Up the endless judicial ladder /M J Antony

The Supreme Court was meant to be a constitutional court by the founding fathers. However, only 7 per cent of its judgments deal with constitutional issues, according to a recent study. Most of the 50,000 and more cases pending in the court are appeals from the high courts or appellate tribunals. They might have trundled from the subordinate courts to the apex court, spending years and bundles of money. Even after the Supreme Court delivers its judgment, there are two more stages to challenge its final word. They are review petitions and 'curative petitions'.

Though the last two kinds of petitions are meant to correct obvious errors that escaped the attention of the judges (like typing mistakes or wrong figures) these are increasingly used as stratagems to reargue decided cases. It would seem that the judges are so careless in writing judgments that they should pass two more tests set by the bar. These two post-decision petitions have begun to choke the court. In an average week, over 30 pages of the list of cases contain review petitions and curative petitions. They are heard in chambers of the judges during lunch time, and mostly crunched within minutes. Hardly any of them succeeds in opening up the cases again. However, lawyers advise clients who still have money left after losing all the way to file review petitions, and as a last resort, curative petitions.

Earlier this month, a number of firms moved the Supreme Court challenging a proviso introduced in 1996 in the Supreme Court Rule that obligated judges who once dismissed the case to re-examine it in open court. The court rejected the demand outright (Sesa Sterlite vs Supreme Court). This was a welcome decision as open court hearing means more adjournments, affidavits, counter affidavits, rejoinders and compilations. That process would have bloated not only the files but also the lawyers. Thus, the review petitions will continue to be massacred in lunch time.

The Supreme Court, in one of its weak moments in 2003, aspired to deliver absolute justice and opened up yet another path to rehear decided cases. It allowed the disappointed litigants to return to it even after losing the review petition. This is by way of a 'curative petition', devised by the court in its judgment, Rupa Hurra vs Ashok Hurra. A curative petition must be accompanied by a recommendation of a "senior" advocate stating that the case requires re-examination as there was violation of the principles of natural justice in the earlier decisions. The curative petition has to be first circulated to a bench of three senior-most judges. They will decide by a majority that the case should be re-examined. Only then will the case be heard by the judges who heard the case originally. Such strict conditions were imposed to prevent a floodgate of curative petitions.

The court has since regretted its decision to set a revolving door to failed litigants. In its judgment inSumer vs State of UP, the court said that "the apprehension of the bench which delivered the Hurra judgment that the remedy provided may not open the floodgates for filing a second review petition has come true as is evident from the filing of large numbers of petitions. It was expected that thecurative petitions will be filed in exceptional and in the rarest of rare cases, but in practice, it has just been opposite."

There is a strong current of opinion among jurists that the Supreme Court should take up only constitutional questions. However, Article 136 of the Constitution allows appeals in the garb of "special leave petitions". The constitution makers would not have imagined that this provision would open the doors to gamblers in justice. Long ago, former Attorney General M C Setalvad told the bench when asked the difference between wager and lottery, "what happens in this court every morning from 10.30 am to about 11.30 am is a lottery." The difference, perhaps, is that you can lose lottery only once. But in the courts, you can try and try again while moving up the judicial ladder.

source: http://www.business-standard.com/article/opinion/m-j-antony-up-the-endless-judicial-ladder-115012701340_1.html

state’s limited revenue sources proved as a hindrance to the development

The state’s limited revenue sources proved as a hindrance to the development of effective federalism in the country and this needs to change. Substantiate. 

India is a "Union of states" with federalism as the most basic aspect of country's stable polity. However, resource wise the union government has far greater edge than the states.

1. All major taxes like income tax, wealth tax etc. are with Center.

2. Taxes governed by state are inelastic in nature and insufficient too.

3. States have complained that despite growth, the taxes received by states have not increased proportionately.

4. There is wide inter state disparity and politicization of in allotment of discretionary GRANTS by centre.

5.A rise in centrally sponsored schemes increases the administrative burden without rise in revenue.

6.States have no share in income from sale of spectrum etc.

7. Local government too are eating away state's resources.

For mitigating above grievances

1.Integration of market through GST is must which will have increased investment through FDI and Pvt. sector.

2. Rationalization the formula of tax distribution through transparency in functioning of finance commission and de-politicization of appointment.

3. Introduction of fixed percentage of flexi funds as per needs of state.

4. Centre should emphasize less on centrally sponsored schemes.

Fiscal federalism requires a broad framework of equity and justice. This should be followed through the lens of cooperative federalism to achieve growth and inclusive growth.

The Right of Persons with Disabilities Bill, 2014

The Rights of Persons with Disabilities Bill, 2014 was introduced in the Rajya Sabha on February 7, 2013 by the Minister of Social Justice and Empowerment, Mr. Mallikarjun Kharge.  The Bill repeals the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995. Definition of disability: Disability is defined to include 19 conditions such as: autism; low vision and blindness; cerebral palsy; deaf blindness; haemophilia; hearing impairment; leprosy; intellectual disability; mental illness; muscular dystrophy; multiple sclerosis; learning disability; speech and language disability; sickle cell disease; thalassemia; chronic neurological conditions; and multiple disability.  Persons with benchmark disabilities are defined as those with at least 40 per cent of any of the above specified disabilities.   Rights of persons with disabilities: The Bill states that persons with disabilities shall have the right to equality and shall not be discriminated against on grounds of their disability.  Rights of disabled persons include protection from inhuman treatment and equal protection and safety in situations of risk, armed conflict, humanitarian emergencies and natural disasters. All existing public buildings shall be made accessible for disabled persons within five years of the regulations being formulated by the National Commission for Persons with Disabilities.  No establishment will be granted permission to build any structure, issued a completion certification or allowed to occupy a building, if the building does not adhere to the regulations formulated by the Commission. Education, skill development and employment:  The Bill provides for the access to inclusive education, vocational training and self-employment of disabled persons. All government institutions of higher education and those getting aid from the government are required to reserve at least five percent of seats for persons with benchmark disabilities. The central and state governments have to identify posts in establishments under them to be reserved for persons with benchmark disabilities.  At least five percent of the vacancies are to be filled by persons or class of persons with at least 40 percent of any of the disabilities.  Of this, one per cent shall be reserved for persons with (i) blindness and low vision; (ii) hearing and speech impairment; (iii) locomotor disability; (iv) autism, intellectual disability and mental illness; and (v) multiple disabilities.  The Bill provides that the reservation has to be computed on the basis of total number of vacancies in the strength of a cadre.  The government may exempt any establishment from this provision.  Legal Capacity: Disabled persons have the right, equally with others, to own and inherit movable and immovable property, as well as control their financial affairs.  Guardianship: The Bill provides that if a district court finds that a mentally ill person is not capable of taking care of himself or of taking legally binding decisions, it may order guardianship to the person.  The nature of such guardianship is also specified. National and State Commissions for persons with disabilities: The central and state governments are required to establish a National and State Commissions for Persons with Disabilities, respectively.  The Commissions will be composed of experts and be required to (i) identify any laws, policies or programmes that are inconsistent with the Act; (ii) inquire into matters relating to deprivation of rights and safeguards available to disabled persons, (iv) monitor implementation of the Act and utilisation of funds disbursed by governments for the benefit of disabled persons. Central and state advisory boards: The central government and state governments shall constitute Central and State Advisory Boards on Disability.  The boards shall advise governments on policies and programmes on disability and review the activities of organisations dealing with disabled persons.

मिलिए प्लम्बर आबिद सुरती से

आबिद सुरती फिलहाल ७९ बरस के हैं. वही धर्मयुग के कार्टून कोना ढब्बूजी वाले. वही ‘पराग’ में छपी जिनकी किस्तवार किताब ‘बहत्तर साल का बच्चा’ आज भी मेरी सर्वप्रिय पुस्तकों में शुमार है.

बहुत कम लोगों को पता है कि राष्ट्रीय ख्याति का यह अलबेला, अनूठा कलाकार, कार्टूनिस्ट, लेखक पिछले कई सालों से मुम्बई में पानी बचाने की अपनी ख़ास तरह की मुहिम में जुटा हुआ है. उनसे अगर आप उनकी उपलब्धि की बाबत पूछें तो तो वे कहते हैं कि उन्होंने कोई बीसेक लाख लीटर पानी को नालियों में जाने से बचाया है आज तक.

हर इतवार को मुम्बई के सुदूर उपनगर मीरा रोड के इलाके में वे अपने एक मिस्त्री दोस्त के साथ किसी भी घर के टपकते  नल को ठीक करने एक सूचना मिलते ही निकल जाते हैं. उनकी यह सेवा मुफ्त होती है.

इसके बदले उन्हें क्या मिलता है? इस सवाल के जवाब में वे कहते हैं “बहुत सा पानी ... और कभी कभार लंच का प्रस्ताव भी.”

“मैं मुम्बई की फुटपाथों पर बड़ा हुआ था जहां पानी के लिए कई बार भीषण हिंसा तक हो जाया करती थी. सो मुझसे एक भी बूँद पानी का बर्बाद होना बर्दाश्त नहीं होता.”  

इस की शुरुआत की कहानी जानना चाहिए तो वे बताते हैं कि एक दफा एक दोस्त के घर उन्हें निमंत्रण पर जाना हुआ. वहां बाथरूम में टपकते नल ने उन्हें बुरी तरह खीझ से भर दिया. दोस्त से इस बाबत शिकायत की गयी तो उत्तर मिला “करा लूँगा.” पर जैसा हम लोग अक्सर करते हैं दोस्त ने भी किया कुछ नहीं. अगली बार जब आबिद ने तनिक डपटते हुए पूछा तो दोस्त ने बहाना बनाया कि मुम्बई में आसानी स४ए प्लम्बर नहीं मिलते क्योंकि इतने छोटे से काम के लिए आने को कोई भी तैयार नहीं होता. .

आबिद कहते हैं “मैंने पढ़ रखा था कि अगर एक सेकेण्ड में एक बूँद पानी बर्बाद होता है तो महीने भर में कुल मिलाबर वह एक हज़ार लीटर हो जाता है. तो बिसलेरी के पानी की १००० बोतलें मेरे मन में कौंध गईं.” यह बात सन २००७ की है. और उसे इन्तार्नेशंल वाटर ईयर के तौर पर मनाया जा रहा था. उस साल आबिद को उत्तर प्रदेश हिन्दी साहित्य संस्था ने १०००० रूपये का इनाम दिया था जिसका इस्तेमाल उन्हीने अपने नए मिशन के लिए करने की ठान ली.

  

तो हर इतवार को आबिद साहब कुछेक नल ठीक करते हैं और कुल छः सौ रुपये इस काम में खर्च करते हैं. और पैसे जुटाने के लिए वे टीशर्ट्स प्रिंट करते हैं जिन पर पानी बचान के काम में लगे उनके एनजीओ का लोगो छपा होता है. “टीशर्ट छपने में १०० रूपये खर्च होते हैं और मैं लोगों से कहता हूँ कि वे सौ रूपये से अधिक पैसा उसके लिए दें. कोई ११० रूपये देता है तो कोई १०००.

टपकते नल को ठीक करने मेबं एक वाशर लगता है बस. थोक में इसकी कीमत २५ से ५० पैसे तक होती है. इस समाजसेवा में सबसे अधिक खर्च प्लम्बर के आनेजाने में होता है.

हर साल आबिद करीब १६०० घरों में जाया करते हैं. और अनुमानतः ४१४००० लीटर पानी बचाते हैं. और अब तो वे खुद भी यह काम करना सीख गए हैं.

“गंगा और यमुना को बचाने की बातें बहुत बड़ी हैं और उस के आप स्वयं कुछ नहीं कर सकते. हाँ अपने घर में टपकता नल ठीक करा लें तो बड़ी सेवा होगी.”

सुरती के इस फितूर का नाम है ‘ड्रॉप डैड’.

( कबाड़ख़ाना से साभार )

Bapu's Love Letter to Ba

दिनांक- 09/11/1908

कस्तूरबा,

तुम्हारी तबीयत के बारे में श्रीधीर ने आज तार भेजा है, मेरा दिल चूर-चूर हो रहा है. लेकिन तुम्हारी चाकरी करने के लिए आ सकूं, ऐसी हालत नहीं है. सत्याग्रह की लड़ाई में मैंने सबकुछ लगा दिया है. मैं वहां आ ही नहीं सकता. जुर्माना भरूं तभी आ सकता हूं और जुर्माना तो हरगिज नहीं दिया जा सकता.

तुम हिम्मत बांधे रखना. अच्छे से खाना खाओगी तो ठीक हो जाओगी. फिर भी मेरी बदकिस्मती से तुम जाओगी ही. अगर ऐसा होगा तो मैं तुमको इतना ही लिखता हूं कि तुम जुदाई में, पर मेरे जीते जी, चल बसोगी तो मेरी बात न होगी. मेरा प्यार तुम पर इतना है कि मरने पर भी तुम मेरे मन में हमेशा जिंदा रहोगी. यह मैं तुमको पूरे विश्वास से कहता हूं.

अगर तुम्हारा जाना ही हुआ, तो तुम्हारे बाद मैं दूसरी स्त्री नहीं करनेवाला हूं. यह मैंने तुम्हें पहले भी एक-दो बार कहा है. तुम ईश्वर पर यकीन रखकर प्राण छोड़ना. तुम मरोगी तो वह भी सत्याग्रह का एक अंग होगा. मेरी लड़ाई सिर्फ राजनीतिक नहीं है, बल्कि धर्म की लड़ाई है.यानि बहुत ही पवित्र लड़ाई है. इसमें मर भी जाये तो क्या और जीते रहें तो भी क्या? तुम भी ऐसा ही मानकर अपने मन में थोड़ा भी बुरा भाव नहीं लाओगी, ऐसी मुझे उम्मीद है, तुमसे यही कामना है.

गांधी

स्रोतः लव लेटर्स, प्रकाश पंडित.

Focus on higher education to improve states' economy

If individual states want to improve their economic situations, they should concentrate and invest in the higher education sector.

In a report on the annual status of higher educational universities and colleges in India, data analysis shows a very direct link between states that have higher "knowledge direction" and the state of their economies. In other words, states that lay more emphasis on the quality and depth of their higher education are economically better placed than those that do not.

Establishing this direct link will encourage states to come forward to invest in higher education. Or this is what the Centre and the Ministry of Human Resources Development hope.

Rohin Kapoor, senior manager, Deloitte India, who has worked on this report for two years, said: "The strength of correlation between education and economy is startling. States with superior knowledge direction have in general superior economies."

The Centre has allocated almost Rs 99,000 crore under the Rashtriya Uchchatar Shiksha Abhiyan (RUSA) for improvement in higher education institutes, especially in infrastructure in the 12th and 13th Five- Year Plans. Of this, the Centre is to provide Rs 69,675 crore and states are expected to contribute Rs 28,459 crore.

The states are required to contribute financially to make the scheme a success. But states have so far in the past been reluctant to invest generously in the sector. Unless the states recognise the relevance of investment in education, the state of colleges and universities cannot be improved.

Further, at a macro level, to attract foreign investment in the education sector, the government needs to clear the foreign universities Bill but it also needs to amend and align the way different arms of the government treat foreign direct investment(FDI) in the education sector. Also, different wings of the government prescribe different things. The Department of Industrial Policy and Promotion (DIPP) says 100 per cent foreign investment is permitted in the education sector. This is one arm of government. Then, the AICTE (All India Council of Technical Education) Act says no foreign investment is allowed, directly or indirectly, in setting up a technical institute in the country. So, FDI is out. The University Grants Commission (UGC), a third aspect, simply does not recognise foreign universities, so that rules out foreign investment totally.

Says Deloitte's Kapoor: "The different wings of the government need to echo the same voice. The UGC Act 1956 needs to be amended urgently. At present, it does not recognise foreign universities. It does not define it. So, it clearly cannot regulate it. If you do not recognise something, how can you regulate it?"

As a result, so far, India has only got Rs 4,900 crore of foreign investment in the education sector - not in formal education but in skill development, training schools and so on. The government has to realise that it cannot solve this problem on its own.

The number of institutes that can be set up through philanthropy will always be limited. "You can build a regulatory mechanism that has a strong monitoring and quality control process. There are companies in the US that run very high quality colleges and are firms listed on the stock exchange. This model can be replicated here too. A crystal clear regulatory framework will help eliminate the fly by night operators or those who are in it for a quick buck," explains Kapoor.

At a countrywide level, issues like enrolment and gender disparity have been addressed to some extent over the years. "The new issues are poor quality of teaching and staff. Our focus needs to shift altogether. Some of the softer issues need to be addressed far more seriously," says a former advisor to the Planning Commission. He argues that what is worrisome is that there is no plan for instance to set up teacher training academies to bridge the shortage of teachers. Nor is there any clear attempt to improve the quality of teaching staff. There are no attempts being made to try and raise salaries of teachers and make teaching a career of choice.

The HRD ministry is now trying through the setting up of an Indian Institute of Technology (IIT) and an Indian Institute of Management (IIM) in each state. For one, there is such a high demand for seats in these institutes; this will make them more accessible for everyone. Two, this is expected to have a rub off on other educational institutes in the state. They will act as a role model, so to speak, for other colleges in the region to emulate.

But there is already a 40 per cent shortage of teachers at the existing IITs and IIMs. It is possible that retiring faculty from the IITs and IIMs might be asked to mentor staff at the new institutes.

At a micro level, there are several problems across states that need to be fixed. For instance, 40 per cent of enrolments in all colleges are for humanities, social sciences (even higher than engineering and medical); yet, in India, there are hardly any liberal arts colleges or even courses on offer, which would allow students to sample all the liberal arts before choosing what they specialise in.

Then, non-teaching staff in colleges in some states is way too high. So, in states like Delhi (where jobs are typically handed out on sifarish), the average non-teaching staff per college is 171 instead of the national average of 34. States such as Bihar have a very high pupil-teacher ratio of 37 against the all India average of 13.1.

Gender disparity, which is not as sharp as one would expect in enrolments (55 per cent males and 44 per cent females), in teaching staff, however, remains significant. Sixty-one per cent of the teaching staff is male and 39 per cent is female. This drops further when one looks at the non-teaching staff with the percentage of males at 73 per cent.

Anjuli Bhargava  Source: http://www.business-standard.com/article/economy-policy/focus-on-higher-education-to-improve-states-economy-115012600814_1.html

Into the Abyss / Jitendra

The lot of the embattled Indian farmer only keeps on getting worse with the passage of time. In the last 10 years, the voluminous debt of Indian agricultural households has increased almost four-fold whereas their undersized monthly income from cultivation has increased three-fold. Even the number of indebted agricultural households has increased in the last 10 years. At the same time, there has been a micro-increment in the number of agricultural households in India.

All this is according to the recent report of the National Sample Survey Office (NSSO), released on December 19, 2014. The report, titled ‘Situation Assessment Survey of Agricultural Households in India’, is based on a countrywide survey of 35,000 households by NSSO during 2012-2013.

It states that 52 per cent of the total agricultural households in the country are in debt. The average debt is Rs 47,000 per agricultural household in this country, where the yearly income from cultivation per household is Rs 36,972.

The report comes after a gap of 10 years. The last Situation Assessment Survey by the NSSO was for 2002-03. In that year, 48.6 per cent of agricultural households were in debt. The average debt was Rs 12,585. And the yearly income from cultivation per household was Rs 11,628. At the time, India had a little less than 89.35 million agricultural households.

In fact, some think that the report may not even be reflecting the entire truth. “The NSSO survey gives us an idea of the existing situation but not the clear picture. In my opinion, it is not just 52 per cent agricultural households that are in debt but 80 per cent,” says Devinder Sharma, a food analyst. “If you adjust for inflation, on an average 7 per cent every year, farmers’ incomes have remained frozen in the past 10 years,” says Sharma.

The other main takeaway from the NSSO report is that the debt is being incurred by the the richer, more prosperous farmers. NSSO data shows that richer agricultural states like Kerala, Andhra Pradesh and Punjab have the highest average outstanding loans per agricultural household, whereas poorer states like Assam, Jharkhand and Chhattisgarh have the lowest amount of average outstanding loans.

This is substantiated by the data which shows that among agricultural households which possess less than 0.01 ha the share was only 15 per cent of the total outstanding institutional loan, whereas for households which possess more than 10 ha the share was about 79 per cent.

Reasons behind the rise

The question then is: why have farmers’ debts increased? Ashok Gulati, former chairperson of Commission for Agricultural Costs and Prices (CACP), thinks outstanding loans to farmers are natural because of increasing intensification in agriculture. “As the intensification of agriculture increases, so does the loan.

The loan would be in the form of working capital, else the fixed capital will increase,” says Gulati.

Others believe that this report is like the one in 2002-2003 and brings out the same systemic problems. They add that India has not learnt anything in the past one decade. One such issue is investment in the sector. Even as agriculture has intensified, investment in it is very less. Even the yearly agriculture budget is not more than that of the flagship employment guarantee programme, Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA).

“The current year’s budget of agriculture was nearly Rs 31,000 crore while the MGNREGA budget was nearly Rs 34,000 crore. If we see the seven-year budget, the ministry budget was never more than MGNREGA,” says Sharma.

According to A note on Trends in Public Investment in India by S Mahendra Dev, Director, Indira Gandhi Institute of Development Research, Mumbai, the share of private investment in total investment in agriculture increased significantly over time from about 50 per cent in the early 1980s to 80 per cent in the decade of the 2000s. In other words, the share of public investment declined from 50 per cent to 20 per cent during the same period.

The public sector investment showed a negative growth in the 1980s and 1990s and a growth of 15 per cent in the 2000s. On the other hand, growth rate of private investment increased gradually from 2.5 per cent in the 1980s to 4.1 per cent in the 1990s and 52 per cent in the 2000s.

Another reason debt has increased is that market price of agricultural produce is not commensurate with rising input cost. Dev says that two-thirds of farmers do not get minimum support price (MSP) for their crops and are compelled to sell their crops at lower rates in the open market.

“Seventy-five per cent of farmers in India sell in the open market at lower than fixed MSP. Only the farmers of Punjab and Haryana get MSP. The situation of other states is deplorable,” says Dev. “For instance, in 2009, when I was the chairperson of CACP, in states like Bihar, farmers used to get Rs 700- Rs 800 for paddy when the MSP was fixed at Rs 1,000.”

The reason for farmers not being able to get MSP, according to the NSSO data, is that large numbers of them are not even aware of it. As per the data, only 32 per cent of paddy farmers are aware of MSP. But even then, less than half are able to sell their produce in government procurement centres.

“In collusion with local traders and commission agents, government agencies delay in starting procurement centres by 30 to 50 days. In between, farmers sell their produce to traders at lower than minimum price,” says Yudhveer Singh, a farmers’ leader.

Gopal Naik, who teaches agro-economy at IIM Bangalore, feels that total collapse of agriculture extension centres could also be the reason behind the outstanding loans and poor conditions of farmers. “The agriculture extension centres have collapsed. At one time, they were helping and guiding farmers in a number of situations like making the best use of pesticide, fertiliser consumption and modern tech, and making them aware of MSP and the nearest procurement centres,” he says. “Now farmers depend on dealers and sellers of pesticide for all that, which results in losses and non-profitability,” he adds.

Skewed debt

Naik believes the loan-waiving culture of the government also fuels continuation of outstanding loans. “Government policies are uncertain and increase the tendency of not repaying loans. It can also be a reason of increasing outstanding loans.encourage non-repayment of loans. The big land holders have high outstanding loans because they can easily access credit from institutions. They can access loan for other activities like setting poultry and other farms and wait till the government waives their loans,” says Naik.

The data shows that about 60 per cent of the outstanding loans were taken from institutional sources which included government (2.1 per cent), cooperative societies (14.8 per cent) and banks (42.9 per cent). But while the big farmers can afford to take loans, the small farmers still have no access to them.

“Credit from institutional sources is still a dream for small and marginal farmers,” says Jasveer Singh, a Bengaluru-based senior researcher who works on agricultural labourers’ issues. Anshuman Das, an activist who works with small farmers in Jharkhand, thinks that while they do not get institutional loans, they help in maintaining food security of the country.

“The small farmers practise farming which is different from that of big land holders. They try to keep investment low and innovate. For this, they do not access institutions for loans but are still dependent on non-institutional money lenders,” says Das.

The increasing debt and its skewed nature are surely driving many farmers away from agriculture. Agricultural house-holds are moving away to livestock, other agricultural activities, non-agricultural enterprises and wage employment. Data shows that 37 per cent of agricultural households no longer have agriculture as their principal source of income.

The contribution of agriculture in India’s GDP is nearly 18 per cent and it provides employment to nearly 56 per cent of the total workforce of the country. Despite this, as the NSSO report shows, the sector is no longer the first preference of rural households in India. It is heading towards a huge debt crisis and will need serious policy intervention instead of an ad-hoc approach.

source: http://www.downtoearth.org.in/content/abyss

IPC 498-A

Indian Courts had been using IPC 498-A to safeguard the women from facing the cruelty faced by them at their matrimonial home.

9 out of 10 of the cases are always related to dowry, wherein the woman is continuously threatened for want of more money and property which if remains unfulfilled, the married woman is tortured, threatened, abused- both physically and verbally and harassed.

Several cases show that the married woman takes advantage of the section. Many women rights’ groups justify the abuse of this section as being a common feature with all other laws and that also the ratio of false cases to that of true ones as being very low. But this still does not change the truth.

The abuse of this section is rapidly increasing and the women often well- educated know that this section is both cognizable and non-bailable and impromptu works on the complaint of the woman and placing the man behind bars.

Justice must protect the weaker and ensure that the wronged is given a chance to claim back his/her due. When women accuse their husbands under S.498A IPC by making the offence non-bailable and cognizable, if the man is innocent he does not get a chance quickly to get justice.

Misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon.

Therefore, the lawmakers must suggest some way of making this section non-biased to any individual such that the guilty is punished and the person wronged is given justice.

The draft National Health Policy 2015 needs to pay more attention to the basics of healthcare.

Over 63 million persons in India face poverty every year due to healthcare costs alone with the share of out-of-pocket (OOP) expenditure on healthcare as a proportion of total household monthly per capita expenditure being 6.9% in rural areas and 5.5% in urban areas in 2011-12. In view of this, the central government’s draft National Health Policy (NHP) 2015, which is in the public domain and open to suggestions and comments until 28 February, is particularly significant. The draft NHP intends to make health a fundamental right and therefore its denial a justiciable matter. It hopes that this will “give a push for more public health expenditure as well as for the recognition of health as a basic human right”.

Undoubtedly, this is a welcome proposal but the right to education, which was declared a fundamental right in 2009, comes immediately to mind. The parallels with healthcare are many: the quality of education in government schools and the quality of services in public hospitals and primary health centres; the insistence, as a result, of even poor parents on their children attending private schools, however badly run; the beeline to private hospitals even by poor patients; and the small and large glitches in the implementation of the law. The lesson is obvious: what looks excellent on paper becomes a different proposition when it has to be put into practice.

The draft policy proposes increasing the expenditure on healthcare from its present level of 1.04% to 2.5% of grossdomestic product (GDP) in the next five years. This increase is, however, way below the requirement but what is not convincing is the explanation for keeping it at 2.5%: the healthcare system’s low absorption capacity and inefficient utilisation of funding. Incidentally, the government got a lot of flak for the temporary cut of 20% in the 2014-15 healthcare budget. The draft policy hopes to create a health cess (similar to the education cess) on liquor and tobacco products. One will definitely need to examine whether such a cess will be even close to adequate. Nevertheless, the draft policy promises that there will be universal access to free drugs and diagnostics in hospitals even as it notes the fact that the national health programmes leave out 75% of the non-communicable diseases and not all communicable diseases are covered either.

However, it does seek to broaden the definition of primary healthcare to accommodate reproductive and child health as well as some non-communicable diseases. The draft also seeks to involve panchayati raj institutions in a big way and lists seven “priority” areas to get the community and media to participate. Among these are the Swasth Nagrik Abhiyan (of which the Swachh Bharat Abhiyan is a part), the Nasha Mukti Abhiyan (anti-tobacco and alcohol measures), Yatri Suraksha (prevention of accidents) and Nirbhaya Nari (against gender violence, sex determination tests, etc).

According to the draft policy, the private sector provides nearly 80% of outpatient care and 60% of inpatient care. However, while noting the many concessions by the government to build a “positive economic climate for the healthcare industry” and hoping to “intervene and to actively shape the growth of this sector for ensuring that it is aligned to its overall health policy goals”, the draft does not go anywhere near spelling out the forms of intervention, whether institutional or regulatory. Whether it is the National Accreditation Board for Hospitals and Healthcare Providers or the Clinical Establishments (Registration and Regulation) Act of 2010, the response of the private players has been far from enthusiastic.

The draft has just one paragraph on mental health noting that it needs urgent attention since the gap between service availability and needs is widest here with 43 facilities in the nation and 0.47 psychologists per million people. It includes the Mental Health Bill (there are a few others too) among those that need to be reviewed. Considering the state of the mentally ill in this country, this section needed to be much more comprehensive and well thought out.

Ultimately, the devil is in the detail. India’s public health services need so much more basic infrastructure, medical and paramedical personnel, ironing out of the implementation wrinkles in the health insurance schemes like the Rashtriya Swasthya Bima Yojana, promoting computer-enabled systems to reach out to patients (like Tamil Nadu has done), straightening out of the corruption-ridden system of procurement and distribution of drugs, these among a long litany of requirements. The private sector needs a massive dose of regulation and monitoring in almost all aspects, from pricing to crooked third-party administrators to patient-care standards. At the government level, there has to be a deep commitment to make health-for-all a deliverable right, starting with plugging the leaks and poor utilisation of funds under various schemes. All this must come before the claim to make the right to health a justiciable right.

source: http://www.epw.in/editorials/long-eloquence-short-detail.html

Role and Functions of NITI Aayog / M Govinda Rao

1 Demise of the Planning Commission

There have been wide-ranging discussions on the role and remit of the new institution to replace the Planning Commission ever since the prime minister in his 2014 Independence Day address declared that the Planning Commission would be replaced by a new institution. In the cabinet resolution passed on 7 January, the government has come out with the broad contours of the new institution, National Institution for Transforming India (NITI). The remit and functioning of NITI Aayog will become clearer as it evolves over time. This note analyses the possible role it can take and the challenges it is likely to face in carrying out remit assigned to it.

Not many will shed tears on the abolition of the Planning Commission. In fact, the previous prime minister himself had called for redefining its role to suit changing realities. The planning exercise that was followed had hardly any relevance for the market economy. It did very little to plan and implement even public sector investments for infrastructure and its role in promoting public-private partnership was mostly seen as obstructive. The whole exercise of giving approvals to state plans smacked of dispensing patronage. The proliferation of various centrally-sponsored schemes (CSS) with “one size fits all” design and conditionality contributed to severe distortions in public spending. Often, the Planning Commission came up with discretionary transfers to states to meet non-plan revenue deficits negating the norms set by the Finance Commissions. The presence of a member of the Planning Commission as a part-time member of the Finance Commission did very little to correct this anomaly.

There were two contradictions between the Indian development strategy and the institutional framework constraining economic environment over the years. The first is the contradiction between the planning framework and the role of the market. The initial years after Independence required a planning frame to allocate the low levels of savings to invest in much needed infrastructure and priority sectors to overcome severe infrastructure deficits and the lack of competitiveness of the economy. However, the framework failed to adapt to the transition after the liberalising reforms were initiated. With fiscal constraints becoming more and more binding and political economy factors crowding out infrastructure spending with subsidies and transfers, the planning exercise lost much of its relevance.

The second contradiction was between the centralised command over resource allocation and the developmental role of the states in a federal polity. The end of single party rule and the emergence of coalition governments and regional parties as members of the central coalition brought to the fore the contradiction between centralised planning in a federal framework. The response of the central government was to further centralise even by intruding into the legislative domains of the states by various means including the proliferation of CSS. The consequence of the above was that the two important sources of economic dynamism, the private sector and the states, had to function in a constrained environment.

The architecture, engineering and management aspects of the new institution, NITI Aayog, will have to be crafted carefully, if it has to serve as an institution to impart dynamism to the developmental process in a harmonious manner. First, economic liberalisation has created a vibrant private sector and the new institution should assist in policymaking to enable private entrepreneurs to unleash their animal spirits and not to constrain them. Second, horizontal and vertical competition in a multilevel fiscal system can be an important source of economic dynamism so long as a certain measure of “competitive equality” and “cost-benefit appropriability” are ensured and predatory competition is prevented. “Laboratory federalism” can be a source of innovations, imitations and learning and facilitating this is important. Third, coordination costs are higher when there are coalition governments and the parties in power in the states are different from that of the centre. There is an urgent need for an institution to promote healthy intergovernmental competition while preventing the “race to the bottom”. All these underline the need for an institution to promote “Coasean bargains” in the spirit of cooperative federalism and ensure resolution of issues when such bargains fail.

2 NITI Aayog: Role and Remit

The cabinet resolution lists 13 different tasks to it which may be grouped under four major heads, namely: (i) fostering cooperative federalism by providing structured support to states on a continuous basis; (ii) formulation of a strategic vision and long-term policies and programme framework both for the macroeconomy and for different sectors; (iii) acting as a knowledge and innovation hub and providing research inputs by undertaking and accessing globally available research; and (iv) providing a platform for interdepartmental coordination. Each of these functions is discussed here in some detail.

(i) Cooperative Federalism: Platform for Interface between the Centre and States: The most important responsibility of NITI Aayog relates to promoting “…cooperative federalism through structured support initiatives and mechanisms with the States on a continuous basis”. The Seventh Schedule to the Constitution demarcates the legislative domains and functional responsibilities of the union and states in terms of union, state and concurrent subjects. However, there is considerable overlap in the functions requiring coordination between the union and the states and among the states inter se. Carrying out stable and sustainable developmental agenda requires fostering the spirit of cooperation and cementing the federal structure.

The areas of coordination needed are many and some of them may be listed here. First, there is considerable overlap in carrying out legislative and executive functions in concurrent subjects. Recent years have shown the need for cooperation in areas such as energy and environment, education and poverty alleviation where the need for coordinated action and speedy decisions are critical for pursuing the developmental agenda. Second the union government may have to intervene in the national interest even if they are in the State List or Concurrent List. There may be some public services in the State List, which, for reasons of nationwide externalities or for redistribution require coordinated action to ensure minimum standards throughout the country. The examples include healthcare, urban development and poverty alleviation. In these cases, the state governments are the partners in achieving a common goal. Third, In the case of union subjects too, the states may be involved in implementation as agencies due to their proximity to the people. In addition, NITI can facilitate exchange of information and experiences and promote heathy intergovernmental competition through monitoring and regulation.

The most important issue which the NITI Aayog will have to deal with is the rationalisation of CSS as there is considerable resentment by the states on them. In 2011, there were over 147 schemes which have since been consolidated into 66, but a close examination shows that these have been retained as sub-schemes even in the new arrangement. The “one-size fits all” design of the schemes do not take account of varying local conditions and institutions, The large counterpart/matching fund requirements distort priorities of the states, conditionalities in availing the grants make them restrictive and the final distribution of transfers is very different from the original design. Finally, when the schemes are discontinued, they leave large committed liabilities on the states.

There is certainly a case for having specific purpose transfers for ensuring minimum standards of services which are considered to be of national importance. Given the collaborative nature of such schemes, they should be designed and implemented in the spirit of cooperative federalism. The schemes should be holistic with scope for flexibility in implementation depending on the varying local conditions and they should be limited in number (not more than 10). They should have considerable scope for flexibility in implementation. The new institution could provide a platform for designing the schemes, implementation systems, monitoring and evaluating them in a collaborative framework.

In order to enable NITI Aayog to play a constructive role in fostering cooperation, it is necessary to place the Inter-State Council, properly empowered under Article 263 of the Constitution, in the Aayog. This institution should be the nodal agency for negotiation, discussion, bargaining and resolution of all major issues. It should have the required expertise on intergovernmental relations, fiscal federalism and constitutional law.

(ii) Strategic Planning: One of the major tasks assigned to NIti Aayog is strategic planning at both macro and sectoral levels. Perspective planning helps to make projections on the macro variables and keep the policy perspective in view. The strategy and policies required to improve the standard of living of the projected population and improve human development to empower the people to productively engage them in economic activities over a long-term horizon are important. These should be constantly revisited to ensure their relevance.

The cabinet resolution also speaks about planning at the grass-roots level which implies that the exercise of medium-term planning could be continued, but in a different manner. It could be indicative planning to provide satisfactory levels of social and physical infrastructure for meeting the growing needs of the economy, with the roles of public and private sectors clearly defined. Grass-roots planning entails building up of the plan right from the village level based on the resource envelop, with each higher level aggregating the plans and adding the investment requirements for the category. In other words, the planning should be built right from the village, block and district levels and these should be harmonised with planning at the state level. Similarly, national planning should be the consolidation of state-level plans along with the planning infrastructure and service requirements for the country as a whole worked out at the union level. NITI can provide a framework for preparing the plans to the states and the latter, in turn, to the lower levels of government. It should also have a unit to advise and guide if any state is in need of such assistance.

(iii) Innovation and Knowledge Hub: Closely aligned to strategic planning is the role of NITI Aayog as a think tank facilitating partnerships between the stakeholders. Formulation of strategic vision and policies and programmes aligned to it as well as initiating and monitoring them requires state of the art research, technology upgradation and capacity building. As a major think tank of the government working on various developmental policies, it should not only have basic research capabilities but also should access and outsource research on relevant subjects globally. It should have a strong data bank consolidating data and information on economic, demographic, geographic and social variables relevant for research and policy. Among other functions, the institution should also provide a platform for experience sharing among the states.

(iv) Coordination: The fourth important task of the Aayog is to ensure inter-governmental and interdepartmental coordination. The disastrous consequences of lack of coordination between the infrastructure, including environmental, ministries on economic growth were clearly evident in the last years of the previous government.

3 Conclusions

The cabinet resolution lays down only the broad framework for the Aayog. The effectiveness of the NITI Aayog in transforming India will depend upon the clarity in the functions assigned, the status and power given and the quality of the people who will steer the institution. In fact, the first Aayog will have a tremendous responsibility of carving out a niche for itself, setting the pace and steering the transformation.

Thus, the effectiveness of NITI will depend on how it charts out a course for itself. Despite the claims of a marked departure from the past, the institution has to function in the prevailing milieu and deal with the burden of legacy. The important question is whether the Aayog will have influence when it does not have the power to give grants and when it does not have the powers to make plan allocations to different ministries and departments.

The abolition of the Planning Commission paves the way for restoring the role of the Finance Commission to assess the total requirements of the states in the revenue account without making a distinction between plan and non-plan spending. However, the Finance Commission does not have a comparative advantage in recommending specific purpose transfers unless it is made a permanent body. Of course, the constitutional provision does not require it to be a temporary body – Article 280 simply states that the commission should be appointed every five years or earlier; the appointed commission can continue until the new commission is appointed. However, so long as the Finance Commission continues to be a temporary body, the NITI Aayog will have a role in designing and implementing these programmes.

The legacy issues do not end merely with the abolition of the Planning Commission. There are parallel institutions in the states and it is important to transform them to meet the new requirements. Similarly, the Constitution requires the establishment of district planning committees and metropolitan planning committees. Their role in the new environment needs to be specified. Although the cabinet resolution states that NITI Aayog will facilitate grass-roots planning, how exactly this will be carried forward needs to be seen.

The success of the institution in achieving interministerial, interdepartmental coordination will depend on the trust and cooperation it receives from them and the harmony with which the Aayog and various ministries work. There could be tensions between the technocrats in the Aayog and various ministers on the one hand, and between the technocrats and bureaucrats on the other. There is also the danger of bureaucratisation of the Aayog. Similarly, success in fostering cooperative federalism will depend on the trust of and cooperation from the states. In particular, the first Aayog will have a tremendous task of shaping the character and charting a course to make it an important institution in Indian federal polity to transform India.

M Govinda Rao (mgrao48@gmail.com) was a Member of the Fourteenth Finance Commission; he was earlier Director of the National Institute of Public Finance and Policy.

source: http://www.epw.in/commentary/role-and-functions-niti-aayog.html