If our politicians are serious about judicial accountability and the need to bring judges to account, an impeachment motion for Justice Karnan should be a sitter. Reality is different. The political system will bring into motion the conventional political dynamics for the vote. Justice Karnan’s defence of the indefensible is largely based on one single point — that he is being targeted on caste-based lines because he is a Dalit. Dalit Members of Parliament could call his bluff if they so desire. A government that is said to be committed to finishing off caste-based politics — with a beginning having been made in the Uttar Pradesh elections —and indeed, said to be committed to bringing in an era of judicial accountability, should easily find 100 members in the treasury benches of the Lok Sabha or 50 members in the treasury benches of the Rajya Sabha to do the task of setting the ball in motion.
The folks in corporate India have strong views about their own perceptions of ‘ground realities’
Almost everyone in the Indian corporate world has a view on the ongoing tragedy in Kashmir. A view informed by the ruthlessness in punishing dissent, that is the norm in corporate politics. A war is being waged on social media, infected with the virus of videos extolling the virtues of uniformed Indian military men slapping and poking bleeding Kashmiri boys, forcing them to chant slogans against Pakistan, with greater threats leading to louder forced abusive slogans. “Ideal treatment for stone pelters,” said a friend in a WhatsApp group. A bunch of others chimed in, in agreement.
This column is not going to be about how those pelting stones are civilians in unrest, who could in fact turn to pelting grenades. Nor will this column purport to explain why atrocities on the Pundits inflicted in the 1990s cannot justify atrocities on kids in Kashmir today. For now, I am not even getting into the issue of some popular singer whose claim to fame is singing on television, abusing retired Indian military men who have actually served in war, for speaking up against military brutality on civilians.
Since the folks in corporate India have strong views about their own perceptions of “ground realities” in Kashmir (it matters not if social media warriors had even considered volunteering for basic National Cadet Corps service as students), this column will simply seek to translate what living in Kashmir can feel like if the legal framework applicable there were to be made applicable to an Indian corporate.
Let’s take the simplest and the most obvious cause of state high-handedness in areas like Kashmir (as indeed large parts of the North East) and see how it would feel to work in corporate India if the same cause were replicated. Essentially, let’s adapt the law applicable in Kashmir to the law governing running business in corporate India. This is necessary since most people with the strongest views on Article 370, which reflects the contract by which Kashmir joined the Indian Union, have never read the Armed Forces (Jammu & Kashmir) Special Power Act, 1990 (the dreaded “AFSPA”), which governs life on the street in Kashmir.
It is easy to read, however uneasy the reading can be for the reader. It has barely eight effective provisions. In a nutshell, any government officer can do anything with your life and property, and never be called to account. Forget having checks and balances in the form of tribunals such as the National Company Law Tribunal or the Securities Appellate Tribunal. Forget bringing errant public servants to book through anti-corruption measures in courts of law. Read on for what would govern life under AFSPA in the corporate or industrial world:
1. If the government is of the opinion that any industry poses danger that use of severe measures is necessary to prevent violations of law, the government may declare the whole or any part of such industry to be a “disturbed industry”.
2. Any government officer may, if he is of the opinion that it is necessary, fire upon or otherwise use force, even to the causing of death, against any person, who is acting in contravention of any law or order, do so in a disturbed industry.
3. Any government officer may, in a disturbed industry, destroy any place from which violation of law is likely to be made or attempted to be made.
4. Any government officer may arrest without warrant any person against whom a reasonable suspicion exists that he is about to commit an offence and may use such force as may be necessary to arrest.
5. Any government officer may enter and search, without warrant, any premises to effect such arrest or to recover any person believed to be wrongfully restrained or confined or any property reasonably suspected to be stolen property, and may for that purpose use such force as may be necessary, and seize any such property.
6. Any government officer may stop, search and seize any vehicle reasonably suspected to be carrying any person against whom a reasonable suspicion exists that he has committed or is about to commit an offence, and may, for that purpose, use such force as may be necessary to effect such stoppage, search or seizure.
7. Every person making a search under this Act shall have the power to break open the lock of any door, almirah, safe, box, cupboard, drawer, package or other thing, if the key is withheld.
8. Without approval of the government, no person who has used or claims to have used powers under this law can be prosecuted or sued.
Not too long ago, the Securities and Exchange Board of India Act was sought to be amended to permit search and seizures without the need for even a warrant. In fact, a Presidential Ordinance contained such provisions. A Parliamentary Standing Committee met various stakeholders and representatives of industry and rightly killed the provision although it was believed that “war like” powers were necessary to combat securities market abuse.
The Finance Act, 2017, has indeed brought in a provision protecting the tax department from having to explain how it had “reason to believe” or “reason to suspect” that led to a search and seizure operation. When such powers begin to get mildly used, fellow Indians living in the corporate bubble will get a faint whiff of what life can be like when you run a grocery store in the streets of Kashmir or the North East. Until then, there will be no let up in the enthusiasm to wage war on social media against civilians being punished for protesting against excesses encouraged by incentives embedded in the legal policy governing these regions.
This column was published Without Contempt in the editions of Business Standard published on April 20, 2017
In a challenge to the replacement of governors of states as political decisions, courts have ruled that no decision of the government, including a decision to replace a governor can be arbitrary, yet ruling that the decision cannot be interfered with. It is likely that the pending litigation over whether legislation that are nowhere near Money Bills can be passed by Parliament as if they were Money Bills, would meet the same fate.
This contrivance aimed at simply circumventing the Rajya Sabha has been resorted to in the past. The Foreign Exchange Management Act, 1999, had been passed by both Houses of Parliament as a non-criminal law to replace the dreaded criminal law contained in the Foreign Exchange Regulation Act, 1974. That was not a Money Bill. That had been a major milestone in India’s legislative and economic policy history. Two years ago, provisions criminalising exchange controls were brought into FEMA through a Money Bill. No consent of the Rajya Sabha was taken.
These infractions of law were not challenged since they were not politically correct for challenge. Now that a bigger gauntlet has been thrown, it is possible that some may challenge it. The history of constitutional challenges to the creation of tribunals has itself had a chequered history at the hands of courts. The National Tax Tribunal could not be set up due to such a challenge. The National Company Law Tribunal could indeed be set up although in its new form it is in conflict with earlier rulings of the Supreme Court rendered when dealing with earlier attempts to set up the Tribunal. There are as many views on interpreting the Constitution as there can be benches of the Supreme Court and of multiple high courts.
All of this is not to say that all the changes sought to be brought in are bad. There are some laudatory amendments — one is the retirement age of the presiding officer has been extended to 70 years. Some changes are horrible. The tribunals listed in the Finance Act, 2017, are not the only ones whose constitution has been disturbed. A provision entitling government to similarly merge other tribunals not named for now, by a simple executive fiat has also been passed as a part of the Money Bill.
The Finance Act, 2017, is a quiet power-grab in the conflict between arms of the state. If the judiciary wrested control back by striking down the National Judicial Appointments Commission, the executive has sought to strike back by giving itself powers over vast areas of quasi-judicial territory.
By Somasekhar Sundaresan
An election result is upon us. India’s most populous state and her neighbour have emphatically voted the party in power at the Centre into government. Two tiny states have returned fractured verdicts and coalition governments led by the party in power at the Centre have been installed. The single-largest winner in these two states is having to sit in the Opposition. Another state elected the principal Opposition party to power.
The polls were seen as a referendum on whether demonetisation, announced in November, met with approval by the people of India. Shortcoming in psephology skills is now equated with shortcoming in appreciation of public policy. The outcome of the polls, it is widely believed — even among critics of demonetisation now mired in serious self-doubt — underlines that demonetisation was for the larger good and the common man could see what policy wonks failed to see.
Outcomes of elections cannot be a barometer of the wisdom of economic policy. The merits of public policy choices are quite different from the merits of assessing the capacity to sell evidently unpopular choices at the hustings. The latter is reflective of political acumen. The former requires the capacity to take hard decisions for the right reasons. The inability to gauge the intensity of anger of the man on the street is not the same as the inability to think clearly about what is good policy.
Demonetisation inflicted serious hardship on the common man. The costs it imposed evidently outweigh the benefits — mind you, computation costs and benefits can itself be quite controversial. The courts had refrained from restraining the government although judges are said to have expressed fear of riots on the streets. There were no serious riots despite acute hardship. The reasons that were said to have motivated the measure appear to have been belied — stashes of slush money in crisp newly printed Rs 2,000 notes are already being unearthed; counterfeit currency in crisp Rs 2,000 notes are being apprehended; and most of the corrupt rich seem to have tided over the crisis with some bearable cost being borne.
Demonetisation did not hurt the electoral prospects to the extent it would rationally have. Nor for that matter have laws that imposed a near-100 per cent tax on income. If winning elections were a relevant barometer of what constitutes good public policy, Indira Gandhi and the Congress’ consistent wins for decades would place all their measures in a great position — it is another matter that today they are being pilloried. Despite (or perhaps, thanks to) ridiculous tax rates, black money got built up. The narrative of electoral wins making policy immune from critique was a well-honed Indira Gandhi model. Opposition leaders saw her as Durga, commentators said she was “the only one wearing the pants in the Cabinet” and yet, India kept slipping in governance, and institutions kept getting weakened to stay “committed” to her approach to policy.
Perhaps, Uttar Pradesh politics’ dependence on cash led to demonetisation materially impacting the outcome. Count that among the benefits of demonetisation if it evenly impacted all in the fray. Perhaps, the choice of chief minister after the win is a pointer to what issues really mattered at the polls. Perhaps, demonetisation was an electoral side-issue — a reflection of the disconnect between commentators in the cities and the realities on the ground.
None of this can dilute the need for a clear-headed empirical approach to policymaking, with costs and benefits being weighed and a cogent case for a policy intervention being necessary. In the US and the UK, policy thinking is currently on the lines of having to remove more than one past regulatory measure if a new regulatory measure is sought to be introduced. Akin to “carbon offsets” where reduction in emissions of carbon dioxide or greenhouse gases in one process is necessary to enable initiating new emissions elsewhere, regulatory offsets are part of current policy-thinking in other parts of the world. Computing of costs and benefits to show that costs that would get imposed by a proposed regulatory measure is not only counterbalanced by the benefits from that measure but are also compensated for by the removal of costs imposed under past regulatory measures, is a controversial but integral part of governance.
Brushing all policy arguments about demonetisation aside with a people-have-spoken argument is a reminder of Nani Palkhivala’s favourite quip about how majority decisions need not be the right decisions. His favourite examples: Christ’s crucifixion, and of course, the quality of elected governments during most of his lifetime.
This column was published Without Contempt in the March 23, 2017 edition of Business Standard at: http://www.business-standard.com/article/opinion/don-t-mistake-good-psephology-for-good-policy-117032201432_1.html
A new storm is brewing. After demonetisation, it is the backdoor enforcement of Aadhaar identification for children to qualify for midday meals. The move is threatening to take the shape of the next direct conflict between academic policy implementation and the practical problem of unintended consequences on the ground. Added to the mix is the evident violation of the Supreme Court’s orders that Aadhaar cannot be made a mandatory requirement for government welfare schemes.
While midday meals are the most emotive of the schemes to which the unique identification under Aadhaar has been made mandatory, this paper has reported that 14 similar notifications have been made under 11 schemes, including schemes involving access to primary and secondary education. Interestingly, the news was broken not in the “mainstream” print media but by online paper Scroll.in.
Effective July 1, 2017, a student without the Aadhaar ID would not be fed the midday meal given free in school. “Individuals desirous of availing the benefits under the (midday meal) scheme offered at the schools are required to furnish proof of possession of Aadhaar number or undergo Aadhaar authentication,” reads the gazette notification. “An individual desirous of availing the benefit under the scheme offered at the schools, who does not possess an Aadhaar number or has not yet enrolled for Aadhaar shall have to apply for Aadhaar enrolment by 30th June, 2017.”
This is a disastrous approach. Indeed, there will be arguments for it. Some of the usual ones are about leakage of government welfare — small doles to the poor somehow make bigger news that large-scale subsidies and tax concessions that get routinely abused. According to reports, at least 100.3 million elementary students from the first to eighth standards, studying in 1.15 million schools benefit from the midday meal scheme. The scheme also provides part-time employment to an estimated 2.53 million workers for implementation of the scheme.
Midday meals are provided to school children under the food security law, substantially using central government funds granted to state governments and then down to local municipal governments that run schools. The costs are shared broadly in a 60:40 ratio in most states and in the north-eastern states and in Himachal Pradesh, Uttarakhand and Jammu and Kashmir in a 90:10 ratio. Central government funding in the last Budget for this is a mere Rs 10,000 crore, with a marginal increase of Rs 300 crore since the last Budget. The idea of a midday meal is to ensure basic nutrition to schoolchildren since it is under-nourishment that essentially leads to lack of absorption of education in formative years.
There is no credible and rigorous evidence of any material leakage under the scheme. Every scheme, public or private, will be gamed to see if benefits can be wrongly extracted. If the response to any leakage, real or potential, material or immaterial, is to indulge in carpet-bombing by threatening the very scheme, we will soon have another demonetisation-type problem on our hands. Crooks will find a way to get around the solution and many genuine and sincere beneficiaries could be put to avoidable hardship — akin to burning down a house to kill a few insects that have entered it. Also, akin to US President Donald Trump’s ban on entries from seven Islamic nations, which would have kept even US nationals and residents out of the US if they happened to be outside the country when the ban was sought to be imposed.
Worse, the Supreme Court has clearly prohibited the mandatory usage of the Aadhaar for government incentives except for specific schemes that the court permitted. In short, in this case, there is already a restraining order from the judiciary on such usage of Aadhaar. Yet, the government has brazened it out. The ball will now be literally in the Supreme Court. Last heard, lawyers appearing in the challenge to such use of Aadhaar have been pushing for an early hearing of the privacy concerns arising out of the Aadhaar implementation and the court has been struggling with bench strength issues to constitute a bench to hear the matter. However, the introduction of new mandatory requirements to quote Aadhaar could lead to contempt proceedings, too.
Indeed, there could emerge problems with implementing the midday meal schemes. For example, as some experts point out, corruption in the scheme may have nothing to do with fake children being shown to siphon out money. In fact, the leakage would be in terms of substandard food being given, or companies that make and sell pre-packed and processed food seeking to get their products approved as substitutes for midday meals (there have already been reported attempts of the government nearly approving biscuits in place of midday meals). Insisting on Aadhaar can never fix such leakages and corruption. Therefore, before doing something drastic such as asking children to go hungry if they do not have an Aadhaar card, there has to be an empirical basis to demonstrate that the proposed solution is necessary for a clearly-perceived and real problem. Without a problem statement being defined, enforcing a good-to-have-and-feel-good “solution” would come quite close to declaring that 85 per cent of live currency stock would cease to be legal tender.
This column was published Without Contempt in the March 9, 2017 edition of Business Standard.