Regulatory Impact Analysis: Hopefully, a prelude to ‘Make in India’

In view of the new ‘Make in India’ agenda of the Modi government, Aparajita Bharti argues for the adoption of the Regulatory Impact Analysis, a global practice to evaluate the costs and benefits of a proposed/existing regulation, that has also found favour in Planning Commission and other governmental reports.

With the new government in the driving seat and ‘Make in India’ high on its agenda, improving the regulatory environment for business is a top priority. This is, therefore, a golden chance for the government to introduce in India the practice of Regulatory Impact Analysis (RIA), which is followed worldwide to assess the costs and benefits of a proposed or an existing regulation.

The 12th five yearindiaproduction plan (2012-2017) recommends the employment of RIA for both existing and future regulations that impact the business environment in India. RIA enables the governments to judge the efficiency of the proposed regulatory framework in creating a more competitive market vis-à-vis the compliance and enforcement costs that it puts on businesses and the governments. In some countries, RIA also includes an evaluation of other regulatory options (including self regulation) to judge the most effective way in which a near perfect market can be delivered to the consumers at the lowest cost. RIA is considered an important activity as it exposes compliance and other costs arising out of the new regulations, which are ultimately passed on to the consumer. It enables the governments to weigh these costs against the benefits that accrue to the consumers as a result of the regulation. Although RIA may come across as expensive, however, in the long run, it saves huge costs that are incurred because of an inefficient regulatory framework. Continue reading

Getting this Straight: Decriminalising Gay Sex is an Idea Whose Time has Come

Karan Singh looks at the medievalism of the criminalisation of gay sex, and grounds his argument for the reversal of the Supreme Court judgment in India’s long history of social reforms.

Gay Sex World Map

India in respect to the world order on LGBT legilsation

On 11 December 2013, the Supreme Court of India overturned the 2 July 2009 Delhi High Court judgment decriminalising gay sex between consenting adults, bringing with it an avalanche of emotions, ranging from disappointment and betrayal to satisfaction and relief, from people who waited for the verdict but for diametrically opposite reasons. The subsequent political and media discourse was as much rooted in the religious beliefs, political climate and social conservatism as in human rights, personal freedoms, liberty and equality, and public health. Perhaps the sense of anticipation surrounding the verdict would not have heightened, or reached stratospheric proportions, had the apex court of the land itself not raised the bar, and with it people’s expectations, by delivering progressive judgments in the past. But as it turned out, the court, in its wisdom, lobbed the ball, as it were, into Parliament’s court, leaving it to the latter to take a view on suitably amending Section 377 of the Indian Penal Code, which is a 19th century relic of the British colonial era.

A reading of the relevant portion of the text of the Supreme Court judgment, though helps one to understand the position of the two-judge Bench, which, to my mind, did not want to be accused of judicial overreach or activism. It reads: “After the adoption of the IPC in 1950, around 30 amendments have been made to the statute, the most recent being in 2013 which specifically deals with sexual offences, a category to which Section 377 IPC belongs. The 172nd Law Commission Report specifically recommended deletion of that section and the issue has repeatedly come up for debate. However, the Legislature has chosen not to amend the law or revisit it. This shows that Parliament, which is undisputedly the representative body of the people of India has not thought it proper to delete the provision.” However, the sense of disappointment in the LGBT community stems from the fact that the limited question before the Supreme Court was whether gay sex between consenting adults should be deemed a criminal offence under Section 377 of the IPC, punishable with up to life in prison. In the instant case, other issues confronting the LGBT community, such as legitimising a gay marriage, as has been done in some countries where the discourse has gone beyond the criminality or otherwise of gay sex, were not under consideration. Also, for the Supreme Court to dismiss the LGBT community as a minuscule fraction of India’s population was a travesty of justice.

To my mind the Supreme Court’s judgment in the matter should not necessarily mean the end of the road for the LGBT (lesbian, gay, bisexual, transgender) rights in India. Decriminalising gay sex is an idea whose time has come and I have no doubt in my mind that the legislature and the judiciary will eventually have to rise to the occasion.The government has filed a “review petition” asking the Supreme Court justices to re-look at the case. The review petition had to be filed within 30 days from the date of the judgment. There are other options available to the government. It could file a “curative petition” so that the case could be decided by a larger, five-judge Bench. It could also issue an ordinance till Parliament takes a view on it. Unfortunately, though, the response from the political parties has been more opportunistic than optimistic. The Congress party, which heads a coalition government, made the right noises, but shied away from committing to bringing about an ordinance. Ironically, this is the same party and ruling coalition that deemed it fit to okay an ordinance to negate the Supreme Court verdict on convicted lawmakers. Similarly, in the 1980s, the same party had passed an ordinance followed later by an Act after the outrage over the Sati by a woman in Rajasthan. The BJP, which is the principal opposition party, did not take a helpful stand either. The stand of the other parties of consequence can be described as hypocritical.

In the interest of the LGBT community, one expects the manifestos of political parties for the 2014 Lok Sabha elections to categorically commit themselves to bringing about a suitable resolution of the issue within a declared time table. In the event the judicial options do not succeed, there is still Parliament that can decide on the matter and the apex court passing the buck to Parliament need not be entirely unwelcome. A careful reading of the history of social reform in India will show any number of instances when legislations have been brought about in response to an overwhelming demand from a section of the society to address the issues of the day. The abolition of Sati in 1829 and the enabling of widow remarriage in 1856 are a case in point. Similarly, a 1872 law allowed inter-caste and inter-communal marriages and in 1891 a law was enacted to discourage child marriage.

In the 21st century there cannot be a justification for perpetuating centuries-old prejudices. On any metric, be it religious belief; politics; social custom; human rights; freedom, liberty and equality; and public health, there is a compelling argument to be made for the repeal of Section 377. This section of the law is as archaic as, say, a rule under the Narcotic Drugs and Psychotropic Substances Act that makes it difficult for terminally-ill patients to procure morphine for medical use, thus condemning them to a life in pain. As public health agencies and experts have been warning the government, treating the LGBT community as criminals makes it harder to take HIV/AIDS programmes to them. According to the UNAIDS, the Delhi High Court decision had restored dignity for millions of people in India, and was an example of the type of reform we need for supportive legal environments that are necessary for effective national AIDS responses. The UNAIDS also said that it wanted the government and civil society to be able to provide HIV information and services to all people, including gay and other men who have sex with men, lesbian, bisexual and transgender people, and for them to be able to access the services without fear of criminalisation. Again, for every religious leader who views the LGBT community with distrust there is also a Sri Sri Ravi Shankar who has come out openly in their support. “Homosexuality has never been considered a crime in Hindu culture. In fact, Lord Ayyappa was born of Hari-Hara (Vishnu & Shiva). #Sec377,” he said on his Twitter account.

After considering all these factors, on balance, it cannot be denied that there is merit in the argument that the Supreme Court verdict is regressive and retrograde. In one fell swoop, the court banished the sexual rights of the minorities back to the Stone Age. India finds itself back in the dubious company of countries such as Iran and Saudi Arabia, which regard the LGBT community with suspicion. This medievalism does not bode well for as ancient a civilisation as India, which gave to the world Kama Sutra and the temples of Khajuraho.

Karan Singh is the founder and CEO of N-Sight Consulting. He is an alumnus of the University of Oxford and the London School of Economics (LSE), the Indian Institute of Management (IIM), Bangalore and The World Bank Institute.

Twitter: @KSingh_India

Bringing political parties under the RTI - a big mistake

The Central Information Commission’s (CIC) order to bring six large political parties under the ambit of the Right to Information (RTI) Act set the ball rolling for a head on collision between the political class and the civil society. There has been much name calling since, so much so that the outcries (and hashtags) of #SaveRTI have unceremoniously drowned all opposing viewpoints. The spectacle of politicians coming together in uncharacteristic haste has only added fuel to the fire.

It has been sixty six years since independence and many say that the credibility of the Indian political class has never been lower. Nonetheless, the case for including political parties under the RTI is not as straight forward as it is made out to be. It is not an “obvious to do” in our quest for transparency, and the political parties are not wrong in questioning this imposition. In fact, I think that if political parties do get included under the RTI, it’ll only do more harm than good. I am actually going to use this space to argue just that.

The Right to Information Act passed by Parliament in 2005 applies to bodies set up under the constitution or under some law, and bodies owned, controlled or “substantially financed” by the government. The term “substantially financed” is not defined – an unfortunate lacunae in the legislation. Using ambiguous terms and leaving them undefined for subjective interpretation is never a good idea as it inevitably leads to confusion and litigation.

Be as it may, the CIC expanded the scope of this term to rule that “substantial financing” does not imply “majority financing” and that tax exemptions, allotment of premium land for party work and accommodation in Delhi at subsidized rates is adequate ground for classifying political parties as substantially financed. Had political parties been taxed at normal corporate taxation rates, more than 30% of their income would have been would have been taxed away. This, the CIC observes, amounts to indirect financing. Moreover, since political parties are “continuously engaged in performing public duty” and wield significant (direct and indirect) influence on governmental power, they ought to be covered under the RTI.

In this particular instance, I think, the CIC is just hopelessly wrong.

If the same logic were applied to other not-for-profit organisations (registered under Section 25 of the Companies Act and exempted from paying income tax on the donations received) or companies provided hefty tax exemptions (for setting up export units in Special Economic Zones or new industries in difficult mountainous terrain), a large number of private organisations would suddenly find themselves under the ambit of the RTI. Many of these NGOs and companies lobby for changes in policy and thereby also exercise significant influence on government decision making in domains relevant to their areas of expertise. Given CIC’s rationale, I will be surprised if these bodies manage to stay out of the RTI for long!

Tax exemptions should never have been a consideration in the first place; only grants and loans should have been. I think it is imprudent to take such an expansive view of financing. In doing so, the CIC has pushed boundaries and infringed into the private space. This does not bode well for private organisations as it can significantly increase administrative costs and hinder decision making processes.

Let’s be clear: RTI is meant to empower the general public to demand information from the “State” – the public body. Private organisations and associations should be kept out of its purview.

For those who think that political parties have public character, let me argue otherwise. A political party is an “association of people”. It is a body that represents only its members and such other people who identify with its ideology and objectives. Simply put, it an “interest group” that seeks power directly through the political process. It does not represent the general population and, as such, cannot be answerable to it.

Unlike the government (or its agencies), a political party need not treat all sections of society equally - it can choose to be more favourably inclined towards a select group of people. For instance, a party that represents dalits is most certainly within its rights to raise concerns affecting only dalits or proposing electoral candidates only from the dalit community.

In the final electoral test, the general public gets the option to elect (and thereby pass judgement) on the candidates put up by the party. Only after being declared victorious, does the party candidate (and still, not the party) become answerable to the general public. Therefore, bringing political parties under RTI goes against this basic principle.

Now let me come to the second part of my argument: that including political parties under RTI can only do more harm than good. This might seem counterintuitive at first, but there is a very rational basis to it.

Under the RTI Act, public authorities are required to provide access to procedures and norms followed in decision making, minutes of meetings, records of instructions given and decisions taken – all information that gets generated and recorded as per the requirements of the law governing the public authority. The RTI does not require authorities to generate new information or improve the granularity of what gets recorded! Public authorities merely comply with the laws under which they have been set up, and only open their records to the public.

Therefore, if the regulating legislation does not require political parties to report (or for that matter, record) information on small donors, there is nothing that the RTI can do fill this lacunae.

If political parties really want to circumvent the RTI, they can easily do so by being careful about what goes in the minutes - because instructions are often passed orally unlike in a government office where there is strict requirement to get directions issued in writing. Political associations work in an informal setup, especially with respect to finances. A lot of black money gets used and often there is no trail. There is no way then for the RTI to help extract any useful (read: incriminating) information.

What the RTI will end up doing instead is this: it’ll hike the administrative burden on political parties and increase the requirement of resources. The RTI Act requires every public authority to appoint Public Information Officers in all administrative units. Coupled with the time and manpower required to process and contest appeals filed on denial of information, RTI could be a substantial drain on party resources.

The real solution lies in amending the regulating legislation (in this case, The Representation of the People Act, 1951) to make it mandatory for political parties to record information on donors and to get their accounts audited by, say, firms empanelled or approved by the Comptroller and Auditor General of India (CAG) before submitting to the Election Commission. The Election Commission can then make this information available to the public.

I understand that this is a more difficult reform, but the RTI cannot help bypass it.

Let me conclude by saying that in countries such as the US and the UK, the quantum of state funding available to parties and candidates is also substantial. Yet, political parties are not covered under the Freedom of Information Act. However, and rightly so, parties are subject to stringent reporting norms and auditing requirements that make the whole exercise far more transparent than in India.

I think there is need to tread carefully and to undertaken thorough deliberations before picking a side. There is a lot more to the debate, if one is willing to scratch more than just the surface.

The CIC order can be accessed here:

The writer is a policy researcher based in Delhi. He can be reached at [email protected]

A Case for Democratising Lobbying in India

Kaushiki Sanyal and Harsimran Kalra

Courtesy: Cartoonist Dhir

Courtesy: Cartoonist Dhir

The issue of lobbying hit the headlines two years ago when recorded phone conversations of corporate lobbyist Nira Radia exposed her role in the 2G spectrum scam.  More recently, with Walmart’s disclosure of its lobbying expenses in India, questions were raised about the strategies adopted by the corporate to enter the Indian market.  Unfortunately, since lobbying activities were repeatedly identified in the context of corruption cases, they became synonymous with corruption and political scandals in the public consciousness.  However, in practice every interest group lobbies with policy makers with varying means of influence and degrees of success.

At present, a few countries have laws to regulate lobbying.  These include Australia, Canada, US, Germany, Hungary, Poland, Lithuania, Slovenia, Israel and Taiwan.  Other countries such as France, Spain, Portugal, India and Japan do not have any such law while UK and Ireland regulate the lobbied.

Continue reading

Does the Participatory Approach to Development work?

Uthara Ganesh

web_projet_env_chhattisgarthIn recent years, the idea of civic engagement and participation has placed itself at the nucleus of development policy. Following from a severe critique of the rigidly centralised, large-scale public investment driven development policy followed in the 1970’s and mid 80’s, the early 90’s saw a renewed interest in the potential of participatory governance. Noted economists such as Amartya Sen brought to the fore of development discourse the idea of  ocial capital, making a substantial case for a bottoms up, participatory approach as a more effective and desirable means of delivering governance.

Continue reading

Deepening Democracy in India: Fine-tuning rules and procedures to strengthen parliamentary oversight

Aparajita Bharti

Parliament-House-Delhi-IndiaThe Deepening Democracy report by the Global Commission on Elections, Democracy and Security discusses the importance of improving the integrity of elections. While fairness, funding and conduct of elections undoubtedly is a concern that citizens espouse worldwide, that in itself may not be a panacea to fulfill the function of representative democracy. Sometimes democracy itself is undermined in democratically elected Parliaments due to rules biased towards the elected government, and not giving sufficient power to opposition members and independent members of Parliament to voice their concerns. Continue reading

Knee jerk responses or policy in action?

Dhvani Mehta

ImageIn a frenzied news cycle that has been dominated by the headline-grabbing resignation of the Pope, the horrific death of Reeva Steenkamp, and closer home, yet another corruption scandal of mammoth proportions, it is small wonder then that a short news item about the Indian hockey team almost having to pull out of the Azlan Shah hockey tournament went virtually unnoticed. Hockey India (HI) cited the refusal of the Sports Authority of India (SAI) to bear the air fare expenses as the reason for its withdrawal. HI accused the SAI of backtracking on its original funding commitment, even suggesting that this might have been a ‘retaliatory gesture’ in response to HI Secretary General Batra filing a police complaint against a security officer at the National Stadium in a separate incident. The SAI, for its part, insisted that this funding had never been agreed upon. An eleventh-hour intervention by the Union Sports Secretary directing the SAI to allocate funds towards the expenses has averted what would have been a shameful pull-out from one of hockey’s most prestigious tournaments.

Continue reading