KYC entered the life of the Indian banking customer in 2002. Till then “know your customer” meant the intimate and friendly relationship the local bank branch manager had with the depositor. Not anymore. As India adopts impersonal modern habits of arm’s length, faceless transactions, banks are no longer the place where the retired person drops in for a mid-morning chat and cup of tea with the manager. The new normal is KYC: though KEEPING YOU CONFOUNDED fits the acronym far better than KNOW YOUR CUSTOMER.
The past decade has certainly put the depositor through the KYC wringer. Originally conceived to check money laundering and terrorist activities, KYC is today the scourge of the hapless common citizen. For accessing her hard-earned money kept in savings accounts, the citizen is compelled to prove her identity almost every year. While the eKYC is intended to allow for online verification of identity, there are numerous instances of the depositor being required to visit a bank branch to confirm her identity. My own harrowing experiences bear out the repeated trials and tribulations in ensuring KYC compliance.
I have a joint savings account with my spouse in the branch of a private bank in Mumbai. This account was opened before this millennium in a bank which was subsequently taken over by the private bank. Some fifteen years later, I was informed that this account was dormant since no transactions had taken place in the previous couple of years. Question no. 1: why would a bank need to verify the ownership of an account with a limited amount of deposit, just because the depositor has not undertaken either deposits or withdrawals over a period of time? Surely the depositor can exercise her democratic right to operate or not operate the account, since she may be drawing on her reserves in other bank accounts. Anyway, it took us three or four visits to the bank to get the account activated.
Stranger things have since befallen us with this same account. Despite transacting with the account in mid-2024, the account has again been marked inactive in late 2024. Now, the problem has assumed a new dimension. When the account was opened in the predecessor bank in 1997, my name in the account was just ‘Ramani’. Some bright spark in the bank has concluded that this does not coincide exactly with my name in the PAN card and Aadhaar records, where my father’s name precedes my own name. So, no go with eKYC procedure: I am required to present myself at a bank branch so that they can be satisfied that I do indeed exist in flesh and blood.
To build on the madness, my demat account has been rendered inactive on the grounds that I have undertaken no activity in the past 24 months. Question no. 2: why is an investor required to compulsorily buy or sell stocks to satisfy the concerned agency that she is not a ghost operator- that again, when the amount involved is so measly? I tried the eKYC facility on the website: it accepted my signature but refused to accept my mug shot; apparently, a selfie is a must. Question no. 3: since banks and other institutions have already wrapped Aadhaar verification around our necks, why could a simple Aadhaar authentication not have sufficed? To add insult to injury, an affiliate of the same private bank is now sending me messages for eKYC of my car insurance policy, executed just five months ago. Honestly, I don’t know whether to laugh or cry at this buffoonery.
I read in the news recently that the Government of India is concerned about the large number of inoperative bank accounts in the country. With the huge number of Jan Dhan deposits, the mind boggles at the thought of 800 million or more Indians going through the KYC quagmire once a year. My entreaty to the Finance Minister of India, the Finance Secretary of India and the RBI Governor would be as follows:
(1) For bank accounts that have been in existence for years and where KYC has been complied with anytime in the past, do away with future KYC compliance.
(2) Select only those bank accounts for KYC verification which seem to reveal suspicious transactions.
(3) Even where KYC is felt to be necessary, rely on online procedures such as Aadhaar authentication and video calls to the customer, if identification by the bank is required. Many senior and super senior citizens may not be in a position to undertake the numerous trips to a bank branch to complete the KYC formalities.
What comes through clearly from this entire rigmarole is the absolute lack of trust that pervades the system. The banking staff does not trust the virtual customer (even when adequate documentary proof has been provided) and governing institutions do not trust the banking staff. In this entire process, the 0.01 percent of banking malefactors who ought to be caught and prosecuted for their financial wrongdoings go scotfree, while for the remaining 99.99 percent, it continues to be the same routine of KYC verification, ad nauseam ad infinitum, leading to LYC (losing your cool).
Archive for the ‘public policy’ Category
15 Jan
KYC – Keeping You Confounded
28 Jul
Of Kangaroo justice and Kafkaesque trials
While the origin of the phrase “kangaroo court” is still not certain, the term is quite clearly defined by the Merriam-Webster dictionary as “a mock court in which the principles of law and justice are disregarded or perverted.” I would modify the term to “kangaroo justice” where due process of law is given short shrift.
Three incidents in recent history make us wonder whether we live in an era of kangaroo justice: (1) In December 2019, four men accused of the rape and murder of a young woman were shot dead by the police when, while in judicial custody, they were being taken to the scene of the crime near Hyderabad for a reconstruction of events as part of the investigation. The subsequent judicial enquiry concluded that these men were summarily eliminated and indicted ten police personnel in this connection. (2) In April 2023, Atiq Ahmed, a former Member of Parliament, and his brother, Ashraf Ahmed, in judicial custody in connection with several crimes, were shot dead by assailants posing as media persons, in the presence of UP police personnel, while being taken for medical examination to hospital at the unearthly hour of midnight. (3) 84 year old Father Stan Swamy, an accused in the Bhima Koregaon case, passed away in July 2021, after a series of ailments, while in judicial custody, without being given bail on medical grounds.
In the first two instances, summary executions by uniformed persons and by ordinary citizens made a mockery of the rule of law. Legal processes were unfortunately short-circuited to render instant justice (injustice?). While there was public support for the two actions, this does not behoove a democratic society that ought to be totally committed to the rule of law. The third case is even more unfortunate: an octogenarian social worker, who was not questioned by the NIA during his incarceration for eight months in Taloja prison near Mumbai, was refused bail even when it was apparent that his health was failing and that his release on bail posed no threat to the state or society.
“The wheels of justice grind slowly, but grind exceedingly fine” is a metaphor attributed to both ancient Greek and Chinese philosophers, acknowledging the slow pace of delivering justice, though justice is finally done. In the Indian context, delivery of criminal justice is often excruciatingly slow, with the main stakeholders at the pre-trial stage — the police, victims and their families and the accused — left with a feeling of frustrated helplessness as cases drag on for years. The phenomenon of ‘encounter specialists’ taking the law into their hands to dispose of criminals and of public lynching of notorious ant-social elements are but symptoms of a deeper malaise. Shoddy investigation of crimes, prompted sometimes by political pressure and sometimes by the lure of lucre, and interminably long periods between the commission of a crime and the final verdict of guilt seriously affect the credibility of the criminal justice system.
It is against this unsatisfactory background that recourse is had to the arrest of persons for even petty crimes and/or where they are not habitual offenders, just to satisfy public sentiment. Once arrested, the accused remain in jail because, in many cases, they cannot manage to give the surety/security required for grant of bail. The courts and the police are reluctant to trust the release on bail of persons on personal bonds/undertakings. Non-granting of bail and overcrowding in jails are two sides of the same coin. According to the Bureau of Police Research and Development, in 2022, India housed 5.73 lakh persons in its jails as against a prison capacity of 4.36 lakhs. The National Crime Records Bureau has reported that the proportion of people in jails, who are not convicted, rose from 33% in 1947 to 66% in 2012 and 76% in 2022.
More disturbing is the increasing trend of arrests of those deemed by the ruling dispensation to be opposed to them politically or those who raise their voice against actions of those in power that smack of restraint on or misuse of constitutional rights — these range from politicians of opposition parties to “anti-nationals” and “urban naxals”. The draconian provisions of the Unlawful Activities (Prevention) Act (UAPA) and the Prevention of Money Laundering Act (PMLA) on grant of bail keep those accused under these Acts in prison for years on end. Under both laws, the court has to be satisfied, before releasing the accused on bail, that a prima facie case of guilt is not made out by the prosecution: this has led to a situation today where courts at all levels are reluctant to grant bail, never mind the provisions for bail and bonds under the newly enacted Bharatiya Nagarik Suraksha Sanhita (BNSS) (or its predecessor Act, the Code of Criminal Procedure). It has long been a judicial precedent that bail ought to be refused only where (a) the offence is likely to be repeated while on bail; (b) the accused may abscond; (c) witnesses may be influenced; (d) evidence may be tampered with. The Hindu newspaper has highlighted (September 10, 2022) the abysmal conviction rates of 3% for those arrested under UAPA between 2018 and 2020, and 0.05% under PMLA until March 2022. As a consequence of the stringent provisions for grant of bail, the accused in the Bhima Koregaon case, Umar Khalid in the Delhi Riots case, AAP politicians Arvind Kejriwal and Manish Sisodia in the Delhi liquor policy and former Jharkhand CM Hemant Soren have been in jail for months and years on end without commencement of trial. The eagerness of a state like Maharashtra to enact the Special Public Security Act, modeled on similar legislation in Chhattisgarh, Odisha and Telangana, with provisions for keeping lower courts from intervening in executive actions under the Act, does not bode well for civil liberties of citizens.
What is clearly required to safeguard the right to liberty of citizens are three sets of legislation to check abuse of authority:
(1) Requiring the courts to reach a preliminary conclusion about the possible guilt of the accused under the UAPA/PMLA vitiates the judicial process of a fair trial. It is essential to delete the proviso to Section 43 D(5) of the UAPA which reads “Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under Section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.” Similarly, Section 45 (ii) of the PMLA which reads “where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he (sic) is not guilty of such offence and that he is not likely to commit any offence while on bail;” deserves to be removed from the statute book.
(2) The right to bail must be enshrined as a fundamental right, under either Article 21 or 22 of the Constitution of India. This will ensure that special laws do not tamper with the right to bail of an accused, which should be governed only by laws of general application like the BNSS.
(3) India, unfortunately, has no statute governing tort law. Legislation must be put in place which provides for legal damages in the form of monetary compensation for confinement in prison which does not result in conviction. This compensation would be payable by the state. However, where a miscarriage of justice which leads to incarceration is established in a court of law as motivated by mala fides on the part of specific government functionaries or other individuals, compensation to the affected party would also be payable by the concerned persons. The same principle of individual as well as state liability would apply to all deaths in police/judicial custody that are attributable to gross negligence or deliberate actions in violation of the rule of law by the guardians of law or other persons.
Since it is evident that the executive at the Union and State levels seems to lack both the moral authority and the resolve to ensure that law enforcement agencies do not overstep their powers, it is high time that the legislature and the judiciary step in to ensure that the ordinary citizen is protected from arbitrary actions that interfere with her/his enjoyment of personal liberty. This will be a lasting tribute to the framers of the Constitution of India in the seventy fifth year of the Republic of India.
14 Jul
Statistics and the Muslim bogey
I have been exposed to the subject of statistics through my school, undergraduate and postgraduate years. Hence, I have this strange suspicion about what the numbers tell. Whether it is a government tomtomming its achievements on the economic front or exit pollsters coming up with poll predictions, I take all these prognostications with a generous pinch of salt. There is still some doubt about whether the authorship of the phrase “Lies, damned lies and statistics” can be attributed to Benjamin Disraeli or Mark Twain. Regardless, I am of the firm belief that the numbers that determine the statistics must be stripped to the bone to arrive at reasonable conclusions, untainted by hyperbole.
Which is where I have issues with the recent working paper put out by the Prime Minister’s Economic Advisory Council (EAC-PM) on the status of the Muslim community in India during the period 1950 to 2015 (referred to hereafter as the Report), drawing on country-wise estimates of religious demographics available for 1950 and 2015 from the Religious Characteristics of States Dataset Project – Demographics v. 2.0 (RCS-Dem) published by the Association of Religion Data Archives in the year 2019. The estimates differ from the Census of India figures for 1951 and 2011 only by a couple of percentage points. The Report has reached the conclusion that “…in India, the share of the majority Hindu population decreased by 7.82 percent between 1950 and 2015 (from 84.68 percent to 78.06 percent). The share of Muslim population in 1950 was 9.84 percent and increased to 14.09 percent in 2015 – a 43.15 percent increase in their share.” The increase and decrease in the Muslim and Hindu populations is shown in terms of the percentage change in the respective percentage shares, taking the percentages of 1950 as the base.
This is where the problem arises. Anyone with even a rudimentary understanding of statistics would know that an increase from a low base by a certain number would give a greater percentage increase than a corresponding decrease by the same number from a much higher base. For example, a rise from 5 to 10 is a 100 percent increase while a reduction from 95 to 90 is only a 5.26 percent decrease. Had the Report used the same yardstick of increase in percentage share for the Sikh and Buddhist populations during the same period, the increases would have been 49.19 percent for the former (1.24 percent to 1.85 percent) (the Report wrongly gives the percentage change as 6.58) and a humongous 1520 percent for the latter.
One could have excused this cavalier jugglery with numbers if the conclusions of the Report had not been used by spokespersons close to the BJP to, on the one hand, glorify the approach to support of minority (specifically Muslim) populations over the first six and a half decades and, on the other hand, to repeat ad nauseam the slogan “Hindu khatre mein hain” .
Sudesh Verma[1] has fallen into the familiar trap of equating the change in percentage shares of Hindu and Muslim populations between 1950 and 2015 with the change in percentages of absolute Hindu and Muslim populations between 1950 and 2015. He then plays on the usual fears of the Muslim population overrunning the Hindu population, apparently oblivious of the 2011 Census figures, which show a Hindu population of 980 million and a Muslim population of 172 million. The usual reasons for the higher growth of the Muslim population are trotted out: “rapid reproduction, illegal infiltration encouraged by vested interests and conversion.” The latter two reasons can by no means contribute to any explosive increase in Muslim population. The first reason has also been tempered by the falling birth rates in the Muslim population — the total fertility rate (TFR) of the Muslim and Hindu populations stood at 4.4 and 3.3 respectively during the the National Family Health Survey-1 (NFHS-1) in 1990-91; the TFR came down to 2.6 for the Muslim population and 2.1 for the Hindu population in NFHS-4 (2015-16). As the TFR differentials narrow over time, it would be the height of misinformation to claim that the Hindu population would be overwhelmed in numbers by minority, especially Muslim, populations, when the numbers clearly show that the twain shall never meet.
The Report highlights that “…India is one of the few countries which has a legal definition of minorities and provides constitutionally protected rights for them.” It also refers to the progressive policies and inclusive institutions that are reflected in the growing number of minority populations within India. Significantly, it observes “Given its plural, liberal and democratic nature, India has continued its civilizational tradition of harboring persecuted populations from several countries over the last six decades.”: this, even though India does not have a clear-cut domestic policy or law for refugees and is not a signatory to the 1951 UN Refugee Convention and the 1967 Protocol.
It is ironic that the Report and the article by Surya Prakash[2] should speak in glowing terms of India’s plural, democratic ethos which has, in their view, provided a conducive environment for the growth of minority populations. The period from independence to 2014 (which is the focus period of the Report) has often been disparaged by the current ruling dispensation, with frequent references at the top political levels, even recently, to the appeasement of minorities and infiltration by, and conversion of the majority community population by, minority communities. It is unfortunate that even sections of the higher judiciary appear to subscribe to this distorted worldview[3] .
Nor has the growth in Muslim population been seen in terms of the measures that are needed to bring down the growth rate of that population: these include raising literacy and education levels of women, income earning opportunities, healthcare and outreach to promote family planning practices. It needs to be emphasised repeatedly that minority communities prosper because of constitutional guarantees, proactive social and economic policies and a fraternal environment in society, not because of the magnanimity of the majority community.
This is where governments need to walk the talk in creating a conducive environment for minority communities to realise their potential. Mere assertions of the democratic rights of all citizens (including minorities) are not enough. Union and state governments need to relook at legislations on cattle slaughter and anti-conversion, which have become convenient tools used by vigilante groups to create problems for minorities. Governments also need to firmly rein in the cancer of hate speech and avoid executive actions, like the bulldozer raj, that seem to largely target specific communities. India is a melting pot of many races over many millennia, a fact recognised and embedded in constitutional provisions. Let us, as a nation, not distinguish between people on the basis of religion or any other social marker. In the final analysis, we are all part of the human race, best exemplified in the lyrics of Sahir Ludhianvi:
तू हिन्दु बनेगा ना मुसलमान बनेगा
इन्सान की औलाद है इन्सान बनेगा.
[1] Sudesh Verma: India First – Rising Muslim Population: Arise Before It’s Too Late (News18.com, 11 May 2024)
[2] A. Surya Prakash: The changing face of religious demography (New Indian Express, 23 May 2024)
[3] Prateek Chakraborty: Majority population will become minority one day: High Court on conversions (India Today, 2 July 2024)
14 Jan
India – still very much a man’s world
2024 ushered in a new head of the civil services in Maharashtra. Part of the usual routine, except that this change in guard saw the claim of a lady officer to the top post being given the go by yet again. When most states in India have had lady officers helming the state bureaucracy, it is rather odd that Maharashtra, a state that prides itself on its progressiveness and gender parity, is yet to appoint a woman to the coveted post of Chief Secretary. The question is – why was Sujata Saunik, with a good track record, overlooked for the post a second time? She is the fourth woman after Chitkala Zutshi, Chandra Iyengar and Medha Gadgil to be overlooked for promotion to Chief Secretary.
The conclusion is inescapable – seventy six years after independence, the Indian establishment is still slow and grudging in allowing women to shatter the glass ceiling. It took the prodding of the Supreme Court for women to be given permanent commission in the armed forces; inducting them in combat formations has taken even more time, never mind the legacies of Rani Lakshmibai of Jhansi and Rani Chennama of Kittur. The private sector is little better, with independent women directors being appointed to corporate boards in recent years. It is heartening to observe that the appointment of women as District Magistrates and Superintendents of Police is now fairly common, a far cry from when I joined government service over four decades ago.
But the reality of womens’ place in Indian society is still far removed from the paeans sung to their exalted status as mothers, sisters and daughters. A patriarchal society still assigns the woman a place subordinate to her male cohorts. Girls are to be married off once they come of age (and, in many communities, even before that). Even in more educated environments, the female is expected to subsume her ambitions to fit into the role of wife and mother. Recent studies reveal the disturbing fact that the participation of women from higher income families in the labour force actually diminishes.
It is in the efforts to free herself from the straitjacket of patriarchalism that the woman faces her greatest hurdles. The female students of the Government Medical College, Kozhikode had to move the Kerala High Court in 2022 against the restrictions imposed on their movement outside their hostel after 9.30 PM, when no such restrictions applied to male students. Authorities justify such restrictions on grounds of safety of women students, a damning confirmation of the insecurity that pervades the lives of women even today. In an earlier blog (see here), I had mentioned a book “Why Loiter?” by three women researchers that highlighted how public spaces were out of bounds for women to enjoy, untroubled by the prurient attention of men.
It is not just in the public space; women face ordeals even in their homes. Sections 63 to 92 of the recently enacted Bharatiya Nyaya Sanhita detail crimes against the female sex, ranging from sexual offences to dowry demands, domestic abuse to unwanted male attention and rape. Despite the Supreme Court guidelines in the Vishakha case as far back as 1997, and the enactment of the Sexual Harassment of Women at Workplace Act in 2013, it took till the end of the second decade of the twenty-first century for the MeToo movement to find its feet in India. With the fear of loss of employment and of ostracism, both from their own gender and from society, women were hesitant to publicly name those harassing them. The ongoing episode of India’s women wrestlers fighting sexual harassment by those running their federation reflects the sobering reality of the continued dominance, socially and politically, of the rich and powerful male. The MP accused of sexual harassment continues in Parliament while the wrestling federation continued to be his fiefdom through his trusted lieutenants, till, thankfully, the government stepped in to try and put an end to this unsavoury chapter.
The enquiry by the Ethics Committee of Parliament against the now former MP, Mahua Moitra, is another example of how a hierarchical male-dominated society firmly tries to stifle the independence of women, especially if they are single, “modern” and with strong opinions of their own, which do not gel with the prevailing orthodoxy of their social milieu. The questions put to her by the Chairman ranged from wanting to know the nature of her relationship with the male who had access to her parliament questions login, the number of her visits to Dubai, the hotel she stayed in in Dubai and whether she met that person there. When the issue under examination was only the access of a private individual to an MP’s parliament questions login, these questions would clearly cast aspersions on her character (as perceived by a patriarchal society). Had the MP in question been a male who had given access to his parliament questions login to a female, these questions would never have been asked. Obviously, the Indian male escapes the scanner for behaviour that is not tolerated in a female.
The Indian male is nurtured in a milieu that, while paying lip service to the female, expects her to subordinate her aspirations to her family expectations while tolerating behaviour that would raise eyebrows in gender-progressive societies. Domestic violence at the hands of her husband and in-laws is a feature in many families. The birth of a girl child is often not welcomed, leading to instances of foetus abortion and female infanticide. The girl child has the last priority in access to health, nutrition and education, causing intergenerational deficits in the healthy development of the girl child. Boys are given a lot of latitude in the parental home. This leads to a sense of entitlement: there is no sharing of household chores and responsibilities, an attitude that is evident even after marriage: witness the rampant alcoholism in males and the abandonment of women post-marriage. The Government of India has rightly given primacy to the slogan “Beti Bachao, Beti Padhao” : checking sex-selective abortions/female infanticide and educating the girl child will improve the female:male sex ratio as also enable women to be active in social, political and economic life. I suggest the addition of “Beti Badhao” to the slogan, to enable the girl child to function as an independent agency, free of patriarchal restrictions.
20 Feb
Underage marriages in Assam – why the danda will not work
Almost half a century separates 1976 and 2023, yet the French saying “The more things change, the more they stay the same” seems so relevant. The heyday of the Emergency saw the forced sterilisation programme that was one of the reasons for the ejection of the Congress from power in 1977. Recent events in Assam point to the continued use of coercion in family-related issues. Ostensibly concerned with high rates of underage marriages and its implications for maternal and child health, the Government of Assam has decided to arrest those who participate in the marriage of girls under 18, whether they be husbands, fathers or fathers-in-law. Unfortunately, the government has gone in for a remedy that is worse than the disease.
For the first 50 years after independence, India’s population policy suffered from a myopic fixation with directly controlling reproduction through sterilisation. It is only in recent years that realisation has dawned on our policy makers that human development is the best contraceptive. More specifically, it is now acknowledged that promoting womens’ agency and enabling them to control vital life decisions are the best methods to limit population growth while also bringing maternal and infant/child mortality rates in line with those in developed countries.
Assam has the highest maternal mortality rate in the country of 215 deaths per 1,00,000 live births, almost twice the Indian average. While institutional deliveries have shown a rise from 71% to 84% between 2016 and 2019, only 51% of pregnant women availed of at least four antenatal care visits in 2019. Only 45.3% of currently married women in the 15-49 age group use any modern family planning method. Poverty and poor educational levels are clearly the driving factors behind early marriage of girls. 32% of women in Assam are married before reaching the age of 18, increasing the chances of infant mortality in children born to mothers in the teenage group as compared to children born to women in the 20-29 age group. Five districts of western Assam are among the top seven districts registering underage female marriages of over 40% – Barpeta, Dhubri, Goalpara, Kokrajhar and Bongaigaon. These are also the areas where the government appears to have focused its crackdown on underage female marriages.
In a society which is still traditional and patriarchal in its attitude to women, lack of access to education and formal schooling for girls has serious implications for womens’ empowerment. Less than 30% of females in Assam have completed ten or more years of schooling. The 2011 Census shows female literacy rates for Dhubri and Barpeta districts in Western Assam at 50% and 56% respectively. The latest figures for 2023 show that total literacy percentages for many districts in Western Assam are still between 58% and 67%: obviously female literacy percentages are likely to be lower. The lack of womens’ education has serious consequences for the next generation. The NFHS5 Report for Assam bluntly states that children whose mothers have no schooling are twice as likely to die before their first birthday as compared to children whose mothers have completed ten or more years of schooling.
There is every likelihood that the resort to police action could have very adverse repercussions where women are concerned. The rise in institutional deliveries over the years has been heartening. Now, there is a distinct possibility that families will resort to home deliveries or resort to unregistered doctors/quacks to avoid state action, as evidenced by the recent report of a young woman in Bongaigaon district bleeding to death because of unskilled delivery at her home. Equally disturbing is the likelihood that teenage pregnancies will not be reported to the health authorities, denying these pregnant women access to professional antenatal care. Out of pocket expenses on deliveries would put an increasing burden on the straitened finances of poor families. Further strains on family finances would arise from the arrest of male family members, who are in most cases the sole breadwinners for the family. The result could well be increased mortality and morbidity in the mother-child dyad.
In fact, this knee-jerk reaction of the Assam government to the problem of teenage pregnancies could well have been avoided. Pregnancies in women under 20 years of age could hardly be the sole reason for the high maternal mortality rate in Assam. Other factors like poor nutrition and health care access (especially during pregnancy) on account of poverty, and lack of spacing between deliveries are also contributory factors. Social behaviours are slow to change in the absence of rising standards of living, better education and improvements in the socio-economic status of women.
The Assam government should take heart from the statistics in the latest NFHS5 survey, which show significant step up in institutional deliveries, substantial reductions in infant and child mortality and levels of child undernutrition that are comparable with those of more developed states. ASHAs and other frontline health and ICDS workers, as well as community workers, have gradually earned the confidence of local communities. Community education on the dangers of early marriage and pregnancy and promoting the use of effective family planning measures to delay pregnancies till the age of 21 and above are measures that need to be pursued patiently and systematically. The state government should encourage civil society activists and government workers to deal with communities while pursuing policy measures that emphasise girls’ education, state-sponsored nutrition for pregnant women and lactating mothers and employment creation.
This blog has been published in the Free Press Journal of 20 February 2023 (see here)
27 Aug
Bilkis Bano case – the interface of law and ethics
If 2012 saw the conscience of a nation shaken by the Nirbhaya rape incident, 2022 has witnessed an equal nightmare in the wholesale release of eleven men convicted of gangrape and mass murder in 2002 in Gujarat, that too on the very day that India was celebrating the 75th anniversary of its independence. The Government of Gujarat utilised its good fortune in being declared the “appropriate government” by the Supreme Court decision of May 2022 (which overrode Section 432(7) of the Code of Criminal Procedure (CrPC)) to arrive at the facile reasoning that the 1992 remission policy provided for remission of life sentence (even in cases involving rape and murder) after 14 years in prison. The subsequent tightened guidelines on remission by the Government of Gujarat (2014) are apparently not applicable since the 11 men were convicted in 2008, when the 1992 remission policy was in place.
The decision of the Government of Gujarat begs many answers. Let us accept the argument that, as per the 1992 remission guidelines, these 11 men were eligible for release from prison. Some other nagging questions of law still remain. The case was prosecuted by the Central Bureau of Investigation (CBI), an agency created under the Delhi Special Police Establishment Act, 1946. Section 435 of the CrPC makes it mandatory for the state government to consult the Union Government in cases prosecuted by the CBI (note well that consultation here means concurrence of the Union Government). If such permission was not taken, the remission of sentence is ab initio void in law. If concurrence was taken, the Union Government is a willing party to this decision. Since, as in many other decisions of the Government of India today, no clarification is provided on this issue, the public is left guessing. Even if concurrence of the Union Government under Section 435 of the CrPC was taken, there is still the matter of taking the opinion of the presiding Judge of the court which passed the original order of conviction, regarding grant of remission of sentence under Section 432(2) of the CrPC: this has been mandated by the Supreme Court as well. This process has definitely not been gone through in the appropriate special CBI court in Mumbai.
These are the legal issues on which no clear answers are forthcoming as of now. But even more troubling is the process of decision making at the level of the committee on remission headed by the District Magistrate, Godhra, and the Home Department, Government of Gujarat. Even granting that the 1992 remission guidelines allowed for remission of sentence to those convicted of murder and rape, there are still other considerations that have to be kept in mind when granting remission. The Supreme Court has, as far back as 2000, laid down guidelines for remission of sentence which include, inter alia, whether the crime affects society at large and whether recurrence of commission of crime is possible. In the Bilkis Bano case, there can be no doubt that the nature of the crimes committed — gangrape and mass murders — definitely affected society at large. On the issue of possible recurrence of criminal acts by the convicts subsequent to their release, newspaper reports indicate that witnesses were threatened when the convicts were released on parole during their incarceration. Whether these factors were taken into consideration while granting remission is a matter of speculation — there is no clarification from the state government.
However, as much as these legal issues, what ought to concern us all as citizens of a humane, compassionate society are the ethical dimensions of this entire episode. Photographs have been shown of the distribution of sweets to the released convicts; even more appalling are reports of the felicitation of the convicts by the Vishwa Hindu Parishad, this in a criminal case monitored by the Supreme Court and where verdicts of conviction were confirmed by the Bombay High Court. Common decency dictated that the release, even if in accordance with the procedure laid down by law, be kept low-key in deference to the sentiments of the survivors of the crimes. A member of the remission committee and a sitting ruling party legislator went so far as to suggest that the convicts were of high caste, had good upbringing and that charges were framed against them because of ill intentions of some persons. It was incumbent on the administration of the Government of Gujarat to take steps to prevent the organisation of such events and to discourage such statements which could cause unease in the minds of the victims and the minority community.
In fact, the Government of Gujarat should have taken the initiative to organise a reconciliation meeting between the victims and the perpetrators of crimes. The effort should have been to bring a sense of closure to the tragic incidents of 2002 and promote a spirit of harmony in the village where both sides would be residing henceforth. Nelson Mandela adopted this approach with his Truth and Reconciliation Commission, following the end of apartheid in South Africa, to build an atmosphere of trust and cooperation between the coloured and white communities. Our own Bapu, Mahatma Gandhi, spent the first Independence Day wiping the tears of the victims of communal fury in Bengal.
It is this spirit of fraternity (bandhutva) that is sorely lacking in the India of today. We can debate till eternity whether the 11 persons should have been released or should have continued in prison, depending on our ideological predilections. But unless those who committed these crimes are fully aware of the damage they have caused to the psyches of their victims and are truly remorseful for their past misdeeds, there can be no meeting of minds between the different communities. Immense damage is caused to the social fabric, when vested interests dabble in spreading hatred and misunderstanding among communities. Let us, in this 76th year of India’s independence, move from untruth to truth and from darkness to light: only then will we truly be free.
15 Aug
The Idea of India – at 75
As India celebrates the 75th anniversary of her existence as an independent nation, it is time to reflect on what ‘India’ truly represents. What has given this country the resilience to meet multiple challenges on the economic, political and social fronts over three-quarters of a century and retain her status as the largest democracy in the world (even if there is still a gap between the actual and the potential)?
India has been fortunate that eminent personalities oversaw the transition from imperial to democratic rule, developing a robust Constitution of India (‘the Constitution’) that has, in spite of many amendments, stood the test of time. At this juncture in our history, it would be appropriate to identify the core principles that have enabled India to chart her course of nationhood. The strength of India rests on three fundamental principles embedded in her Constitution: the primacy accorded to the individual, the emphasis on pluralism and the operation of the federal structure of the nation.
India has, over the ages, taken into her fold people from diverse races, cultures and religions. The country displays a heterogeneous collection of languages and traditions. Pluralism is not confined to religion: it is the trait which welcomes and embraces different ethnicities, linguistic groups and those from diverse cultural backgrounds. The Constitution’s greatest boon has been its focus on bringing together in one nation-state people who were earlier subjects of British India and nearly 600 princely states. It has located a number of pluralist measures in the Part on Fundamental Rights (‘Part III’). These include the freedom to profess, practice and propagate any religion as well as the protection of cultural and educational rights of minorities. Discrimination on grounds of religion, race, caste, sex or place of birth is specifically prohibited.
What is equally noteworthy is the primacy accorded to the individual in Part III. Article 14 guarantees equality before the law to all persons, irrespective of whether they are citizens or not. The subsequent Articles lay down clearly the rights of citizens — of life and liberty, freedom of speech and association, public employment, etc. This marks a sea change in a social milieu where the collective, in the shape of the family, clan or community, was, in centuries past, the arbiter of the rights and duties of the individual. The Constitution gives the individual a dignity of her own, not linked to any entity other than the nation of which she is a citizen.
It is significant that the very first Article of the Constitution defines India as a ‘Union of States’. The territories administered by the British and the princely states which signed the Instrument of Accession to the Indian Union were amalgamated into different states. Article 1 of the Constitution was a recognition of the reality that it was these states that constituted the nation. There is a clear division of responsibilities between the Union and the States in the matter of governance. The Seventh Schedule delineates the subjects which are the exclusive domain respectively of the Union and of the States (as well as those where there is concurrent jurisdiction of both). The Constitution provides for a Finance Commission to propose, at regular intervals, the allocation of financial resources between the Union and the States; it also created All India Services that serve both the Union and the States. These provisions are intended to ensure a collaborative and synergistic relationship between the two, often governed by different political parties. Recognising that federalism has to strike roots below the state level, the Constitution (73rd and 74th) Amendments provided for substantive devolution of powers to rural and urban local bodies.
However, there are areas where closer attention from the Union and state governments, the judiciary and civil society is necessary if India is to serve as an example of a healthy democracy. Powers of arrest are still exercised by law enforcement agencies in a routine fashion and subordinate courts treat bail applications with a negative frame of mind, so much so that the Supreme Court was constrained to recently observe that India should not become a “police state”. Special acts have severely circumscribed the granting of bail in certain cases. These lead not only to the “process becoming the punishment” (as observed recently by the Chief Justice of India), but also to the burgeoning number of undertrials in jails in India. The 2006 directives of the Supreme Court to insulate the police forces from political pressures need to be implemented by all governments in letter and spirit if the sanctity of individual liberties is to be maintained.
The pluralist ethos has come under strain in recent years, through a combination of executive actions (and inaction) and the emergence of vigilante groups that seek to deliver ‘justice’ in a summary manner. Increasing intolerance for the views of others, especially with the explosive growth of electronic and social media, has contributed to the growing incidence of hate speech, which sows the seeds of bigotry and hatred in large segments of society. It is time governments impartially administer the laws which check such actions (and courts take a severe view of infractions of laws causing social unrest). The media and civil society also need to call out those elements that seek to sow dissensions among different sections of society.
There is an urgent need to tone down the adversarial relations between the Union and state governments. A spirit of mutual goodwill, respect and consensus between the Union and state governments, especially those governed by parties other than that governing the Union, is crucial in furthering the economic development of the country and improving the lot of the common citizen.
The promise in the Preamble of the Constitution to secure to all citizens of India justice, equality, liberty and fraternity will be realised in ample (if not full) measure when all the stakeholders in the country actively promote the values enshrined in the Constitution. Only then will India’s tryst with destiny truly be fulfilled.
This blog was published in the Free Press Journal (15 August 2022) (here)
15 Dec
The loaves and fishes of office
The recent brouhaha over the extension of tenures for specific officers of the Government of India even when they are well past the normal age of retirement has brought into focus again the issues of the sanctity of the retirement age and the possible interference by government in the independent functioning of officers handling crucial organisations, especially those endowed with enormous powers to investigate offences, both economic and otherwise. However, this is no recent development: fixed tenures for the Cabinet Secretary, Home, Foreign and Defence Secretaries, and Directors of the Intelligence Bureau and Research & Analysis Wing, extending beyond the normal age of superannuation, have been in vogue for a number of years now.
What has occasioned concern in recent days has been the Government of India’s decision to give five-year tenures to the heads of two Central Government investigative agencies that have often been caught in the crosshairs of political wars. The Central Bureau of Investigation (CBI) is no stranger to controversy: no less a body than the Supreme Court termed it a “caged parrot”. To the CBI has been added the Enforcement Directorate (ED) which has come into the public eye only in recent years. These two agencies, along with their country cousins, the Income Tax department, the National Investigation Agency and the Narcotics Control Bureau, have developed into falcons from parrots, with their deployment by the Central Government in a wide range of cases, amidst concerns as to whether these serve merely political ends or the ends of justice (the Sushant Singh Rajput and Aryan Khan cases serve as examples). Of even greater concern are the cases of raids, and selective disclosures, that surface whenever election time surfaces. Karnataka in 2018, West Bengal and Tamil Nadu in 2021 are states where politicians of parties opposed to the BJP received special attention from central investigative agencies.
It is significant (and glaringly obvious) that officers were being given tenure posts or extensions in service just days before their date of superannuation (as witnessed in the appointment of the Police Commissioner of Delhi and the last-minute extension of tenure of the Director, ED). The recent amendments in Fundamental Rules and the changes in the Acts governing the CBI and ED aim to legalise extensions and attempt to put them beyond the pale of judicial challenge.
What is equally notable is the plethora of appointments to post-retirement posts, from the ranks of both the higher judiciary and the top echelons of the civil services. That this practice has the sanction of precedent is no cause for comfort. There have been far too many cases in the past three decades where the appointments to crucial posts of retired judges and bureaucrats have raised uncomfortable questions about possible quid pro quos for decisions favourable to the government of the day taken by the beneficiaries while in positions of power. While some of the pre- and post-retirement appointments go through a committee which has, apart from the Prime Minister, the Leader of the Opposition and the Chief Justice of the Supreme Court as its members, other crucial appointments, as for example, the Election Commissioners, are made purely at the discretion of the executive.
At a juncture in our democratic existence when many executive decisions are viewed with some measure of suspicion, there is need to evolve norms for appointments to the highest positions in the civil services that ease such suspicions as also mitigate the rising apprehension that serving civil servants are being induced through the carrot of continued service to shed their independence and impartiality in decision making. I venture to make some suggestions below to address this vexing issue.
Superannuation from public service should be mandatory on attaining the age of 60 for all members of the civil services. On attaining the specified age, civil servants should follow the shining example of RCVP Noronha, former Chief Secretary of Madhya Pradesh, who refused any extension and rode away happily from the Secretariat on his Luna moped on the day he superannuated.
For all senior positions in constitutional/statutory bodies, like Members/Chairpersons of Commissions and Tribunals, where judicial/administrative experience is required, selection should be through a process of application. This should also apply to the heads of major investigation agencies, which enjoy powers of. search, seizure and confiscation. The final selection should be done by a Committee which comprises representatives of the concerned government, the judiciary or the Union Public Service Commission and representatives of opposition parties (for specific constitutional/executive posts, as is the case at present).
Most importantly, the selection of civil servants for all higher posts (administrative and quasi-judicial) should be structured such that the person superannuates from the post at the age of 60 years. This would imply that a person would be selected for such a post around the age of 55 years (for those in government), so that (s)he would cease to hold office, after a tenure of five years, at or just before her/his normal superannuation date. This has certain implications, both for these functionaries and for those in the organisations they have left in order to hold these select posts. For one, those who move to posts outside the government structure will create openings for their juniors to move into senior positions in their departments/organisations. There may also be cases where, in full knowledge of the fact that (s)he is not likely to be in the running for the top job in the executive, a person may choose to move laterally to these posts. It would certainly enable governments, both at the centre and in the states, to dispense with many posts at apex levels, which (especially in state governments) seem to be virtually dished out with the rations.
As for the contention that officers’ talents will not be used beyond their age of superannuation, these talents and competencies can well be displayed in a variety of other fields — media, business, academics, social service and politics being obvious avenues. Rephrasing the recent utterance of a noted senior advocate, “the heavens will not fall if a worthy replacement takes on the responsibility of the retiring incumbent.” Nor does it preclude the truly ambitious from aspiring to governorships/ambassadorships/Rajya Sabha memberships, depending on their equations with the central government of the day.
In the final analysis, such a change would spare us the unseemly spectacle of persons jockeying in their final days of service with the powers that be to ensure their continued access to naukar-chakar-bangla-gaadi, apart from the heady access to power and prestige that continued occupation of prestigious posts brings. Civil servants, indeed all humans, would do well to heed the words of Adi Sankaracharya in the Bhaja Govindam:
दिनयामिन्यौ सायं प्रातः, शिशिरवसन्तौ पुनरायातः।
कालः क्रीडति गच्छत्यायुस्तदपि न मुन्च्त्याशावायुः ॥१२॥
Day and night, dusk and dawn, winter and spring come and go again.
Time sports and life ebbs away, and yet the gust of desire never leaves us.
1 Feb
Opposition In Residence
(James Hacker, Minister in Her Majesty’s Government: “The Opposition aren’t the opposition…They’re only the opposition in exile. The Civil Service is the opposition in residence.” – Yes Minister, Antony Jay & Jonathan Lynn)
Politicians in India, at least from Indira Gandhi onwards, have, notwithstanding their pious public utterances, always veered in favour of a “committed bureaucracy”, faithfully executing the dictates of the party in power. The general public, therefore, has this mistaken impression that civil servants mindlessly toe the line of their political masters (I don’t dare use the feminine equivalent). This is not quite the whole truth, at least in the three decades when I was in service from 1980 onwards. Not that we did not have our share of those who were ready to oblige the political executive for a mess of pottage. But there were sections of the civil service that did their utmost to ensure that their political bosses did not get their way in issues that reeked of impropriety or financial wrongdoing.
I have written earlier on the tactics that can be employed to forestall patently illegal requests from the political class (see here). These include (a) let us see, “Parkalam” in Tamil and “Baghoon sangto” in Marathi; (b) making oneself scarce; (c) sending the file into orbit; (d) setting up a committee; (e) recording one’s views on file; (f) asking for written orders; and (g) asking/getting ready for a transfer. These distracting tactics are not necessarily a reflection of bureaucratic ego or of an innate desire to take no decisions. Mostly, they are intended to give time for reflection on the proposed course of action or to make the vexed issue irrelevant with the passage of time.
Apart from the bureaucratic bulwark against impetuous, risky decision making, there are even more crucial checks and balances in a functioning democracy which are intended to check autocratic tendencies in the political executive. Brute majorities in the Lok Sabha (think India 1971/1984/2019) tend to invest a sense of infallibility in the minds of the majority party leaders. It is easily forgotten that democracy is not just the exercise of their electoral rights by citizens at five year intervals but also the giving of voice to their hopes and aspirations in the interregnum between elections. Four institutions play major roles in this theatre of democracy: legislatures, the judiciary, media and civil society.
Central and state legislatures are the first check on arbitrary executive actions. Even where the opposition is in truncated numbers, its voice can be powerful when its representatives speak fearlessly on issues of public importance. In the Nehru-Indira heyday, politicians like Minoo Masani, Piloo Mody, Nath Pai, Madhu Dandavate, Atal Bihari Vajpayee and Jyotirmoy Basu commanded respect with their scathing denunciations of ruling party actions, couched always in parliamentary language. House committees were dreaded by bureaucrats for their interrogation of executive actions. Parliamentary debates, reported fully by the print media, gave citizens an idea of what their leaders were up to. Bills went through discussions in select committees before they were put to vote. Ordinances were resorted to as a last, emergency option only when the House was unlikely to convene in a reasonable time period. That these vital functions of the legislature have been given the go-by in recent months and years is a cause for concern. Important bills are either subject to inadequate legislative scrutiny or are rushed through as money bills, obviating the need for passage by the Upper House – abrogation of Article 370, passage of the CCA and farm bills are prime examples of legislative bulldozing. Ordinances are now the new flavour, with the COVID pandemic providing a ready excuse to bypass legislatures.
The courts are the main support of citizens against arbitrary executive actions backed by pliant legislatures. While the seal of approval given by the highest court of the land in the early years of our democracy to preventive detention and sedition laws caused unease in liberal minds, the court did qualify the exercise of such sweeping powers by the state in a number of landmark judgments. The enunciation of the principle of “basic structure of the Constitution” in the 1973 Kesavananda Bharati case had reassured the public that the judiciary would safeguard the Constitution against executive encroachment. That the Supreme Court went against this principle in the 1976 ADM Jabalpur case was a setback to personal freedoms, though the court corrected its position in this case forty years later. With the Supreme Court entertaining public interest litigations (PILs) and taking suo motu cognisance of issues of vital public importance, the next few decades saw a phase of judicial activism that seemed to bode well for a healthy democracy where the judiciary kept the executive in check. This trend has, unfortunately, gone into reverse gear in recent times with a number of executive and legislative actions yet to go on the anvil of judicial scrutiny. Prominent among these are the electoral bonds issue, demonetisation, the abrogation of Article 370 of the Constitution, the CAA law and the three farm laws. More worryingly, the Supreme Court (and many High Courts) are yet to pronounce on executive actions that have impinged on basic freedoms of citizens: the large number of pending habeas corpus petitions, the internet restrictions in Jammu & Kashmir and the incarceration and denial of bail in many cases involving civil society activists, journalists and intellectuals.
The media, both print and electronic, has largely abdicated its role as guardian of the qui vive. During the 1975-77 Emergency, it crawled when merely asked to bend: now it is, with notable exceptions, ready to lend its services for dissemination of inaccurate, sensational news and take partisan positions on issues of public importance. The spread of digital and social media has mitigated this one-sided view somewhat but, with the likely introduction of curbs on such independent media, the prospects for free and frank expression of points of view appear dim.
Finally then, it is left to civil society, especially those in its ranks who cherish the values enshrined in the Constitution, to raise the flag for the fundamental rights listed in Part III of the Constitution. When all other avenues to secure timely justice and redress of grievances seem to be foreclosed, sections of civil society have resorted to the satyagraha route propounded by Mahatma Gandhi during the freedom struggle. This was vividly illustrated in the two mass movements — the anti-CAA and the farmers’ protests — over the past year. As the Mahatma was to emphasise in his experiments with satyagraha, it is based on an inviolable relationship between the means and ends, with its essence in the purity of means, totally non-violent in nature, adopted by a pure person, as also in the constant quest of this person to purify her/himself through self-examination. The satyagraha effort can be undermined and brought to a close because of external “Chauri Chaura” events, such as civil disturbances (riots/violence) or natural occurrences (COVID), as witnessed in recent times.
Mutual tolerance and respect for institutions are the hallmarks of true democrats. A democrat at heart is aware that (s)he holds the position of power for only as long as the people wish and that there has to be space for opposing viewpoints in a functioning democracy. Equally, other political formations have to be given due regard and the space to function freely. But even more important is the recognition of the inviolability of institutions meant to safeguard democracy. It is these institutions that, as the checks and balances in a democratic society, act as the real “opposition” in keeping the executive under control. As in the case of charity, democracy too begins at home.
15 Dec
Farm Laws: Good Economics, Bad Politics
“The road to hell is paved with good intentions”. This saying sprang to my mind once the three Farm Bills were rammed through Parliament, with the opposition not even being given the parliamentary freedom to have its say in the Rajya Sabha. The absence of collegial decision making seems to be the signature tune of the present central government, as I have had occasion to bring out in an earlier blog (see here). Starting with the enactment of anti-beef laws in different states and moving on through demonetization, triple talaq, Kashmir, CAA, COVID lockdown, labour laws, farm laws and now ‘love jihad’ laws, the governments of the ruling party at the centre and in states ruled by them have relied on legislative majority, Prime Ministerial 8 PM pronouncements and the Ordinance Factory route to push policy down the throats of the citizenry.
The three bills focus on (a) freeing private entities from the oversight and jurisdiction of the Agriculture Produce Marketing Committee (APMC) in respect of transactions outside the APMC market yard area, with no licences being required from and no fees being payable to the APMC; (b) easing up the Essential Commodities Act to allow for far greater price variation in commodities before state restrictions on prices kick in; (c) providing for direct contractual arrangements between farmers and private entities. On the face of it, these measures seem to be exactly what are required to free the agricultural sector from the clutches of exploitative middlemen, ensure a fairer deal for the farmer in terms of better prices for his produce and encourage the growth of entrepreneurship to promote innovation and investment in the farm sector. Why then have these “reforms” attracted so much ire from the farming community, leading to a virtual blockade of the national capital?
It would be easy (and the lazy option) to dismiss the present turmoil as a political gimmick, sponsored by vested interests who stand to lose from the reforms process. Deeper reflection would, however, reveal the inadequate homework done by the authors of these three bills on critical issues, with the lack of clarity sowing major doubts in the minds of farmers. Though it might appear on the face of it that the agitation is largely driven by the interests of the better-off farmers, the issues that remain unresolved need to be squarely faced as they will raise their heads in the years to come and continue to act as flash points for farmers’ discontent.
The future of Minimum Support Price (MSP)
The first issue that has reverberated over the past couple of months has been the future of the MSP. While this has largely been operative only in respect of the two major cereals, paddy and wheat (and, to a far lesser extent, in respect of some other crops), the farmer is apprehensive that the move to a “free trade area” outside the APMC and the entry of contract farming on a large scale in the days to come will sound the death knell of the MSP. While the Government of India has been at pains to stress its commitment to retain the MSP in the future, it has not spelt out its strategy in respect of the MSP in an environment where there is extensive private entity-farmer trade, with prices being determined by direct negotiations between the farmer and the private party. This issue assumes importance especially in a set up where there is an unequal relationship between the farmer and the purchaser of his produce. If there are just two or three big oligopsonistic buyers, there would be grounds for apprehension that, sooner or later, the few buyers could start dictating prices to the farmers. In the absence of a trading licence system and the lack of institutional oversight by the APMC or any other regulatory body, the field would be open for the entry of any oligopsonistic private entity to attempt to dominate the market on its terms. The dilution of the stocking limits in the Essential Commodities Act can also justifiably give rise to fears in the farmers’ minds that end-buyers (read large corporates) will build up stocks to drive down agricultural product prices. At that point, the farmer would expect the government to step in and guarantee purchase of his produce at the APMC at a price that meets the cost of production plus a markup for profit. The legislation, as it stands at present, is silent on this eventuality.
The MSP system needs to be remodelled over time to achieve a much greater diversity in the crops procured, from millets and maize to pulses, oilseeds, horticulture and cash crops. This is essential if the huge surplus stocks of rice and wheat in Food Corporation of India (FCI) godowns are to be reduced. Not only does this increase the financial burden on the Government of India of paying the FCI for these stocks, it also increases wastage percentages. Reducing the incentive to grow water-guzzling, input intensive paddy in states like Punjab and Haryana is also crucial to checking environmental degradation, reflected in the deteriorating soil quality and depleting groundwater levels in these states. It should also not be forgotten that the MSP will have an important role to play as long as government has to guarantee the supply of foodgrains through the public distribution system (PDS), with the FCI as the prime supplier to the PDS.
Marketing issues (including price discovery)
Mandi/APMC related prices play an important role today in fixation of the price at which trade takes place outside mandi/APMC areas between farmers and traders. There is little clarity on how price discovery will take place in future in direct contracts between traders/sponsors and farmers, where there may be few buyers and a vast body of sellers. Realisation of a price that is fair to the farmer presupposes availability of price information and the ability to source the buyer who can offer the most favourable price. This requires the presence of a well-developed electronic marketing network, as envisaged by the announcement of the e-National Agricultural Market (e-NAM) system in the Budget of 2016-17. The e-NAM drew on the Rashtriya e-Market Services Private Limited (ReMS) initiative launched in Karnataka in 2014, which has been analysed in a November 2016 paper by researchers of the Indira Gandhi Institute of Development Research, Mumbai. Their study reveals three major areas where reforms are essential if a thriving national e-market for agricultural products is to flourish: (a) a legal framework which supports a platform for agricultural transactions across the country; (b) incentives to all stakeholders — farmers, traders, commission agents, mandi/APMC officials and others who are part of the agricultural marketing ecosystem — to participate in the new electronic platform at locations across the country; and (c) development of physical and financial payments infrastructure to facilitate seamless real-time trading across multiple locations.
Unless APMCs/mandis act as countervailing centres to forestall efforts to dictate prices of agricultural commodities through the more powerful bargaining position of a few buyers, farmers would be placed in a position where they are compelled to accept not so favourable prices. But this requires vibrant APMC/mandi centres fully linked to e-NAM, so that farmers have a ready alternative site to sell their produce in the event they are not happy with the terms offered by private buyers. Governments, especially at the state level, will need to invest in physical and financial infrastructure in terms of many more APMCs/mandis, facilities to grade produce, accurate weighing, quick delivery and easy online payment to attract farmers to the APMCs/mandis. Winding up APMCs does not promote a flourishing trade in agricultural products, as the experience of Bihar, which abolished APMCs in 2006, amply shows. Opposition from traders and commission agents, who stand to benefit from opaque transaction systems, will need to be effectively countered by assimilating them into the new marketing process.
Regulation and dispute resolution
The provisions for regulation and dispute resolution in the new laws are woefully inadequate. Conciliation and adjudication of disputes between seller-farmers and buyers have been brought solely within the jurisdiction of the executive magistracy. As one who has functioned as an Executive Magistrate during his career in the civil service, I can safely assert that the Executive Magistracy does not have the requisite knowledge skills to adjudicate on commercial disputes. More disturbingly, this responsibility comes on top of multifarious responsibilities already cast on the executive magistracy. Even with the best of intentions, cases are going to pile up in their courts. The absence of alternative avenues to redress grievances through the judicial system will not only adversely impact the rights of farmers but is also, in my view, a violation of the fundamental rights guaranteed to every citizen under part III of the Constitution of India.
The absence of a regulatory framework to oversee the proper conduct of transactions between buyer and seller will also, without doubt, affect the weaker side, clearly, in this case, the farmer. The uncertainty caused by prolonged litigation will have its deleterious impact on agricultural investments and will contribute to significantly weakening the bargaining position of the farmer.
What should the Government of India do to restore farmer confidence?
The quotation with which I began this blog in effect means“…promises and plans must be put into action, otherwise they are useless”. The Government of India (GoI) needs to:
first, repeal the two Farm Acts and the amendments to the Essential Commodities Act;
second, come out with a White Paper listing the issues that are crucial to the success of farm reforms, especially the backward and forward linkages that will enable the farmer to access the marketplace as an equal. These include availability of credit and insurance, easy access to efficient markets and a legal framework that honours contracts promptly;
third, give a guarantee that the APMC/mandi system will continue on the same basis as before the enactment of the Farm Laws;
fourth, involve all stakeholders in discussions on the future directions that the MSP and procurement should take, especially in relation to changing cropping patterns to both meet nutrition needs of the population as well as to tackle the growing ecological degradation caused by rampant overuse of fertilisers, water and power, with its attendant implications for high-cost agriculture;
fifth, while meeting the food requirements of the population, notably its vulnerable sections, through the PDS, work out mechanisms to ensure a fair deal for the farmer as well, without taxing the government budget to breaking point;
sixth, consult with state governments on a subject that falls squarely within the State List in Schedule VII of the Constitution of India. The GoI could possibly incentivise the adoption of these reforms in different states, starting with those states where its party is in power. The demonstration effect of successful reforms can then percolate to other states.
In the final analysis, I have to come back to where I started this blog. The present government at the centre has, in the recent past, pushed through too many measures without adequately consulting stakeholders or taking the advice of those who have the benefit of years of experience of working in those areas. The damaging effects of such unitary approaches not only sow distrust about the intentions of the central government in the states ruled by opposition parties and in the population at large, they also adversely affect the lives of millions of people. It may be good politics in the short run (from the viewpoint of the ruling party) but it leads to disastrous economic, political and social consequences, in the short, medium and long term, for the country. The government at the centre now needs to talk the walk (i.e., discuss before framing policy) since its approach hitherto has been to walk through without talking.
V. Ramani's web 