi Prasad Bhatt- alarmed at deforestation on an epic scale in the 1970s- a major cause for the Alakananda floods at that time – galvanised the women of Garhwal to launch the “Chipko Movement” (literally hugging trees) to guard against the rampant logging? He showed it is possible to build strong public opinion if people’s self-interest is shown to be aligned with a public cause. Managing perule better is a similar public interest issue.

Short sighted programme implementation

A previous government programme, which could have tackled the root of the problem, aimed at buying perule (fallen pine leaves) to incentivise villagers to collect them, rather than setting them on fire. Unfortunately it has long fallen into diuse. Villagers say it died because the amounts offered by the government were unattractive. Foresters say the villagers are too lazy to work and look for easy earnings and viable options for recycling perule were never developed. Also viable methods for recycling perule by compacting it into and selling, or the villagers themselves using it, as fire wood were never commercialised. Lack of sustained interest and lack of public finance effectively buried the programme even though it could have diluted the extent of the current ecological disaster by reducing the vulnerability of forests to catch fire.

Preventing disasters is nobodys business

But the real problem is that governments routinely under-spend on preventing disasters in comparison to the potential loss. Also, the tendency is to buy new equipment to manage disasters once they happen, rather than evolve low-cost, local options to prevent them. Had Uttarakhand done so, it would not be facing the terrible social and environmental costs of doing nothing.

A more technically savvy bureaucracy could have redesigned the old perule (pine needles) purchase programme to make it more attractive. But none of this happened. Minus a chief minister, the bureaucracy was a leaderless army. Local administrations headed by the district magistrate became a dead letter box into which the secretariat heavies dutifully dumped warnings and advice, sans funds, for guarding against fires.

This is not to say that the Uttarakhand bureaucracy was as callous as the Supreme Court described Union government bureaucrats to be. Whilst rapping them for not bringing forward evidenced solutions to reduce air pollution levels in Delhi, the court said: “Why can’t they come up with some research and solutions? You people are just sipping coffee and doing nothing”.

tea 2

photo credit: pinintrest.com: Delicately sipping tea – the bureaucrats relaxant.

What is true for Delhi is not necessarily true of state-level bureaucracies, which have responded magnificently, in the recent past, to disasters in Gujarat, Orissa, Andhra Pradesh and Tamil Nadu. But they all had a chief minister directing the coordinated effort that relief requires.

The key assurance an official seeks in an emergency is that his/her actions, taken in public interest, will be assessed not on the basis of how closely the regulations were followed, but on the context in which decisions were taken, and their effectiveness, in solving the problems disasters throw up.

This type of reassurance can only be credibly given by a duly elected chief minister. In today’s context, it takes a politician even to make the trains run on time! The colonial model, where the officials led and politicians merely presided, is past and buried.

Local political leadership is key 

Sans a chief minister in Dehradun, it is Delhi which is sending money, choppers and the Army to deal with the disaster. But only elected governments at the state and the local level can engage continuously to prevent disasters and effectively manage those that occur.

But the last thing to be wished for, in a disaster area, is a government led by officials with no effective political oversight. Even a bad chief minister is better than no chief minister at all. One hopes the Supreme Court will take note and end Uttarakhand’s misery.

 

CJI Thakur

Photo credit: Zeenews.comChief Justice of India, T.S. Thakar breaks down whilst sharing the misery of a judge’s life with Prime Minister Modi- the government promised to do better at staffing and funding the justice system. 

Adapted from the authors article in Asian Age on May 3, 2015; http://www.asianage.com/columnists/fuelling-fire-979

 

Protecting Babus From Politicians

Image

The Supreme Court has struck yet another blow for democracy by protecting babus from politicians. Not bad in itself, but puzzling, in the context of the larger objective of protecting democracy.

Democracy is all about citizens electing politicians to manage the “commons” and regulate the markets. A babu is merely an “ahlu” in the sabzi; employed as a technician to work objectively with any elected government, irrespective of ideology, translating broad political objectives into policy options and implementing the ensuing policy. It is the test of the ballot which legitimates the politicians. Babus merely facilitate the task of governance and in return they are assured a cradle to grave job with pension.

It is not trivial to answer the question what ails the Indian babu today and how her concerns can be met. The SC has identified four key areas for redressal.

First, the SC has directed that the minimum, normal tenure should be three years, which is undoubtedly, wise. The apprehension however, is that for every honest and committed babu who uses this protection to implement the rule of law, there will be multiple others, who would instead use it as a formal confirmation of their colonial “right to rule” and the powerlessness of “topiwallahs”.

Fixed tenures can be effective, as intended, but only if they are accompanied by direct oversight of citizens in assessing babu performance. A District Magistrate has the right to demand a fixed tenure but only if she is willing to seek an annual endorsement of her performance from all the elected representatives of the District. If however, babus are wary of citizen review, they cannot simultaneously, shy away from the direct control of the elected government of the day.

Second, the SC directed that no babu should henceforth act on a verbal order. Clearly the intention was to create a paper trail for audit of decision making. A good thing in itself. But consider that Ministers, across political parties, now routinely act on verbal orders from party bosses. Even the Cabinet of India was caught acting hastily on the verbal and very public outburst of a party supremo. Can we really expect a Minister, herself acting on verbal orders, to respect the “written orders only” rule while dealing with babus?

More importantly, the relationship between a politician and her babu is often, though not always, a very intimate one. This is as it should be. The rough and tumble of an effective democratic system cannot be managed, without a measure of trust and faith between the Minister and her babu. Cutting this symbiotic cord between the two, would be suicidal for effective governance. Imagine District Magistrate, Krishna Kumar, the hero of Ganjam, asking Chief Minister Naveen Patnaik to write all his orders in triplicate, even in the raging fury of a cyclone.

Verbal orders that do not go against the public interest are a non-issue. Those that do not align with public interest can be subverted, as they have always been, using the legendary guile that babus develop. If even this is not possible, the option is always available to follow E.A.S. Sarma’s advice and “step aside when it is impossible to decide in public interest”.

Third, the SC has directed that babu management be outsourced to an “independent” commission to insulate the process from “political” influence. This merely restates what already exists. Initial recruitment is already done by the Public Service Commissions and other Subordinate Service Selection Commissions. Promotions are already done by a committee of senior officers who record written orders. In the case of the All India Services, the UPSC has to approve before disciplinary action can be initiated. Many already believe Indian babus are too cosseted by protective legislation. If despite all this protection, babus still feel threatened; outsourcing their promotion, postings and transfers to yet another “independent” commission is unlikely to help. It will however create additional post-retirement babu sinecures.

Instead, to build a meritocracy, we should do away with the anachronistic “cradle to grave” employment system. Every position in the officer grade of undersecretary and above should be widely advertised for open competition and filled on contract, for five years, by the related Public Service Commission. The concept of time bound, seniority based promotion must die, if babudom is to survive.

Fourth, the SC has directed that government legislate a law for babu management, in the hope that this shall introduce transparence, equity and performance orientation. The last thing India needs is another law. We already have more than 1200 laws. Our belief, that legislation can solve problems in public management, is deeply misplaced. The international experience is that legislation, unless backed by deeply entrenched norms and social capital, is ineffective in changing babu behavior.

Africa and East Asia are littered with civil service laws, but the actual performance, in managing graft and protecting the poor is, at best, on par with India. Whilst out babus do need to shape up, consider that India runs a pretty tight ship. We employ barely 3% (17.5 million) of our labour force (650 million) in government (including central, state, municipality, police and the army). Compare this with the most developed OECD countries, Norway 29%, France 21%, UK 17%, US 15%, Japan 7% and Brazil 9%, South Africa 9%, (ILO data 2008). Yes, our public services don’t match up to OECD standards, but neither do the resources we spend on them. Our teeth to tail ratios are poor and the comparison would be even starker if we consider the proportion of professionals employed in government.

The SC has never failed, in public interest, to fill the gap created by executive inaction. But the law is not a substitute for effective, executive decision making, which requires the ability to play with the grey scales of the real world. The law is a black and white discipline, quite unlike life. Public Human Resource Management is not an area of comparative advantage for the SC, as evidenced by the judiciary’s record on this score. Those who live in glass houses must not cast stones.

Tag Cloud

%d bloggers like this: