An anti-disclosure amendment that hits public health
The central government recently published the Patent (Amendment) Rules, 2020, amending the format of a statement that patentees and licensees are required to annually submit to the Patent Office disclosing the extent to which they have commercially worked or made the patented inventions available to the public in the country. The amendment has significantly watered down the disclosure format, and this could hamper the effectiveness of India’s compulsory licensing regime which depends on full disclosure of patent working information. This in turn could hinder access to vital inventions including life-saving medicines, thereby impacting public health.
Disclosure of information
In exchange of a 20-year patent monopoly granted to an inventor, India’s patent law imposes a duty on the patentee to commercially work the invention in India to ensure that its benefits reach the public. In fact, the purpose of granting patents itself is to not only encourage innovation but also ensure that the inventions are worked in India and are made available to the public in sufficient quantity at reasonable prices.
A failure of this duty could trigger compulsory licensing or even subsequent revocation of the patent under the Patents Act, 1970. Further, courts have refused an interim injunction in cases alleging infringement of a patent which has not been worked in India. Thus, the information on the extent of the working of the invention in India is critical for the effectiveness of these public interest measures provided by law to check abuse of patent monopoly (e.g. excessive pricing or scare supply of the invention). Accordingly, section 146(2), a unique provision not found in patent laws of most other countries, requires every patentee and licensee to submit to the Patent Office an annual statement explaining the extent to which they have worked the invention in India. The disclosure is to be made in the Form 27 format as prescribed under the Patent Rules, 2003. This statement is meant to help the Patent Office, potential competitors, etc. to determine whether the patentee has worked the invention in India and made it sufficiently available to the public at reasonable prices.
Unfortunately, patentees and licensees as well as the Patent Office have blatantly disregarded this statutory requirement. Also, there has been significant pressure from multinational corporations and the United States government to do away with this requirement.
The recent amendment to the form was made pursuant to a PIL filed by Shamnad Basheer before the Delhi High Court in 2015. The PIL brought to the Court’s attention the rampant non-filing and defective filing of Form 27 by patentees/licensees and sought a direction to the government to strictly enforce the patent working disclosure rules and take action against the violators. The PIL also called for a reform of Form 27, arguing that the information it sought was grossly insufficient to ascertain the extent of the working of the patent.
Dilution of disclosure
The government acknowledged that the Form 27 format was problematic and provided an undertaking to the court to effect appropriate amendments. The court accordingly disposed of the PIL in 2018, directing the government to complete the amendment process within the timelines mentioned in the undertaking. However, in non-compliance of the court’s order, the government published the amended form recently after a delay of almost two years.
Instead of calling for more elaborate details of the information already sought in the Form as suggested in the PIL, the amended form has removed the requirement of submitting a lot of such important information altogether, thus damaging the core essence of the patent working requirement and the Form 27 format. The form now requires the patentees and licensees to provide only for the following information: whether the patent has been worked or not; if the invention has been worked, the revenue or value accrued in India from manufacturing and importing the invention into India; and if it has not been worked, reasons for the same and the steps being taken towards working. They are no longer required to provide any information in respect of the quantum of the invention manufactured/imported into India, the licenses and sub-licenses granted during the year and the meeting of public requirement at a reasonable price.
The most basic data required for this assessment is the quantum or the total units of the invention manufactured/imported in India. It is the disclosure of this data by Bayer in Form 27 that played a crucial role in grant of India’s first compulsory license to Natco for the anti-cancer drug Sorafenib/Nexavar. The deletion of the requirement of its disclosure is thus shocking and defeats the very purpose of this Form.
The removal of the requirement of submitting any licensing information, including the disclosure of even the existence of licenses (instead of seeking further details such as names of licensees/sub-licensees and the broad terms of the licenses as suggested in the PIL), means that the patentees/licensees can just self-certify that they’ve worked the patent without having to support the claim with the data on how they’ve done so, including through licensing/sub-licensing the patent.
Further, the omission to mandate disclosure of details such as the price of the invention, its estimated demand, the extent to which the demand has been met, details of any special schemes or steps undertaken by the patentee to satisfy the demand, etc., as recommended in the PIL, makes it extremely difficult to ascertain whether the invention has been made available to the public in sufficient quantity and at an affordable price.
The lack of this information could prevent invocation of compulsory licensing and other public interest measures in cases of patent abuse and make certain inventions inaccessible to the public. Such lack of accessibility in case of patented medicines could in turn have adverse consequences for public health of the country.
A nod to recognising the value of housework
A recent political entrant in the electoral fray, the Makkal Needhi Maiam(MNM) promise to directly pay women a monthly amount may be viewed as a strategy to grab attention in an over-crowded, highly competitive electoral landscape. The party has promised to recognise housework as a salaried profession by paying homemakers ‘hitherto unrecognized and unmonetized’ for their work at home.
Origins of the demand
The demand for ‘wages for housework’ arose in the context of struggle and consciousness-raising associated with the Second Wave of the women’s movement in North America and Europe. Alongside other demands for social and political equality, women’s rights campaigners made visible and also politicised women’s everyday experience of housework and child care in the ‘private’ realm of the household. In doing this, they challenged the assumption that a ‘natural’ affinity for housework was rooted in the essential nature of women who were performing a ‘labour of love’. For leading women’s rights activists of the 1960s and 1970s, it was important to bust the myth that women’s work at home was a personal service with no links to capitalist production. In a concrete sense, this meant linking the exploitation of the worker in the factory to women’s work at home.
As Mariarosa Dalla Costa and Selma James wrote in their seminal piece in 1972, the woman working at home produced ‘the living human being — the labourer himself.’ From the nine-month period of gestation in the womb, women’s needs and essentials. By providing free services in the home,women made possible the survival of working-class households at subsistence-level wages, with obvious benefits for industry and capital.
Despite the links between the ‘housewife’ and the factory worker, the unwaged status of the former accounted for crucial differences between them. As feminist scholar and writer Silvia Federici wrote (in 1975), in “Wages against housework”, it was possible for wage-earners to bargain around the terms of their paid work and the quantity of the wage. ‘But exploited as you might be, you are not that work’, she pointed out. Housework, on the other hand, had come to define the very nature of a woman. This disallowed women from seeing it as ‘real work’ or as a social contract. For the advocates of ‘wages for housework’, the wage that the state ought to pay women would make them autonomous of the men on whom they were dependent. More fundamentally, the very demand for a wage was a repudiation of housework as an expression of women’s nature. It was a revolt against the assigned social role of women. Therein lay the radical nature of the demand for wages, not in the money itself.
An unresolved issue
There was disagreement among the women ideologues of the Second Wave on what payment of a wage would actually mean for women. The sociologist, Ann Oakley, who studied the history of housework in her path-breaking books published in the 1970s, was among those who believed that ‘wages for housework’ would only imprison women further within the household, increase their social isolation and dissuade men from sharing housework.
Others too argued that the goal of the women’s movement must be, to not ask for wages, but to free women from the daily drudgery of routine domestic chores and enable them to participate fully in all spheres of social life, including paid employment outside the household. The debate around monetary remuneration for housework remained unresolved within the women’s movement, even as the tools to measure the value that women’s unpaid work adds to national economies have grown more sophisticated.
However, the underlying issue, which is the disproportionate share of women’s responsibility for the work that sustains human life and reproduces labour power, remains as pressing as ever. A report published by the International Labour Organization in 2018 shows that, globally, women perform 76.2% of total hours of unpaid care work, more than three times as much as men. In Asia and the Pacific, this figure rises to 80%.
Defining this constituency
This raises the tricky question of how this constituency is to be defined. Is it to be only women who are full-time homemakers? Many women earning a wage outside the home also perform the bulk of household work. On what ground are they to be excluded? What about women workers who earn an income from home by stitching clothes, selling cooked meals or are engaged in petty trade? They often self-identify as ‘housewives’ given the meagre and variable wages they earn and periods of seasonal unemployment.
These are issues that cannot be easily resolved. It would be better to strengthen the demand for a universal basic income for income-poor households and make sure that the cash transfer to the family reaches women directly, whether or not they combine household work with paid work.
Struggle for legislation
However, the demand that the state recognise housework is significant and its radical core must not be missed, as the historical experience of the women’s movement shows us. In this context, it is worth mentioning that an important campaign on the question of household labour has been taking place in India. This is the ongoing struggle for national legislation for domestic workers. These are predominantly women who perform ‘women’s work’ but in other people’s homes. They are, therefore, uniquely positioned to make this work visible and demand that its conditions be regulated, minimum wages guaranteed, and the workers’ status and rights protected.
This is an agenda that all parties, and not just the MNM, could incorporate in their election manifestos, should they take seriously the mandate of ‘recognizing and monetizing’ housework. If domestic workers emerge as a strong force that succeeds in asserting the dignity of housework and making it a visible and valued form of labour, this can only be a good thing for all women performing housework in the long run.
Quality gigs, a solution to urban unemployment
With the Indian economy gradually finding its feet after a historic contraction of negative 23.9% in the April-June quarter, economic commentators have busied themselves with debating the need for fiscal expansion and the viability of a “V-shaped recovery”. More recent data from the Centre for Monitoring Indian Economy, however, point to a gradual slowdown in employment recovery from the month of July, with the latest numbers pointing to a sharp rise in the national unemployment rate from 6.51% in November to 9.06% for the month of December.
For labour flocking back to rural India, employment support came in the form of an increased outlay for the National Rural Employment Guarantee Scheme (NREGA), which witnessed a 243% increase in person workdays. This increased dependency on NREGA, has seen the Rural Development Ministry spend nearly 90% of its increased ₹86,4000 crore allocation by the month of November, while still being unable to fulfil demands for nearly 13% of the 75 million households that demanded work.
In several Indian cities however, shuttered businesses have meant that millions of workers have either had to leave or have had to take up new forms of work, with some finding the burgeoning gig economy to be their only source of employment.
The metrics used
The report evaluates the well-being of gig workers on 11 digital platforms and does so by evaluating them on five metrics of Fair Pay, Fair Conditions, Fair Contracts, Fair Management and Fair Representation. In its findings however, only two firms (Urban Company and Flipkart) score greater than five (out of a maximum of 10) while seven score only 2 or less. Most concerning perhaps, is the fact that the bottom of the rankings are rounded off by India’s four largest platform giants, namely, Uber, Ola, Swiggy and Zomato.
With no urban equivalent to the NREGA on the horizon, there must be an increased impetus on evaluating, regulating and supporting new forms of employment that may currently be serving as an informal safety net for those desperately in search of work.
The first and most critical task at hand remains evaluation. Our current understanding of gig work and workers remains constrained to the limited disclosures made by the platforms themselves. Furthermore, with very few independent studies evaluating the scale and impact of these platforms, most regulators continue to remain in the dark on basic questions surrounding platform labour. As of now there exists no authoritative estimate on the total number of gig workers in India, though the centralised nature of the platforms, and the larger platform labour market should make the collating of this data relatively straightforward for the Labour Ministry.
Issue of regulation
The next step is significantly more sensitive and involves regulation. The reason for the sensitivity primarily revolves around the varied nature of gig work. While some workers use these platforms as a “side hustle”, for others it continues to serve as a primary source of employment. This dynamic is further complicated by the risk of a one-size-fits-all regulatory strategy unintentionally hurting the similar, yet distinct, market for highly skilled (and highly paid) freelancers, that continues its rapid growth due to pandemic related full-time staff layoffs.
Perhaps a more viable strategy then would involve conditional government partnerships with platforms under some of its flagship schemes. Here, the successful pilot of Swiggy’s Street Food Vendors programme under the PM SVANidhi, or PM Street Vendor’s Atma Nirbhar Nidhi scheme, may prove to be an illustrative example. While Swiggy has announced the onboarding of 36,000 street food vendors onto the platform under the scheme this month, it has also looked to ensure that each vendor is registered and certified by the Food Safety and Standards Authority of India. The simultaneous creation of jobs, alongside the voluntary adoption of quality standards is an example of a mutually beneficial partnership between the state and a platform that creates jobs while incentivising greater levels of compliance.
Similar collaborations on urban employment, that require labour platforms to comply with disclosure norms and worker compensation standards to access government support, could be one way for the government to kill two birds with one stone. Current proposals for an Urban Employment Guarantee peg daily worker wages at approximately ₹300, at a cost of ₹1-lakh crore to the exchequer. Collaborating with platforms to employ workers, would not only bring down costs significantly (for both the state and their partners) but it would also create an environment where firms would be more likely to cooperate with the state, as opposed to adopting an antagonistic position in what could prove to be a long-winded legal battle.
As the new year rolls in, and India looks to convince the world that it has turned the corner on its economic woes, it must look to step outside the box to tackle the challenge of urban unemployment. Limited fiscal space and a growing need to fuel the country’s consumption base, must push the government to build symbiotic relationships with new partners. With Industry 4.0 platforms absorbing increasing numbers of the urban workforce, evaluation, collaboration, and regulation must be the government mantra.
Embracing energy efficiency
The Power Minister, R.K. Singh, recently announced the Electricity (Rights of Consumers) Rules, 2020. The rules lay down uniform performance standards for power distribution companies (discoms) and make them liable to compensate consumers in case of violations. The well-intentioned rules come at a time when Indian discoms are struggling to manage their finances. This is partly linked to drop in payment rates, as consumers are struggling to pay their bills amid rising consumption and tight finances. The Indian government has sanctioned liquidity relief to help discoms tide over this crisis, but these are just short-term fixes.
India’s residential electricity consumption is expected to at least double by 2030. As households buy more electric appliances to satisfy their domestic needs, concerns about the ability of discoms to provide reliable supply at affordable rates will also rise. Embracing energy efficiency can be a win-win solution as this can bring down household energy bills and reduce discoms’ financial stress.
Tryst with energy efficiency
In recent years, India has seen significant adoption of energy-efficient appliances, especially those covered under the mandatory labelling programme, according to the India Residential Energy Survey conducted by the Council on Energy, Environment and Water and the Initiative for Sustainable Energy Policy. The survey, covering nearly 15,000 households across 21 States, found that more than 75% of air-conditioners and 60% of refrigerators used in Indian homes were star-labelled. Further, nearly 90% of Indian homes used LED lamps or tubes.
However, there has been limited uptake of energy-efficient ceiling fans and televisions. While 90% of homes use fans, only 3% have efficient fans. Similarly, 60% of our television stock comprises the big old energy-guzzling CRT (cathode ray tube) models. Desert coolers, used by 15% homes, are not even covered under the labelling programme. Significant efficiency gains are also possible for other appliances like water pumps and induction cook stoves.
The way forward
First, we need to improve the availability and affordability of energy-efficient appliances. For instance, despite a voluntary labelling scheme since 2009, less than 5% of ceiling fans produced in India are star-rated. While the Bureau of Energy Efficiency (BEE) plans to bring ceiling fans under mandatory labelling from 2022, the high upfront cost will be another barrier. At present, the most efficient fans cost more than double the price of conventional models. We need innovative business models that can attract manufacturers to produce efficient technology at scale and bring it within purchasing capacity.
Second, India needs a nationwide consumer awareness campaign on energy efficiency. Only a fourth of Indian households are currently aware of BEE’s star labels. While awareness levels are high among residents of metros and tier-1 cities, the majority in small towns and rural areas remain unaware. To bridge this divide, we need a decentralised and consumer-centric engagement strategy. State governments, discoms and retailers need to be at the forefront of our renewed efforts to create mass awareness about energy efficiency.
Finally, we need to monitor supply quality and changing consumption pattern on a real-time basis. As discoms in India deploy smart meters, these must be used to measure actual savings and demonstrate the benefits of energy-efficient devices to build consumer confidence. The smart metering network would also be crucial for enforcing consumer rights rules.
India has tasted success in recent years by embracing energy efficiency. The government’s UJALA scheme transformed the market for LED bulbs, while also helping India reduce its annual carbon emissions by nearly 82 million tonnes. A similar focus towards other energy-efficient appliances would allow India to ensure 24×7 power for all.
Hasty approval, no transparency
The two COVID-19 vaccines — Covishield and Covaxin — tested and manufactured in India by the Pune-based Serum Institute and Hyderabad-based Bharat Biotech, respectively, could have played a vital role in ending the pandemic in the country. However, the regulator’s haste and lack of transparency in approving the vaccines for “restricted” use do not inspire confidence. The regulator did not wait for sufficient safety and efficacy data to be collected and did not share information about the clinical trials before granting approval.
Transparency is vital for gaining people’s trust so that they don’t hesitate to take the vaccine. However, the conduct of the Indian regulator in no way helps in building trust in vaccines. If there is already some degree of apprehension about the safety and efficacy of COVID-19 vaccines, given the rushed manner in which the trials have been conducted, the opaque nature of the approval process has done little to mitigate such concerns.
Contrast this with the manner in which the U.S. Food and Drug Administration (FDA) and the U.K. regulator approved COVID-19 vaccines. Despite pressure from U.S. President Donald Trump to make vaccines available before election day, the FDA made it clear that it would require phase-3 data with a “median follow-up duration of at least two months after completion of the full vaccination regimen to assess a vaccine’s benefit-risk profile”. It also made the detailed briefing document of the clinical trial of each vaccine and its assessment public. The U.K. regulator also made the assessment of the two vaccines — by Pfizer and AstraZeneca — publicly available.
No efficacy data
The phase-2/3 trial of Covishield was carried out on 1,600 participants and was intended to study only safety and immunogenicity, as the details available on the clinical trial registry indicate. According to the informed consent document made available to trial participants, safety was to be tested on 1,200 participants and immunogenicity on 400 individuals. The trial did not study the efficacy of the vaccine. Approving Covishield based on safety and immunogenicity data from the trial in India and efficacy data from the U.K. might be sufficient for emergency use. But it is imperative that Serum Institute collects efficacy data from the Indian trial before seeking full approval.
Though no published data are available, the U.K. regulator has found some evidence that efficacy improves when the second dose of the AstraZeneca vaccine is delayed. Accordingly, it has recommended that the second dose be administered 4-12 weeks after the first. Serum Institute has wasted an opportunity to test the protection offered by the first dose and determine the efficacy of a delayed second dose and the best time to administer it. It is now for the government to decide, without evidence, the timing of the second dose.
In the case of Covaxin, the phase-3 trial began in mid-November 2020. Since the second dose is administered 28 days after the first, the median follow-up after the second dose would have been just a few days and that too from a very small number of participants. In short, the approval for “restricted” use granted to Covaxin was not based on any efficacy data. What level of protection is offered by the vaccine and whether it protects against severe disease and prevents infection and transmission are all not known.
By giving approval to Covaxin without data on its efficacy, the Indian regulator has joined the ranks of China and Russia. When the Chinese regulator approved CanSino Biologics’s vaccine that had not undergone a phase-3 trial, it at least limited its use for the military. In mid-November, three months after approval, Russia’s claim of 92% efficacy for Sputnik V was based on a review of just 20 COVID-19 cases.
Also, the assertion that Covaxin will protect people against the new variant of the virus is not backed by evidence. No efficacy data against any SARS-CoV-2 virus strain are currently available.
What makes the approval for Covaxin all the more galling is the explicit permission to administer the vaccine in a “clinical trial mode”. This is nothing but a large-scale phase-3 clinical trial carried out on people belonging to the four priority groups consenting to receive the vaccine. The following remain unknown: how informed the informed consent will be, who is going to inform the recipients about the intricacies of the “trial”, how well the “participants” are going to be monitored, and how the efficacy will be determined in the absence of a control arm.
Nine global vaccine manufacturers issued a joint pledge last September that they would not seek premature approval from regulatory authorities. Bharat Biotech’s haste in seeking approval stands in contrast. The Indian regulator had earlier stipulated that at least 50% efficacy is necessary to grant EUA.
A lost opportunity
Not only has India squandered a great opportunity to collect robust data and build trust in COVID-19 vaccines but has also set the stage to potentially reverse decades of hard work in building vaccine confidence. In 2019, a single mistake in preparing the measles, mumps, and rubella injection that led to the deaths of two infants in Samoa led to a sharp drop in vaccine uptake and a measles outbreak there.
In India, a December 2018 study in 121 districts that have higher rates of unimmunised children found that 24% of children did not get vaccinated due to apprehension about adverse effects. If there is vaccine hesitancy among the four high-risk groups which will get vaccinated on priority, the companies and the regulator have themselves to blame.
Shock treatment will not work in agriculture
Almost all sections of people including farmers agree that the Agricultural Produce Market Committee (APMC)-mandi policies for agricultural marketing, initiated in the 1960s for a few crops, have outlived their utility and the system needs a new policy in the face of the agricultural sector’s growth slowdown, the crop-composition not widening, and investments in land not happening.
Recently, the government of the day has opened up the output market with the aim to let market forces improve efficiency and create more value for farmers and the economy. These laws state that farmers are now free to sell all their products anywhere and to anyone beyond the physical premises of APMC markets. Additionally, the laws promote contract farming through establishing partnerships between farmers and food-processing companies, and also permit unlimited hoarding of food except in special circumstances.
Three main suggestions were put forth by farmers when we recently made enquiries with them: one, their produce prices should be the cost of production plus a reasonable mark-up; two, fluctuations in prices should be minimal; and three, there should be little or no interface with legal or administrative officials — they are not comfortable dealing with the “sahibs and the police”. All these farmer concerns have been ignored in the way the current laws are drafted. Additionally, as the old laws are being repealed, they said that there is a need for a wider view of the sector to include more crops. Thus, if the government encourages farmers to move from wheat to vegetables, markets for the latter should address all the above three aspects.
New markets are an unknown
The first law of the Minimum Support Price-mandi is a known devil, but the new markets will be an unknown ghost with no control over them by anyone. Thus, while “malpractices” in mandis are known and local leaders are often brought in to vent farmers’ anger or arbitrate in difficult situations, malpractices in the new systems are neither forecast-able nor is there any authority to report to. Next, while the government says that the mandi-MSP system will continue, the question is, for how long?
Traders could reduce the prices on more than one pretext, such as finding faults with the product; declining to buy on the pretext of glut (a wait and watch strategy); defaulting on payments, and so on. Since traders are few (at least locally) they can form cartels, while farmers many: this is imminently possible. The farmers are further handicapped by the fact that they come from long distances with loads of several quintals/tonnes of produce on hired tractors; going back owing to the transport cost incurred is not an option for them. Their situation worsens when their cash needs are immediate, which is the case for the small farmers who constitute 90-plus% of those who sell at the mandis at MSP.
Advantage corporate buyers
The second law has somewhat similar issues. The corporate-buyers might just not buy the full quantity of the product on one or another pretext or delay payments;and if farmers complain, the corporates have access to a battery of lawyers, the fine print in contracts, the advantage of language, and, above all, the capacity to wait it out.
In both the above cases, the problem is of contracts between unequals: whether it is traders or corporates, they are far fewer and with deeper pockets,and they will deal with (poor/little-educated) small farmers (about 85% have two or less hectares of land), resulting in unequal outcomes.
The other issue is in regard to different regions and crops. Many proponents of the agri-marketing laws maintain that farmers from outside the wheat-rice belts in northern India are not protesting. Evidently so, since the country is diverse with some 15 agroclimatic zones and has over 50 crops grown.
Issues and farmers’ reactions
We also forget that farmers protest against policies in areas where they hail from: like in eastern India, farmers revolted in 1860 against indigo-farming, Mappilas revolted in 1921, or even the Warli Adivasi Revolt of 1945. More recently, in the 1970s to 2010s, Sharad Joshi led agitations for the farming sector mainly in Maharashtra, or farmers in Tamil Nadu had protested demanding Cauvery water. There are many more examples. Farmers protest against problems that affect them: they are not a homogeneous lot.
If in 2020 a new policy is being formulated, why is it (ironically) uniform for all farmers, all land and all crops, of opening up the markets; markets which are almost fully opaque, unequal and having imperfect information? What happens to the semi-arid areas and the farmers therein, where crop outcomes are uncertain? What happens to small and marginal farmers who have little to market and are largely inarticulate? How will risk be mitigated if farmers move from wheat-rice cultivation to more volatile crops such as vegetables and fruits, or pest-prone crops such as cotton? Or what happens to landless labourers who have migrated from far away to work in fields (such as from Bihar to Punjab)? Should there not be a comprehensive policy in regard to the agricultural sector rather than a “shock treatment” for agri-markets alone?
The so-far neglected problem of stagnation and high input prices in agriculture can be addressed through a systematic approach proposed in the M.S. Swaminathan Commission and/or the Ashok Dalwai Committee. Typical examples are transitions being worked out for farmers to move out of water-soaking paddy crop in Punjab-Haryana to other crops; say, in five years, they would reduce the area under paddy by 25-30%, and the loss they incur in the short run, will be compensated for by the government. This could, for example, also be done for sugarcane in western Maharashtra.
Shock treatments do not work anywhere, be it agriculture, industry or the economy. Many an industry, post-1991, shut down due to “shock treatment” then, resulting in a second de-industrialisation and the loss of hundreds of thousands of industrial jobs. The results in agriculture are likely to be no different in the face of shocks.
The dark step of writing hate into law
Chaudhary Charan Singh, the former Prime Minister, made a proposal to Prime Minister Jawaharlal Nehru in 1954. As a Minister in the Uttar Pradesh government, he wanted Nehru to pass a law so that jobs as gazetted officers could only be for those who wanted to or had married outside their caste. Nehru turned the proposal down because this struck at the exercise of the free will of individual citizens in India.
Setting a precedent
It is an indicator of the distance travelled since; that Charan Singh’s State (Uttar Pradesh) has an ordinance which criminalises inter-faith marriages. The U.P. government’s focus is firmly on ‘protecting’ Hindu women from marrying Muslim men. It does this under the pretext of regulating religious conversions.
In 1872, the colonial state drew up a law after it received petitions from Keshub Chandra Sen of the Brahmo Samaj demanding that people of different backgrounds be allowed to marry according to their ‘rites of conscience’. The Special Marriage Act, in 1954, took this further in independent India by taking away the colonial law’s requirement to renounce religion. However, it still allowed intrusion by the state, unlike under personal laws, by demanding notices to be put up in advance.
It also destroys the long-standing fraternity in everyday lives that has long defined India. The ordinance by U.P., the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, and the Madhya Pradesh Freedom of Religion Bill, 2020 are particularly vicious on at least four counts.
Under the Constitution, it is the individual citizen who has and exercises rights and obligations. But these new laws treat religious communities, instead of individual citizens, as basic entities. By taking away the agency that the Indian Constitution allows each individual to exercise, this fundamentally distorts the framework of our republic.
For those who argue that the Constitution does address communities when speaking of minority rights and untouchability, it is to only acknowledge and overcome social discrimination because that impedes the ability of those citizens to exercise their rights as individuals. By seeing the world as split between ‘Hindus’ and ‘Muslims’, a khap-ian universe, a fundamental modern characteristic of the guarantee of autonomy to all Indians as individuals is broken.
Violate privacy, choice rights
Second, these laws blatantly violate the Right to Privacy, which the Supreme Court of India in a much-lauded judgment in 2017, decreed to be fundamental. The level of state interference in a civil union, which is a solemnisation of a relationship between two individuals, breaches the basic structure of the Constitution.
Third, the provisions impede the exercise of an individual’s right to choose her faith without seeking state sanction. Under these new laws, everyone — from the police, local administration and communal groups and families — are given ample time to interfere and deny the individual, without any locus to do so. In matters of change of profession, nationalities, electoral choices and even political parties, no such interference is brought into play. The ruling by the Supreme Court (1977), which upheld earlier restrictions to convert by the States of Madhya Pradesh and Odisha, said it did so to penalise “conversion by force, fraud or by allurement. The other element is that every person has a right to profess his own religion and to act according to it. Any interference with that right of the other person by resorting to conversion by force or allurement cannot, in our opinion, be said to contravene Article 25(1) of the Constitution of India, as the article guarantees religious freedom subject to public health”. By making “propagation” contentious, the 1977 ruling pushed back freedoms in Article 25. Instead of rescinding the 1977 ruling, these laws further criminalise an individual’s choice of faith.
Fourth, the basis of the new law is deeply patriarchal. The nightmare that India traversed in the 1920s, with competitive communalism fanning charges of Hindu betis in North India being taken away like cattle, are being relived now. The pernicious myth of ‘love jihad’ where adult women are seen as property, is not just a pamphlet or WhatsApp message. It is now the law. We saw a brief preview in 2017 of the dark consequences of the ‘Prohibition of Unlawful Conversion of Religion Ordinance, 2020’ when the law confronted Hadiya, a 25-year-old health professional from Kerala, for her marital choice a year after converting to Islam.
Cost of inaction
It is with good reason that India is said to have effected a social transformation, thanks to the values spelt out and written into the law of the Republic. The Constitution offered high principles to aspire for, which Indians may never fully live up to. However, these new laws do the opposite; they put state power and the law itself behind majoritarian communal biases which empower regressive social mores governing marriage and fellowship. Inter-religious marriages may be less than 2.5% of all marriages, but the promise they hold goes beyond numbers. They reaffirm the fundamental constitutional premise of all citizens being equal, besides promoting the ideals of freedom and fraternity.
Changing contours of India-U.K. ties
Prime Minister Narendra Modi has made many sudden and surprising decisions: some felicitous, others disastrous. Among the former were invitations to leaders of the South Asian Association for Regional Cooperation to attend his 2014 swearing-in and his visit to Lahore in 2015; among the latter were demonetisation and the ‘Namaste Trump’ spectacle last February.
Choosing a chief guest
The nomination of a chief guest for the Republic Day parade is the Prime Minister’s exclusive gift, and he or she is not known to consult others in or outside the Cabinet. American President Donald Trump was Mr. Modi’s first choice for January 2019 but the honour eventually fell to Mr. Trump’s alter ego, Brazilian President Jair Bolsonaro. Mr. Modi’s selections are revealing: U.S. President Barack Obama in 2015, French President Francois Hollande in 2016, the Crown Prince of the United Arab Emirates in 2017, the ASEAN leaders in 2018, South African President Cyril Ramaphosa in 2019, Mr. Bolsonaro in 2020, and Mr. Johnson for 2021. With 193 countries in the United Nations, the Prime Minister’s choices have mostly been leaders identified with the Western camp.
India has a shared past with Britain and needs to chart a different shared future, now that Britain has left the European Union (EU). One joint enterprise will be as members of the UN Security Council where Britain has permanent status and India holds a non-permanent seat this year and next. And this year, Mr. Johnson will be hosting India as an invitee to the G-7, and the UN Climate Change Conference.
There is much in common between Mr. Modi’s recent invitees, Mr. Bolsonaro, Mr. Trump and Mr. Johnson. All their countries have been ravaged by the virus and each of them has been infected with COVID-19. They are all populist nationalists advocating ‘make my country great again’ and ‘my country first’. Their brand of democratic politics is self-centred and impervious to criticism.
Mr. Modi visited the U.K. in 2015 when six major agreements were concluded. It is unlikely that any assessment has been made of the implementation of those accords, but in contemporary diplomacy, it is common for a raft of new treaties to be superimposed on existing ones even where there is insufficient progress.
A fortuitous invite
From Britain’s point of view, Mr. Modi’s invitation to its Prime Minister was fortuitous because Brexit necessitates that every effort be made to seek commercial advantage in Asian countries with high growth rates. India has been fruitlessly negotiating a trade agreement with the EU since 2007, during which Britain was considered the main deal-breaker. The EU wanted duty reductions on autos, wines and spirits and wanted India to open financial sectors such as banking and insurance, postal, legal, accountancy, maritime and security and retail. India, as always, sought free movement for service professionals.
The same obstacles with post-Brexit Britain will arise, because the export profile of both countries is predominantly services-oriented. In response to free movement for professionals, Britain will refer to its new points-based system for immigrants, while after withdrawing from the Regional Comprehensive Economic Partnership, India is cautious about negotiating any new trade agreement, and will place greater stress on aspects related to country of origin and percentage of value addition in exports. Therefore, when the time comes for a discrete agreement with Britain, the two countries may settle for a limited one perhaps covering pharmaceuticals, financial technology, chemicals, defence production, petroleum and food products.
India-U.K. links are substantial. One and a half million persons of Indian origin reside in Britain, 15 of them are Members of Parliament, three in Cabinet and two holding high office as Finance and Home Ministers. Before COVID-19, there were half a million tourists from India to Britain annually and twice that figure in the reverse direction. Around 30,000 Indians study in Britain despite restrictive opportunities for post-graduation employment. Britain is among the top investors in India and India is the second-biggest investor and a major job creator in Britain. India has a credit balance in a total trade of $16 billion, but the level is below India’s trade with Switzerland, Germany or Belgium.
Beyond the Central Vista verdict, key questions
The Supreme Court of India has cleared the decks for the intensely contested new Parliament and Central Vista projects in New Delhi. Limiting itself strictly to ‘the procedures sanctioned by law’, the majority judgment concluded that the government had followed all processes as stipulated by the regulations and could go ahead with the construction. This may have put an end to the litigation but it does not necessarily mean that such disputes and bitter situations would not recur. The critical questions on ensuring public commitment in civic projects, improving participatory processes in city-building, and effective procurement of professional services remain unanswered.
Delhi as the most visible case
It would be erroneous and unproductive to think that redevelopment of the Central Vista is a unique case, sui generis as it was argued in the Supreme Court, and hence the issues. The Delhi project is only the most visible of instances, but the problem is widespread. The imprudent planning and reckless abandonment of Amaravati, the proposed capital for Andhra Pradesh, is but an example. In this project, confusion abounded: plans were erratically changed, the chosen architect was dropped when the project moved towards construction and a new one appointed. After acquiring vast areas of land through a controversial method, the project was abandoned, leaving farmers and others agitated and in difficulty. Failure to effectively address such instances has cumulatively eroded the possibilities of course correction.
First, the point of the participatory process. As an elected body, the state has the mandate and authority to draft civic projects and urban policies. While there is no argument on this, citizens often challenge the claims that they are unalloyed in their public purpose. The flip flop over the Amaravati project, where two elected governments made reckless decisions, is a case in point.
As political scientists have explained, most governments ensure that whimsical agendas do not drive public projects by institutionalising ‘horizontal’ and ‘vertical’ accountabilities. ‘Horizontal accountability’ is about creating interrelated state organisations such as heritage committees and environmental regulators to keep a check. ‘Vertical accountability’ concerns citizen oversight, which currently is limited to elections. The government often argues that horizontal accountability is in place and works well, while citizens, who are unconvinced given the poor track record, have argued for better and expanded vertical accountability such as an improved participatory process.
It is not that the provision for consultation is absent. In select areas such as master planning, regulations mandate stakeholder consultations. However, the processes are vague. They do not stipulate clear objective measures to determine whether stakeholder discussions meet the test of public consultation. As a result, citizens are at the mercy of an official or judges’ interpretation. There is a lesson or two to learn from the Land Acquisition Act’s abusive use and its subsequent changes. The Act was changed to reduce misuse by spelling out the consent required from a minimum number of landowners.
Choosing the designer
A second regulatory change is required for choosing designers for public projects. Design is a complex service that requires a high level of creativity to meet functional, performative and aesthetic needs. It has a significant bearing on creating public assets and judicious use of taxpayer’s money. Poor choices disastrously impact downstream construction activities, building use, city functioning, and value for money. Though the majority and dissenting judgments in the Central Vista project did not find any fault in the manner architecture consultants were appointed, some of the issues raised remind us that the processes of procuring designs services could be improved.
Barring a few instances of open competition, which is an ideal way to choose from a larger pool of solutions, the state follows the alternative method of closed procurement. Here, select architects who meet a set of prerequisites are invited and choices made from the designs they have provided. To execute this, the government, from the methods recommended by the Ministry of Finance, adopts the Quality- and Cost-Based Selection (QCBS). The method allows for stipulating prerequisites for consultants, placing higher weightage on their technical competency and relatively lower weightage on financial proposals. This is meant to prioritise quality and not low price.
Reducing the entry barrier
Many public projects insist on steep turnover conditions for architecture firms to qualify. The assumption is that the more considerable the turnover, the better it is in terms of expertise. Those familiar with the design profession know that creative outcomes are not a function of the firm’s scale. Steep entry requirements eliminate medium and small size firms and enable only a handful of large firms to qualify. This detrimentally reduces the pool of choice.
Going forward, where open competitions are not possible, the next best alternative is to mandate a method that reduces the entry barrier. In this regard, one could take cues from the suggestions made by the Architects’ Council of Europe when it faced a similar situation. It advocated dropping turnover requirements and laid an emphasis on qualitative selection criteria. Second, professional services could be disaggregated into design services and project development and management, thereby enabling better design focus. Third, weightage placed on design value has to be unambiguously clear and fixed. Given that more than 65% of the registered architects in India are below 35 years and many firms are medium sized, such procurement changes are all the more necessary.
On state capacity
Whenever a case for adopting better practices is made, policymakers argue that developing countries such as India have a relatively low state capacity. Hence, higher standards set in the matured economy and sustained by governments with higher capacity cannot be hastily implanted. The prevalent argument is that practices will improve as economic growth happens and as the country builds capabilities. On the face of it, such an incremental approach appears to make sense. However, it needs to be moderated in light of two facts. A comparison of responses to the novel coronavirus pandemic by India and the United States has shown that state capacity is not always directly proportional to wealth but more connected to will. Two, state capacity does not grow on its own as wealth increases. It improves only when the state is committed to doing better.