📰 True mettle: On India’s parathletes
India needs to develop infrastructure and improve access for differently-abled athletes
•India saw another fortnight of good tidings in sports from Tokyo. Close on the heels of the recent Olympics there, in which India claimed an overall tally of seven medals inclusive of a lone gold, the country’s differently-abled athletes extended this tale of excellence into the Paralympic Games. The quadrennial event, which concluded at the Japanese capital on Sunday, witnessed an exemplary show by these athletes representing 2.2% of India’s population, who are differently-abled. India finished 24th in the table with 19 medals that featured five golds, eight silvers and six bronzes. This was India’s finest outing at the Paralympics and eclipsed the previous best of four medals at the Rio de Janeiro edition in 2016. In a nation where sporting culture is sacrificed at the altar of academic excellence, any news about success on the turf has to be treated as a system-altering result. The challenges for the differently-abled are tougher, considering the body’s limitations that these athletes first cope with through sheer willpower, and then there is the secondary task of overcoming society’s innate scepticism. A simple access-audit of India’s urban buildings would reveal how even a ramp essential for the differently-abled is either missing or added as an after-thought. In 2016, an audit initiated by government agencies did not find a single building that was completely accessible to the differently-abled.
•Seen in that context, what India’s paralympic contingent achieved is mind-boggling. This was a leap of faith mounted on endless hours at grounds and inside gymnasiums while sharpening muscle-memory. The Indian contingent reflected life’s vicissitudes with athletes having personal stories steeped in tragedy: accidents, polio-afflictions or genetic issues. Yet, they strove towards excellence with an effervescent smile in place. Be it athletics, where javelin throwers are the toast of the month, or badminton or shooting, India had its moments of splendour. The five gold medallists — Sumit Antil, Pramod Bhagat, Krishna Nagar, Manish Narwal and Avani Lekhara — led from the front, and the last named 19-year-old shooter also won a bronze. India drew a blank in shooting at the preceding Olympics, but the differently-abled added five medals. The coaches, the Paralympic Committee of India and Sports Ministry played their parts while India excelled in a championship held in the shadow of a pandemic. Since its first medal at the 1972 Paralympics, India was a marginal presence until now. A reflexive-rewards exercise is on from various governments, and the corporate sector. If a percentage of those riches are allocated to improve sports infrastructure for the differently-abled, India will have more reasons for cheer in the coming years.
India must seize the opportunity to start a political dialogue to resolve the Kashmir issue
•Syed Ali Shah Geelani was more an Islamist than a Kashmiri nationalist, and his demise at the age of 92 brings down the curtain on a phase of separatist politics in the Valley. He represented a strident pro-Pakistan stream of Kashmiri separatism. Geelani inspired armed rebellion and remained a steadfast barrier for any potential political dialogue between New Delhi and Kashmir separatists. He opposed a settlement of the Kashmir question that the former dictator of Pakistan, Pervez Musharraf, had helped formulate. Geelani’s recalcitrance only hardened with age, but his death did not stir any public outpouring of Kashmir grievance even when heavy policing and communication restrictions in the Valley are accounted for. But there can be no denial of the fact that people have grown wary of the relentless cycle of conflict. Geelani’s brand of politics was losing mass support even before the Indian crackdown on separatists acquired a new aggressive edge after the Pulwama suicide attack in February 2019. The Narendra Modi government abandoned negotiations in Kashmir, not only with separatists but even with mainstream political parties, save a half-hearted initiative in June this year. After the erstwhile State of Jammu and Kashmir was stripped of its autonomy and reorganised into two Union Territories in August 2019, the decline of separatists including Geelani was evident.
•The volatile situation in Afghanistan, and Pakistan’s euphoria about the return to power of the Taliban in Kabul will have an impact on the situation in Kashmir. The Taliban have said they would ‘raise voice for Kashmir Muslims’ and Pakistan has always maintained that peace in Afghanistan is connected to a resolution in Kashmir. Global Islamists are exulting over the withdrawal of U.S. forces from Afghanistan. With Pakistan emerging as a key influencer in Kabul, the U.S. will have to seek new terms of engagement with it. New Delhi has been in self-congratulatory mode over Kashmir. Far from secession, even autonomy questions have been rendered irrelevant in conversations on Kashmir, which now revolve around restoration of its full statehood. However, the relative calm and silence in the Valley should not be mistaken for acquiescence. Political parties have expressed frustration over the fact that the June dialogue between them and Mr. Modi was aimless and not followed through. The political dialogue with mainstream parties must be carried ahead in full earnest. The chaos in Afghanistan presents challenges for India, especially in Kashmir, which need wider deliberations with the international community. But Geelani’s death could be an opportunity to set the stage for new conversations with various Kashmiri outfits. The Government must use this moment to initiate a comprehensive dialogue to find a way forward for a future of the people of Kashmir as an integral part of India.
📰 National Monetisation Pipeline and the infrastructure deficit
Infrastructure is key to speeding up growth
•The government’s announcement of the National Monetisation Pipeline (NMP), a scheme to transfer the rights to operate public infrastructure for a fixed period, has received attention in the media. Hopefully, in the skirmish over the details of the scheme, not to mention the partisan allegations flying around, the fact of the severe infrastructure deficit that India faces, and the imperative to address it, will not get overlooked. We need infrastructure not only to speed up growth in a slackened economy but also to lead a dignified life, even after we have seen off the COVID-19 pandemic.
•A significant criticism of the NMP is that the transfer would end up creating monopolies, leading to a rise in price. The creation of monopolies through public policy would be an embarrassment alright. However, the claim of an inevitable monopolisation is exaggerated as the outcome would differ according to the type of infrastructure.
•Monopolisation is inevitable in the case of highways and railway lines, while it is not in the case of warehouses as all the warehouses need not be sold to a single bidder. On the issue of the price, Rajiv Kumar, Vice-Chairman of NITI Aayog, has emphasised that the price would be regulated and any increase of it capped in line with inflation when the government signs the contract with the concessionaire.
•Whether private parties would be open to such an arrangement is a different question. And this really is the point. While the government may have announced its expectation of the proceeds from the monetisation, we are yet to ascertain the private sector’s interest in it. The NITI Aayog has flagged the success of the public-private partnership (PPP) governing the Mumbai-Pune Expressway, but there is also the unhappy experience of a leading infrastructure company opting out of the agreement to run the Delhi Airport Express Rail Link very early on, causing a disruption. India’s experience with PPP in infrastructure, enthusiastically pursued by both the United Progressive Alliance (UPA) and the National Democratic Alliance (NDA), has not been impressive. It may actually have contributed to the saddling of the public sector banks with non-performing assets.
•Most infrastructure comes in the form of a public good, even when it may not be a natural monopoly. No wonder then that it has been built and managed by the public sector the world over. But the possibility that the price may rise after a transfer of public infrastructure to the private sector is not a good reason to oppose it. India’s infrastructure has not expanded precisely because the assets generate too little revenue for even their maintenance, leave alone upgradation, due to pricing practices in the public sector. This has held back growth of the economy. Moreover, it cannot simply be assumed that monopoly would lead to a higher price. The outcome would depend upon the costs of the concessionaire, which may well be lower than that of the public entities currently managing India’s assets. A comparison of the fares of Air India with that of private airlines is enough to see this.
•The important consideration in an evaluation of the NMP would be the volume of funds expected to be generated. The government has announced an indicative value of ₹6 lakh crore accruing over four years. This is extraordinarily low in relation to two comparators. First, it is only 10% higher than the budgeted capital expenditure of the Government of India actually for 2021-22. Next, see it in relation to the figure of ₹100 lakh crore estimated as the infrastructural investment India needs. This was announced by Finance Minister Nirmala Sitharaman in her first Budget of 2019 and repeated by Prime Minister Narendra Modi in all his subsequent Independence Day speeches. Any claim of the innovativeness of the NMP pales beside this astute estimation made by the government itself. As for the carping by the Opposition, it distracts attention from the severe infrastructural deficit we face and the need to erase it.
📰 The judicial role in improving lawmaking
Rushed laws, rendering Parliament a rubber stamp, sacrifice core ideals of a constitutional democracy
•The deterioration in the quality of deliberation in Parliament over time has prompted calls for reform from different stakeholders. On Independence Day, Chief Justice of India (CJI) N.V. Ramana also highlighted this problem, noting that the ambiguities and gaps in laws passed without meaningful deliberation trigger avoidable litigation. While the CJI suggested that lawyers and intellectuals enter public life to improve deliberation, the judiciary can also play a crucial role in improving the lawmaking process.
•Many rely on the volume of Bills passed by Parliament in a session as a measure of its efficiency. However, this measure is flawed as it does not account for what is lost when efficiency is achieved by passing laws without adequate notice and deliberation. Most, if not all, of these laws create burdensome obligations on persons and often affect their fundamental rights. Legislators, as representatives of the people, are expected to exercise a duty of care before casting their vote. This entails due deliberation about the implications of the law, posing amendments and questions to the concerned Minister, and requiring expert evidence through standing committees.
•Moreover, it is in the legislative organ that diverse interest groups find representation. Deliberation in such a forum ensures that the views of persons who are adversely affected by a law are heard and actively engaged with. Rushed lawmaking, rendering Parliament a rubber stamp, sacrifices two core ideals of a constitutional democracy, namely, equal participation and respect for fundamental rights.
Evaluating legislative process
•The judiciary can play an important role in improving the lawmaking process and securing these ideals. A straightforward way of doing this is by enforcing the text and spirit of the constitutional provisions governing legislative procedures. The Constitution contains certain detailed provisions laying out how laws are to be passed by Parliament and the State Legislative Assemblies. Unfortunately, these are often undermined. For example, even when the result through voice votes are unclear, the exact number of “ayes” and “nays” are not always counted, suggesting that Bills may be passed without securing the majority vote required under Article 100. This issue arose most recently when the controversial farm laws were reportedly rushed and passed by voice vote in the Rajya Sabha despite objections by Opposition members.
•Similarly, Bills are certified as Money Bills to bypass the Rajya Sabha even where they do not meet the specific description of Money Bills provided under Article 110. This Article identifies seven areas that can be governed through the enactment of Money Bills, including the imposition of tax, the regulation of borrowing and appropriation of money out of the Consolidated Fund of India.
•In the Aadhaar case, the Supreme Court, to an extent, recognised its power to check whether such procedural provisions had been complied with. However, these provisions will only be taken seriously if the judiciary addresses their violations in a timely manner. The longer a challenge is pending, the more ground the State has to argue that rights and obligations created under the law should not be disturbed for a “mere” procedural violation.
•Another important method is for the judiciary to make deliberation a factor in evaluating the constitutional validity of laws. In exercising judicial review, the court’s role is to call on the State to provide justifications explaining why the law is reasonable and, therefore, valid. While doing so, the court can also examine whether and to what extent the legislature deliberated the reasonableness of a measure. The legislative inquiry would usually include evaluating the factual basis justifying the law, the suitability of the law to achieve its aim, and the necessity and proportionality of the law relative to its adverse impact on fundamental rights. The Supreme Court, in fact, adopted this approach in the Indian Hotel and Restaurants Association (2013) case. The court invalidated a law prohibiting dance performances only in hotels with less than three stars as rooted in class prejudice and, therefore, violative of equality. While the State justified the classification on the ground that only such hotels were sites of trafficking, the court rejected this claim by examining the lawmaking process and found that the State did not have empirical data to support this claim.
•The judiciary can also make deliberation a factor in choosing whether to employ the doctrine of “presumption of constitutionality”. This doctrine requires the court to exercise restraint and defer to legislative judgments on the reasonableness of a law. It is rooted in the fiction that the legislature is a widely representative, deliberative organ, and thus “understands and correctly appreciates the needs of its own people”. When laws are passed without deliberation and without examination of the empirical basis on which they are premised, the State usually finds it more difficult to explain why such laws constitute a reasonable restriction on rights and, therefore, heavily relies on the doctrine of presumption of constitutionality to resist close judicial scrutiny. By extending this doctrine to such laws, the judiciary undermines the guarantee of judicial review provided to protect fundamental rights. Instead, if the judiciary confines the doctrine only to cases where the State shows that laws and their consequences were carefully deliberated in Parliament, the judiciary can encourage legislative bodies to ensure a deliberative lawmaking process.
Remedying dysfunction
•The CJI’s suggestion that the legislature be reformed from within is admittedly the ideal solution to remedying legislative dysfunction without raising concerns of separation of powers. However, legislative majorities have little incentive to cooperate for such reform, and significant public mobilisation on the issue would be necessary to change this. Against this backdrop, the judiciary can and should employ the tools available to it to nudge legislative bodies to improve their lawmaking processes. In fact, striking down laws on procedural grounds also mitigates concerns of separation of powers in certain respects. Unlike review on purely substantive grounds, it does not foreclose legislative bodies from re-legislating the issue and ensuring that the procedural defects in the law are rectified and the law is properly deliberated in Parliament.
•The Indian judiciary has often demonstrated that it is possible to enrich democracy by addressing dysfunctions in other institutions. By adopting a swift and systematic approach to reviewing the legislative process, the judiciary can help restore faith in the ‘temples of democracy’ and push us toward the culture of justification the Constitution sought to create.
📰 The key to revitalising India’s reservation system
A socio-economic caste-based census becomes a necessary precondition to initiate any meaningful reform
•Hoardings and posters lauding the Narendra Modi government for introducing reservations for Other Backward Classes (OBCs) in the National Eligibility cum Entrance Test (NEET) examinations and a renewed debate on caste census have once again brought the debate on affirmative action in the limelight. The affirmative action programme that was envisaged during the founding moments of the republic is indeed one of the remarkable provisions to have been worked out by our Constitution makers. It has been historically significant in enunciating the principle of justice in a deeply unequal and oppressive social order such as ours.
Still no equity
•While it is undeniable that these provisions have been one of the protagonists of Indian democracy’s success stories, these have also accumulated a fair share of problems and call for immediate policy attention and debate.
•Through reservation of seats in political and public institutions of the state, it was thought that the hitherto marginalised groups — which have suffered generations of oppression and humiliation — would, finally, be able to find place in the power sharing and decision-making processes. However, this strategy of removal of disabilities has not translated into an equalisation of life chances for many groups in our heterogeneous society.
Problems with current policy
•There is now a strong demand from those who have not been able to accrue the benefits of reservations from within the marginalised sections, to devise some policy option which may be able to supplement the existing system of reservation.
•The fact that the current system suffers from the “problem of reification” is not just wishful thinking, but a hard fact.
•The data released by the Justice G. Rohini Commission’s report on the sub-categorisation of OBCs gives a good synoptic view to understand this. Based on the last five years’ data on appointments in central government jobs and OBC admissions to central higher education institutions, the commission concluded that 97% of central OBC quota benefits go to just under 25% of its castes. As many as 983 OBC communities — 37% of the total — have zero representation in both central government jobs and admissions to central universities. Also, the report states that just 10% of the OBC communities have accrued 24.95% of jobs and admissions.
•Clearly, the assumption that the disadvantages of every sub-group within each category are the same is severely misplaced.
•It is important to note that the Rohini Commission’s data are based just on the institutions that come under the purview of the central government. We hardly have any legible data on the socio-economic conditions of varied social groups at more local levels of State and society.
•Consequently, asymmetrical distribution of reservation has severely deterred political projects of unified subaltern solidarity. Parties that were once able to build large Bahujan solidarities are now finding it difficult to garner such support. This should give us hints about the extent of the problem rather than ruling them out as mere conspiracies of breaking lower caste unity.
Insufficiency of data
•As underlined above, there is a dire need of accurate data pertaining to the socio-economic condition of different social groups. Though caste-based reservations have been pivotal in animating upward social mobility and led to the emergence of a handful of politically mature and visible Dalit-Bahujan castes, we hardly have sufficient data about the actual reach and access of this policy measure.
•We do not know what liberalisation has done to castes which remained tied to more traditional sources of income and were incapable of realising the new opportunities provided by the opening of the economy. We do not know how these groups have navigated and transitioned to a more accentuated regime of capital amidst nearly no social security net on the ground. The marginal majority within still dwells in the waiting room of history, waiting to see the light of the policy grid of the state.
Affirmative action
•What is urgently required is a mechanism that can address this lacuna and make the system more accountable and sensitive to intra-group demands. Since every further categorisation will only lead to reification and fragmentation in the long run, two things are required.
•One, we urgently need to develop a wide variety of context-sensitive, evidence-based policy options that can be tailored to meet specific requirements of specific groups. Two, we need an institution alike the Equal Opportunities Commission of the United States or the United Kingdom which can undertake two important but interrelated things: make a deprivation index correlating data from the socio-economic-based census of different communities including caste, gender, religion, and other group inequalities and rank them to make tailor made policies. And, undertake an audit on performance of employers and educational institutions on non-discrimination and equal opportunity and issue codes of good practice in different sectors. This will make the formulation of policy and its monitoring simpler at an institutional level.
•As evident, a socio-economic caste-based census becomes a necessary precondition to initiate any meaningful reform in the affirmative action regime in India.
•It is worth noting that similar suggestions were made a decade ago in the recommendations that the expert committee for an Equal Opportunities Commission (2008) made in its comprehensive report that it submitted to the Ministry of Minority Affairs. However, little policy progress has been made in this regard. Successive governments have been reluctant to engage with such radical policy options, almost always caving in to immediate and myopic political gains.
