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Posts tagged ‘Supreme Court’

The coal-gate bell tolls selectively

patiala house

On Monday, May 22, 2017 CBI Special Judge, Bharat Parashar will sentence the five accused, convicted by him on May 19, 2017. Among the convicted are three officers – H.C. Gupta, retired Secretary of the Ministry of Coal (MOC) and two of his juniors, convicted under the Indian Penal Code (IPC) for criminal conspiracy and cheating and under the Prevention of Corruption Act, 1988 (PCC), for obtaining undue pecuniary advantage, against the public interest, for M/s Kamal Sponge Steel and Power Ltd (KSSPL).

The fearsome consequences of a criminal conviction

The conviction under the IPC invites a maximum sentence of up to six months with a possible fine. The conviction under the PCC invites a minimum sentence of one year, extending up to seven years with a possible fine. Associated outcomes would be the retrospective dismissal and withdrawal of retirement benefits for Mr. Gupta and dismissal for the two officers in service with no termination benefits. It can’t get worse for these officers.

Jail

The background to coal-gate

In November 2006, the UPA government, desiring to relieve the coal shortages crippling the economy, invited applications from end-users of coal in power, steel and cement sectors for allotment of captive coal mining licenses. 1.422 applications from 344 companies for 38 coal blocks were received.

But this gigantic liberalization measure quickly acquired notoriety. A Tsunami of public revulsion at the alleged, rampant corruption in allotment followed.  In August 2012, a report of the Comptroller and Auditor General – India’s public auditor, was leaked. It assessed the loss to the treasury from incorrect coal allocations between 2004 to 2009 at Rs 10.7 trillion.

CAG

The Vigilance Commissions waded in righteously and referred the case of allotment of the Thesgora B/Rudrapuri block in Madhya Pradesh, to the CBI for a preliminary investigation on June 1, 2012.

CBI lives up to its “caged parrot” reputation 

The CBI lodged an FIR on October 13, 2012 against M/s Kamal Sponge Steel and Power Ltd. (KSSPL) – one of the two joint allotees. It had identified deviations from the guidelines for allotment specified by the ministry of coal. However, after investigation, it filed a closure report, stating that there was insufficient evidence to prove a criminal conspiracy to cause unlawful gain for the allotee.

The Supreme Court bats straight and hard

Meanwhile, the Supreme Court, in a separate case regarding coal allotment, ruled in August 2014, that all the coal allotments done over the period 2004 to 2009 in favour of private companies were contrary to the provisions of law and terminated them.

The CBI court takes heart and revives the case 

Soon after, the CBI court rejected the agency’s closure report on October 13, 2014 and framed charges on October 1, 2015. Special Judge Parashar has been painstakingly diligent in avoiding judicial overreach. His approach has been technically exemplary. He has recorded how the ministry of coal subverted the process defined by itself and failed to exercise due diligence and adequate oversight over the actions of the coal allocation section of the ministry – headed by an undersecretary level officer. In an unedifying spectacle of poor leadership this junior officer was fingered by his immediate superiors as solely responsible for incorrectly processing the 1,422 applications received during the 36th round of coal allocation.

A tragedy of avoidable self goals in MOC

self goal

The entire process was replete with errors. The application of M/s KSSPL was incomplete. The last three years audited balance sheet were not attached as required by the advertised guidelines. But the lacuna was not red flagged. Instead, it was circulated, like all the other applications received, to the concerned administrative ministries – in this case the Ministry of Steel and the state government of Madhya Pradesh for comments and then tabled in the Screening Committee for consideration. The state government recommend that the block be allocated to M/s BLA Power – a power producer. But this recommendation was not accepted, presumably because this block was specified for non-power coal users.  But then why was the application of m/s BLA Power circulated to the concerned ministries and state government, without red flagging that it was ineligible?

M/s KSSPL – complicit conspirator or merely gaming an inefficient system

M/s KSSCL was invited to make a presentation to the screening committee despite their applications remaining incomplete. Worse, the prosecution established that the missing audited balance sheet had been with the applicant all along and that the applicant had overstated their production capacity and their net worth. Whilst there were no minimum conditions for net worth or production capacity, overstating both, could only have been done consciously to falsely claim a greater need for coal and a larger allotment than required. Having once stated this falsehood, producing the audited balance sheets was no longer possible. Considering these facts constructively, the charge against the company and its employees for cheating and conspiring to obtain pecuniary benefit at the expense of public interest is well established.

A conspiracy of one?

But who did the applicant conspire with in the government? Is it not possible that the applicant, simply used the loosely dispersed and poorly managed selection process to their own advantage, without the active criminal cooperation of anyone? Do not thieves enter through a door, inadvertently left open, to steal? Would the mere fact of an open door automatically make a beat policeman or the owner a co-conspirator?

Why the selective targeting of and within, the ministry of coal?

Second, even if there was a conspiracy, why was the relevant chain of officers in the administrative ministry (Ministry of Steel) or in the government of Madhya Pradesh not similarly charged? They did not object to the incorrect inclusion of the applicant. Nor did they object to the allocation, either during, or after the steering committee meeting. Was it sufficient for them to merely stress the need to evolve objective criteria for evaluating the applications in a pre-evaluation meeting convened by the MOC on May 11. 2007 without putting down their concrete suggestions on record? Secretary, Coal had specifically directed Coal India to identify the applications whose net worth was at least 20 percent of the capital needed to implement their proposed projects. The onus was on the MOC to follow up on these decisions. But nothing seems to have been done.

The fact that the MOC did not follow up on defining the evaluation process has been used as evidence of a conspiracy within the ministry to retain undue discretion possibly with the intent to cause pecuniary benefit against public interest, to be obtained by selected applicants. This is a valid concern.

But, if there was a conspiracy within the Ministry of Coal, surely the extent of it needs to be established. Could it not, for example, extend to the then Minister of Coal, who was also the Prime Minister- Dr. Manmohan Singh? Also, what about the undersecretary heading the coal allocations section.  He is clearly not solely to blame. But exonerating him completely, also appears extraordinarily generous, considering that he could produce no written orders directing him to circulate the applications without checking them for completeness or eligibility per the guidelines. Is it sufficient to rely on the mere fact that the three convicted officers were all from the IAS to establish that only they were part of a conspiracy?

Was the circumstantial evidence doubt proof enough to prove guilt?

Special Judge Parashar quotes the Supreme Court on the need for convictions, based on circumstantial evidence, to establish a clear, plausible, plainly visible connectedness between the actions of the conspirators for a common illegal objective. But the evidence to support this minimum requirement to establish guilt seems far too thin and speculative in substance.

Administrative disaster but criminal conspiracy…..?

What has been incontrovertibly established is that the pre-conditions for a conspiracy to be hatched existed. But in the absence of incontrovertible evidence that a criminal conspiracy existed, whilst there is ample ground for proceeding with disciplinary proceedings against the officers concerned, indicting them criminally seems excessive.

portia

Portia in Merchant of Venice – “The quality of mercy is not strain’d……….It is an attribute to God himself; And earthly power doth then show likest God’s; When mercy seasons justice.” William Shakespeare

The law must needs be blind, single-minded and mechanically predictable if it is to avoid selective targeting. Special Judge Parashar after penning a water tight judgement stopped short on excising the cancer of criminal conspiracy fully. Or can this be judicial self-restraint in the face of certainty, that additional indictments are around the corner to get to the root of the problem?

The blog is also available at http://blogs.timesofindia.indiatimes.com/opinion-india/the-coal-gate-bell-tolls-selectively/

Taming killer highways: Booze ban a marginal solution

booze bar

Thirsty travellers on highways are going to miss the inviting LED signboards offering “cold beer” to alleviate their boredom. But ask those who have lost a loved one in an accident, or been maimed in one — and they will enthusiastically support the Supreme Court’s ban on the availability of booze along our state and national highways. When the issue is emotive, the reflex response of both the judiciary and the executive is to do anything that appears adequately responsive. What could be easier than banishing booze from the highways, knowing full well that this could be just optics.

Target drivers and the owners of vehicles with punitive action

Traffic police

Curbing drunken driving requires that drivers, a small fraction of all travellers, be targeted. Most travellers are passengers. It doesn’t matter whether they tipple or not. Many of those at the wheel are licensed, professional cab, bus and truck drivers — much like commercial pilots. Surely the owners of these commercial vehicles should be held criminally accountable, along with the driver, for accidents caused by drunken driving, unless they can prove that they test their drivers randomly. This would automatically incentivise owners to use drivers who don’t drink. But this is a narrowly targeted option that requires follow-on administrative action and effective policing. Far splashier, instead, to go in for a blanket ban on booze —  and never mind if it causes collateral pain.

Our bias against booze is vested in the Constitution

Directive Principles

The origin of our half-hearted approach to the problem lies in the Directive Principles of our Constitution which enjoin the State to implement prohibition. These define the higher moral ground that we all must aspire to. But they are not mandatory and need a law to be passed to become implementable. We implement these only selectively — like universal education —  where there is near complete consensus. But we ignore others, like prohibition, where a consensus is missing. Hence the tension between the constitutional directives and reality.

We do not have a fundamental right to drink or sell booze. We do so only at the pleasure of the State. It can be withdrawn at any time. Many would argue it should not be summarily withdrawn, specially when it will disrupt ongoing business. And because other options exist to curb drunken driving. If we are uncomfortable with the ideals specified in the Directive Principles, then the correct approach is to amend them and expand the fundamental rights to include the freedom to drink responsibly. But who will support such an amendment?

We are not French – we have no tradition or social acceptance of booze

indian meal

Mainstream India has no tradition of the neighbourhood bar, from where it is all right to stagger home, helped along by acquaintances or friends. Yes, there is communal drinking in tribal areas and on special occasions in villages, where there is a lot of staggering about. But these are rare occasions. In the plains of India, most regular tipplers are men as drinking is done outside our homes. It is the anonymity of highway drinking that is attractive for furtive, male drinkers.

Economic impact of booze ban marginal – because tipplers will find a way to drink

How terrible will the booze ban be for the economy? The measure simply aims to make drinking and sale of liquor physically invisible from highways. Tippling will shift a couple of minutes away onto back streets, possibly with far worse consequences for public order. But its revenue impact will be negligible. Businesses will adjust. Web-based apps will guide travellers to back street bars and booze shops; private caches of pre-mixed booze in flasks will proliferate as will the illicit supply in dhabas along the highway.

Judiciary not the culprit – amend the constitution if you want a right to drink

Blaming the judiciary for ham-handedness is the easy part. But the Government of India and several state governments, including Delhi, Madhya Pradesh, Andhra Pradesh and Telangana, have accepted the verdict. Eighteen other states didn’t bother to contest the decision. This shows that the judiciary is aligned with the national and state-level executive in moving India, gradually, in the direction to which the Directive Principles point us.

The real culprit is drunken driving- only intelligent policing can help

Drunk driver

But without effective patrolling, behavioural change among drivers is highly unlikely. Ask any highway traveller. There is nothing more reassuring than regularly passing by a police patrol car, specially at night. Drunken or irresponsible driving can only be curbed if the Centre, with the consent of all state governments, directly polices all our national highways. Centrally-monitored and controlled mobile patrols, responsive to distress calls and SMSes like the National Ambulance Service, equipped with paramedic and trauma support teams, should be frequently visible along the 90,000-km national highway network.

Create a National Highway Police & Trauma Support System- NHP&TS

NHP

A National Highway Police Force should be created and empowered to regulate traffic; challan errant driving; provide trauma support in case of accidents and keep the highways free of crime and irresponsible social behaviour. Back-of-the-envelope calculations suggest that an officer-oriented, multi-skilled force of 11,000 employees would cost Rs 1,000 crores annually in overheads, maintenance and salaries, with a one-time capital cost of Rs 800 crores for equipment and housing. Sounds expensive? Implemented over a period of five years, it is just 0.3 per cent of the annual revenue expenditure and 1.5 per cent of the capital expenditure for the police in the Union Budget.

Compare this with the avoided cost of Rs 1,400 crores, being the value of lives lost (42,000 persons in 2009) in accidents on national highways, computed on a present value of Rs 3.5 lakhs per life lost, based on the average per capita income, over a residual working life of 20 years. The avoided cost of injuries to 1.5 lakh people (2009) is around Rs 180 crores, assuming medical treatment and lost wages at two months’ wages per injured person. The cost of vehicles and goods lost and cost of trauma suffered is over and above this.

The economic payback of a NHP&TS system is under one year

An international-quality high way security and trauma support system makes economic sense. More important, it is yet another bond sealing the social compact between Prime Minister Narendra Modi’s government and the travelling public — urban immigrants, business people and tourists —  estimated at around 230 million passengers in 2016 (assuming an average lead of 75 km) by the National Transport Development Policy Committee in 2013. There can be no better social impact investment than one which offers an economic payback of under one year.

Adapted from the authors article in Asian Age, April 8, 2017 http://www.asianage.com/opinion/columnists/080417/tame-killer-highways-liquor-ban-just-optics.html

grief

Don’t demonise diesel

car jam

photo credit: indiatoday.com. 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?

diesel

photo credit: greencarreports.com

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 http://www.asianage.com/columnists/don-t-demonise-diesel-955

If only Suresh Prabhu was CEO of Indian Rail!

train-crowd (1)

(photo credit: Indianexpress.com)

As expected Suresh Prabhu, the likable, very professional and intensely committed Railway Minister presented a Rail Budget yesterday, which is not only fiscally responsible; internally consistent; aligned with the medium terms needs of the economy but which also pushes all the right buttons.

For the middle class the buttons pushed are availability of disposable linen in trains, on payment, for the squeamish- a first; entertainment on board to while away boredom; Wi-Fi at stations; a choice of meals; an assured maximum waiting time of five minutes whilst purchasing a ticket – again a first. Most important is there is no increase in the price of “upper class” tickets, which no one was expected, given the gaping hole in the financials of passenger traffic.

For the environmentally conscious citizen, Minister Prabhu flags that investing in rail reduces transport of goods and people by road, thereby saving up to 90% of energy and 85% of the carbon emissions as compared to road transport. A clear plus for the security of energy imports dependent India and a plus for the global climate.

Second, dual fuel engines are planned which will run on diesel plus the significantly less polluting Compressed Natural Gas, which compulsorily fuels all commercial road traffic in Delhi thanks to a Supreme Court order a decade ago and is why Delhi citizens are not choking to death in stand-still traffic.

Third, select railway stations will switch to green solar power, generated on site, using the ample land available with government.

For the poor, he has held the lower class ticket fares constant despite a net loss on passenger traffic of Rs 26000 crores ($ 4.2 billion). He adds that he is likely to be helped somewhat by weak oil prices which may reduce the loss by 20%.

Revenues from passenger traffic contribute only around 33% of total revenues but passenger trains get priority in congested routes. Of the passenger revenue the “lower class” subsidized fare contributes only around 70% even though around 85% of passenger miles are in this class. These rates are crying for upward revision.

Sadly, he has hiked the rates for goods transport by around 10%, in line with the long term trend, in which freight of goods and upper class passenger fares are taxed to cross subsidise passenger fares for the poor.

But there is hope. Unlike all his august predecessors he has resisted the temptation of announcing new trains and thus frittering away the meagre public funds (Rs 40,000 crores – $ 6.6 billion) that Indian Rail (IR) gets from the budget.

Sensibly, he intends to invest in around 50% of pre-identified segments of the congested routes to remove blockages,  which slow down premier passenger trains- technically capable of running at 130 km per hour to a mere 70 and freight trains- which can run at 75 km per hour to a mere 25 km per hour.

Decongesting such sections will increase the speed of transport, improve turnaround time of rolling stock and reduce the delivery time at destination of both goods and passengers. Once realized, this by itself will result in financial rewards for IR from improved efficiency. Sadly these intended benefits are either not assessed or not shared with the public.

But it is sad that India still wastes both executive effort and scarce parliamentary time on issues which are squarely within the corporate ambit. There is really no reason why IR should not be a government corporate just like Oil and Natural Gas Corporation (ONGC) the oil behemoth or the National Thermal Power Corporation (NTPC), India flagship power Generation Company.

India’s stock market is booming and capital values are several times the book value of “capital employed” in the these corporations based on future expectations of their profits.

Meanwhile IR, a monopoly in the rail transport segment, with annual revenues of Rs 183, 828 crores ($ 30 billion) struggles to charge cost reflective rates; needs to mind its Ps and Qs because its budget is debated in Parliament, where the 790 honourable members can each be a stumbling block to reform and rationalization and is strapped for capital to invest.

If Indian Railways were a government corporation with a Suresh Prabhu clone as its CEO, it would be the second largest Indian company by assets size, after State bank of India (SBI); the fifth largest Indian company by profits after ONGC, the Mukesh Ambani led Reliance Industries (RIL), SBI and TATA motors and the seventh largest by revenues after Indian Oil Corporation, RIL, Bharat Petroleum, Hindustan Petroleum, SBI and TATA motors.

Ofcourse if it had been a government corporation it would not have had to suffer the political interference which has crippled it since the last “business like” minister it had in the late Madhavrao Scindia of the Congress more than  two decades ago. It is time all the Scindia descendants alligned with the right side of reform again.

The best part of Suresh Prabhu’s Rail budget is that it is “timid” in its ambition. It does not promise the moon and instead bats for “incremental improvements” which aligns well with the glacial pace of reform in India. It is realistic in its assessment of political economy compulsions and yet firm on not “giving in” to the long prevalent culture of “pork” in railway budget allocations.

Small is still beautiful and the Rail budget does well to recognize it. It is the small changes which have a big bang for the buck. Problem solving and unplugging bottled up efficiency essentially involves looking for cost effective solutions. The railway budget assiduously finds them all. The only exception is the commitment to green solar energy which, despite the hype, remains a hugely expensive option for grid connected electricity generation in a poor country like India.

If PM Modi’s “invisible hand” was behind the Rail Budget, we hope to see more of the same, strengthening FM Jaitley’s resolve on February 28, whilst presenting the nation’s Budget for FY 2016, to be efficient without being excessive; effective without being cruel and carefully allocating public funds where the maximum private sector jobs can be created; the poor most benefited and the common tax-payers wallet swelled.

The Rail Budget was a good beginning. Lets hope for a  happy ending tomorrow to the budget mania.

The third public toilet

Image

Public toilets are an emotive subject. The Gates Foundation has developed one which incinerates the waste using solar power; expectedly an innovative and green solution from the Big B of Silicon Valley. The Japanese have for long unleashed their geekiness on customizing digitally operated toilets to become so threatening that just trying to use one becomes daunting for the technologically challenged. But the king of public toilets, in India, remains Bindeshwari Pathak whose brain child “Sulabh” has, since 1970, provided public toilet comfort to travelers, itinerants, slum dwellers and the homeless; an astounding 15 million every day and growing.   

Expectedly, therefore, whilst striking a blow for equity and protection of minority rights, the Supreme Court directed the government that Transgender (TG) be recognized as a third gender and provided with separate public toilets. A laudable objective in a country, where even the existing two genders and the “specially enabled” often “feel” the absence of a public toilet.

Public toilets are certainly the way to go. Private toilets are awfully costly and wasteful. They generally occupy at least 10% of the carpet area of your house. This is valuable space grossly underused in nuclear families. At current realty rates, private toilets need to rank as a luxury on par with air conditioning. If you can’t afford air conditioning you probably should not be investing in a private toilet.

But much depends on the availability and quality of public options. Many public services do not have toilets segregated by gender; think airplanes or railway carriages or even small restaurants. It was only in 1739 that gender based toilet segregation became available in French restaurants.   

The notion of separate public toilets for men and women is related to three cultural traits which vary across the world. First is the “prudish” trait which requires that physical contact between men and women be minimized, just as volatile chemicals are stored separately in laboratories, to avoid mishaps and misadventures from their inadvertent mixing. So separate queues for women in banks, separate buses, separate rail compartments, separate taxis and separate toilets.

Second, is the need for comfort and absence from sexual stress that flows from being with the same gender. After all one is at ones most vulnerable in the toilet and the successful completion of the task at hand requires one to be at ease and relaxed. So there is validity in the assumption that separate toilets for men and women are both more efficient and effective.

Third, is the need for assuring physical safety, especially of women.  A public toilet, by its very character, is shielded from public gaze. In addition, if it is unlit or located in isolated areas, as they often are, they become fertile ground for sexual assault and intimidation. Hence the need for separate toilets.

It is probably in this context that the SC directed a third public toilet for the third gender. The issue that arises is should toilets be segregated by gender (a physical attribute) or sexuality (a mental attribute).

Gay or Lesbian persons would probably choose to use the toilet of their sexuality rather than that of their gender on the grounds of prudishness, lack of sexual stress and safety. Unexceptional, straight people of either gender would probably agree with them on their choice. They probably feel the sexual tension if they are to share a toilet with a gay/lesbian person who only has a common gender with them but a different sexuality.

The key problem with using sexuality to determine which of the three public toilets to access, is that it is not discernible at “face value”. Gender being a physical characteristic is easier to spot but still needs physical examination. Also there is the issue of Bisexual persons who probably deserve a special toilet of their own.

The way to solve the gender/sexuality based toilet access conundrum is to use a proxy. This should be the way you are dressed. Irrespective of gender or sexuality if you dress as a woman, you should have access to the women’s toilet and vice versa for men. Transgenders could also be conveniently accommodated using this metric.

Of course this still does not solve the problem of the closet gay/lesbian persons who hide their sexual orientation by dessing according to their gender, because the law in India criminalises their sexual practices and social norms still discriminate against them. But that is changing. The Supreme Court is considering a curative petition which will likely overturn its recent regressive decision which passed the baton to Parliament to decriminalize “sex against the order of nature”.

Once this happens, the problem of the third public toilet shall have been solved. Everyone shall have access to the public toilet one dressed for, exactly as it is for entry into exclusive clubs and bars. You are only allowed in if you have dressed appropriately.

It is in the government’s interest also to fast forward legislation on decriminalizing gay/lesbian sexual practices and recognizing same sex marriages. Otherwise it faces the uphill challenge of adding a third public toilet to the non-existent two.

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