📰 Done and dusted: On the National Register of Citizens process
The NRC process needs closure, not another reboot
•While there may have been lulls aplenty, the next twist or turn in the long-running saga of the National Register of Citizens (NRC) update for Assam is never far. The latest seeks to imbue a sense of finality to the exercise, though it has come from what is only a quasi-judicial body. A Foreigners’ Tribunal (FT) in Karimganj district of southern Assam, while removing the ambiguity around a man’s citizenship, has pronounced that there is no doubt that the NRC published on August 31, 2019, is the final one. The exercise left out over 1.9 million from a list of around 33 million applicants, whose citizenship would be determined at the FTs. The entire updating process was monitored by the Supreme Court and executed by the State’s administrative machinery. Unsurprisingly, its publication annoyed political parties across the ideological divide, with some alleging it victimised document-less Bengali Hindus and indigenous Assamese people and others that it targeted the State’s Bengali-origin Muslims. In the run-up to the publication of the final document, Assam and the Centre had petitioned the Supreme Court for re-verification of a sample of names included in the draft NRC — 20% in the border districts and 10% elsewhere — but this was dismissed after Prateek Hajela, the State NRC Coordinator, said re-verification of 27% names had been already done. In May this year, the State NRC authority, now led by Hitesh Dev Sarma, filed a petition in Supreme Court seeking re-verification of the August 31, 2019 list, citing inclusion of ineligible names and exclusion of eligible ones, and other errors. Assam Chief Minister Himanta Biswa Sarma is already on record as having said the State government wants 20% re-verification in the districts bordering Bangladesh and 10% in others.
•The crux of the matter is that post-publication progress on the NRC has been excruciatingly slow, and not just due to the pandemic. The new NRC Coordinator’s petition is still pending, as is another by the Jamiat Ulema-e-Hind. More crucially, on the execution side, the issuance of rejection slips to those left out of the NRC has not begun, a necessary step to file appeals in the FTs. Another iteration of the NRC, whether led by the judiciary or the executive, would rely on the same administrative set-up. The system has demonstrated dynamism: the list of excluded in the NRC draft released in July 2018 was nearly 4 million, an additional list in June 2019 left out 1,00,000 more, but the final draft absorbed 2.2 million of those. While a Registrar General of India notification has not conferred the stamp of legality on the NRC yet, that, along with kick-starting the appeals process, is perhaps the most prudent path ahead. Mounting another gargantuan exercise at a colossal cost may only yield a new set of discontents.
Guarantees for the ‘bad bank’ may help, but not suffice to fix lenders’ woes
•The Government has offered a sovereign guarantee to help the new ‘bad bank’, proposed in this year’s Budget, extract better value from non-performing loans worth ₹2-lakh crore in the banking system. To begin with, the National Asset Reconstruction Company Limited (NARCL) will pitch to take over toxic assets worth ₹90,000 crore that banks have already fully provided for. It will offer a certain value to the lead bank for troubled loans of over ₹500 crore, and pay 15% upfront in cash, and issue the balance as tradable security receipts. The bad bank will then rope in a separate asset manager being incorporated — the India Debt Resolution Company Ltd. (IDRCL) — to add value to the ailing asset, and resolve it as a ‘going concern’ or liquidate it. The guarantee, worth ₹30,600 crore over five years, can only be invoked once an asset is resolved and will cover any shortfall between the face value of the security receipts issued by the NARCL and the actual amount realised from a bad loan. The guarantee fee will be increased each year as a nudge for NARCL and the IDRCL to speed up resolution. After losing precious time dithering over its pros and cons, the Government now believes this approach will be more expeditious to fix the substantial NPAs that persist despite the existing debt recovery mechanisms including the Insolvency and Bankruptcy Code. Terming banks’ high provisioning for legacy loans a ‘unique opportunity’, the Centre thinks NARCL will also help free up bank personnel to focus on faltering credit growth and spur the economy.
•To the extent that the NARCL and IDRCL managements will streamline decisions once a loan is taken over, instead of seeking consensus among multiple lenders as the IBC entails, the idea holds some weight. But banks have already provided for these loans, so this is perhaps a tardy gambit and may not work in jump-starting credit flows unless accompanied by their recapitalisation. On the likelihood of the guarantee being invoked, the Finance Ministry has said once the assets are pooled together, ‘it is reasonable to expect’ that many of them will realise more value than NARCL’s acquisition cost. This may be a tad optimistic. As the Finance Minister herself said, 28 existing private ARCs are hesitant about taking a jab at extracting value from these bad loans, perhaps owing to their size. That begs the question about the calibre of professionals NARCL and the IDRCL would need to outdo private players. The new entities’ ability to get a few good men to deliver more bang for sunk capital would be critical, as would structures to pre-empt a moral hazard that the guarantee poses (of not bothering too much about final realisation value). This self-proclaimed endgame of India’s bad loans crisis needs sustained attention for a satisfactory culmination.
📰 The end of the doing business rankings
The Ease of Doing Business index was plagued with problems and deserves to be scrapped
•On September 16, the World Bank Group scrapped its flagship publication, the ‘Doing Business’ report. This report publishes the influential annual ranking of countries on the Ease of Doing Business (EDB) index. The Group acted on its commissioned study to examine the ethical issues flagged in preparing the 2018 and 2020 editions of the EDB index. The allegation surrounding Kristalina Georgieva, Managing Director of the International Monetary Fund, is the proximate reason for scrapping the publication. As Chief Executive Officer of the World Bank in 2018, Ms. Georgieva is accused of having exerted pressure on the internal team working on the Doing Business report to falsely boost China’s rank by doctoring the underlying data. Similarly, tensions were also reportedly brought to bear in the case of Saudi Arabia’s rank, among others.
How the index works
•The World Bank’s decision has wide ramifications, as the index serves varied purposes. Many countries showcase improved ranking to signal market-friendly policies to attract foreign investments. National leaders often set EDB rank targets. This helps them measure domestic policies against global “best practices” and browbeat domestic critics. Prime Minister Narendra Modi, for instance, wanted his administration to ensure that India breaks into the top 50 ranks of the EDB index. Some countries seem to use their political heft to improve their rank, polish their international image and sway public opinion (as appears to be China’s case).
•The EDB index ranks countries by the simplicity of rules framed for setting up and conducting businesses. Peruvian economist Hernando De Soto’s theory underpins the index. The theory claims that secure property rights with minimal state interventions are a precondition for a free market to flourish. Management consultants and corporate lawyers collect the information for the index on time required for regulatory compliance — as per the statute (de jure) and not as practised (de facto) — from select cities and larger firms.
•Advanced countries usually hold the index’s top ranks. India ranked low, around 130-140, till 2014. However, it zoomed to the 63rd position in 2019-20 (see table). Showcasing the accomplishment, India has claimed success of the ‘Make in India’ campaign. The flagship initiative, launched in 2014, sought to raise the manufacturing sector’s share in GDP to 25% (from 16-17%) and create 100 million additional jobs by 2022 (later revised to 2025).
•The success is absent on the ground, however (see table). The annual growth rate in GDP manufacturing (at constant prices) fell from 13.1% in 2015-16 to (-) 2.4% in 2019-20. Net FDI inflow to GDP ratio has fluctuated around 1.5%. The fixed investment to GDP ratio (at current prices) fell from 30.1% in 2014-15 to 26.9% in 2019-20. Why is there such a disconnect between the stellar rise in EDB index rank and economic outcomes?
•The theory underlying the EDB index could be suspect, the measurement and data could be faulty, or both. For example, China’s phenomenal economic success, especially its agricultural performance (after the reforms in 1978), is perhaps the most unmistakable evidence demonstrating that lack of clarity of property rights may not be the binding constraint in a market economy. What matters is economic incentives. Measuring regulatory functions underlying the index could be tricky and subjective and possibly politically motivated as well, as the controversies surrounding the index seem to suggest. Instances of data manipulation brought to light by the independent investigating agency seems to vindicate such a view.
•The EDB index also seems vulnerable to a tweaking of the underlying method. For instance, India’s improved ranking was reportedly an outcome of such an effort. When the index was re-estimated with unchanging procedures, the needle hardly moved. Similarly, Chile’s rank on the EDB index sharply rose when the conservative government was in power and went down when the socialists were ruling despite no changes in policies and procedures. This was reportedly the result of the fine-tuning of the methodology and had profound political implications. Former World Bank Chief Economist, and later Nobel Laureate, Paul Romer, publicly apologised to Chile’s socialist President for World Bank’s less-than-professional conduct in preparing the index.
Weakening labour regulations
•Closer home, India has weaponised the mandate to improve the rank in the EDB index to whittle down labour laws and their enforcement and bring them close to the free-market ideal of ‘hire and fire’. Most States have emulated Maharashtra’s lead of administrative fiat, which renders labour laws toothless by dismantling official labour inspection systems and allowing employers to file self-regulation reports.
•The government has farmed out critical safety regulations such as annual inspection and certification of industrial boilers to ‘third party’ private agencies (compliance reportedly honoured more in the breach than in observance).
•The Labour Department’s inspection is now not mandated; it is optional only by prior intimation to employers. Such abdication of the government’s responsibility towards workers has reportedly affected industrial relations. The workers’ strike at Wistron’s iPhone assembly factory in Karnataka last year is an example. Further, severe industrial accidents are rising, damaging life and productive industrial assets. Though comprehensive data are lacking, available evidence indicates a sharp upturn in such accidents in recent years, which may be associated with the lack of independent inspections and employers’ self-reporting of labour law compliance.
•The World Bank’s decision to scrap its annual publication Doing Business report is welcome. Investigations into “data irregularities” in preparing the EDB index, as brought out by the independent agency, seems to confirm many shortcomings repeatedly brought to light for years now. The index appears motivated to support the free-market ideal. It is dressed up under scientific garb and is underpinned by seemingly objective methods and data collection. Strong leaders (and motivated officials) seem to have used their position to manipulate the index to suit their political and ideological ends.
•India claimed the success of its Make in India initiative by relying on its ranking on the EDB index without tangible evidence. It weaponised the index to weaken labour regulations. Handing over law enforcement to employers by self-reporting compliance seems to have increased industrial unrest and accidents. It perhaps calls for honest soul-searching as to what havoc a questionable benchmark can wreak.
📰 ‘Fund and faculty’ count in higher education rankings
The new edition of the National Institutional Ranking Framework highlights the huge gap between the best and the rest
•The sixth edition of the National Institutional Ranking Framework (NIRF) for higher education was released by the Union Minister of Education on September 9 2021. Jubilant are those that have made it to the top 100 or have improved their rankings or scores by a few notches. Downcast are those that have slid in rank or score but are still upbeat as they are in the coveted list. Disheartened, they must already be busy finding out their faults. Those with no rank may be ready with their excuses and commitment to do better next year. Since the NIRF ranks only the top 100, an estimated 935 universities, in any case, are bound to remain shut out. Each higher educational institution in the country undergoes the trauma of hope and despair a few times a year when the Academic Ranking of World Universities (ARWU), Times Higher Education (THE) and Quacquarelli Symonds (QS) rankings are published.
•Ranking may offer many advantages. Its signalling effect may help students, faculty, and prospective employer, respectively, to help them choose institutions for admission, to enhance chances for securing research funding, and target campuses for hirings. It may promote competition among institutions, which in turn leads to an overall improvement in their quality. As in present policy, ranking leads to privileges such as getting autonomy, power to offer open and distance mode programmes, and permission to enter into collaboration with foreign universities.
•The most useful purpose that the ranking can serve — but ignored so far — is to identify areas of improvement and then proactively to work to overcome those deficiencies and thus ensure quality and promote excellence. This would mitigate the huge difference that presently exists between the best and the rest of the Higher Education Institutions. After all, no nation can afford a few ‘islands of excellence surrounded by the sea of mediocrity’, condemning them to eternal inferiority.
Basis of metrics
•Universities ought to offer quality dissemination of knowledge, skill and application orientation, but to attain excellence, they must make a seminal contribution in research, publications, patents and innovations. Since performance of universities cannot be measured by a single indicator, they are assessed, and ranked on a metric of measures. Most give considerable weightage to research output, quality and impact thereof. The ARWU ranks universities solely on the basis of their research performance whereas THE and QS, respectively, accord 60% and 20% weightage to research. Following the trend, NIRF accords 30% weightage to Research Performance and Professional Practices (RPP).
•This, in turn, is measured through the combined metric of publications (PU, 35%), combined metric of quality of publications (QP, 35%), IPR and patent (IPR, 15%) and Footprint of Projects and Professional Practice (FPPP, 15%).
•Analysed in this context, even the top 100 universities in NIRF, present a very disquieting trend which warrants urgent attention. The NIRF 2020 ranking reveals that the best university in the country scored 92.16% on research performance. The score drastically declined to 60.52% for the 10th best university. Going further down, the 20th and the 50th best universities, respectively, scored 50.32% and 28.69%. In the case of the 100th best university, the RPP declined to as low as 4.35%. It is not difficult to guess the state of affairs of the remaining 935 universities in the country.
On salaries and research
•NIRF does not disclose data on the total number of teachers but amongst a few statistics that it reports includes the total expenditure on salaries of teaching and non-teaching staff bunched together and the total number of PhD students enrolled in each of the ranked universities. Using the above two as proxy for the size of a university in terms of the faculty members and research staff, they were transposed against the Research and Professional Practice (RPP) ranks grouped in 10 categories.
•The data disclose in no uncertain terms that on an average, the higher the expenditure on salaries of the staff, the higher is the ranking of the university. For example, the average annual expenditure on salaries for the top 10 universities works out to be ₹391.72 crore. As against this, the universities ranked between 41-50 were found to be spending only ₹119.64 crore on salaries. Expectedly, those ranked at the bottom between 91-100, spent only ₹79.26 crore. So is the case with regard to the research scholars. Data discerns that the top 10 universities in NIRF had an average of 2,627 research scholars, whereas those ranked between 41-50 had only 1,036 PhD students on the rolls. Reinforcing the trend, the universities ranked in the bottom 10 had no more than 165 research scholars. The larger the number of research scholars, the higher the ranks of the universities in terms of RPP. What was already known intuitively is now proven by the data.
•To conclude, the fund and the faculty, the two most neglected areas, are critical not only for research performance but also for the overall ranking, as the two bear a high degree of positive correlation.
📰 Time to criminalise marital rape
Doing away with the exception to marital rape would show non-tolerance by the state with respect to rape
•The recent judgments of two High Courts on marital rape made headlines. Though neither of the Courts delved into the constitutionality of marital rape, their reference to it once again raked up debate on whether Exception 2 to Section 375 of the Indian Penal Code is constitutional or not. According to Exception 2, sexual intercourse by a man with his own wife (provided she is over the age of 18) does not amount to the offence of rape.
The approach of the courts
•The Kerala High Court held that acts of sexual perversions of a husband against his wife amounted to (mental) cruelty and was therefore a good ground to claim divorce (since marital rape is not a punishable offence). The Court said that in modern social jurisprudence, spouses are treated as equal partners and a husband cannot claim any superior right over his wife either with respect to her body or with reference to her individual status.
•The Chhattisgarh High Court, while discharging the accused husband, held that the charge of rape framed under Section 376 of the IPC was erroneous and illegal as it was covered under Exception 2 to Section 375 and the wife was not under 18 years of age. As the law on marital rape stands today, both the High Courts were right in their approach but the Kerala High Court was appreciated more for being progressive in its outlook.
•The Justice Verma Committee report of 2013 stated that the notion that a wife is no more than a subservient chattel of her husband has since been given up in the U.K. The European Commission of Human Rights has held that “a rapist remains a rapist regardless of his relationship with the victim”. Marital rape is a criminal offence in South Africa, Australia, and Canada, among other countries. After due deliberations, the Committee recommended that the exception for marital rape be removed, but this suggestion was not accepted by the government.
•Earlier, in 1983, the Andhra Pradesh High Court, in T. Sareetha v. T. Venkata Subbaiah, held restitution of conjugal rights under the Hindu Marriage Act of 1955 to be unconstitutional as its decree could be misused by a husband for enforcing sexual intercourse with his wife. However, the Supreme Court overruled it by declaring that the institution of marriage stood for much more than mere sexual congress.
A partnership of equals
•A section of society feels that once marital rape is criminalised, it may lead to filing of false charges against husbands. It also thinks that it will be very difficult for the police to prove such cases beyond reasonable doubt. The first apprehension is unfounded in the absence of any empirical data. Further, there are legal provisions to deal with false cases. If found ineffective, legal remedies may be revised suitably. Similarly, the difficulty of proof cannot be a criterion for not notifying deviant behaviour as an offence. Like most other sexual offences, the prosecution may establish the case with relevant facts and circumstances. Moreover, doing away with Exception 2 would show complete non-tolerance by the state with respect to rape.
•While decriminalising adultery, the Supreme Court in Joseph Shine vs. Union of India (2018) said that a legislation that perpetuates stereotypes in relationship and institutionalises discrimination is a clear violation of the fundamental rights guaranteed by the Constitution.
•It is undisputed that marriage in modern times is regarded as a partnership of equals. It is an association of two individuals, each of whom has separate integrity and dignity. The violation of bodily integrity of a woman is a clear violation of her autonomy. Any provision of law that is not reasonable, just and fair, and is against the spirit of Article 21 of the Constitution, is discriminatory and arbitrary and therefore must be declared unconstitutional. It is now only a question of time that exemption of liability from marital rape shall be declared unconstitutional and individual’s dignity recognised in full.
📰 Tackling hate speech
As there are no laws on hate speech as such, India needs a political and pedagogical solution to the menace
•A speech by a Bishop belonging to the Syro-Malabar Church in Kerala has caught attention for the wrong reasons. Mar Joseph Kallarangatt, the Bishop of Pala, a small city in Kerala, coined the term ‘narcotic jihad’. He accused a few Muslim groups of giving Catholic girls narcotics or wooing them with the aim of religious conversion or of taking them to terrorist camps abroad. The speech aimed at a particular religion has a divisive tone.
Understanding hate speech
•This controversy has occasioned intriguing questions about hate speech regulation. It is important to consider — philosophically and morally — what justifies prohibiting hate speech. In Chaplinsky v. New Hampshire (1942), the U.S. Supreme Court held that their Constitution does not protect “insulting or ‘fighting’ words — those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace.” This is the core principle behind hate speech prohibition. It is important to think why liberal democracies prohibit some types of speech on grounds that they are ‘injurious’.
•An important answer is based on the dignity and equality of individuals. Every person is entitled to basic human dignity and decent treatment. Lord Bhikhu Parekh, a British academic, said: “(Hate speech) views members of the target group as an enemy within, refuses to accept them as legitimate and equal members of society, lowers their social standing, and... subverts the very basis of a shared life. It creates barriers of mistrust and hostility between individuals and groups, plants fears, obstructs normal relations..., and... exercises a corrosive influence on the conduct of collective life.”
•In Pravasi Bhalai Sangathan v. Union of India (2014), the Supreme Court of India quoted from the Canadian Supreme Court’s decision in Saskatchewan v. Whatcott (2013). It said that hate speech “impacts a protected group’s ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy.” This idea resonates well in India’s political context. Being a minority in an aggressively Hindu majoritarian political climate, Muslims are left defenceless against a rhetoric of hatred against them. This rhetoric has not only led to a climate of fear for Muslims, but to cases of violence carried out solely on the basis of their identity. Relentless accusations have successfully sidelined the real concerns of the community, including social and educational backwardness.
The Indian legal position
•Values of social tranquility and substantive equality justify laws such as Section 153-A of the Indian Penal Code (IPC) which prohibits “promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc. and doing acts prejudicial to maintenance of harmony”. The very genesis of the provision indicates that emphasis was given to societal integrity which the law thrives to preserve. The provision in its erstwhile form was incorporated by way of the Penal Code Amendment Act of 1898. The Select Committee rejected the proposal to add this provision along with Section 124-A of the IPC (sedition) saying that the former is more concerned with “public tranquility” than the security of the state. It said: “The offence only affects the Government or the State indirectly and the essence of the offence is that it predisposes classes of people to action, which may disturb the public tranquility.” It is this communitarian element that makes the law still relevant, while the sedition law has become dangerous and obsolete.
•The law, in contemporary politics, suffers from disuse and misuse. This is an issue at the operational level, i.e., how the law is implemented and enforced. On the one hand, remarks with tendencies towards hatred and violence, especially against Muslims, are ignored. On the other, vague references against the majoritarian agenda are often charged under this provision.
•The Kerala incident, unfortunately, is not an isolated one. In a national scenario where hate has become an ideology and its impact on society is fatal, we need to think about countering it with political and jurisprudential means. In India, hate speech is not defined under the Constitution or in the penal statutes. There is no specific legislation on it. It is not easy to design an accurate anti-hate speech law, due to its inherent potential for misuse. This is why we need a political and pedagogical solution to the menace. The Constitution’s ideas of equality, liberty and fraternity must be made topics of continuing public education. Whenever hate speech thrives, the state should invoke the existing law judiciously in appropriate cases. It must also take a secular stand based on the rule of law and educate the masses.
