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Type: Op-ed

  • Whither tribunal independence?

    Context

    The reframed Tribunal rules are in contempt of several Constitution Bench decisions of the Supreme Court.

    What the SC said in Rojer Mathew case

    • Rules being unconstitutional: In November 2019, a Constitution Bench of the Supreme Court, in Rojer Mathew, declared the Tribunal, Appellate Tribunal and other Authorities (Qualification, Experience and other Conditions of Service of Members) Rules, 2017 as unconstitutional.
      • Why it was declared unconstitutional? It was declared unconstitutional for being violative of principles of independence of the judiciary and contrary to earlier decisions of the Supreme Court in the Madras Bar Association 
    • Direction to the Central government: In Rojer Mathew, there was also a direction to the Central government to reformulate the rules strictly in accordance with principles delineated by the Court in its earlier decisions.
      • The reframed rules, notified by the Ministry of Finance, however, suffer from the same vices.

    What were the issues in the Finance Act, 2017

    • What was prescribed in the Finance Act, 2017: The Finance Act, 2017, around 26 Central statutes were amended.
      • Excessive rule-making powers to the Centre government: The power to prescribe eligibility criteria, selection process, removal, salaries, tenure and other service conditions pertaining to various members of 19 tribunals were sub-delegated to the rule-making powers of the Central government.
    • Attempt to keep the judiciary away: Describing the search-cum-selection-committee as an attempt to keep the judiciary away from the process of selection and appointment of members, vice-chairman and chairman of tribunals.
      • Executive litigant in most cases: The Court held that the executive is a litigating party in most of the litigation and hence cannot be allowed to be a dominant participant in tribunal appointments.
      • Selection committee issue: Barring the National Company Law Appellate Tribunal (NCLAT), the selection committee for all other tribunals was made up either entirely from personnel within or nominated by the Central government or comprised a majority of personnel from the Central government.
      • While the selection committee for NCLAT consisted of two judges and two secretaries to the Government of India, all other committees comprised only one judge and three secretaries to the Government of India. Now, in the 2020 rules, by default, all committees consist of a judge, the president/chairman/chairperson of the tribunal concerned and two secretaries to the Government of India
    • 3 years tenure injurious to the efficiency: Reiterating its previous decision in Madras Bar Association (2010), the Court held that the tenure of three years for members will “preclude cultivation of adjudicatory experience and is thus injurious to the efficiency of the Tribunals”.

     An equal say for the judiciary

    • 2 Judges in 4 member committee: The common thread in the Madras Bar Association series and Rojer Mathew decisions is that judiciary must have an equal say in the appointment of members of the tribunals.
      • To deny the executive an upper hand in appointing members to tribunals, the court ordered to have two judges of the Supreme Court to be a part of the four-member selection committee.
      • In Madras Bar Association(2010), held that the selection committee should comprise the Chief Justice of India or his nominee (chairperson, with a casting vote), a senior judge of the Supreme Court or Chief Justice of the High Court, and secretaries in the Ministry of Finance and Ministry of Law and Justice respectively.
    • Decision applicable to all tribunals: Subsequent Constitution Bench decisions in Madras Bar Association (2014), Rojer Mathew and the decision of the Madras High Court in Shamnad Basheer have repeatedly held that the principles of the Madras Bar Association (2010) are applicable to the selection process and constitution of all tribunals in India.
    • What are the provisions dealing with appointment in 2020 rules? Under the 2020 rules, the inclusion of the president/ chairman/chairperson of the tribunal as a member in the selection committee is in the teeth of previous decisions of the Supreme Court.
      • Non-judicial member can become a chairman: For instance, now, in the Income Tax Appellate Tribunal (ITAT), Customs Excise and Service Tax Appellate Tribunal (CESTAT), Central Administrative Tribunal (CAT), Debt Recovery Appellate Tribunal (DRAT), etc. a non-judicial member can become the president/chairman/chairperson, as the case may be.
      • Therefore, when a non-judicial member becomes a member in the selection committee, the Supreme Court judge will be in minority, giving primacy to the executive, which is impermissible.
    • Only judges and advocates can be judicial members: In Madras Bar Association (2010), the Court explicitly held that only judges and advocates can be considered for appointment as a judicial member of the tribunal and that persons from the Indian Legal Service cannot be considered for appointment as judicial member.
      • Recently, in Revenue Bar Association (2019), the Madras High Court declared Section 110(1)(b)(iii) of the CGST Act, 2017 as unconstitutional for allowing members of Indian Legal Service to be judicial members in GSTAT.

    Violation of the SC directives

    • What the SC said on tenure: Based on Madras Bar Association (2010), in Rojer Mathew, the Court held that the term of three years is too short, and by the time members achieve a refined knowledge, expertise and efficiency, one term will be over.
      • What are the provisions in 2020 rules? In the 2020 rules, the tenure of members has been increased from three years to four years, thereby blatantly violating the directions of the Supreme Court.
    • Since the Madras Bar Association (2010), the government has repeatedly violated the directions of the Supreme Court.
      • One by one, the traditional courts, including the High Courts, have been divested of their jurisdictions and several tribunals have been set up.

    Conclusion

    The 2020 rules are, thus, in contempt of several Constitution Bench decisions of the Supreme Court. Unless the Court comes down heavily on the Central government, we will see these encroachments over and over again.

     

  • Tracking the big three

    Context

    The article focuses on the top three Sustainable Development Goals (SDGs) of the United Nations, namely poverty elimination, zero hunger, and good health and well-being by 2030.

    India’s record on extreme poverty, hunger and health

    • Decline in extreme poverty: The World Bank’s estimates of extreme poverty- measured as $1.9/per capita/per day at purchasing power parity of 2011- show a secular decline in India from 45.9 per cent to 13.4 per cent between 1993 and 2015.
    • Elimination of extreme poverty 2030: If the overall growth process continues as has been the case since, say, 2000 onwards, India may succeed in eliminating extreme poverty by 2030, if not earlier.
    • Zero hunger by 2030: Given the overflowing stock of food grains with the government, and a National Food Security Act (NFSA) that subsidises grains to the tune of more than 90 per cent of its cost to 67 per cent of the population, there is no reason to believe that India can also not attain the goal of zero hunger before 2030.
    • Health- a real challenge: The real challenge for India, is to achieve the third goal of good health and well-being by 2030. India’s performance in this regard, so far, has not been satisfactory. as per the National Family Health Survey (NFHS 2015-16)-
      • In 2015-16, almost 38.4 per cent of India’s children under the age of five years were stunted.
      • 8 per cent were underweight.
      • 21 per cent suffered from wasting (low weight for height).
      • The situation in some states like Bihar, Jharkhand and Uttar Pradesh is even worse.
    • Global Hunger Index ranking of India: No wonder, the Global Hunger Index (GHI) ranks India at 102 out of 117 countries in terms of the severity of hunger in 2019.

    What are the various targets set on the nutrition problem?

    • Target on reducing the problems of underweight children: The National Nutrition Strategy, 2017, aims to reduce the prevalence of underweight children (0-3 years) by three percentage points every year by 2022 from NFHS 2015-16 estimates.
      • Why this is an ambitious target? This is an ambitious target given the decadal decline in underweight children from 42.5 per cent in 2005-06 to 35.8 per cent in 2015-16 amounts to less than 1 per cent decline per year.
    • Targets set in National Nutrition Mission: Similar targets have been set by the National Nutrition Mission (renamed as POSHAN Abhiyaan), 2017.
      • To reduce stunting by 2 per cent.
      • Under-nutrition by 2 per cent.
      • Anaemia (among young children, women and adolescent girls) by 3 per cent.
      • Low birth weight by 2 per cent.

    Four areas India needs to focus to achieve the set targets

    • India has to focus on four key areas:  If India has to make a significant dent on malnutrition by 2030.
    • First- Mother’s education.
      • Multiplier effect: It is one of the most important factors that have a positive multiplier effect on child care and access to healthcare facilities.
      • Increases awareness: It also increases awareness about the nutrient-rich diet, personal hygiene, etc. This can also help contain the family size in poor, malnourished families.
      • Thus, a high priority to female literacy, in a mission mode through liberal scholarships for the girl child, would go a long way towards tackling this problem.
    • Second- Access to improved sanitation and safe drinking water.
      • The Swachh Bharat Abhiyan and Jal Jeevan Mission would have positive outcomes in the coming years.
    • Third-shift in dietary pattern
      • Shift from cereals to more nutritious food: There is a need to shift dietary patterns from cereal dominance to the consumption of nutritious foods such as livestock products, fruits and vegetables, pulses, etc.
      • But they are generally costly and their consumption increases only by higher incomes and better education.
      • Diverting the food subsidy to nutritious foods: Diverting a part of the food subsidy on wheat and rice to more nutritious foods can help.
    • Fourth- Adoption of new agricultural technology
      • Adopt bio-fortifying cereals: India must adopt new agricultural technologies of bio-fortifying cereals, such as zinc-rich rice, wheat, iron-rich pearl millet, and so on.
      • The Indian Council of Agricultural Research (ICAR) has to work closely with the Harvest Plus programme of the Consultative Group of International Agricultural Research (CGIAR) to make it a win-win situation for curtailing malnutrition in Indian children at a much faster pace — and, at a much lower cost than would be achieved under a business as usual scenario.

    Examples from the world

    • Right public policies make the difference: Global experience shows that with the right public policies focusing on agriculture, improved sanitation, and women’s education, one can have much better health and well-being for its citizens, especially children.
    • China’s example: In China, it was agriculture and economic growth that significantly reduced the rates of stunting and wasting among the population and lifted millions of people out of hunger, poverty and malnutrition.
    • Brazil and Ethiopia example: According to FAO, Brazil and Ethiopia have transformed their food systems: They have targeted their investments in agricultural R&D and social protection programmes to reduce hunger in the country.

    Conclusion

    Despite India’s improvement in child nutrition rates since 2005-06, it is way behind the progress experienced by China and many other countries. According to the Global Nutrition Report, 2016, at the present rates of decline, India will achieve the current stunting rates of China by 2055. India can certainly do better, but only if it focuses on this issue.

  • Regional bonding: On Ranil Wickremesinghe’s prescription for peace

    Context

    Former Sri Lankan Prime Minister Ranil Wickremesinghe’s push for regional economic integration and for India-Pakistan dialogue should be studied carefully by New Delhi.

    What are the issues with SAARC?

    • Recent moves by India: India has more or less shut down all conversations on the South Asian Association for Regional Cooperation (SAARC).
      • India also walked away from the ASEAN-led Regional Comprehensive Economic Partnership (RCEP).
    •  Mr Wickremesinghe set out a number of suggestions:
    • The original purpose of SAARC-Regional growth: India-Pakistan tensions have brought economic integration within the SAARC region to a “standstill”.
      • That the original purpose of the South Asian group was to build a platform where bilateral issues could be set aside in the interest of regional growth.
    • Start at the sub-grouping levels: To engender more intra-regional trade, an even smaller sub-grouping of four countries with complementary economies: India, Sri Lanka, Bangladesh and Thailand, can start the process of reducing tariffs and demolishing non-tariff barrier regimes.
      • When it comes to the intra-regional share of total trade, SAARC and BIMSTEC languish behind groupings such as ASEAN, EU and MERCOSUR.
    • Economic Integration Road Map: The Sri Lankan leader also suggested that with India’s leadership, a more integrated South Asian region would be better equipped to negotiate for better terms with RCEP so as not to be cut out of the “productivity network” in Asia, and envisioned an Economic Integration Road Map to speed up the process.

    Governments stand

    • Talks with Pakistan off the table: The government has made it clear that talks with Pakistan are strictly off the table, and that a SAARC summit, which has not been held since 2014, is unlikely to be convened anytime soon.
    • More reliance on bilateral deals: The government, which has taken a protectionist turn on multilateral trade pacts, is relying more on direct bilateral deals with countries rather than overarching ones that might expose Indian markets to flooding by Chinese goods.
    • India’s trade deficit with the neighbours: For any regional sub-grouping in South Asia to flourish, it is India that will have to make the most concessions given the vast trade deficits India’s neighbours have at present, which it may not wish to do.

    Conclusion

    • The overall projection that India’s global reach will be severely constrained unless it is integrated with its neighbours, and tensions with Pakistan are resolved, cannot be refuted. India needs to be more accommodative for the realisation of its ambitions.

     

     

  • One country, two viruses

    Context

    China’s handling of coronavirus, in contrast to SARS, has been effective, should be a template for others.

    Why lockdown of Wuhan is a big deal?

    • A move without precedent: China’s lockdown of roughly 60 million people in Wuhan and other cities in Hubei province for more than a month now is without precedent in the history of public health.
    • Best way to stop the virus from spreading: The best way to stop a virus from spreading from person to person, is to give it no place to spread to.
      • This is achieved by isolating those who are infected and quarantining those who might be infected.
    • Cordon sanitaire: In China, though, the control has moved beyond traditional quarantine to a cordon sanitaire-an exclusion zone people cannot travel into or get out of.
      • In most countries, this simply would not work for a period this long and a population that large.
    • Inconceivable move in other places: Wuhan is a city of 11 million people, slightly larger than Chennai or Bengaluru. It would be inconceivable to think of cutting off transportation in and out of these cities or asking people to stay at home for even a day, let alone a month.
      • No political control nor administrative mechanism: Like India, most countries in the world have neither the political control to impose their will on people this way nor the administrative mechanism to enforce this degree of control.

    Human cost and ethic of the lockdown

    • The human cost: The human cost of such a strategy is immense.
      • Feeling of being unable to escape: The fear induced by being unable to escape from a place where a new virus is circulating is immense.
      • The worries and stresses of everyday life multiply one hundred-fold when everything from shopping for food to occupying children stuck at home becomes a challenge.
      • The slightest cough, cold or fever can trigger panic.
    • Ethics involved in the move: The ethics of the cordon sanitaire in Wuhan, as well as the quarantining by Japanese authorities of the cruise ship Diamond Princess, will be debated for years after this particular outbreak is over.
    • Slowing the spread: But whatever its human and financial cost, China’s actions in the first month of the outbreak helped to slow the spread of the virus within the country as well as internationally.

    How China’s response this time is different from the SARS

    • On December 31, the Chinese government informed the WHO, and the world, of the existence of a form of pneumonia of unknown cause
      • It also told the people of Wuhan to wear masks if they had symptoms and seek medical attention.
    • Virus identification: For the world, the big breakthrough from China came on January 7, when researchers in Wuhan identified the virus as a new coronavirus.
    • Sharing of the genetic sequence of the virus: Two days later, China shared its genetic sequence with the world.
      • How genetic sequence helped? The sharing of the genetic sequence allowed labs all over the world to develop testing kits to detect the disease.
      • It also put countries on the alert for travellers with the disease, without which the new coronavirus would have spread much quicker and farther than it has so far.
    • China’s response to SARS: The Chinese response to SARS in 2003, in contrast to this, was a cover-up.
      • The disease circulated for nearly three months, enabled by government secrecy and censorship.
      • Spread of disease without warning: When travellers from China brought the disease first to Hong Kong and from there to other cities across the globe, there was no warning.
      • It was only after the disease spread in Hong Kong, that scientists and public health experts began to decipher this new virus.
      • Lessons learned: China, fortunately, learned the lessons for SARS and put together systems to identify and respond to this new disease quickly.

    What India can learn from China

    • Infrastructure with speed: Public health officials all over the world, including in India, should study the speed with which China put together an infrastructure to deal with this new disease.
      • Modern, well-equipped hospitals dedicated to coronavirus patients were constructed in weeks.
    • Centralised information and logistic system: Centralised information and logistics systems and systems to ensure coordination between multiple levels of government -from the central government to provincial and municipal governments, were put into place.
      • All the systems seem to have worked reasonably smoothly, given the chaotic and complex atmosphere of a disease outbreak.
    • Unique approach: The way China has tackled this disease has been an “all of government, all of the society approach”, in the words of Bruce Aylward, the leader of the WHO team that recently spent two weeks in the country.
      • It was, as he described it, “a very old-fashioned approach”, but one that had “prevented at least tens of thousands, but probably hundreds of thousands of cases.”

    Conclusion

    • In all probability, it is only a matter of time before India sees new cases. The Indian health system, as in China, is multi-layered. Some states like Kerala have strong public health infrastructure and a strong response capability. Many other states like Uttar Pradesh and Bihar do not have strong public health systems. They will find it difficult to respond and will learn that diseases, like the revolution, can be brutal.

  • No gains for taxpayers

    Context

    Loss expected from lower tax rates may be countered by gains from the settlement of cases, higher dividend taxes on top incomes, and the wider scope for taxing international incomes.

    Simplification and providing ease to the taxpayers

    • Fiscal constraints leaving no room for a lower rate: Ahead of The Union budget, taxpayers had anticipated a wide range of measures that they hoped would stoke demand.
      • These ranged from lower tax rates to a more even tax structure on income from various sources.
      • As the former was less feasible given the fiscal constraints, the budget proposals focused on simplification and providing ease to the taxpayer.
    • Simplification in personal tax: The recalibration of personal income tax slabs was suggested as a step towards simplification.
      • However, its uptake is contingent on the preference for new slabs.
      • Who will not opt for a new slab? Switching over to the new slab rates is not beneficial to-
      • An individual currently claiming full exemptions.
      • An individual with incomes comprising largely of capital gains.
      • It is possible, however, that individuals do not claim such exemptions or deductions.
    • How switching to new slab impact revenue? An analysis of data published by the Central Board of Direct Taxes suggests that for the assessment year 2018-19, it suggest improvement in the collection.
      • 1% improvement: If individuals do switch over to the new regime, it may translate to a 1 per cent improvement in tax collections, rather than a loss.
    • Limited takers of the new slab: It can be inferred that this option may be exercised by few individuals, if at all, since the potential gains from foregoing exemptions and the intended simplification is expected to be limited.

    Tax disputes

    • The new scheme proposed: A common concern among taxpayers is protracted disputes. To reduce litigation, a new scheme has been proposed.
    • Importance of precedence in disputes: 39 per cent of the cases made a reference to a similar case in the previous year. This underscores the importance of precedence.
    • In such cases, the settlement is not a superior option as the waiver of the penalty and interest does not offer any advantage against a decision that would impact future assessment.
    • Success rates of disputes: The success rate of the tax department is 27 per cent at the Income Tax Appellate Tribunal (ITAT) and the Supreme Court and 12 per cent in appeals filed in high courts.
      • Given the odds of success, an assessee may thus be tempted to pursue litigation.
    • Incentivising the settlement: Taxpayers may choose to settle for the waiver of interest and penalty in cases where it is one time and does not set a precedent for future transactions.

    Dividend Distribution Tax (DDT)

    • What is DDT?  It is one of the significant change is in the taxation of dividends.
      • The dividend distribution tax is a unique levy on distributed profits and is payable by the distributing company.
      • What is the shortcoming in DDT? The shortcoming of such tax is that foreign investors can’t claim the credit.
      • Additional 10 % of DDT: In an effort to make the tax progressive, an additional dividend tax of 10 per cent was introduced for domestic investors receiving dividend in excess of Rs 10 lakh.
    • Dividend pay-out decreased after DDT: Changes in DDT were accompanied by a decline in dividend pay-out – the proportion of profits paid as dividends declined from 30 per cent in early 2000s to 22 per cent in 2019 (BSE 500 companies).
      • Chance of improvement in pay-outs: It is expected that the reversion to the classical system may improve dividends pay-outs.
      • However, this will benefit individual taxpayers with incomes below Rs 5 lakh as the slab rate applicable is less than the existing rate.

    Taxing cross-border income

    • In the international arena, India is determined to tax cross-border incomes.
    • Taxing digital companies: The addition of explanation 3A to the Income Tax Act reinforces India’s commitment to taxing digital companies.
    • What comprises the business with nexus to India: The proposed amendment clarifies that incomes related to the advertisement, sale of data of a person residing in India and sale of goods and services based on the data of a person residing in India, may be attributed to a business with nexus in India.
    • Taxing citizen not taxable anywhere: To tax Indian citizens that are not taxable in any other jurisdiction, the Act will now deem such individuals as resident taxable in India.
      • While the application of the law may be challenged giving rise to disputes, it is a step forward.

    The proposal of Citizen’s charter

    • Charter on rights and obligations: The finance minister also referred to introducing a citizen’s charter that incorporates taxpayer’s rights and obligations.
      • Limits of charters: International experience shows that charters have limited enforceability unless adopted in primary legislation.
    • Supporting charters with legislation: Introducing charter to the statutes may, therefore, prove to be a positive initiative.
      • Faith can be built through enforcement of the charter.
      • However, the penal provisions must be well-thought-out so as to avoid adding another contentious element.

    Conclusion

    • Lack of uniformity: The budget proposals aimed to provide simplicity, yet much remains to be done, given the lack of uniformity in the taxation of incomes such as capital gains.
    • Limited revenue implications: The success of schemes proposed is contingent on the traction they gain. As for the revenue implications, the impact of these measures may, in fact, be limited.
    • Countering loss through gains from settlements: Loss expected from lower tax rates may be countered by gains from the settlement of cases, higher dividend taxes on top incomes, and the wider scope for taxing international incomes.

  • Aadhaar, no standout performer in welfare delivery

    Context

    Aadhaar-based biometric authentication did not reduce PDS leakages, finds Jharkhand-based empirical study

    What was the rationale behind Aadhaar?

    • What did the UIDAI’s report say? Aadhaar has curtailed leakages of government subsidies. Through Aadhaar, savings worth ₹90,000 crores have accrued to the government– UIDAI’s2017-18 annual report.
    • Plugging the leakages in the schemes: When Aadhaar was conceived a decade ago, the rationale postulated was: India spends nearly three trillion rupees a year across several core welfare programmes such as Public Distribution System (PDS), LPG, Mahatma Gandhi National Rural Employment Guarantee Act etc.
      • Huge leakage due to duplications: Roughly 30-40% of this three trillion is lost in leakages.
      • Leakages are largely due to ‘ghost’ and ‘duplicate’ beneficiaries using fake identities to avail these benefits; a unique identity biometric scheme can eliminate these leakages and vastly improve efficiency in welfare delivery.
    • Improve welfare delivery efficiency: In fact, the former Union Minister, Arun Jaitley, even renamed the Aadhaar Bill to ‘Targeted Delivery of Financial and other Subsidies, Benefits and Services’ Bill, making it amply clear that Aadhaar’s primary, if not sole purpose, was to improve welfare delivery efficiency.

    What are the findings of study?

    • How was the study carried out?
      • Use of RCT and sample of 15 million people: They conducted a scientifically designed study of the PDS system in Jharkhand covering 15 million beneficiaries using the technique of randomised control trials (RCT).
      • In the study, one set of beneficiaries went through the Aadhaar-based biometric authentication while the other group used the old system of procuring their ration.
    • The results were then compared to see if Aadhaar-based biometric authentication had any impact in reducing leakages.
    • What were the findings of the study?
    • No measurable benefit: The study concluded that Aadhaar-based biometric authentication had no measurable benefit.
      • No reduction in leakages: Aadhaar-based biometric authentication did not reduce leakages due to elimination of ghosts and duplicates, as widely perceived.
    • Increase in transaction costs for beneficiary: On the other hand, they found that Aadhaar-based biometric authentication increased transaction costs for beneficiaries.
      • 17% extra cost: That is, to claim ration worth ₹40, beneficiaries in the Aadhaar system incurred an additional ₹7 of costs than those in the old system, because of multiple trips to authenticate themselves and the opportunity cost of time spent.
      • This is a whopping 17% extra cost burden of the value of the benefit they were entitled to receive.
    • Type 1 error of exclusion: To make matters worse, Aadhaar-based biometric authentication also introduced what empirical scientists call Type I error of exclusion.
      • Aadhaar authentication falsely rejected genuine PDS beneficiaries who were then denied their ration supplies.
      • The study finds that nearly 10% of legitimate beneficiaries were denied their ration either because they did not have their Aadhaar linked to their ration card or due to an exclusion error.
    • Summary of the finding: In summary, the study states that there was-
      • No direct impact of Aadhaar in reducing leakages.
      • 2. It denied ration to 10% of genuine beneficiaries and increased costs by 17% to those that were forced to get their ration using Aadhaar.
      • Pain with no gain: They conclude that Aadhaar authentication for PDS in Jharkhand caused “some pain with no gain”.

    What premises were wrong about Addhaar?

    • No testing of empirical belief: There was a widespread belief among the policy elite that ghosts and duplicates were the scourge of India’s welfare delivery and that Aadhaar would eliminate this.
      • But this belief was never empirically tested.
      • Based on this belief, an entire story was concocted about improving welfare efficiency by eliminating ghosts and duplicates with Aadhaar and a whole new law was enacted to this effect.
    • The pilot project not carried out: Many studies now establish that ghosts and duplicates are not the significant cause of leakages.
      • It would have been better to have undertaken a robust pilot project of scale to test the belief about ghosts and duplicates, before embarking on it nationwide.

    Conclusion

    In a sociologist’s world and in a liberal society, a policy that could run the risk of denying welfare to just a few people, putting their lives at risk, is not worth implementing regardless of how many millions it benefits.

     

     

     

     

  • Debating water quality

    Context

    The competitive politics of Delhi election has brought the issue of drinking water to centre stage.

    Controversy over BIS water status report

    • Politicising of the report: The controversy started with the release of the BIS report for 21 major Indian cities, in keeping with the objectives of the ‘Jal Jeevan Mission’.
      • The mission aims to provide safe piped water to all households by 2024.
      • The fact that drinking water in Delhi was ranked the most unsafe, as the samples failed in 19 out of 28 parameters, was challenged by the Government of Delhi and the Delhi Jal Board (DJB).
    • Compilation of information on the existing status: The study is scheduled to cover all districts in the country within a year. Supply of potable water obviously requires first compilation of information on the existing status
    • Water as an urgent concern: The fact that water should be treated as an urgent concern for public health and the ecosystem of the country cannot be denied.
    • Imperceptible threat: The threats to human health due to poor water quality, except when they appear as an epidemic, are largely imperceptible.
      • This generally subjects the population to subtle health problems without its knowledge or consent.

    Pollution and water crisis in India

    • Pollution contributing to water crisis: India is on the throes of a severe water crisis, not only because of a gradual reduction in per capita availability of water due to a rising population but also because of rising and unchecked pollution in the country’s rivers and water bodies.
      • It is a fact which is mostly overlooked in the deliberations on water resources management.
    • Only 30% sewage treatment capacity in major cities: As per published estimates of the Central Pollution Control Board, the country has a treatment capacity of only about 30% of sewage generated in the major cities.
      • Not to talk of other urban and rural areas where the sewage finds its way to local water bodies or rivers without treatment.

    Impending water stress in the country

    • NITI Aayog report: A 2018 Report of the NITI Aayog has observed that currently, 600 million Indians face high to extreme water stress.
      • The report also states that about two lakh people die every year due to inadequate access to safe water.
    • Demand twice the supply by 2030: The crisis is only going to get worse.
      • By 2030, the country’s water demand is projected to be twice the available supply, implying severe water scarcity for hundreds of millions of people.
    • High methane in Yamuna water in Delhi: For the water coming from the Yamuna released from Haryana, the DJB has to often stop the supply for a few days if the concentration of methane goes up beyond a certain level.
      • This is because the tri-chloromethane that may be produced during the disinfection process is highly carcinogenic.
      • The effect may surface on human health not immediately but over a period of time.

    The capital’s high pollutant load and need for improvement in governance

    • Contributing 50% pollutant: Delhi, which constitutes less than 1% of the total catchment of the Yamuna, contributes more than 50% of total pollutant load in the river.
      • Delhi has 7,000 km of sewer line as on date, against a requirement of 24,000 km.
      • The 17 sewage treatment plants being operated by the DJB are able to take care of not more than 30% of sewage treatment.
    • There is no sewerage system at all for over 45% of the population in unauthorised and even regularised colonies and rural areas.
    • As of now, there are 18 major drains carrying sewage, garbage and industrial effluents into the Yamuna.
    • Solid waste dumping in Yamuna: It is not only the untreated sewage water and industrial effluents, but also the solid wastes and construction material discharged by individuals, companies and municipal bodies that have caused the suffocation of the Yamuna.
      • Also, floodplains have been encroached upon by settlements.
    • Challenge of supplying quality water: Ensuring the supply of quality drinking water is not only expensive, but it also needs improvement in governance.
      • It needs technical knowledge on measurement and regulation of water quality.
      • It is not the fault of the DJB or the Delhi government alone that they have not been able to ensure a 100% supply of quality water to the citizens of Delhi.
      • Given the constraints they face, especially those concerning the water resources management and laws in the country.

    Conclusion

    The Jal Jeevan Mission, even if it has not been so far structured, conceptualised and funded adequately, has begun the important work of gathering information on the scale and scope of the problem and making it available in an open and transparent manner. The best outcome is that the competitive politics of the Delhi election has ensured a political debate on water quality.

     

     

     

  • When a court pronounces a verdict, without giving reasons

    Context

    In a highly unusual move, a nine-judge Bench of the Supreme Court resorted to a non-speaking order as it ruled affirmatively on the preliminary issue arising out of the Sabarimala review petition.

    Departure from norms

    • The importance of a ‘reasoned decision’ in a constitutional democracy committed to the rule of law, is self-evident.
      • Its importance cannot be overstated and this curious departure from the norm merits close analysis.
    • Time and again, the Supreme Court has unequivocally endorsed and underlined the requirement of giving reasons in support of the order.
      • The SC has often chastised subordinate institutions for their failure to supplement their orders with reasons.

    Importance of ‘reasoned decision’

    • The juristic basis for the ‘reasoned decision’: The juristic basis for this has also been explored in a number of cases.
    • In various decisions, the court has ruled that speaking orders promote-
      • Judicial accountability and transparency.
      • Inspire public confidence in the administration of justice; and
      • Introduce clarity and minimise the chances of arbitrariness.
    • Quotes from various judgements: In addition to being a “healthy discipline for all those who exercise power over others”, recording of reasons has been described by the Supreme Court as the “heartbeat of every conclusion”; the “life blood of judicial decision making”; and a cherished principle of “natural justice”.
    • The Madhya Pradesh Industries Ltd case: In this case Justice Subba Rao K. stated:
      • “The condition to give reasons introduces clarity and excludes or at any rate minimises arbitrariness;”
      • “… it gives satisfaction to the party against whom the order is made; and it also enables an appellate or supervisory court to keep the tribunals within bound… Speaking order will at its best be reasonable and at its worst be at least a plausible one.”

    Devaluation by the SC and implications

    • Implicit rules: The need for a court to provide an intellectual substrate for its decisions is also implicit in the expression “pronounce judgment” in Supreme Court Rules, 2013.
      • According to settled decisions, the same signifies “judicial determination by reasoned order”.
    • However, when it came to applying the principle to its own verdict, the apex court has inadvertently devalued the importance of concurrent reporting of reasons.
      • The court seems to have downplayed the fact that it may be coming across as inarticulate at best and indecisive at worst.
    • Undermining integrity: Besides undermining institutional integrity, a decision’s authority as a binding precedent is also potentially compromised by this omission.

    Culture of justification

    • The term “transformative constitutionalism” has recently found currency in constitutional adjudication (Navtej Joharand Joseph Shine).
      • The Supreme Court is yet to articulate a comprehensive theory of the concept but it has been fleshed out in other jurisdictions.
    • From authority to justification: For example, Pius Langa, former Chief Justice of the Constitutional Court of South Africa, argued that “transformative constitutionalism” entails a transformation of legal culture from one “based on authority” to the one “based on justification”.
    • Karl Klare (the scholar who coined the term) posited that it may be legitimately expected of constitutional adjudication to “innovate and model intellectual and institutional practices appropriate to a culture of justification”.

    Conclusion

    In light of the above, it can be concluded that the practice of issuing non-speaking orders and giving post-hoc rationalisations later is an anathema to the principle of constitutional governance. Duty to give reasons is an incident of the judicial process and constitutional justice should not be a matter of afterthought.

     

     

     

  • More psychological than an empowering voter option

    Context

    The recently-concluded Delhi Assembly elections were the 45th Assembly polls since the inception of the none of the above (NOTA) option in 2013. And Delhi, although mostly urban, is widely regarded as the microcosm of India.

    NOTA in Delhi

    • Delhi’s preference to NOTA is less than the national average.
    • From 0.63% in 2013, Delhi polled 0.39% of those favouring NOTA in 2015, a statistically significant reduction indeed.
      • It now increased to 46% in 2020; again statistically significant.
    • While 96% of the constituencies had a reduced percentage of NOTA votes in 2015 than 2013, the NOTA percentage has increased in 71% constituencies this year.
    • In the Lok Sabha elections, Delhi polled 0.47% and 0.52% of those favouring NOTA, in 2014 and 2019, respectively.
    • Takeaway: Roughly one in 200 voters of Delhi opted for NOTA in the last six to seven years, with relatively larger support for NOTA in reserved constituencies.

    Gujarat and Maharashtra examples

    • Interestingly, in the 2017 Gujarat Assembly elections, despite being 1.8%, NOTA got more votes than any political party other than the Indian National Congress and the Bharatiya Janata Party (except the Independents).
    • Again, in the 2019 Maharashtra Assembly election, NOTA became a runner-up in two constituencies – Latur (Rural) and Palus-Kadegaon.
    • Do these cases mark any significant shift in the voter mindset?

    Essence and scope of NOTA

    • Not a right to reject: In 2013, India became the 14th country to institute negative voting through NOTA.
      • However, it is not a “right to reject”.
    • Toothless option: NOTA in India is a toothless option.
      • Former Chief Election Commissioner of India S.Y. Quraishi, had observed in an article: “Even if there are 99 NOTA votes out of a total of 100, and candidate X gets just one vote, X is the winner, having obtained the only valid vote. The rest will be treated as invalid or ‘no votes’.”
    • Not right to select: NOTA enfeebles the electorate as it does not empower to “select” either.
    • Democratic means to express resentment: Certainly NOTA provides democratic means to express resentment anonymously rather than boycotting the polls outright.
      • A group of women activists in Kerala out on the road urging people not to elect any candidate if no woman was present in the fray.
      • A youth group in Tamil Nadu that campaigned for NOTA as a protest vote against corruption.
    • Pleas to extend the scope of NOTA: There have been pleas to extend the scope of NOTA.
      • Recommendation of re-elections: In 2018, a former CEC, T.S. Krishnamurthy, has recommended holding elections again in those constituencies where the victory margin is less than the total numbers of NOTA.
      • Right to reject in place of NOTA: A PIL has been filed in Madras High Court seeking the full right to reject in place of NOTA.

    Cases of extending the scope of NOTA

    • Maharashtra SEC order: In June 2018, the Maharashtra State Election Commission (SEC) issued an order that said:
      • “If it is noticed while counting that NOTA has received the highest number of valid votes, the said election for that particular seat shall be countermanded and a fresh election shall be held for such a post.”
    • NOTA as a fictional candidate in Haryana: In November 2018, the SEC of Haryana went a step further and issued an order where NOTA is treated like a “fictional candidate” in municipal polls from December 2018.
      • If NOTA gets the maximum vote, none of the “real” candidates will be declared elected, and the elections will be cancelled and held afresh.
      • What is more, the candidates securing votes less than NOTA would be barred from contesting in that re-election.
    • Example from Indonesia: Interestingly, in Makassar, Indonesia, the only candidate in the 2018 election for mayor received 35,000 less votes than NOTA, which forced a repeat election in 2020.

    The optimism expressed by the Supreme Court on NOTA

    • The SC’s anticipation: While introducing NOTA, the Supreme Court anticipated that “there will be a systemic change and the political parties will be forced to accept the will of the people and field candidates who are known for their integrity.”
      • Thus, its percentage should either increase to enforce the political parties to field candidates with “integrity”.
      • Or NOTA percentage should consistently decrease if the electorates feel that the system has achieved the desired level of cleansing.
    • No increase or decrease in NOTA votes: In contrast, the share of NOTA votes in India remained around a meagre level of 1% on an average; 1.11% in the 2014 Lok Sabha, and 1.08% in 2019, if we consider constituency-wise averages.
    • What this represents? This perhaps represents a confused state of mind of the electorate. Has the perceived cynicism of Indian voters regarding the right to reject been exaggerated?

    Would NOTB- None of The Below more advantageous?

    • Last option disadvantage? Is NOTA, as the last button of all EVMs in the country, a psychological issue as far as the electorates are concerned?
    • First position on ballot advantage: A 2004 article in The Journal of Politics, have discussed the possible advantage of the first position in the ballot, at least in the U.S. context.
    • NOTB instead of NOTA: Although there is no such concrete study to gauge the Indian voter’s mindset, one wonders whether using NOTB (‘none of the below’) instead of NOTA- with such an option as the first on the electronic voting machine — might produce a significantly different outcome or not.
      • An experiment, after changing the rule suitably, can be attempted, at least.

    Conclusion

    Extending the scope of NOTA by empowering it with the right to reject along with other changes like placing NOTA at the top of EVM would help in making the election process clean and fair.

     

     

     

     

  • Rights, duties and the Constitution

    Context

    At an International Judicial Conference 2020 this weekend, the Chief Justice of India, S.A. Bobde, drew attention to the Constitution’s Fundamental Duties chapter.

    The logic of duties

    • Wide range of duties: The first thing to note is that as citizens, there exists a wide range of duties that bind us in everyday life.
      • Duties towards the state and individual: These duties are owed both to the state and to other individuals.
    • Legal duties: We have a legal duty to pay our taxes, to refrain from committing violence against our fellow-citizens, and to follow other laws that Parliament has enacted.
      • Breach of these legal duties triggers financial consequences (fines), or even time in jail.
    • Following the duties is price for living in the society: At any given time, therefore, we are already following a host of duties, which guide and constrain how we may behave.
      • This is the price that must be paid for living in society, and it is a price that nobody, at least, in principle, objects to paying.
    • Self-contained whole: Our duties and the consequences we bear for failing to keep them, therefore, exist as a self-contained whole.
      • Co-existence and sacrifice: The peaceful co-existence requires a degree of self-sacrifice, and that if necessary, this must be enforced through the set of sanctions.

    The logic of rights

    • Understanding the logic through history: Rights, on the other hand, follow a different logic entirely. This is a logic that is best understood through history.
      • Two concerns: At the time of the framing of the Indian Constitution and its chapter on Fundamental Rights, there were two important concerns animating the Constituent Assembly.
      • Treatment as subjects: The first was that under the colonial regime, Indians had been treated as subjects.
      • Their interests did not count, their voices were unheard, and in some cases — for example, the “Criminal Tribes”- they were treated as less than human.
      • Holocaust example: Apart from the long and brutal history of colonialism, the framers also had before them the recent example of the Holocaust, where the dignity of more than six million people had been stripped before their eventual genocide.
    • The first role of fundamental rights chapter: To stand as a bulwark against dehumanisation.
      • Dignity and equality guaranteed: Every human being no matter who they were or what they did had a claim to basic dignity and equality that no state could take away, no matter what the provocation.
      • Unconditional right: One did not have to successfully perform any duty, or meet a threshold of worthiness, to qualify as a rights bearer. It was simply what it meant to be human.
    • Second role of the fundamental rights: To stand against the hierarchy.
      • Removing the subordination and degradation: The axes of gender, caste and religion had all served to keep masses of individuals in permanent conditions of subordination and degradation.
      • Equalising and democratising: Through guarantees against-
      • Forced labour.
      • Against “untouchability”.
      • Against discriminatory access to public spaces, and others.
      • Fundamental rights were meant to play an equalising and democratising role throughout society, and to protect individuals against the depredations visited on them by their fellow human beings.
    • Significance of the above two roles
      • Transformative purpose: The twin principles of anti-dehumanisation and anti-hierarchy reveal the transformative purpose of the fundamental rights chapter.
      • The recognition that true democracy could not exist without ensuring that at a basic level, the dignity and equality of individuals were protected, both from the state as well as from social majorities.
      • Rise from subject to citizen: It was only with these guarantees could an individual rise from the status of subject to that of the citizen.
      • And, as should be clear by now, it was only after that transformation had been wrought, that the question of duties could even arise.
    • Importance of the language of the duty:
      • The language of duties can play an important role in a society that continues to be divided and unequal.
      • In such a society, those who possess or benefit from entrenched structural and institutional power (starting with the state, and going downwards) certainly have a “duty” not to use that power to the detriment of those upon whom they wield it.
      • That is precisely what the guarantees against “untouchability”, forced labour, and discriminatory access in the Constitution seek to accomplish.

    Issue of conflating duties and rights

    • The problem lies in the conflation of rights and duties.
    • In that context, it is always critical to remember Dr B.R. Ambedkar’s words in the Constituent Assembly (which were also cited by the CJI in his speech): that the fundamental unit of the Constitution remains the individual.
    • If the position of the individual and the Constitution’s commitment to combating hierarchy is kept in mind, then the language of duties can be understood in its proper context.
    • Chances of duties leading to unpleasant consequences: Without the moral compass of rights and their place in the transformative Constitutional scheme the language of duties can lead to unpleasant consequences.
      • It can end up entrenching existing power structures by placing the burden of “duties” upon those that are already vulnerable and marginalised.
    • The constitution is about rights: It is for this reason that, at the end of the day, the Constitution, a charter of liberation, is fundamentally about rights.

    Conclusion

    It is only after guarantee to all the full sum of humanity, dignity, equality, and freedom promised by the Constitution, that we can ask of them to do their duty. Perhaps, then, it is time to update Hind Swaraj for the constitutional age: “real duties are the result of the fulfilment of rights”.