The HINDU Notes – 13th May 2020 - VISION

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Wednesday, May 13, 2020

The HINDU Notes – 13th May 2020

πŸ“° India may miss nutrition targets

Global Nutrition Report says it has highest rates of inequalities in malnutrition.

•India is among 88 countries that are likely to miss global nutrition targets by 2025, according to the Global Nutrition Report 2020 released on Tuesday. It also identified the country as one with the highest rates of domestic inequalities in malnutrition.

•In 2012, the World Health Assembly identified six nutrition targets for maternal, infant and young child nutrition to be met by 2025. These require governments to reduce stunting by 40% in children under 5 and prevalence of anaemia by 50% among women in the age group of 19-49 years, ensure 30% reduction in low-birth weight and no increase in childhood overweight, increase the rate of exclusive breastfeeding in the first six months up to at least 50% and reduce and maintain childhood wasting to less than 5%.

•According to the Global Nutrition Report 2020, India will miss targets for all four nutritional indicators for which there is data available, i.e. stunting among under-5 children, anaemia among women of reproductive age, childhood overweight and exclusive breastfeeding.

Underweight children

•Between 2000 and 2016, rates of underweight have decreased from 66.0% to 58.1% for boys and 54.2% to 50.1% in girls. However, this is still high compared to the average of 35.6% for boys and 31.8% for girls in Asia.

•In addition, 37.9% of children under 5 years are stunted and 20.8% are wasted, compared to the Asia average of 22.7% and 9.4% respectively.

•One in two women of reproductive age is anaemic, while at the same time the rate of overweight and obesity continues to rise, affecting almost a fifth of the adults, at 21.6% of women and 17.8% of men.

Stunting level

•The report emphasises on the link between malnutrition and different forms of inequity, such as those based on geographic location, age, gender, ethnicity, education and wealth malnutrition in all its forms. “Inequity is a cause of malnutrition — both under-nutrition and overweight, obesity and other diet-related chronic diseases. Inequities in food and health systems exacerbate inequalities in nutrition outcomes that in turn can lead to more inequity, perpetuating a vicious cycle,” says the report.

•India is identified as among the three worst countries, along with Nigeria and Indonesia, for steep within-country disparities on stunting, where the levels varied four-fold across communities. Stunting level in Uttar Pradesh is over 40% and their rate among individuals in the lowest income group is more than double those in the highest income group at 22.0% and 50.7%, respectively. In addition, stunting prevalence is 10.1% higher in rural areas compared to urban areas. The same applies for overweight and obesity, where there are nearly double as many obese adult females than there are males (5.1% compared to 2.7%).

•Coming at a time the world is battling COVID-19, which has exposed different forms of socio-economic inequities, the authors have called for promoting equity to address malnutrition.

πŸ“° Do numbers matter in Rajya Sabha?

Partnership between Lok Sabha and Rajya Sabha has been guided by cooperation, despite their divergent composition

•The Indian Constitution provides for parity of powers between the Lok Sabha and the Rajya Sabha in law, making an exception in some cases.

•The Money Bill or Finance Bills can be introduced only in the Lok Sabha which only can approve the Demands for Grants.

•On the other hand, the Rajya Sabha has some special powers as requiring to adopt a resolution allowing Parliament to legislate on subjects in the State List and creating All India Services, besides approving proclamations of Emergency and President’s Rule when the Lok Sabha is dissolved.

•Renowned British philosopher and political economist John Stuart Mill as early as in 1861 said in his great treatise Considerations on Representative Government that management of free institutions requires conciliation; a readiness to compromise; a willingness to concede something to opponents and mutual give and take.

•The Bryce Conference on Reform of House of Lords in early 20th Century observed that a second chamber is to interpose only so much delay in the passing of a Bill into law as may be needed to enable the opinion of the nation to be adequately expressed upon it. Famous constitutionalist Abbe Sieyes pithily noted that if a second chamber dissents from the first, it is mischievous; if it agrees, it is superfluous.

Obstructionist tag

•If the House of the People is prone to passions of the moment and volatile political considerations, is the Rajya Sabha free from the same? Has the Rajya Sabha been obstructionist?

•To understand these in perspective, a scrutiny of law-making in the country since 1952 may be in order.

•Elections to the Lok Sabha are held every five years and before that on dissolution of the House. For the Rajya Sabha, one-third of the members are chosen every second year reflecting its permanent nature. While the Lok Sabha elections hold a mirror to the recent will of the people, the Rajya Sabha is envisaged to convey the same in different phases of development marking some continuity. The Executive lasts only as long as it has a majority in the Lok Sabha, but in law-making, both the Houses are at par. Given the possible variations in the composition of both the Houses on account of different modes of election to them, did it impact the nature and speed of legislation?

Unlike Lok Sabha

•An analysis undertaken by the Rajya Sabha Secretariat recently revealed that during the past 68 years since the first general elections in 1952, the government of the day had a majority in the Rajya Sabha only for 29 years and was in a minority for 39 years, including an unbroken stretch for the past 31 years.

•This pronounced divergence in numbers in the two Houses of Parliament does not indicate any adverse impact on the broader course of legislation except in a few cases. Since 1952, the Rajya Sabha held 5,472 sittings and passed as many as 3,857 Bills till the Budget Session this year. There are, however, a few discordant notes during this long journey of legislation. But there is no case for terming Rajya Sabha as “obstructionist”.

•So far, Parliament held only three Joint Sittings to resolve differences between both the Houses. The first instance was in 1961 when the then Nehru government enjoyed a majority in the Rajya Sabha but the Dowry Prohibition Bill, 1959 suffered a defeat. In 1978, the Banking Services Commission (Repeal) Bill, 1977 was rejected by the Rajya Sabha and in 2002, the Prevention of Terrorism Bill, 2002 could not pass the Rajya Sabha scrutiny.

•The Rajya Sabha was taunted as regressive when it rejected the Constitution (Twenty-fourth Amendment) Bill, 1970 for abolishing privy purses to erstwhile rulers after it was passed by the Lok Sabha. In 1989, the Constitution (Sixty-fourth and Sixty-fifth Amendment) Bills seeking to empower local governments fell short of the required special majority in the Rajya Sabha, though the government had the numbers.

•The required spirit of cordiality between the two Houses suffered a dent on some occasions. First when Rajya Sabha members were not included in the Public Accounts Committee in 1952. Again, when the Income Tax (Amendment) Bill, 1953, was introduced in the Rajya Sabha, some members questioned its certification as a Money Bill by the Lok Sabha Speaker. When the controversy was thickening, Prime Minister Nehru intervened, asserting that “For those who are interested in the success of the great experiment in nation building that we have embarked upon, it is a paramount duty to bring about this close cooperation and respect for each other (House).”

•Rajya Sabha members objected to when the Lok Sabha Speaker referred the Major Port Trust Bill, 1963 to its Select Committee without involving Rajya Sabha members and this Bill was later referred to its own Select Committee again.

•Continuing with some reservations voiced in the Constituent Assembly about having a second chamber, some members of the Lok Sabha moved resolutions as early as in 1954 and again later in 1971, 1972 and 1975 for the dissolution of the Rajya Sabha. But wise counsel prevailed and such efforts were thwarted.

•As per the constitutional provisions, the Rajya Sabha at best could hold a Money Bill for 14 days during when it has to return such Bills without or with amendments for the consideration of the Lok Sabha. There were some occasions when such amendments of the Rajya Sabha were accepted by the other House as in cases of the Travancore Cochin Appropriation (Vote on Account) Bill, 1956, The Union Duty of Excise (Distribution) Bill and the Estate Duty and Taxes on Railway Passenger Fares (Distribution) Bill, 1957 and the Income Tax Bill, 1961.

•During these years, the government of the day enjoyed a majority in the Rajya Sabha. At the same time, there were instances when amendments proposed by the Rajya Sabha were rejected by the other House.

•There were occasions when the Rajya Sabha sat over Bills passed by the Lok Sabha for a long time including the Prevention of Corruption Bill, 1987 and the Dock worker (Safety, Health and Welfare) Bill, 1986. If this was checking hasty legislation, the Rajya Sabha had passed five Constituent Amendment Bills in one day on Auguest 25, 1994 when the government of the day did not have the numbers. The Rajya Sabha has also made amendments to several Bills passed by the Lok Sabha and these were accepted in several cases by the other House.

•Though the present government, too, does not have the required numbers in the Rajya Sabha, members of different parties rose to the occasion in passing landmark legislation relating to the GST, Insolvency & Bankruptcy Code, Triple Talaq, Unlawful activities, Reorganisation of Jammu & Kashmir, Citizenship amendment and so on.

•This goes to prove that numbers in the Rajya Sabha is not an issue as far as law-making is concerned. It is a different concern which applies broadly to the legislatures of the country.

Increasing disruptions

•An analysis by the Secretariat revealed that the productivity of the Rajya Sabha till 1997 has been 100% and above and the past 23 years have thrown up a disturbing trend of rising disruptions. Productivity fell to 87% during 1998-2004, 76% during 2005-14 and 61% during 2015-19.

•While the time spent by the Rajya Sabha on legislation since 1978 remained the same at about 29%, a concern emerges in respect of the ‘Oversight’ function of the House. Legislatures ensure accountability of the executive through Questions, Calling Attention Notices etc. Time share of this important Oversight function of the Council of States in the total functional time of the House during 1978-2004 was 39.50%. This fell to 21.99% during 2005-14 and to 12.34% since 2015.

•This decline is primarily on account of disruptions forcing cancellation of Question Hour frequently. Disruptions also dent the quality of law-making as seen in passing of Bills without discussion sometimes.

•However, the Rajya Sabha is proving to be more and more a ‘deliberative’ body with increasingly more time being spent on this function. The time share on deliberations under instruments like Short Duration Discussions, Zero Hour, Special Mentions, Discussion on Budgets and working of ministries, Motion of Thanks to President etc was 33.54% during 1978-2004. It rose to 41.42 % during 2005-2014 and to a high of 46.59% during 2015-19.

•After the initial frictions, Rajya Sabha and Lok Sabha have proved to be constructive partners in steering the socio-economic transformation of the country since 1952, co-scripting pioneering laws. This partnership has been guided by the required spirit of co-operation and camaraderie despite divergence in the composition of both the Houses for most part of this journey. By virtue of this, Rajya Sabha can’t be said to be ‘obstructive’.

•What needs to be addressed by all the stakeholders is that while enabling Rajya Sabha to retain its independence, it should not be seen as ‘disruptive’ as evidenced over the past two decades. Political passions should not be the basis of such disruptions, if the perception is that they are. The line between obstruction and disruption is very thin and we should guard against it. Both the sides of the House have a stake in proper functioning of Rajya Sabha.

πŸ“° India caught in U.S.-China spat over Taiwan’s status at WHO

Jaishankar attends seven-nation meet on UN body

•As tensions between the U.S. and China rise over the novel coronavirus pandemic, India, which is set to take over as the next Chairperson of the World Health Organisation’s decision-making executive body in May, is faced with a major choice on whether to support a U.S. move to reinstate Taiwan’s observer status at the World Health Assembly (WHA) or to China’s opposition to it.

•On Monday, External Affairs Minister S. Jaishankar attended a seven-nation virtual meeting of Foreign Ministers, convened by U.S. Secretary of State Mike Pompeo, which appeared to be part of Washington’s efforts to gain support for its move to effect changes at the WHO.

•The U.S. has, in the recent past, accused it of acting as a “PR agency” for China during the pandemic.

•On Wednesday, Mr. Jaishankar will take part in a virtual meeting of the 8-nation Shanghai Cooperation Organisation (SCO) led by China and Russia, which will discuss responses to the pandemic. The meeting was held on the same day the U.S. Senate passed an Act (S.249) to “direct the Secretary of State to develop a strategy to regain observer status for Taiwan in the World Health Organization”, beginning with its decision-making body, the WHA. The Geneva-based WHA will hold a virtual meeting on May 18 and 19 to elect members to the 34-nation Executive Board, among other things, and it will be followed by a Board meeting on May 22.

•Officials have confirmed that India’s nominee will take over as the Chairperson, replacing Japan.

•India is likely to hold the post for the next three years. The timing of the appointment is crucial, given the worldwide debate on the role of the WHO during the pandemic, and criticism of WHO Director-General Tedros Adhanom Ghebreyesus.

•The seven-nation meeting was attended by the foreign ministers of Australia, Brazil, India, Israel, Japan, and the Republic of Korea. Significantly, all invitees other than India are major non-NATO allies of the United States, who would be expected to support Washington’s call.

•“Secretary Pompeo and his counterparts discussed the importance of international cooperation, transparency, and accountability in combatting the COVID-19 pandemic and in addressing its causes,” said U.S. State Department spokesperson Morgan Ortagus, in a veiled reference to China and the origins of the virus in Wuhan.

•“They also discussed collaboration toward preventing future global health crises, reaffirming the importance of the rules-based international order,” Ms. Ortagus added.

•The MEA declined to comment on whether Taiwan was discussed during the meeting, or whether India has decided on supporting the US on its move to include Taiwan as a WHA participant. A senior official said the meeting had discussed “strengthening and reforming” the WHO.

•Mr. Jaishankar had tweeted on Monday that the “conversation covered pandemic response, global health management, medical cooperation, economic recovery and travel norms.”

•Japan said its Foreign Minister Motegi Toshimitsu stressed “the need for each country to share information and insights in a free, transparent, and timely manner.”

•South Korean FM Kang Kyung-hwa praised the US for its “leading role in discussing international cooperation” and also stressed on the importance of “rapid and transparent information sharing” to counter the Covid-19 virus.

•Meanwhile, China has also stepped up warnings on any attempt to include or support Taiwan’s role at the WHA, referring to the “One-China” principle as “a widely accepted universal consensus of the international community including the Indian government.”

•“China's position on Taiwan region’s participation in WHO activities, including WHA is clear and consistent. It must be handled according to the ‘One China’ principle,” tweeted Chinese embassy spokesperson Ji Rong, making it clear that New Delhi’s decision at the WHA will be watched closely in Beijing.

πŸ“° Getting cash transfers out of a JAM

For effective cash relief in response to the COVID-19 crisis, the government must think beyond the Jan Dhan Yojana

•For some years now, the so-called JAM trinity (Jan Dhan-Aadhaar-Mobile) has been propounded as a dream cash-transfer infrastructure for India. The term “trinity” itself gives a sense of the faith and fervour this project sought to inspire (why not “trio”?). It was born in chapter 3 of the Economic Survey 2015, titled “Wiping every tear from every eye: The JAM number trinity solution”. This early JAM promo humbly concluded that “nirvana today seems within reach”. The same lyrical tone can be found in the following year’s Economic Survey, where JAM’s virtues were praised once again.

An illusion and its fading

•What JAM really means, in practical terms, is conveniently vague. The original formulation, in 2015, mentioned two possible incarnations of the trinity: mobile banking and post office payments. The second option never made much headway, perhaps because it did not have enough scope for private profit. So Aadhaar-enabled mobile banking became the supreme goal. In January 2017, NITI Aayog CEO Amitabh Kant predicted the imminent demise of all cash-transfer paraphernalia other than mobiles: “... my view is that in the next two-and-a-half years, India will make all its debit cards, credit cards, all ATM machines all POS machines totally irrelevant… India will make this jump because every Indian will be doing his transaction just by using his thumb in thirty seconds...” This utopia was happily embraced by a familiar bandwagon of Aadhaar champions, software businesses, digital-payment companies, fintech wizards, and embedded economists.

•The intoxication reached new heights as the JAM project latched on to another flourishing narrative, universal basic income (UBI). If you want to make cash transfers to everyone, what better platform can you have than Aadhaar, India’s unique biometric ID, doubling up as a permanent financial address? An illusion emerged that India had developed an ideal infrastructure for UBI, ready to be deployed at any time.

•It took the coronavirus crisis for the bubble to burst. In the early days of the crisis, JAM was often invoked (sometimes along with UBI) as a possible tool of emergency relief. But when the time actually came to make cash transfers to the poor, JAM turned out to be of little use. For all the excitement it had generated, JAM had not gone beyond some fancy digital-payment systems for the privileged. Poor people, far from using the “thumb in thirty seconds” method to cash in, were still running from pillar to post to collect their meagre benefits from old-fashioned bank accounts (some also use the services of “business correspondents”, but those have little to do with JAM). Sure enough, long bank queues and related hardships have started emerging, especially in rural areas where the density of banks is relatively low. In a Dalberg survey conducted last month in 10 states, only 25% of poor households reported that it was “easy” to access cash benefits. The crowds are all set to swell further as and when the lockdown is lifted or relaxed.

•JAM enthusiasts may respond that the central government’s relief package does rely on Jan Dhan Yojana (JDY) at least – the J in the JAM, if not the entire trinity. Indeed, the lead cash-relief measure in the national relief package consists of monthly transfers of ₹500 to women’s JDY accounts. But is that a good idea?

•One way to think about this is to compare women’s JDY accounts with another possible basis for cash transfers, at least in rural areas: the list of households that have a National Rural Employment Guarantee Act (NREGA) job card. The numbers of accounts are roughly comparable: about 14 crore for NREGA job cards, and 12 crore or so for women’s JDY accounts in rural and semi-urban areas (assuming that the gender distribution of accounts is similar in rural and urban areas). For purposes of cash relief, the JDY approach turns out to fare poorly on several counts.

Errors galore

•First, JDY accounts are a mighty mess – the NREGA job-cards list is far more transparent and well-organised. During the frantic initial JDY wave, in 2014-15, banks opened JDY accounts en masse to meet the targets. Banking norms went for a toss: many accounts were opened without informed consent, duplicate accounts flourished, Aadhaar numbers were seeded without any safeguards, and so on. Later on, a large proportion of JDY accounts (40% in March 2017, down to 19% in January 2020) went “dormant” as customers were unable or unwilling to use them. Other accounts were blocked because the account holders were unable to complete timely ex-post biometric authentication (“e-KYC”) of the Aadhaar numbers that had been seeded into their accounts. It is not clear what proportion of JDY accounts are operational today, in the sense that a bank transfer to these accounts will actually reach the recipient in good time.

•Second, cash transfers to women’s JDY accounts are likely to involve large exclusion errors. According to a recent Yale study, less than half of poor adult women have a JDY account (an even lower proportion, 21%, know that they have a JDY account). Consistent with this, the Dalberg study mentioned earlier finds that the proportion of poor households where at least one adult woman has a JDY account is just 57%. The NREGA job-card list is likely to have much better coverage of poor households. The natural complementarity between NREGA and social security pensions (covering more than four crore persons under the National Social Assistance Programme alone) would further help to reduce exclusion errors.

•Third, inclusion errors are also likely to be larger in the JDY approach. Job cards are meant for rural workers, JDY accounts are for everyone. National Election Studies 2019 data, analysed by Sanjay Kumar and Shreyas Sardesai, show that JDY beneficiaries tend to be better-off than NREGA beneficiaries. Earlier survey data, analysed by Manuela Kristin GΓΌnther, suggest that the probability of having a JDY account is more or less the same for poor and non-poor households. Some of our middle-class female friends have already received SMS alerts informing them that their JDY account has been credited with ₹500 of relief money.

Back to cash in hand?

•What about the respective reliability of NREGA and JDY payments? There have been significant issues (e.g. delayed, rejected, blocked or diverted payments) with NREGA payments, often related to Aadhaar. But then, numerous “direct benefit transfer” schemes (social security pensions, scholarships, maternity benefits, among others) have faced similar problems, also reflected in official transaction data. Both the Aadhaar Payment Bridge System (APBS) and the Aadhaar-enabled Payment system (AePS) are shot through with technical glitches, possibly exacerbated by the recent surge in transactions, and especially unkind to the powerless. Transfers to women’s JDY accounts are unlikely to be more reliable than transfers to job-card holders.

•In fact, as far as effective payment is concerned, there is a further argument in favour of the NREGA job-cards list: unlike JDY accounts, it lends itself to the “cash-in-hand” method (on-the-spot payment in cash, instead of bank payments) as a possible fallback. The reason is that the job-cards list is a transparent, recursive household list with village and gram panchayat identifiers, while the list of JDY accounts is an opaque list of individual bank accounts. Cash-in-hand may seem like the antithesis of JAM, but this option may become important in the near future if the banking system comes under further stress. There are precedents of effective use of the cash-in-hand method, notably in Odisha for pension payments, and in various states for NREGA wage payments. Several states (including Andhra Pradesh, Odisha and Tamil Nadu) have already resorted to cash-in-hand for relief payments during the lockdown.

•In short, there is nothing compelling about the use of women’s JDY accounts for cash relief. In fact, it is a bit of a shot in the dark. The central government is unlikely to make a U-turn on this before the end of the Pradhan Mantri Garib Kalyan Yojana’s initial three-month period. It would do well, however, to consider other options after that, including a switch to the NREGA job-cards list in rural areas. As for the JAM trinity, it should come down to earth for a reality check.

πŸ“° Italy, India and a common thread in partnership

Both countries have opportunities to support a multilateral system which would aid the battle against the pandemic

•May 4 is a date that unites Italy and India in the current COVID-19 scenario. It is the day when both countries courageously decided to strike a fine balance between the need to restore industrial activities and supply chains and the duty to continue protecting their citizens from the spread of the novel coronavirus.

Endeavour in a phase

•What in India is commonly known as Lockdown 3.0 has been defined “Phase 2” in Italy. Regardless of how we call it, the stage that both countries entered that Monday reflects the same endeavour: first, we needed to put our economies and societies on hold to contain the virus; now while still working to strengthen our preparedness and our response to this global challenge, we need to be able to look forward and give our citizens and our businesses a positive outlook in the immediate future.

•Like India, Italy is also a country whose economy has a solid manufacturing base. That Monday, the new measures adopted by the Italian government allowed 4.5 million people to go back to work: the heart of our economic system started pulsating again. Nearly 50 economic and industrial activities were allowed on a national scale.

•In parallel, the government adopted new measures to make sure that the nearly three million people employed in the public sector would be able to develop digital processes and streamlined procedures so as to support the prompt resumption of activities by the private sector. It is something that we are also doing here in India, by developing the “Digital Embassy” project that will allow us to create many tools and processes to virtually interact and support our nationals, our businesses and our Indian counterparts.

•The endgame in Italy is to allow our entire workforce (roughly 24 million people) to recommence their activities. This need not come at the price of safety: the relevant Italian institutions have already defined adequate directives for workplaces and public places. These are based on measures that will resonate with the reader: wearing of face covers; thermal scanning; frequent sanitisation; adequate distancing.

•About the latter, I avoided the adjective “social” because I believe that it would be more appropriate to talk about physical distancing: sociality will be very much alive, just a little bit different than before.

Financial backing

•The resumption of industrial activities happens in a framework where financial support to businesses and citizens has already been launched both at the national and the European Union (EU) level. In terms of national financial resources, the Italian government has already provided guarantees up to €500 billion to make sure that Italian businesses can have access to the necessary liquidity. It has also adopted measures to support families and small and medium enterprises through grants, loans, debt rescheduling and other form of financial support. Furthermore, the Italian government was the first one to sign a protocol with trade unions for health safety at the workplace. The EU is also doing its part and has reached an agreement on three important safety nets for workers, businesses and sovereigns, amounting to a package worth €540 billion. The establishment of a recovery fund has also been agreed upon.

•The lockdown adopted by the Italian government is paying out. The numbers related to COVID-19 in Italy still deserve our utmost attention and we will not lower our guard until this threat to public health is removed. And, of course, in case of a resurgence of the contagion, we stand ready to introduce restrictive measures again to counter it effectively.

Points of convergence

•Maybe it is early to draw any lesson from this crisis, but it is already possible to say that the future that we will shape in the post-COVID-19 scenario will have very much to do with our ability to bring public goods and global commons at the centre of the political narrative and agenda. In this mindset, Italy and India will have an extraordinary chance to closely cooperate in the next months, since they will be holding the consecutive Presidencies (Italy in 2021 and India in 2022) of the G20, one of the world’s main fora for global governance. This will prove a unique opportunity to shape the international discourse around priorities that both countries hold dear: from taking advantage of our economic complementarity to strengthening our partnership based on shared values, on our thriving creating industries, scientific knowledge and technological prowess; from the development of a rules-based international system to the promotion of just trade, inclusive growth and the realisation of the 2030 Agenda. In this endeavour we will support an effective multilateral system, which would be the best political accelerator to win our battle against the novel coronavirus and to promote a sustainable, equitable and durable recovery. In this process we will not lose sight of the fight against climate change, since Italy will co-host the 26th session of the Conference of the Parties, COP26, in 2021, together with the United Kingdom, and India is one of the world’s major responsible stakeholders.

•In a nutshell, at both bilateral and multilateral levels, our dialogue will be based on the main tenets of innovation and sustainability. Innovation because this crisis has transformed the urge to develop new ideas, methods, processes and devices into the “new normal”; sustainability because, paraphrasing a popular saying: “we did not inherit the earth from our ancestors; we borrowed it from our children”.

πŸ“° Riding roughshod over State governments

Guidelines issued by the Centre to the States under the Disaster Management Act are unconstitutional

•The Central government has so far followed a mostly top-down approach in tackling the COVID-19 pandemic. During lockdowns 1.0, 2.0 and 3.0, the Centre has issued guidelines from time to time, ostensibly under the Disaster Management Act of 2005, containing varying restrictions on public activity and commerce which the States are expected to enforce. The Centre directs the State governments to scrupulously enforce every new set of guidelines, with the States only being allowed to increase and not dilute the restrictions. This centralised approach is counterproductive, has put the federal structure of India under strain, and is in fact beyond the powers of the Central government.

•Two examples show why this is counterproductive. One, the Central government, in its latest guidelines, has classified all districts in the country as red, orange or green zones in a bid to lift lockdown restrictions in an area-specific manner. Some States/Union Territories objected to the classification of certain areas/districts as red zones on the ground that these areas are very large. They pointed out that there was no need to keep economic activity on hold in an entire district when cases had been reported only from a small portion of that district. Two, Kerala, probably the best-performing State in terms of its response to COVID-19, was sent a missive by the Central government to refrain from relaxing restrictions in the State. The Kerala government had issued revised guidelines in mid-April following a near-perfect recovery rate and a steep fall in the number of cases. However, the Central government did not trust the wisdom and judgment of the State government in the matter.

•This centralised approach, apart from leading to undesirable outcomes, may not be strictly legal. A study of the Disaster Management Act, 2005 as well as relevant provisions of the Constitution makes it clear that this practice of issuing guidelines and directions to the States is itself unconstitutional.

The federal scheme

•Under the federal scheme, Parliament can legislate on matters under the Union List (List I), Stage legislatures can legislate on matters under the State List (List II), and both Parliament and State legislatures can legislate on matters under the Concurrent List (List III). The residuary power to legislate on matters that are not mentioned in either List II or List III vests with Parliament under Article 248 of the Constitution read with Entry 97 of List I. Furthermore, the rule of harmonious construction laid down by the Supreme Court in a number of judgments, including in Godfrey Phillips v. State of U.P. & Ors (2005), dictates that the entries in the legislative lists must be interpreted harmoniously, and in the event of any overlap between two or more entries, the specific subject matter contained in a particular entry must be deemed to have been excluded from another entry which may deal with a more general subject matter. Finally, as per Articles 73 and 162, the executive power of the Centre and the States is co-extensive with their respective legislative powers, which means that the Central and State governments can only take executive actions in matters where Parliament and State legislatures, respectively, have powers to legislate.

•Disaster management as a field of legislation does not find mention in either List II or List III, nor does any particular entry in List I specifically deal with this. Thus, the Disaster Management Act could only have been enacted by Parliament in exercise of its residuary powers of legislation under Article 248 read with Entry 97 of List I.

•The question is, can the Act be applied at all for dealing with a pandemic. The Disaster Management Act allows the Centre to issue guidelines, directions or orders to the States for mitigating the effects of any disaster. The definition of ‘disaster’ under the Act is quite broad and, literally speaking, would include a pandemic too. Such a reading of the Act would vest the Central government with powers to issue directions and guidelines to State governments for dealing with the pandemic in their States, which is what the Centre has been doing. However, ‘public health and sanitation’ is a specific field of legislation under Entry 6 of List II. This would imply that States have the exclusive right to legislate and act on matters concerning public health. Thus, the Centre’s guidelines and directions to the States for dealing with the pandemic trench upon a field of legislation and executive action that is exclusively assigned to the States — public health.

•The Supreme Court has held time and again that federalism is a basic feature of the Constitution and although the Union enjoys many more powers than States, the States are sovereign. The Disaster Management Act, having been enacted by Parliament under its residuary powers of legislation, cannot be applied to pandemics in view of the fact that the power to legislate on public health is vested specifically and exclusively with the States.

•At this juncture, an important caveat must be pointed out. Under Entry 29 of List III, both Parliament and State legislatures are competent to legislate on matters involving inter-State spread of contagious or infectious diseases. Therefore, theoretically speaking, Parliament would be competent to pass a law that allows the Central government to issue directions to the States to prevent inter-State spread of a disease like COVID-19. That law is not the Disaster Management Act which is concerned with disasters in general, and not pandemics in particular. ‘Prevention of inter-State spread of contagious and infectious diseases’ being a specific legislative head provided in List III, the same must be deemed to have been excluded from Parliament’s residuary legislative powers. Therefore, the Disaster Management Act, which has been enacted under Parliament’s residuary legislative powers, cannot be applied to the prevention of inter-State spread of contagious and infectious diseases.

Applying another law

•In fact, a law on this exists — the Epidemic Diseases Act, 1897, which has the objective of preventing “…the spread of dangerous epidemic diseases.” However, under this Act, it is the State governments which have the prerogative to take appropriate measures for arresting the outbreak or spread of a contagious or infectious disease in their respective States. The Central government’s powers are limited to taking measures for inspecting and detaining persons travelling out of or into the country. Even if that Act were to be amended, it would not empower the Central government to issue directions to the States to contain the pandemic within the State; it can only deal with inter-State spread of the disease. Therefore, instead of resorting to the Epidemic Diseases Act which gives powers to the States, the Centre has applied the Disaster Management Act, which has enabled it to ride roughshod over State governments. This is plainly unconstitutional. The States are not legally bound to observe the directions/guidelines being issued by the Central government and would be well within their rights to challenge them before the apex court.

πŸ“° Reaffirm cooperative federalism

Responding effectively to the pandemic requires the Centre to view the States as equals

•Many exigencies have tested the foundations of our federal democracy, but none as harshly as this pandemic. And when India’s success in defeating COVID-19 actively rests upon Centre-State collaboration, it is indeed its commitment to federalism that is under the most strain.

•Federalism, K.C. Wheare notes, traditionally signifies the independence of the Union and State governments of a country, in their own spheres. However, there was nothing traditional about the circumstances in which India’s Constituent Assembly met. Accordingly, even when its members carefully studied the Constitutions of other great federations like the U.S., Canada, Australia and Switzerland, they adopted a ‘pick and choose’ policy to formulate a system suited uniquely to the Republic’s need. As a result, India’s Constituent Assembly became the first-ever constituent body in the world to embrace what A.H. Birch and others have referred to as ‘cooperative federalism’ — essentially defined by administrative cooperation between the Centre and the States, and a partial dependence of the States upon payments from the Centre. Accordingly, Indian constitutional law expert Granville Austin remarks that despite a strong Centre, cooperative federalism doesn’t necessarily result in weaker States; rather, the progress of the Republic rests upon active cooperation between the two.

Fissures in cooperation

•Nevertheless, some recent developments have revealed fissures in Centre-State cooperation. For instance, the zone classifications into ‘red’ and ‘orange’ has evoked sharp criticisms from several States. The States have demanded more autonomy in making such classifications. This is despite the fact that State consultation is a legislative mandate cast upon the Centre under the Disaster Management Act of 2005 (under which binding COVID-19 guidelines are being issued by the Centre to the States). The Act envisages the creation of a ‘National Plan’ under Section 11, as well as issuance of binding guidelines by the Centre to States under Section 6(2), in furtherance of the ‘National Plan’. The ‘National Plan’ then is a broader vision document while the binding guidelines are its enforcement mechanism. Now, Section 11(2) of the Act mandates State consultations before formulating a ‘National Plan’, and to that extent, when the binding guidelines are ultimately issued under it, they are expected to represent the views of the States. However, the Centre has not formulated the ‘National Plan’, and has chosen instead to respond to COVID-19 through ad hoc binding guidelines issued to States, thereby circumventing the legislative mandate of State consultations. In fact, the Home Ministry order ushering in lockdown 3.0 prohibited States from lowering the Centre’s classifications. This selective application of the Act serves to concentrate all decision-making powers with the Centre.

Lack of funds

•The Centre has also declared that corporations donating to PM-CARES can avail CSR exemptions, but those donating towards any Chief Minister’s Relief Fund cannot. This directly disincentivises donations to any Chief Minister’s Relief Fund; diverts crores in potential State revenues to PM-CARES; and makes the States largely dependent upon the Centre. Further, the revenue streams of several States have dried up because of the liquor sale ban; negligible sale of petrol/diesel; no land dealings and registration of agreements. States’ GST collections have also been severely affected with their dues still not disbursed by the Centre. All this has made it difficult for States to defray expenses of salaries, pensions and welfare schemes. As it is the States which act as first responders to the pandemic, supplying them with adequate funds becomes a pre-requisite in effectively tackling the crisis. This requires the Centre to view the States as equals, and strengthen their capabilities, instead of increasing their dependence upon itself.

πŸ“° Parliamentary panel questions dilution of labour laws

Standing Committee writes to States on changes brought in amid lockdown.

•The Parliamentary Committee on Labour has written to State governments demanding an explanation on dilution of labour laws during the ongoing coronavirus (COVID-19) pandemic.

•Committee Chairman and BJD leader Bhartruhari Mahtab said any amendments to the law would need legislative sanction. The issue will be taken up, whenever the committee next meets.

Need legislative nod

•Speaking to The Hindu, Mr. Mahtab said, “We have written to the States seeking information related to the changes they have made in labour laws. They have utilised two instruments — using the executive order or ordinance. Whatever be the instrument, it has to get the sanction of the legislature and subsequently it will be scrutinised in the court of law.”

•The Madhya Pradesh, Uttar Pradesh, and Gujarat State governments have modified labour laws in a bid to attract investments and restart economic activity hit by the nationwide lockdown. Punjab, Himachal Pradesh and Gujarat have also amended their Factories Acts and increased the work hours from 8 to 12 hours a day or 72 hours per week.

•Asked whether these changes by the States while the country is battling the COVID-19 pandemic and Parliament has not met since March 22, is a case of executive overreach, Mr. Mahtab said, “I would say as per the Disaster Management Authority Act, in this time of pandemic, executive takes precedence in the decision-making processes.”

•However, he added, “But my only concern here is that Parliament is not in suspended animation; legislators have a role to play both inside and outside Parliament and they can very well do that.”

Revising laws

•The Narendra Modi-led NDA government has been working to codify 44 existing labour laws into four codes. The Code on Wages Bill was cleared recently. The Code on Occupational Safety, Health and Working Condition, Code on Industrial Relations and Code on Social Security are before the Lok Sabha.

•Several Opposition parties have severely criticised the move by BJP-run States to suspend labour laws. Ten Central trade unions on Monday said they were considering approaching the International Labour Organization (ILO) against the move.

πŸ“° COVID-19 and the path ahead

India needs to blend acute disaster management strategies with longer-term public health measures

•COVID-19 has caused severe disruption across the world. However, there are variations both among and within countries in the number of cases and in case fatality rates. In general, Europe and the U.S. have borne the brunt of the infection, while Asian and African countries have been relatively less affected so far. It is not yet clear why such geographical differences exist; they cannot be explained by healthcare facilities alone. India had reported its first case on January 30, 2020; as of May 12, it has reported over 71,000 cases and more than 2,300 deaths. In comparison, the U.S. and the U.K., which also reported their first cases around the same time, recorded over 13,47,930 cases and over 2,24,330 cases, and over 80,600 deaths and over 32,100 deaths, respectively.

•The relatively young population of India has been suggested as a possible factor for this stark difference. However, while older people are at highest risk from the more severe consequences of COVID-19, there is no evidence to suggest that younger people are immune to the infection. Differences in case ascertainment may explain some of the patterns: South Korea and Germany tested widely in an effort to identify cases, whereas some countries including India offered testing (at least in the initial stages) to only those with a history of foreign travel or with close contact with a known case. However, this does not explain differences in mortality. Also, case fatality rates may even be an underestimation in India where a number of asymptomatic cases may go undetected.

Possible reasons for differences

•Low temperature and low absolute humidity have been suggested as factors influencing transmission. But this theory needs further proof. Genetic variations may be a possible explanation. During the 2003 SARS epidemic, specific genetic variants that provided resistance or susceptibility to infection were identified in different populations. Population-specific differences such as ACE2 (which permits virus to enter the body) may partly explain the differential infection rates of COVID-19. It is also possible that some Asian and African populations have been exposed to a multitude of coronaviruses previously, which has provided some cross-immunity. The SARS epidemic did not affect South Asian and African countries significantly. The West Asian countries which bore the brunt of Middle East Respiratory Syndrome (MERS) do not appear to be significantly affected by COVID-19.

•Early adoption of countrywide preventive measures may have also played an important role. While European countries reacted with restrictions and closures, it remains a question if these measures were taken too late. India closed its doors to foreign travellers early on in the outbreak and has not seen the surge that could potentially have been expected for a population of 1.3 billion people. However, Sweden for example, has still not adopted major restrictions and not seen a large surge in cases.

Easing of lockdown

•If the epidemic does spread with generalised community transmission, the healthcare, social and economic implications will be significant.The lockdown in India has played a role in preventing an exponential surge in cases. However, a measured public health approach is critical in controlling this epidemic. Current approaches are largely urban-centric with little focus on rural dynamics. A decentralised approach is required to manage the large rural population, and the success in Kerala may serve as a useful model. Governments may consider mobilising and training a range of healthcare providers (including providers of primary care, and traditional healthcare systems) in responding to this situation. Crucially, the current practice of isolating all cases in hospital settings is not sustainable if cases increase.

•As it would be impractical to test everyone with symptoms, a case definition based on symptoms and local epidemiological context may be used to diagnose suspected COVID-19 cases. Those with mild symptoms (and their household contacts) should be advised to stay at home. If cases cannot be managed at home, community centres may be deployed for isolation. This approach will ensure that hospitals are available to those who really need them. The lifting of the lockdown needs to be undertaken in a phased manner. One approach would be to ensure that the vulnerable (such as the elderly and the immuno-compromised) are protected beyond initial lockdown periods, while restrictions are lifted for the majority of the healthy population. The disease has generally been mild among most people affected in the subcontinent, and it is possible that herd immunity may develop through gradual exposure among healthy individuals. While lockdown measures are lifted in a controlled manner, government public health agencies need to continue to promote hygiene measures. Physical distancing will need to be continued. Public health messages need to be locally tailored and consistent. They require not only awareness, but also resources as these are largely middle-class concepts and not easy to practice in crowded areas where there is no running water. In conclusion, the approach to the management ofCOVID-19 needs to blend acute disaster management strategies with longer-term public health measures including economic measures.