किसी एक स्तंभ द्वारा दूसरे स्तंभ को संभालने को ही कभी-कभी लक्ष्मण रेखा का उल्लंघन भी समझा जा सकता है। उच्चतम न्यायालय और उच्च न्यायालयों के ऐसे बहुत से फैसले हैं जिनमें उन्होंने विधायिका और कार्यपालिका के कार्यक्षेत्र में हस्तक्षेप करने से साफ इंकार कर दिया, लेकिन कुछ मामले ऐसे हैं जिनमें इस तरह का हस्तक्षेप हुआ। इस संदर्भ में हमें एक और स्थापित कानूनी सिद्धांत को याद रखना चाहिए। यह सिद्धांत कहता है कि यदि कानून में कोई कमी है या किसी मुद्दे पर कोई कानून नहीं है तथा विधायिका को उस कानून को बनाने का समय नहीं मिला या उसकी ऐसी इच्छा या इच्छाशक्ति नहीं है और इसके चलते जनहित का नुकसान हो रहा है तो न्यायपालिका को यह अधिकार है कि वह उपयुक्त दिशा-निर्देश दे। न्यायपालिका का यह अधिकार भी है और कर्तव्य भी। उसका दिशा-निर्देश केवल तब तक लागू रहेगा जब तक विधायिका उस विषय पर कानून न बना दे। कई उदाहरण हैं जिनमें न्यायपालिका ने कानून की कमी पूरी करके जनहित के नुकसान को रोकने या कम करने के प्रयत्न किए। पहला उदाहरण विधानमंडलों के चुनावों में उम्मीदवारों का अपनी आपराधिक, वित्तीय और शैक्षणिक पृष्ठभूमि बताने के शपथपत्र का है। जब दिल्ली उच्च न्यायालय ने इसके आदेश दिए तो भारत सरकार यानी कार्यपालिका ने इसके विरुद्ध उच्चतम न्यायालय में अपील की। तब उच्चतम न्यायालय ने उच्च न्यायालय के फैसले को उचित ठहराया तो संसद ने सर्वसम्मति से कानून बदला। उसको उच्चतम न्यायालय ने असंवैधानिक घोषित किया। तब जाकर 2003 से मतदाताओं को यह जानने का अधिकार मिला कि जो उम्मीदवार उनके मत के इच्छुक हैं उनकी आपराधिक, आर्थिक एवं शैक्षणिक पृष्ठभूमि क्या है। जब कुछ उम्मीदवार शपथपत्र के कुछ कॉलम खाली छोडऩे लगे तो उच्चतम न्यायालय को हस्तक्षेप कर यह कहना पड़ा कि अगर कोई उम्मीदवार शपथपत्र का कोई भी हिस्सा खाली छोड़ेगा तो उसका नामांकन स्वीकार नहीं किया जाएगा।

2014 में दिल्ली उच्च न्यायालय ने एक फैसले में दो मुख्य राजनीतिक दलों को विदेशी चंदा कानून का उल्लंघन करने का दोषी पाया और गृह मंत्रालय को उन दलों के विरुद्ध कानूनी कार्रवाई करने को कहा। कार्रवाई तो कुछ नहीं हुई, लेकिन विदेशी चंदा कानून में बदलाव लाने की कोशिश जरूर शुरू हो गईं। 2016 के बजट बिल के जरिये विदेशी चंदा कानून में परिवर्तन कर दिया गया। ऐसा ही मामला सूचना अधिकार कानून का है। इसको लागू हुए एक दशक से ज्यादा समय हो गया है। जब इसे राजनीतिक दलों पर लागू करने की बात आई तो उन्हें परेशानी होने लगी।

जहां तक दखलंदाजी का सवाल है तो इसके दो मुख्य रूप देखने को मिलते हैं। एक तो यह कि विधायिका कानून बनाती है और कार्यपालिका उसे लागू करती है। जब कार्यपालिका कुछ कानूनों को चुनिंदा वर्गों जैसे कि दलों, नेताओं पर या समृद्ध वर्गों पर सही तरह से लागू नहीं करती या कर नहीं सकती तब न्यायपालिका कहती है कि उसे सभी पर बिना किसी भेदभाव के लागू किया जाए तो विधायिका यानी राजनीतिक वर्ग नाराज हो जाता है। दखलंदाजी का दूसरा रूप तब देखने को मिलता है जब विधायिका कुछ विषयों पर कानून नहीं बनाती या जो कानून बने हैं उनमें उपयुक्त संशोधन नहीं करती, जिसकी वजह से जनहित को नुकसान होता है। राजनीतिक और चुनाव सुधार से कुछ मसले ऐसे ही हैं। ऐसे मसलों से जब यह शक होता है कि संकीर्ण राजनीतिक कारणों से कोई फैसला लिया जा रहा तो फिर जनहित याचिकाएं दायर की जाती हैं। दरअसल संतुलन बनाए रखने का दायित्व तीनों स्तंभों पर बराबर है, लेकिन जिस दौर से देश गुजर रहा है उसे देखकर लगता है कि यह दायित्व विधायिका पर ज्यादा है। पिछले कुछ सालों से संसद जिस तरह चल रही है उसका जिम्मेदार न्यायपालिका को तो नहीं ठहराया जा सकता। संसद की कार्यवाही देखकर तो यही लगता है कि विधायिका को नुकसान तो खुद राजनीतिक दल एकजुट होकर कर रहे हैं। मौजूदा माहौल में विधायिका, उसके अग्रणी नेताओं और संपूर्ण राजनीतिक वर्ग को इन पंक्तियों पर ध्यान देने की आवश्यकता है-एक गलती मैं सारी उम्र करता रहा/ मैला तो चेहरा था, आईना साफ करता रहा।

[ लेखक जगदीप एस छोकर, आइआइएम अहमदाबाद में प्रोफेसर, डीन एवं डॉयरेक्टर इंचार्ज रहे हैं ]

Date: 27-05-16

Date: 27-05-16

Date: 27-05-16

Capital goods policy contains little meat

The motive of the capital goods policy is noble, but its design is not energetic to advance the sector and expand the share of manufacturing in GDP. The policy fails to address the key problem of the lack of research to constantly innovate and upgrade capital goods as global manufacturing stands on the cusp of radical change. Developing basic industries “that make machines to make the machines needed for further development” made sense to achieve industrial growth during the Second Five-Year Plan. Policymakers seem to be stuck in a time warp. As India rapidly globalises, Indian industries need new methods of production, new materials, better robots and artificial intelligence to become competitive.

Automated assembly lines and the use of lean production techniques, mostly people-based, for example, helped Japanese carmakers. It showed that robots can work with people rather than replace them. Similarly, the use of artificial intelligence and big-data analytics will help Indian companies enhance their productivity and profits. India should gear up for advanced manufacturing in areas such as aircraft manufacture, materials, microelectronics and telecommunications. Strangely, telecom does even not figure in the list of equipment identified as priority sectors in the policy.

The policy recommends “adoption of the goods and services tax regime ensuring effective GST rate across all capital goods sub-sectors competitive with import duty after set-offs” to ensure a level playing field. A technology development fund for transfer of technology, purchase of intellectual property rights, design and drawings is fine. More important, India needs to develop a knowledge ecosystem that includes a good intellectual property regime to foster innovation and creativity.

Date: 27-05-16

Geospatial Information Regulation Bill: Several issues are yet to be resolved

By Ashis Sarkar

In our country, the Survey of India (SoI) and the National Atlas and Thematic Mapping Organisation (Natmo) under the department of science and technology are the two government mapping agencies. In the 20th century, the SoI topographical maps were the only source of geospatial information for those conducting research in both geography, geomorphology and other spatial and earth sciences. Even now, they are very important to all the academic fraternity concerned with the earth, bio and social sciences and are included in the curricula of the plustwo level, colleges and universities.

The Natmo mainly produces thematic maps used by ordinary, non-specialised people and usually have a lesser degree of accuracy. Until 1995, the SoI used to provide us the required geospatial information in the form of Indian topographical maps at various scales with the much needed simplification, generalisation and cartographic abstraction. Only those maps, covering the border areas, were restricted for ordinary people and even for the academic fraternity. They were used primarily by the defence department.

Interestingly, all the restricted maps are available in the libraries of European universities, the United States Geological Survey, and even in those of some of our neighbouring countries. However, many of us have procured those in our student and research life whenever we required them.

After 1995, the New Map Policy was introduced and the SoI introduced the publication of two categories of maps: OSM, or open series maps, that lack detailed information, and DSM, or defence series maps, complete with accurate geospatial information. The first one is for academic purpose in schools, colleges and universities. The second one is for the defence department.

These days, students, scholars and teachers are facing great difficulties in their academic practice with OSMs that do not serve their purpose at all. The government of India now feels it necessary to enact a Bill to regulate the procurement, processing, presentation and use of geospatial information as far as the safety, security and identity of our country is concerned.

The issue, however, is entirely and purely (geo)political. We must remember that the partition of the eastern wing of India across Bengal on the eve of Independence could have been avoided if the then-British government did not ban the publication of ‘Bengal in Maps’ by the ‘father of Indian geography’, Professor S P Chatterjee, also the founder of Natmo and a friend of Prime Minister Jawaharlal Nehru. The seminal book was finally published only after Independence in 1949.

Currently, there is a large number of global positioning system and remotesensing satellites launched by almost all the advanced countries across the world — both sun-synchronous (where the satellite passes over any given point of Earth’s surface at the same local solar time) and geosynchronous (where the satellite’s orbital period is the same as Earth’s rotation period). These satellites collect all kinds of terrestrial geospatial information including that of our country.

So can we regulate the procurement, processing and representation of these pieces of geospatial information by international agencies and countries? The reality: the issue is international. Another matter of concern is the ‘resolution’ of the geospatial information.

How can we believe that advanced nations do not have the technology to capture the geospatial information at sub-centimetre level?

In India, the National Remote Sensing Agency and the Indian Space Research Organisation (Isro) providing researchers the required geospatial information also doesn’t come cheap. However, I have seen foreign research centres providing us the required geospatial information that is accurate at asub-centimetre-level free of cost.

Finally, unmanned aerial vehicle technology — drones — has become very cheap and available even to ordinary citizens. It’s easy to procure geospatial information about an area of interest and use it for any intended purpose. In this context, the proposed Geospatial Information Regulation Bill will not serve the actual purpose for which it is intended.

Yahoo India, Google India or some other private enterprise provides us much of the needed geospatial information with varying degrees of locational and temporal accuracy free of cost. They may relocate their office to other countries and sustain their business thereby affecting our employment and service sector.

Also, Bhuvan, the software application developed by Isro that provides access to users to 2D and 3D representations of the surface of Earth has not yet been popular with our students, scholars and teachers. The reasons for this need to be explored in detail.

And in today’s geopolitics based on security and territorial concerns, these are issues to be resolved only at the international, transnational level, not via the Bill that has been currently drafted by the Indian government.

The writer is editor-in-chief, Indian Journal of Spatial Science

Date: 27-05-16

Bankruptcy Code 2016: Just what the doctor ordered

By Abizer Diwanji

The Insolvency and Bankruptcy Code 2016 is one of the most forward-looking and contemporary legislations in recent times. It will establish some very basic principles of doing business in India. Having said that, the proposed law is currently, at best, an innovative plan awaiting correct execution.

The code makes a clear distinction between insolvency and bankruptcy. The former is a short-term inability to meet liabilities during the normal course of business. The latter is a longer-term view on the business. As all businesses cannot succeed, it is perfectly normal for some businesses to fail, making it important to emphasise on corrective action.

No Life Sentence for Assets

The code carries a clear focus on quick decision-making, be it turnaround or liquidation. It emphasises the speedy release of scarce capital assets locked in a closed unit for productive use, apart from the early settlement of all stakeholder issues.

Until now, Indian promoters were presumed to have a divine right over their businesses. They were protected by multiple laws, each carrying its own bankruptcy rules. Indian courts have time and again granted stays liberally to avoid winding down, thereby delaying recovery, under the age-old premise that it destroyed assets and resulted in job losses.

Alack of timely action has caused more harm than solutions. The code amply clarifies that insolvency or bankruptcy is a commercial issue, backed by law to enforce transparency and objectivity. It is not another law behind which the inevitable can be delayed. This now stands to replace all other bankruptcy proceedings in any other law, making it effective.

However, the other laws, including Recovery of Debts Due to Banks & Financial Institutions Act, the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (Sarfaesi) Act, and the Companies Act 2013, which impact bankruptcy directly or indirectly need to be amended or repealed to ensure that all existing laws are perfectly aligned with the code.

One of the code’s most significant provisions is the waterfall mechanism — liquidation proceeds will be paid in the following sequential manner: secured creditors, workmen’s dues for 12 months, employees other than workmen, unsecured creditors. The biggest commitment of the government has been with regards to government dues that have been made junior to most others.

Appropriate information-flow, establishment of a tribunal process and the provision to bring in responsible professionals to manage the process are some other benefits.

The present laws tend to protect only financial creditors, especially banking creditors. The new code also seeks to protect the interests of operational creditors. It provides for orderly and timely resolution of default and insolvency of companies, firms and individuals.

It, however, does not cover financial institutions and banks. The government is working through a task force for setting up a resolution corporation for financial institutions.

The full benefits of the code will be realised only when all stakeholders contribute to creating an ecosystem conducive to an effective, fair and expedient implementation of the code.

Banks and other creditors will have to recognise that insolvency and liquidation will need innovative solutions towards the structural and financial aspects of a business.

From Test Match to T20

This also mandates the requirement of sufficient insolvency professionals, capable of objectively assessing businesses and able to turn them around or liquidate them, within a governance framework as defined by the code and other existing laws, with minimum court intervention. More importantly, these professionals will need to be held accountable for the fiduciary duties they are performing with penal provisions for negligence. India must adapt to global standards and set up an independent board for oversight at the earliest.

Information utilities — a system to verify defaults — is another important element to ensure that bankruptcies are correctly enforced. While this could operate like a credit bureau, the data therein needs to be collated and filed appropriately. The Reserve Bank of India could set this up as has been done for bad loans.

India has in excess of 5,000 pending insolvencies in its various courts. The legacy can’t be burdened on the new National Company Law Tribunals (NCLTs). Debts Recovery Tribunals (DRTs) need to be formed. The code envisages 10 NCLTs and one DRT.

The code mentions using discretion in enacting the machinery, yet the system could be clogged with cases that may take time and, hence, beat its very purpose. Most regulations were all well-meaning and eager to find a resolution in a systematic manner as much as the current law does.

However, there has been misuse in the form of prescribing the processes in the regulation as a mere formality to achieve the desired objective. If the same is done with the Insolvency and Bankruptcy Code 2016, it will become just another piece of comprehensive legislation.

Satyam was revived under special rules and by a group of competent professionals. The same rules have simply been generalised rules in a law now. Also, a systematic winding down or revival through change is possible in India — whether promoter-driven or for conglomerates — when the right rules are in place and implemented in earnest.

The writer is partner, financial services, EY

Date: 26-05-16

From plate to plough: A barren field

NDA government’s plans for agriculture are still to bear fruit.

Written by Ashok Gulati , Shweta Saini

As the Modi government celebrates two years in office, any review of its functioning will be incomplete without examining its record on the farm front. In the two years (FY15 and FY16), while the economy grew at 7.2 per cent and 7.6 per cent respectively, agriculture and the allied sector grew at -0.2 per cent and 1.1 per cent. This implies an average growth rate of less than 0.5 per cent per annum of the sector that employs close to half the country’s labour force.

Two years ago, the current government’s election manifesto promised, among other things, to make Indian agriculture more “productive, scientific and rewarding”. In particular, it mentioned to “take steps to enhance the profitability in agriculture, by ensuring minimum of 50 per cent profits over cost of production”. In the case of irrigation, it promised to “introduce and promote low water consuming irrigation techniques and optimum utilisation of water resources”. However, during these last two years, farmers’ margins over costs, which hovered between 20 and 30 per cent in most agri-commodities during the terminal years of UPA 2, have declined. In most agri-commodities, profitability is down to less than 10 per cent, and in some others, even negative. This was mainly due to back-to-back droughts in 2014 and 2015, downswing in global agri-prices, and lower-than-anticipated increases in procurement prices. Now, the government seems to have replaced the promise in the manifesto with the assurance that farmers’ incomes will be doubled by 2022. The country awaits conceptual and operational clarifications on this new goal.

On the promise of efficient utilisation of water, there have been no major initiatives except slogans like “har khet ko paani” and “per drop, more crop”. The Pradhan Mantri Krishi Sinchayee Yojana (PMKSY), under which these schemes are launched, lack the resources to fulfill any of these promises. The total expenditure budgeted under the PMKSY for FY17 is Rs 5,717 crore, which is far less than what is required to achieve the target of “har khet ko paani”. In all probability, this slogan is likely to remain a dream for at least a decade.

However, the government can be lauded for at least three initiatives: Pradhan Mantri Fasal Bima Yojana (PMFBY), Jan Dhan and Direct Benefits Transfers (DBT) and e-National Agricultural Market (NAM).

On April 1, 2016, the Modi government launched a revised crop insurance scheme (PMFBY) to combat the farm crisis and agrarian distress. It is a commendable step in the right direction though it has come somewhat late. However, like with many schemes, this one too has been designed without sufficient groundwork, which will cripple its performance. For example, efficient and timely assessment of crop damage and payments needs installing automatic weather stations, digitisation of plots, linking them with Aadhaar and bank accounts, and using latest technologies ranging from drones and doves (low earth orbits) to satellites. This is still a work-in-progress and unless the PMO shows perseverance, it may fizzle out.

Second, the PMO gave high priority to financial inclusion and to Jan Dhan. As on May 4, about 22 crore Jan Dhan accounts had been opened with 61 per cent of them in rural areas. Here too, challenges like increasing dormancy of agents, falling first-time accounts, and operational hiccups like lack of connectivity mar the system. Close to 27 per cent of the accounts are zero-balance. More than half of these accounts have not been utilised to receive payment from the government’s welfare schemes or food and fertiliser subsidies through direct benefits transfer (DBT).

The Shanta Kumar panel suggested moving to DBT in both food and fertiliser subsidies, with a view to plug leakages that hover between 30 and 40 per cent of expenditure. The budgeted amount on food and fertiliser schemes is Rs 2,05,000 crore for FY17, plus pending bills of more than Rs 1,00,000 crore. If one shifted to DBT and put the savings in water management, the shape of agriculture and the fortunes of Indian farmers can change for the better.

Third, conceptualising and embarking on creating an unified electronic national-level farmers’ market (e-NAM) is a bold step in the right direction. But if NAM is to succeed, one needs to streamline fees and taxes at state-level wholesale markets, reform agriculture produce market committees (APMCs), introduce grades and standards, etc. Further, encouraging commodity market trade will also help revive the price-discovery role of markets.

But all these are medium to long-term measures, which will take time to bear fruit. One only wishes that they were taken in the first year of the Modi sarkar. But it is better late than never. An average agri-growth of less than 0.5 per cent per year during FY15 and FY16 should prod the Modi government to robust action. Monsoon failure and collapse in global agri-prices are not in the hands of the government, but it is during such a crisis that a government’s vision is tested.

Not surprisingly, farmers are unhappy and agriculture is stagnant. Farmer suicides are perversely high and rural indebtedness remains a grave issue. The government needs to move fast and deploy bold steps on the agri-front if it wants the farming community to benefit and poverty eliminated. An action-oriented mission-mode execution of agendas set by the well-meaning slogans, backed by sufficient resources may facilitate a turnaround.

Date: 27-05-16

The wrong metric

Judge-population ratio is not the apt parameter to determine judiciary’s strength.

Written by G. C. Bharuka

WITHIN A fortnight of his impassioned appeal to the prime minister on the paucity of judges, the chief justice publicly announced that the Indian legal system currently requires over 70,000 judges to clear the backlog of cases in the country. This figure is based on observations made in a 1987 Law Commission report, “Judicial Man Power Planning”, which had recommended raising the strength of the judiciary to 50 judges per million people.

The Law Commission had itself, however, admitted that this “judge-population ratio” reasoning it had adopted for the recommendation, was based on “a very poor substitute for sound scientific analysis”. The commission had lamented that even after four decades of independence, we had not been able to organise even the minimum level of information, which could be the basis for concrete proposals on judicial manpower planning. The situation, unfortunately, is no different almost three decades later, though present-day technology offers ways to collect real-time data.

It has been repeatedly emphasised that timely disposal of cases is essential for maintaining the rule of law and good governance. It is also true that unless sufficient judicial resources are provided, the system cannot deliver timely justice. However, our policy makers have failed to devise an acceptable method to calculate the location-wise requirement of additional courts.

According to governments at the Centre and in the states, the requirement of additional courts in a particular region should be based on the case-load of the existing courts there. For these reasons, the Supreme Court had in Imtiayaz Ahmad vs State of Uttar Pradesh (2012) directed the Law Commission to undertake another inquiry and submit recommendations regarding the immediate measures for the creation of additional courts.

The commission, while once again expressing helplessness on the data front as it did in 1987, examined six different probable methodologies, including the “judge-population ratio basis”. It found that filing of cases per capita varied across states and was associated with economic and social conditions. It, therefore, concluded that while population might be an appropriate metric to measure the availability of services like healthcare and nutrition, it was not the apt standard to determine requirement of judicial services.

The commission, on the premise that it would be difficult to collect data for the “workload method”, also suggested an ad-hoc mechanism — “rate-of-disposal method” — for a rough and ready calculation, based on current efficiency levels of the subordinate judiciary, to ascertain adequate judge strength. This means a fall in judicial efficiency will create higher demand of judicial resources, which may, however, be counterproductive for the institution.

Ultimately, based on research in European and American courts, it was found that the “weighted caseload method” is the most appropriate measure for the purpose. Simply put, a weighted caseload system is used to convert the court caseload into the workload of the judge.

Cases vary in complexity, and each of them requires different amounts of time and attention from the judges. A mere headcount of cases pending with the judges can offer little help in distributing the workload equitably among them.

Workload in this context refers to the amount of a particular type of work, which a qualified person can handle within a determined time. The commission, though having felt that this is the most scientific method, still did not recommend its adoption on the ground that, “all information required to run this model for Indian courts is not available”.

Undeniably, the system in India does not, at present, have any information about the time required by the judges to resolve each type of case. But with the government having invested over Rs 1,000 crore (with another Rs 1,600 crore in the pipeline) to equip the Indian judiciary with current technology, there cannot be any difficulty in collecting any type of data on a real-time basis.