The Hindu Editorial weekly round up Jan-21

Fuzzy law, unclear jurisprudence, trampled rights

In the wake of the intensification of the farmers’ protests and reports of violent incidents on January 26 – a number of Twitter accounts became inaccessible in India. In the beginning, it was unclear whether this was Twitter’s decision, based on its belief that the accounts had violated its Terms of Service (the reason for its permanent suspension of Donald Trump from its platform, for example), or whether Twitter had been ordered to do so by the government, or by a court. As outrage mounted, the Government of India clarified that it had invoked Section 69A of the Information Technology Act, and ordered Twitter to block access to these accounts. The merits of this argument aside, the government’s Section 69A order was clearly an overreach even on its own terms, as media outlets such as The Caravan had not used the hashtag.

Soon after, Twitter restored access to many of the withheld accounts. This prompted a sharp reaction from the government, including a non-compliance notice and veiled threats that Twitter’s employees would be prosecuted for violating Section 69A. A meeting between Twitter officials and the government appears to have yielded for now an uneasy truce. On February 10, Twitter also published a blog post where it remarkably argued that the government’s own actions in directing it to withhold access to the accounts of journalists, activists, and politicians, violated Indian law, and the constitutional guarantee of the freedom of speech.

These events of the last few days throw into sharp relief the unsatisfactory state of Indian law and how it is interpreted and applied by censorship-happy governments. At present, the online free speech rights of Indian citizens depend entirely upon the extent to which multinational social-media platforms are able to stand up to the government’s censorship requests, how willing they are to risk legal prosecution, and how much confidence they have that their interpretation of Indian free speech law will stand up in court, even over the claims of the government. It should be clear that this is not a sustainable situation.

The root lies in the IT Act

The root of the problem is Section 69A of the IT Act. Section 69A grants to the government the power to issue directions to intermediaries for blocking access to any information that it considers prejudicial to, among other things, the sovereignty and integrity of India, national security, or public order. Section 69A(3) envisages a jail sentence for up to seven years for intermediaries who fail to comply. In 2009, the government also issued “Blocking Rules”, which set up the procedure for blocking (including regular review by government committees), and also stated that all requests and complaints would remain strictly confidential.

Violation of rights

There are a number of problems with this legal structure. The first is that it makes censorship an easy and almost completely costless option, for the government. Rather than having to go to court and prove a violation even prima facie of law, the government can simply direct intermediaries to block content, and place the burden of going to court upon the users. It stands to reason that the easier it is to censor speech, the more likely it is that a government — any government — will resort to that option. Furthermore, the confidentiality requirement means that the user will not even know why their account has been blocked and, therefore, will be in no position to challenge it. Third, there are no procedural safeguards — no opportunity for a hearing to affected parties, and no need for reasoned orders. This, then, violates both free speech rights, as well as the right to due process.

In the famous Shreya Singhal case that is well known for the striking down of Section 66A of the IT Act, the scope of Section 69A and the Blocking Rules were also litigated before the Supreme Court. Unfortunately, however, the Supreme Court missed an opportunity to guide the law in a pro-free speech direction, as it had with Section 66A: without engaging in any detailed analysis, the Court largely endorsed the legal regime, as it stood. The Court only noted that every affected individual would retain the constitutional right to challenge a blocking order, through a writ petition before the High Court.

Need for transparency

Now, it would appear to follow from this holding that the Shreya Singhal judgment made it mandatory for the government to furnish blocking orders along with reasons to affected parties; it is evidently impossible to challenge something that you cannot even see. However, as recent events show, in practice, that is not being followed (the lack of clarity in the Shreya Singhal judgment is no doubt a contributory factor). In a recent article in The Indian Express, Apar Gupta also pointed out that after the Supreme Court’s judgment in the Kashmir Internet Ban case, it is, at least now, an arguable position of law that any order restricting access to the Internet, or information on the Internet, must be made public.

Consequently, a combination of bad law and unclear jurisprudence has created a situation where Twitter or the intermediary that might be caught in the government’s crosshairs is the only entity that is in a position to defend the free speech rights of Indian citizens. And there is little doubt that doing so entails a non-trivial risk: in particular, the record of the Indian judiciary in civil rights cases involving the government has been remarkably poor in recent times, and it would take considerable courage for any entity to bet on the proposition that its interpretation of Indian free speech law would be necessarily upheld by the courts.

Enable a fair hearing

There is, thus, an urgent need for both legal and jurisprudential reform. Legally, the best case scenario would be to prohibit the government from being able to directly order intermediaries to block access to online information, except in narrowly-defined emergency cases, and to require it to go through court to do so, with an adequate opportunity for affected parties to defend themselves. Short of that, however, it is vitally important that blocking orders be made public, and that even under the current legal regime, affected parties be given the opportunity of a fair hearing before a blocking order is issued.

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Farm laws and ‘taxation’ of farmers

Over the past three decades, a major rationale offered in favour of liberalising Indian agriculture was that farmers were “net taxed”. In other words, incomes of farmers were kept artificially lower than what they should have been. It was argued that this “net taxation” existed because protectionist policies deprived farmers of higher international prices, and the administered price system deprived farmers of higher domestic market prices. If there were more liberal domestic markets and freer global trade, prices received by farmers would rise.

These arguments are raised again in the debates around the three farm laws. According to this view, farm laws are necessary to end the net taxation of agriculture. For this purpose, data on Producer Support Estimate (PSE) are used. A recent study found that PSE in Indian agriculture was -6% between 2014-15 and 2016-17. In contrast, PSE was +18.2% in the Organisation for Economic Co-operation and Development (OECD) countries, +19.6% in the European Union countries and +9.5% in the U.S. The farm laws would weaken restrictive trade and marketing policies in India and “get the markets right”. This, in turn, would eliminate negative support and raise farmers’ prices.

In these debates, a common example cited is that of milk. There is no Minimum Support Price (MSP) in milk, and a substantial share of milk sales takes place through the private sector, including multinationals like Nestle and Hatsun. Yet, India’s milk sector is growing faster than the foodgrain sector. If the milk sector can grow without MSP and with private corporates, why cannot other agricultural commodities? This article attempts a closer look at these claims.

PSE and its estimation

The PSE is estimated using a methodology advocated by the OECD. The OECD defines the PSE as “the annual monetary value of gross transfers from consumers and taxpayers to agricultural producers, measured at the farm gate level, arising from policies that support agriculture…” The PSE has two components. The first is market price support (MPS). MPS is that part of the gross transfers to producers arising from “a gap between domestic market prices and border prices of a specific agricultural commodity”. The second is budgetary transfers (BOT). BOT includes all budgetary expenditures on policies that support agricultural production. PSE is the sum of MPS and BOT, expressed also as a percentage of the value of agricultural production.

The PSE for Indian agriculture in 2019 was ₹-1,62,740 crore, or -5.5% of the value of production. Within the PSE, the MPS was negative while BOT was positive. The MPS was ₹-4,61,804 crore, or -15.5% of the value of production. The BOT was ₹+2,99,064 crore, or +10.1% of the value of production.

The MPS for a commodity is calculated as the product of its annual production and the difference between its international and domestic prices. The problem begins here: the international price is considered a benchmark with no reference to the actual possibilities of domestic producers obtaining that price.

Let us assume a commodity ‘A’ whose international price is higher than its domestic price. First, ‘A’ may be produced in large quantities but may also be essential for domestic food security. Hence, it may not be regularly exported. Yet, its MPS will be negative. Examples are rice and wheat in India. Second, most of the short-term changes in MPS may be illusory if they result from short-term fluctuations of international prices or relative exchange rates, or shocks to global demand or supply. Such fluctuations are more pronounced in agriculture because international agricultural markets are infamously imperfect, narrow and dominated by monopolistic multinational companies.

Third, if a country starts exporting ‘A’ to benefit from higher international prices, will the differential between international and domestic prices remain? In mainstream trade literature, a “small country assumption” is used where all countries are assumed to be price-takers and no single country is considered capable of triggering a major rise or fall in prices. But this is an unrealistic assumption. The international market for most agricultural commodities is small, while countries like India are large producers. Even if India exports a small additional share of the production of ‘A’, its impact on the international prices of ‘A’ will be disproportionately inverse. Consequently, the differential between domestic and international prices would considerably narrow, if not simply disappear.

Due to such fluctuations in MPS, the PSE also fluctuates widely. The PSE for Indian agriculture was +1.9% in 2000. It fell to -14% in 2004, -20.4% in 2008 and -27.8% in 2013. Afterwards, it rose to -3.8% in 2015 and -5.5% in 2019. These fluctuating PSEs mean nothing in terms of taxation or subsidisation of producers. They only mean that international prices were volatile.

In summary, the MPS is a wrong measure of taxation in agriculture because the international price is no “true price” to be accepted as a benchmark. Further, a negative MPS, by itself, implies neither a government that squeezes revenues out of farmers nor the absence of absolute profitability in agriculture.

The case of milk trade

Proponents of farm laws use the OECD estimates of MPS and PSE to show the perils of restrictive markets. By the same logic then, if the increasing penetration of private companies and the absence of MSP in milk are positive features, we should expect positive and rising MPS and PSE for milk. However, milk had the highest negative MPS among India’s major agricultural commodities in 2019. The MPS for milk was ₹-2,17,527 crore, which accounted for about 47% of the total MPS in agriculture. As a share of its value of production, the MPS for milk was -37.5%. Thus, if we go by the OECD estimates, milk was one of the most heavily “taxed” agricultural commodities in India.

Consider the period between 2015 and 2019. If the growth of private firms in milk trade was a positive change, the MPS for milk should have increased over this period. In 2015, the MPS for milk was positive at ₹16,190 crore. But in 2016, the MPS turned negative at ₹-57,223 crore and by 2019 it fell further to ₹-2.17 lakh crore. In other words, “taxation” of milk producers intensified between 2015 and 2019.

In reality, the MPS for milk turned negative not because of any compression of domestic prices. In fact, the average domestic price for milk rose from ₹25,946/tonne in 2015 to ₹28,988/tonne in 2019. But the average international reference price for milk rose faster from ₹24,905/tonne to ₹39,884/tonne in 2019. This led to a rise in the price differential from ₹1,041/tonne in 2015 to ₹10,896/tonne in 2019.

To argue from the above that India’s milk producers were “taxed” is as meaningless as arguing that India’s farmers as a whole were “taxed” to the tune of ₹4,61,804 crore in a year. The reason is that the OECD methodology, either for milk or for other commodities, does not offer any realistic assessment of the extent of taxation or subsidisation.

The lack of logic in debates

But these issues do not seem to bother the advocates of farm laws in India. In the debates, it is telling that these advocates (a) use the OECD estimates to highlight the overall negative MPS for agriculture as a problem; (b) but conveniently remain silent on the negative MPS for milk; and (c) yet, argue in the same breath that milk producers have benefited from the growth of private firms. The absence of logic in this line of argument is nothing but appalling.

In fact, what is missed in these debates is the elephant in the room: the BOT. The West’s PSEs in agriculture are positive and higher than India’s because they have higher BOT than in India.

Indian investments and BITs

Sri Lanka’s decision to renege on a 2019 agreement with India and Japan that aimed to jointly develop the strategic East Container Terminal (ECT) at the Colombo port comes as a rude shock to New Delhi. While international relations experts are busy assessing the diplomatic fallout of this problematic decision for India-Sri Lanka ties, the issue also needs to be looked at through the prism of the India-Sri Lanka bilateral investment treaty (BIT), which forms the bedrock of international law governing foreign investment between the two countries.

In 1997, India and Sri Lanka signed a BIT to promote and protect foreign investment in each other’s territories. The defining characteristic of this BIT, as is the case with all BITs, is that it empowers individual foreign investors to directly sue the host state before an international tribunal if the investor believes that the host state has breached its treaty obligations. This is known as investor-state dispute settlement (ISDS).

An important protection provided for foreign investment in the India-Sri Lanka BIT is the fair and equitable treatment (FET) provision given in Article 3(2). This Article provides that investments and returns of investors of each country shall, at all times, be accorded FET in the other country’s territory. FET is a ubiquitous provision contained in almost all BITs. The normative content of the FET provision has been fleshed out by scores of ISDS tribunals in the last two decades. The tribunals have persistently held that an important component of the FET provision is that the host state should protect the legitimate expectations of foreign investors. In a case known as International Thunderbird Gaming Corporation v Mexico, it was held that the concept of legitimate expectations relates to a situation where the host state’s conduct creates reasonable and justifiable expectations on the part of an investor (or investment) to act in reliance on said conduct, such that a failure to honour those expectations could cause the investor (or investment) to suffer damages.

Sri Lanka, by signing the agreement to jointly develop the ECT at the Colombo port, created such expectations on the part of Indian investors. Defaulting on this agreement, without specific and reasonable justification, potentially violates the Indian investor’s legitimate expectations, and thus, the FET provision of the BIT.

However, the twist in the tale is that India unilaterally terminated the India-Sri Lanka BIT on March 22, 2017. This termination was part of the mass repudiation of BITs that India undertook in 2017 as a result of several ISDS claims being brought against it. In cases of such unilateral termination, survival clauses in BITs assume significance because they ensure that foreign investment continues to receive protection during the survival period. Article 15(2) of the India-Sri Lanka BIT contains a survival clause, according to which, in case of a unilateral termination of the treaty, the treaty shall continue to be effective for a further period of 15 years from the date of its termination in respect of investments made or acquired before the date of termination.

Thus, the Indian investment in Sri Lanka and vice-versa made or acquired before March 22, 2017, will continue to enjoy treaty protection. But, in the case of the investment in developing the ECT at the Colombo port, this survival clause will be inconsequential, since the agreement was signed in 2019, i.e., after India unilaterally terminated the BIT. Hence, the Indian investor will not be able to sue Sri Lanka before an ISDS tribunal, notwithstanding the merits of the case.

Important lessons

This sordid episode has important lessons for India’s overall approach to BITs. As a consequence of the onslaught of ISDS claims in the last few years, India has developed a protectionist approach towards BITs. The motivation appears to be to eliminate or at least minimise future ISDS cases against India. However, an important attribute that perhaps has not received much attention is that BITs are reciprocal. Thus, BITs do not empower merely foreign investors to sue India, but also authorise Indian investors to make use of BITs to safeguard their investment in turbulent foreign markets.

India needs to adopt a balanced approach towards BITs with an effective ISDS provision. This will facilitate Indian investors in defending their investment under international law should a country, like Sri Lanka, renege on an agreement.

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Money vs. happiness

The question whether the rich are more satisfied with their lives is often taken for granted, even though surveys, like the Gallup World Poll, show that the relationship between subjective well-being and income is often weak, except in low-income countries in Africa and South Asia. There are a few plausible reasons. First, growth in income mostly has a transitory effect on individuals’ reported life satisfaction, as they adapt to material goods. Second, relative income, rather than the level of income, affects well-being — earning more or less than others looms larger than how much one earns. Third, though average life satisfaction in countries tends to rise with GDP per capita at low levels of income, there is little increase in life satisfaction once GDP per capita exceeds $10,000 (in purchasing power parity).

Why do we need a new measure of well-being when there is already a widely used, objective welfare measure based on per capita income? There are several reasons. The first stems from the distinction between decision utility and experienced utility. In the standard approach to measure well-being, ordinal preferences are inferred from the observations of decisions made supposedly by rational (utility maximising) agents. The object derived is decision utility. In contrast, recent advances in psychology, sociology, behavioural economics and happiness economics suggest that decision utility is unlikely to illuminate the utility associated with different experiences — hence the emphasis on measures that focus more directly on experienced utility, notably using subjective well-being (SWB) responses.

We draw upon the two rounds of the IHDS for 2005 and 2012. An important feature of IHDS is that it collected data on SWB. The question asked was: compared to seven years ago, would you say your household is economically doing the same, better or worse today? So, the focus of this SWB is narrow. But as it is based on self-reports, it connotes a broader view that is influenced by several factors other than income, assets, and employment, like age, health, caste, etc.

There is a positive relationship between SWB and per capita expenditure (a proxy for per capita income, which is frequently underestimated and underreported): the higher the expenditure in 2005, the greater was the SWB in 2012. The priority of expenditure, in time, rules out reverse causation from high SWB to high expenditure, i.e., higher well-being could also be associated with better performance resulting in higher expenditure. High expenditure is associated with a decent standard of living, good schooling of children, and financial security. As India’s comparable GDP per capita in 2003 (PPP) was $2,270, well below the threshold of $10,000, it is consistent with extant evidence.

Aspirations and achievements

The larger the proportionate increase in per capita expenditure between 2005 and 2012, the greater is the SWB. To illustrate this, we construct three terciles of expenditure in 2005: the first representing extremely poor, the second the middle class, and the third the rich. If the proportionate increase in per capita expenditure is highest among the extremely poor and lowest among the rich, the higher will be the SWB of the extremely poor. This is indeed the case.

This provides important policy insights. One is that in a lower-middle-income country like India, growth of expenditure or income is significant. However, the widening of the gap between aspirations and achievements or between the highest expenditure/income of a reference group and actual expenditure/income of a household reflects resentment, frustration and loss of subjective well-being. So, taxing the rich and enabling the extremely poor to benefit more from economic opportunities can enhance well-being. In conclusion, objective welfare and subjective well-being measures together are far more useful than either on its own.

Too many IITs, unrealistic expectations

Without question, the Indian Institutes of Technology, or the IITs, are the crown jewels of Indian higher education. They are world-renowned for the quality of their graduates and for their academic programmes in a range of fields in technology and engineering — and in the past decade, in research and innovation through research parks as well. They are among the few Indian higher education institutions that do reasonably well in the global rankings. However, for the past decade or so, and according to current plans, the IIT “system” has expanded beyond its capacity to maintain its high standards and is in danger of sinking into mediocrity. The recent decision of the University Grants Commission to permit select IITs under the ‘Institutions of Eminence’ category to set up campuses abroad could further weaken these already stretched institutions. It is time to rethink the changing role and mandate of IITs in order to ensure that quality and focus are maintained — and by prioritising the needs of India, but with a 21st century twist.

What the IITs are, are not

The original five IITs were established in the 1950s and early 1960s (https://bit.ly/3kfq9K9). Four had a foreign collaborator: IIT Bombay (the Soviet Union), IIT Madras (Germany), IIT Kanpur (the United States), and IIT Delhi (the United Kingdom). Currently, there are 23 IITs. After setting up IIT Delhi in 1961, it took another 34 years to establish the sixth IIT in Guwahati (1994). Since then, 17 more IITs have been established, including several that resulted from upgrading existing institutions.

Funded generously by the central government, the IITs focused exclusively on technology and engineering. They later added the humanities and social sciences — but these programmes were modest until the 2020 National Education Policy emphasised the IITs should focus more on “holistic and multidisciplinary education”.

According to data available with the Council of Indian Institutes of Technology, the IITs are small institutions with average student enrolments in the five older IITs of around 10,000. Some of the newer ones remain quite small, with fewer than 400 students. The older IITs have faculties of around 1,000, while some of the new ones, such as those in Palakkad and Jammu, employ 100 or so. Further, most of the IITs suffer from a severe shortage of professors. For example, IIT Dhanbad is approved to hire 781 instructors but only 301 positions were filled as of January 2021.

Offerings, students, faculty

The IITs are not universities; they have neither the range of disciplines nor the size that characterise universities worldwide. The IITs started as undergraduate institutions; they gradually added small post-graduate programmes, but some are now adding significant post-graduate offerings. IIT-Bombay’s student enrolment, for example, was 58% post-graduate during 2019-20 (https://bit.ly/3pxUZyp). The IITs were, and are, self-consciously elite institutions aiming at the highest international academic standards — a tradition which, in our view, is important but increasingly difficult to maintain.

It is not surprising that IITs graduates are so successful — the schools may be the most selective institutions in the world. Around 7,00,000 students sit for the national engineering entrance examination for the IITs and several other elite institutions each year and a vast majority of them target the 16,000-plus seats available in the 23 IITs. According to an answer provided in Lok Sabha by the Minister of Human Resource Development, in February 2020, dropout rates at the IITs are infinitesimal and declining, from 2.25% in 2015-16 to 0.68% in 2019-20.

Similarly, the IITs have traditionally attracted high quality faculty, where most have doctorates from the most respected western universities. Top quality professors have been attracted to the IITs because of the quality of the students, the chance to work with the best academic minds in India, and a commitment to India’s development. While salaries do not compare well on the international market, working and living conditions on the older IIT campuses are comfortable.

In recent years, however, things began to change. The IITs could not attract a sufficient number of young faculty to fill vacancies resulting from retirements. The emerging IT and related industries in India offered much more attractive salaries and exciting work opportunities, and many were lured to universities and industry in other countries.

At the same time, the government dramatically expanded the number of IITs, spreading them around the country. Most of the new IITs are located in smaller towns such as Mandi (Himachal Pradesh), Palakkad (Kerala), Dharwad (Karnataka), and others. While it is important to provide educational opportunities outside the major metropolitan areas, top institutions are seldom located far away from urban amenities. There is no doubt a sufficient number of excellent students to attend all of the IITs, but there are not now, nor will there be in the future enough top-quality faculty to staff all of the new institutes, especially those in mofussil locations. Facilities and infrastructure are unlikely to be “world class.” It is, thus, inevitable that quality will decline and the “IIT brand” diluted. This would be very unfortunate for India, since the IITs are without doubt India’s most recognisable and respected academic institutions.

Another area is the lack of correlation between the local needs and IITs. Most of the IITs and other prominent “Institutes of National Importance” are ‘academic enclaves’ with little connection with their regions. Only a few State governments are effectively utilising the presence of IITs in the local milieu through knowledge sharing networks involving universities, colleges and schools, and local industries and firms. Similarly, there are few community outreach programmes. Such an approach could prevent disruption, such as that occurring in Goa, where local groups are resisting locating a new IIT in their region.

What needs to be done

While excellent engineering/STEM (science, technology, engineering and mathematics) institutions are needed, they all do not have to be IITs. Perhaps 10 to 12 “real” IITs located near major cities are practical for India. Some of the newly established institutes can be renamed and provided with sufficient resources to produce high quality graduates and good research. A more limited “IIT system” needs to be funded at “world class” levels and staffed by “world class” faculty, perhaps with some recruited from top universities internationally. Recent decision to liberalise the recruitment rules to attract more foreign faculty is a good step in the right direction.

Further, the IITs need to pay attention to internationalisation beyond sending their brightest graduates abroad and recruiting Indians with foreign PhDs; starting overseas branches is a bad idea, but in-depth collaboration with the best global universities, and hiring foreign faculty, perhaps as visiting scholars, would yield excellent results, and further build the IITs international brand. IIT Bombay-Monash Research Academy, and University of Queensland-IIT Delhi Academy of Research (UQIDAR), are promising examples. The IITs need robust policies to attract international students. And, of course, adequate and sustained funding is mandatory — both from government and from the philanthropy of tremendously successful IIT graduates at home and abroad. It would be tragic for India’s “jewel in the academic crown” to be diminished. And overexpansion will inevitably mean exactly that.

The pressing need to adjudicate, not mediate

The recent judgment of the Supreme Court that refused to review its earlier verdict on the Shaheen Bagh protest is inseparable from its political context. The verdict of October 7, 2020 declared that there is no absolute right to protest, and it could be subjected to the orders of the authority regarding the place and time. Apart from thinking about the legal and constitutional issues, it can also lead to a discourse on the moral authority of the top court in dealing with such fundamental questions related to freedom.

Protests, a political challenge

Both the judgments came out at the time of ongoing street agitations. Protest “at anytime and anywhere” has not been as simple as conceived in the judgments. The agitations against the Citizenship (Amendment) Act (CAA) and the farm laws also brought out the immense agony and hardship that the protesters had to face. In the anti-farm laws struggle, they experienced suffering over almost the entire winter for a cause which they believe as one that concerns the whole nation. They had to pay a heavy price for their convictions. Many were subjected to malicious prosecution by the state on serious charges of sedition and terrorist activities. Not only the protesters but also their supporters, including comedians and journalists, were not spared. All freedoms under Article 19 of the Constitution, from freedom of expression to that of peaceful association, were seriously impaired.

Even today, many languish in jail for the offence of dissent and the more serious offence of ‘andolan’. Disha Ravi, a 22-year-old climate activist, was booked recently for ‘conspiracy against the government’. Such arrests continue because the protests are a political challenge to the existing regime, a theme which the Court did not even address with contextual details.

A problematic ‘balancing’

There is a more significant question that a citizen could pose against the Court’s pronouncements on the Shaheen Bagh protest. The agitations on the street became an imperative because the issues were not subjected to a timely judicial examination. The subject matter of almost all the major protests which have happened recently in India, be it over ‘economic reservation’, the CAA or the farms laws, involved legal and constitutional issues requiring immediate and effective adjudication in terms of their constitutional validity. The top court could not exercise its constitutional role and ensure judicial scrutiny on an aggrandising executive and an equally imposing Parliament by exercising its counter-majoritarian function. Having failed to do so, the kind of ‘balancing’ which the Court now tries to attain by way of the Shaheen Bagh orders will pose more questions than it answers.

In the original judgment on Shaheen Bagh, the Court attempted to “mediate” the issue and admitted in the judgment that it “did not produce any solution”. The Court’s duty during the testing times is to adjudicate, and not to mediate. A reconciliatory approach is not a substitute for juridical assertion. The review petition provided the Supreme Court an opportunity to revisit its earlier folly where it merely acted as a judicial extension of the executive. It could have taken empirical lessons from a political situation that was almost proximate to an internal Emergency.

Constitutional morality is a philosophy that should primarily apply to the constitutional courts. Dr. B.R. Ambedkar used this idea in terms of institutions and not of individuals. Had there been a timely adjudication of the validity of the laws which was questioned by the process recognised by the law, the torment on the street could have been probably reduced.

Think fair and effective

A fair and effective adjudicative mechanism in constitutional matters can meaningfully sublimate the agitation on the street. Studies have shown that social movements could be less radical and less oppositional when the issues could be effectively sorted out by way of fair litigative means. Sociologist Luke Martell was of the opinion that the radical green movement in Britain has been at a slower pace when compared with other parts of western Europe, because the “public enquiry system” in the United Kingdom could “process ecological demands, integrate them into the political system and minimise radicalisation of the movement arising out of exclusion and marginalisation”. The principle can have application across the constitutional democracies.

The textbook theory of “balancing” the right to protest and the right to move along the road does not need any reiteration in the constitutional climate of the present day. When fear is the new normal for the average Indian, the Court’s only role is to act as the guardian of the right to dissent.

In the review petition, the petitioners rightly apprehended that the observations in the earlier judgment against the indefinite occupation of public space “may prove to be a license in the hands of the police to commit atrocities on legitimate voice of protest”. The Court, by its present rejection of the plea, has reinforced an illiberal state’s intimidating stand during another unjust political situation. Its affirmation of the earlier view is not merely insensitive or surreal. It illustrates an instance of “abusive judicial review”, as described by David Landau and Rosalind Dixon, where the Court not only refuses to act as the umpire of democracy but aids the executive in fulfilling its strategies. In the process, it legitimises very many illegitimate state actions.

State’s intrusion is a worry

In the 2020 verdict,the Supreme Court has also failed to properly appreciate and contextualise the earlier Constitution Bench judgment in Himat Lal K. Shah vs Commissioner of Police (1972) even after referring to it. It is the state’s intrusion into the realm of rights that should worry the Court. In Himat Lal K. Shah, the Court said that the rule framed by the Ahmedabad Police Commissioner conferred arbitrary power on the police officers in the matter of public meetings and, therefore, was liable to be struck down. Justice Kuttyil Kurien Mathew, in Himat Lal K. Shah, explained that “freedom of assembly is an essential element of a democratic system” and that “the public streets are the ‘natural’ places for expression of opinion and dissemination of ideas”.

In the review petition, it was not the cause alone that was tried. It was also the Court.

Hitting the right notes with the health budget

Health care has taken centre stage due to an unfortunate novel coronavirus pandemic that has devastated lives and livelihoods across the globe. Although India has performed relatively better in its COVID-19 management, even compared to countries with highly developed health systems, the impact of the outbreak on society and the economy is undeniable.

Context of packages

It is important to view the Budget in the context of the various Aatmanirbhar Bharat Abhiyaan packages announced by the Government of India, which also include several short-term and longer-term measures to strengthen the health sector. Production-Linked Incentive schemes have been announced to boost domestic manufacture of pharmaceuticals and medical devices. Mission COVID Suraksha has also been launched to promote the development and testing of indigenous vaccine candidates. At least 92 countries have approached India for a COVID-19 vaccine, thus bolstering the country’s credentials as the vaccine hub of the world. Further, to ensure food and nutrition security for the poor and the vulnerable during the COVID-19 crisis, the Government of India launched the Pradhan Mantri Garib Kalyan Package for providing free foodgrains to 800 million beneficiaries. To facilitate access to subsidised grains across the country, the ‘One Nation One Ration Card’ scheme has been enabled in 32 States/Union Territories covering 690 million beneficiaries.

With respect to the “padding” of the health Budget, with allocations for water, sanitation, nutrition and clean air, as pointed out by some commentators, it is important to appreciate that the presentation of a combined ‘health and well-being’ budget, which sets the tone for greater integration of these areas, is in fact a welcome step. The National Health Policy (NHP), 2017, highlights the close links between health, water and sanitation. This year’s Economic Survey too recognises that improvements in access to bare necessities such as water, sanitation and housing are strongly correlated with progress in health indicators.

Good water, vaccine coverage

The substantive allocation for the newly launched Jal Jeevan Mission (Urban) is especially commendable as access to adequate, good quality water supply has major positive externalities for the health sector. A report released by the Johns Hopkins Bloomberg School of Public Health in 2019 suggested that nearly one out of every 100 Indian children does not live to celebrate their fifth birthday on account of either diarrhoea or pneumonia. Suboptimal access to clean water and sanitation is directly linked to diseases such as diarrhoea, polio and malaria. Moreover, water contaminated with heavy metals such as arsenic increases the risk of developing heart ailments and cancer.

Another important public health-related announcement in Budget 2021 was the government’s decision to expand the coverage of the pneumococcal vaccine across the country. Pneumococcal pneumonia is a major killer of children under the age of five years. Once universalised, this indigenously developed vaccine could save up to 50,000 lives annually. The Finance Minister has also made a special allocation of ₹35,000 crore for the COVID-19 vaccine in 2021–22, which could be increased if required. India has already delivered over eight million doses of the vaccine to health-care and frontline workers thus far — the fastest vaccination drive in the world.

The priority accorded to capital expenditure through the launch of the Pradhan Mantri – Atmanirbhar Swasth Bharat Yojana (PMANSBY), is also a much-need step. Capital expenditure has, historically, constituted only a small percentage of the overall health Budget, with the majority of funds going towards salaries and administrative costs. Further, PMANSBY lays emphasis on the health system being strengthened at all levels, including establishing integrated public health laboratories and institutes of virology. This is crucial as experts have repeatedly highlighted the need for enhancing disease surveillance and diagnostic capabilities to be better prepared for disease outbreaks. Additionally, the emphasis on expansion of health and wellness centres under PMANSBY, together with a ₹13,192 crore Finance Commission grant for strengthening the primary health system through local government bodies, is also noteworthy.

Another point of discussion in relation to the health Budget is the stagnant allocation for the Pradhan Mantri Jan Arogya Yojana (PM-JAY), a flagship scheme launched by the government in late 2018 as part of the Ayushman Bharat initiative. Despite being a relatively new scheme, the Economic Survey estimates a 20% decline in the infant mortality rate between 2015–16 and 2019–20 in States that adopted PM-JAY, compared to a 12% decline in States that did not. It is important, therefore, to persist with this highly ambitious scheme and accelerate its roll-out as the absorptive and governance capacity of States improve.

Promoting ayurveda

A less talked about aspect of the health Budget is the nearly 40% hike for the Ministry of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homoeopathy (AYUSH). The pandemic has catalysed a behavioural shift in favour of preventive care, holistic health and wellness. There is considerable potential for promoting ayurveda and yoga as well as integrative health-care approaches in the post-COVID-19 scenario, especially for stress reduction and the management of chronic diseases.

States must act too

Undoubtedly the budgetary allocation for health needs to be ramped up over time. We also have to ensure adequate funds for critical and closely-linked sectors such as nutrition, water and sanitation. The onus of increasing health spending, however, does not lie with the Centre alone but also with the States also. In fact, as elucidated in the National Health Accounts 2017, 66% of spending on health care in India is done by States. It is imperative, therefore, that States increase expenditure on health to at least 8% of their budget by 2022 as recommended by the National Health Policy (NHP), 2017 and the Fifteenth Finance Commission.

The health sector has found a prominent place in the government’s agenda over the last few years, with the implementation of a series of well-thought-out and carefully sequenced reforms. While much remains to be done, the Union Budget 2021–22 has laid a strong foundation to increase the resilience of the sector in the post-COVID-19 era and achieving Universal Health Coverage by 2030 as part of the Sustainable Development Goals agenda.

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