📰 No great escape: On India’s low rank on nutritional indices
India’s low global rank in tackling nutritional deficits calls for a revamped PDS
•India’s poor progress on nutritional indices must dispel the hubris surrounding strong economic growth for years, and turn national focus on persisting hunger, wasting and stunting among children. This year’s Global Hunger Index (GHI) places India in the company of Sudan — rank 94 among 107 countries — with the unedifying assessment of the national situation as “serious”. The country’s score of 27.2 is the worst among BRICS countries, and inferior to Pakistan, Sri Lanka, Bangladesh and Nepal. The GHI is developed around wasting and stunting (under five), the share of the population with insufficient caloric intake, and child mortality. Index scores by international agencies have been critiqued as flawed for choosing the wrong weights in scoring, and also for not including genetics and social determinants, but that would be a narrow view. The evidence from the NFHS-4 of 2015-16 is not very different. The reality is that national policy has no appetite for a radical transformation in the delivery of adequate nutrition especially to women and children, and has paid inadequate attention to achieving diet diversity through the PDS. On the other hand, the country is widely seen as falsely equating energy calories with a diverse diet. The existing deprivation has been aggravated by the pandemic, with food inflation putting pressure on depleted incomes or meagre pensions and savings.
•The NFHS-4 found that under-five stunting from chronic undernourishment stood at 38%, and wasting, a result of acute lack of nutrition, at 21%. These data represent some progress, at a drop of about 10 percentage points in both categories compared to a decade earlier, although steady economic prosperity should have yielded a far bigger social dividend. The latest GHI measure is a reminder that much work is necessary to bring the true benefits of the National Food Security Act to the unreached, not merely as hunger mitigation through cereals, but as nourishment through a diverse diet that includes fat, protein and micronutrients. But there are worrying indications that the Centre has chosen the wrong course. In its pursuit of fraud within the PDS, it is inclined to take hard measures that would deprive the disabled and the elderly of even cereals, by insisting on biometric verification to get supplies. Strengthening the PDS, with a focus on women’s health, would lead to healthier pregnancies, and stronger supplemental nutrition under the ICDS scheme would give children a better chance at all-round development. The importance of sustained, immediate intervention is further underscored by recent findings of International Food Policy Research Institute scholars that three out of four rural Indians cannot afford a balanced, nutritious diet. The right to food would be meaningless if it leaves a large section of Indians hungry, stunted and wasted.
📰 An incomplete solution: On Centre borrowing for States
The Centre must assure States on the timeline for payment of the GST compensation due
•The past week witnessed some forward, albeit inexplicably delayed, movement towards breaking the deadlock between the Centre and States on bridging this year’s shortfall in cess collections to recompense States for adopting the GST. Following a lack of consensus at a third meeting of the GST Council on the issue last Monday, Finance Minister Nirmala Sitharaman said States that had agreed to the Centre’s proposal could begin borrowing from the market. To recap — the Centre had argued that just ₹1.1-lakh crore of the estimated ₹2.35-lakh crore shortfall in GST cess inflows was due to GST implementation; the rest was due to COVID-19. States could borrow ₹1.1-lakh crore with interest and principal payments to come from future cess collections; or borrow the ₹2.35-lakh crore, but bear the interest from their coffers. By Wednesday, 21 States had agreed to the Centre’s first option and were permitted to raise about ₹79,000 crore (0.5% of their gross State domestic product) as additional borrowing linked to their acceptance of the option. On Thursday, however, the Centre changed tack and said it was now willing to borrow the ₹1.1-lakh crore and lend it onward. Calling this an administratively easier measure to ensure States do not end up borrowing at different interest rates, the Ministry asserted this would neither increase the fiscal deficit nor the general government debt.
•States and economists have welcomed this change of heart, especially as it helps bring in much needed cash for States to fight the pandemic. However, it is odd that the ‘administrative ease’ of the Centre borrowing and lending to States, had not struck North Block mandarins earlier — given that the cess collection worries surfaced soon after the lockdown was imposed. Over the course of the negotiations, States had urged the Centre to borrow and pay them, but the Finance Ministry had repeatedly stressed that this would push up interest rates and upset its fiscal math. Precious time could have been saved had the Centre made this offer earlier — seven months into a year that has seen economic activity and revenue sources dry up, and States have only received ₹20,000 crore from the GST cess. Kerala, which was considering a petition in the Supreme Court with other Opposition-ruled States, has cooled off on the legal route, but sought full payment of the ₹2.35-lakh crore shortfall this fiscal. On Friday, Ms. Sitharaman wrote to Chief Ministers suggesting that the ₹1.1-lakh crore, in addition to the 0.5% of GSDP borrowing, would give them ₹2.16-lakh crore, or almost 90% of the compensation shortfall. Cash flow assurances aside, the Centre must now talk to States to ensure greater clarity on the unanswered questions — including when the States will get the balance GST compensation. That is imperative to sustain the fragile peace attained for now.
📰 Probing judicial impropriety and corruption
Only retired judges of high credibility would be able to conduct a robust inquiry into Jagan Reddy’s complaint.
•Andhra Pradesh Chief Minister Y.S. Jagan Mohan Reddy dropped a bomb last week when he wrote to the Chief Justice of India (CJI) accusing a sitting judge of the Supreme Court of judicial impropriety and corruption and State High Court judges of bias.
Contents of the letter
•The letter refers to the purchase of agricultural land, in the area to be declared as the capital city of Andhra Pradesh, between the time when Chandrababu Naidu became Chief Minister in 2014 and the time when he announced the demarcation of the new capital at Amaravati. The charge is that the land was purchased by persons, including the Supreme Court judge’s daughters and in-laws (named subsequently in an FIR), after declaration of the capital area limits, at the same low price for the lands which existed before the demarcation, when in fact the market prices had skyrocketed, thereby causing huge pecuniary gain to them. In this connection, in March, the Principal Secretary (Home), Andhra Pradesh Government, wrote to the Secretary of the Union Ministry of Public Grievances and Pensions seeking a CBI inquiry into the findings of a Cabinet sub-committee, set up to investigate charges of corrupt dealings in land purchases. The sub-committee had “opined that public servants at the helm of affairs in the erstwhile government misused and abused their official position to pre-determine the location of the new capital and subsequently purchased lands to unjustly and illegally benefit their associates and their companies and businesses, family members and political party members…”
•Mr. Reddy accused the Supreme Court judge of influencing the allocation of benches at the State High Court (his parent High Court) to hear politically sensitive cases. This, he wrote, led to the passing of a string of orders staying a number of investigations of corruption against the Naidu government. One of the cases the letter cites to show that the High Court is favouring Mr. Naidu is an extraordinary order passed late one evening by the Chief Justice of the High Court staying all investigations into the FIR involving this land scam, which mentions the relatives of the Supreme Court judge as well as a former Advocate General as beneficiaries. The Chief Justice also issued an unprecedented gag order on the media from reporting the contents of the FIR.
•The letter also mentions the High Court’s recent order of an inquiry into a private conversation between a retired judge of the High Court and a district judge (under suspension). In the conversation, the retired judge is heard mentioning his knowledge about the corruption of this Supreme Court judge and asking the district judge if he has more information in this regard. The district judge then surprisingly files an application in a pending writ (seeking an investigation into the death of a backward class registrar of the High Court due to alleged violations of COVID-19 guidelines at the High Court) bringing on record this telephone conversation which he had secretly recorded. This unrelated conversation, filed in an intervention which was not even allowed, and which has nothing to do with the prayers in the main writ, is then made the basis for ordering an inquiry into what the High Court terms “designing a plot against The Hon’ble Chief Justice of High Court of Andhra Pradesh and another sitting Judge of the Supreme Court”. This is a rather extraordinary order, especially considering that much of the conversation contained information on the Supreme Court judge already in the public domain and does not make out any plot or conspiracy against a judge or the judiciary to warrant such an inquiry.
•With these developments, two questions have arisen: one, whether such a letter/complaint against the Supreme Court judge should have been put out in the public domain; and two, what the CJI’s response should be. In 1997, judges adopted an in-house procedure for inquiring into such charges. In case of a complaint against a Supreme Court judge, the CJI is expected to order an inquiry by three sitting judges of the Supreme Court. Though in C. Ravichandran Iyer v. Justice A.M. Bhattacharjee (1995), the court held that such complaints should be kept confidential, the unfortunate reality is that the judiciary tends to try and brush complaints of corruption against judges under the carpet. Sometimes, if the public becomes aware of such complaints, the CJI is compelled to order an inquiry. But we have often seen that even credible complaints against judges, made confidentially to the CJI, are ignored.
•The same is seen in attempts to impeach a judge. I have found that at least two conditions must be satisfied before a sufficient number of MPs are willing to sign an impeachment motion against a judge: there should be solid documentary evidence of corruption and it should have become a public scandal. In the absence of the second condition, MPs are reluctant to sign an impeachment motion even if there is documentary evidence of corruption. The Ravichandran Iyer decision, that the complaint should be kept confidential, is only likely to lead to more serious complaints being shelved. In any case, as the court has held, sunlight is the best disinfectant and there is no reason why such complaints, even if made against senior sitting judges, should not be put out in the public domain. The view that this would scandalise the court is archaic and has been discarded in most progressive democracies.
•Now, petitions have been moved seeking action against Mr. Reddy for releasing the letter to the media. Contempt proceedings against him would be counterproductive, since he is unlikely to be cowed down. The issue will probably escalate, further denting the image of the judiciary. Some say Mr. Reddy’s charges against the judge should not be taken seriously since he is himself facing several corruption cases. In fact, a Bench headed by the same Supreme Court judge ordered fast-tracking of such criminal cases against MPs and MLAs. However, the fact that the complainant may be corrupt should not cloud the view about the charges made by him; if those charges are serious and backed by evidence, they must be investigated. Charges of corruption can also be a ground for initiating impeachment. Such charges therefore cannot remain secret.
What should the CJI do?
•The purpose of the in-house procedure is that all credible complaints of misconduct against judges of the High Court and Supreme Court should be looked into by a committee of judges. The charges made in Mr. Reddy’s complaint are serious and appear to warrant an in-house inquiry. The code of conduct requires an inquiry by three sitting judges of the Supreme Court. But in a complaint involving the senior-most puisne judge, it is unlikely that junior judges will conduct a robust and credible inquiry. In the case of the sexual harassment complaint against the previous CJI, Ranjan Gogoi, by a woman employee of the Supreme Court, the in-house committee did not allow the complainant to be accompanied by her lawyer, nor did it allow recording of the proceedings. The final report, which purportedly exonerated Mr. Gogoi, has not yet seen the light of day. Strangely, the woman whose allegations were found to be unsubstantiated by this committee was later reinstated by the Court. This casts serious doubts on the credibility of the report.
•Only retired judges of high credibility will be able to conduct a robust inquiry into Mr. Reddy’s complaint. The Chief Justice should set up a credible inquiry committee. This will enhance the reputation of the judiciary, dispel mistruths, and redeem the image of the judge concerned.
📰 The hues in the green tribunal’s resilient journey
Over 10 years, the NGT has made a difference to environmental protection, helped by a new tribe of legal practitioners.
•Yesterday (October 18) was a significant day, as it marked the 10th anniversary of the National Green Tribunal, or NGT. Few ministries can boast of as varied, diverse, and challenging a mandate as the Ministry of Environment and Forests. The downside to this vast and all-encompassing scope, which covers forests, wildlife, environment, climate change and coastal protection, is that it gives rise to an equally diverse volume of litigation.
Complexities from day one
•This was one of the very first things I realised upon assuming office as the Minister for Environment and Forests in the year 2009. The sheer number and complexity of cases, with several more being added every week, led the Supreme Court of India to designate a special Bench to handle these matters. This Bench, which met every Friday to deliberate on these and many other matters, came to be known fittingly as the ‘Forest Bench’. And this was to say nothing of the numerous matters that were filed and pending hearings in the various High Courts.
•Given the time constraints of the top court and the High Courts, some cases had been pending for decades and in turn, spawning other linked matters which further delayed the process. I also realised that despite the efforts of the capable officers and experts assisting the Supreme Court, this was at best an ad hoc solution.
Stages in an evolution
•Several years prior to my tenure, Parliament had passed laws related to the establishment of a National Environment Tribunal (1995) and a National Environment Appellate Authority (1997). The Authority was intended to act primarily as a forum for challenges to environmental clearances while the Tribunal could award limited amounts of compensation in cases of environmental damage to life or property. In my opinion, these did not go far enough in terms of jurisdiction, authority, impact, or autonomy.
•It was clear that the enforcement, protection, and adjudication of environmental laws required a specialised and dedicated body. A tribunal, staffed with judges and environmental experts, would need to be empowered to hear these issues so that the burden on the High Courts and the Supreme Court could be reduced. The quality of time spent on these issues could also be increased as, unlike the Supreme Court, the tribunal could have benches in various States, thereby increasing access to all citizens. Thus, the idea for the ‘NGT’ was born.
•This was not the first time that the idea had been mooted. In judgments such as M.C. Mehta & Anr. Etc vs Union Of India & Ors. Etc (1986), the then Chief Justice of India, Justice P.N. Bhagwati, had suggested “to the Government of India that since cases involving issues of environmental pollution, ecological destructions and conflicts over national resources are increasingly coming up for adjudication and these cases involve assessment and evolution of scientific and technical data, it might be desirable to set up Environmental Courts on the regional basis with one professional Judge and two experts drawn from the Ecological Sciences Research Group keeping in view the nature of the case and the expertise required for its adjudication. There would of course be a right of appeal to this Court from the decision of the Environment Court”.
•These observations were recalled in 1999 by the Supreme Court in the landmark case of A.P. Pollution Control Board vs Prof. M.V. Nayudu (Retd.) which added its own emphasis on the need for a court that was “a combination of a Judge and Technical Experts” with an appeal to the Supreme Court from the Environmental Court.
•The NGT’s first year was a turbulent one. Unlike the opaque legislative process followed today, the first draft of the NGT Bill was circulated as part of a pre-legislative consultation process and inspired widespread debate. Concerns ranged from the genuine to the absurd. In the first category, one of my senior colleagues argued that it would contribute to the trend of ‘tribunalisation’ (a debate that would achieve some closure a year later with the Supreme Court’s judgment in R. Gandhi’s case in 2010). In the last category, an environmental non-governmental organisation took issue with the name and argued that the word ‘Green’ could act as a green signal to potential polluters. Following its passage, the Madras High Court even issued notice on a petition which had challenged the Act as unconstitutional and stayed appointments to the body (an order vacated by the Supreme Court on appeal).
•Incidentally, I had intended for the parent bench of the NGT to be in Bhopal, as a tribute and homage to the memory of the victims of the Bhopal Gas Tragedy of 1984. However, many of the jurists and retired judges I consulted suggested that for administrative considerations, it would be better for the Chair to be at Delhi.
The track record
•Since its inception, the NGT has, apart from creating a new breed of legal practitioners, protected vast acres of forest land, halted polluting construction activities in metros and smaller towns. It has penalised errant officials who have turned a blind eye towards enforcing the laws, and held large corporate entities to account. It has protected the rights of tribal communities and ensured the enforcement of the “polluter pays” principle in letter and spirit. In this endeavour it has been assisted by brilliant practitioners, many of whom are young counsels, passionate and dedicated towards protecting the environment.
A change in attitude
•Perhaps the biggest testament to the NGT’s success has been the attitude of the ruling government towards it. Three years ago, in a fashion similar to what has been done with the Right to Information Act, the Central Government attempted to dilute the criteria for appointments to the NGT and other tribunals. I challenged this dilution before the Supreme Court and my counsel, the renowned senior advocate, Mohan Parasaran, was called upon to assist the Bench as an amicus curiae in the case.
•The rules (though not the Rule making power) were ultimately suspended by the Supreme Court. But key challenges remain: the NGT must focus less on governance issues and more on adjudication. Benches have to expand manifold. Vacancies have to be filled quickly.
•In its next decade, the NGT must continue to remain a proactive ‘inconvenience’ to all those who, while pontificating grandiloquently on the need for environmental protection, take actions that make economic growth ecologically unsustainable.
📰 Compensation cess to stay till States’ dues are met: Finance panel chief
Says trust deficit between Centre, States exaggerated
•The levy of compensation cess on Goods and Services Tax (GST) may have to be extended for quite a few years, perhaps till as late as 2025-26, to pay off States’ GST dues, Chairperson of the Fifteenth Finance Commission N.K. Singh said.
•The Commission, whose report on the devolution of funds between the Centre and States for the five-year period of 2021-22 till 2025-2026 will be submitted to the government soon, will factor in unpaid compensation dues while working out States’ revenue flow calculations for the years beyond 2022.
•Asserting that the Centre has at no point backtracked from the fact that States will get compensation for the first five years of the GST regime, Mr. Singh said “a lot of misgivings about the fiscal compact having been broken and there being a trust deficit” in the context of negotiations over the GST compensation cess were “somewhat exaggerated”.
•“On the important issue of GST compensation, the last word has not been said. Both the States and the Centre are recalibrating the contours of a consensus within the GST Council. It is for the Council to take such decisions,” Mr. Singh told The Hindu. “At no point has the Centre said it will not pay for those five years. It’s only a question of how it can be adjusted in the most efficient way to undertake the borrowings,” he added.
•Too much was being made of who should borrow to meet the shortfalls, Mr Singh suggested, stressing that the investing community looks at the Centre and States' combined debt, not their disaggregated debt levels.
•“Cess shortfalls cannot be met from the Consolidated Fund of India. So it has to be raised through some borrowing arrangement like the present one. The only issue is the sequence of the borrowing. To some extent, it doesn’t make much of a difference. What investors see is the general government debt, not the differentiated debt between the Centre and the States. So this entire thing would be a shuffling of accounts,” he said, referring to the Centre’s decision to borrow ₹1.1 lakh crore on behalf of States and lend it onward.
•GST compensation cess is levied on goods such as cars, aerated drinks and tobacco products, over and above the highest GST rate of 28%, and was to be levied for the first five years of the GST regime to compensate States. The GST Council has decided to extend the levy beyond that period to meet shortfalls in accruals this year.
•“I see there is now some forward movement. I have no doubt in my mind that the Union government would make sure that the period for which the cess is extended, would be adequate enough to extinguish the liabilities which arise upto July 2022. This means that the cess may have to be continued up to a much later period, I think maybe 2025-26,” Mr. Singh, a former Revenue Secretary, said.
•“It would be reasonable and rational for the Finance Commission to assume that since there is no suggestion whatsoever of any resiling of the obligations undertaken by the central government, that these revenues (assured to States) upto 2022 would not be extinguished, but carried forward. And for the period of our award, we would naturally fully reckon and take this into account,” Mr Singh said in an interview ahead of the release of his autobiography Portraits of Power.
Public debt review
•Mr. Singh said expenditure pressures to cope with the pandemic, whose course is still shrouded in huge uncertainties, mean that the period ahead will require “fiscal forbearance” as opposed to fiscal rectitude, indicating that fiscal deficit and debt targets would have to become more flexible.
•“We are closely looking at the kind of flexibility and leeway that should be given to both the Union and the States. As a Finance Commission, one of our overriding priorities is that the Union and the States must be treated in an equal way and we have ensured that. I think a sensible course would be to introduce some flexibility both on the debt trajectory and the fiscal deficit, both for the Centre and the States, ensuring that the new fiscal compact represents the partnership between the Union and States for the future,” he said.
Higher health spend
•Stressing that the pandemic has laid bare the inadequacy of India’s health infrastructure with a “very insignificant part of public outlay going to the health sector historically”, the Finance Commission chairperson said a separate chapter has been devoted in its report to consider more resources for the health sector.
•While the outlay on health from both the Centre and States is just about 1% of GDP and must be enhanced, Mr. Singh pointed out that there are regional divergences, too, with poorer States having worse healthcare systems and distorted availability of doctors and hospital beds.
•“Health expenditure needs to be assigned higher priority. We have devoted a dedicated chapter to health in the Commission's report, which goes into the question of how to reprioritise existing resources available more effectively, and (how to raise) additional resources for which we will consider a sector-based initiative for health,” he said, mooting a greater focus on ensuring quality infrastructure in primary health care centres and district hospitals.
