📰 ‘Enact data protection law soon’
•India’s tech community, including technology billionaire Nandan Nilekani, who spearheaded Aadhaar, say India quickly needs a “data protection law.”
•Mr. Nilekani said the country needed a strategic position on data which represented risks such as colonisation, privacy issues and a “winner-takes-all market,” in which the best players are able to seize a very big portion of the rewards, and the remaining contenders are left with very little. “Data is being vacuumed out of the country and going into unaccountable systems,” he said at an event here.
📰 India aims to widen oil import sources
Places first order for shale crude with the U.S., says prices lower than for supplies from Gulf countries
•Indian Oil Corporation placed India’s first ever shale oil order two days ago with the U.S., according to company Chairman Sanjiv Singh, who said that the prices from the U.S. were very competitive even when compared with those from Gulf nations.
•Speaking after his meeting with Turkmenistan Deputy Prime Minister Rashid Meredov in New Delhi on August 14, Petroleum Minister Dharmendra Pradhan said that, regardless of the current tensions between India and China on the border, China was showing keen interest in maintaining business relations between the two countries.
•Mr. Pradhan added that the increasing oil imports from new sources such as the U.S. was also putting pressure on OPEC countries to reduce the ‘Asian premium’ on oil prices they charge Asian countries, including India.
•“Two days ago, we gave the first shale oil order, the first time shale oil will come to India,” Mr. Singh said, also speaking following the meeting between the two ministers. “And, the U.S. is giving at prices competitive with the Gulf prices. We bought four cargoes [the] day before yesterday.”
•“The government supported us in this case,” Mr. Singh added. “We used to buy oil on an FOB (Free On Board) basis. Now, these small shale producers cannot give a complete supply, so we have allowed them to aggregate and ship it to us. It is their ship that will deliver to us.”
•Under the FOB model, the buyer takes delivery of the item as soon as it leaves the seller’s shores, which means that shipping costs are borne by the buyer. The deal with U.S. companies by IOC and BPCL, for 3.5 million barrels and 1.9 million barrels respectively, has PetroChina transporting the oil on behalf of the U.S. companies.
China’s ‘red carpet’
•“Recently, several ministers have travelled to China and found that, whatever is happening on the border or on the diplomatic front, the Chinese do not want to let business stop between the two countries,” Mr. Pradhan said. “They are showing the red carpet for Indian business.”
•Mr. Pradhan was also optimistic about the diversification of oil imports, including from countries like the U.S., as it would put pressure on the OPEC countries to do away with the Asian premium, something India has been arguing for. The increasing cooperation between India and the U.S. was mentioned by President Donald Trump as well.
•“We have been asking for the Asian premium to be removed for a while now,” Mr. Pradhan said. “Now, the market dynamics are forcing them to reduce the Asian premium. What was going slow through bilateral engagements, is now being achieved. The American shale oil and gas are coming at a new normal price, and gives us leverage.”
📰 Ministerial group to oversee disinvestment
Cabinet okays DIPAM proposal
•The Cabinet on Wednesday empowered a ministerial group led by Finance Minister Arun Jaitley to decide on details of strategic disinvestment of public sector firms, starting from the terms of sale till inviting financial bids from prospective buyers.
•“The Cabinet Committee on Economic Affairs (CCEA) has approved the proposal of the Department of Investment and Public Asset Management (DIPAM) for setting up an Alternative Mechanism (AM) consisting of the Finance Minister, Minister for Road Transport & Highways and Minister of Administrative Department, to decide on the matters relating to terms and conditions of the sale from the stage of inviting of Express of Interests (Eols) till inviting of financial bid,” the government said.
•The Cabinet also approved empowering of the Core Group of Secretaries (CGD) to take policy decisions regarding procedural issues and to decide on deviations as and when necessary for the effective implementation of the decisions taken by the CCEA.
📰 Corpus fund for proceeds of education cess
•The Cabinet on Wednesday approved the setting up of a single corpus fund, in which all proceeds of secondary and higher education cess will be credited. These will be utilised for the government’s schemes in the education sector.
•The HRD Ministry will be responsible for the administration and maintenance of the non-lapsable pool that will be known as “Madhyamik and Uchchtar Shiksha Kosh” (MUSK).
•“The funds arising from the MUSK will be utilised for schemes in the education sector which would be available for the benefit of students of secondary and higher education,” said a release.
•The Cabinet also approved the creation of one post of Director and three non-teaching posts for National Institute of Technology, Andhra Pradesh.
📰 AI shows interest in overhauling defence planes
MRO unit’s CEO suggests measure under Make in India initiative to save ‘a lot of foreign exchange’
•The Civil Aviation Ministry has written to the Defence Ministry asking them to facilitate the servicing of defence aircraft at Air India’s Maintenance, Repair and Overhaul (MRO) facilities.
•“Suitable measures may kindly be initiated to negotiate with OEMs [original equipment manufacturer] of defence aircraft to give training and maintenance manuals so that we can maintain the defence aircraft at much cheaper cost and better turnaround time, as compared to giving the maintenance to OEMs abroad,” Civil Aviation Secretary R.N. Choubey wrote to Defence Secretary Sanjay Mitra recently.
•Air India’s MRO unit — Air India Engineering Services Limited (AIESL) — currently carries out MRO activities for commercial aircraft of various Boeing and Airbus fleet type at its facilities based in Delhi, Mumbai, Hyderabad, Thiruvananthapuram , Nagpur and Kolkata.
•In a bid to expand its business to defence aircraft, AIESL had even applied for a bid to service Indian Air Force’s IL-78 mid-air refueller aircraft and four Embraer-135 aircraft used to transport VIPs earlier this year. However, the bids were rejected as AIESL does not have the mandatory authorisation certification required to be obtained for servicing these planes from the Russian-based OEMs.
•“There is a clause of OEM certification. OEM is not willing to transfer the knowledge or skill nor is allowing AIESL to certify,” AIESL chief executive officer H.R. Jagannath had said in a meeting on January 25, adding that the IL-78 aircraft was being sent to Russia for maintenance at present.
•“Under the Make in India scheme, these aircraft should be maintained in India and by doing so, India can save a lot of foreign exchange,” the AIESL CEO added.
Maintenance manual
•The Aviation Secretary wrote in his letter to the Defence Secretary that getting the maintenance manual details from OEMs was essential for maintaining any aircraft. “AIESL is capable of maintaining narrow-body as well as wide-body aircraft of any manufacturer. Defence establishments can make use of our facilities, including hangars, which are spread all over the country,” he said.
•The Aviation Ministry will also request the External Affairs Ministry to take up the matter with Russia.
•The Comptroller and Auditor General (CAG), in its report in July this year, had pointed out to “several deficiencies in infrastructure facilities and maintenance and repair of the existing IL fleet.”
•The audit said that India had only one hangar for 14 IL-76 aircraft and one for six IL-78 planes, which are due for overhaul in 2018-19.
•“Due to non-availability of hangars, the costly air assets remained in the open which adversely affected their serviceability and life,” the CAG report had said.
📰 Union Cabinet approves new metro rail policy
Private investment must for Central aid
•The Union Cabinet has approved a new policy for expanding and regulating metro rail services in cities across India. This is the first such policy document prepared by the Centre since metro rail operations began in Delhi in 2002.
•The 14-page document approved on Wednesday has seven key points, of which the most significant is the one on funding pattern. The policy gives a big boost to private players by making private participation mandatory for all the three funding options – be it a public-private partnership (PPP) model with central assistance under the Viability Gap Funding scheme of the Finance Ministry, a grant from the Centre under which 10% of the project cost would be given as a lump sum, or a 50:50 equity sharing model between the Central and State governments.
•Private participation “either for complete provision of metro rail or for some unbundled components” such as automatic fare collection will form an essential requirement for all metro rail projects seeking Central financial assistance.
•The policy also seeks to ensure that metro projects are initiated for sound reasons. The Urban Development Ministry recently turned down a metro project proposal from Vijayawada due to lack of passenger traffic, a Ministry official said.
•“The metro project can be proposed only if it is found to be more cost effective as opposed to other mass transit projects such as tramways, light rail transit, or bus rapid transit system,” the policy states.
•“Every proposal for Metro Rail should necessarily include proposals for feeder systems that help to enlarge the catchment area of each metro station to at least 5 km,” the policy adds.
Rigorous evaluation
•It also stipulates rigorous project evaluation by a third party.
•The policy also makes it mandatory for state governments to set up a unified metropolitan transport authority. This would be a statutory body entrusted with preparing a comprehensive mobility plan for the city.
•As per the policy, States are required to adopt innovative mechanisms such as ‘value capture financing’ and ‘betterment levy’ to mobilise resources for the project. States will also get a free hand in implementing the projects.
•In cases where States opt for central assistance of 10% of project cost, the Union government will not concern itself with project execution.
•Noting that metro projects should stop turning into white elephants, the policy stipulates an increase in rate of return from the current the 8% to 14%.
📰 The architecture of censorship
Censorship exists in India to the extent it does because it is both easy and efficient to accomplish
•Independence Day is an occasion to celebrate freedom from a colonial regime that not only cast chains of economic and political bondage upon Indians, but also fettered their freedom to think, dissent, and express themselves without fear. Demands for a right to free speech, and for an end to political, cultural and artistic censorship, were at the heart of our freedom struggle, and which culminated in the celebrated Article 19(1)(a) of the Indian Constitution. Last week, however, two events revealed that 70 years after Independence, the freedom of speech still occupies a fragile and tenuous place in the Republic, especially when it is pitted against the authority of the State. The first was the Jharkhand government’s decision to ban the Sahitya Akademi awardee Hansda Sowvendra Shekhar’s 2015 book, The Adivasi Will Not Dance , for portraying the Santhal community “in bad light”. And the second was an order of a civil judge at Delhi’s Karkardooma Court, restraining the sale of Priyanka Pathak-Narain’s new book on Baba Ramdev, titled Godman to Tycoon .
•Neither the ban on The Adivasi Will Not Dance , nor the injunction on Godman to Tycoon , are the last words on the issue. They are, rather, familiar opening moves in what is typically a prolonged and often tortuous battle over free speech, with an uncertain outcome. Nevertheless, they reveal something important: censorship exists in India to the extent it does because it is both easy and efficient to accomplish. This is for two allied reasons. First, the Indian legal system is structured in a manner that achieving censorship through law is an almost costless enterprise for anyone inclined to try; and second, the only thing that could effectively counteract this — a strong, judicial commitment to free speech, at all levels of the judiciary — does not exist. Together, these two elements create an environment in which the freedom of speech is in almost constant peril, with writers, artists, and publishers perpetually occupied with firefighting fresh threats and defending slippery ground, rather than spending their time and energy to transgress, challenge and dissent from the dominant social and cultural norms of the day.
The Jharkhand ban
•The Jharkhand government’s ban on The Adivasi Will Not Dance followed public protests against the writer, with MLAs calling for a ban on the book on the ground that it insulted Santhal women. The legal authority of the government to ban books flows from Section 95 of the Code of Criminal Procedure (which, in turn, was based upon a similarly worded colonial provision). Section 95 authorises State governments to forfeit copies of any newspaper, book, or document that “appears” to violate certain provisions of the Indian Penal Code, such as Section 124A (sedition), Sections 153A or B (communal or class disharmony), Section 292 (obscenity), or Section 295A (insulting religious beliefs). Under Section 96 of the CrPC, any person aggrieved by the government’s order has the right to challenge it before the high court of that State.
•The key element of Section 95 is that it allows governments to ban publications without having to prove, before a court of law, that any law has been broken. All that Section 95 requires is that it “appear” to the government that some law has been violated. Once the publication has been banned, it is then up to the writer or publisher to rush to court and try and get the ban lifted.
•The CrPC is therefore structured in a manner that is severely detrimental to the interests of free speech. By giving the government the power to ban publications with the stroke of a pen (through a simple notification), the law provides a recipe for overregulation and even abuse: faced with political pressure from influential constituencies, the easiest way out for any government is to accede and ban a book, and then “let the law take its own course”. Furthermore, litigation is both expensive and time-consuming. Section 95 ensures that the economic burden of a ban falls upon the writer or the publisher, who must approach the court. It also ensures that while the court deliberates and decides the matter, the default position remains that of the ban, ensuring that the publication cannot enter the marketplace of ideas during the course of the (often prolonged and protracted) legal proceedings.
The Karkardooma injunction
•The most noteworthy thing about the Karkardooma civil judge’s injunction on Godman to Tycoon is that it was granted without hearing the writer or the publisher (Juggernaut Books). In an 11-page order, the civil judge stated that he had given the book a “cursory reading”, and examined the “specific portion” produced by Baba Ramdev’s lawyers in court which he found to be potentially defamatory. On this basis, he restrained the publication and sale of the book.
•In this case, it is the judicial order of injunction that is performing the work of Section 95 of the CrPC. Effectively, a book is banned without a hearing. The book then stays banned until the case is completed (unless the writer or publisher manages to persuade the court to lift the injunction in the meantime). Once again, the presumption is against the rights of writers, and against the freedom of speech and expression.
•In fact, the Karkardooma civil judge’s injunction order is contrary to well-established principles of free speech and defamation law. Under English common law — which is the basis of the Indian law of defamation — it is recognised that injunctions, which effectively amount to a judicial ban on books, have a serious impact upon the freedom of speech, and are almost never to be granted. The only situation in which a court ought to grant an injunction is if, after hearing both sides in a preliminary enquiry, it is virtually clear that there could be no possible defence advanced by the writer or publisher. The correct remedy, in a defamation case, is not to injunct the book from publication on the first hearing itself, but to have a full-blown, proper trial, and if it is finally proven that defamation has been committed, to award monetary damages to the plaintiff.
•In 2011, the High Court of Delhi held that this basic common law rule acquired even greater force in the context of Article 19(1)(a) of the Constitution, and reiterated that injunctions did not serve the balance between freedom of speech and a person’s right to reputation. The high court reaffirmed the basic principle of our Constitution: that the presumption always ought to be in favour of the freedom of speech and expression. In this context, the Karkardooma civil judge’s order granting an injunction before even hearing the writer and publisher is particularly unfortunate.
The way forward
•While the banning of The Adivasi Will Not Dance reflects the structural flaws in our criminal law that undermine the freedom of speech, the injunction on Godman to Tycoon reveals a different pathology: even where the law is relatively protective of free speech, it will not help if judges — who are tasked with implementing the law — have not themselves internalised the importance of free speech in a democracy.
•The first problem is a problem of legal reform. The solution is obvious: to repeal Sections 95 and 96, take the power of banning books out of the hands of the government, and stipulate that if indeed the government wants to ban a book, it must approach a court and demonstrate, with clear and cogent evidence, what laws have been broken that warrant a ban. The second problem, however, is a problem of legal culture, and therefore, a problem of our public culture. It can only be addressed through continuing and unapologetic affirmation of free speech as a core, foundational, and non-negotiable value of our Republic and our Constitution.
📰 Naming a right
With the Supreme Court set to rule on privacy, India is on the cusp of constitutional history
•The nine-judge Bench headed by Chief Justice J.S. Khehar determining whether a fundamental right to privacy exists is only the 15th time in the Supreme Court’s history that such a large Bench has convened. There is no escaping the enormity of this constitutional moment — these nine judges will definitively shape the evolution of our Constitution. What is at stake is nothing less than the terms of a fundamental relationship between us — citizens of a constitutional democracy — and the state.
•When Aadhaar was initially challenged in 2015, the Union of India argued that we had no right to privacy. That claim does not merit a response. Now, joined by some States, it mounts the slightly better argument that a right to privacy must not be declared because it is an expansive right without clear boundaries. It also argues that there is no need to declare privacy as a separate right because the phrase ‘personal liberty’ in Article 21 already covers it. This article responds to these arguments by returning to the Supreme Court’s own decisions and to first principles of adjudicating constitutional rights.
Tending our rights
•Since the Supreme Court began defending fundamental rights in 1950, it has displayed a deep commitment to preserving the right to ‘life’ under Article 21. Over time, it has tended this right with great care and has declared that it guarantees a right to food, shelter, education, health and clean environment. However, the companion right in Article 21 — to ‘personal liberty’ — has not fared so well. By comparison, it is an anaemic and stultified right, relied on by courts only when unavoidable, and even then only in the narrowest possible terms.
•Like many constitutional courts across the world, the Indian Supreme Court often recognises unenumerated rights — those which are not included in the Constitution’s text — as being part of the fundamental rights that are written into the Constitution. As citizens of a democracy in whose service the Constitution and the government exist, surely we must welcome expansive rights. All constitutions, including India’s, are intended to maximise citizens’ freedoms and tightly restrain the government’s capacity to curtail them.
•In India’s own constitutional history, we have seen that all rights travel the same path to being declared so fundamental that the Constitution and courts must defend them. Take a right that is much like the right to privacy in our instinctive understanding of its importance, and in its location at the very heart of ‘personal liberty’ in Article 21: the right against torture. Like ‘privacy’, the word ‘torture’ does not appear in Article 21. Like ‘privacy’, the word ‘torture’ is not obviously included in the narrow understanding of ‘personal liberty’ as protection against being restrained without good cause.
•As the Supreme Court began to confront the rampant use of torture as a tool for investigating crimes, it began acknowledging the need for constitutional protections. In 1980, for example, Justice Krishna Iyer said: “We are deeply disturbed by the diabolical recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new peril…”
•In 1996, in DK Basu v. State of West Bengal , the Court finally acknowledged that while torture might have been acceptable historically, it was no longer conscionable in law or morals. The court converted this recognition into a guarantee that citizens could claim against the police by giving it a name — the ‘right against torture’ — and declaring that it flows from Article 21’s guarantee of ‘personal liberty’. But it did not stop at simply declaring this right. As unprecedented forms of interrogation often aided by new technology became prevalent, it expanded the right’s scope to retain its efficacy in the face of this change. In 2010, three judges ruled categorically in Selvi v. State of Karnatakathat ‘torture’ must include not only physical torture as most earlier cases had done, but also mental torture.
•The ‘freedom of speech and expression’ in Article 19(1)(a) travels the same path. Even though it never uses the word, the Supreme Court was very quick in its early years to say that this right covers the press. Where early cases related to ‘speech’ in newspapers or magazines, the right now embraces such diverse activities as communicating digitally ( Shreya Singhal v. Union of India ) and expressing gender identities ( NALSA v. Union of India ).
•The arcs of the right against torture and Article 19(1)(a) point to a fatal flaw in the claim that there is no need to declare the right to privacy since it is already a part of personal liberty. Various fundamental rights share with the right to privacy the characteristic of being specific forms of liberty. Allowing such an argument would reduce much of Part III — the heart and soul of the Constitution — to no more than an exercise in redundancy. Rather, rights are declared because they protect a value acknowledged as important and distinctive enough to merit constitutional force.
•Privacy follows the same logic. It is only once the court affirms the obvious position that a fundamental right to privacy exists that we can turn to considering the legitimacy of the government’s actions in infringing upon it. The Union’s argument that the privacy right is incapable of definition is disingenuous. All rights, however seemingly precise, see contests about where their boundaries lie. Invariably, they all evolve and expand over time. This is an aspect of constitutional adjudication that we must embrace. Constitutions, including rights, must be capable of responding to contemporary challenges.
A range of concerns
•Even standing alone, a right to privacy embraces a wide range of things — from preventing the state from watching us without cause, to affirming that we can form and choose our identities, to deciding what information about us is collected by the state using the force of the law and how that information is processed and made available to whom. Each of these facets of privacy raises different concerns and places different burdens on the state to justify intrusions. We cannot simultaneously recognise privacy’s importance and also say that it ought not to be named and treated as such.
•Lumping everything into ‘personal liberty’ flips the relationship between individuals and the state on its head. In effect, it demands that persons injured by a privacy violation establish every single time that they have a right, rather than focussing on demanding explanations from the state in court.
•Naming and declaring a right has powerful consequences. In democratic orders like ours, our rights are only as strong as our capacity to assert them. Recognising the right is the first step in opening up the possibility of it trickling down into the people’s consciousness. As governments and technologies become increasingly intrusive, the people of this country must be empowered to safeguard their interests. Irrespective of the outcome, these nine judges will make constitutional history. What is far more important is that they have the opportunity to empower each and every person in India with a right that lies at the very core of personal liberty.
📰 The health checklist
Equity in access to doctors, diagnostics and medicines for rural India must be a priority
•The frail nature of rural India’s health systems and the extraordinary patient load on a few referral hospitals have become even more evident from the crisis at the Baba Raghav Das Medical College in Gorakhpur. The institution has come under the spotlight after reports emerged of the death of several children over a short period, although epidemics and a high mortality level are chronic features here. Medical infrastructure in several surrounding districts and even neighbouring States is so weak that a large number of very sick patients are sent to such apex hospitals as a last resort. The dysfunctional aspects of the system are evident from the Comptroller and Auditor General’s report on reproductive and child health under the National Rural Health Mission for the year ended March 2016. Even if the audit objections on financial administration were to be ignored, the picture that emerges in several States is one of inability to absorb the funds allocated, shortage of staff at primary health centres (PHCs), community health centres (CHCs) and district hospitals, lack of essential medicines, broken-down equipment and unfilled doctor vacancies. In the case of Uttar Pradesh, the CAG found that about 50% of the PHCs it audited did not have a doctor, while 13 States had significant levels of vacancies. Basic facilities in the form of health sub-centres, PHCs and CHCs met only half the need in Bihar, Jharkhand, Sikkim, Uttarakhand and West Bengal, putting pressure on a handful of referral institutions such as the Gorakhpur hospital.
•Templates for an upgraded rural health system have long been finalised and the Indian Public Health Standards were issued in 2007 and 2012, covering facilities from health sub-centres upwards. The Centre has set ambitious health goals for 2020 and is in the process of deciding the financial outlay for various targets under the National Health Mission, including reduction of the infant mortality rate to 30 per 1,000 live births, from the recent estimate of 40. This will require sustained investment and monitoring, and ensuring that the prescribed standard of access to a health facility with the requisite medical and nursing resources within a 3-km radius is achieved on priority. Such a commitment is vital for scaling up reproductive and child health care to achieve a sharp reduction in India’s deplorable infant and maternal mortality levels, besides preventing the spread of infectious diseases across States. It is imperative for the government to recognise the limitations of a market-led mechanism, as the NITI Aayog has pointed out in its action agenda for 2020, in providing for a pure public good such as health. We need to move to a single- payer system with cost controls that make efficient strategic purchase of health care from private and public facilities possible. Bringing equity in access to doctors, diagnostics and medicines for the rural population has to be a priority for the National Health Mission.
📰 The private route
We need to find ways to make market-based health care more affordable
•NITI Aayog’s recent proposal for the partial privatisation of district-level government hospitals has been criticised for commercialising health care. Under the proposal, private hospitals will be allowed to bid for 30-year leases that give them control over portions of government hospitals dedicated to treating non-communicable diseases. Critics argue that private hospitals focussed on profits will do no good to the poor who can’t pay for their services, so the government must step in to provide free health care.
•Affordability is indeed the major issue preventing poor Indians from getting proper health care. Free health care provided by the government, however, is not the real solution to the problem. Governments often have very little incentive to provide quality health care to many citizens. This is because, in politics, it is the interests of powerful groups that get the most leverage. The poor, for various reasons related to electoral politics, often get left out of the race to influence their governments. For instance, politicians have very little incentive to care about the needs of an individual voter since the impact of a single vote on the election result is essentially minuscule. In the marketplace, on the other hand, private hospitals have huge monetary incentives to proactively cater to the demands of their customers. Each consumer’s currency note holds equal weight to a private hospital that seeks profit. This makes market-based health care a fundamentally superior way to deliver health services to the poor.
An issue of ‘how to’
•The focus then should be on how to make market-based health care more affordable. The standard assumption in this regard is that for-profit health care works against the interests of the poor by making health care more expensive. So various regulations aimed mostly at reducing the profits of health-care investors and lowering the costs to consumers are imposed on investors. Unfortunately, these regulations, by denying investors the opportunity to make profits by providing health care, actually end up making health care more unaffordable. An investor facing a swathe of regulations capping his returns, for instance, has very little incentive to set up hospitals, produce life-saving drugs, or invest in medical education. This, in fact, works against the interests of the poor by reducing the supply of health care and increasing its price. The only real way to make health care affordable then is to increase its supply sufficiently, which in turn will lead to lower prices. This can only be achieved when health care is deregulated and investors are allowed to seek profits in an honest manner. In fact, this is how any good or service gets cheaper over time. As more investments are made into a sector in search of profits, the increased supply leads to lower prices for consumers and lower returns for investors.
•Sadly, the thinking that health care is too essential to be left to the market has prevented the health-care market from working like any other. It is no wonder then that goods such as cell phones and cars, which are considered luxuries and thus left to the market, have become affordable to a larger population over time. At the same time, health care has largely remained unaffordable to the vast majority of people.
