Is the Welfare State in Crisis? Debating the condition of the welfare state in India Contents

Editorial Whither Welfare State? Kannamma Raman 5 Articles Privatising Education in India and the Withdrawing Welfare State 19 Anuya Warty The Co-existence of Widespread Hunger and the Right to Food Impact of the 32 Withdrawal of the Welfare State on Malnutrition Among Children in Karnataka Darshana Mitra, Mohammed Afeef, Vinay Sreenivasa, Narasimhappa TV Urban Informality: Symptomatic of an end of the Welfare State? 49 Akriti Bhatia Planning for Welfare in Post-Liberalisation India: The Challenges of 62 Building Human Capital Saumya Tewari Fixed Dose Combinations and their Ban: Issues of Concern 72 S. Srinivasan Geographical Indications and Farmers’ Welfare: Role of State in 90 Strengthening Governance N. Lalitha, Soumya Vinayan Re-examining the Delivery of Legal Aid in Mumbai 108 Vandita Morarka Commentaries The Welfare State – Challenges for Governance in India 127 Venkatesan Ramani Foundations of an Effective Self-Help System 140 Parth Shah Behavioural Re-design of Subsidies 150 V. Kumaraswamy The Benevolence of MGR, Subaltern Audiences and the Tamil Nadu State 166 Gopalan Ravindran Maternity Benefit Legislation: Reinforcing Patriarchy, Excluding Intersectionality 177 and Ignoring Impact Kirthi Jayakumar Book Review When Crime Pays: Money and Muscle in Indian Politics 181 Ashwin Parthasarathy Women and Disaster in South Asia– Survival, Security and Development 186 Drashti Thakkar

1 Editor Managing Editor Kannamma Raman Padma Prakash Political Scientist Editor, eSocialSciences Retired Professor, University of Mumbai, Mumbai, Maharashtra, India.

Assistant Editors Ashwin Parthasarathy Research Scholar

JPAC is jointly published by Forum for Research on Civic Affairs and eSocialSciences, Mumbai.

2 2 Consulting Editors Anupama Roy Parth Shah Centre for Political Studies, Jawaharlal Centre for Civil Society, New Delhi, India. Nehru University, New Delhi, India. Phil Cam Anuradha Mundkur Adjunct faculty, School of Humanities Australian For International Development & Languages, University of New South Secondee to the Australian Civil Military Wales, Sydney, Australia. Centre, Canberra, Australia. Rainier Ibana Bhairav Acharya Philosophy Department, Ateneo de Manila Lawyer, India. University,Quezon City, Phillipines.

D. Parthasarathy Ramkishen Rajan Humanities and Social Sciences, Indian ESSEC Business School, Asia-Pacific, Institute of Technology-Bombay, Mumbai, Singapore. India. Saikat Datta Felix Padel Observer Research Foundation, New Independent Researcher, India. Delhi, India.

Gopalan Ravindran S. Srinivasan Department of Journalism and All India Drug Action Network, Baroda, Communication, University of Madras, India. Chennai, India. Shiv Visvanathan Lajwanti Chatani Sociologist, Noida, India. Department of Political Science, Maharaja Sayajirao University of Baroda, Baroda, Sundar Sarukkai India. Professor of Philosophy, National Institute of Advanced Studies, Bengaluru, India. Lalitha Narayan Gujarat Institute of Development V.S. Elizabeth Research, Ahmedabad, India. Centre for Child and the Law, National Law School of India University, Laura Dudley Jenkins Bengaluru, India. Department of Political Science, University of Cincinnati, Cincinnati, USA Vivek Patkar Independent Researcher, Mumbai, India. Manoj Kumar Sinha Vivek Srinivasan Indian Law Institute, New Delhi, India Visiting Scholar, Stanford University, Stanford, USA.

3 3 4 Editorial

Is the Welfare State in Crisis?

Kannamma Raman

he welfare state has been perceived as being in crisis for more than three decades. Of late, the future of the welfare state itself is the subject of debate. TThe reasons for such a prognosis is based on factors ranging from democratic overload, economic slowdown, fiscal crisis, and the ascendancy of neo-liberalism. It is argued that demographic and social changes, in particular the ageing society and the resultant ‘pension time bomb’, is leading to demands that make welfare states fiscally unsustainable. Some believe that the crisis the welfare state is undergoing is above all moral in nature; by assuming a universal right to welfare it replaces old virtue of self- reliance, by a ‘culture of dependency’. All this suggest that time is ripe for a reappraisal of the functioning of the welfare state. Given that the expression is a political slogan as well as an analytical concept both aspects need to examined. The concept of a welfare state drew its ideological basis from economists like Ernst Wiggfors, Gustav Möller and John Meynard Keynes. Gustav Möller, used the term ‘welfare state’ for the first time in the Swedish Social Democratic Party’s election manifesto in 1928. Keynes in his influential work, The General Theory of Employment, Interest and Money, published in 1936, pioneered the theory of full employment and advocated an activist economic policy by government. The welfare state system was established early in Scandinavia as a response to the great depression of the late 1920s and early 1930s. During this period Sweden built an advanced cradle-to-grave welfare state system around Per Albin Hansson’s concept of Folkhemmet (People’s home) (Kurian, 2005, p. 151). In this sense they pioneered the idea of universalisation of welfare. However, the welfare state, as we understand it today, is a product of the period immediately following the end of the Second World War. In the Anglo-Saxon world, it is generally identified with the recommendations of Sir William Beveridge’s celebrated Report on Social Insurance that identified “five giant evils” as obstacles to social progress – want, disease, ignorance, squalor and idleness. However, the motives and models underlying ‘the’ welfare state varied. As Goodin (2003) notes: Bismarck’s conservative corporatist version built on frankly neo-feudal foundations to buy social peace. Alva and Gunnar Myrdal’s social democratic model aimed to generate more Swedish babies .... The British welfare state was principally the product of two renegade Liberals, Lloyd

5 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 George and Beveridge ... The American welfare state was a patrician Democrat’s noblesse oblige response to the Great Depression, relieving distress among the old and disabled, the widowed and the chronically ill. (p.202) This does not mean that rulers or states in the past did not seek to protect the weaker sections of the society. C. B. Macpherson notes that pre-modern notions of ‘fair prices’, ‘fair wages’ and ‘just distribution’ promoted due to the external sanction of church or State approved the need to subjugate economic relations to social and political ends. Similarly, welfare based on the mediaeval idea of a ‘Christian duty to charity’ sought to protect the marginalised but it was “quite different to the maximizing individualism of the advocates of liberal capitalism” (Pierson, 2004, p.48). Something similar is highlighted by Gopalan, in his article in this issue. He examines how the notion of benevolence, a principle of righteousness, was a cornerstone of public governance in ancient Thamizagam (roughly translated as the homeland of the Tamils) during the Sangam age (spanning from 400 BCE to 300 CE). He therefore contends that one will be missing the true linkages, if one “roots only for ephemeral, a cultural understanding of the contemporary and previous versions of welfare politics in Tamil Nadu as purely populist and vote bank politics driven.” Subsequently, even states depicted as performing a ‘night-watchman’s role implemented of a wide range of measures to regulate factory work, the quality of housing, securing of public health, provision of public education, the municipalisation of basic services and compulsory workers’ compensation following industrial accidents. Most countries legislated some form of poor law, under which specified (generally local) public authorities were charged with the responsibility for raising and disbursing limited funds for the relief of destitution. Other states, “with a more paternalistic and activist state tradition saw still more and more intrusive public regulation of welfare” (Pierson, 2004, p. 49). However, the prime concern of these earlier states was the maintenance of public order, punishment of vagrancy and management of labour market, rather than the well-being of the poor. The benefits were ‘doled’ out rather grudgingly. This can be seen, for instance, in the arguments made by A. V. Dicey, the noted British lawyer, that it is inappropriate that fathers of children fed by the state should retain the right of voting for members of parliament (Briggs, 1961, p. 225). What differentiates the post Second World War development is the universalisation of welfare benefits and creation of entitlements. The roots of welfare state are premised around three sets of criteria, namely, introduction of social insurance, extension of citizenship and the depauperisation of public welfare, and growth of social expenditure (Pierson, 2004, pp. 50-51). The disassociation of “welfare” from poor law stigmas reinforced what came to be called ‘social citizenship’ (Marshall, 1950). Further, unlike the very modest efforts in the past, modern states have a massive bureaucracy and huge budget to ensure social welfare. The welfare state, as it was initially conceived, sought to secure an income to those excluded from the paid workforce, whether by reason of age (hence old-age pensions),

Is the Welfare State in Crisis? / Kannamma Raman 6 family circumstance (family allowances; survivors’ benefits), health status (work injury, sickness and disability insurance) or market conditions (unemployment insurance) (Goodin, 2003, p. 203). The main tenets of the welfare state are: • A mixed economy to ensure education, health care, child care, nutrition and related social services for all citizens; • Social security to counter the effects of poverty and insuring the citizens against loss of income following illness, unemployment or retirement; • Regulation of private enterprises in the interests of employees and consumers by ensuring labour rights (i.e. supporting worker access to trade unions), consumer protections, and fair market competition; and • A progressive taxation system to fund government expenditures. It is worth noting that contrary to its popularity at the ground level, welfare state has always been critiqued at the conceptual level. At the core of this debate is the dilemma as to whether ‘welfare’ is a public or private good. If it is defined as a public good, the state is obligated to provide a wide-range of services to all. On the contrary, if it is defined as a private good, attempts by government to distribute goods and services will be opposed on the grounds that it infringes upon the freedom of individuals. Whereas the former recognises the primacy of the state as the provider of social security, the latter sees the market as the most efficient dispenser of services (Vivekanandan & Kurian, 2005, p.2). The late 1960s witnessed the emergence of discontent among both the left and right over what was perceived to be the bureaucratic and statist nature of welfare state (Pierson,1998, p.138). The new right opposed central government planning and made a case for free self-regulating markets (Hayek, 1944, 1979). They also dismissed, as a mirage, the notion of social justice that underpins a welfare state. Libertarians such as Nozick (1974) argued that redistribution as such was morally wrong; coercive taxation was akin to ‘forced labour’. The neo-liberals opposed the pursuit of a full employment policy and universal welfare provisions on the ground that collective decisions constituted a negation of individual freedom, which the free market upheld. Subsequently, neo-classical economists argued that big welfare states, due to extraneous interventions in the market, would not be able to compete in increasingly globalised markets. Another strand in that new right attack on the welfare state is based on ‘accountability crisis’. They argue that the welfare state dispenses large sums of public monies, often in a highly discretionary manner at the point of provision, and without any central accounting to ensure that this is the best way of getting ‘value for money’ (Goodin, 2003, pp.207-208). This criticism is significant given the fact that almost all the authors in this issue have referred to poor outcomes as compared to the resources invested in various welfare schemes. Another strand argued that those having discretionary power and control over regulation and licensing, legislation and administration use it to issue authoritative edicts invites ‘rent-seeking’ (Goodin, 2003, p.205).

7 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Classical Marxists regarded the welfare state as an instrument to control the working class and promote the long-term interest of capital accumulation. A number of Marxists argued that compulsory state administration of welfare deprives the working class of the agency to manage their affairs. Habermas maintains that as the welfare state policies are supposed to derive their legitimation from general election it has transformed citizens into clients, whose electoral behaviour would be influenced or even determined by what political parties promise with regard to public services. An argument almost akin to those who claim that welfare state encourages outlandish promises and unbridled populism. Gopalan’s article in this issue does allude to criticism in case of the Tamil Nadu where promises have been made to give wide range of goodies in order to sway the voters. Habermas explains that though the intention of welfare was to liberate the lifeworld from subjection to commodification, the outcome has been its subordination to both commodification and state bureaucratisation (Habermas, 1975, 1986, Pinzani, 2016). Additionally, Habermas (1986) notes: The upwardly mobile voter groups, who have directly reaped the greatest benefits of the formation of the social welfare state, are capable in times of crisis of developing a mentality concerned with protecting their standard of living. They also may join together with the old middle class, and in general with those classes oriented towards productivity, into a defensive block against underprivileged or excluded groups. (p.8) Habermas’ aim in criticising the welfare state was to transform it so that this consequence would be avoided and citizens might decide according to less egoistic and parochial criteria (Pinzani, 2016, p. 120). Claus Offe followed Marx in arguing that capitalism is innately crisis-prone and welfare state emerged primarily to avert economic crisis by managing the social and political consequences of the privately regulated capitalist economy. Since the state cannot intervene directly in the economy, it does so indirectly, through essentially Keynesian means. It has tried to re-establish the conditions under which capital and labour will be drawn into profitablecommodity exchange, through regulations and financial incentives (corporate tax concessions, special development areas, interest- free industrial loans, subsidizing energy costs), public infrastructural investment (training and retraining, recruitment services, subsidized transport facilities) and the sponsoring of neo-corporatist arrangements (between trades unions and employers). (Pierson,1999, p.188)(italics as in the original) Offe (1984) calls the process by which the state integrates labour into the market as ‘administrative re-commodification’ (pp. 123-125). Similarly, Macpherson argues that the rise of the welfare state transformed much of the working class into petty bourgeoisie thereby undermining their common voice. However, not all Marxists were sceptical; some viewed it as the ‘Trojan Horse’ through which their principles could be carried into the very heartlands of capitalism (Pierson,1999, p. 175).

Is the Welfare State in Crisis? / Kannamma Raman 8 Even though feminist scholarship is diverse, it is generally agreed that a rethinking of the welfare state is necessary. Feminists like Fraser (1985) and Pateman (1988) have critiqued the welfare state for its patriarchal nature as it assumed that families are composed of a father/breadwinner who works for a wage and a mother/wife who provides unpaid domestic work. Fraser notes: Clients of feminine programs, virtually exclusively women and their children, are positioned in a distinctive, feminizing fashion … are familialized, that is, made to claim benefits not as individuals but as members of “defective” households. They are also stigmatized, denied rights, subjected to surveillance and administrative harassment, and generally made into abject dependents of state bureaucracies. (Fraser, 1985, p. 123) This results in, Brown notes, a shift from ‘from private patriarchy to public patriarchy’. However, she argues that given the existing scenario women must make demands on the public patriarchy. This should include demands for higher welfare benefits, recognition for value of labour of child rearing; children’s allowances that are not tied to a means test, relieving the private family of a burden that benefits society; more child care services that are paid from public tax funds; more low-cost legal assistance to women and the like. This, she maintains, should continue till the destruction of patriarchy, both private and public, and all have equal power in society to decide all policies (Brown, 1981, pp.262-263). One such demand has been better parental leave in order to facilitate elimination of gender-based responsibilities. These policies are increasingly central to important social and economic goals. It intertwines many intersecting policy areas, such as child well-being, family, gender equality, employment, and demography. Even while the intelligentsia quibbled over what welfare state really meant, in popular memory it stands for efforts to promote social equality operating within Keynesian framework. This is to ensure that no one is deprived education, health care or legal redress just because they could not afford it. It is recognised that in contrast to the market, the welfare state would cater to social needs rather than demand. In contrast to private charity or public poor relief that is selective, the welfare state’s benefits are universal. Not surprisingly, when India became independent it adopted the ideals of the welfare state. As highlighted by the authors in this issue, Directive Principles of State Policy laid the foundation for the creation of welfare state. Then Prime Minister Jawaharlal Nehru declared that newly independent India would endeavour to end poverty, ignorance and disease. While in the West the main concern of the welfare state was to address poverty that arose from maldistribution, in India it was to be combined with rapid growth. To address poverty, India has, over the years, relied on a combination of fostering economic growth; providing basic public services like healthcare and education; and distributing a variety of subsidies, pensions, and cash transfers.

9 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 The financial crisis in the late 1980s and 1990s in India necessitated rethinking of welfare state model. Questions came to be raised about the rationale of the government entering into areas like running luxury hotels, manufacturing bread or constructing houses for high income groups. Just as in the West, the belief by now was that high levels of ‘non- productive’ State spending constituted a source of economic inefficiency leading to higher prices, reduced economic growth and runaway levels of both unemployment and inflation. India took some steps in this direction in the 1980s. It was the government’s industrial policy of 1991 that signalled a systemic shift to a more open economy with greater reliance upon market forces, a larger role for the private sector including foreign investment, and a restructuring of the role of government. However, every government has maintained that core welfare measures will continue to be based on rights and entitlements rather than ephemeral charity. Further, as Ramani points out in this issue, recent changes in the federal fiscal architecture in India have raised fresh concerns about the role of the State in promoting social sector. These developments require a dispassionate analysis of the functioning of welfare state in India and the challenges it faces. This issue of the journal is a step in that direction. A significant part of a welfare state is its promise of providing quality education. Without a doubt India has seen rapid improvement in terms of the number of schools, colleges, educational institutions that have been established. Literacy rate has increased from 18.33 per cent in 1951 to 74.01 in 2011. The performance is particularly heart warming in terms of female literacy going up from 8.86 to 65.46 during the said period. As Warty notes in her article, thanks to the universal schooling achieved over the last decade and more, there are very few older children who have never been enrolled in schools. Yet, according to latest World Bank data, India’s literacy rate at 74 per cent is lower than that of China (96 per cent) and Brazil (91 per cent). This, in a way, is a reflection of the fact that India’s government expenditure per student on primary education as a percentage of gross domestic product per capita has been below many of the countries (World Bank, 2017). As Tiwari points in her article in this issue India’s low literacy rates are the crudest indicators of the poor quality of the human capital. Further, as Warty, Shah, and Ramani have highlighted in this issue the quality of education has been sub-par. According to the World Development Report 2018: Learning to Realize Education’s Promise (2018), India ranks second after Malawi in a list of 12 countries wherein a grade two student could not read a single word of a short text. India also tops the list of seven countries in which a grade two student could not perform two-digit subtraction (p.5). Warty, Shah and Ramani have examined reasons behind this below par performance in this very vital sector. Warty highlights the impact of privatisation on primary education. Ramani also flags off how family poverty and poor educational attainments of parents inhibit learning outcomes. Additionally, as he correctly notes, the teaching pedagogy in government schools, with its emphasis on rote learning (the “chalk and talk” methodology) fails to enthuse the majority of pupils in the classroom. Disengaged from the education process, these students become disinterested and, at some point, may well drop out of the education system altogether.

Is the Welfare State in Crisis? / Kannamma Raman 10 It is increasingly clear that education and research are increasingly out of touch with demand for skills. As The World Economic Forum’s The Future of Jobs (2016) points out, the most in-demand occupations or specialties did not exist 10 years ago. On an average, by 2020, more than a third of the desired core skill sets of most occupations will be comprised of skills not yet considered crucial to the job today (p. 3). India lags far behind in this aspect; neither the government nor the private sector has given due attention to this aspect. This need to promote new skills is highlighted by Tiwari. Similar experience is found in the case of health care as well. India has made enormous strides over the past decades. Life expectancy is close to 69 years, infant and under- five mortality rates are declining as is the rate of disease incidence. Many diseases, such as polio, guinea worm disease, yaws, and tetanus, have been eradicated. However, maternal mortality ratio and infant mortality rate remain unacceptably high. There has been a marked increase in ‘dual disease burden’, i.e., a continuing rise in communicable diseases and a spurt in non-communicable or ‘lifestyle’ diseases. Yet, as Ramani points out, India’s public health expenditure as a percentage of GDP at 1.41 per cent is far below Brazil (3.82 per cent) and South Africa (4.24 per cent). As his article highlights over 62 per cent of Indians pay out of their pockets for access to private health care. This is despite an extensive network of government health facilities, staffed by qualified medical personnel, available to the public at a very nominal cost. He elucidates some of the chronic problems in the health centre, namely absenteeism, government doctors making money through private practice, lack of accountability and the like. One of the mandates of the State is to ensure the sale of safe medicines and the immediate withdrawal of harmful drugs. Out of the more than one lakh crore rupee sales in the country, almost 45 per cent are fixed dose combination drugs and 50 per cent of these are irrational. Srinivasan’s paper highlights how efforts to prevent sale of irrational or even dangerous drugs are hindered by administrative and judicial delays. This happens even after the Parliamentary committees have highlighted and reprimanded the failure on the part of the government and pharmaceutical companies to weed out such preparations. Health care is predicated on every person’s right to have access to food and nutrition. While disease burden due to child and maternal malnutrition has dropped substantially since 1990, this is still the single largest risk factor, responsible for 15 per cent of the total disease burden in India in 2016 (ICMR, PHFI, & IHME, 2017, p.19). As Ramani’s article highlights, despite the long presence of Integrated Child Development Services programme, the country ranks very poorly in international comparisons in terms of under-five child mortality and stunting, wasting and underweight rates. Ramani also points out that given the paucity of accurate, up to date data, State policies have been piecemeal, dictated by political exigencies and emergency situations, such as media reports of child deaths due to malnutrition. Mitra, Afeef, Sreenivasa, and Narasimhappa have traced the importance of right to food campaign and its centrality to improving the nutritional standards among children. The long struggle by various civil society groups resulted in right to food being recognised by the judiciary. In Chameli Singh v. State of UP (1995), a three-judge bench of the Supreme Court held:

11 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 “Right to live guaranteed in any civilised society implies the right to food, water, decent environment education, medical care and shelter. These are basic human rights known to any civilised society.” Similarly, in Swaraj Abhiyan v. Union of India and Ors. (2016), the Supreme Court made it clear that: there can be no doubt that the right to food is actually a constitutional right and not merely a statutory right… In any event, even if the right to food is a statutory right, it would be the obligation of the State to make all possible efforts and some more to ensure that to the extent possible, adequate food grains are available to all and particularly to those in drought affected areas. Despite such clear enunciation, Mitra, Afeef, Sreenivasa, and Narasimhappa map out the fact that the hard fought right is being chiselled away. States are abdicating their responsibility and the increasing role of private entities in food distribution has resulted in convenient short cuts in distribution of nutrients and apathy to the working conditions of workers responsible for food distribution. The authors also highlight the need to address structural reasons for increasing malnutrition and stunting among children – the most crucial being right to earn a decent livelihood. One of the aims of welfare state is, as Esping-Andersen describes, the de- commodification of labour. Following Karl Polanyi (2001), Esping-Andersen (1990) defines the de-commodification of labour as the situation in which “a service is rendered as a matter of right, and when a person can maintain a livelihood without reliance on the market” (p. 22). Thus de-commodification strengthens the worker vis-à-vis the employer. Due to universal programmes like unemployment protection, socialised medicine, and guaranteed income security in retirement, labour gets to be partially de-commodified. However, of late, at a global level, it is this de-commodification that is being reversed. Bhatia points out in her article, we are a witness to larger process of privatisation of social security, contractualisation and casualisation of labour even of those employed in formal enterprises. Further, in the absence of jobs people are pushed to accept whatever they can find. This results in, as Bhatia argues in her article, proliferation of the informal sector. As she notes, job insecurity producing informality (as well as a result of it) attacks the very foundation of welfare state. She argues that informal workers and dwellers in the so called informal sector undergo greater regulation and legal threats (of eviction and others) than those in the formal sector. It is important to note that the entirely new business model of platform economy blurs traditional definitions of the welfare state. More and more people are employed on ‘zero-hour contracts’ in a wide variety of jobs, from stacking shelves to waiting tables to caring for the elderly. These people start every week not knowing how much work they will get or how much money they will earn. Bhatia on the basis of her field work highlights the kind of insecurity that Uber and Ola drivers face. Uber has refused to

Is the Welfare State in Crisis? / Kannamma Raman 12 classify its drivers as employees and have repeatedly typified them as “independent contractors”; denying them workplace protection (Cunningham-Parmeter, 2016, 1675). At another level, the largest anti-poverty scheme, the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) was implemented for the benefit of the poor and unskilled workforce in rural India. Tewari argues that while it is an important and timely intervention by the Indian State to get millions of people out of extreme poverty and deprivation, MGNREGA does not address the question of the quality of human capital for India. The main contention is that the political narrative fails to highlight that it is a transition scheme or ideally, should be - to benefit the cohorts that are ‘unskillable’ now. It is in this context that Ramani highlights the comparatively new idea to catch the attention of policy planners, namely, universal basic income (UBI). It seeks to guarantee regular payment for every citizen such that would keep them above the poverty line, even if they chose not to work. This is an idea that dates back to Thomas More’s book, Utopia (1516). It is now championed by Silicon Valley stalwarts, neoliberals such as Milton Friedman, left wing economist and one-time Greek finance minister Yanis Varoufakis and Scandinavian social democrats. Liberals tend to view UBI as an add- on to existing welfare programmes, while conservatives see it as a replacement for welfare, (McCusker, 2018). In other words, for the left, a basic income would give people security and dignity. For the right, however, that basic security would be valuable because it would mean people would be free to take the kind of irregular work offered by the gig economy or zero-hours contracts. The lesson of these differences and convergences of opinion is that tackling economic insecurity need not be done at the expense of efficiency, competitiveness or innovation. (Renwick, 2017) In the 1970s, the idea was trialled in a Canadian town Dauphin. This guaranteeing people an income had interesting effects. Fewer teenagers dropped out of school. Fewer people were admitted to hospital with mental health problems. Hardly anyone gave up work (Harford, 2017). New trials are under way, to see if the same thing happens elsewhere. It would, of course, be enormously expensive. But several economists have noted its potential to alleviate poverty in low-income countries by slicing through bureaucratic red tape, reducing corruption, and ensuring that entitlements reach intended beneficiaries. The Indian government’s annual Economic Survey 2016–17 estimated that providing a modest basic income to all but the richest quartile of Indians could shrink national poverty from 22 per cent to 0.5 per cent, while promoting social justice and empowering the poor. But the survey concluded that UBI is “a powerful idea” that may “not [be] ripe for implementation” but that the concept is ripe for serious discussion (Government of India. Ministry of Finance, 2017, p. 195). Philippe Van Parijs (1992) argues that the institutionalisation of UBI scheme would constitute “a profound moral reform that belongs in the same league as the abolition of slavery or the introduction of universal suffrage” (p.7).

13 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 A major concern, in terms of earning one’s livelihood has been rural poverty and its dwindling share in the gross domestic product. As N. Lalitha and Vinayan note agriculture is an important livelihood activity that combines economic, ecological and cultural practices in a holistic manner. In order to address these issues, the government of India has set a goal to double the farmers’ income by 2022-23 and variety of strategies within and outside the agriculture sector are being discussed. They argue that geographical indication is a powerful rural development tool, but requires a variety of support ranging from getting legal protection for the product to positioning the quality product in the market. Various policy tools available with the Central and State governments, can be reoriented towards promoting geographical indication products and the farmers’ welfare. However, a word of caution is that there is a “… fine line between the organized cartelization in the public interest and undue barriers to entry set by a small group of producers” (Bureau and Valceschini as cited in Herrmann & Teuber, 2013, p 835). The paper is interestingly making a case for compatibility of market mechanism in a welfare state. One of the groups that has very often been marginalised by even the welfare state are women. Many feminists have argued that the paternalistic approach of welfare state has not necessarily facilitated women taking control of her life. Workplaces have generally been gender-insensitive and, as Okin succinctly pointed out, it assumes “workers have wives at home” (Okin 1989, p. 5). Of late, thanks to long drawn struggle by women, welfare states have taken some steps that are gender sensitive. One such move has been paid maternity leave. Studies have shown that such a move improved maternal health outcomes, including blood pressure, pain, and mental health, and it increased health-promoting behaviours (Bütikofer, Riise & Skira, 2018). Kirthi Jayakumar examines the Maternity Benefit (Amendment) Act, 2017, that provides 26 weeks maternity leave for women employed in the formal sector. The new law also makes it mandatory for every establishment with 50 or more employees to have the facility of crèche within a prescribed distance. It has paved the way for what is clearly a great benefit for mothers; especially so since the private sector has to abide by it as well. Jayakumar contends that while the move is welcome, by rejecting the idea of paternity leave, it appears to reinforce patriarchal norms around parenting. What must be of equal concern is that scholars have raised concerns about potential negative outcomes of generous family policies, an issue known as the ‘welfare state paradox’. They suspect that such policies will make employers reluctant to hire or promote women into high authority jobs, as women are more likely than men to use those policies and take time off. It is here that one has to appreciate the efforts of several European countries to expand fathers’ use of leave through the introduction of quotas that reserve part of the leave to men on a ‘use or lose’ basis (Lammi-Taskula as cited in Ciccia, & Verloo, 2012, p. 508). Inclusion of fathers as well as mothers among those entitled to care time simultaneously will challenge organisational work cultures and go a long way in ensuring parity in work place. This could well be the next step that the Government of India ought to consider. Finally, all the rights and entitlements are grounded on the availability of legal redress. It is this that makes legal aid central to efforts to create a welfare state. Legal aid helps ensure that welfare provisions are enforced by providing people entitled to welfare provisions access to legal advice and the courts. In India, right to counsel is recognised

Is the Welfare State in Crisis? / Kannamma Raman 14 as a fundamental right of an arrested person under article 22(1); it provides, inter alia, no person shall be denied the right to consult, and to be defended by, a legal practitioner of his choice. In Khatri and Ors. v. State of Bihar and Ors. (1980) the Supreme Court held that the accused is entitled to free legal services not only at the stage of trial but also when first produced before the magistrate and when remanded. Further, Article 39-A inserted in the Constitution as per 42nd Amendment, 1976, requires that the State should pass suitable legislations for promoting and providing free legal aid. To fulfil this Parliament enacted Legal Services Authorities Act, 1987; it came into force on November 9, 1995. The Act seeks to establish a nationwide uniform network for providing free and competent legal services to the weaker sections of the society on the basis of equal opportunity. Section 12 of the Act provides legal services to the persons specified in it. The National Legal Services Authority has been constituted under the Legal Services Authorities Act, 1987 to monitor and evaluate implementation of legal aid programmes and to lay down policies and principles for making legal services available under the Act. Vandita Morarka’s article traces the emergence of legal aid and her empirical study reveals the major shortcomings in its functioning. She flags off some of the major problems associated with legal aid, namely, daunting procedures, below par service and failure on the part of authorities to create awareness of the facilities available. In conclusion we can say, as was pointed out by World Bank report (2011) India’s programmes can be divided into three types: ‘promotional’, ‘preventive’ and ‘protective’. The first type of scheme tries to promote prosperity, by investing in skills, health and livelihoods of the poor and vulnerable, so that bad things (illness, joblessness, destitution) don’t happen. The second type of scheme comprises of various kinds of social insurance, which make provision in advance for the bad things that might happen. ‘Protective’ schemes come into effect after misfortune has already struck and try to ameliorate the suffering of the victims. The report contends that the Government of India relies heavily on the third, protective style of welfare to the neglect of the first two. India’s government provides safety ‘nets’ to stop you hitting rock bottom, not ‘ropes’ to break your fall or ‘ladders’ to help you climb. Also, as Tiwari notes programmes like MNREGA is palliative and not curative; these are much needed intervention but not a permanent solution. So, if India has to over come the crisis India needs to move to promotional and preventive mode. Also, the move towards restricting welfare to only those who are ‘poor’ raises the spectre of going back to the time when those benefitting from it were stigmatised. Hence, care has to be taken to prevent this. One of the reasons for the overall neglect and below par provision of services is, as Ramani notes, the secession of the elite from the use of many of these welfare services. This in turn leads to sub-optimal delivery of services. A prominent example would be the failure of politicians and senior civil servants to use public transport, as is the case in, say, the United Kingdom. Similarly, none of these people are likely to patronise government run schools or health centres. As Ramani points out accurately, many services, are being privatised by the elite, “which then live[s] in an island of prosperity in a sea of mediocre services”. This cannot in the long run lead us to any kind of stable existence of any society.

15 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 It is therefore undeniable that the welfare state needs to be restructured and reformed. As most authors in this issue have noted this has to be done without compromising on the core social citizenship it is premised on. As Kumaraswamy points out there is a need to relook at options so that equality can be achieved with minimal loss of efficiency. Most of the authors in this issue have tried to provide a roadmap. It is very clear that none of them are arguing that the state should disappear, or even return to its former ‘night watchman’ role. This needs to be addressed because, as Shah notes in his article, the goal of the welfare system is not just to provide support; it is to provide support that enables sustained self-reliance and self-help. The success should be measured not by how many people are on welfare, but by how many have gotten back on their feet or have become self-sufficient in an effective and sustained manner. Also as Shah suggests more emphasis on output rather than inputs could make a difference. Yet, despite all talks about reforms successive governments of India have only tinkered with the schemes. This could be due to, as pointed out by some of the authors in this issue, electoral compulsions. Further, as Kumaraswamy notes drastic changes might be problematic as weaning people away from freebies will not be easy. Very interstingly, he draws a parallel to primates who, once they develop a sense of entitlement, display extremely violent reactions when it is withdrawn. This is not surprising since even the most committed neo-liberal governments (under Reagan and Thatcher in the 1980s) found it difficult to ‘roll back’ welfare state expenditures (Pinzani, 2016, p. 121). The National Democratic Alliance government despite promises of minimum government has felt compelled to continue, and even allocate more fund to MNREGA that they were very critical when in opposition. A careful examination of what is called the ‘hidden welfare state’ (Howard, 1999) wherein programmes often offer benefits to wealthier individuals and companies is called for. In a nutshell, the existing uncertainty over the future of welfare state also opens up opportunities for a more creative reframing of the same.

References Briggs, A. (1961). The welfare state in historical perspective. European Journal of Sociology, 2(2), 221-258. doi: 10.1017/S0003975600000412 Brown, C. (1981). Mothers, fathers and children: From private to public patriarchy. In L. Sargent (Ed.), Women and revolution: A discussion of the unhappy marriage of Marxism and feminism (pp. 239-269). Boston, MA: South End Press. Bütikofer, A., J. Riise, & M. Skira (2018). The impact of paid maternity leave on maternal health. NHH Norwegian School of Economics, Department of Economics Discussion Paper No. 04/2018. Available at SSRN: https://ssrn.com/abstract=3139823 Ciccia, R., & M. Verloo (2012). Parental leave regulations and the persistence of the male breadwinner model: Using fuzzy-set ideal type analysis to assess gender equality in an enlarged Europe. Journal of European Social Policy, 22(5), 507-528. doi: 10.1177/0958928712456576 Cunningham-Parmeter, K. (2016). From Amazon to Uber: Defining employment in the modern economy. Boston University Law Review, 96, 1673-1728. Retrieved December 24, 2017, from http://www.bu.edu/ bulawreview/files/2016/10/CUNNINGHAM-PARMETER.pdf

Is the Welfare State in Crisis? / Kannamma Raman 16 Esping-Andersen, G. (1990).The three worlds of welfare capitalism. Cambridge: Polity Press. Fraser, N. (1985). What’s critical about critical theory? The case of Habermas and gender. New German Critique (Special Issue on Jurgen Habermas), 35, 97-131. doi:10.2307/488202 Goodin, R. (2003). The end of the welfare state?. In T. Ball, & R. Bellamy (Eds.), The Cambridge history of twentieth century political thought (pp.202-216) Cambridge: Cambridge University Press. Government of India. Ministry of Finance. (2017). Economic survey 2016–17, New Delhi: Government of India. Habermas, J. (1975). Legitimation crisis (Thomas McCarthy, Trans.). Boston, MA: Beacon Press. ___ (1986). The new obscurity: The crisis of the welfare state and the exhaustion of utopian energies (Phillip Jacobs, Trans.). Philosophy & Social Criticism, 11(2), 1-18. doi:10.1177/019145378601100201 Harford, T. (2017, November 13). Do welfare states boost economic growth, or stunt it?. BBC News. Retrieved December 22, 2017, from https://www.bbc.com/news/business-41655859 Hayek, F.A. (1944). The road to serfdom. London: George Routledge & Sons. _____.(1979). Law, legislation and liberty Volume 2 Mirage of social justice. Chicago, IL: University of Chicago Press. Herrmann, R., & R. Teuber (2013). Geographically differentiated products. In J. Lusk, J. Roosen, & J.E. Shogren (Eds.), The Oxford handbook of the economics of food consumption and policy (pp. 811-842). Oxford: Oxford University of Press. Howard, C. (1999). The hidden welfare state: Tax expenditures and social policy in the United States. Princeton, NJ: Princeton University Press Indian Council of Medical Research, Public Health Foundation, & Institute for Health Metrics and Evaluation. (2017). India: Health of the nation’s states – The India state-level disease burden initiative. New Delhi: ICMR, PHFI, & IHME. Kurian, N. (2005). The Swedish welfare state and new challenges. In B. Vivekanandan, & N. Kurian (Eds.), Welfare states and the future (pp 151- 160). New York, NY: Palgrave Macmillan. Lindblom, C.(1977). Politics and markets: The world’s political-economic systems. New York, NY: Basic Books. Marshall T.H. (1950). Citizenship and social class and other essays. Cambridge: Cambridge University Press. McCusker, J. (2018, May 9). Universal basic income idea is back, as flawed as ever.Herald Net. Retrieved May 22, 2018, from https://www.heraldnet.com/business/universal-basic-income-idea-is-back-as- flawed-as-ever/ Nozick, R. (1974). Anarchy, state, and utopia. New York, NY: Basic Books. Offe, C. (1984) The contradictions of the welfare state. London: Hutchinson. Okin, S. (1989). Justice, gender, and the family. New York, NY: Basic Books. Parijs, P.V. (1992). Competing justifications of basic income. In P.V. Parijs (Ed.),Arguing for basic income: Ethical foundations for a radical reform (pp. 3-43). London: Verso. Pateman, C. (1988). The patriarchal welfare state: Women and democracy. In A. Gutman (Ed.), Democracy and the welfare state (pp.231-260). Princeton, NJ: Princeton University Press. Pierson, C. (1999). Marxism and the welfare state. In A. Gamble, D. Marsh, & T. Tant (Eds.), Marxism and social science (pp. 175-194). Urbana and Chicago, IL: University of Illinois Press. ____ . (1998). Beyond the welfare state?: The new political economy of welfare (2nd ed.). Cambridge: Polity Press.

17 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Pierson, C. (1998). Origins and development of the welfare state, 1880-1975. In N. Deakin, C. Jones- Finder, & B. Matthews (Eds.), Welfare and the state critical concepts in political science (pp.47-86). New York, NY: Routledge. Pinzani, A. (2016). Farewell to welfare: An end to citizenship as we know it. SocietàMutamentoPolitica, 7(13), 119-137. doi:10.13128/SMP-18286 Polanyi, K. (2001). The great transformation: The political and economic origins of our time. Boston, MA: Beacon Press. Renwick, C. (2017, September 21). Why we need the welfare state more than ever. The Guardian. Retrieved December 22, 2017, from https://www.theguardian.com/news/2017/sep/21/why-we-need- the-welfare-state-more-than-ever Word Bank. (2011.) Social protection for a changing India. Vols. I and II. Washington DC: World Bank. _____. (2017). World development indicators: Education inputs. Retrieved January 6, 2018, from http:// wdi.worldbank.org/table/2.7 ______. (2018). World development report 2018: Learning to realize education’s promise. Washington DC: World Bank. Case law citations Chameli Singh v. State of UP, Appeal (civil) 12122 of 1995, AIR 1996 SC 1051, (Supreme Court of India, 1995). Khatri and Ors. v. State of Bihar and Ors., 1981 SCR (2) 408, 1981 SCC (1) 627 (Supreme Court of India, 1980). Swaraj Abhiyan v. Union of India and Ors., Writ Petition (C) No. 857 Of 2015, (Supreme Court of India, 2016).

Is the Welfare State in Crisis? / Kannamma Raman 18 Privatising Education in India and the Withdrawing Welfare State

Anuya Warty*

Education is considered to be a defining factor in bringing about socio-economic changes. It is looked at as the panacea to vast range of problems such as poverty, unemployment, harmful and irrational practices and the like. In India, governments—both at the Centre and the States—claim to have worked over the years to improve the levels of literacy and to provide better education facilities to children in the country. With the changing trends though, the role of the State has got diluted and the focus is shifting towards private players in the sector. The present paper traces the gradual withdrawal of the State and the emerging concerns regarding the education sector in India. Key words: education, social justice, equity, privatisation, Sarva Shiksha Abhiyan

n the largely capitalist economic arrangements across the world, governments were known to work along the laissez faire policy allowing maximum leverage to for-profit Iprivate enterprises. This in turn facilitated the concentration of wealth in the hands of a few and left barely any bargaining power with workers and marginalised sections of the society. The hours and conditions of work, wage and unemployment policies among other issues posed serious questions about the quality of life of the people. Social legislations and the idea of a welfare state were largely mooted, especially after World War II, to bridge this increasing gap in the society and to ensure no one falls out of the safety net. Over the years, it became the bounden duty of the State to ensure that the poorest of its citizens were not deprived of basic requirements for a human existence. Such a State aimed at ensuring equality of opportunities and equity in the society. The measures undertaken by several European countries post-World War II were so comprehensive that they, proverbially, catered to an individual from ‘cradle to grave’. Benefits and security for old-age, unemployment, health care, insurance, housing, child care and education have been considered extremely important under these scheme of things. Among these, education, due to its intrinsic and extrinsic value, is accorded great importance. Ideally, better education is expected to equip individuals with improved skill sets resultantly raising their employability and standard of living. But in addition to the economic results, education is believed to create circumstances to analyse social mores and bring about changes in the structure, where required, in an informed

*Anuya Warty ([email protected]) works as Assistant Professor at Department of Political Science, Mithibai College, Mumbai. She completed her doctorate from University of Mumbai.

19 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 manner. It is therefore believed that education has the catalytic capacity to bring about long term and sustained social changes in any system. In recent times, especially with the advent of globalisation and its philosophical undertone, one observes a trend where States have been again shifting away from providing for the social sector. This paper focuses only on the education sector in India through these changing years. It traces India as a welfare state and the challenges towards providing education. It works through the policies and schemes that have worked towards ensuring near universalisation of enrolment in schools. It then maps the changing trends in the education sector. India adopts welfare state India, when it secured independence, opted to be a welfare state. This meant it would be the State’s responsibility to ensure that the array of socio-economic, political and administrative challenges were met and massive overhauling of the structure would take place. Stratified, rigid society with deeply entrenched caste system had adversely affected the quality of life and opportunities available to people from the lower castes. Education, social interaction and therefore professional opportunities were severely restricted in their case. It had a telling effect on their quality of life. So also in the case of women in an essentially patriarchal society, they had been relegated, for centuries, to secondary status; their mobility and access to public places were limited and were largely dependent on the male members of the family. Several social evils and superstitions gripped the Indian society. So going by the earlier discussion, quality education would then be essential to bring about scientific approach and temper and to bring about fundamental attitudinal changes in the society. Constitutional provisions sought to ensure that there would be no concentration of wealth in the hands of a few to the detriment of the interest of the poor. Consequently, independent India chose a mixed economy which meant that there would be a co- existence of public and private sectors. In view of the acute resource, capital, infrastructural and entrepreneurial crunch, the public sector was expected to bear the major responsibility towards developing all the sectors in the economy. The State would then be the primary provider in the social sector—particularly health and education since they were pivotal in the development of the new nation and were in a very poor condition. The literacy level at the time of Independence in 1947 was a mere 12 per cent. The census of India 1951 reported that only 18.33 per cent of the population was literate. There was a considerable gender gap even here, with 27.16 per cent males and only 8.86 per cent females being literate (Census 2011). This is despite the fact that the Census categorises anyone who is of or above seven years of age and can read and write (necessarily both) with understanding in any language as ‘literate’. One does not require formal or basic level of educational qualifications to be categorised as such. To add to the resource crunch, the government had little experience in handling a problem of this gravity.

Privatising Education in India and the Withdrawing Welfare State / Anuya Warty 20 The Constituent Assembly considered making education a fundamental right. However, being a justiciable provision, it could then be imposed by courts of law leading to litigations and severe pressure on the State to achieve the colossal target in a time frame for which it was not prepared. This raised concerns in the Assembly. The proposal was thus withdrawn and the responsibility to make policies and provisions towards extending education to the population came to be incorporated under the Directive Principles of State Policy (DPSP) in the Constitution of India. DPSP—Part IV of the Constitution—is largely drawn from the concept of welfare state and attempted to resolve the possible conflict that would arise between individual rights and community needs (Kashyap, 1994, p. 125). However, the DPSPs are non-justiciable, i.e., no legal remedy can be sought in case of their violation and no laws can be declared ultra vires if found inconsistent with them. In fact, the Constituent Assembly deliberately maintained these as non-enforceable so that the legislature would be left with “a measure of latitude in deciding the order, the time and mode of fulfilling them as their implementation depended on several imponderable factors, such as the availability of requisite resources, the readiness of society to accept the socio-economic changes envisaged, etc.” (Kashyap, 1994, p. 126). These were ‘Instruments of Instructions’ for the State and it was affirmed on the floor of the Constituent Assembly that the State would be committed towards providing for the same but without the courts of law compelling them to do so. Provision to extend free education to children between 6 and 14 years of age was left, under Article 45, to the State. Education came to be incorporated under the State List which allowed the federating units to decide schooling and education policies as per their requirements and resources. Having adopted the planned development model, the Union would also be working towards ensuring resources and finances towards supplementing the same. Duly recognising the fact then that education was “the key to a sustainable development” of people and communities, the First Five Year Plan accorded “high priority” to education (Das, 2007, p. 47). The Plan identified that the structure of education was “top heavy” with little attention being paid at addressing it. (Planning Commission, Chapter 33, n.d.). Grave disparities and variation in education provided across States, caste and gender gaps, wastage of resources due to drop- outs, poor teacher training were some of the major concerns addressed in the Plan (Planning Commission, Chapter 33, n.d.). Over the years it was suggested that progress in the sector was hindered by the absence of partnership between the Central government and the State governments. This resulted in the Constitution (Forty-Second Amendment) Act, 1976, that moved education from the State List to the Concurrent List. This suddenly brought a huge centralising effect to the field of education. The rationale was to bring about a unified effort towards eliminating illiteracy and ensuring the spread of education across the country. However, in a federal structure increasingly marred by acrimonious relationship between the Centre and States, this caused additional constraints on the working of the States, especially towards the amount of subsidies they could extend to education in the federating unit.

21 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 The State has therefore played a pivotal role in providing education and ensuring it reached the most marginalised sections of the society. It ensures opening new schools where none existed, provides subsidies to ensure equity in accessing educational opportunities and towards sustaining existing schools. All this did not preclude the growth private schools in the country. Private schools are either government-aided or self-financed. There are “nearly 250 million students across more than 1.4 million schools’ in the country” (Nanda, 2017). Nearly 66 per cent of primary school children are enrolled in government or government- aided schools (Mallapur, 2016), particularly the latter to the extent that education in India is considered to be “overwhelmingly private” (Balakrishnan, 2007, p. 3930). However, only 40 per cent villages in India are found to have private schools (Wadhwa, 2017, p. 18). So rural schooling is overwhelmingly inclined towards government schools. These schools cater to 70 per cent of the rural children in the country (Wadhwa, 2017, p. 18). Universalisation of education The first National Policy on Education (NPE) in 1968 aimed at ‘radically restructuring’ the sector for better and equal opportunities. The New Education Policy (NEP), 1986 recognised education as “a unique investment in present and future” (Das, 2007, p. 49). It aimed at eliminating disparities and providing equal opportunities in education. Education for the scheduled castes, scheduled tribes, women and adults deprived of education were to be focused upon. The NEP clearly mentioned the need to increase the investment in education; mobilisation of donations; expansion of scholarships and raising fees at higher levels of education. Over the years, schemes like Mid-Day Meal Scheme (MDMS) were launched by the government to improve enrolment and sustenance of children in schools across India. The MDMS in itself has been world’s largest school feeding scheme (Mallapur, 2016). Although both these policies achieved their goals partially, things changed drastically in the early 1990s. The paradigm shift India faced a serious economic crisis in 1991 which not only resulted in a huge loan being sought from the International Monetary Fund (IMF) but a drastic economic reform. The State which was usually seen to be present as a provider in nearly all sectors now had to overhaul its policies to the tune of Structural Adjustment Programme (SAP) specified in the terms of the loan. Within a short span, in 1992 India opened up its economy to foreign investment, multi-national corporations and foreign institutions and allowed the private sector to take over the sectors which were earlier State concerns. This was the process of Liberalisation-Privatisation-Globalisation (LPG). Resultantly, India started a process of disinvestment which then had a cascading effect on all sectors, including the social sector pertaining to health and education. The government fixed annual targets for disinvestment of public sector enterprises (PSEs) and worked towards achieving more than the target. The investment thus mobilised were diverted towards compensating the deficit in government revenues. The social sector came to see a clear shrinking of government investment. The fact that the State would no more be the ‘provider’ but a ‘facilitator’ in many sectors including education and that one would increasingly have to deal with private players was a paradigm shift.

Privatising Education in India and the Withdrawing Welfare State / Anuya Warty 22 The role of State was overhauled according to the neo-conservative, neo-liberal, free market principles. Education was now considered as ‘service sector’ which people would increasingly have to pay for. The Human Development Index (HDI) in India observably slowed down since 1990s (Das, 2007, p. 57). The NEP 1986 came to be reviewed in new light of the common minimum programme of the government in 1992 and brought in common entrance examinations for professional courses. Declining public expenditure on education Over the years, there has been an evident drop in the public expenditure towards education. Considering the recent budgets, in 2013-2014 education got 4.57 per cent of the government’s total budgeted expenditure which steadily declined to 3.65 per cent in 2016-2017 (Varma, 2017). The revised estimates for 2017-2018 showed a marginal increase to 3.71 per cent which would in fact get neutralised as a result of inflation (Varma, 2017). Expenditure on education forms just 4 per cent of India’s gross domestic product (GDP) which is far less than comparable economies like Brazil and South Africa (Bhuyan, 2017) and much less than the aforementioned national policies. Even the capitalist Western countries spend over 5 per cent of their GDP on education. This tectonic shift led to what critics called “abdication of economic sovereignty” (Das, 2007, p. 55) on the part of the State irrespective of which political party successively came into power. Higher education had always secured a large chunk of education subsidies extended by the government. Now the government found it “difficult to justify subsidies” for higher education (Discussion Paper on ‘Government Subsidies in India, 1997, cited in Das, 2007, p. 54). With the change in the political party in power, the approach towards education changed considerably. The Ambani-Birla Committee in its report A Policy Framework for Reforms in Education recommended that higher education should now be “market oriented” and the user pay principle should be applied to higher education. Education came to be accepted as a “non merit good” as prescribed by the World Bank (Das, 2007, p. 54) and subsequent change in governments did not make them averse to the idea of having more private players in the education sector. Partnering private sector in education Public-private partnership (PPP) in the sector has come to be seriously considered as an alternative in order to align the sector to the service-oriented conditions of the recent times. Increased efficiency, recovery of costs incurred and better learning outcomes were intended to be worked out. With an upward trend in the involvement of the private sector in areas which were hitherto the exclusive domains of the government, their role in education came to increasingly gain acceptance. Planning Commission believed that “[t]he key to making PPPs acceptable is to create an environment where PPPs are seen to be a way of attracting private money into public projects, not putting public resources into private projects” (Planning Commission (2006) Towards Faster and More Inclusive Growth: An Approach to the 11th Five Year Plan, 41 cited in Srivastava, 2010, p. 543).

23 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 PPP is not unprecedented in the world. Countries which have attempted this framework for a longer period have found extensive PPP arrangements riskier with “fewer actors to bear the risk” and more prone to abuse by vested private interests if it is the stronger, dominating partner. (Coulson 2005; van Marrewijk et al. 2008 cited in Srivastava, 2010, p. 543). The onset of privatisation has impacted the education sector at all levels. For instance, salaries in private schools are way lower than these and are dependent upon the market forces. With LPG, government gradually initiated the process of reducing the expenditure. There was a consistent increase in the number of contractual teachers. In 2013-2014 there were about 5.08 lakh contractual teachers in India—many of whom were not even fully qualified (Bhuyan, 2017). The quality of teaching, commitment levels and accountability as also the learning outcomes for the services of these contractual and para-teachers are then subject to scepticism. The aim of education policies in India towards equalising opportunities in education and removing disparities could not be achieved unless this was backed up by a strong governmental presence. The Planning Commission reiterated this with reference to the Eleventh Plan targets since access to essential public services such as education “is not an automatic outcome of rising incomes” and that it called for “deliberate public intervention to ensure delivery of these services” (Planning Commission (2006) Towards Faster and More Inclusive Growth: An Approach to the 11th Five Year Plan, 90-1 cited in Srivastava, 2010, p. 541). In fact the Planning Commission stated that we may need an increase of at least 0.5 per cent of GDP by the end of the 11th Plan period to cover the requirements of expanding secondary education, plus an additional 0.25 per cent of GDP for higher education. (Planning Commission (2006) Towards Faster and More Inclusive Growth: An Approach to the 11th Five Year Plan, 87-8, cited in Srivastava, 2010, p. 546) The Twelfth Plan observed that the private sector is now in a position to invest in most sectors of the economy and the presence of the public sector is not required to the extent it was needed earlier. But it stated that the provision of education among other essential services has to be the State responsibility. So what is then required is “restructuring in the role of the State, reducing its role in some areas but increasing it in others” (Planning Commission, 2013a, p xii). However, despite these and such observations, a reduction in the involvement of State in education continued. Right to education and the Central government flagship programme of Sarva Shiksha Abhiyan (SSA - Education for All Movement) which brought most previous plans towards education under an umbrella need to be examined critically. Right to education The Constitution (Eighty-Sixth Amendment) Act, 2002, inserted Article 21-A in the Constitution of India to provide free and compulsory education of all children in the age group of six to 14 years as a fundamental right in such a manner as the State may,

Privatising Education in India and the Withdrawing Welfare State / Anuya Warty 24 by law, determine. The Right of Children to Free and Compulsory Education (RTE) Act, 2009, which represents the consequential legislation envisaged under Article 21-A, means that every child has a right to full time elementary education of ‘satisfactory’ and ‘equitable’ quality in a formal school. Article 21-A and the RTE Act came into effect on 1 April 2010. The SSA started off with massive allocation of funds. It was allocated R 235000 crore in the budget of 2017-2018 which was aboutR 1000 crore more than the previous budget allocation (Nanda, 2017). Over the years, this programme alone received R 1.16 lakh crore (Saha, 2017). From opening new schools in habitations which did not have any, strengthening and improving existing infrastructure, ensuring presence of teachers, teacher training and provision of learning material all came under its purview. As a result of the initiatives mentioned above, there has been positive infrastructural changes throughout schools in India. This is despite none of the States in India spending more than one per cent of the SSA budget allocated to them (Bhuyan, 2017). One of the reasons for this is, as the States have reported, immensely delayed release of the SSA money sanctioned by the Central government (Mallapur, 2016). In a federal structure this affects not only the quality of services extended by the federating units given the limitations regarding generating their own revenue as also the Centre-State relations. The efforts definitely boosted the enrolment rate with 96.9 per cent of children between six and 14 years of age now in schools across the country (ASER, 2017, p. 43). India with a literacy rate of 74.04 per cent—with 82.14 per cent male and 65.46 per cent female literacy in 2011 (Census 2011) has travelled a long distance since independence. She still has a long way to go. Despite near universalisation of education and commendable increase in literacy rate, the government remains unsure about the exact number of children who are out of school. This number could vary widely between four and 20 million (Tiwari, 2016), and the number increases as we study the higher grades. About 35 million children of the secondary schooling age are out of school and the number doubles to 71 million as we progress to higher grades of schooling (Varma, 2017). Although there has been an increase over the years, the mean years of schooling of the working population (those over 15 years of age) was only 5.12 years in 2010 (Planning Commission, 2013b, p. 47). There are several reasons for the high drop-out rates in the country. Poverty, distance to be travelled to school, lack of infrastructure, absence of separate toilet facilities for girls, dearth of teachers—especially female teachers and teacher absenteeism are the oft repeated reasons. Being unable to relate to the rigid prescribed syllabus per grade and absence of assurance of employment at the end of schooling additionally fail to sustain children in schools. As a result, only one in 12 students enrol in colleges in India (Tiwari, 2016) which happens to be much lower than comparable countries in BRICS if not the Western ones (Varma, 2017). Therefore, the brouhaha about near universalisation of education has to be tempered by a review of whether the learning outcomes have been on par.

25 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Concerns regarding learning outcomes Research has provided conclusive evidence that a child’s future is sealed by the third year in school (Banerji, 2017, p. 15). The quality of education provided in these schools then affects a large number of people and has long-term implications and needs careful monitoring and accounting. Pratham’s exhaustive Annual Status of Education Reports (ASER) have brought to light shocking facts regarding the ability of children in reading, arithmetic and the English language as compared to the grades they were studying in rural India. ASER 2016 found that only 42.5 per cent of the children in Standard III were able to read at least Standard I level text and three out of every four Standard VIII children could now read at least Standard II level texts (p. 43). As a matter of fact, this was an increase over 2014. In 2016, 27.7 per cent of Standard III children could do a 2-digit subtraction; about 26 per cent of Standard V students could do simple division problems while only 43.3 per cent of Standard VIII students could perform division problems (ASER, 2017, p. 44). While 32 per cent of Standard III children could read simple English words, 24.5 per cent of those enrolled in Standard V could read simple English sentences. The upper grades though have shown a worrying drop in the ability to read simple English sentences—60.2 per cent (2009) steadily dropping to 45.2 per cent (2016). Irrespective of the grade, about 60 per cent children are reported to be able to explain the meaning of the words read and 62.4 per cent at Standard V could explain the meaning of the sentences (ASER, 2017, p. 44). Parents in India have been particularly inclined towards providing English education to their children with the belief that the language automatically equips children with employable skills. So the trends cited here in the ASER report are of immense concern. In areas where government schools are the only option, one can clearly see a distinct disadvantage the children would then have as compared to children from areas which have better alternatives. The lack of access to better quality education can adversely affect the opportunities the children would have by the time they pass school grades. Additionally, there is a problem of a “confused pedagogy” wherein teachers tend to focus on brightest children instead of the weaker ones in class or those from deprived castes (Choudhary, 2017). This evidently leaves out a major chunk of children who require genuine attention at learning and impacts the learning outcomes. ASER 2016 findings, as also the fact that 80 per cent of public expenses on education are spent on teachers’ salaries, training, learning material and the like (Saha, 2017) raises serious questions regards the monitoring, accountability and outcome orientation in the sector. Further, despite the general recognition about the importance of education, there is an inexplicable inertia towards the education sector. As Arvind Subramanian—chief economic advisor to the National Democratic Alliance (NDA) government—believes “there has never been a bottom up demand from the rural areas for quality education in a way that there has been for, say, improvement in roads and bridges…” (Choudhary, 2017). Poor quality of education provided by educational institutions has hardly ever raised an alarm in the country. There is only a silent shift in choices made by the people for their wards. This in turn has led to a “rapid emptying”

Privatising Education in India and the Withdrawing Welfare State / Anuya Warty 26 and “abandonment” of government schools and an increase in what are termed ‘small’ and ‘tiny’ schools (Kingdon, 2017, p. 8). A ‘small’ school is one which has 50 or less students in the school as a whole—i.e., it has 10 or less students per class in primary school; or which has six or less students per class in elementary school. A ‘tiny’ school is identified by the fact that it has a total enrolment of 20 or less students—i.e., it would have four or less students per class in primary school or about three students per class in elementary school grade (Kingdon, 2017, p. 7). The number of ‘small’ government schools increased sharply from 3,86,328 (2014-2015) to 4,18,825 (2015-2016) which now comprise 40 per cent of all government schools in the country—a 10 per cent jump in a single year (Kingdon, 2017, p. 8). There are now, on an average, 28 pupils per small government school. The number of tiny government schools increased from 71,189 (2010) to 1,00,409 (2014) to 1,08,183 (2015) and the statistics are even more discouraging in the hilly and remote areas of the country. As the teachers’ salaries in government schools are higher than the private schools, per pupil expenditure incurred by the government increased considerably. Resultantly, the “pedagogical and economic unviability” (Kingdon, 2017, p. 7) of these schools comes into focus. This leads to a curious situation when seen in the context of Sec 6 of the RTE, 2009 which obligates States to create more government schools. Recent trends have confirmed that student enrolment in government schools fell by 13 million while private schools enrolled 17.5 million students (Saha, 2017). The average enrolment per government school has fallen from 122 in 2010-2011 to 108 in 2015- 2016. During the same period, the average enrolment per private school increased from 202 to 208. In addition to the drop in the average enrolment per government school, what is a matter of concern is the gap of an average of eight students per government school who go unaccounted in the process (Kingdon, 2017, p. 12). This brings our attention to the rather skewed handling of the education sector in India. Education has basically been government funded. Private sector has been a minor contributor to the total spending on education. Additionally, the sector has witnessed dwindling private philanthropy over the years (Ramamurthy and Pandiyan, 2017, p. 47). While we noted that there is a distinct tilt towards private schools at the primary grades, the number of students in private unaided schools in the upper primary and secondary grades is lower. This evidently shows that those ‘who were willing and able to pay for their primary education’ end up getting the benefits of hugely subsidised education at government or aided schools (Kingdon, 2017, p. 6). At the same time, private aided schools are ‘not generally attended by the poorest children’ so the State subsidises ‘a sector that can otherwise be self-financed’ (Srivastava, 2010, p. 548). Higher education has been substantially subsidised (Balakrishnan, 2007)—especially in the central universities. This comes at the cost of extremely crucial lower school grades and education imparted at the State universities. India has in fact had a long “legacy of weak schooling for its young, even as it has promoted high-quality government-financed universities” (Sengupta, 2008). It is particularly alarming to see that of the Union budget outlay of R 79685.95 crore set

27 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 out for education for the financial year 2017-2018, onlyR 46356.25 were allocated to the school sector while the rest was directed at revamping higher education in the country (Nanda, 2017). Therefore the 9.9 per cent increase in the budget outlay for the education sector over the previous year does not really make much difference in the learning outcomes discussed earlier. At this point it is vital to note that a study found that the fee levels at private schools depended on the quality of education offered at the government schools in the State. It suggested that if government schools in a State were performing well, poor parents felt little need for private education and private schools in the State were largely then ‘elite’ institutions charging higher fees (Kingdon, 2017, p. 15). On the contrary, if the government schools performed poorly in a State, the demand for private schools would lead to the “higher supply of a lot of even ‘low-fee’ budget private schools” (Kingdon, 2017, p. 15). So that explains the relation between the abysmal learning outcomes traced earlier in this paper with the increasing shift towards private schools across States in India. Once this cycle has set in motion, it is extremely difficult to reverse it. One can then do little if the government cited these unviable conditions to gradually withdraw from the sector. As we will see in the following section that is exactly that followed. Concerns about growing elitism in education The “social base of Indian student population” in higher education within public universities themselves has not been “adequately broadened” (Das, 2007, p. 51). With predominantly market forces at play, one can anticipate genuine concerns surrounding the equitable access to education and scheme of delivery of the ‘service’. With a shift away from government schools, privatisation of higher education, actively contemplating the entry of foreign universities into the country and a general reduction in subsidies and government budgetary allocation towards various levels of education, we are distinctly getting inclined towards seeking ‘excellence’ which is palpably elitist. It is believed that “an effective university system fosters an elitism of merit” which is based on equitable schooling and pyramidal tertiary education (Chaudhuri, 2017, p. 27). In the absence of such a system, and with competitive approach at all entry points in education and fully recoverable costs, a lot of deserving but economically ill- equipped learners would fail to qualify despite all assurances towards financial grants. To make matters worse, the Centre has reduced its share in SSA and MDMS to 60 per cent each while it bore up to 65 per cent of the funding in the former and 75 per cent of the latter scheme (Chaudhuri 2017, p. 25). The new structure also aimed towards a higher GDP which the advocates assumed is going to be the panacea to all ills through the trickle-down effect. However, think tank Social Progress Imperative has clearly indicated that “a strong GDP per capita is not the only gauge for a high standard of living” (Smith, 2016). This fact is highlighted when the Social Progress Report ranks the United States of America at number 16 despite it having a sixth rank in GDP. A strong economy is definitely important. But as Michael Green, Executive Director of the think tank, stated, “countries with similar levels of GDP

Privatising Education in India and the Withdrawing Welfare State / Anuya Warty 28 can have different levels of social progress” (Speiser, 2015). It therefore underlines the fact that ‘basic human needs’ (such as medical care, sanitation, shelter); ‘foundations of wellbeing’ (including education, access to technology and life expectancy) and ‘opportunity’ (focusing on personal rights, freedom of choice and general tolerance) are in fact criteria to measure social progress (Smith, 2016). So increasingly allowing market forces to dictate the education sector would reflect on these indices as well. India already scores poorly on this front and is categorised in the Lower-Middle tier of countries ranking 93 among 128 assessed countries (Kanti, 2017). India ranked 9th only as regards globally ranked universities but scored abysmally low in overall inclusion (Kanti, 2017). In fact Sudhir Sinha—CEO, CSR Inc—stated the same concern cited in this paper that with an increased GDP and economic growth we tend to “wrongly assume that we are progressing socially too” (Kanti, 2017). Prospects and concerns There has been a spike in the number of private schools affiliated to various national and international study boards in the country. There is also an inclination towards tying up with foreign universities. But then there are lurking fears that unrestrained privatisation would lead to cartelisation which would restrict equity by making education commercialised and hence expensive to the point of being beyond the access of common learners. It has been proposed that student loans would help aid such learners through their education and that these loans would then be repaid with their future incomes (Das, 2007, p. 55). But heavy loans, high interest rates and insecurity of jobs at the outset appear to be debt traps (Das, 2007, p. 55) which are deterrents for the learners in higher education. Constitutional provisions and policy decisions cater to the inclusive approach towards education. But when it comes to implementation, the resource crunch leads the government to accept private help or aid which involves certain restraints on the functioning and neutrality of these institutions. Even in higher education in India, learners are heavily dependent on parents to finance their education. Education is also directly associated with employability. With private players coming into the sector, fee structures are increasingly becoming steep. As mentioned earlier, there is a near absence of philanthropy in the sector in recent times. With the increase in commercialisation of education, people involved in a child’s education—parents, teachers, management, the child itself—are now considered ‘stakeholders’ in the whole process. Newer ventures and entrepreneurial skills are only now gradually gaining acceptance as career options among these stakeholders. This has severely restricted the nature of courses which have public acceptance and led to gradual culling of conventional courses which are considered non-profitable in order to make way for more self-financed courses which assure job placements. There has been a move towards flexible and choice- based credit earning system in courses and online courses. These are bound to change the way education sector works in the long run. Expanded role of Information and Communication Technology (ICT), denser Internet network, increased access to affordable mobile telephony now make these online courses and open learning resources a tangible objective to achieve in the near future. Scholastic syllabi and

29 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 pedagogy would also be adapted to these changing requirements. A consistently inclusive approach to education is necessary to ensure that the learning objectives set out by each of these courses are then achieved. Education then can work as the “most important lever for social, economic and political transformation”, “the most potent tool for socioeconomic mobility and a key instrument for building an equitable and just society” (Planning Commission, 2013b, p. 47).

References Annual Status of Education Report (Rural) 2016 provisional. (2017). New Delhi: ASER Centre. Retrieved August 4, 2017, from http://img.asercentre.org/docs/Publications/ASER%20Reports/ASER%202016/ aser_2016.pdf Balakrishnan, P. (2007). Higher education in India: Will ‘six per cent’ Do It?. Economic and Political Weekly, 42(39), 3930-3934. http://www.jstor.org/stable/40276469 Banerji, R. (2017). Teaching “toppers” or learning for all. In Annual status of education report (rural) 2016 Provisional. New Delhi: ASER Centre, 12-15, Retrieved August 4, 2017, from http://img.asercentre.org/ docs/Publications/ASER%20Reports/ASER%202016/aser_2016.pdf Bhuyan, R. (2017, January 27). India’s education spending needs a course on accountability. Live Mint. Retrieved July 27, 2017, from http://www.livemint.com/Education/tj0GgGojuEbwLN1SCc8eSJ/Indias- education-spending-needs-a-course-on-accountability.html Census of India. (2011). Literacy in India. Retrieved July 27, 2017, from http://www.census2011.co.in/ literacy.php Chaudhuri, S. (2017). Divide and educate. Economic and Political Weekly, 52 (24), 25-28. Choudhary, A. (2017, January 27), Why India’s approach to primary education is flawed.The Wire. Retrieved June 24, 2017, from https://thewire.in/103145/india-primary-education-pratham-aser/ Das, S. (2007). The higher education in India and the challenge of globalisation. Social Scientist, 35 (3/4), 47-67. Kanti, A. (2017, June 28). Social progress index: India ranks poor on environment quality, tolerance, inclusion. Business World. Retrieved July 27, 2017, from http://businessworld.in/article/Social- Progress-Index-India-Ranks-Poor-On-Environment-Quality-Tolerance-Inclusion/28-06-2017-121015/ Kashyap, S. (1994). Our Constitution. New Delhi: National Book Trust. Kingdon, G. G. (2017). The private schooling phenomenon in India: A review. Discussion Paper Series by the IZA Institute of Labor Economics, initiated by the Deutsche Post Foundation. Retrieved August 3, 2017, from ftp://ftp.iza.org/dps/dp10612.pdf Mallapur, C. (2016, March 4). Primary education spending declines, So does quality. IndiaSpend. Retrieved August 1, 2017, from http://www.indiaspend.com/cover-story/primary-education-spending-declines- so-does-quality-21723 Nanda, P. (2017, February 2). Union Budget 2017: Education outlay increases 9.9% to Rs79,685.95 crore. Live Mint. Retrieved August 15, 2017, from http://www.livemint.com/Politics/hkjZw2CFY9u4xGHDk6QftN/ Union-budget-2017-Education-outlay-increases-99-to-Rs796.html Planning Commission. (n.d.). First Five Year Plan (1951-1955). Retrieved September 27, 2017, from http:// planningcommission.nic.in/plans/planrel/fiveyr/1st/1stindex.html Planning Commission. (2013a). Twelfth Five Year Plan (2012-2017) Faster, more inclusive and sustainable growth Vol. I. New Delhi: Sage, Planning Commission, Government of India. Planning Commission. (2013b). Twelfth Five Year Plan (2012-2017) Social sector Vol. III. New Delhi: Sage, Planning Commission, Government of India.

Privatising Education in India and the Withdrawing Welfare State / Anuya Warty 30 Ramamurthy, S., & Pandiyan, K. (2017). National policy on education 2016: A comparative critique with NPE 1986. Economic and Political Weekly, 52 (16), 46-53. Saha, D. (2017, April 17). In 5 years, private schools gain 17 million students, government schools lose 13 million. Hindustan Times. Retrieved August 1, 2017, from http://www.hindustantimes.com/ education/in-5-years-private-schools-gain-17-million-students-government-schools-lose-13-million/ story-6FV1ic7RLttmWc0ZkhBQBM.html Sengupta, S. (2008, January 17). Education push yields little for India’s poor. The New York Times. Retrieved July 27, 2017, from http://www.nytimes.com/2008/01/17/world/asia/17india.html Smith, M. N. (2016, June 30). The 19 countries with the highest standard of life. Business Insider. Retrieved July 27, 2017, from http://www.businessinsider.in/The-19-countries-with-the-highest-standard-of-life/ articleshow/52982239.cms Speiser, M. (2015, April 27). The 16 most socially advanced countries in the world. World Economic Forum. Retrieved July 27, 2017, from https://www.weforum.org/agenda/2015/04/the-16-most- socially-advanced-countries-in-the-world/ Srivastava, P. (2010). Public-private partnerships or privatisation? Questioning the state’s role in education in India. Development in Practice, 20(4/5), 540-553. Tiwari, S. (2016, February 25). India today education conclave 2016: Private sector impactful, still the onus lies with the public sector. India Today. Retrieved July 27, 2017 from http://indiatoday.intoday. in/story/india-today-education-conclave-2016-private-sector-impactful-still-the-onus-lies-with-the- public-sector/1/604990.html. Varma, S. (2017, February 6). Share of spend in government expenditure, GDP on education falling for 3 years. The Times of India. Retrieved August 7, 2017 from http://timesofindia.indiatimes.com/india/share- of-spend-in-government-expenditure-gdp-on-education-falling-for-3-years/articleshow/56991039. cms Wadhwa, W. (2017). School matters. In Annual Status of Education Report (Rural) 2016 provisional (2017). New Delhi: ASER Centre. pp. 16-18, Retrieved August 4, 2017, from http://img.asercentre.org/docs/ Publications/ASER%20Reports/ASER%202016/aser_2016.pdf.

31 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Co-existence of Widespread Hunger and Right to Food Impact of Withdrawal of Welfare State on Malnutrition Among Children in Karnataka

Darshana Mitra, Mohammed Afeef, Vinay Sreenivasa, Narasimhappa TV*

The conditions of nutrition among children in Karnataka, despite steady improvements, raise several concerns over the tendency of the State to abdicate its constitutional responsibility of upholding the right to food. This paper will present findings that demonstrate the unsatisfactory standards of implementation by the State government with respect to food distribution schemes and locate the reasons thereof in a trend wherein the State is deliberately minimising its role in welfare. The slow death of the welfare state formally and substantially is manifested in the increasing role of private entities in food distribution, reluctance to grant minimum wages, convenient short cuts in distributing nutrients and government apathy to the working conditions of workers responsible for food distribution.

Keywords: right to food, Karnataka, death of welfare state, food distribution, government apathy

elfare state is loosely understood as a principle of politics and governance where the state ensures that the basic needs of all its citizens are met with, Wirrespective of their status, through regulation and positive actions. The aims of the welfare state may include equality, access to food, health and education and employment for all. There is little agreement on a precise definition of welfare state (Singh & Bhusal, 2014, p.111). In India, while the term welfare state is not mentioned in the Constitution, its blueprint is evident in the document, through the Directive Principles of State Policy in Part IV of the Constitution. Nehru stated that our national aim that of a welfare state (Agrawal & Aggarwal, 1989, p.50).

* Darshana Mitra ([email protected] )is an advocate and researcher with the Alternative Law Forum. Her areas of interest include gender, caste, child rights and immigration. Mohammed Afeef –([email protected]), is an advocate and researcher with the Alternative Law Forum. His areas of interest include gender, Anti-discrimination law and immigration. Vinay K. Sreenivasa ([email protected]), is an advocate and researcher with the Alternative Law Forum. His areas of interests include Urban Transport, Urban Poverty, Informal Sector and Urban Governance. Narasimhappa T.V([email protected]) is a researcher with the Alternative Law Forum. His focus is on child development, specific to nutrition with the ‘Right to Food’ and ‘Right to Education’. He also works along with Anganwadis, the urban homeless shelter in Bangalore and access to entitlements.

Co-existence of Widespread Hunger and Right to Food / Mitra, Afeef, Sreenivasa, Narasimhappa TV 32 Article 39(e) and (f), in Part IV of Constitution of India, asserts the commitment of the Indian state to the health of its citizens: (e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; (f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. The Indian government, with support from United Nations Children’s Fund started the Integrated Child Development Services (ICDS) programme, with 33 projects in 1975, in Tamil Nadu, to address the cyclical problems of malnutrition, impaired development in children and infant mortality. ICDS was subsequently expanded much further and has become one of the flagship programmes of the government to address the nutritional needs to children. The objectives of the ICDS are as follows :

• “Extending Solidarity to farmers costs Pricol Workers Rs.65 lakhs in penalty” (Thozhilalar Koodam, 2017b). • To improve the nutritional and health status of children below the age of six years and that of pregnant and lactating mothers as well as of adolescent girls; • To lay the foundation for proper psychological, physical and social development of the child; • To reduce the incidence of mortality, morbidity, malnutrition and school dropout; • To achieve effective co-ordination of policy and implementation amongst the various departments to promote child development; and • To enhance the capability of the mother to look after the normal health and nutritional needs of the child through proper nutrition and health education (Government of India, Planning Commission, 2011, p.2). However, many decades into its existence, the ICDS scheme, as is evident from the data cited in Table 1, is far from achieving an eradication of malnutrition.

33 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Table 1 Comparison of Nutrition Indicators in Karnataka

Children under Children who Children under Children under Women age 5 who are are wasted (per 5 who are un- 5 who are 15-49 years stunted (per cent) derweight (per anaemic (per who are anae- cent) cent) cent) mic (per cent) NFHS-3 43.7 17.6 37.6 83.9 51.2 (2005-06) NFHS-4 36.2 26.1 35.2 57.2 44.8 (2015-16)

Source: Government of India, Ministry of Health and Family Welfare. (2006). Key indicators for Karnataka from NFHS-3. Retrieved August 21, 2017, from http://rchiips.org/NFHS/pdf/Karnataka.pdf Government of India, Ministry of Health and Family Welfare. (2016a). National family health survey-4 State fact sheet Karnataka. Retrieved August 21, 2017, from http://rchiips.org/NFHS/pdf/NFHS4/KA_FactSheet. pdf Through this paper we seek to understand why he ICDS has not achieved the results it should have. The right to food case and ICDS In April 2001, the Delhi branch of the Human Rights Lawyers Network, a national organisation of human rights lawyers, filed a Writ Petition in the Supreme Court, on behalf of the People’s Union for Civil Liberties (PUCL), a Human rights organisation. This public interest litigation (PIL) was then popularly referred to as the Right to Food case. The case originated from news reports about food rotting in the godowns of the Food Corporation of India, while drought-affected parts of India were experiencing starvation and hunger. The case was soon, however, extended to larger issues of malnutrition, hunger and the various schemes meant to address it. All the State governments were also then listed as respondents in the matter. (Human Rights Law Network, 2009). During the course of the hearing, the Supreme Court passed several orders related to the ICDS scheme and thus increasing its reach and impact. Some of the important orders are as below – 1. Order dated April 29, 2004 directed the Central government to file an affidavit stating the period within which the number of anganwadis (courtyard shelter- a type of rural mother and child care centre) will be increased to 14 lakh. 2. Order dated October 07, 2004 directed the government to open anganwadis in all SC/ST habitations/hamlets across the country and that contractors shall not be used for supply of nutrition in anganwadis and that preferably ICDS funds should be spent, as far as possible, by making use of village communities, self-help groups (SHGs) and mahila mandals (women’s group). 3. Notices of contempt were issued to chief secretaries of several states on July 25, 2007, asking them reasons for non-compliance of earlier orders on ICDS. Additionally, when it was brought to the court’s notice that in several states, adolescent

Co-existence of Widespread Hunger and Right to Food / Mitra, Afeef, Sreenivasa, Narasimhappa TV 34 girls were completely left out of the ambit of the scheme, even though they were beneficiaries, the court passed orders to rectify the same.1 Some of the other significant parts of the court’s order included the following: 1) It sought to ensure that the government of India does not revise its norms for opening anganwadis upwards under any circumstances. 2) It sought to create a new entitlement for anganwadis in slums and rural areas, called anganwadis on demand; wherein an anganwadi would be set-up where there were at least 40 children under six, within three months of the demand being made. 3) That all the benefits of the anganwadi system was not only to be provided to children under the age of six, but also to be extended to all pregnant women, lactating mothers and adolescent girls. It is important to note that the Supreme Court did not develop a path-breaking jurisprudence on fundamental rights in this case; it merely sought the implementation of existing schemes, and reiterated the constitutional imperatives of the welfare of children. However, as we shall see in the subsequent sections, several infractions of the Supreme Court’s orders have been recorded, and the promise of the right to food case remain far from fulfilled Status of implementation of ICDS in Karnataka The data collected has been primarily through official communications† made by the advisor and assistant advisors to the relevant government department in Karnataka, which is the Department of Women, to the Supreme Court Commissioner, to the Department of Women and Child Development, Government of Karnataka (DWCD). Data collected through these correspondences, media and government reports have been relied upon to illustrate the status of implementation of the schemes.

1 Some of the official communication are as follows A. Letters dated 17/02/2017 to the Principal Secretary, Women and Child Welfare Department asking for information on actions taken to ensure that: a. The 29 lakh (out of 68 lakh) children who are out of the ICDS programme in Karnataka, are being brought into the programme fold b. Anganwadi centres have been opened in those slums and tribal hamlets which do not have one B. Letter dated 26/12/2016 which lists down 20 letters which have been sent to the department, for which there has been no response. The letters were pertaining to data on malnutrition, steps taken to ensure the implementation of the recommendations of the Justice N.K. Patil report, issues with supply of food in various anganwadis etc. C. Reports filed after Inspectinganganwadis in the following areas, to check if the recommendations of the Justice N.K. Patil report are being implemented and to examine the status of implementation of the scheme: a. DJ Halli (Bangalore City) on 18/11/2016 and 19/11/2016 4) b. Tribal hamlets in Mysore District and Chamarajanagar District on 20/10/2106 and 22/120/2016 c. Bidar District on 24/11/2016 and 26/11/2016

35 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 The Justice N.K. Patil Committee on malnutrition in Karnataka On 22 May 2011, TV9, a Kannada news channel, reported the death of children due to malnutrition in Markaldinni village, Deodurg Taluk, Raichur District of Karnataka. After which, the president of Vimochana Sangha, a non-governmental organisation based in Athani, Belgaum sent a letter to the Chief Justice of the High Court of Karnataka, bringing his attention to the issue of malnutrition in Karnataka through this report. The letter was admitted as a PIL by the High Court of Karnataka (B.L. Patil v. State of Karnataka, 2016). The High Court then directed the Karnataka State Legal Services Authority (KSLSA) to conduct an investigation into the issue and submit a report. KSLSA conducted an investigation and submitted a report before the High Court. After reviewing the report, the High Court constituted a nine members committee under the chairpersonship of Justice N.K. Patil, a judge of the Karnataka High Court, to look into malnutrition among children in Karnataka and submit an action plan to counter the same. The Justice N.K. Patil Committee subsequently submitted a report titled Prevention of Malnutrition of Children in the State of Karnataka to the High Court on August 23, 2012. The report consisted of 112 wide-ranging recommendations to the State government, to fight malnutrition under the following broad categories – • Identification, medical assessment and treatment of children covered under ICDS. • Nature of food provided, procurement and distribution of the same. • Awareness through information, education and communication about malnutrition. • Provision of basic infrastructure to anganwadis. • Qualifications/eligibilities, duties, roles and responsibilities of anganwadi workers, helpers and accredited social health activists. On January 29, 2013, the principal secretary, DWCD filed an affidavit with the High Court stating that the State government shall implement all 112 recommendations of the committee. It also shared with the court that a special task force had been constituted for the monitoring and implementation of the recommendations of the High Court committee. While the State government did indeed start work, the recommendations are far from being implemented. Justice Patil has been quoted (Kanathandal, 2017) as saying that the government has failed to effectively implement the schemes started to check malnutrition and that they are yet to implement some of the recommendations of the N.K. Patil Committee. A letter written by the advisor and assistant advisor to the government on the status of these recommendations has not even been replied to. The lack of commitment to implement the recommendations of a committee headed by a sitting High Court judge, after promising to do so in court, only shows the lackadaisical attitude the government has towards curbing malnutrition. The situation has been aggravated by increasing privatisation of many of the services provided by the State.

Co-existence of Widespread Hunger and Right to Food / Mitra, Afeef, Sreenivasa, Narasimhappa TV 36 Privatisation of the scheme The bouquet of State-supported schemes that form the ICDS are aimed at tackling malnutrition comprehensively. However, privatisation at various levels has diluted the impact of these schemes. This is coupled with steadily decreasing budgetary allocation for ICDS, creating a further impetus towards privatisation. In this section we will see how this is taking place. The Supreme Court has repeatedly emphasised the importance of local communities in urban and rural areas in the functioning of the ICDS. Moreover, the Supreme Court has also highlighted the importance of locally-sourced produce to be fed to children. The focus, therefore, is on local conditions being fortified to serve the needs of children. However, while most people view ICDS as a crucial first step towards the elimination of malnutrition in the country, private companies view it as a new venue for profiteering. Contractors have vied for sizeable contracts to procure and supply food under the supplementary nutritional programme. Over time, contractors managed to nudge out smaller SHGs and corner most of the procurement and supply contracts for ICDS, which in turn inevitably lead to widespread corruption. This was documented in the Fifth Report of Commissioners (2004), by Dr. N.C. Saxena and Dr. N.R. Sankaran, Supreme Court-appointed commissioners in the Right to Food case. The Report highlighted the problems of having state-level contractors for the provision of supplementary nutrition. It was observed across several States such as Assam, Madhya Pradesh and Orissa, that the use of state-level contractors led to widespread corruption. The Report recommended further decentralisation by making village committees buy produce and prepare meals for children. On the basis of this Report, the Supreme Court, in its order dated October 7, 2004, stated that “contractors shall not be used for supply of nutrition in Anganwadis and preferably ICDS funds shall be spent by making use of village communities, self-help groups and Mahila Mandals for buying of grains and preparation of meals” (People’s Union for Civil Liberties v. Union of India & Others, 2004). However, despite the Supreme Court’s directions, private firms continued to penetrate the ICDS. In 2008, the Indian Biscuit Manufacturer’s Association (IBMA) lobbied with the Ministry of Women and Child Welfare to replace hot-cooked meals with biscuits in the mid-day meal schemes. The IBMA wrote to all members of Parliament, extolling pseudo-scientific reasons for the superiority of biscuits over hot-cooked meals. This proposal was however shot down by the Supreme Court appointed commissioners. Karnataka is no stranger to the dangers of subcontracting. However, strangely enough, despite Supreme Court orders based on observable instances of State-level contractors failing, the State government is insistent on entering into public-private partnerships with large subcontractors to supply food to children in anganwadis. The cases of Christy Friedgram and Spirulina are examples of how private firms continue to seek entry into ICDS.

37 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 In 2009, the Karnataka government entered into an agreement with Christy Friedgram. According to their website, Christy Friedgram is “one among the pioneer food processing companies in India to implement the Integrated Child Development Scheme (ICDS) [sic] scheme” (“Who We Are,” n.d.). Based in Tamil Nadu, the company manufactures processed food supplements and fortified foods such as edible groundnut cake flour, processed cereal-based complementary food, and others, aimed at infants and young children. The April 2009 agreement between the Karnataka Government and Christy Friedgram was for the setting up of Mahila Supplementary Nutrition Production and Training Centres, which were to produce, package and supply supplementary nutritional food in the form of fortified food toanganwadis in 27 districts in Bangalore. Christy Friedgram was to train the staff to run the centres independently by 2012. However, investigations revealed that even after three years of setting up of the training centres, Christy Friedgram continued to exercise control over their functioning, and the women were employees on the roll of the company. Moreover, even the food items being supplied, which included powdered upma, powdered rice and powdered sweet rice, were being manufactured in Christy Friedgram’s own production units and supplied to the centres for packaging. In other words, the women were effectively being employed by Christy Friedgram to only package and supply the company’s own proprietary food to anganwadis. The food being thus supplied was also found to be of substandard quantity. Multiple reports were made of children falling sick, or refusing to eat the supplement provided to them (Bageshree, 2012). Therefore, while Christy Friedgram had been contracted for capacity-building and not direct supply of supplementary nutrition to anganwadis, they were effectively functioning as contractors, in violation of the directives of the Supreme Court. Post investigation, Karnataka government vide a government order cancelled Christy’s contract in 2012, and the Lokayukta (appointed by the people) police launched an investigation into possible corruption by bureaucrats, in the form of kickbacks received to grant the contract to Christy. Subsequently, the Karnataka High Court quashed the First Information Report (“Corruption case,” 2015). Consequently, Christy Friedgram filed a claim for `574 crore in damages for breach of contract against the Karnataka Government (“Christy Friedgram claims,” 2015). Spirulina2 Christy Friedgram episode was not the last time that the Karnataka government found itself entering into questionable public-private partnerships, putting the health of children on the line. In 2016, it was found that private companies such as Biocon, JSW Foundation and Scania were supplying Spirulina‡ supplements to undernourished and malnourished children in anganwadis in Bangalore. In fact, the government had previously stopped supplying Spirulina to anganwadis on the advice of the Justice N.K. Patil Committee.

2 Spirulina represents a biomass of cyanobacteria (blue-green algae) that can be consumed by humans and other animals. Dried spirulina contains five per cent water, 24 per cent carbohydrates, eight per cent fat, and about 60 per cent protein. However, Spirulina may have adverse interactions when taken with prescription drugs, particularly those affecting the immune system and blood clotting.

Co-existence of Widespread Hunger and Right to Food / Mitra, Afeef, Sreenivasa, Narasimhappa TV 38 However, the DWCD set aside R3.6 crore for the supply of two grams of Spirulina to 25,000 children in Karnataka for a period of 180 days. This decision was defended by the DWCD on the basis that a pilot programme in Bellary district, conducted in association with the JSW Foundation had decreased malnutrition levels from 33 per cent to 8 per cent. However, this claim was not backed up with any data. Researchers and community health activists alleged that private companies such as Biocon were influencing government decision-making and pushing for the introduction of Spirulina in the Supplementary Nutrition Scheme, because of their own vested interests in Spirulina production (Karpagam & Shatrugna, 2016). Increasing pressure from civil society organisations finally led to the State government abandoning this scheme. Quick-fix solutions such as biscuits and Spirulina supplements not only expose the State’s increasing reliance on the private sector for essential functions, but also are illustrative of its failure to address the socio-economic factors that contribute to malnutrition. Moreover, private interests can determine the nature of supplementary nutrition in more ways than one. For example, there has been a long-standing controversy in Karnataka over the provision of eggs to children in anganwadis. Eggs are widely held to be a cheap and easily available source of protein, and therefore ideal for supplementary nutrition. However, Karnataka is one of the many States in India where, despite its obvious nutritional benefits, and repeated demands from civil society groups, eggs are not served in midday meals. Several Hindu groups opposed the introduction of eggs, saying that this would cause division in the society. This stand was also supported by one of the largest suppliers of midday meals in Karnataka, Akshaya Patra (inexhaustible vessel, is an object from Hindu mythology), which is an initiative of International Society for Krishna Consciousness (ISKCON). Akshaya Patra has consistently opposed the introduction of eggs in midday meals. In 2013, a Parliamentary Committee on the Welfare of Scheduled Castes and Scheduled Tribes called for examination of allegations against Akshaya Patra and ISKCON, including their refusal to serve eggs at midday meals. When contacted, ISKCON responded saying that those who wanted eggs were free to get them from elsewhere. In Andhra Pradesh, there have been multiple reports of Akshaya Patra refusing to serve eggs at midday meals, and serving groundnut candy instead. Since February 2017, however, eggs are being served by the Karnataka State government in anganwadis across Karnataka The examples of Christy Friedgram, Biocon and Akshaya Patra are indicative of how private interests, even if not strictly motivated by profit, can distort the outcome of a supplementary nutrition programme. Moreover, one underlying objective of the ICDS is to provide employment to local residents and use locally sourced food for children, which is subverted through the entry of private players. We will now turn our attention to other issues related to its implementation. Lack of coverage Out of the 68 lakh children in Karnataka between the age 0 -6 (as per the census report of 2011), as per a circular (dated 01/10/2013, No MaMaaE: ICD: CNP18:12:13-14) issued by the Director, DWCD, Government of Karnataka, only 39 lakh children were

39 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 covered in the ICDS scheme. The circular then outlined various steps which the deputy directors and child development officers were to take to bring the children not covered into the scheme. The advisor then wrote a letter to the director, DWCD, asking for the reports on what steps have been taken to ensure that the “out of anganwadis” children were brought in to ICDS fold. There was no response to this report. A letter was again written in 2017, there was no response again. The website of the DWCD claims that 58.26 lakh children are currently enrolled in the ICDS. However, these figures do not match with evidence from the ground as seen from the reports of the advisor, Karnataka. The third report of the advisor states that out of 68, 55,801 children below the age of six years, only 37, 74,267 children are enrolled in anganwadis, i.e., 55 per cent. As per the information furnished by DWCD the government of India sanctioned 63377 anganwadi centres for Karnataka. Out of the above 57344 (90 per cent) anganwadi centres are located in rural areas, 3510 (6 per cent) in tribal area and 2523 (4 per cent) are in urban areas (Core Committe, 2012, p.37). As per the aforesaid report, out of the 63377 anganwadis in Karnataka: only 34957 anganwadis have their own buildings (55.2 per cent); Only 28474 anganwadis have kitchens (44.9 per cent); Only 26218 anganwadis have water facility (41.4 per cent); Only 2407 anganwadis have electricity (3.8 per cent). On July 23, 2011, the DWCD decided to open anganwadi centres in all tribal hamlets. However, five years later, in November of 2016, this was still not done. The report shows that there are several areas which are yet to have even one anganwadi. In H.D.Kote Taluk of Mysore district, e.g., out of 116 hamlets, only 51 hamlets have anganwadi centres. In Hunsur taluk of the same strict, out of 52 hamlets, only 36 hamlets have anganwadis (as on November 02, 2016). In violation of the directions of the Hon’ble Supreme Court vide its order dated October 7, 2004 mandating that all SC/ST habitations should have an anganwadi, none of the four ST hamlets in Chamarajnagar district, as per the report, namely Kaniyanapura colony (120 households), Kunagalli colony (64 families), Mogavinahalli colony (35 households) and Deshipura colony (18 households), are provided with anganwadis. Thus, what one can see is that neither are all eligible children covered, nor are all areas covered. Though, on paper as of 2017, 58 lakh of the 68 lakh children are covered the reports show otherwise Issues observed at the anganwadis While anganwadis are supposed to be nodal centres to provide nutrition to infants, pregnant women and lactating mothers, in terms of implementation several problems have not yet been addressed. According to the aforesaid reports by the advisor and assistant advisor, the observations made on anganwadis in the cities, in tribal hamlets and other rural areas were that– 1. The supply of nutritious food is erratic and many times the quality of food supplied is sub-standard. As a result, children are underfed or fed with low quality food, with nutritious food not being distributed in some cases for two months (Dasanapura Anganwadi Kendra, Hunsur Taluk, Mysore district between 31/08/2016 –

Co-existence of Widespread Hunger and Right to Food / Mitra, Afeef, Sreenivasa, Narasimhappa TV 40 20/10/2016). Similar is the case with take home ration that is to be provided for children between six months – three years and pregnant and lactating mothers and adolescent girls. 2. Toilets, cooking gas, water, fans, electricity, kerosene and mats are not provided in a large number of anganwadis. Many anganwadis are in huts and some even in closed toilets. 3. The health department according to the Justice N.K. Patil Committee recommendations was to conduct health camps every two months. The department did this for a year or so. 4. Supervisors who were to make monthly visits did not do so. The Child Protection and Development Officer are to visitanganwadis once in 3 months, but rarely do so. 5. The number of children in the anganwadis is significantly lesser than those on the attendance rolls. 6. Anganwadi teachers are often absent even when they had not taken leave. The reports from the visit clearly establish that a provision of basic supplies (food and infrastructure) is absent, and that the regulatory mechanism of the DWCD is in disarray. Over 20 official communications from the State advisor and the assistant advisor to principal secretary of the concerned department in this regard were not answered. Reduction of ICDS budget nationally The Central government has the power to allocate budgets for the ICDS scheme. As per the information furnished by DWCD, 63377 anganwadi centres are sanctioned by the Government of India for Karnataka State. While the implementation of the existing scheme itself is a challenge as shown above, what compounds the problem is that the Central government has effectively started reducing the amount of money being spent on ICDS. Ganotra (2017) points out how the ICDS Budget utilisation has actually decreased from R15,483.77 crore in 2015–16 to R4,375.6 crore in 2016–17. It is ironic that the allocation of R15,245.19 crore in 2017–18 was referred to as an increase of R1,245 crore, even though it is less than the amount spent on ICDS in 2015–16. However, the surest sign of withdrawal of the Central government’s commitment to ICDS is the fact that the total allocation for the scheme has been R78,203 crore as against R1,23,580 crore proposed during the Twelfth Five Year Plan. What is also to be noted is the fact that the Central government which would earlier fund 90 per cent of the funds required for the scheme for each State (requiring that the States fund only 10 per cent) will now fund only 60 per cent of the scheme. This is evident from the communication sent out from the under secretary, Ministry of Women and Child Development, Government of India on 29/12/2015 (Letter no. –CD-II-14/162015-CD-II) (Government of India. Ministry of Women and Child Development. Under Secretary, 2016) to the chief controller of accounts of the same ministry. With reduction in the amount spent and universalisation not achieved, and workers of the scheme not being paid fair wages, ICDS is set to be further crippled.

41 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Thus, we are now at a place where on one hand, numerous Supreme Court and High Court orders, recommendations of committees on ICDS are not being implemented, and on the other, governments of the day are reducing the budget for scheme. The ICDS scheme has the potential to address the problem of child malnutrition. It is, nonetheless, almost being deliberately under-utilised on the one hand and misused on the other, either for private profit or philanthropic reputation enhancement of corporates. Other equally important factors like design flaws, identitarian bias in the locations where anganwadis or public distribution shops are established and several other reasons that leads to exclusion of Dalits, Adivasis, Muslims and women must also be acknowledged. The focus on State withdrawal in no way undermines the significance of these problems. The critique this paper sets out to present is directed at the sheer lack of willingness on part of the Central and State government to remedy the situation. This, we see, as a very fundamental problem becoming the new norm, among other problems in implementing the schemes. Thus it is clear that it is not possible to deal with malnutrition in Isolation. As stated in the Justice N.K. Patil report, poverty is also a key factor contributing to malnutrition. It is to the aspect of poverty and wages that we now turn our attention. Wages and Malnutrition It is widely accepted that there is a direct link between wages, poverty and nutrition levels. In fact, as discussed earlier, the Justice N.K. Patil report on malnutrition clearly states that poverty is one of the main reasons for malnutrition. A working paper (Mukherji, Rajaraman & Swaminathan, 2010) on the link between inequality, economic development and malnutrition in India shows that people with a low body mass index have a low wealth index. Speaking about the research study conducted by the Public Health Foundation of India and Oxford University, one of the authors of the study stated clearly that poorer households had the greatest risk of malnutrition (Ghosh, 2015). The Centre for Workers Management in association with the Garment and Textile Workers Union, a Karnataka based garment workers’ union, undertook wages and expenditure survey of garment workers, in the years 2012, 2013 and 2015. The survey report (Centre for Workers Management, 2016) throws up serious concerns regarding the expenditure of the garment workers, on food and provisions. Firstly, the data from the report shows that the amount spent on provisions per person in their families was an average of R834 per month per person for an average family size of 4.5, which works out to a food basket consumption of R27.89 per day (30 days in a month). Another observation of concern is as follows: It is of interest that family expenditure on provisions (cereals, greens, meat and fish, milk) remained nearly constant over the four year period. This meant that in real terms, the worker in 2015 spent on the average around 20% less per month on commodities than in 2012-13. The share of spending on commodities of total expenditure also declined from 41per cent in 2012 to 36-38% for the subsequent years. One explanation could be that the sample in 2012 was drawn largely from

Co-existence of Widespread Hunger and Right to Food / Mitra, Afeef, Sreenivasa, Narasimhappa TV 42 the Mysore Road area which is one of the oldest garment industry location, and the workers in the sample would therefore have less rural support to subsidise their expenses. This would still not explain fully the substantial decline in real terms on expenditure on basic provisions. This is a matter of serious concern. (Centre for Workers Management, 2016, p.20) It is grave that between 2012 to 2015, the expenditure on provisions as a total of the expenses per month actually decreased, as evidenced by the figures below: Table 2 Expenses on Provisions in a Garment Worker’s Household Expense in 2012 2013 2015 Provisions (month) 3855 3858 3755 (per cent total) 41 per cent 36 per cent 38 per cent Education (month) 436 695 601 (per cent total) 5 per cent 6 per cent 6 per cent Health (month) 476 428 311 (per cent total) 5 per cent 4 per cent 3 per cent

Source: Centre for Workers Management & Garment and Textile Workers Union. (2016). Wage and work intensity: Study of the garment industry in Greater Bangalore. Retrieved September 24, 2017, from http:// sanhati.com/wp-content/uploads/2016/05/Wage-and-Work-Intensity-in-Garment-Sector-in-Bangalore- and-Karnataka.pdf The report further concludes that the curtailing of expenditure on basic commodities may be attributed to low wage levels, and at this level, consumption of commodities is sensitive to wage increase. While there is no mention of nutrition in the report, it is safe to assume that a decrease in the expenditure on food and other provisions will lead to a decrease in nutrition of the workers and their children. It is in this context that an analysis of the constitutional mandate regarding wages is essential. Constitutional mandate on minimum wages and living wages The impact of low wages on malnutrition has already been discussed. While the welfare state often implies provision of shelter, food, water and other essentials, the provision of a decent income is often forgotten. The Report on the Working of the Minimum Wages Act, 1948, (2002) states in no uncertain terms India’s commitment to a sound wage policy: India as a welfare state is committed to secure social and economic justice, inter alia, for its working population. One of the basic steps in this direction is the formulation of sound wage policy primarily for the amelioration of the conditions of the working class. In the Indian context, evolving of such a wage policy assumed greater importance as a majority of the workforce is employed in the unorganised sector and is vulnerable to exploitation by their employers. (Government of India, Director General, Labour Bureau, 2005)

43 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Thus, while speaking of the withdrawal of the welfare state in the context of nutrition, it is important to analyse the role of the state in fixing wages. Article 21 of the Constitution envisages a right to life of dignity and the right to livelihood for all persons, the realisation of which is possible only through the assurance of wages commensurate with such life. Minimum wage is regulated under the provisions of the Minimum Wages Act, 1948. The Act is a beneficial piece of social legislation, which protects the day-to-day living conditions of the workers employed at the lowest level of wages by fixing minimum wages that the employers must pay. In Workmen Represented by Secretary v. Management of Reptakos Brett, (1991) it was laid down that minimum wage should take into account: minimum food requirement based on net intake calories, basic clothing requirements, house rent, fuel, lighting, children’s education, medical requirement, minimum recreation including festivals/ceremonies and provision for old age, marriages, etc. While the statute provides for the provision of minimum wages, one must not lose sight of the Directive Principles of State Policy in Part IV of the Constitution which are to be fundamental in the governance of the country provides for a living wage. Article 43 provides that the State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities. This provision is also required to be read with the other principles laid down under this section, which the State is duty bound to apply in its functioning. The role of the state in fixing minimum wages The essential aspect of the concept of minimum wages is that it is a dynamic. The minimum wage consists of two components – the basic wage and the cost of living allowances, commonly known as the variable dearness allowance. The Act mandates that the basic wage is reviewed and revised at such intervals, not exceeding five years. It would be pertinent to note that the Supreme Court held in People’s Union for Democratic Rights v Union of India and Others, (1982) (also commonly known as the Asiad Games Case) that compelling a person to work for less than minimum wages would amount to forced labour prohibited under Article 23 of the Constitution of India. The Government of Karnataka has a shocking record in the revision of minimum wages, often not revising wages for over ten years at a stretch even though it is in violation of the Minimum Wages Act of 1948 that mandates the minimum wages should be revised every five years. While automobile engineering has had only three revisions in 37 years, from 1979 to 2009, printing press has had four revisions in 49 years and hostels have had one revision in 15 years; the story of others are no different. Minimum wages in the tailoring industry, of which garment workers are a part, have been revised only every seven to nine years (Centre for Workers’ Management, 2016). While on one hand the State has failed to revise minimum wages in a timely manner, any attempt at revision has been opposed by the private sector. Between July-August, 2015, the Department of Labour, Government of Karnataka issued notifications

Co-existence of Widespread Hunger and Right to Food / Mitra, Afeef, Sreenivasa, Narasimhappa TV 44 revising the wages for seven industries, being foundry, hostels, oil mills, printing press, automobile engineering (including servicing and repairing), ceramics, stoneware and potteries works and veneer. The notifications revised the basic wages payable to these industries from April 1, 2015; though the revision ought to have taken placed latest by March 1, 2014. The notification of 2015 was challenged by various establishments as being excessive and damaging to the industry. In the course of the hearings before the High Court, it turned out that the then Minister for Labour, had not signed the order revising the wages, and hence the Karnataka High Court struck down these notifications. The High Court, which directed an enquiry to be conducted in regard to the lapse by Chief Secretary in not obtaining the relevant signatures, observed that “(o)n account of the glaring lapse on the part of the officials and officers concerned in the Labour Department, interests of thousands of sweated employees is getting affected” (as cited in Prasad, 2016). Subsequent notifications revising the minimum wages were issued by the State government on December 27, 2016, and were made applicable only from January 1, 2017, and not retrospectively. Had the minimum wages been revised on 01.03.2014 as the law mandated, a person earning the highest in the automobile engineering sector, a fast-growing industry, would have earned R12,376 x 34 (months). Instead he has been paid merely R6,523.20 x 34 (months) for the said period, resulting in a loss of R1,98,995.20 for each worker. This loss would have been significantly lesser had the notification not been set aside by the Karnataka High Court for the failure of the approval of the labour minister; the loss to the worker would have been for a period of 13 months, being an amount of R51,334.40. Similarly, in the case of garment workers, a 2009 revision of the minimum wage from R2,644.20 to R3,302 was challenged by apparel producers. Subsequently, the Labour Department revoked the notification citing ‘a clerical mistake’. However, due to the intervention of the Garment and Textile Workers Union the Karnataka High Court struck down the revocation. (Mohan, 2017). In a nutshell, as the study conducted by Centre for Workers Management has revealed, the workers’ minimum wages are far below the living wage necessary to support the nutritional needs of their families. This has continued despite the courts orders. Conclusion and Discussion Despite the Supreme Court’s repeated orders it is evident that in the absence of palliative measures that address the structural reasons behind malnutrition the problem cannot be resolved. These structural issues include contractualisation and privatisation of essential government services and the denial of living wages to the vast majority of the country, and issues within the ICDS further compound these challenges. In addition, the fact that courts have had to issue repeated contempt notices to government agencies for non-implementation and violation of its orders on malnutrition, only establishes how the State continues to drag its feet over addressing malnutrition. This paper aimed at throwing open some of these debates on the role of wages and contractualisation in the fight against malnutrition. In light of this, it is important to view proposals such as direct cash transfers in lieu of food, and the new proposed

45 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 labour code, with a critical eye, to understand their potential impact on malnutrition in the country. Discussion The definition by Briggs (1961) comes closest to the Indian imagination of the welfare state: A welfare state is a state in which organised power is deliberately used (through politics and administration) in an effort to modify the play of market forces in at least three directions – first, by guaranteeing individuals and families a minimum income irrespective of the market value of their work or their property; second, by narrowing the extent of insecurity by enabling individuals and families to meet certain ‘social contingencies’ (for example, sickness, old age and unemployment) which lead otherwise to individual and family crises; and third, by ensuring that all citizens without distinction of status or class are offered the best standards available in relation to certain agreed range of social services. (Briggs, 1961, p. 228) While the definition of a welfare state does not necessarily preclude the participation of private players, it is our argument that the increasing privatisation of essential services is having an adverse impact on the nutritional status of children in Karnataka. This paper enquired into the withdrawal of the welfare state by looking at malnutrition among children in Karnataka. The paper has analysed the status of the ICDS, the Central government’s flagship scheme aimed at providing healthcare, nutrition and education to children. Additionally, the paper also looked at the link between wages and nutrition and the state’s role in fixing wages. The fundamental right to food, like all other such rights, is couched in a network of supporting rights and infrastructure which creates a holistic environment for malnutrition to be defeated. The efforts of the State to address malnutrition betray a lack of understanding and commitment to this holistic approach, which is jeopardising the life and future of children in this country.

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Co-existence of Widespread Hunger and Right to Food / Mitra, Afeef, Sreenivasa, Narasimhappa TV 48 Urban Informality: Symptomatic of an End of the Welfare State?

Akriti Bhatia*

In this paper, I attempt to understand the relation between receding welfare state and its relationship with growing informality across the globe. Is it a mere co-incidence that the shrinking of the welfare state overlaps with the expanding informal economy? After a brief discussion on the categories of the State and informality in general, the paper focuses on changing nature of the State and its bearing, specifically on the response and production/ reproduction of urban informality. How is the welfare state understood through categories like developmentalism and populism, and how is its demise being discussed specifically with respect to labour (more specifically, informal labour relations), unionisation and the idea of social justice, is investigated. The heterogeneity, peculiarities and diverse understandings of the State would further complicate this puzzle while dealing with informality (through field work and other case studies). State’s larger character and role is analysed through a classical political economy approach, where its relation to capital and its accumulation is a constant backdrop.

Keywords: welfare state, urban informality, informal labour, developmentalism, populism, state, regulation, demise, rollback, informalization, flexiblization, privatization.

ne must examine the changes that the nature of State has undergone: from paternalistic, inward-looking to export-oriented, free-market driven; from Osocialist welfare-oriented to adorning piecemeal superficial reformism, and finally to rolling back, retreating and predatory moving in sync with global capitalist order operating within the logic of accumulation. How each of these manifestations impacted the production, reproduction and response to informal production and labour relations specifically, and labour and economic equality in general, are important areas of inquiry. Through fieldwork in Delhi on informal labour in planned spaces, I evaluate the everyday nature of the State, and the complex relationship between the State bodies and informality. Here the discussion is on State as predatory, a shadow one or even in the form of a protective judiciary becomes worthwhile. At an even more interesting level,

*Akriti Bhatia ([email protected]) holds her Bachelors in Economics from the Sri Ram College of Commerce, Delhi University and Masters in Sociology from Jawaharlal Nehru University. She is currently affiliated with the Delhi School of Economics as a Doctoral Student in Sociology. She has worked with the Bangladesh High Commission in New Delhi for about 2 years on Regional Economic Integration and has undertaken projects with organisations like the World Bank, International Committee of the Red Cross, TISS, Mumbai and with Members of Parliament. She is also the founding member of Jan Ki Baat, one of the largest digital media platforms on people’s issues.

49 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 the State itself could be understood as having formal and informal manifestations and modalities (e.g. the difference between Delhi Metro Rail Corporation Ltd (DMRC) and Municipal Corporation of Delhi (MCD) in its operations and perception). Additionally, my field-work among Ola and Uber drivers reflect the informalisation within the so called formal sector that reflects the impact of global financial capitalism implicitly facilitated by the State. This is through newer norms and tolerance towards flexiblisation of labour processes and employment. Urban informality: A background As per various national and international reports the informal sector in India is around 93 per cent; around 78 per cent excluding the agricultural sector. An important question in this regard is why is this sector is bulging, or appearing to bulge. Despite the extremely diverse and complex understanding of informality, one agreed parameter to look at it is absence of State protection, although even this conclusion could be problematised. Another issue with definitional aspects of looking at informal economy as a sector is that it fails to capture continuities and overlaps with the so-called formal/organised sector, and more importantly, between work and livelihoods. The idea of a welfare state was to prevent, control and eliminate these insecurities pertaining to housing, food, shelter, income, transport, health and education for the most vulnerable. Job insecurity producing informality (as well as a result of it) attacks all these aspects. Informality and state regulation According to Ananya Roy (2009), the State is a deeply informalised entity, one that actively utilises informality as an instrument of both accumulation and authority. She asks “why some forms of informality are criminalized and thus rendered illegal while others enjoy state sanction or are even practices of the state” (p.83). On the idea of the informal sector viewed as unregulated sector, Roy maintains that informality is a deregulated rather than an unregulated system and it could be thought of as a mode of regulation, distinct from planning failures or the absence of the State. This aspect was visible during my field-work; informal workers and dwellers in the so called informal sector undergo greater regulation and legal threats (of eviction and others). Populism, developmentalism, tokenism According to Harvey, centrality has to be given to the understanding of the processes of production and distribution; contrary to liberal formulations that lay emphasis on the market. Socialist formulations talk of social justice attained through undermining the capitalist mode of production. Therefore, he contends that this shift from efficiency to equity-based notions of justice has a huge bearing on the theorisation of city itself (Harvey, 2009). However, the idea of the welfare state, according to Harvey, does not lead to genuine equity or social justice. It simply reinforces the status quo, helps maintain or capture power, or obfuscate by enticing the poor by giving them false aspirations, such that they do not go against the state (Harvey, 2009, 2012). This is clearly seen in the Indian context. The Bharatiya Janata Party (BJP- Indian People’s Party)-led National Democratic Alliance government’s politics on the

Urban Informality: Symptomatic of an End of the Welfare State? / Akriti Bhatia 50 development agenda, the Prime Minister’s pro-poor language or the populist propagandist move of demonetisation impacting in landslide victories in Uttar Pradesh and Municipal Corporation of Delhi (MCD) elections in 2017 may be understood as a case in point. The disparity between the actual situation and the publicist speeches is clear with current rates of unemployment, minimalist public expenditure on health, education and social security. In other words, the government posits itself as a welfare state (showing allegiance with the poor and the masses) even though the actions and delivery contradicts it. Roy (2004) explains a similar matrix as choreography of urban developmentalism (accumulation through property investment) and populism (accumulation in the “informal sector”) where they both need to be seen as a construction of the bourgeois city, and of a territorialised uncertainty that deepens the state control over the informal city. (p. 154) The relation between informality and State gets clearer in this sense, where the earlier definition of absence of State or the idea of shadow State gets challenged as we see a direct and active involvement of the State in perpetuating informality. Mezzadri reaffirms this idea when she shows, through her fieldwork in Indian garment industry, that the State through its formalist policies created fragmented and informal labour and production conditions, prone to greater exploitation, often operating on identity lines – of caste, religion, gender etc. She very clearly emphasises on the active role of State – not in providing welfare functions, but openly favouring interests of the employers, the capitalists and capital in general (Mezzadri, 2010). She writes, “(w)hile production regimes have been projected into the global arena, labour regimes have remained apparently anchored to regulatory mechanisms provided by local social structures, and gone through increasing processes of informalisation” (Messadri, 2010, p. 1). While discussing global developmentalism, we cannot merely discuss the end of welfare state; it is closely linked to the nature of nation-state itself. Policies of The World Bank, International Monetary Fund and World Trade Organization like those of the Washington Consensus, with their developmentalist agendas, as studied by many, also tend to side with the interests of global capitalism, weakening the welfare state further. Looking at contradictions of the modern capitalist state, one could ask whether a welfare state in itself is a myth. While the labour reforms in the Eleventh Five Year Plan tended to focus on ‘faster and inclusive growth’, it specifically advocated flexibility in hiring and firing practices, laying off and the relaxation of the Contract Labour Act. At the same time, the creation of the National Commission for Enterprises in the Unorganised Sector (NCEUS) created a new policy agenda on the means to tackle the issue of increasing insecurity faced by India’s informal labour. (Kannan, 2007 as cited in Mezzadri, 2010, p.25) According to Perlman’s ‘myth of marginality’, the idea of marginality of the urban poor and the informal labour is a misnomer. The informal labour contributes significantly, and is tied to the mainstream economy, albeit in highly asymmetrical terms. This marginality

51 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 could be related to class bias, how this framework isolated different sections of the working class and reinforced the belief that only populist policies can integrate these marginals (Perlman, 1976). Partha Chatterjee’s understanding of the political society is very useful to understand welfare state, populism, developmentalism and of course the so-called “informal sector”. He notes: This reformist intervention takes place not exclusively within the legal- administrative apparatus of the state. Nor does it take place in the nonpolitical zone of civil society. Rather, it works in that overlap between the extensive governmental functions of development and welfare and the workings of community institutions that I have elsewhere called political society. This is often a zone of paralegal practices, opposed to the civic norms of proper citizenship. Yet there are attempts here to devise new, and often contextual and transitory, norms of fairness and justice in making available the welfare and developmental functions of government to large sections of poor and underprivileged people. (Chatterjee, 2004, p.128) While discussing contemporary forms of neoliberalism with respect to homelessness, Swapna Banerjee-Guha talks about the role of State in evictions and dispossession of the urban poor. (Banerjee-Guha, 2002, 2010). Benjamin (2010) notes, Basic necessities for the poor, such as, shelter, transport, water, and sanitation, employment opportunities, etc. which since long have been a structural part of a welfare state, get de-prioritized in the urban planning agenda, skillfully armed with postmodern methodologies like ‘participatory planning’ or ‘public forum’ and terms like ‘visibility’ or ‘transparency’ as key instruments of capture and penetration. (Banerjee, 2010, 114) Urban informality and role of state: reflections from the field Through my year long field study/interviews with vendors, cycle and battery rickshaw drivers and State officials in planned spaces like metro stations, I got a preview of how boundary order gets established, legitimised, blurred, challenged and redefined with respect to urban informality, producing and reproducing exclusion of the urban poor. This ethnography helps navigate between what is private and what is public; between work/labour and living; and finally between the formal and informal. The vendors undergo exploitation owing to deliberate ambiguity created and maintained by the State. Whether it is about issuing licenses, supporting documents, permits, or declaring specific pieces of land as vending zones or non-vending zones, this deliberate ambiguity allows for further rent seeking, bribing, commissioning and exploitation to take place. Even the marking of land as belonging to a particular entity is thoughtfully kept unfixed, such that legality could be traded and illegality be taken advantage of. Also, the market/trader associations are able to manipulate decisions in their favour, allying with the local State (against the hawkers) by offering money to NDMC and filing false cases against the hawkers’ association members. Yet, the

Urban Informality: Symptomatic of an End of the Welfare State? / Akriti Bhatia 52 fundamental right 19(g)1 (to practice any profession anywhere to earn a livelihood) and Supreme Court’s judgments, passing the Street Vendors’ Act and other soft documents including the Union membership card are major sources of security for vendors. For example, on being asked about the legal status of a stationary seller’s vending stall at the Vishwavidyalay metro station, the vendor immediately produced the ID card issued by Hawker’s Suraksha Association (HSA). He claimed that this document strengthens their legitimacy as HSA has fought for it through legal battles over a period time. Similarly, he and other vendors at the station and in Connaught place constantly show the torn slips of various dates filed together – of challans, permits, and fines- as their sources of state’s recognition. The contention here is that even though they may be unauthorised, they nevertheless get recognised the moment a slip is cut in their name. Encounters with DMRC, MCD, NDMC, Delhi Police, NDMC Police, the judiciary, town vending committee, Delhi Development Authority (DDA) and so on, reveal that the State is necessarily non-monolithic. Clearly, the relationship of informal enterprises and labour with these authorities are significantly different from each other. On the one hand, the MCD and police function as something of a predatory state (The “predatory state” constantly demands ever increasing bribes and threatens destruction of livelihoods of all those who cannot meet its exacting licensing criteria), but they also behave like a shadow state, acquiring a local character, and itself having a flimsy hold on legality. Barbara Harriss-White, for instance, lists the (local) state as a crucial ‘social structure of accumulation’ for the Indian informal economy. In this case, the state is pooled together with social institutions such as gender, caste, class, religion and space in determining the formation and reproduction of specific patterns of accumulation and labour. (The state Harriss-White refers to is a ‘shadow state’. (as cited in Mezzadari 2010) The DMRC, on the other hand, has a sanctioned corporatised character based on public- private partnership (PPP) models and foreign infrastructure investment, automatically affirming itself as a formalist wing of the state. The vendors who had DMRC-issued tenders to set-up kiosks and sell wares were very vocal about their absolutely formal- legal status vis-à-vis the vendors sitting on the pavements who were mischief makers but also prime livelihood sources for the local State. In this sense, it is these vulnerable segments which are providing welfare to the State and not the other way round. This is in return for an extremely temporary assurance of not being forcefully evicted. Another issue is with reference to the contested private piece of land at the Vishwavidyalaya metro station premises. It was sold by DMRC to the Parsvnath group in 2006. The university filed a case, demanding a hostel to be built there, and against the DDA’s order to alter the land use pattern from public to semi-public, since the company wanted to establish a fancy residential complex. The Parsvnath group finally won the case in 2017 (India’s Real Estate Forum). This according to my respondents would have a negative impact on the vendors and could be a greater reason of their eviction, for the purpose of beautification and urban aesthetics. The overt turning back

53 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 of the welfare state is quite evident in this case, when the State corporation is financing itself through privatisation, by compromising the welfare of the students (by not building hostels) and of the vendors and labourers (by posing further threat to their livelihoods). Also, levels of precarity increase when we talk about migrants. Mezzadri (2010) uses the term “migrantization of informality” (p.15) that allows greater flexibility and exploitation, further enabling greater accumulation and informalization. I now take the case of battery rickshaws in Delhi, by looking at the legal journey of this unregulated enterprise. Battery rickshaws have been used as vote-banks, subjected to similar populist politics, when the Prime Minister distributed thousands of e-rickshaws in Noida before UP Elections 2017 (later asking the drivers to pay for them post- elections; and were found to be defective) (Jha, 2016). Similarly, the Chief Minister of Delhi distributed these rickshaws in Delhi just before MCD Elections 2017 (“Kejriwal bats,” 2017). These efforts might have brought temporary sources of livelihoods to people. It, however, ended up further dwindling their incomes due to over-supply; and further distorting the licencing regime of these vehicles. According to a study conducted by Simon Harding and Seram Rojesh: The ability of the informal or unorganised sector to roll out this mode of para-transit across the city is in stark contrast to the Delhi government’s attempts to popularize the battery rickshaw through the so called “organized” private sector under government supervision. … For the media, battery rickshaws are “lawless and unruly”, an “epidemic” which is “constricting and endangering the flow of normal traffic. (2014, p.44) The Ministry of Road Transport and Highways (MoRTH) finally declared battery rickshaws illegal in April 2014 and the Delhi government began a crackdown (Harding & Rojesh, 2014). The socio-economic analysis of these battery rickshaw pullers show that they are largely rural migrants to Delhi from Bihar and eastern UP; majority of whom lack local driving licenses and bank accounts. Address proofs are also impossible to obtain as most live in informal housing. This again highlights the deep intersection between informality of work and living. On the idea of regulation, the probable reasons why lack of regulation could be helpful is that renting a battery rickshaw is an attractive employment option since it does not require documentation and is based on trust relations. Ownership too is easier since it is cheaper, doesn’t require operating permits and credit availability from retailers too is easier. Sood argues that the 1960 Cycle Rickshaw Bylaws Act that used to regulate the sector, is a marvel of over regulation, which “creates a series of nearly insurmountable hurdles for the cycle rickshaw driver and nearly unconstrained rent seeking opportunities for the enforcing agencies” (cited in Harding & Rojesh, 2014, p.45). These vehicles however increasingly become susceptible to theft due to absence of identifiability, official indifference and unavailability of safe parking options. Thus, the most popular safety procedure is for the driver to sleep with the vehicle at the roadside. This reflects how informality of work could accentuate informality of living and vice versa, and how the State and law exacerbates the situation. They explain how a single

Urban Informality: Symptomatic of an End of the Welfare State? / Akriti Bhatia 54 battery rickshaw could be sold, stolen and resold multiple times, with the owner having to pay the loan all by himself (Harding and Rojesh, 2014). Thus, the vulnerability of the workers increases in this regard. As Anjaria (2006) notes in the case of hawkers in Mumbai, these arrangements, in the form of hafta (protection money) payments, shield the hawkers from the anti-hawking policies created by higher levels of the State, and this becomes the mechanism through which the hawkers attempt to gain recognition from the State. The main source of anxiety amongst both groups is that their activities are subject to a regulatory regime that is predatory. The predatory State constantly demands ever increasing bribes and threatens destruction of livelihoods of all those who cannot meet its exacting licensing criteria. The shifting role of regulation, along with the shifting role of the local authorities, who at once become partners in crime with the informals, and at another instance become the representatives of the State to evict these informals, highlight the ad-hocism and informalised operations of the state itself (Roy, 2009). Coming to my very different case study of Ola and Uber drivers, it reflects the overall trends in privatisation, flexiblisation and exploitation of labour. Thousands of Uber and Ola drivers had been demanding better benefits, accident insurance, relaxation in working hours and higher pay. How did things get to this point, considering how benign and wonderful the ‘uberification’ of the economy seemed to many barely a year ago? (Bhatia, 2017). From overpromising on part of these companies of earning fortunes, to making the driver-entrepreneurs get into debt-traps, these companies make sure that these labourers are mere freelancers who get no security or even assurance of work. Going the techno route, all they are driven towards is driving for more hours, albeit day and night in order to earn more. In case of device-crash, accident, car breakdown and so on, they are all by themselves, serving the consumers (who is the king) (Bhatia 2017), who could anytime file a complaint by a simple click on the app. This could result in penalties or even disable the driver’s device. They also run in fear and uncertainty due to speculations that the company itself might withdraw operations overnight when bigger businesses like the Reliance enter the market. While these app-based driver aggregator services did generate gainful employment, and showed cases of upwards socio-economic mobility for many, the absence of protection and security is a major cause of concern. A number of driver respondents complained about the mobile app as a digital-boss and the absence of any real physical boss to whom they could approach in case of a problem. Many wanted the State to intervene in rationing ride fares, and help them get accident insurance and other benefits. The demand to the State for fair rationing also came from other urban transport stakeholders like kaali-peelis (black and yellow taxis), auto rickshaws, battery rickshaws and even cycle rickshaws (themselves pitting against each other as competitors) that have been suffering a shrinkage in earnings due to Ola/Ubers’ schemes like R 39 per ride for short distances (up to eight kilometres). State and Central government’s ambiguity in responding to licensing of these companies, and unchecked rolling out of commercial

55 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 vehicles (with yellow number plates) by these companies clearly shows the allegiances of the State authorities. Cab-aggregating platforms are engaged in what scholars Frank Pasquale and Siva Vaidhyanathan call “corporate nullification”—a practice where corporations, which are beneficiaries of the ‘gig economy’, wilfully negate State laws and regulations or interpret the laws on the basis of some unfounded idea of public good, only to serve their narrow self-interests. The trick, or ‘innovation’ in gig economy lingo that corporates employ to bypass regulation is to generate rapid and widespread support for a service that often flouts existing rules and regulations. Corporations flouting existing rules or coercing the government to amend them to suit their needs is not new. However, what is new is this veneer of ‘innovation’ that shrouds these discussions. (Mazumdar, 2017) This case study indicates the overall trends in the global capitalist markets of how the labourers need to be treated, with ad-hocism, flexiblisation, need-based, demand- driven easy hiring/firing or downsizing at their own behest. After looking at the self- employed (vendors/rickshaw pullers) to corporate sector (Ola/Uber) one finds similar processes of informalisation and outright demise of the welfare state, even within the “public sector” (known to be closest to what is “formal”). Even the mere silence of the State, allows for actively promoting the interests of the capital. Roll-back of the welfare state and effects on labour regimes Across the globe, the trend has been to curb collective bargaining, cut funds on social security like pensions, repression of unions, downsizing jobs and making it more precarious, merciless reforms, open backing of big businesses, austerity measures in the name of recession (crisis of capitalism) and so on. We find larger process of privatisation of social security, contractualisation and casualisation of labour even of those employed in formal enterprises. State’s active policies and practices in favour of capital, circumventing labour laws, decentralising labour disciplines and externalising labour costs has become a common practice. (Mezzadri, 2010, p.21). Also, “the predominance of informal employment patterns guarantees the lack of implementation of national labour legislation, providing capital with a sort of labour-laws-free environment” (Mezzadri, 2010, p.21). Let me highlight some key points that we encounter as a result of the “end” of the welfare state and its apathy for labour along with contemporary examples (particularly from Labour edition of the newsletter ‘The Life of Labour’ (by The Wire) along with snippets from my primary research. Some of these contemporary cases show how labour welfare is seeing its worse times subjected to the state’s apathy. Flexiblisation: This points to increased ease in hiring, firing and creation of demand- driven, self-employed entities that are subjected to maximum extraction of their labour power. Taking the example of Uber drivers again, in a recent controversy, New York State judge finds Uber an ‘employer’. The message here was, “if you’re going to control the workers to maximise your profits off their labor, you owe them their rights and benefits under the law” (Rubinston, 2017).

Urban Informality: Symptomatic of an End of the Welfare State? / Akriti Bhatia 56 Invisibility: Informal labour is, not recognised more often than it is not, and is invisiblised and devalued. Existing laws and legal concepts in India are unable to, or refuse to deal with the specific nature of domestic workers, their workplaces, and their employment relations. The non-recognition of the home as a work place is identified as a critical factor connected to the invisibility and devaluation of care and unpaid domestic work as well as much of women’s work in India. (Neetha & Palriwala, 2011, p.98). The World Bank report uses NSSO data on female work that, unfortunately, classifies most of domestic work as ‘non-work’ (Thozhilalar Koodam, 2017a). Safety increasingly becoming a non-issue (for employers and State): Whether it is sanitation workers in Delhi unclogging sewer lines left bereft of safety gears, their health conditions deteriorating (Pillai, 2017); or increasing incidence of accidents in factories (as citied in The Life of Labour, 2017), the violations of safety norms has become commonplace. Work among women vendors residing in Shakurpur basti (a slum inhabited by poor people), in temporary shacks highlight how both their working and living conditions make them prone to sexual insecurity and harassment. Unchecked privatisation: Disinvestment, public-private partnerships, foreign direct investment and privatisation in general have increased across the globe, the brunt of which is being born by the many. For example, privatisation of solid waste disposal in Chennai allegedly increased scams and workers suffer untenable delays in wage payments as a result of which around 300 workers participated in protest demonstrations (“Chennai: Conservancy workers strike”, 2017). Open violence and repression of labour, especially against unions and dissent: According to International Trade Union Confederation’s (ITUC) Global Rights Index, India is one of the countries with the rating of 5, i.e., one the worst countries in the world to work in where violence and repression of workers is on the rise (International Trade Union Confederation, June 2017). The findings include major violation of labour laws, denial of workers’ right to strike and collective bargaining, constraints on freedom of speech and expression, increased workers’ exposure to physical violence and threats, including murders of unionists. Workers in Gurgaon-Manesar-Bawal belt have been suffering violent reprisals for unionising for years wherein the bouncers viciously beat up the union leader. (Thozhilalar Koodam, 2017c). Dare you show dissent? The following headlines are startling enough to show how unionising, or even a peaceful protest is something that the State wont accept: • “Extending Solidarity to farmers costs Pricol Workers Rs.65 lakhs in penalty” (Thozhilalar Koodam, 2017b). • “2000 striking miners fired in Indonesia’s copper and gold mine” (“Freeport fires 2,000 workers”, 2017). • “80 Mexican farm workers go missing after reporting abuse” (Coalition of Immokalee Workers, 2017). Global austerity measures: End of welfare state: In the name of economic reasons to

57 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 deal with recessions, States across the globe (both developed and developing) are undertaking spending cuts. For instance, the new French president is trying to push through legislation which will make it easier for companies to fire workers for ‘economic reasons’ and put a cap on compensation (Farand, 2017). Another direct example is the removal of cess collection for the welfare of workers in six sectors - salt, mica, coal, limestone, dolomite and iron ore. For salt workers, this means a lack of access to welfare schemes such as water supply, provision of water coolers, storage tanks, construction of labour rest sheds, creches and toilets, housing, and supplying safety kits containing gloves, caps and goggles. Even educational aid and scholarships have now been made inaccessible to these workers (Aditi, 2017). Moreover, Prime Minister’s flagship scheme of ‘Skill India’ has seen a rollback under which the government abandoned its goal to train 50 crore people by 2022, and no new target has been set. The ambitious target had prompted the setting up of the National Skill Development Corporation and a Skill Development Fund with a mandate to turn this into a ‘for profit’ sector (Nanda, 2017). Wage Code and Factories (Amendment), is an active state policy in a similar direction. This increases overtime limits and ostensibly allows workers to work more and earn more (“Wage Code,” 2017).This approach masks the fact that the amendment is more a tool of coercion; workers usually aren’t in a position to refuse the demands of threatening employers. The amendment tacitly seeks to provide a legal cover for employers to squeeze more hours of work out of their labourers (“Wage Code,” 2017). Technocracy and automation: Automation, artificial intelligence, and robotics are buzzwords in the tech and start-up world apart. More than the techies (IT workers), factory workers will be hit disproportionately (‘Factory workers need to worry’, 2017). Textile major Raymond is planning to cut about 10,000 jobs in its manufacturing centres in the next three years, replacing them with robots and technology. The company employs nearly 30,000 staff in its 16 manufacturing plants in the country, which means it would offload a third of its workers in just three years. (‘Raymond to Replace’, 2016). Conclusion The receding of the welfare state is a complex process that has been encountered at a global level. Also, it has a direct bearing on the production and reproduction of urban informality and labour exploitation, as argued in this paper. The relationship between State (de)regulation and informality, also brings to the fore, intertwining categories of urban developmentalism and populism that define and get defined by the nature of the (welfare) state. This is necessary in order to get political support from the poor, and at the same time, siding with the middle and upper class, especially with capital in general. The past work in these areas has not adequately traced the relationship between welfare, state and informality; it has merely investigated these categories individually. My fieldwork highlights the interplay and interaction with the State, State bodies and functionaries (everyday local State) with that of the informal economy. It illustrated how the State has a tendency to maintain ambiguity with regard to ownership, documentation and land tenure, which maximises the possibility of rent seeking and extraction. The work is also able to navigate from the local micro-processes capturing

Urban Informality: Symptomatic of an End of the Welfare State? / Akriti Bhatia 58 important nuances, to the global, documenting the larger structures, processes and relationships operating at the macro level. The roll back of the welfare state has affected the labour regime – leading to flexibilization, invisiblization, lack of safety, unchecked privatization, open violence and labour repression, denial of right to organise and unionise, austerity measures by the State, and impact of technology and automation that cannot be overlooked. The only ray of hope in this context is class-consciousness, constant struggle, fearless movements, radical claims to space, solidarity and careful use of participative and democratised new age media.

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59 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Farand, C. (2017, June 28). Emmanuel Macron kicks off controversial attempt to reform France’s labour laws. Independent. Retrieved July 12, 2017, from http://www.independent.co.uk/news/world/ europe/emmanuel-macron-france-president-launches-controversial-labour-market-reforms-labour- law-a7813171.html

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61 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Planning for Welfare in Post-Liberalisation India The Challenges of Building Human Capital

Saumya Tewari*

This article is a commentary on linkages between poverty, undernourishment, education and skill attainment. India has a young population at a median age of 27.6 years with a literacy levels and health indicators that are poorer than countries with similar demographics. A large part of the population in the working-age remain unskilled and excluded from job opportunities. As a result, the largest anti-poverty scheme, the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) was implemented for the benefit of the poor and unskilled workforce in rural India. While it is an important and timely intervention by the Indian State to get millions of people out of extreme poverty and deprivation, MGNREGA does not address the question of the quality of human capital for India. This paper attempts to highlight how India’s poor quality of human capital interferes with agency as citizens are reduced to beneficiaries under welfare schemes. Key words: human capital, MGNREGA, skill development, agency, poverty

ack of access to education and healthcare, and failure in the delivery of public services has led to poor quality of human capital. This paper examines how this Lhas led to the implementation of poverty alleviation programmes- most notably, the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA). This is the largest anti-poverty scheme in the world and has over 100 million active workers as of 2017. These workers are unskilled manual labourers from rural India and they work to build local public assets in villages. Further, the paper explores the political narratives around poverty alleviation policies of the government. The main contention is that the political narrative fails to highlight that MGNREGA is a transition scheme ---or ideally, should be--- to benefit the cohorts that are ‘unskillable’ now. With these policies, the State only looks at the citizens (poor) as beneficiaries rather than as agents (Heller, 1999, p. 2) and political narratives want to continue that relationship. And this is where capability development (Sen, 1999, p. 87-110) interventions get side-lined. The paper is a critique on how in the post-liberalisation period, when there was transition from socialist planning to a developmental model or State-directed development (Kohli, 2004, p. 288), little reform or innovation was brought in the policy for capability enhancement to build human capital to improve competitiveness for the citizens in the job markets.

*Saumya Tewari ([email protected]) is a PhD student (2013-18) at the Centre for Public Policy, Habitat and Human Development, School of Development Studies, Tata Institute of Social Sciences. Her PhD research topic is on the Planning Commission to NITI Aayog reforms and other areas of interest include comparative politics, gender and governance transparency and accountability.

The Challenges of Building Human Capital / Saumya Tewari 62 Overall questions that this paper examines are: Do the poor citizens become mere beneficiaries and the State a patron under welfare programmes; especially under job guarantee schemes such as MGNREGA? Does the government cloak its failure to facilitate human development when selling schemes such as employment guarantee and skill development programmes to its voters? What is the impact of poverty and lack of access to public health and education on skill development? How does it hamper utilisation of the demographic dividend in the economy? The analysis relies on secondary data sources, census reports and estimates by the erstwhile Planning Commission for poverty and access to basic health and education. What is human capital While capital refers to financial assets or physical mode of production, human capital is the workforce and is generated by education and skilling of the population for the advancement of the economy (Becker, 1994). Social capital determines the manner in which people interact in their activities to create value in the institutions (Coleman, 1988). Building human capital is as important as building public infrastructure for India for higher economic growth. The demand in the service sector proved that. The biggest advantage in its development trajectory for a country like India is the number of working hands, or what is called the demographic dividend. India is the second most populated country in the world after China. India also has a younger population; compared to China at 37, and even its counterpart, Brazil at 31 years. India’s median age is 27.6 years according to demographics estimates from 2016 (Central Intelligence Agency, 2016). However, according to latest World Bank Data, literacy rate in India stands at 74 per cent as compared to China (96 per cent) and Brazil (91 per cent). Low literacy rates are the crudest indicators of what Kohli (2010) calls “the poor quality of the human capital in India” (p. 500). For building human capital, the first step is to ensure basic education and health among the population. Building human capital after liberalisation More than two decades after the liberalisation reforms, a fourth of India’s rural population lived below the statistical poverty line and in urban India, the proportion was one fifth, according to the 2013 estimates by the Tendulkar methodology using mixed reference period (MRP). In 1993-94, shortly after the liberalisation reforms, the proportion of population below the poverty line was 50 per cent in rural India and 45 per cent overall. Over 328 million people in rural India were estimated to be living below the poverty line (BPL) in the 1990s. They were dependent on the State for access to basic amenities and public healthcare and education. Poverty played a major role in lack of skill development and poor quality of human capital in India. The “unskillable” people could not compete in the service job markets that emerged after the liberalisation reforms. Late industrialisation as Chibber (2004, p.13) calls it can also be attributed to low-skilled labour.

63 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 The Eighth Five Year Plan (1992-97), launched after liberalisation, envisaged human development as its main goal. This was also in sync with the development debates in academic circles in the West where the Human Development Indexing was being devised. This measured three aspects for the physical quality of life- health through life expectancy, education through years of schooling and per capita income. Two important social welfare schemes for primary education and basic healthcare touch the lives of rural India. The Sarva Shiksha Abhiyan (SSA-Education for All Movement) focuses on elementary education access for every child below 14 years of age under right to education implemented in 2005. Over a decade of implementation, these reforms have been able to achieve access to schooling for children. This scheme has been successful in reporting a 100 per cent gross enrolment ratio (GER) at primary school level. But at the secondary level of schooling, this ratio drops to 78 per cent. Further, quality assessments by civil society bodies and reports from industry point at poor quality of education and underachievement in terms of development of basic reading and mathematical skills among children (ASER, 2017). Longitudinal studies on childhood poverty in India have shown two trends regarding non-completion of secondary education by children from poor families. First, that participation in paid work, poor grades at the primary level and low self-efficacy are factors that keep children from completing secondary education (Mukherjee, Singh, 2015, p.23). Second, child under-nutrition, specially stunting, is irreversible beyond the first 1000 days since conception. This affects learning and education outcomes among the affected children. It is only reversible if checked within these 1000 days. Further studies found that improved healthcare and reduction in parental poverty even at later childhood stages can help improve cognition in children; but this does not imply that early undernourishment can be ignored (Crookston, Forste, McClellan, Georgiadis, & Heaton, 2014). The Integrated Child Development Services (ICDS) aims to improve nutrition levels for mothers and new-born children. This scheme has been operational since 1975. It was introduced to combat malnourishment, and has been able to achieve some success in bringing down undernourishment in children. But according to global hunger estimates by Food and Agriculture Organization (FAO) in 2015, India still had about 195 million undernourished people- the highest in the world. While, interventions in China have been reduced, since 1990s, the undernourished population, India has not been able to reduce hunger. The Global Hunger Index released in 2017 still reported inadequate coverage of the child nutrition programme under ICDS. Malnourishment leads to poor physical development, is no revelation. Hunger and poverty at early childhood also impair cognitive development and it becomes difficult for individuals to acquire skills later in life (von Grebmer et al., 2017). Early childhood poverty and work as child labour, exclusion from schooling also affects socialisation of an individual and that has an impact on learning skills too. Skilling an undernourished population therefore, is the real policy challenge for improving the quality of human capital. The problem is exacerbated by the post liberalisation policy framework.

The Challenges of Building Human Capital / Saumya Tewari 64 The poor in India have been at large excluded from economic growth due to lack of access to basic public services. It affected skillability of the population. With lack of basic capabilities and poverty, India’s working-age population, as per the 2011 census data, comprised of 197 million illiterates. Out of these, 160 million were in rural areas. Policy focus on strengthening the unskilled workforce Opening of the markets came to India as a result of a crisis in balance of payments; hence her bargaining power was considerably diminished. The government had to bring quick reforms and open up the economy (partly) as a response to external requirements (Kaviraj, 2010, p. 238). This was to overcome the crisis rather than as a result of the demands of the internal job markets. Opening up of markets, demanded skilled work-force, and the extremely poor rural population, dependent on agricultural labour as the main source of income could not be part of the growth that took place. The challenge before the planners in 1990s was to tackle the above mentioned anomaly and ensure redistribution that the State was committed to (Kohli, 2012). Consequently, the institution and practice of planning was kept intact as the polity wanted to continue projecting its socialist face to the voters (Kohli, 2009, pp 190-191). According to Baghchi, planning for welfare in this period was still a centralised process and path dependant (2007, p. 92-100). The Central government continued to have larger fiscal and administrative powers over welfare policies and local levels of governments responsible for implementation merely follow directives as they had little autonomy and capacity. Redistribution was the main reason to retain planning as a tool for economic development after liberalisation reforms of 1990s in India (Ahluwalia, 2008). However, at the ground level, with the opening up of the markets in early 1990s, the citizens had to compete for jobs. But, only those with skills to meet the market demands found employment- mostly in the IT sector (Sinha, 2009). The erstwhile Planning Commission’s data records also show a high growth for the service sector; industry sector has lagged behind. The service sector’s share in the gross domestic product (GDP) of India was about 60 per cent in 2014 whereas that of the industrial sector was 26 per cent. Agriculture’s share was 14 per cent, according to the government’s economic estimates (Government of India, Planning Commission, 2014). Main occupation of the work force in rural India is casual farm labouring as per the census 2011 reports. Growth of physical capital and industry was also slow and agricultural sector kept fluctuating. The high growth of the service industry, especially in the IT sector, employed the urban middle-class youth. Economic activity and employment from the IT sector and manufacturing between 1998 and 2005 was concentrated in seven cities - Mumbai, Delhi, Bangalore, Kolkata, Chennai, Hyderabad, and Ahmedabad (World Bank Brief, 2015). Quality of human capital has been poor and is a major concern in the planning and policy circle (Kohli, 2010 p. 500). When the size of India’s formally skilled workforce is 2 per cent, other Asian countries such as Japan or South Korea have skill workers at 80 and 96 per cent, respectively (Government of India, Ministry of Finance, p. 21). It is this lop sided growth that led to the failure of the ‘India Shining’ campaign of the then incumbent National Democratic Alliance government. They hinted at the high

65 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 growth rate achieved, but the estimated absolute number of people living under the poverty line had increased from 403 million in 1993-95 to 407 million in 2004-05. There were cohorts in rural India that were completely illiterate or “unskillable” now and could only work as manual labourers. It is due to this reality that the slogan failed to get the incumbent Bharatiya Janata Party (BJP- Indian People’s Party ) led NDA government a majority in the Lok Sabha. It is precisely due to this that National Rural Employment Guarantee Scheme (NREGA) was launched by the Congress led United Progressive Alliance (UPA) government in 2004. India’s poor and unskilled population, excluded from the benefits of high growth had to be brought under schemes such as MGNREGA and later in 2011, National Rural Livelihoods Mission (NRLM). To put it from the aspect of policy or planning, it was also the need of the hour for the government to device a measure to employ the poor and unskilled people. National Rural Employment Guarantee Scheme MGNREGA, formerly NREGA, was the most important poverty alleviation intervention that the government of India introduced. It was launched initially as a scheme, while the National Rural Employment Guarantee Bill 2004 was tabled in the Parliament and NREGA came into force in February 2006. It was important to enforce the right to work as a legal right to make employment guarantee an obligation on the part of the State and to grant a bargaining power to the labourers (Dreze, 2010, pp. 510-518). This has been a big respite for the unskilled rural populations. It provides 100 days of labouring jobs locally to the people. It has been an important measure to fix minimum wages for the labourers and curb forced migration to cities in search for work. The government has also ensured transparency in the implementation of the scheme. Social audits are held at panchayat (village council in India) levels regarding the implementation of schemes and grievance redressing for the labourers. Banking has been made accessible to MGNREGA workers and their wages are directly transferred to their accounts, minimising the patronage from middlemen. While MGNREGA is an important State welfare intervention for poverty alleviation, it does not improve the quality of human capital in India. On the contrary it diverts attention from the need to seek long term solutions. Schemes such as MGNREGA are popularised as policy solution for poverty. What this discourse conceals or perhaps fails to communicate to the citizens is that they have been excluded from benefits of betterment of quality of their labour. The scheme is not an end but a means to support the extremely poor cohorts, who cannot be skilled or trained at all. It merely helps them to temporarily pull out of extreme poverty and vulnerability. MGNREGA does not address the question of improving the quality of human capital. It has not been successful in providing technical support to the work done. There has also been a lack of cost and benefit analysis of the assets created under MGNREGA (Khera, 2016). Another aspect of MGNREGA’s popularity has been the provision of employment to women. MGNREGA has benefitted millions of poor families in the villages of India.

The Challenges of Building Human Capital / Saumya Tewari 66 As of 2016-17, 56 per cent of the workers workers under the programme are women. The scheme has been reasonably successful in empowering women from rural India. While this is an important achievement two aspects need a careful evaluation. MGNREGA provides manual labour jobs to the unskilled people. The fact that proportionally more women are employed under MGNREGA implies that women form a bigger part of unskilled labour force. Also, it is convenient to employ women locally for work in villages, because women don’t usually migrate for jobs, rather, migrate with family or when they are married as data from the National Sample Survey Organisation and Census of India show. Availability of jobs for women under MGNREGA might exclude young girls from schooling and training by families since a job at the village will always be a guarantee for them. Further, social norms, illegal contractors, lack of child care facilities and very physically demanding work in certain areas and delays in payments have been barriers to women’s participation in MGNREGA (Khera & Nayak, 2009, pp. 49-50). So, while the government deserves praise for making jobs inclusive for women in rural India, this success, again, should not become propaganda for the assurance of unskilled jobs for women in villages. After the present National Democratic Alliance government came to power in 2014, on February 17, 2015 during the pre-budget motion of thanks, the PM in his address to the Lok Sabha (the lower house of the parliament of India) mocked the opposition for introducing the scheme because of failure in poverty eradication and for its failure in building sustainable assets. The government could not scrap the scheme because it supports millions of poor people. In the subsequent budget in 2016 it also pumped more funds and publicised it as an achievement of their government to have allocated the biggest amount of funds towards MGNREGA ever. National Skill Development Mission More recently, the National Skill Development Mission was launched in 2015. A new ministry was created under this mission to organise vocational programmes to skill the youth to fit the industry requirements. This mission provides vocational training to young people to meet the industry demands. Industry estimates and the Skill Development Ministry’s National Skill development Council’s reports (Government of India. Ministry of Skill Development and Entrepreneurship, 2015) have estimated on the highest skill demand for sectors such as construction, automobiles and textiles till 2022. Another important sector with a high increase in demand for workers is the unorganised (domestic or household) service workers. There are various short to medium term courses that the trainees can choose and some of the programmes don’t require formal schooling or more than the eighth grade, which is also the highest level of schooling under the Right to Education that guarantees free education till fourteen years of age. Human capital and agency in the political narrative The most important aspect about the quality of human capital in India is that the political narrative does not discuss it. India’s fragmented authority (Kohli, 2004, p. 286) has been more occupied with maintaining its legitimacy among the masses. During

67 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 elections, there are populist promises of what the party or candidate will deliver upon winning while criticising the incumbents. This is the primary interaction that the political leadership has with the masses. But the politician will not comment on the effect of poor quality of service delivery on the capability of the individuals because that is the time for utilising the civic agency for electoral gains. The promises made for improvement of quality of life will include provision of physical public infrastructure, education and health access and jobs. In the citizen-State relations in India, the former enjoy total freedom during elections because elections are free and fair, by and large, due to the constant efforts of the Election Commission. By avoiding social conflicts, the political leadership has been successful in achieving high growths (Frankel, 2005). The secondary interaction that political leadership has with the masses is through technocratic agents – those who implement the policies on the ground. The government uses various media, such as television and radio and even local tom-tomming of policies for the poor. Local governments and district administration play an important part in the propagation of policies and reaching out to the potential beneficiaries too. In a historical context, Frankel (2005) notes that around the time the Third Plan (1961- 66) was implemented, the politics of accommodation had taken over at the cost of socio-economic goals. Local politics in the villages was taken over by the land-owning elites and the expectation that the village cooperatives will ensure participation of the poor could not be realised. The resources that were provided to the villages under the Community Development Programme were also taken over by the former (p. 201). Pro-poor policies are often a shell-game. Mass politics need a socialist mask and schemes that offer job grantee for poor focus on building assets such as road, canals are used by middle-class and land-owning farmers in villages (Jenkins, 2007, p. 179). Local bureaucracies and politicians have a bigger say in selection of these projects. Hence, the agency of the poor is again side-lined. These jobs demand physical labour and pay minimum wages, and the beneficiaries of the job guarantee are only the poorest in the villages. Jenkins (2007) also comments on leakages in the job guarantee schemes but further says that it may not be the most economically efficient distribution but it succeeds in engaging the poor, satisfying the local needs and concealing the mechanisms (p.179). Conclusion Careful implementation of this model of utilising the local labour for generating assets should refrain from making this a permanent source of employment for future generations. The scheme is necessary only as a stop-gap arrangement in the coming decades to support the cohorts that are in the working age-group and are completely illiterate and can only rely on manual labouring jobs. Unfortunately, the political discourses on development of human capital have been ill-informed from the technical aspect of implementation and research. When these policies are implemented and evaluated by the government, they fail to highlight the fact that capability development aspect in service delivery is overlooked. When it comes to

The Challenges of Building Human Capital / Saumya Tewari 68 providing, or rather doling out, welfare, they are often treated as mere beneficiaries of the government (Heller, 1999, p. 2). The government release reports and survey data through ministries and the National Sample Survey Organisation from time to time. These are merely macro-statistics on estimates of number of malnourished people, number of illiterates, incomes, gross enrolment at various education levels. The government overlooks the quality of service delivery in its evaluation and in a country as diverse as India, weak local institutions do not have the adequate administrative capacity to be able to carry out quality assessments. Civil society interventions and evaluation of quality in the past decade were important contributions to the debates of social welfare governance in India. Planning from welfare continued to be a centralised process even after liberalisation reforms. Parallel reforms were brought about in the polity to decentralise the local governments by giving them constitutional status under 73rd and 74th amendments in 1992. However, local self-governments in India still struggle with low administrative capacity and access to funds. Though, because of low technocratic capabilities, especially in panchayats, they cannot be handed over financial autonomy over huge funds. These local governments do not have the capacity to generate funds on their own either. They are handed down revenue from the Central and State governments. The Fourteenth Finance Commission, 2014 report has recommended specific allocation of funds for capacity development in local governments under devolution reforms. The creation of National Institution for Transforming India (also called NITI Aayog), after ending the economic planning, endeavours to improve dialogue between the civil society organisations and the government. The political narrative around improving the skills among citizens for better employment opportunities also popularises the government as the patron that is providing jobs. This is an important intervention for the growth of the industrial sector and better employability for the workforce. But the real question of improvement of quality of human capital, and more important, of freedom of individual choice of vocation is still not addressed. Skill development programme is controlled by the Central government to meet the industry demands. And it is a political opportunity to channelise a portion of the demographic dividend towards those demands. The completely illiterate, undernourished and poorest of the poor population will still be excluded from these programmes. Capability development for India’s population has to reach the grassroots, the young infants and the poor in interior villages to realise the agency in the right to work.

References Ahluwalia, M. S. (2008). Planning then and now. Seminar, 589. Retrieved May 21, 2017, from http://www. india-seminar.com/2008/589/589_montek_singh_ahluwalia.htm Annual status of education report (Rural) 2016 provisional (2017). New Delhi: ASER Centre. Retrieved July 7, 2017, from http://img.asercentre.org/docs/Publications/ASER%20Reports/ASER%202016/ aser_2016.pdf

69 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Baghchi, A. (2007). The role of planning and the planning commission in the new Indian economy: case for a review. Economic and Political Weekly, 42(44), 92-100. http://www.jstor.org/stable/40276751 Becker, G. S. (1994). Human Capital: A theoretical and empirical analysis with special reference to education (3rd ed.). Chicago, IL: The University of Chicago Press. Central Intelligence Agency (CIA). (2016). World fact book. Retrieved May 20, 2017, https://www.cia.gov/ library/publications/the-world-factbook/fields/2177.html Chibber, V. (2006). Locked in place: State-building and late industrialisation in India. New Delhi: Princeton University Press. Coleman, J. S. (1988). Social capital in the creation of human capital. American Journal of Sociology, 94, S95-S120. Crookston, B. T., Forste, R., McClellan, C., Georgiadis, A., & Heaton, T. B. (2014). Factors associated with cognitive achievement in late childhood and adolescence: the Young Lives cohort study of children in Ethiopia, India, Peru, and Vietnam. BMC pediatrics, 14(1), 253. Retrieved May 21, 2017, from https:// bmcpediatr.biomedcentral.com/articles/10.1186/1471-2431-14-253 Dreze, J. (2010). Employment guarantee and the right to work. In N. G. Jayal & P. B. Mehta (Eds.), The Oxford companion to politics in India (pp. 510-518). New Delhi: Oxford University Press. Frankel, F. R. (2005). India’s political economy: the gradual revolution (1947-2004). New Delhi: Oxford University Press. Government of India, Ministry of Finance, Department of Economic Affairs. (2015). Economic survey 2014- 15. Volume II. New Delhi: Economic Division, Ministry of Finance. Government of India, Ministry of Skill Development and Entrepreneurship. (2015). National policy for skill development and entrepreneurship. Retrieved May 30, 2017, from http://msde.gov.in/assets/images/ Skill%20India/policy%20booklet-%20Final.pdf Government of India, Planning Commission. (2014). Data & statics archives. Retrieved August 30, 2017 from http://planningcommission.nic.in/data/datatable/index.php?data=datatab Heller, P. (1999). The labor of development: workers and the transformation of capitalism in Kerala, India. Ithaca, NY: Cornell University Press. Jenkins, R. (2007). Political skills: introducing reforms by stealth. In R. Mukherji (Ed.), India’s economic transition: the politics of reforms (pp. 170-201). New Delhi: Oxford University Press. Kaviraj, S. (2010). The trajectories of the Indian State (politics & ideas). Ranikhet: Permanent Black. Khera, R., & Nayak, N. (2009). Women workers and perceptions of the National Rural Employment Guarantee Act. Economic and Political Weekly, 44(43), 49-57. http://www.jstor.org/stable/25663707 Khera, R. (2016, February 3). Digging holes, filling them up. Indian Express. Retrieved May 21, 2017, from http://indianexpress.com/article/opinion/columns/mgnrega-digging-holes-filling-them-up/ Koehler, G. (2014). Approaching developmental welfare States: A ‘welfare geography’ of South Asia. In G. Koehler & D. Chopra (Eds.), Development and welfare policy in south Asia, (pp. 25-38). New York, NY: Routledge Kohli, A. (2004). State-directed development: political power and industrialisation in the global periphery. Cambridge: Cambridge University Press. Kohli, A. (2009). Democracy and development in India: from socialism to pro-business. New Delhi: Oxford University Press. Kohli, A. (2010), Politics and redistribution. In N.G. Jayal & P.B. Mehta (Ed.), The Oxford companion to politics in India (pp. 499-509). New Delhi: Oxford University Press.

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71 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Fixed Dose Combinations and their Ban Issues of Concern

S. Srinivasan*

Debates about health-care policy are central to the understanding of the welfare state. One of the mandates of the state is to ensure the sale of safe medicines as also the need for withdrawing harmful drugs the moment it is known to be harmful. Out of the more than one lakh crore rupee sales in the country, almost 45 per cent are FDCs of which 50 per cent are irrational. That is around R 25,000 crore and a lot of which is outright waste of money of the patient on unnecessary ingredients in these irrational FDCs. These irrational FDCs may, in addition, cost the patient much more by way of serious adverse effects and even death. The large FDC market that includes irrational antibiotic combinations also contribute largely to antimicrobial resistance so that routine antibiotics do not work when they ought to. This article highlights how the government of India was forced, due to the scathing reports submitted by the Standing Committee examining Central Drugs Standard Control Organisation, to take steps to ban irrational FDCs. It also critically evaluates the verdict given by Delhi High Court that quashed the government of India’s attempt to ban irrational FDCs. Key words: banning FDCs, Central Drugs Standard Control Organisation, Pfizer, Kokate Committee, Drugs and Cosmetics Act

ebates about health-care policy are central to the understanding of welfare state. Article 47 of the Constitution of India (in Part IV, Directive Principles of DState Policy) clearly mentions that it is the duty of the State to raise the level of nutrition and the standard of living and to improve public health: The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption, except for medicinal purposes, of intoxicating drinks and of drugs which are injurious to health.

*S.Srinivasan ([email protected]) is affiliated with LOCOST, Vadodara and All-India Drug Action Network (AIDAN). Both organisations have filed a Special Leave Petition (SLP) in the Supreme Court arising out of impugned common final order and judgment dated 19.05.2016 and 01.12.2016 passed by Hon’ble High Court of Delhi in W.P. (C) No. 2211/2016. Pfizer Ltd and Anr. v. Union of India & Anr. and 453 other petitions. Acknowledgments: Author wishes to thank Colin Gonsalves, Senior Advocate in Supreme Court and his colleagues Tanya Agarwal and Sanjai Sharma at Human Rights Law Network, New Delhi, for insight into legal processes. Author wishes to thank his colleagues in AIDAN for innumerable contributions during the impleadment and now in the SLP. Acts of omission, interpretation and errors are attributable to the author alone.

Fixed Dose Combinations and their Ban Issues of Concern / S.Srinivasan 72 One of the mandates of the State is to ensure the sale of safe medicines and this includes withdrawing harmful drugs the moment it is known to be harmful. The Judge in Macleods Pharmaceuticals Limited and Anr. v. Union of India, in his final order in April 2012, observed: If a drug is likely to be harmful or likely to involve any risk, to human beings, the withdrawal of the same from the market, should happen instantaneously, upon the acquisition of knowledge about such potentially harmful effects. It is no argument in such cases to contend that the drug has already had its harmful effect for ten years and that therefore, the redemption from the same can wait for a few months. (para. 70) What is a drug? The Drugs and Cosmetics Act 1940 defines drugs as: All medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animals, including preparations applied on human body for the purpose of repelling insects like mosquitoes. (emphasis ours)(Chapter 1, 3(b)(i)) Consequently, a medicine that does not help in diagnosis, or treat, mitigate or prevent disease or disorder in human beings/animals cannot be called a drug. It is in this context that the attempts made by the government of India to weed out fixed dose combination (FDC) drugs have to be examined. Contextualising fixed dose combination drugs FDCs are combination of two or more medicines. FDCs are justified when they demonstrate clearly any of the following benefits in terms of: • increased therapeutic efficacy; • reducing the incidence of adverse effect of drugs; • having pharmacokinetic advantage; • better compliance by reducing the pill burden; • reducing dose of individual drugs; • decreasing development of resistance, and • cheaper than individual drug because of reduced cost from packaging to distribution. It is important that the above claims are adequately supported by scientific evidence. Unscientific FDCs leads to unnecessary consumption of medicines exposing the patient to avoidable expenses and unnecessary risks of side-effects, adverse drug reactions and adverse drug-drug interactions. Undesirable, irrational FDCs are those which have:

73 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 • Pharmacodynamic mismatch between the two components, one drug having additive/antagonistic effect leading to reduced efficacy or enhanced toxicity; • pharmacokinetic mismatch and having peak efficacy at different time; • chemical incompatibility leading to decreased shelf life; • drug interactions because of the common metabolising pathways; and • limitations of finer dosing titration of individual ingredients. FDCs also present difficulties in ensuring quality control (as they are not mentioned in standard pharmacopeias), in rational price fixation, and almost always have to be sold as branded medicines. It is in view of this that the World health Organization recommended that: Most essential drugs should be formulated as single compounds. Fixed-ratio combination products are acceptable only when the dosage of each ingredient meets the requirements of a defined population group and when the combination has a proven advantage over single compounds administered separately in therapeutic effect, safety or compliance. (WHO, 2000, p.5) FDCs in India Out of the more than one lakh crore rupees sales in the country, almost 45 per cent are FDCs of which 50 per cent are irrational. That is around R 25,000 crore and a lot of which is outright waste of money of the patient because of unnecessary ingredients in these irrational FDCs.† These irrational FDCs may in addition cost the patient much more by way of serious adverse effects and even death. The large FDC market with irrational antibiotic combinations also contribute largely to antimicrobial resistance so that routine antibiotics do not work when they ought to. In the following section we will examine why FDCs need to be weeded out with suitable examples. Why many FDCs need to be weeded out? As Bhargava (2009) mentions the potential risks of unscientific and unnecessary combinations are: a) artificial scarcity of effective single ingredient products; b) suboptimal therapy; c) unnecessary polypharmacy and higher risk of adverse effects; d) increase in the risk of drug resistance; e) individualisation of drug dosage might become impossible; and f) increase in risk of medication errors (pp.4-7). Numerous examples of dangerous FDC drugs exist. Topical creams, for example,

† Estimate by author and Malini Aisola from PharmaTrac, January 2016.

Fixed Dose Combinations and their Ban Issues of Concern / S.Srinivasan 74 which are FDCs containing topical corticosteroids cause havoc with the patient’s body. Some of these are ‘steroid cocktails’, which are fixed dose combinations of topical corticosteroids and one or two antibiotics and antifungals. These topical corticosteroid cocktails are irrationally used to: a) treat bacterial or fungal infections in combination with antibiotics and/or antifungals; b) lighten the skin color in an effort to become fairer; and c) suppress any itchy, unsightly or painful rash on the skin regardless of its underlying cause. Adverse effects of topical steroid FDCs range from topical steroid groin and topical steroid face to adrenal insufficiency leading to death. The annual dermatological market as of July 2017 is R 6896 crore (AIOCD-AWACS, 2017) out of which 85 per cent are FDCs and of which a majority contain topical steroids. Roy, Malhotra, Tayal, Bansal, and Gupta (2011) in their study of cold and cough FDC preparations in the Indian market found that: most of the preparations were irrational and had no documented benefit in the treatment of common cold. Availability of such a large number of irrational FDCs for cough and cold requires serious review of the legal provisions in India for drug manufacturing and marketing. (p. 258) Further, as can be seen in Table 1 over 80 per cent of paracetamol containing medicines are FDCs. Additionally, the FDC preparations circumvent the drug price control as well. Table 1: Market for Single Ingredient versus Pombinations of Paracetamol

Sales for 12 months ending Jan As per cent of total paracetamol 2015 (In Crore) market of R 3285.5 cr Single ingredient formulations in 181.6 5.5 price control Single ingredient formulations 427.5 13 not in price control Fixed Dose Combinations (not in 2676.4 81.5 price control)

Source: Analysis by author and colleagues at AIDAN from PharmaTrac Data, January 2015

Legal basis and attempts to ban FDCs Drugs and their FDCs have been banned ever since Section 26A of the Drugs and Cosmetics Act, 1940 was introduced wef 1-2-1983. It says: Without prejudice to any other provision contained in this Chapter, if the Central Government is satisfied, that the use of any drug or cosmetic is likely to involve any risk to human beings or animals or that any drug does not have the therapeutic

75 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 value claimed or purported to be claimed for it or contains ingredients and in such quantity for which there is no therapeutic justification and that in the public interest it is necessary or expedient so to do, then, that Government may, by notification in the Official Gazette,[regulate, restrict or prohibit] the manufacture, sale or distribution of such drug or cosmetic. (Government of India. Ministry of Heath and Family Welfare, n.d., p.20) Government can initiate action on any drug, including an FDC, to regulate, restrict or prohibit a drug only if it has unacceptable safety (‘likely to involve any risk’), or does not have efficacy (‘does not have the therapeutic value claimed’) or does not have the right ingredients in the right quantities (neither overdose nor sub therapeutic dose) ‘for which there is no therapeutic justification’. Further, it must be in the public interest to do so. The provision to regulate and restrict, is a recent introduction to empower the government to ensure certain drugs, like those in Schedule H1, are available only on prescription by qualified medical graduates and specialists. To ‘regulate or restrict’ a drug without any therapeutic justification or efficacy does not make sense. The only option is to prohibit, that is ban, such a drug from the market. A drug with unacceptable risk/safety, and with safer available alternatives, also needs to be banned. Recent ban of FDCs Using the powers under Section 26 A, government of India banned 344 FDCs in March 2016, and five FDCs in June 2017 (Srinivasan, Shiva, & Aisola, 2016, p. 21). The former, i.e., the 344 FDCs, are unauthorised FDCs licensed for manufacture by the State Licensing Authorities (SLAs) without Central government approval as to their safety and efficacy. The latter five FDCs are those approved by the Central government, presumably considered of acceptable safety and efficacy at the time of approval, but on re-examination found to have unacceptable safety, efficacy, and/or therapeutic justification. Both these sets of action on FDCs have their immediate genesis in the observations of the 59th Department Related Parliamentary Standing Committee on Health and Family Welfare (PSCHW) Report on the Functioning of the Central Drugs Standard Control Organisation (CDSCO), laid in both Houses of the Parliament in May 2012 (India. Parliament. PSCHW 2012; India, Parliament. PSCHW, 2013; Srinivasan, 2012). We examine them in sequence. We have reproduced below at length extracts from the 59th PSC Report as a sample of the regulatory and therapeutic anarchy that has characterised India’s drug administration, if proof was needed. Ban of five FDCs in June 2016 In order to scrutinise new drug approvals, the 59th PSCHW asked for examination of files of 42 randomly selected medicines from the list of new drugs uploaded by CDSCO on its website. The Ministry could not trace files pertaining to three drugs namely, pefloxacin, lomefloxacin and sparfloxacin. The Committee observed that all the drugs: had been approved on different dates and different years creating doubt if disappearance was accidental. Strangely, all these cases also happened to be controversial drugs; one was never marketed in US, Canada, Britain, Australia and other countries with well

Fixed Dose Combinations and their Ban Issues of Concern / S.Srinivasan 76 developed regulatory systems while the other two were discontinued later on. In India, all the three drugs are currently being sold…. The Committee is of the view that due to untraceable files on three drugs, it is not possible to determine if all conditions of approval (indications, dosage, safety precautions) are being followed or not. Moreover the product monographs cannot be updated in the light of recent developments and regulatory changes overseas. Therefore all the missing files should be re- constructed, reviewed and monographs updated at the earliest. (emphasis as in original) (PSCHW, paras. 7.12 and 7.13, p.13) The Committee scrutinised the files on offer of the rest of the 39 drugs, among which many were FDCs. The Committee found the following shortcomings with reference to the FDCs: • Not only Phase III clinical trials mandated by Rules were not conducted in the case of FDC of pregabalin, methylcobolamine, alpha lipoic acid, pyridoxine and folic acid (Theon) but even the opinion of experts was not sought. “The decision to approve these drugs was taken solely by the non-medical staff of CDSCO on their own” (India, Parliament. PSCHW, 2012, para. 7.14, p.14). • The following FDCs, among others, did not have permission for sale in any of the major developed countries (United States, Canada, Britain, European Union nations and Australia). a) Nimesulide with Levocetirizine (Panacea) b) Etodolac with Paracetamol (FDC) c) Ofloxacin with Ornidazole (Venus) d) Gemifloxacin with Ambroxol (Hetero) e) Glucosamine with Ibuprofen (Centaur) f) Diclofenac with Serratiopeptidase (Emcure) g) Aceclofenac with Thiocolchicoside (Ravenbhel) h) Aceclofenac with Drotaverine (Themis) i) Pregabalin with other agents (Theon) j) Tolperisone with Paracetamol (Themis). The Committee noted that “None of these drugs have any special or specific relevance to the medical needs of India. (India, Parliament. Rajya Sabha. PSCHFW, 2012, para. 7.14, p.14) Out of these FDCs (a) to (e) were referred to subject expert committees/New Drug Advisory Committee and they were declared not worthy of continued marketing. The related ban orders came only in June 2017 although the ban recommendations on

77 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 three of the five FDCs from the expert committees were in place in 2014. FDC (f), of diclofenac with serratiopeptidase (Emcure), was also not approved for continued marketing but ban orders have not yet been issued. FDC (g), FDC of aceclofenac with thiocolchicoside (Ravenbhel), was declared rational as per an expert committee decision of Jan 15, 2016. The fate of FDCs (h) to (j) is not known. Regarding FDC (h) in the list above, namely, of aceclofenac with drotaverine (Themis), the Committee Report had this to say: If the above cases are not enough to prove the apparent nexus that exists between drug manufacturers and many experts whose opinion matters so much in the decision making process at the CDSCO, nothing can be more outrageous than clinical trial approval given to the Fixed Dose Combination of aceclofenac with drotaverine which is not permitted in any developed country of North America, Europe or Australasia. In this case, vide his letter number 12- 298/06-DC dated 12-2-2007, an official of CDSCO advised the manufacturer, Themis Medicare Ltd. not only to select experts but get their opinions and deliver them to the office of DCGI (Drug Controller General of India)! No wonder that many experts gave letters of recommendation in identical language apparently drafted by the interested drug manufacturer… In the above case, the Ministry should direct DCGI to conduct an enquiry and take appropriate action against the official(s) who gave authority to the interested party to select and obtain expert opinion and finally approved the drug…. Such expert opinions in identical language and/or submitted on the same day raise one question: Are the experts really selected by the staff of CDSCO as mentioned in written submission by the Ministry? If so how can they, situated thousands of miles away from each other, draft identically worded letters of recommendation? Is it not reasonable to conclude the names of experts to be consulted are actually suggested by the relevant drug manufacturers? (India, Parliament. Rajya Sabha. PSCHFW, 2012, paras. 7.32-7.34, p.19) FDC of flupenthixol and melitracen (Deanxit) Regarding FDC of flupenthixol and melitracen (Deanxit), the 59th PSCHFW Report observed: Except for giving file number (12-62/95-DC) and the date of approval (28- 10-1998), the Ministry failed to provide any documents and information on the regulatory process that led to its approval (such as import permission, mandatory clinical trials etc.). The combination contains two drugs, flupenthixol and melitracen. Melitracen has never been approved and used in India. Therefore under Schedule Y, Appendix VI (a), the combination is a “New Drug” for two reasons (i) because one of the two ingredients has not been approved in the past and (ii) because all combinations (FDCs) are classified as New Drugs. CDSCO violated the rules by approving the drug on following counts:

Fixed Dose Combinations and their Ban Issues of Concern / S.Srinivasan 78 • Drugs and Cosmetics Rule 30-B bans the import and marketing of any drug the use of which is prohibited in the country of origin. Deanxit was and continues to be prohibited for sale and use in Denmark, its country of origin. Therefore permission to import and market was given unlawfully. • Since Melitracen was not individually approved earlier, the Combination had to undergo all phases of development (Phase I, II and III). Permission to conduct the last phase III, if given was in violation of rules. • Before approving the indications of a New Drug, it is mandatory to conduct clinical trials individually for all the different indications. A perusal of the Marketing Approval dated 28th October 1998 shows that the approved indications were: (i) Psychogenic depression, (ii) Depressive neuroses, (iii) Masked depression and (iv) Psychosomatic affections accompanied by anxiety and apathy. In its submission the Ministry failed to give details of trials at 3-4 sites with at least 100 patients for each indication as required by law. As per the package insert on Deanxit, the brand is being indicated and promoted for two unapproved indications i.e. “Menopausal depression”, “Dysphoria and depression in alcoholics and drug addicts.” The approval letter issued to the sponsor clearly states at serial number 7: “No claims except those mentioned above shall be made for this drug without the prior approval of this Directorate (DCGI). (italics as in original)(India, Parliament. Rajya Sabha. PSCHW, 2012, para. 7.44, pp. 21-22) The Committee also contended that there must be some very good reasons why Danish Medicine Agency (Denmark) did not approve a domestically developed drug. Curiously, Deanxit is produced and exported but not sold in Denmark. In view of this the Committee opined that the DCGI should have gone into the reasons for not marketing the drug in major developed countries such as United States, Britain, Ireland, Canada, Japan, Australia just to mention a few. United States alone accounts for half of the global drug market. The Committee opined that the approval of this drug is in clear violation of the Drugs and Cosmetics Rules. As per Rules, a New Drug is deemed to be a New Drug for four years. After four years, the State Drug Authorities have the powers to issue manufacturing licenses without reference to DCGI. Therefore, if initial approval is given unlawfully by the DCGI, the doors open for other manufacturers to market the drug after four years. This is exactly the situation with FDC of flupenthixole and melitracen. The Committee recommended that in view of the unlawful approval granted to Deanxit, the matter should be re-visited and re-examined keeping in mind the regulatory status in well developed countries like Denmark, the country of origin; the United States, Britain, Canada, European Union and Japan etc. (India, Parliament. Rajya Sabha. PSCHFW, 2012, para. 7.47, p.22) The FDC of flupenthixole and melitracen was finally banned in 2014, after some legal hiccup in 2013. This action was taken only after some strong strictures from the PSCHFW during the 66th Action Taken Report (ATR) on the 59th PSCHW Report meetings. Ban of 344 FDCs in March 2016 To recap, the FDCs (a) to (j) mentioned earlier were initially approved by the Central

79 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 government on the basis of which SLAs issued manufacturing licences, and then subsequently were found by the 59th PSCHW Report to be of dubious or unacceptable safety/efficacy/therapeutic justification. On the other hand, the 344 FDCs were essentially unauthorised FDCs as they did not have the requisite Central government approval: one of the reasons the Indian pharma market is awash with FDCs, many of them irrational, that is they would not stand the scrutiny of medical experts. (McGettigan, Roderick, Mahajan, Kadam, & Pollock, 2015). If they did not have the requisite Central government approval, then how did these FDCs get into the market? The manufacturers of these 344 FDCs directly applied to the SLAs for manufacturing licences. The SLAs granted manufacturing licences for these irrational FDCs without verifying whether they had DCGI approval after due submission of safety and efficacy data. Most of these FDCs were ‘new drugs’ as per Rule 122E of the Drugs and Cosmetics Act which therefore required approval by the Central government before being awarded manufacturing licences by the SLAs. Over the years - especially since 2000 – the DCGI vacillated with the idea of regulating these FDCs and weeding them out if found irrational. A major such effort in 2008 identified about 294 FDCs (running into several brands of different companies) but the effort was stayed by the Madras High Court. The interregnum between 2008-2012 saw several sporadic efforts by the DCGI to regulate these FDCs. The 59th PSCHW identified the presence of these irrational and unauthorized FDCs in the market as a major problem: To remove such unauthorized FDCs from the market, the Central Government can either issue directions under Section 33P (of the Drugs and Cosmetics Act) to states to withdraw the licences of FDCs granted without prior DCGI approval or the Central Government can itself ban such FDCs under Section 26A. …. It is also possible to ban FDCs, not authorized by CDSCO by invoking Section 26A which empowers the Central Government to ban any drug to protect public health. The Committee was informed that the Government has not evoked Section 26A either so far. No explanation was offered for not using powers under Section 26A. …. The Committee is of the view that those unauthorized FDCs that pose risk to patients and communities such as a combination of two antibacterials need to be withdrawn immediately due to danger of developing resistance that affects the entire population. The Committee is of the view that …(t)here is a need to make the process of approving and banning FDCs more transparent and fair. In general, if an FDC is not approved anywhere in the world, it may not be cleared for use in India

Fixed Dose Combinations and their Ban Issues of Concern / S.Srinivasan 80 unless there is a specific disease or disorder prevalent in India, or a very specific reason backed by scientific evidence and irrefutable data applicable specifically to India that justifies the approval of a particular FDC. The Committee strongly recommends that a clear, transparent policy may be framed for approving FDCs based on scientific principles. (India, Parliament. Rajya Sabha. PSCHFW, 2012, paras. 9.3 – 9.8, pp. 26-27) In the 66th Action Taken Report (ATR) on the earlier 59th PSCHW Report, the Parliamentary Standing Committee on Health and Family took the Ministry and CDSCO severely to task for lack of any significant movement on the above observations of the 59th PSCHW Report regarding the FDCs without approval. The Committee noted: Even after the passage of several months these drugs continue to be marketed with impunity though their exact effect, harmful or otherwise, is yet to be ascertained. The Government without caring a bit about the ramifications is still contemplating referring the issues related to continued marketing of these drugs and updating of their product monographs in the light of recent knowledge and regulatory changes overseas to NDAC for examination and review. The continued inaction of the Government on this vital matter of public health needs to be deprecated in strongest terms. The Committee also recommends that the Ministry should come out of its contemplation mode and take action as recommended by the Committee in the context of these three drugs without any further loss of time. (emphasis as in original)(India, Parliament. Rajya Sabha. PSCHFW, 2013, para. 3.31, p.nd) The ATR also observed: With piles of evidence available locally as well as in the form of global best practices, the Ministry can do the needful suo motu and without resorting to this time tested, time consuming device of an expert Committee. The Committee expects the Ministry to take decisions in the matter accordingly at the soonest so that the approval of FDCs is regulated by well laid out policies, guidelines and procedures expeditiously. (emphasis as in original) (India, Parliament. Rajya Sabha. PSCHFW, 2013, para. 3.149, nd) It is such pressure from the 59th PSCHW that resulted in the government finally acting. The DCGI, in January 2013 asked manufacturers who had not got approval from the Central Government to produce safety and efficacy data of their FDC products, or face the risk of cancellation of their licences. This direction was applicable to all products approved after Sep 29, 1988 and before October 1, 2012. Most manufacturers complied after the usual attempts to stall the process by lobbying, etc. The deadline for submission of safety and efficacy data was set for July 14, 2014. Kokate committee recommendations To examine the 6,220 applications, the government initially appointed subject expert committees and then to speed-up up the process appointed a committee of experts

81 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 chaired by Professor C. K. Kokate (hence know as Kokate Committee). The Committee was tasked with the responsibility of identifying the FDCs in the market that were grossly irrational/unsafe based on pharmacokinetic and pharmacodynamic interaction, dosage compatibilities of FDCs vis-a-vis that of single ingredients. The Kokate Committee examined the 6,220 applications received and finally identified 963 irrational FDCs representing 344 FDCs. After due deliberations, show cause notices to manufacturers as to why their licences cannot be cancelled, etc., were issued. Subsequently, after several reminders and deadline extensions for response to the show cause notices, and further examination of the responses received, the Committee made its recommendations to ask the government to issue ban orders on 344 FDCs. Despite this the affected companies would, at a later date, complain of no due notice, lack of due process, etc., which was anything but true. The ban orders were issued in March 2016 under Section 26 A, as a first list of unsafe, ineffective and irrational FDCs. The Kokate Committee also identified another 1629 applications for further deliberation with expert committees, deemed 2617 applications as rational FDCs, and categorized 309 applications as FDCs needing further generation of data.‡ Delhi High Court stay order The Delhi High Court stayed the ban order - dated 14.03.2016 in W.P.(C) 2212/2016 & CM No.9517/2016; and finally in its order of December 1, 2016 quashed the ban orders on the 344 FDCs on the single reason of not consulting the statutory body Drugs Technical Advisory Board (DTAB) (Pfizer Limited & Anr. v. Union Of India & Anr.,2016). This action of the Hon’ble High Court of Delhi at New Delhi completely overlooked the caution given by the Supreme Court in Union of India & Ors. v. M/s Cipla Ltd. & Anr.,(2016) and Union of India v. Cynamide India Pvt. Ltd., (1987). In the latter case, the Supreme Court observed specifically in context of drug prices that the interest of the consumer public that must come first and any interim order must take care of that interest. The Madras High Court about the same time refused to stay the ban of the 344 FDCs by order dated 22.03.2016 in W.P. Nos. 10536 to 10538 of 2016. The matter has gone on appeal to the Supreme Court by way of a Special Leave Petition (SLP) both by the government of India and All-India Drug Action Network (AIDAN) and Othersand the matter is expected to come up for final hearing in late September 2017. Incidentally, the Delhi High Court, during March-June 2016, after hearing the counsel for AIDAN and Others decided, without providing any proper reasoning, not to implead AIDAN. The government also requested that all petitions filed by various companies in various State High Courts in the 344 FDC ban case and recently in the 5 FDC ban case, be transferred to the Supreme Court. The Supreme Court accepted the same. Issues of law Several issues of law were raised during the arguments in the Delhi High Court hearings

‡ These figures were submitted to the Delhi High Court by the government counsel during the arguments on vacating the stay of the ban orders during March-June 2016.

Fixed Dose Combinations and their Ban Issues of Concern / S.Srinivasan 82 following the stay given by the Court. As they are likely to be repeated in the Supreme Court by the parties concerned, we mention some for their intrinsic interest. Manner of grant of stay In discussing the ban order, the Delhi High Court considered only the Pfizer petition related to ban of Corex – as it felt the nature of challenge was similar in all the other 453 petitions challenging the ban orders. Pfizer was arguing against the ban on its product Corex syrup (an FDC of Chlopheniramine Maleate + Codeine Syrup). Some of the arguments advanced by the Pfizer as to why stay need to be granted, included: i) Corex is being marketed by Pfizer for the last 25 years; ii) that no enquiry was made from Pfizer or show cause notice issued prior to the ban order and, iii) that the said drug in the same combination is being marketed in other countries. Point (ii) was erroneous in fact. What was surprising however was that Hon’ble Delhi High Court used some of the same arguments in granting the stay considering that the drug so banned has been marketed by the petitioner for the last 25 years and further considering the fact that the: “impugned Notification, save for generally stating that the use of the said drug was likely to involve risk to human beings did not disclose any grave urgency, the effect of the Notification was stayed and the respondents restrained from taking any coercive steps against the petitioners or its stockists / agents pursuant to the said Notification. (Pfizer Limited & Anr. v. Union Of India & Anr.,2016, para 2, p.4) The fact that a drug was in the market for 25 years or even 50 years cannot be an argument for its safety and efficacy, especially when a committee of experts, the Kokate Committee, thought otherwise. Likewise, all the other 453 products were likely to ‘involve risk to human beings’ but in the Court’s wisdom risk to human beings does not constitute grave emergency. The Learned Judge of the Hon’ble Delhi High Court could have invoked the precautionary principle and let the orders be instead of staying them and eventually quashing the ban orders. The Hon’ble Madras High Court, when refusing to stay the ban of 344 FDCs, opined in its order (in W.P. No. 10536 and W.P. No. 10538 of 2016 by order dated 22.03.2016): We are of the view that the mere fact of the sale of medicines for the last so many years ipso facto cannot call for the sale to continue when an expert body has gone into this issue. We are not dealing with a perishable commodity. There is a shelf life. Further, the larger public interest would weigh in favour of not staying the effect of the notification. We, however, are inclined to give limited protection to the extent that if no sales are made as per the notification, in the meantime, coercive steps be not initiated against the manufacturers, stockists/agents, in view of the stock which would have already been manufactured . Pfizer’s no objection certificate (‘NOC’) Even as Pfizer through its counsel was asserting during the March-June 2016 hearings in the Delhi High Court, that Corex was safe, extant literature in the USA warned of

83 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 ‘death related to ultra rapid metabolism of codeine to morphine’ and other dangerous adverse reactions (Tobias, Green, Coté, AAP Section on Anesthesiology and Pain Medicine, & AAP Committee on Drugs, 2016). In April 2015, the European Medicines Agency (EMA) had announced that codeine must not be used to treat cough and cold in children under 12 years, and that codeine is not recommended in children and adolescents between 12 and 18 years who have breathing problems, including those with asthma and other chronic breathing problems. The Hon’ble Delhi High Court could have been cognizant of the human implications of giving a stay on Corex even as the balance of interest lay with the public. Indeed Pfizer claimed its approval was legitimate by relying on a NOC purportedly given in 1995 given by the then DCGI. It did not produce any safety and efficacy data in support of its product. The government itself submitted that it had no copy of the NOC in its records. Indeed there is no provision for such an NOC in the law. And the legal route to getting an approval from the Centre rests on submitting data in Form 44 showing safety, efficacy and therapeutic justification. Pfizer did not submit any such data despite knowing that the DCGI had given sufficient notice through various channels including industry associations and had requested submission of such data in case the product had no approval from the Centre. Pfizer, and a couple of other companies, chose to ignore the DCGI’s appeal and preferred to rely on an illegal and invalid NOC so-called. In fact in a peculiar twist of logic, Pfizer argued the burden was on the government to show that the drug was unsafe and it was not for Pfizer to demonstrate efficacy, safety and therapeutic justification! Unfortunately, instead of investigating as to how such an NOC was granted without safety and efficacy data being on record, the government made a ridiculous and unwarranted concession in the Court to the effect that it proposed to argue on the basis that even if the drug companies had approvals from DCGI the impugned orders were still valid. Probably it was a tactic to get out of the embarrassment of the illegal NOC issue, and also probably the lack of confidence in the government’s own list of drugs approved (put up by it on its website in 2013). The concession nevertheless deprived the government of a vital argument for the ban. Indeed the Court’s position was that the validity of the approvals was not a basis on which the 344 ban orders were formulated. It even raised the issue whether validity or otherwise of the approval can be a basis for ban of a drug under Section 26 A. This reading of the order is erroneous as the causal chain of events tells a different story. Lack of authorised approvals led to the government’s request for submission of safety and efficacy data that lead to Kokate Committee’s examination of the data that eventually led to the ban. The ban order cites lack of therapeutic justification and likely risk to human beings – a conclusion arrived at by the Kokate Committee. The terms of reference of the Kokate Committee were wide enough to cover the eventual sequence of events and their denouement. Migration and forum coveniens The Hon’ble Delhi High Court also probably erred in allowing it to be used by manufacturers – through 454 petitions in all - who migrated from all over the country to Delhi High Court when they realized it was easy to get stay orders on the FDC

Fixed Dose Combinations and their Ban Issues of Concern / S.Srinivasan 84 bans. The Hon’ble High Court could have invoked the doctrine of forum conveniens (convenient forum or venue) and refused to give the stay orders. But the Court on the contrary issued stays to all without opening each of the petitions dealing with FDCs that was vastly different in efficacy and safety claimed. The other matter of concern is that the Court did not involve any of the SLAs who were actually guilty of wrongfully issuing manufacturing licences. This raises the question whether the judgment of the Hon’ble Delhi High Court quashing the ban orders is maintainable. Consultation with DTAB As mentioned earlier, the central argument of the Hon’ble Delhi High Court in its final order of Dec 1, 2016, quashing the ban on the 344 FDCs was based on its interpretation of Section 26A of the Drugs and Cosmetics Act that the DTAB needs to be consulted before banning the drugs. As this did not happen in the current case, the ban orders were considered infructuous. However it must be noted that Section 26A says that the government has to be satisfied of the lack of safety, efficacy and therapeutic justification of a drug to ban a drug. How government obtains the satisfaction, as long as it has relied on expertise of acknowledged experts selected on objective considerations, is immaterial. Therefore to ignore the Kokate Committee recommendations, is not in the interests of the public at large; indeed we argue that it has caused untold harm nationwide by letting unapproved FDCs continue to be marketed. Moreover, banning a drug under Section 26A is akin to a legislative act and not an administrative or non-legislative act. Any act of general application is a legislative act and therefore there is no need to provide a hearing to those affected which was not the case anyway in the instant case. More importantly, judicial review of a legislative act like exercise of powers under Section 26A, the Courts cannot really question how satisfaction was reached by the relevant authority (Union of India v. Cynamide India Pvt. Ltd., 1987). The comment in 59th PSCHW Report is very pertinent in this context : The reply merely states that such dubious drugs are examined in “consultations with the experts/DTAB.” The response raises many questions: • Firstly, at the time of approval of drugs, the matter is not referred to DTAB, then why should DTAB be involved when drugs are to be banned? Secondly, many drugs have been approved by DCGI without consultations with experts; why involve them when banning? There is no answer to these specific questions. It must be made clear that the Committee is not suggesting that DTAB should not be consulted. On the contrary, extensive consultations should take place not only while banning but also approving the drugs. There should be no double standards. • There is no standard, uniform, transparent system of referral for expert opinion before a drug is banned. In some cases the opinion of DTAB is obtained such as rimonabant, sibutramine and rosiglitazone; in others it is

85 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 not obtained but is referred to an Expert Committee appointed by CDSCO such as levonorgesterol, letrozole, nimesulide. In yet other cases such as rofecoxib and valdecoxib, the matter was neither referred to DTAB nor to CDSCO-appointed expert committee. In most cases, most of these experts whether appointed by CDSCO or DTAB are from Delhi…. One wonders whether expertise on drugs is confined to Delhi. (India, Parliament. Rajya Sabha. Department – Related PSCHFW, 2012, paras. 8.9 and 8.10, pp.25-26) The 59th PSCHFW Report also inter alia recommends that Section 26-A of the Act is adequate to deal with the problem of irrational FDCs. It suggests standard, uniform, transparent system of referral for expert opinion before a drug is banned but does not suggest that such expert opinion has to be necessarily validated through the DTAB. As the above examples show, bans have taken place with and without the consultation or mediation of the DTAB. The DTAB incidentally cannot be considered an objective body as it has pharma industry representation. The argument that consultation with the DTAB is mandatory before exercise of Section 26 A, does not hold water in the considered view of the Madurai bench of the Hon’ble Madras High Court in Macleods Pharmaceutical v. Union of India, (2012): Therefore, it is clear that any ban order imposed by the Central Government has to be tested only on the strength of the parameters laid down in Section 26-A itself and not with reference to any extraneous material, as the scope of judicial review in such matters is extremely circumscribed. Rather than throwing public interest to the winds and exposing the community at large to the risks associated with drugs that are potentially harmful, the Court could even choose to err on the wrong side.… While the advisory role of DTAB is indicated in broad and general terms in Section 5(1), it is indicated in specific terms in Sections 6(2), 7(1), 8(2), second proviso to Section 10, 12(1) and 33(1). Therefore, the absence of any reference to such requirement of consultation in Section 26-A assumes great significance. It is a well settled principle of interpretation of statutes that the Courts are not expected to supply the omission. The Parliament had consciously incorporated the expressions “after consultation with the Board” or “on the recommendation of the Board”, in certain provisions of the Act such as Sections 5(1), 6(2), 7(1), 8(2), second proviso to Section 10, 12(1) and 33(1). But it has deliberately omitted to include any of those expressions while inserting Sections 26-A and 26-B. It is a case of casus omisus [sic]. Therefore, the argument that the Central Government ought to have taken the consultation of the DTAB before issuing the ban order, can hold good only if I can supply into Section 26-A, what was deliberately left out by the Parliament. This cannot be done by me and hence the first contention has to be rejected. (paras. 33 and 39) Indeed, if the DTAB is not involved in the approval of a drug, there is no reason why it ought to be involved in a ban on the drug. There is no mandate to the government

Fixed Dose Combinations and their Ban Issues of Concern / S.Srinivasan 86 in the Drugs and Cosmetics Act to consult the DTAB for exercise of powers under Section 26 A. However, if one peruses the judgment of Dec 1, 2016 quashing the ban orders, the learned judge of the Hon’ble Delhi High Court while correctly observing that the technical content of the ban orders was outside the scope of judicial review, seemsto be supplying the missing phrases in Section 26A when he opines that DTAB has to be consulted for exercise of the powers under Section 26A to prohibit, regulate or restrict. According to him: a mere absence of the said words (i.e., consultation with the DTAB) from Section 26 A would not mean Section 26 A can be read in isolation … it will be the domain of the DTAB to advise the Central Government in exercise of all technical powers under the (Drugs and Cosmetics) Act, whether the relevant section prescribes for the Central Government to before exercising of power thereunder take advice of Central Govt or not. (Pfizer Limited & Anr. v. Union Of India & Anr., 2016, para 42) And in para 50 of the same judgment of the Hon’ble Delhi High Court: The whole purpose of constitution of DTAB, DCC and setting up of Central Drugs Laboratory would be lost if it were to be held that the Central Government, even in exercise of technical powers under Section 26A or in carrying out other functions assigned to it under the Act is not required to consult them and is free to choose the person from whom it may at that point of time take consultation. No such power has been vested under the Drugs Act with the Central Government. (Pfizer Limited & Anr. v. Union Of India & Anr.,2016) The Learned Judge in Macleods Pharmaceuticals Limited and Anr. v. Union of India,(2012) on the other hand, observedthat if it was the intention of the law makers to mention the role of the DTAB in exercise of powers in Section 26A to regulate, restrict or prohibit a drug, they would have done so by including in Section 26A, the phrase “after consultation with or on the recommendation of the Board”, despite including such a phrase in various other sections – namely, Sections 5(1), 6(2), 7(1), 8(2), the second proviso to Section 10, 12(1) and 33(1) of the Drugs and Cosmetics Act. The judge also noted: The maxim ‘judicis est jus dicere, non dare’ pithily expounds the duty of the court. It is to decide what the law is and apply it; not to make it.” Judges are not expected to and supply phrases in law “by engrafting on it or introducing in it, under the guise of interpretation, by analogy or implication, something what it thinks to be a general principle of justice and equity. To do so ‘would be entrenching upon the preserves of legislature’ (at page 65 in Prem Nath, L. Ganesh Dass Vs. Prem Nath, L. Ram Nath (AIR 1963 Punjab 62) per Tek Chand,J.), the primary function of a court of law being jus dicere and not just dare. (Macleods Pharmaceuticals Limited and Anr. v. Union of India, 2012)

87 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 On the plea by the petitioner that the drug that was banned was in the market for at least 10 years and hence there was no urgency for the government to ban, the Learned Judge in Macleods comments: At the outset, it has to be pointed out that in matters concerning public health, the court cannot allow time to run, on the specious plea that we have already waited or suffered for ten years. If a drug is likely to be harmful or likely to involve any risk, to human beings, the withdrawal of the same from the market, should happen instantaneously, upon the acquisition of knowledge about such potentially harmful effects. It is no argument in such cases to contend that the drug has already had its harmful effect for ten years and that therefore, the redemption from the same can wait for a few months. (Macleods Pharmaceuticals Limited and Anr . v. Union of India, 2012) Indeed if a drug is bad and/or harmful, it cannot be allowed to be in the market even for a single day. What needs to be done The Kokate recommendation for ban on the 344 FDCs essentially accounts for only R 2019 crore (AIOCD-AWACS, 2017) – which is less than 2 per cent of the total domestic market whereas as per our estimate cited earlier, the irrational FDC market is around Rs 25,000 crore. Government needs to act in weeding out the rest of the irrational FDCs too. Unscientific irrational FDCs are a threat to the right to life and health of the patients. The following steps need be taken by the government – a) All irrational FDCs need to be weeded out and enabling legal processes and SOPs need to be clarified. b) Broad principles of what constitutes irrational FDCs need to be specified – for example all topical steroid containing topical FDCs must be deemed irrational as well as harmful. c) All FDCs which contain one or more of the medicines listed in the National List of Essential Medicines 2015 and all FDCs which contain one or more of the other essential and life-saving medicines marketed in India should be brought under price control. d) A central registry of all FDCs and drugs licensed for marketing and/or manufacturing in India would need to be put in the public domain.

References AIOCD-AWACS. (2017, July). Key industry highlights for July 2017, Monthly Industry Mailer. AIOCD Pharmasofttech AWACS Pvt. Ltd. Bhargava, A. (2009, September). Dubious rather than spurious drugs. India’s real drug problem. Health Action, 4-7.

Fixed Dose Combinations and their Ban Issues of Concern / S.Srinivasan 88 Government of India, Ministry of Health and Family Welfare. (n.d.). Drugs and Cosmetics Act and Rules (As Amended up to 2016). Retrieved August 24, 2017, from http://cdsco.nic.in/writereaddata/2016Drugs%20 and%20Cosmetics%20Act%201940%20&%20Rules%201945.pdf India. Parliament. Rajya Sabha. Department – Related Parliamentary Standing Committee on Health and Family Welfare (PSCHW). (2012, May 8). Fifty-Ninth report on functioning of Central Drugs Standard Control Organisation (CDSCO). New Delhi: Rajya Sabha Secretariat. Retrieved August 24, 2017, from http://164.100.47.5/newcommittee/reports/EnglishCommittees/Committee%20on%20Health%20 and%20Family%20Welfare/59.pdf India. Parliament. Rajya Sabha. Department – Related Parliamentary Standing Committee on Health and Family Welfare (PSCHFW). (2013, April 26). Sixty-Sixth report on action taken by the government on the recommendations/observations contained in the fifty-ninth report on the functioning of Central Drugs Standards Control Organisation (CDSCO). New Delhi: Rajya Sabha Secretariat. Retrieved August 24, 2017, from http://www.searchingforsafety.net/uploads/2/6/2/1/26218021/rajya_sabha_april_2013.pdf McGettigan, P., P. Roderick, R. Mahajan, A. Kadam, & A. M. Pollock (2015). Use of Fixed Dose Combination (FDC) Drugs in India: Central Regulatory Approval and Sales of FDCs Containing Non-Steroidal Anti- Inflammatory Drugs (NSAIDs), Metformin, or Psychotropic Drugs. PLOS Medicine,12(5), 1-28. https:// doi.org/10.1371/journal.pmed.1001826 Roy, V., R. Malhotra, V. Tayal, A. Bansal, & K. S. Gupta (2011). Fixed-dose combinations for cough and common cold in India: an assessment of availability and rationality. Fundamental & Clinical Pharmacology, 25(2), 258–266. doi:10.1111/j.1472-8206.2010.00840.x Srinivasan, S. (2012). A stinging indictment of India’s drug regulation authority. Economic & Political Weekly, 47(25), 10-13. Srinivasan, S., S. Shiva. & M. Aisola (2016). Cleaning up the pharma industry: A landmark ban on irrational drugs. Economic & Political Weekly, 51(14), 21-23. Tobias, J.D., T. P. Green, C. J. Coté (2016). AAP Section on Anesthesiology and Pain Medicine, & AAP Committee on Drugs. Codeine: Time to say “No”. Pediatrics. 138(4), e1-e7. Retrieved August 24, 2017, from http://pediatrics.aappublications.org/content/pediatrics/138/4/e20162396.full.pdf World Health Organization. (2000). The Use of Essential Drugs. Ninth Report of the WHO Expert Committee, Geneva: WHO. Retrieved August 24, 2017, from http://apps.who.int/iris/bitstream/10665/42373/1/ WHO_TRS_895.pdf

Case law citations Macleods Pharmaceuticals Limited and Anr. v. Union of India, WPs 21933 & 25442 of 201, (Madras High Court, 2012). Pfizer Limited & Anr. v. Union Of India & Anr. W.P.(C) No.2212/2016, (High Court of Delhi, 2016). Union of India & Ors. v. M/s Cipla Ltd. & Anr., Civil Appeal No. 329 of 2005, (Supreme Court of India, 2016). Union of India v. Cynamide India Pvt. Ltd., 1987 AIR 1802, 1987 SCR (2) 841, (Supreme Court of India, 1987).

89 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Geographical Indications and Farmers’ Welfare Role of State in Strengthening Governance

N. Lalitha,* Soumya Vinayan†

One of the strategies suggested for doubling farmers’ income is a diversification towards high value crops like horticulture and spices, sugarcane etc. Under the geographical indication (GI) system of protection in India, a number of fruits, vegetables, spices and flower varieties have been registered. Some of the products have export incidence as well. While opportunities like brand building, value addition and export potential present in a number of horticultural crops, there exist issues of concern too. Some of the unique GI protected varieties encounter threats from natural, climatic factors and human practices and the area of production under these crops have witnessed reduction. Governance in the form of code of practices for different crops and technical guidance to adopt such practices could be imparted under programmes like ‘My Village My Pride’ to the different farmer producer organisations. Public sector involvement in providing guidance to adopt product standards and value addition at the place of origin would significantly help in increasing farmers’ income. Key words: geographical indications, agriculture, code of practices, farmers’ income, Basmati rice

griculture is an important livelihood activity that combines economic, ecological and cultural practices in a holistic manner. In India, agriculture is a major Aeconomic activity for a sizeable population; its dwindling share in the gross domestic product of the country is a concern for the policy makers. According to the consumption expenditure data of National Sample Survey Office (NSSO), 22.5 per cent of the farm households at all India level have income below the poverty line. The low and fluctuating farmer income causes distress for farmers and also force farmers to leave farming which could have serious impact on the future of agriculture in the country (Chand, 2017). In order to address these issues, the Government of India has set a goal to double the farmers’ income by 2022-23 and variety of strategies within and outside the agriculture sector are being discussed. Strategies discussed within agriculture

*N.Lalitha ([email protected]) is Professor at Gujarat Institute of Development Research, Ahmedabad, India. She has research interest in issues related to intellectual property rights particularly in the areas of patents and geographical indications.

† Soumya Vinayan([email protected]) is Assistant Professor at Council for Social Development, Hyderabad, India. Her research interests include economics of textiles and economics of intellectual property with emphasis on the use of geographical indications. This article is carved out of a larger study on Agricultural GI Registered Products in select states of India, and the authors gratefully acknowledge the Indian Council of Social Science Research, New Delhi for the financial support.

Geographical Indications and Farmers’ Welfare Role of State in Strengthening Governance / N. Lalitha & Soumya Vinayan 90 include diversification towards high value crops (HVC) and increase in the area under fruits and vegetables by five per cent every year. Strategies outside agriculture include improvement in the real prices realised by the farmers (Chand, 2017). Diversification towards HVCs is a viable strategy given the fact that the rising per capita income and changes in life styles indicate that the demand for nutritive and quality products has been increasing. Importantly for fruits, vegetables, pulses and livestock products, the income elasticity is positive and has become very high in India (Acharya, 2015). Further, compared to the 77 per cent gross cropped area (GCA) occupied by staple crops such as cereals, oilseeds and pulses which contributed 41 per cent of the total output, HVCs occupied 19 per cent of the GCA and contributed almost the same to the total output (Chand, 2017). This paper, taking the case of few of the horticultural products protected so far under geographical indications (GI) in India, examines the opportunities and issues that confront the farmers in improving their incomes. Contextualising the legal framework of GI in India in the present section, the next section of the paper details the type of agricultural products protected so far under GI. This is followed by a detailed discussion on the opportunities the use of GI provides for; and the succeeding section discusses the issues that farmers encounter. The next section that follows lists a few governance and institutional mechanisms to promote GI in the country and the last section provides the conclusion. India focused its attention on GI after the bitter battle involving the patents on Basmati rice filed by an US company. The patents sought for Basmati and granted to the US rice development company Rice Tech in 1997 “included a claim to 90 per cent of the rice’s germ plasm and traditional varieties cultivated in India” (Mulik & Crespi, 2011, p. 3). This raised serious concerns about riding on the reputation of Basmati rice traditionally grown in the Indo-Gangetic plain spread across India and Pakistan. It indicated that the superior quality of the Basmati rice cannot be entirely “due to a combination of cultivated varieties, climate and pedological conditions and local cultural practices of North India and Pakistan” (Marie-Vivien 2015, p. 18). Based on the volume of evidence provided by Indian government against the patent as well as various trademarks such as Texmati and Kasmati filed by Rice Tech in the UK and US, Rice Tech eventually withdrew its claims. The use of Indian style Basmati rice in its product along with graphic representation of Taj Mahal clearly indicated that Rice Tech was indeed trying to ride on the reputation of Basmati (Marie-Vivien, 2015, p.19). In fact, the study by Mulik and Crespi (2011) indicate with the entry of Rice Tech varieties, the distinctiveness of Indian Basmati rice in major export markets of UK and Kuwait fell, while it did not make much difference in other markets such as the US and Canada where there was little premium for Basmati. India, in the aftermath of the Rice Tech controversy had to engage in bitter legal battles across 351 cases in India and 211 cases abroad (in 2013) to protect the denomination of Basmati at a whopping cost of R 7.62 crore. Mulik and Crespi (2011) further opine that such costs could have been avoided had India registered Basmati as a GI earlier. In fact, one of the main arguments which Rice Tech raised in its favour was that the word Basmati was not protected as a GI for rice cultivated on the Indian

91 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 sub-continent and hence could be designated for aromatic rice cultivated anywhere in the world (Marie-Vivien, 2015, p. 19). Realising that besides Basmati there are several unique rice varieties and that every region in India has unique products to offer – whether agricultural, handicraft, textile or food stuff, a property regime that would be best suited for the ‘regional products’ where geography was the core aspect became the need of the hour. Moreover, as a signatory to World Trade Organization it became clear that under Trade Related Intellectual Property Rights Agreement (TRIPS) unless protected under national law, GI cannot be granted reciprocal protection in other countries. It is in this context, adopting the public law approach, The Geographical Indications of Goods (Registration and Protection) Act, was introduced and passed in the Parliament of India in 1999 and came into practice in 2003. Section 2(e) of the Act defines the term “geographical indication” as: an indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristic of such goods is essentially attributable to its geographical origin and in case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality, as the case may be. (The Geographical Indications of Goods (Registration and Protection) Act, 48 of 1999) GIs as a collective right can function as an effective branding strategy as it encompasses information regarding quality of the product, which the producers may use to inform the consumers (Hirczak, Moalla, Mollard, Pecqueur, Rambonilaza, & Vollet, 2008). With its strong association with the French word terroir, GI can serve as a developmental tool, since, any effort to promote the demand for the GI product would benefit the producers and contribute to the economy of the region. Terroir as defined by the European Commission, in fact, recognises the intersection between geography and human factors by emphasising that “Only land, climate and expertise of the local people can produce the product that lives up to its name” (italics as in original)(as quoted in Dominte, 2015, p. 106). In the event of free riding on the reputation of the product by producers outside the region, the ‘genuine’ producers could suffer not only losses but also become disincentivised to produce the high quality produce which may also be costly to produce. This would lead to welfare losses to producers and consumers. Several studies have indicated that adoption of GI has led to increase in welfare of the producers. Notable among such studies on GIs from India is Jena and Grote (2010) on adoption of GI for Basmati rice. They found that adoption of GI for Basmati rice led to increase in margins of the producers and higher returns for certified (organic) GI Basmati than non-certified rice though; not as high as the alternative crop (sugarcane in this case). Nonetheless, studies from across the world have also indicated that the welfare gains for small scale producers depend on several factors: cohesion between existing economic, social, natural and cultural assets, mobilisation and collectivisation

Geographical Indications and Farmers’ Welfare Role of State in Strengthening Governance / N. Lalitha & Soumya Vinayan 92 of producers with emphasis on quality, coordination and monitoring of quality which pre-supposes a governance mechanism, production practices and the institutional mechanisms to encompass preservation of natural resources, synergy between producers and other extra-local actors both in public and private sector including tourism (Gerz & Dupont, 2006, p. 86). Studies on willingness to pay for GI protected agricultural products reveal that consumers are willing to pay a higher price because they were distinct and of good quality (Seetisarn & Chiaravutthi, 2011; Datta, 2010; Vinayan, 2015; Rose & Umesh, 2012). It is in this context, we proceed to analyse the opportunities registered agricultural GIs offer the producers and consumers to tap the economic gains of use of GI. GI protected agricultural products As of July 2017, 252 products were protected with GI Registry. Out of this, 82 were agricultural/horticultural products. Maharashtra leads the rest of the States in the total number of registered agricultural products (24 out of 82) closely followed by Karnataka (16) and Kerala (11) (Table 1). Thus, these three states account for 62 per cent of total agricultural products registered in the country. Assam and Uttar Pradesh (3.9 per cent each), West Bengal (5.2 per cent) and Tamil Nadu (6.5 per cent) account for additional 20 per cent of total agricultural products registered. Himachal Pradesh, Rajasthan, Arunachal Pradesh, Tripura, Sikkim, Mizoram, Manipur, and Uttarakhand have one agri GI each and Punjab, Haryana, Himachal Pradesh and Jammu and Kashmir together hold the Basmati GI.

93 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Table 1 Comparison of Nutrition Indicators in Karnataka

S. No State No. of Total No. of Per cent of Name of the products agricultural GI products agricultural products to total 1 Karnataka 16 35 45.7 Coorg orange, Mysore betel leaf, Nanjanagud banana, Mysore jasmine, Udupi jasmine, Hadagali jasmine, Monsooned Malabar arabica coffee, Monsooned Malabar robusta coffee, Coorg green cardamom, Devenahalli Pomello, Appe midi mango, Kamalapur red banana, Byadagichilli, Udupi mattu gulla brinjal, Bangalore blue grapes, Bangalore rose onion 2 Kerala 11 23 47.8 Navara rice, Palakkadan matta rice, Pokkali rice, Wayanad jeerakasala rice, Wayanad gandhakasala rice, Kaipad rice, Malabar pepper, Alleppey cardamom, Vazhakulam pineapple, Central Travancore jaggery, Chengalikodannendran banana 3 Maharashtra 24 30 80 Mahabaleshwar strawberry, Nashik grapes, Nashik valley wine, Kolhapur jaggery, Nagpur orange, Ajara Ghansal rice, Mangalwedha jowar, Jalna sweet orange, Sindhudurg & Ratnagiri Kokum, Waghya ghevada, Navapur tur dal, Vengurla cashew, Lasalgaon onion, Waigaon turmeric, Solapur pomegranate, Sangli raisins, Jalgaon brinjal, Beed custard apple, Purandar fig, Bhiwapur Chilli, Ambemohar Rice, Dahanu gholvad chikoo, Jalgaon banana, Marathawada kesar mango 4 Tamil Nadu 4 24 16.7 Eathomozhy coconut, Virupakshi hill banana, Sirumalai hill banana, Madurai malli 5 West Bengal 3 11 27.3 Laxman bhog mango, Khirsapati (Himsagar) mango, Fazli mango, 6 Uttar 3 21 14.3 Allahabad surkha, Mango Pradesh mallihabadi, Kalanamak rice 7 Assam 3 4 75 Assam karbi anglong ginger, Tezpur litchi, Joha rice of Assam 8 Gujarat 2 9 22.2 Bhalia wheat, GirKesar mango

Geographical Indications and Farmers’ Welfare Role of State in Strengthening Governance / N. Lalitha & Soumya Vinayan 94 9 Odisha 2 14 14.3 Ganjam kewrarooh & Ganjam kewra flower 10 Nagaland 2 2 100 Naga mirch, Naga tree tomato 11 Meghalaya 2 2 100 Khasi mandarin, Memong narang 12 Andhra 2 13 15.4 Guntur sannamchilli, Banganapalle Pradesh Mangoes 13 Himachal 1 6 16.7 Kangra Tea Pradesh 14 Arunachal 1 1 100 Arunachal orange Pradesh 15 Tripura 1 1 100 Tripura queen pineapple 16 Sikkim 1 1 100 Sikkim large cardamom 17 Mizoram 1 1 100 Mizochilli 18 Manipur 1 7 14.3 Kachai lemon 19 Punjab, 1 1 100 Basmati rice Haryana, Delhi, Himachal Pradesh, Ut- tarakhand, and parts of western Ut- tar Pradesh and Jammu & Kashmir 20 Uttarakhand 1 1 100 Uttarakh and Tejpata Total 82 207 39.6

Note: The total of 207 takes into consideration only those States which have registered some agricultural products with GI. Some States have no agricultural products registered with GI. If those States are included the total goes up to 252. It may be noted that this total excludes logos and foreign products registered with GI Registry. Source: : Compiled from State wise registration details of G.I. application, Retrieved July 21, 2017, from http://www.ipindia.nic.in/registered-gls.htm A quick look at the description of the GI protected products indicate that it consists of HVCs namely 32 fruits (39 per cent), 13 spices (16 per cent), 13 foodgrains (16 per cent), six each beverages and vegetables (seven per cent), five flowers (6.5 per cent), four others (5.2 per cent), two dry fruits, and one pulse variety. Further break down of the broad agricultural GIs indicate the following HVCs: Fruit GIs consist of different varieties of oranges (six), banana (five), mango (eight), pineapple (two), grapes (two), lemon (two) and one each of coconut, strawberry, litchi, custard apple, pomegranate, fig, guava and chickoo. The different constituents of spices are: chilli (five), cardamom (three), ginger (one), pepper (one) kokum (one), tejpata (one), and turmeric (one). There are 11 rice varieties and one variety of wheat under the foodgrains. Of the one varieties of flowers, four are varieties of jasmine. Four tea and two coffee varieties (GI for processing) constitute the beverages segment. Of the six

95 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 vegetables that have got GI, two each are onion and eggplant varieties, and one each for tomato and beans. Opportunities GI for brand building of value added products (i) Appe midi mangoes GI for this variety is based on the name of the fruit and not on the location. This special variety of mango grows on the beds of Aghanashini, Betdi and Sharavatirivers in Karnataka and is most suitable for making pickles. The uniqueness is that the pickle made of this variety stays fresh for nearly four years. This specific feature provides an opportunity for the pickle industry in India. Pickles are used as taste enrichers and hence used widely in all States of India. While the marketing strategy has traditionally been based on the brands that sell pickles, strategies could henceforth be based on the unique mango. Further, value addition possibilities at the point of origin would benefit the region itself. (ii) Vazhakulam pineapple The Mauritian variety of Vazhakulam pineapple is resistant to pests and diseases and is grown as an intercrop in rubber plantations covering 12,000 hectares and producing 300 tonnes of pineapple (Basheer, 2016). Because of limited shelf life of 10 days, export opportunities for raw pineapple are restricted and 90 per cent of production is consumed as fresh fruit but there are opportunities for value addition. Keeping this in mind, the pineapple farmers association organised a pineapple fest in February 2016 to attract different stakeholders. Vazhakulam pineapple GI is owned by Nadukkara Company and Kerala Agricultural University. After Nadukkara Company failed to pay the working capital loan it was taken over by the Kerala government. The unit which has the capacity to process 70 tonnes of fruit every day did not even process 200 tonnes in 2015, since the pineapple producers were not selling to the unit fearing default in payment by the company. Other than this company, few small units process low-grade pineapples. Further, as pineapple season coincides with that of other fruits prices tend to crash; consumers tend to opt for cheaper alternatives (Philip, 2016). Hence if appropriate cold storage and value addition facilities are created, market for the product would improve. (iii) Madurai malli (jasmine) Economic returns through value addition in the jasmine flower segment are already being realised by the Madurai malli farmers. Its value in perfumery is recognised and is in demand. Majority of the jasmine grown across 900 acres in Madurai is used in garlands for ceremonies, weddings and so on and the rest of the 489 tonnes annual yield are used for extraction by the global fragrance and spa industry. Madurai malli is demanded by brands like Channel, No.5 and Dior J’adore, personal-care products such as Lush, Kama Ayurveda and Goodearth and high-end pan masala like Rajnigandha (Kapoor, 2014). These opportunities have contributed to the increased demand for this product with very limited shelf life.

Geographical Indications and Farmers’ Welfare Role of State in Strengthening Governance / N. Lalitha & Soumya Vinayan 96 Export of agri products from India India has an established export market for products like fresh fruits, vegetables, rice, wheat, horticulture and value added products like mango pulp (Table 2). Table 2: Export of select agri products and percentage share of top five countries in total quantity exported from India (metric tonnes)

Mango Pulp Basmati rice Fresh grapes Wheat Saudi Arabia (32.6) Saudi Arabia (23.5) Netherland (32.5) Bangladesh (55.1) Netherland (9.3) Iran (17.2) United Kingdom (11.5) Nepal (19.3) Yemen Republic (8.4) United Arab Emirates Russia (8.8) United Arab Emirates (15.1) (16.1) Kuwait (6.9) Iraq (10.4) United Arab Emirates Taiwan (2.4) (8.4) United Arab Emirates Kuwait (4.5) Saudi Arabia (5.2) Malaysia (1.2) (6.6) Total (128866) Total (4045796) Total (156218) Total (618020) Floriculture Fresh vegetables Mango Onions United States (23.0) Nepal (31.9) United Arab Emirates Bangladesh (20.9) (55.0) Germany (10.1) Pakistan (17.4) Nepal (22.8) Malaysia (20.3) United Kingdom (9.8) United Arab Emirates United Kingdom (4.1) Sri Lanka (16.6) (13.2) Netherland (8.4) Sri Lanka (6.0) Saudi Arabia (3.9) United Arab Emirates (14.1) United Arab Emirates Malaysia (5.0) Qatar (2.8) Nepal (5.8) (6.7) Total (22519) Total (699600) Total (36329) Total (1201245)

Source: Agri Exchange. (nd). India Exports Statistics, Retrieved November 5, 2016, from http:// agriexchange.apeda.gov.in/indexp/reportlist.aspx

Top 5 countries listed here account for 60 per cent of the total exports in each category. Already some of the GI products like Alphonso and Gir Kesar mango, Bangalore rose onions, Nashik grapes and Bangalore blue grapes have an export market, though we do not know the exact export share of the GI certified products. With established, authenticated practices to ensure quality and traceability, more GI products could be exported. Bangalore rose onion is preferred in the export market for its pungency. However, for the purpose of exports, the onion should be of 28 mm in diameter and should have a single bulb. As not all the harvested products match this specification, only a certain percentage qualifies for export and the rest of the harvest is offloaded in the domestic market (Naidu, 2002). Failure to achieve such specifications could be affecting the chances to widen the market for small producers. As the export and domestic market prices are different, farmers do not recover their cost of cultivation when they sell in the latter alone. In order to avoid such losses, control mechanisms and evolving code of practices are very essential.

97 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Agro tourism GI agro production centres can become crucial tourist attractions leading to positive impact on the local economy if promoted appropriately. The interaction between GI products and local tourism is very well utilised in organising cultural events or gastronomic itineraries in the European context like cheese museum, saffron festival, wine and olive-oil celebrations, coffee museum showcasing Columbian coffee traditions and so on (Vandecandelaere, Arfini, Belletti, & Marescotti, 2010). Some of the tea estates in Nilgiri and Darjeeling offer home stay for tourists providing them the unique experience of staying and participating in the tea plucking operations. The orange festival in Meghalaya around the orange harvesting season is another example. Several of the horticultural and spices production centres with natural scenic beauty provide significant opportunities to develop tourism around the GI production paths. Issues of concern Pests, diseases and reducing area under cultivation are the major issues before the agricultural products generally and GI protected agro products are not an exception. However, such products that are firmly anchored in an area due to climatic reasons and resources endowment face the threat of becoming extinct because they cannot grow in all regions. (i) Reducing area due to pests, diseases, climatic and human factors Between 1995 and 2004, less rainfall, prolonged hot season, repeated white fly attack and reducing water tables resulted in reducing the area under orange in Nagpur division from 60000 ha to 30000 ha. The intense heat in 2010, where the temperature hovered around 48 degrees for a week, resulted in 1.76 and 2.9 million trees dying in Nagpur and Wardha districts respectively. This led to an all-time low yield of the orchards of the region yielding only 20 per cent fruits (Pallavi, 2012). Nagpur mandarin is one of the best in the world. Production of this fruit crop in central and western part of India is increasing every year (National Horticulture Board, n.d.). Mrig bahar crop (monsoon blossom) which matures in February-March has great potential for export, since arrivals of mandarin fruit from international market is very less during this period. The area under Coorg orange, grown mostly among the rich coffee plantations is steeply declining as many coffee estates removed the orange trees following a rise in the price of coffee. Virus attack on the orange trees and the use of chemical plant protection methods are other reasons for their reducing number. The area under Kamalapur red bananas which is known for its rich nutrients and low sugar content is reducing and is said to be cultivated only in 50 acres of Kamalapur taluka of Gulbarga district. As this variety of banana tree grows very tall, the likelihood of farmers suffering loss due to strong winds/rains is very high (‘New Findings’, 2013). Hence, only a few farmers cultivate this plant. So the chance of this variety becoming extinct grows by the day. Sholapur that is the leading producer of pomegranates was another victim of drought and insufficient rains affecting lives of several farmers who had switched to pomegranate

Geographical Indications and Farmers’ Welfare Role of State in Strengthening Governance / N. Lalitha & Soumya Vinayan 98 cultivation (Yadav, 2016). The unique appe midi mango discussed earlier is becoming scarce due to the illegal felling of these trees in their natural habitat. Efforts to grow 5000 appe midi mango trees in 50 different locations by the Karnataka forest department for nearly 25 years have not borne any fruit (Chetan, 2015). Three GI products, namely, the Nanjanagud banana, Mysore mallige (jasmine) and Mysore betel leaves have almost become extinct in Karnataka. The area under Nanjanagud banana was reported to be only 30 acres due to widespread panama wilt disease. The high labour cost involved in harvesting Mysore mallige and Mysore beetle leaves have also made farmers shy away from these products. The details here show that production areas of some of the unique varieties are shrinking and efforts need to be taken to check the natural causes and the human practices. (ii) Pesticide residues Maldaha mangoes of West Bengal, which are much sought after in the export markets of Europe and United Arab Emirates (UAE) face a threat due to the relatively high pesticide residue content. The Ministry of Climate Change and Environment, UAE, had expressed its concern and as a result requires that each consignment to be accompanied by the phytosanitary certificate regarding the levels of pesticide residue and these tests need to be carried out by any Agricultural and Processed Food Products Export Development Authority (APEDA) certified laboratory. As evident from Table 2, UAE tops the list of mango exports from India with 55 per cent share in total quantity that is exported. Hence, India cannot afford to ignore the concerns of UAE. In 2014, the EU countries placed a ban on mango exports from India. This ban was withdrawn in 2015 after satisfactory corrective measures were undertaken. Despite that, the export of Maldaha mangoes shrunk from 63,500 tonnes in 2011-12 to 43,000 thousand tonnes in 2014-15 (Sarkar, 2013). Instances like the above ban by a major importing country would adversely affect the brand image and export of such products from the country. With as many as 32 fruit varieties in the GI list, some of which are also exported specifying and adhering to the plant protection standards and post- harvest handling would significantly boost the trade. (iii) GI logo The ISI mark on any product informs the customer that the product is of prescribed standards. In contrast, even after a decade of enforcement of GI Act, in India, there exists no common logo for all the GI products. This is one of the reasons for the limited awareness of its importance. Logos act as an important bridge in mitigating information asymmetry between sellers and buyers. In Thailand, all the GI products have one common logo, which is easily recognised by the consumers as an indicator of quality and uniqueness (Jaiborisudhi, 2011). Some farmer producer associations have registered their logo with the GI registry that distinguishes a particular brand from the other and not so much as a GI product.

99 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 (iv) Lack of distinctness In the enthusiasm to file the maximum number of GI applications, states often tend to file products that show limited uniqueness or products that are widely grown. Most often the ‘uniqueness of the product is blurred’ and not clear in the statement of case as for instance in the case of pineapples, oranges (memong narang is an exception), which calls for more scientific rigour in seeking GI registration (Soam & Hussain, 2011). Additionally, at the time of seeking GI registration, the farmer associations need to be very clear or strategies should be made indicating the ways in which the GI certification would be utilised. If there are no significant differences in the uniqueness among products, then the price difference across products cannot be clearly established. (v) Lack of infrastructure facilities A hike in the import duty by the government of Bangladesh, a major importer of mangoes from India, had totally dried up the market for Malda mangoes in Bangladesh. With the abundant production, prices fell below the cost of production affecting the farmers adversely. Though Malda and Murshidabad were identified as mango and litchi exporting zones by government, adequate infrastructure has not been created (Maitral, 2013). Hence, the farmers were not able to restrict the supply and release it at a time when the prices are stable. Price crashes in perishables have become common in India due to lack of on-farm storage and lack of scientific method to extend shelf life. Harvest and post-harvest losses for major food commodities was estimated at R 92651 crore during 2013-14 (Chand, 2017). Governance and institutional mechanisms to promote GI In order to utilise the opportunities and address the issues of concern, it is essential that there are effective governance systems delivered by appropriate institutions. Such initiatives would ensure that GI certification does stand for uniqueness and quality. In the following paragraphs the essentials are detailed. (i) Prevalence of control mechanisms in Thailand Thailand, like India, has a number of agricultural products registered with GI; hence, some of the initiatives taken there would be useful for India. In order to popularise the concept of GI, the government of Thailand promotes ‘one province one GI’ principle to identify unique products from every region of the country. Further the Thai government has established (1) control mechanisms for traceability and (2) certification from the accreditation bodies for the GI product. For each product, a manual is developed for production and the method for tracing the origins. The Department of Intellectual Property (DIP) has a memorandum of understanding (MoU) with the Department of Thai Industrial Standard Institute (TISI) and National Bureau of Agriculture Commodity and Food Standard (ACFS). The MoU means that these agencies work for the development of control systems in Thailand. Once the systems are developed, DIP validates the specifications and inspection methods. TISI and ACFS accredit the control body that comprises of both internal and external control (Lalitha, 2016). At the top of the control body is the GI Board.

Geographical Indications and Farmers’ Welfare Role of State in Strengthening Governance / N. Lalitha & Soumya Vinayan 100 These mechanisms ensure that the GI products of Thailand are of good quality and traceability can be ensured. Such measures adopted in the case of jasmine rice of Thailand have resulted in producers receiving a premium price. In India, the GI application process requires that the applicant mention, in the application itself, the type of quality control mechanism and the inspection body that would implement the same. However, most of the applications mention that the ‘inspection body is proposed to be set up or being formed’ and accreditation of the inspection mechanism is yet to begin. If production standards are followed to ensure quality and traceability, GI products would earn credibility in the market place and in international trade. (ii) Code of practice Code of practice (CoP) is a set of measurable voluntary practices for the production of GI product which every producer should comply with. There are several examples that are prevalent outside India. The CoP regarding production practices in the case of GI of Kintamani coffee of Bali, Indonesia include specification regarding density, shade, varieties, fertilisation, pruning, pest or disease control and plantation diversification. CoP regarding processing methods include: sorting of red cherries and time between harvest and processing, cherries floating and pulp removing, fermentation time, washing and drying, storage, hulling and sorting, roasting and packaging (Vandecandelaere et al., 2010, p.54). Fulfilment of the CoP of Kintamani coffee depends on three levels of control by (1) farmers (2) producer group and (3) the collective organisation called Community for Geographical Indication Protection, which comprises of producers and processors. In case of India, the statement of case provided for each of the product can be considered the CoP (Naidu, 2014). A typical statement of case in the GI registry contains the following: name of the applicant, address, list of association of persons, type of goods, specification, nature of GI, description of goods, GI area and production map, proof of origin and method of production, uniqueness, inspection body, and other related information. Going through the different statement of cases it is observed that there has been no uniformity in the presentation of cases and a few important aspects like packing and transportation, labelling rules and control/verification system are not detailed which are essential to create an edge over competing products. Particularly in the case of the agricultural products CoP matters a lot, since internal competition between producers would lead to new producers not adhering to any CoP but capturing the market based on reputation. Two kinds of guarantee system for agricultural products are possible in India. One is the third party certification system that is very expensive and more suitable for farmers with large farms as it involves lots of paper work. The other is the participatory guarantee system (PGS) available for small organic producers, formulated by the Ministry of Agriculture, Government of India. Under PGS,

101 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 a system of open, formalized and scripted group appraisals is carried out by at least three farmers from the local group. Consumers, members of the local Panchayat (a national system of local governance) and local religious leaders are invited and may even be required as regionally appropriate. At least one member of the inspection team has to be literate. The scripted nature of the appraisal is necessary with minimally trained inspectors to ensure complete physical checks of the farm and equally importantly, to verbally re-confirm that the farmer understands organic growing practices and what they are committing to. (Khosla, 2007, p.12) The use of the local farmers as part of the peer appraisal groups helps in considerable social control. Under PGS, any farm that tests positive for pesticide residue means that the entire group gets suspended. Such a check encourages the farmers to help each other and address the issues collectively. Further under PGS, the entire farm of the farmer gets certified, which increases the marketability of the different products. Once the farmers with PGS are familiar with adopting and adhering with certain standards, then they may slowly progress to adopting the certifications by third parties. In this context, it is important to draw attention to the fact that of the 82 agricultural products that are registered with the GI registry, nearly 40 per cent of the applications have been filed by the farmer producer organisations (FPOs). Some of the progressive FPOs may move toward setting standards of production for their product under PGS or evolve similar standards. (iii) Authorised users An important lacuna in the GI registration in India has been the lack of registration of the authorised users (AU) of the GI product. Although the law provides for registration of AU, no producer was registered with the GI registry until April 2010. This was the case even when the GI application mentioned the names of producers. Since then, some AU have been registered, but the law was not enforced for seven years. (Marie- Vivien, 2015, p.209) The GI Act of India provides registration of the GI, which is known as Part A and the registration of AU of the GI known as Part B. Any person, claiming to be the producer of the goods in respect of which a GI has been registered may apply in writing for registering him as an AU of such GI. Registration of AU is essential to take any action against infringement of GI. The sui generis system of GIs in India provides a fairly detailed definition of the producer which suggests the role of the multi-stake holders in any GI product. A producer in the case of agricultural goods includes those who are engaged in production, processing, trading or dealing. As the definition of the AU in the case of agricultural product is very vast, appropriate identification and listing of the AU will restrict the free riding on the reputation of the product by others.

Geographical Indications and Farmers’ Welfare Role of State in Strengthening Governance / N. Lalitha & Soumya Vinayan 102 The AU list, is available for Naga mirch, Navara rice, Palakkad matta rice, Kangra tea, Pokkali rice and almost all the products from Maharashtra. While Maharashtra has taken a lead in this aspect too, such initiatives are still not noticeable in other States. Implicitly the level of GI awareness is indicated by the very limited registration of AU. Majority of the agricultural products have renewed their GI registration but without yet registering their AU. Thus, equally important is the fact that all the producers of the said product are identified and the geographical area is clearly defined. According to the GI application, Madurai malli covers the areas of Madurai, Virudhunagar, Theni, Dindigul and Sivagangai districts (Vandhana, 2013). However, the plants raised in the Mandapam and Thangachimadam areas also produced the famous Madurai malli and these farmers were not included in the GI. Farmers from Mandapam region, who raised the issue at a farmers’ grievance meeting, said it was unfortunate that farmers who raised them were left in the lurch (Scott, 2013). Since the GI registration involves products associated with a specific region, the GI registry should advertise the notice for opposition for GI application in the local vernacular papers instead of publishing it only in the GI journal. As the GI journal is online, it might not get the due attention from all the interested stakeholders and there is a possibility that the key stakeholders are not aware of the GI filing and the area specified. (iv) Setting up of specific body for the promotion of GI products One of the weaknesses of the Indian GI filing system is the limited awareness about GI among the policy makers at the state level and the consumers. In majority of the cases GI brand is not highlighted while selling the product. Unless, there is a dedicated authority that looks after the filing and post filing activity, the potential of GIs may not be realised. But in India so far, there is enthusiasm to file the product with the registry. Filing itself involves considerable effort in forming the association, providing historical documentation to establish the association of the product and the region etc. Yet, only the post filing activities will take GI to its logical use potential and provide benefits to the producers. The Central government launched the scheme My Village My Pride (MVMP) in 2015, under which the scientists of the Indian Council of Agricultural Research will adopt a village each and implement best farming practices and government policies. MVMP could be an ideal tool to actively promote GI products of the villages. In this context it is worth looking at the successful One Tambon One Product (OTOP) concept of Thailand which focuses on the sustainable development of local communities. OTOP is actively promoted by the Ministry of Interior for Community Development, Ministry of Tourism and Ministry of Industries of Thailand (Jaiborisudhi, 2011). The main objectives of OTOP are to: 1. create employment and increase income as a whole for each community that participates in the project; 2. strengthen local knowledge; 3. promote human resource development; 4. reinforce strength and self- reliance in each community participating in the project; 5. and promote creativity among each community participating in the project (Jaiborisudhi, 2011, p.15). A typical OTOP product uses very low level of technology.

103 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Self-help groups (SHGs) working in the communities with chosen products register themselves through online as a potential OTOP. Community development workers working in that area work with the community to evaluate the product for quality, knowledge, capacity and the level of support required to make the final product. Based on their inputs the necessary support is given by the government. A village development fund is provided for each village for various developmental projects. Within that, funds are earmarked for the OTOP projects too. Depending on the size of the contribution by the SHGs and their requirement for funds, government support is provided from the village development fund. In order to inculcate quality consciousness among the OTOPs, products are identified based on the number of stars (*). A product with 5 stars indicates the best quality and product with 4 stars indicate the next best quality and so on. The success of this programme may be gauged by the fact that exports under Thai OTOP programme reached a value of US$102.5 million in 2003 which was just US$ 2 million a year earlier when OTOP was newly established (Abdourrahmane & Sukhabot, 2014, p. 55). In the Indian context, the MVMP can identify the FPOs working with GI products and provide technical guidance to formulate product standards and for value addition. Both these would create positive returns to the farmers. Conclusion GI registration reveals that specific regions of most states of India have unique agricultural products, which are produced in limited areas with households depending on them for the livelihoods. This paper highlighted the opportunities and issues of concern for the farmers and also detailed a few of the areas for better governance. Role of the government in GI is very important, as it is a collective intellectual property rights of all the producers. The products represent the cultural heritage and the natural resources that are used by the producers in the process of production are common resources. The Ministry of Agriculture has now been appropriately renamed as Ministry of Agriculture and Farmers Welfare. While it requires the involvement of the government at various levels, particularly involvement of the local governments would be very helpful. As most of the products are produced in limited regions, local governments along with the farmer associations could serve an useful role in the implementation of GI in the following aspects: 1) identifying the precise area under GI and the actual producers; 2) governing the status of the natural resource involved in the production of the GI thus in maintaining the biodiversity of the region; 3) being watchful about the free riders on the reputation of the GI product; 4) getting the targeted funds under various schemes for the promotion of local products; 5) popularising the PGS and in promoting marketing strategies to name a few.

Geographical Indications and Farmers’ Welfare Role of State in Strengthening Governance / N. Lalitha & Soumya Vinayan 104 GI is a powerful rural development tool, but requires a variety of support ranging from getting legal protection for the product to positioning the quality product in the market. Various policy tools available with the Central and State government, can be reoriented towards promoting the GI products and the farmers’ welfare.

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105 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Khosla, R. (2007, January). A participatory gurantee system for India. The Organic Standard, 69, 11-14. Lalitha, N. (2016). Creating viable markets through use of geographical indications: What can India learn from Thailand? ICSSR-NRCT Bilateral Scholars Exchange Programme, Thammasat University, India Studies Centre, Bangkok. Maitral, S. (2013, June 20). Mango going dirt cheap in Malda. The Times of India. Retrieved June 25, 2016, from http://timesofindia.indiatimes.com/city/kolkata/Mango-going-dirt-cheap-in-Malda/ articleshow/20672023.cms Marie-Vivien, D. (2015). The protection of geographical indications in India: A new perspective on the French and European experience. New Delhi: Sage Publications. Mulik, K., & J. M. Crespi (2011). Geographical indications and the Trade Related Intellectual Property Rights Agreement (TRIPS): A case study of Basmati rice exports. Journal of Agricultural & Food Industrial Organization, 9(1), 1-19. doi: 10.2202/1542-0485.1336 Naidu, C. G. (2014). Geographical indications of India - Icons of our heritage. IP Expressions, 1(1), 36-38. Naidu, S. (2002, January 5). Rose onion exports see no tears shed. Economic Times. Retrieved June 23, 2016, from http://articles.economictimes.indiatimes.com/2002-01-05/news/27344893_1_ onion-lakh- tonnes-export-quality National Horticulture Board. (n.d). Orange (Mandarin). Retrieved July 25, 2017, from http://nhb.gov.in/ report_files/orange/ORANGE.htm New findings on nutritional values in red banana. (2013, July 11). The Hindu. Retrieved June 23, 2016, from http://www.thehindu.com/todays-paper/tp-national/tp-karnataka/new-findings-on-nutritional-values-in- red-banana/article4903723.ece Pallavi, A. (2012, April 30). Orange tumbles. Down to Earth. Retrieved June 23, 2016, from http://www. downtoearth.org.in/coverage/orange-tumbles-37976. Philip, S. (2016, January 28). Pineapple city: Reaping bitter harvest as prices crash. Indian Express. Retrieved June 24, 2016, from http://indianexpress.com/article/india/india-news-india/pineapple-city- reaping-bitter-harvest-as-prices-crash/ Rose, C. D. N., & K. B. Umesh (2012, August 18-24). Expectations from geographical indications – Evidence from India. Paper presented at International Association of Agricultural Economists (IAAE) Triennial Conference, Foz do Iguacu, Brazil. Retrieved June 24, 2016, from https://ageconsearch.umn. edu/record/126324/files/paper_Ref_No_IAAE_-16230.pdf Sarkar, D. (2016, May 24). Famous Malda mango facing major export crisis. Economic Times. Retrieved June 23, 2016, from http://economictimes.indiatimes.com/news/economy/agriculture/famous-malda- mango-facing-major-export-crisis/articleshow/52418917.cms Scott, W. (2013, December 21). Ramnad farmers seek GI tag for their ‘Madurai malli’ plants. The Hindu. Retrieved August 30, 2017, from http://www.thehindu.com/news/national/tamil-nadu/ramnad-farmers- seek-gi-tag-for-their-madurai-malli-plants/article5483807.ece Seetisarn, P., & Y. Chiaravutthi (2011). Thai consumers willingness to pay for food products with geographical indications. International Business Research, 4(3), 161-170. doi:10.5539/ibr.v4n3p161 Soam, S. K., & M. Hussain (2011). Commercialisation of indigenous health drinks as geographical indications. Journal of Intellectual Property Rights, 16(2), 170-175. The Geographical Indications of Goods (Registration and Protection) Act. The Gazette of India. No. 48 of 1999. Retrieved June 24, 2016, from http://dipp.nic.in/acts/geographical-indications-goods-registration- and-protection-act-1999

Geographical Indications and Farmers’ Welfare Role of State in Strengthening Governance / N. Lalitha & Soumya Vinayan 106 Vandecandelaere, E., F. Arfini, G.Belletti, & A. Marescotti (2010).Linking people, places and products: A guide for promoting quality linked to geographical origin and sustainable geographical indications. Rome: Food and Agriculture Organization and SINER-GI. Vandhana, M. (2013, January 18). Geographical indication tag for ‘Madurai malli’. The Hindu. Retrieved June 25, 2016, from http://www.thehindu.com/news/cities/ Madurai/Geographical-indication-tag-for- %E2%80%98MaduraiMalli%E2%80%99/article12308395.ece accessed Vinayan, S. (2015). Willingness to pay for GI products in India: The case of Darjeeling tea and Pochampally Ikat. Hyderabad Social Development Papers, 3(1-3), 1-21. Yadav, Y. (2016, March 27). Dying pomegranates and the threat to India’s new farming. The Wire. Retrieved June 23, 2016, from https://thewire.in/26136/dying-pomegranates-and-the-threat-to-indias-new-farming/

107 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Re-examining the Delivery of Legal Aid in Mumbai

Vandita Morarka1

A welfare state stresses that no one should be deprived of legal justice. Legal aid was first established in England and Wales as part of the postwar effort to create a welfare state for those too poor to afford basic services. India that claims to be a welfare state seeks to provide necessary legal aid service to the poor, to the helpless, to an individual unable to bear expenses to start and continue a legal battle for legal justice. Legal Aid in India is governed by the Legal Services Authorities Act, 1987 and various related regulations and State based legislations. A combination of governmental and nongovernmental efforts work towards increasing the incidence of legal aid. This paper analyses how the lack of awareness and a negative perception of legal aid in Mumbai has created a service delivery problem that needs intensive policy driven corrective measures for ensuring access to justice. The paper recommends solutions towards building a more robust legal aid delivery system. Key words: : legal aid, access to justice, service delivery, perception, awareness

elfare state is based on the principles of equality of opportunity, equitable distribution of wealth, and public responsibility for those unable to avail Wthemselves of the minimal provisions for a good life. Welfare state is a concept of government where the state plays a significant role in protecting and promoting the economic and social well-being of its people. Welfare states in their very meaning encompass the need for adequate means of access to justice for all without hindrance due to economic incapacity or need. Without the provision of means to access enforcement of legislations meant to protect one’s rights or advance social welfare, the legislations and welfare schemes cannot be fully realised. Legal aid ensures that no one loses out on the protection of their rights and access to the legal system by virtue of financial constraints. Legal aid, in its basic essence, involves the providing of public funds or services to those who are incapable of providing for legal costs by themselves. Article 39A, under the Directive Principles of State Policy, inserted by way of a Constitutional Amendment in 1976 to the Constitution of India, reads, Equal justice and free legal aid - The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

1Vandita Morarka ([email protected]) is the founder and chief executive officer of One Future Collective. This paper is based on her thesis submission towards the completion of her MA (Hons.) in Public Policy at Department of Civics and Politics, University of Mumbai.

Re-examining the Delivery of Legal Aid in Mumbai / Vandita Morarka 108 Article 39A envisages that the State shall provide for all its citizens a legal system that is based on the tenets of justice and equality and will ensure that justice is not denied to any person due to any sort of economic incapacity or other disability. The Directive Principles of State Policy, though non-enforceable, form the guiding principles for directing socio-economic development of the nation, legal aid is incorporated here as a fundamental principle that needs to be fulfilled to ensure that the state provides adequately for the welfare of all. Further, Articles 14 and 21 of the Constitution of India also provide for the fundamental right to equality before law and the right to protection of life and personal liberty. These rights have been interpreted in such manner by the judiciary, so as to ensure that the need for legal aid and upholding of the fundamental rights of citizens are not trampled upon and that access to justice does not become a function of economic capacity or prowess. The Supreme Court, in its various judgements, has upheld the right to free legal aid services as essential to ensuring that the principles of natural justice are met and that fundamental rights guaranteed under Article 21 are ensured. The need for legal aid can also be seen in international resolutions and agreements. Principle 1, Clause 14 of Resolution No. 67/187 of the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems states: The right to legal aid, therefore, has been recognised as an essential element of a fair, humane and efficient criminal justice system that is based on the rule of law. This right is a foundation for the enjoyment of other rights, including the right to a fair trial, and is an important safeguard that ensures fundamental fairness and public trust in the criminal justice process. The International Covenant on Civil and Political Rights under Article14 (3)(d) also guarantees to everyone, Right to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it. It clearly states that it is the right of every person to have legal aid where they are unable to pay the costs for legal assistance. While Article 39A falls under the Directive Principles of State Policy, legislation, by way of the Legal Services Authorities Act, 1987, gives it enforceable backing and brings to fruition the effort of the Constitution makers to build a more just and equitable society. The Legal Services Authorities Act, 1987, covers a wide array of legal aid services and also outlines to whom legal aid is applicable. It looks at Lok Adalats (people’s courts), legal aid camps and the setting up of legal aid funds and legal aid services authorities at various levels. Later legislation and government efforts have highlighted further aspects of the need to provide competent legal services, as under National Legal Services Authority (NALSA) (Free and Competent Legal Services) Regulations, 2010.

109 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Legal aid awareness programme In pursuance of the Legal Services Authorities Act, 1987, and otherwise, several schemes and programmes have been formulated to increase legal aid awareness and legal literacy in general. NALSA, under whose purview these schemes and programs lie, has built a plan that aims at ensuring delivery of basic legal knowledge to specific groups in an attempt to aid them in the recognition and assertion of their legal rights. NALSA works with various bodies like the National Commission for Women, Ministry of Social Welfare etc., to ensure holistic development of its strategy. It does make efforts to increase publicity through the Broadcasting Ministry and Prasar Bharti and undertakes measures like setting up hoardings, producing short documentaries, carrying out advertisements, providing publicity material to State Authorities etc. It organises legal aid camps, workshops, seminars across the country in partnership with other Legal Service Authorities, nongovernmental organisations (NGOs) etc. towards increasing legal awareness. It has developed audio visual content that is distributed through the Directorate of Field Publicity, Government of India. A scheme to provide for accreditation of Voluntary Social Service Institutions, to build an interlinked network of voluntary organisations aimed at increasing legal literacy, awareness and legal services publicity has been developed as well. Alongside, it develops micro legal literacy projects in all States. Specific legal awareness and grievance redressal programs for supporting schemes through the State Legal Services Authorities have also been evolved. It also trains social workers and volunteers as paralegals to help bridge the gap between the community and the legal system. The 222nd report of the Law Commission of India also stresses on the need for legal literacy and the need to create awareness regarding legal aid provisions. It also touches upon how such awareness can aid the use of Lok Adalats and Nyaaya Panchayats and lead to speedier settlement of disputes (Law Commission of India, 2009). Several NGOs like Majlis, India Centre for Human Rights Law, in Mumbai and Sahyog in Pune etc., work towards legal aid awareness and training of social workers as paralegals - these efforts though are often restrained due to a lack of adequate resources, in terms of finances and human resources. (Majlis Research Centre, 2000) The Department of Justice, Ministry of Law and Justice, Government of India is implementing a Project on ‘Access to Justice for Marginalized People’ (A2J) with support from the United Nations Development Programme. This project is geared at strengthening access to justice for the marginalised, by giving support to efforts that aim to reduce barriers faced by them. These barriers are identified as being a result of a lack of awareness, inaccessibility of legal aid and the absence of support services to facilitate access to justice. It had reached about two million people in seven States by 2012 and had trained 7000 paralegal workers and 300 lawyers. (Government of India, Ministry of Law and Justice, Department of Justice and United Nations Development Program, 2012) It worked in association with Tata Institute of Social Sciences to set up helpdesks at Observation Homes in Maharashtra to provide social and legal guidance to those falling under the juvenile justice system. It is also supporting legal aid and legal empowerment initiatives, these details are highlighted in the report of the International

Re-examining the Delivery of Legal Aid in Mumbai / Vandita Morarka 110 Conference on Equitable Access to Justice: Legal Aid and Legal Empowerment, by the Department of Justice, Government of India, and the United Nations Development Program. However, a persistent problem with policy in India is its implementation. Well formulated and well intentioned policies lose steam because of not gauging possible delivery faults in time and taking precautionary measures to correct them to ensure that policy initiatives are effective in reality. It is this concern that this study seeks to examine. Lack of awareness can result in a underutilisation of a service provided by the government. Problems of perception towards the quality of a service can lead to the reduction or complete nonusage of a service, especially in legal cases where persons involved generally have high stakes in the outcome of the case, services that are perceived as being of poor or subpar quality are less likely to be utilised as legal cases have immense impact on the lives of persons involved. Failure of most welfare state measures are linked to a lack of awareness and issues of implementation, this holds true for delivery of legal aid services as well. Assessing legal aid in Mumbai: Awareness and perception as service delivery problems The objectives of this study are: • To measure awareness legal aid in Mumbai. • To measure perception of legal aid. Survey Design The survey was the research tool designed to assess legal aid awareness and perception among the following categories of persons, all of whom had lived in Mumbai for at least a year: • Low income groups • Middle/High income groups • Lawyers The survey questionnaire for those of low and middle/high income groups was the same while that for lawyers had some additional questions. Categories in terms of those who are engaged as lawyers and are thereby de facto providers of such legal aid services and those who are of the low or middle/high income groups, where most are beneficiaries of such legal aid services helped gauge the difference in opinion from both ends of the spectrum in terms of service delivery. Income categories helped assess if there is any fundamental difference in legal aid perception and awareness between those who have the economic capacity to pay for legal services by themselves and those who do not have such capacity. Income categories were defined as follows: low income category was defined as annual income below three lakh rupees for a household, middle income was defined as annual income between three to six lakh rupees for a household, and high income was defined as annual income above six

111 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 lakh rupees for a household; the middle and high income group was taken as one group while collecting responses. No such income division was made amongst lawyer respondents. Care was taken to ensure that only one member from a each household responded to the survey. The survey also proposed to understand gaps in awareness and perception amongst people with regard to legal aid in terms of their income level and which end of the service delivery spectrum they lie at. A stratified sampling method was followed and accordingly, groups were identified to ensure a diversity of thought and experiences in terms of legal aid awareness and perception; data was collected using the snowball technique. Initially the survey was distributed amongst known persons and they were asked to distribute it further, this was done through online and offline methods. Surveys for low income categories were collected by visiting the locations and getting more respondents through references from the initial respondent. Surveys were collected by way of Google forms online, as well as through printed forms, manually. Google forms were circulated online by way of social media channels, Facebook and Twitter, and sent personally to individuals over WhatsApp and Email and were further distributed by recipients. Printed forms were manually distributed to low income respondents that could read, while those who could not were taken through the survey orally. Each survey group had 100 respondents, with a total of 300 respondents. The survey was translated to Hindi and Marathi orally, where required. The questionnaire included a mix of open ended and binary response questions. The overall objective of the research study is to understand the awareness and perception of legal aid in Mumbai and to examine corresponding results against the axiom of service delivery. To this effect, the limitations of the study are: • Short duration of time available for the study. • Limitation of resources, in terms of human resources. • Location focused on is only Mumbai. • Unwillingness of lawyers, especially younger lawyers to speak openly about issues regarding legal aid from amongst the legal fraternity. Demographics of the respondents In terms of age, seven respondents were below the age of 18, 118 respondents were between 19 and 25 years of age, 146 respondents were between 26 and 40 years of age, 25 respondents were between 41 and 60 years of age and four respondents were above the age of 60. In terms of gender, 121 0f the 300 respondents were female, 179 were male, there were no respondents of the third gender. Forty-two of the 100 low income group respondents had no education at all, there were no such middle/high income respondents. Forty-three of the 100 middle/high income respondents had an undergraduate degree whereas only four of the 100 low income respondents had an undergraduate degree. Amongst lawyers, 73 of the 100 respondents had LL.B and 26 LL.M. degree; one had another postgraduate degree.

Re-examining the Delivery of Legal Aid in Mumbai / Vandita Morarka 112 Key findings The survey had several questions that were aimed at gauging awareness and perception of legal aid among respondents. Further results and discussions pertaining to these questions are analysed here within the frameworks of ‘awareness’, ‘perception’, ‘direct involvement’, ‘right to legal aid’ and ‘suggested solutions’. Awareness 1. Awareness of legal aid provisions is very low amongst low income group and relatively better in the middle/high income group. Figure 1. Did you know that India has a law that provides legal aid to those who can’t afford legal services?

As shown in Figure 1, all lawyers knew of the law that provides for legal aid services, 34 middle/high income respondents and 87 low income respondents did not know that the law provides for legal aid provisions at all. There is a marked lack of awareness in the lower income group and even a large portion of the middle/high income group do not know of the law regarding legal aid. In terms of service delivery, this is a failure at the first step itself.This creates an information asymmetry between service providers and beneficiaries of the service. 2. Awareness of details of legal provisions contained within legal aid legislation was even lower among low and middle/high income groups. As can be seen from Figure 2, only two respondents of the low income group and 36 respondents of the middle/high income groups knew of Lok Adalats, while earlier 13 and 66 respondents of respective groups had known of legal aid legislation, highlighting gaps in knowledge and a problem of incomplete information of those who have some awareness as well. All lawyers knew of Lok Adalats.

113 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Figure 2. Did you know that the law provides for Lok Adalats for speedy settlement of disputes?

The distribution of responses to the question, “Did you know that the law provides for legal aid camps to dispense information about laws and help persons with legal issues on a mass scale?” are as in Figure 3. Similar results are seen here, none of the low income respondents knew of such a provision and only 19 of the middle/high income respondents knew of such a provision. Here three lawyers did not know of this provision as well, still, the stark difference among all three categories remains visible. Figure 3. Awareness about law providing for legal aid camps

Other questions also assessed awareness of respondents to various facets of the law regarding legal aid and newly launched services in India, a similar pattern was observed. Most respondents did not know of Lok Adalats, legal aid camps or regulations providing for competent and good quality legal aid. 3. Awareness of new legal aid services and initiatives launched by the government was low amongst all groups. This question was put to the respondents, “Do you know of any of these services launched recently by the Government of India towards

Re-examining the Delivery of Legal Aid in Mumbai / Vandita Morarka 114 legal aid?”. A list of options was provided, including services like Pro Bono Legal Services, Tele Law, Nyaaya Mitra. The respondents could select more than one answer as well. Figure 4. Awareness about services launched by the Government of India towards legal aid

As shown in Figure 4, 95, 72 and 38 respondents of the low income group, middle/ high income group, and lawyers group, respectively, did not know of even one of these services recently launched by the Government. When the service provider itself does not have knowledge of the new services that they must provide, then conceptualising such a service on paper makes no difference towards changing ground realities. 4. The distribution of responses to the question, “Did you know that there are regulations that make it mandatory for the State to provide you competent, good quality legal services?” – are as in Figure 5 below. Regulations controlling this fall under the NALSA (Free and Competent Legal Services) Regulations, 2010 while the earlier provisions fell under the Legal Services Authorities Act, 1987. Four, 36 and 95 respondents from the low income group, middle/high income group and lawyers group knew of these regulations respectively. There is a marked information asymmetry between groups and it is such asymmetry that leads to market failures.

115 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Figure 5. Awareness about regulations that make it mandatory for the State to provide competent, good quality legal services?

5. The distribution of responses to the question, “Do you know someone who has accessed legal aid services?” are as in Figure 6 below. Only four respondents of the lower income group and 22 persons of the middle/high income group knew of persons who had availed of legal aid services. Of all lawyers, 10 did not know of anyone who has accessed legal aid services. Figure 6. Do you know someone who has accessed legal aid services?

Majority of the respondents agree that there is a need for awareness creation regarding legal aid services. It is worth mentioning here that one of the reasons for the lack of awareness could be lack of adequate funds. The 2017-18 Union Budget gives R 1,744.13 crore for administration of justice: including justice delivery, legal reforms, development of infrastructural facilities and autonomous bodies associated with legal matters and education. This is far less than one per cent of the total budget of R 21.47 lakh crore; one

Re-examining the Delivery of Legal Aid in Mumbai / Vandita Morarka 116 must especially consider such lack of funding in light of the judiciary being burdened with a backlog of over three crore cases. The allocation for National Legal Services Authority in revised estimates for 2016-17 was R 83.95 crore and for 2017-18 it is R 100 crore (LiveLaw News Network, 2017). These budgetary allocations are much less than what is needed and serve as a roadblock on the path to an effective and efficient legal system in general. This will in turn hamper the projects in place for building awareness and will reduce quality of service perception. Figure 7. Quality of legal aid in India

Perception Perception of legal aid is uniformly negative; surprisingly lawyers are most strongly of the opinion that legal aid in India is of poor quality. 1. Responses to the question asked respondents, “What do you think about the quality of legal aid in India?” are as in Figure 7. Most respondents who did know of legal aid have marked its quality as poor or very poor. In fact even the lawyers that form a part of the provider side of the service has marked it poorly: 55 lawyers have marked the quality of legal aid as poor and 22 lawyers have marked it as very poor. Of the few that did know of legal aid in the low income community, only two have marked the quality of legal aid as good or anywhere average/above average. Thirty six respondents of the middle/high income group have also marked the quality of legal aid as poor and 14 have marked it as very poor. This reflection of the perception of people towards legal aid may lead to their lack of use of legal aid services even in times of need, as seen later, and is in general also a reflection of the bad quality of the legal aid system as it stands today. 2. Most respondents across groups stated that they believe lawyers provide subpar services in legal aid cases, this belief was reflected most strongly in responses from the lawyers itself. A question asked respondents, “Do you think that lawyers provide subpar legal services in legal aid cases?”

117 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Figure 8. Do lawyers provide subpar legal services in legal aid cases?

As shown in Figure 8, 86 lawyers, 41 middle/high income respondents and nine low income respondents agreed with this. Of the remaining, 11 lawyers, 11 middle/ high income respondents and two low income respondents were neutral, the others disagreed and thought the lawyers provided quality legal services in legal aid cases. This highlights how such belief may be derived in itself from actual experiences of subpar services by lawyers. Lawyers themselves stating this definitely highlights a problematic trend in the quality of service delivered. Also, it is surprisingly that lawyers themselves are the largest group that believe lawyers provide subpar services in legal aid cases. Even amongst those of the low income groups and middle/high income groups that know of legal aid, the perception is mostly that lawyers provide subpar legal services when dealing with legal aid cases. This has important implications as it may cause parties to refrain from accessing legal aid from fear of bad service. Providing services that are not up to the mark in effect violates the right of a person to legal aid. It is beneficial to look at causes of such subpar delivery of services and bring in more effective monitoring and evaluation measures to prevent such further subpar delivery. 3. Low and middle/high income respondents mostly state that perception of legal aid quality has an effect on usage of legal aid, while lawyers mostly don’t think so. Figure 9. Do you think the perception of legal aid affects peoples’ use of it?

While 66 of the low income group respondents and 76 of the middle/high income group respondents stated that perception of legal aid affects people’s use of it, 63 lawyers

Re-examining the Delivery of Legal Aid in Mumbai / Vandita Morarka 118 disagreed and stated that perception of legal aid does not affect use of legal aid, as shown in Figure 9. Surprisingly then, on being asked for reasons why clients refuse legal aid, most lawyers stated that lack of belief in the quality of the legal aid system is what drove clients to not seeking legal aid even in dire financial circumstances. This highlights a strong lack of understanding of the needs of the beneficiaries of a services by the providers of it, even when such needs are directly expressed by the beneficiaries themselves. Such flawed understanding makes addressing service delivery problems difficult. 4. A question was asked of lawyer respondents, “Why do clients refuse legal aid even when legal fees are prohibitive or unaffordable for them?” As shown in Figure 10, a fear of quality of legal service being provided through legal aid being bad/subpar is what kept most clients away from accessing legal aid, as told to the lawyers. There was an additional concern of the process being time consuming. Clients also seemed to be unsure of the legal aid in general and a primary driving force away from legal aid was the fear of losing their case as a combination of the above stated factors. This contrasts with what the lawyers had earlier stated, that they do not think perception of legal aid matters as much for persons to use legal aid, although clearly clients themselves had made it clear that perception of legal aid is a strong factor in deciding if they use legal aid or not. Figure 10. Reasons why clients refuse free legal aid

Direct Involvement 1. 16 respondents of the low income group and 18 respondents of the middle/high income group stated that they had been part of a legal case, only one respondent from each category stated that they had used legal aid services. Only 60 of the lawyer respondents had been part of a legal aid case, 77 of them had referred a case for legal aid. 2. None of the lawyers had registered for providing any of the new legal aid services provided for by the government. The purpose was to assess the motivation towards engagement of lawyers with legal aid services.

119 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Right to Legal Aid The survey also had questions to understand subjective beliefs of citizens surrounding legal aid. These questions looked at assessing what the respondents felt about their personal right to legal aid and how necessary such a right was for them towards building a just and equitable society. 87 of the respondents of the low income group and 87 of the middle/high income group believe they have a right to legal aid. 94 of the lawyer respondents believe they have a right to legal aid. A question asked respondents, “Why do you/Why do you not believe you have a right to legal aid?” - responses are highlighted in Figure 11 (a), (b) and (c) below. Most respondents expressed the belief that legal aid is a fundamental right under the Constitution of India that is accorded to them by virtue of them being citizens of India. All highlighted the need of effective legal aid services as a means to securing access to justice. There is though a difference in responses as well; persons of the low income group veered towards stressing on the need for legal aid in terms of affordability of legal services and help for the poor alongside their claim of it as a right towards securing the future of their family. Respondents of the middle/high income group and the lawyers group spoke primarily in terms of fundamental rights, constitutional provisions and citizenship guarantees. This creates a difference in the approach respondents of different groups take towards legal aid and the need to maybe account for the needs of certain groups more as opposed to that of others. Clearly for certain groups legal aid is a matter of securing basic interests which are otherwise unaffordable while for others it forms more of an important part of the fabric of constitutionality and upholding of rights. Fig. 11. Why do you/Why do you not believe you have a right to legal aid?

(a) Low Income

Re-examining the Delivery of Legal Aid in Mumbai / Vandita Morarka 120 (b) Middle/High Income

(c) Lawyers Majority of the respondents said that they believed they had a right to legal aid and that effective legal aid was important towards a just and equitable society. A belief in legal aid as a fundamental right, constitutionality of equality before law and guarantees of citizenship were the driving reasons behind such belief in a right to legal aid. Additionally, for low income groups, the right to legal aid also stemmed from the need for help in cases of economic incapacity in terms of legal expenses. Suggested solutions To an open ended question, “What do you think can be done to improve perception of legal aid?”, the key solutions suggested were geared, as can be seen in Figure 12 (a), (b) and (c) below, towards creation of awareness and improving the perception of legal aid. There was also a focus on use of on-ground activities amongst low income group and educational programs at various levels in the middle/high income group and lawyers group. Lawyers also suggested a need for student participation and direct

121 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 engagement of lawyers with various communities to improve perception of legal aid. Figure 12. Measures to improve perception of legal aid

(a) Low Income

b) Middle/High Income

Re-examining the Delivery of Legal Aid in Mumbai / Vandita Morarka 122 (c) Lawyers Policy recommendations While the government has taken steps towards building legal aid frameworks and providing for its awareness and quality improvement, the survey results clearly highlight a marked lack of awareness amongst the targeted beneficiary. Awareness creation programmes by government agencies and other bodies have not yielded expected results. While schemes on paper highlight India’s commitment to provision of legal aid to all its citizens, lack of effective implementation and ineffectual delivery channels ensure that legal aid, and thereby a component of the corollary of access to justice for all, is not realised. To that effect, some policy recommendations are suggested here that look at improving awareness and perception of legal aid. There is an urgent need to formulate an action plan that is solely directed towards ensuring that more and more people are aware of their legal rights and legal aid provisions - to ensure that the ideals of legal aid under a welfare state set up can be realised. Policy recommendations here are looked at under the heads of recommendations for ‘Awareness Creation’ and ‘Perception Improvement’. Awareness creation 1. National legal aid policy: There is a need for India to develop a comprehensive national legal aid policy that covers under its ambit all possible legal aid schemes and programmes and gives it a definite institutional structure. Such national policy needs to account for definite measures of creating awareness of legal aid programmes and improving the perception of legal aid. Provision of capacity support, in terms of funding and provision of trained human resources, is imperative. 2. Comprehensive media strategy: Awareness creation at a larger scale for legal aid services requires concentrated effort and a clear and defined media strategy. The media strategy and content needs to be such that it engages persons so as to make them want to know more about legal aid provisions and that captures on audiences of already existing mediums rather than necessarily creating new mediums for delivery of such information, some ways in which this can be done are:

123 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 i. Television Advertisements can be issued in multiple languages, in public interest, that provide for creating awareness amongst people about the awareness of legal aid laws in the country and how those interested can know more about these services. The content of such advertisements can be built or mentored by leading media houses while a nationwide contest for creating such content can be launched to engage young professionals in the media space and thereby create more interest and publicity for legal aid provisions. ii. Radio shows could be utilised to have similar advertisements regarding legal aid services. A portion of Mann Ki Baat (Mind’s Voice) by the Prime Minister can focus on legal aid provisions and its intertwined nature with access to justice and social welfare. A radio channel/show, similar to the TV channel proposed, can also be launched to engage listeners on legal aid issues. Otherwise a radio hour that daily deal with key issues regarding legal aid can be launched in various languages in an easy to follow question and answer format, this would engage listeners more effectively and increase publicity. iii. Newspaper advertisements that provide easy to understand and visually appealing infographics of legal aid in India will be beneficial towards providing legal aid knowledge to a larger audience. iv. Display of informative posters on legal aid in trains, buses and other local transport alongwith announcements over their intercom system will boost the audience reached towards legal aid awareness. 3. On ground efforts: Alongwith a comprehensive media strategy, the need remains for on ground efforts to create legal aid awareness. Any national legal aid policy will have to provide for a set framework for carrying out on ground activities regarding legal aid awareness creation and also develop government approved toolkits that allow for easy training of individuals in delivering legal aid based information and ensure uniformity of content and correctness of material delivered. Using theatre groups to create content that is engaging for audiences by means of street plays and musical performances is an effective engagement tool, especially in urban slum areas and rural and tribal backward areas. This would also make the idea of door to door legal aid service and information delivery easier to achieve. 4. Education programmes: Educational institutes must also engage their students to promote the cause of legal aid through programmes that can serve as immersive learning for their students. A well defined National Service Scheme project that aims at expanding awareness of legal aid by student volunteers can help achieve this. All law related courses must include a compulsory project to further legal aid awareness as part of a one’s practical training assessment, this could be by way of organisation of legal aid camps by these students or door to door dissemination of information. 5. Legal fraternity engagement: All legal offices and premises, private or public, must have a compulsory conspicuous display of legal aid provisions in the form of banners or posters as prescribed by the government.

Re-examining the Delivery of Legal Aid in Mumbai / Vandita Morarka 124 Perception improvement Awareness improvement efforts will automatically highlight governmental support and commitment towards building legal aid services. Alongside those measures, certain quality control and improvement measures can be adopted to improve the perception of legal aid. I. Public legal aid cases directory: All cases that are delivered under legal aid must be registered onto a separate web portal with prescribed details and a unique legal aid case number must be provided to ensure public tracking of such legal aid cases in real. Making such information public in real time will ensure that undue delays, lack of counsel provision etc. are accounted for as they happen and allow for people to take action accordingly. II. Helpline number: A single helpline number that allows for beneficiaries of legal aid to register complaints regarding quality of service with their unique legal aid case number, as provided above, would aid in building public trust towards governmental desire to improve legal aid. This helpline number could also be used to access legal advice from lawyers. III. Publishing of success stories: To build a better image of the existing legal aid set up and thereby increase its usage, it is imperative to inform people of the benefits that other people are receiving through use of legal aid. Use of traditional media and social media to start legal aid success stories campaigns would be beneficial. Television advertisements can also include snippets of beneficiaries speaking of how legal aid has benefited them. IV. Legal aid jan sabhas (people’s assembly): Arrangement of such public gatherings in designated locations for people to air grievances regarding legal aid procedures and/or realities will aid discussion between the lawyers and beneficiary groups and remove the barrier that exists between service providers and service beneficiaries and help devise systems to improve legal aid delivery and give beneficiaries a chance to be heard and to get their grievances resolved. Policy that aims to address legal aid awareness and perception issues must assess why there is a lack in quality of service delivery and aim to improve it through better incentives, training programs and quality based intervention programs that undertake continuous monitoring and evaluation of legal aid service delivery from both the demand and supply side and corrects gaps as they may arise. Conclusions Access to justice should be one of the key factors that governments account for while designing welfare based policies. Availability of services on paper do not amount to much when there is a lack of delivery in real terms, irrespective of whether this lack of delivery exists because of faults in the delivery line or due to general lack of awareness of such services even existing. The survey analysis highlights the lack of awareness of legal aid services amongst respondents who are beneficiaries of these services and a

125 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 very poor perception of legal aid services amongst all respondents, including lawyers, who are key service providers of these services. A uniform line of thought that emerged through the survey is that all persons perceive legal aid provision as necessary and consider it imperative to achieve a just and equitable society. This emphasises the need for the State to formulate an effective and comprehensive national legal aid policy that covers all dimensions of service delivery, including media strategy, on ground efforts, education programmes, involvement of the legal fraternity as well as quality improvement and better grievance.

References Constitution of India. Retrieved June 2, 2017, from india.gov.in/my-government/constitution-india/ constitution-india-full-text Government of India, Ministry of Law and Justice, Department of Justice and United Nations Development Program. (2012). International Conference on Equitable Access to Justice: Legal Aid and Legal Empowerment. New Delhi: Department of Justice, Ministry of Law and Justice and United Nations Development Program. Retrieved May 20, 2017, from www.in.undp.org/content/dam/india/docs/DG/ equitable-access-to-justice-legal-empowerment-legal-aid-and-making-it-work-for-the-poor-and- marginalised.pdf Law Commission of India. (2009). Report No. 222: Need for Justice-Dispensation through ADR etc. New Delhi: Law Commission of India. LiveLaw News Network. (2017, February 2). Sidelined Again? Judiciary Gets Just Rs 1,744.13 Cr In Budget. LiveLaw.in. Retrieved November 20, 2017, from http://www.livelaw.in/sidelined-judiciary-gets- just-rs-1744-13-cr-budget/Majlis Legal Centre. (2000). Report on the Activities of Majlis. Mumbai: Majlis Legal Centre. Retrieved November 20, 2017, from http://majlislaw.com/pdfs/ AnnualTrusteeReport1999-2000.pdf

Re-examining the Delivery of Legal Aid in Mumbai / Vandita Morarka 126 The Welfare State Challenges for Governance

Venkatesan Ramani*

Influenced by the ideals of equality and the compulsions of electoral politics, elected governments in India have embraced the implementation of welfare measures to improve the quality of life of their citizens. Starting with the creation of large bureaucracies to implement welfare programmes, policy formulation of welfare measures has, over the years, moved from state distribution of goods and services to the more recent efforts to empower the individual through placing financial resources at her disposal to let her decide how she wants to improve her quality of life. Technological advances in the digital sphere have enabled governments to move in this direction, exemplified by the paradigm shift in Indian economic and social policy in recent years. This paper seeks to highlight the path taken so far and the challenges facing the welfare state in India in the coming decades.

Keywords: welfare state, Constitution of India, Sarva Shiksha Abhiyan, National Health Mission, Integrated Child Development Services, child malnutrition, child mortality, public distribution system, supplementary nutrition programme, JAM, Aadhaar, universal basic income, economic survey, Supreme Court

he concept of the ‘welfare state’, as it is commonly understood today, is a creation of the post-World War II era. While there have been efforts by societies and Tgovernments right since the 18th century to mitigate the hardships faced by the most disadvantaged sections of society it is only after 1945 that the idea of ensuring a certain level social services for all citizens has gained currency. This was witnessed in the Western world and in the large body of nations which secured their independence from their colonial masters in the decades from the 1940s to the 1960s. The span of the welfare state has been well articulated by Asa Briggs (1961): A “welfare state” is a state in which organized power is deliberately used (through politics and administration) in an effort to modify the play of market forces in at least three directions – first, by guaranteeing individuals and families a minimum income irrespective of the market value of their

*Venkatesan Ramani ([email protected]) is a retired Indian Administrative Service (IAS) officer of the Maharashtra cadre, with degrees in economics and law. He served in various capacities in the Governments of India and Maharashtra between 1980 and 2010. Mr. Ramani’s areas of interest are public policy aimed at inclusive growth, developing innovative ideas and using the latest technology to promote economic development, especially in the social sector, where he works with governments, international organisations, universities, corporates and non-profits. His blogsite The Gadfly Column provides a window on public affairs and policy in India and elsewhere in the world.

127 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 work or their property; second, by narrowing the extent of insecurity by enabling individuals and families to meet certain “social contingencies” (for example, sickness, old age and unemployment) which lead otherwise to individual and family crises; and third, by ensuring that all citizens without distinction of status or class are offered the best standards available in relation to a certain agreed range of social services. (p.228) This is not to discount the variations in the structure and range of welfare measures that different national governments adopt to meet the needs of their citizens. These differences arise both because of the ideologies influencing the governing elites charged with the formulation of welfare policies as well as the pressures brought to bear on governments as the economy/society moves from a pre-industrial structure into its modern, industrial version. Growing industrialisation and urbanisation disrupt traditional, rural patterns of life with their support systems, particularly in relation to the family, and bring up issues related to the elderly, working women and unemployed youth. Concerns about equality and meeting the minimum basic needs of every citizen also inform State efforts to supply welfare services. The Constitution of India has enunciated several provisions directed towards securing the welfare of the citizens of India. Some of these, like the provision of free and compulsory education to children in the six-14 age group and the restriction on employment of children under 14 in hazardous occupations, are embedded in the Fundamental Rights vested in citizens. The Directive Principles of State Policy in Part IV of the Constitution (while not binding on the State) are quite explicit in their intention in exhorting the State to take several steps to secure the welfare of its citizens. These include the right to adequate means of livelihood, equal pay for equal work for both men and women, securing just and humane conditions of work, early childhood care and education for children under six and maternity relief, among others. Legislation relating to conditions of labour in industrial employment came into existence even prior to India’s independence in 1947. This was probably reflective of the influence of the welfare state philosophy in the United Kingdom and many other Western countries, including the United States of America, as well as the growing numbers of factory workers in India and the spread of the nationalist movement. Acts governing workmen’s compensation, payment of wages, formation of trade unions and conditions of industrial employment were enacted even prior to India’s independence, with several other statutes, relating to conditions of work and provision of facilities (Factories Act, 1948), minimum wages (Minimum Wages Act, 1948) and the settlement of disputes between employers and workmen (Industrial Disputes Act, 1947) coming into force even prior to the adoption of the Constitution. Many other legislations have been enacted in the years after independence, covering both the formal and the informal sector. What, however, really marks out the welfarist approach of the Indian State is its adoption of extensive public policy measures, right from 1947, in the areas of food security, housing, healthcare and education, as evidenced by the development of the

The Welfare State Challenges for Governance in India_Venkatesan Ramani 128 public distribution system, the emphasis on public hospitals and dispensaries, the universalisation of school education and the provision of public housing. The public distribution system is operated jointly by the Central and State governments. While the Central government manages the procurement, storage and transportation of food grains, the State governments are responsible for the distribution of the food grains received to households through fair price shops. To provide families with a roof over their heads, house construction programmes have been taken up in both rural and urban areas over the past forty years. Health care has been sought to be provided through rural hospitals, primary health centres and sub-centres set up in rural areas and dispensaries and hospitals in urban areas, all managed by government-appointed health staff. With the constitutional mandate of providing free primary schooling to children in the six-14 age group, a massive structure of State-run primary and secondary schools has been created across the country, run by huge education bureaucracies under the control of State governments. Expenditure on these programmes has been significant over the years, even if there has been criticism from various quarters that, as a percentage of government budgets, budget outlays, especially in the critical areas of education and healthcare have been inadequate and fall far short of allocations in other countries. For example, India’s government expenditure per student on primary education as a percentage of gross domestic product (GDP) per capita fell from 11.9 to 9.5 between 1999 and 2015 as compared to a rise in the same period from 10.7 to 20 (in Brazil) and from 13.8 to 17.6 (in South Africa) (World Bank, 2017a). In the healthcare sector, India’s public health expenditure as a percentage of GDP at 1.41 per cent is far below Brazil (3.82 per cent) and South Africa (4.24 per cent). In fact, with a public health expenditure of just 30 per cent of total health expenditure, India ranks among one of the lowest in the world, below its immediate South Asian neighbours (except for Bangladesh) and well below its Brazil, Russia, India, China and South Africa (BRICS) partners (World Bank, 2017b). Recent changes in the federal fiscal architecture in India have raised fresh concerns about the role of the State in promoting social sector activities. State governments are now required to raise 40 per cent (as against the earlier 30 per cent) of prominent centrally sponsored schemes (CSS), like the Sarva Shiksha Abhiyan (Education for All Movement), Mid-Day Meal, National Health Mission and Integrated Child Development Services. With the acceptance by the Union government of the Fourteenth Finance Commission recommendation to devolve an additional 10 per cent of central taxes to the States coupled with the lesser contribution by the Union government to the CSS, there is naturally greater concern over the priority that States would give to flagship social sector schemes, given the past history of fiscal profligacy of State governments and the continuing pull of populist measures like farm loan waivers and provision of freebies to the population (television sets, laptops, etc.). The doing away with the distinction between plan and non-plan expenditure from financial year 2017-18 and the focus on capital and revenue expenditures also raise concern about the likely adverse impact on sectors like health and education, given that a very large part of the expenditure in these sectors is on the revenue account, which is the first area to experience budget cuts when there is any strain on State government finances.

129 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 There is also need to be cautious about drawing a simple correlation between government expenditure on a sector and outcomes in that sector. A recent analysis by IndiaSpend shows that although Rajasthan spent 5.6 per cent of aggregate expenditure on public health and family welfare as compared to 4.1 per cent per cent in undivided Andhra Pradesh, the former has a maternal mortality ratio of 244 deaths per 100,000 births as compared to 92 for the latter (Rao, 2017). A host of factors account for these variations, including household poverty levels, access to education opportunities, etc. but there is also the important factor of differences in governance standards in different States and in regions within a single State. Governance covers a range of activities – the preparation and adoption of coherent, logical policy measures, effective and timely targeting of budgetary resources to the appropriate sectors and geographical areas, putting in place and empowering the necessary implementation mechanisms and rigorously monitoring programme outcomes to assess effectiveness of fund utilisation and attainment of programme outcomes, with corrections being made as necessary to improve outcomes. This paper has drawn on experiences and analyses of programmes and pilot studies in four sectors to highlight governance issues and how these have a vital bearing on success or failure in achieving the stated objectives of programmes. Public distribution system (PDS) The PDS is implemented at the lowest level through the fair price shops (FPS) set up in most urban and rural habitations to enable households to purchase food grains at subsidised prices. As in most other States, this process of reaching food grains to the final consumer was riddled with corruption and mismanagement in the newly formed state of Chhattisgarh. Access of consumers to the FPS was limited by outreach problems, stocks of government food grains were illegally diverted to the open market, bogus ration cards were in circulation and there were delays in allocation, lifting and transportation of food grains. Above all, there was no accountability in the delivery machinery and no involvement in the entire distribution process of the communities and families for whom the food grains were intended. Recognising these systemic weaknesses, the Chhattisgarh government undertook PDS reforms from 2004 onwards through a five-pronged strategy:

(a) licences of 2872 privately run FPS were cancelled. The State government issued a new PDS Control Order in December 2004, with FPS being allotted only to Panchayati Raj institutions, urban local bodies, self-help groups and community- based cooperative societies;

(b) outreach capabilities of the PDS were enhanced by the setting up of one FPS in every panchayat. Rice procurement was decentralised to improve accountability and the middleman was eliminated through the direct supply of food grains by the Civil Supplies Corporation to the FPS;

(c) the financial viability of the FPS system was enhanced through a series of measures including access to interest-free working capital loans, providing one months’ food

The Welfare State Challenges for Governance in India_Venkatesan Ramani 130 grain stock on credit and increasing the commission payable to shops on the sale of food grains and kerosene;

(d) computerisation of the supply and demand ends of the distribution chain, through computerisation of ration cards, supply chain management and FPS enabled the monitoring of stock position, food grain movement and sales in FPS; and

(e) the digitisation of processes led to greater transparency in the system, which was augmented by community participation in monitoring the distribution of food grains and use of call centres and SMS alerts to monitor food grain movement and distribution (Sheel, n.d.). These measures led to FPS coverage being extended from 2.1 million to 3.5 million customers, with the Chhattisgarh government incurring an annual expenditure of ₹1800 crore in subsidising the sale price of food grains. More importantly, independent assessments show a reduction in leakages and diversion of food grains to the open market. The estimation is that leakages from the system are down from about 50 per cent to about 10 per cent. The Chhattisgarh model has been touted as an example of how State resolve coupled with public participation and the use of digital technology can lead to effective implementation of welfare programmes (Sheel, n.d.; Drèze & Khera, 2015). Health care As observed earlier in this paper, over 62 per cent of Indians pay out of their pockets for access to private health care. This is despite an extensive network of government health facilities, staffed by qualified medical personnel, available to the public at a very nominal cost. A study carried out in Udaipur district of Rajasthan in 2002-03 by Abhijit Bannerjee and Esther Duflo (2009) reveals that both supply and demand factors play a role in poor delivery of health services. Doctors in primary health centres (PHCs) and auxiliary nurse midwives (ANMs) are frequently absent from their duty locations. The study showed that absenteeism in health sub-centres was positively related to distance from the main road, though facilities closer to the district headquarters or other towns did not report lesser rates of absenteeism. This bears out the experience of the present author in his extensive travels across different districts of Maharashtra during his service days. PHCs in remote tribal areas were invariably unattended, with doctors not reporting for duty for months at a time. Government doctors made money from private practice, neglecting their PHC duties. This contributes to a lack of confidence, especially among the poor, in the public health system and their reliance on private (often unskilled and untrained) “doctors”. The Udaipur study also highlights the prevailing popularity of curative rather than preventive remedies among the general public. At least in part, this arises from the lack of knowledge in the public and their faith in immediate relief from acute conditions rather than tackling chronic conditions. It also reflects the lack of attention of government doctors in explaining the symptoms to their patients and dealing patiently with their medical problems. While one is not

131 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 aware of the statistics, the daily out-patient department (OPD) attendance at a PHC is a good indicator of the efficaciousness of the public health delivery system. It is not surprising that a PHC in rural Tamil Nadu or in prosperous Western Maharashtra records far higher OPD numbers than one in rural Uttar Pradesh or Madhya Pradesh. The lack of accountability in the public health system has been documented in the Udaipur study. But it is amply borne out by the experiences of this author, when touring tribal areas of Maharashtra as head of the State Nutrition Mission. PHC doctors (and their nursing staff) treat antenatal care (ANC) of pregnant mothers as a routine exercise, with no application of mind to the problems the mother might face at or before the time of delivery. Not surprisingly, the latest 2015 National Family Health Survey figures released by the Ministry of Health and Family Welfare, Government of India show that only 14-35 per cent of pregnant mothers had at least four ANC visits in Uttar Pradesh, Bihar and Madhya Pradesh, as compared to 81 per cent in Tamil Nadu and 90 per cent in Kerala (Government of India, Ministry of Heath and Family Welfare. n.d.). It follows almost axiomatically that maternal mortality rates are highest in those States where the public health delivery systems are weakest. Child malnutrition and mortality Even though India has, since 1975, had in place the nationwide Integrated Child Development Services (ICDS) programme to address the issues of under-five child health and nutrition, the inescapable fact remains that the country ranks extremely poorly in international comparisons in terms of under-five child mortality rates and stunting, wasting and underweight rates in under-five children. UNICEF’s annual report The State of the World’s Children 2016 places India at 48th highest rank in 193 nations in under-5 child mortality, higher than its neighbours Bangladesh, Nepal and Sri Lanka (p.110). With 38.4 per cent of its under-five children stunted for their age, India is unfortunately in the company of nations with a far poorer record of economic development. Over 40 per cent of under-five children in five States – Bihar, Uttar Pradesh, Jharkhand, Meghalaya and Madhya Pradesh – are stunted, with unacceptably high figures for underweight and wasted children as well. (Government of India, Ministry of Heath and Family Welfare, n.d.).With a Union budget allocation of over R15,000 crores in each of the past five years (Centre for Budget and Governance Accountability, 2017), it defies comprehension as to why these do not translate into meaningful outcomes on the ground. With the Supreme Court of India mandating universalisation of the ICDS, there has been a major increase in the number of anganwadis meeting the needs of mothers and under-six children in all States of India. The reasons for the unsatisfactory performance on this front lie in the poor governance of this scheme in most States of the country. Posts of anganwadi workers are not filled in and infrastructure (including even buildings for children to sit in) is not in place in many parts of the country. The ICDS system also suffers from a top-down approach with an absence of accountability for child nutrition outcomes. Monitoring of a child nutrition indicator like weight for age is done infrequently with no analysis being done at policy levels to assess the position and take corrective policy measures. Despite many countries having gone in for recording

The Welfare State Challenges for Governance in India_Venkatesan Ramani 132 height for age to measure stunting in their child populations, governments in India are yet to accept this anthropometric indicator, although it has been recommended by the World Health Organization in 2006 (WHO, 2006). No systematic assessment of wasting by geographical area has been undertaken by any State government in India. Given the paucity of accurate, up to date data on these indicators, State policy has been piecemeal, dictated by political exigencies and emergency situations, such as media reports of child deaths due to malnutrition (Torgalkar, 2016). A major problem has been the excessive focus on the supplementary nutrition programme, which seeks to augment the calorie intake of under-five children, to the exclusion of other components of the ICDS programme, such as growth monitoring of children and nutrition and health counselling of adolescent girls and mothers. The reports of the Commissioners appointed by the Supreme Court bring out clearly the nexus between contractors, the bureaucracy and the political class in supplying nutritious food to children under the ICDS.1 Through skilful interpretation of the orders of the Supreme Court, State governments have manoeuvred to ensure supply of take home rations (THR) by contractors without going through a tendering process. There has been criticism of the quality of the rations, with a study in Maharashtra showing most under-three children do not find the THR palatable, with a large part of it being fed to cattle and other domestic animals (Marathe, Yakkundi, & Shukla, 2015). Another recent study of the implementation of the ICDS in Chhattisgarh and Uttar Pradesh highlights the large-scale corruption and financial misappropriation in the supply of both THR and hot cooked meals in Uttar Pradesh, where there is no local participation in their distribution, as compared to Chhattisgarh, where the involvement of women’s groups in the supply of both THR and hot cooked meals has led to enhanced community participation (Chanchani, 2017). Primary education School enrolment in the six-14 age group stands at 96.9 per cent in 2016. The proportion of six-14 age group children not enrolled in schools is highest in States like Uttar Pradesh and Madhya Pradesh. It is in these same States that the proportion of girls in the 11-14 age group who are out of school is also highest. Increases in the percentage of children enrolled in private schools reflects the disenchantment of parents with the public-school system. What is more striking is the poor reading and arithmetic abilities in students enrolled in classes III to VIII in government schools. The Annual Status of Education Report 2016 reveals a shocking situation – in a majority of Indian States, including many of the larger ones, less than 50 per cent of government school children in Standard V can read Standard II level text. Even more appalling, in no State in India can more than 50 per cent of government school children in Standard V do division exercises (ASER, 2017). As pithily enunciated by Rukmini Banerji, Chief Executive Officer, Pratham Education Foundation, “On the face of it, India is close to

1Two reports dated October 31, 2012 and November 29, 2012 submitted to the Supreme Court of India by the Commissioners to the Supreme Court on the Supplementary Nutrition Programme in Maharashtra, Karnataka, Uttar Pradesh and Gujarat.

133 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 “schooling for all”. But our journey towards “learning for all” is yet to begin” (2017, p. 15). This situation in Indian schools probably explains why India has, after 2009, chosen not to participate in the Program for International Student Assessment (PISA), a survey conducted by the Organisation for Economic Cooperation and Development to test education systems by comparing the test performance of 15-year-old pupils. In the tests that year, in which students from Tamil Nadu and Himachal Pradesh participated, India was placed 72nd out of 74 participating countries (Venkatachalam, 2017). Trying to find give excuses for such performance as arising out of a “socio-cultural disconnect” with the testing system still raises the question of how well India’s education system prepares its students for competing with and surviving in the outside world. While family poverty and poor educational attainments of parents do inhibit learning outcomes by, among other things, affecting the learning environment at home and handicapping the disadvantaged child, the teaching pedagogy in government schools, with its emphasis on rote learning (the “chalk and talk” methodology) fails to reach out to the majority of pupils in the classroom. Disengaged from the education process, these students become disinterested and, at some point, may well drop out of the education system altogether. Even if they continue in the system, their inability to grasp the rudiments of language and arithmetic leaves large swathes of students incapable of meeting the exacting demands of the modern economy. The losers in this process are the children, their families and the country at large. Where does India go from here? The welfare state in India, therefore, has several challenges to confront as she moves forward on its path to becoming the economic powerhouse of the twenty-first century. Two of the concerns have already been dealt with in the preceding paragraphs. The first relates to what level of budgetary support the State needs to provide to promote welfare programmes. This depends on the extent to which the State desires to, or is compelled to (for populist and ideological reasons), extend the scope of welfare programmes and the population sought to be covered. Old age pensions, food security, maternity benefits, child nutrition, basic healthcare, etc. are all unexceptionable items in the basket of welfare goods and services. Issues arise on two fronts here:

(a) Where the coverage is targeted at specific segments of the population, the vexing question of identification of beneficiaries arises. The Economic Survey 2016-17 itself admits that “India’s record of targeting welfare programmes to the poor has been suspect” (Government of India. Ministry of Finance, p. 180). Earlier efforts between 1992 and 2002 to identify households below the poverty line (BPL) were criticised on the grounds of data manipulation and corruption, leading to exclusion of the poor and inclusion of the undeserving rich in the lists. The Government of India sought to correct this through the Socio-Economic Caste Census, 2011(SECC), which attempted to measure poverty through an easily identifiable list of criteria based on socio-economic status. The SECC data has been used to identify rural households eligible for assistance in house construction under the Pradhan Mantri Awas Yojana

The Welfare State Challenges for Governance in India_Venkatesan Ramani 134 – Grameen. It will also be used for the National Social Assistance Programme (pensions for the rural poor) and for the National Rural Livelihood Mission;

(b) To surmount the problems of exclusion of genuine beneficiaries and in recognition of the need to reach out to large segments of the population, especially at times when inflation squeezes purchasing power, the Government of India moved from the targeted PDS approach to reaching nearly 70 per cent of all households under the National Food Security Act, 2013. This move has been criticised by those who feel this would put a huge burden on the public exchequer, while also including certain categories of household which may not need such food security support. The second concern, dealt with extensively in the earlier parts of this paper, relates to the capacity of the State to effectively deliver welfare services. Lant Pritchett (2009) of Harvard University has put it rather trenchantly: India is today a flailing state – a nation state in which the head, that is the elite institutions at the national (and in some states) level remain sound and functional but that this head is no longer reliably connected via nerves and sinews to its own limbs. In many parts of India in many sectors, the everyday actions of the field level agents of the state – policemen, engineers, teachers, health workers – are increasingly beyond the control of the administration at the national or state level. (italics as in original)(p.4) Effective service delivery of welfare programmes suffers (as do many other sectors of the economy and polity) from three major weaknesses inherent in the political and administrative systems of India:

(a) Social sector initiatives, which ensure successful welfare programmes, are mostly (if not always) individual driven, generally by civil servants with political support. As long as these “reform champions”, and their backers at the political level, are in harness, programmes run smoothly with appreciable results. Once there is a change of guard, consequent on the transfer of the civil servant or the unseating of his political supporter, the programme peters out fairly rapidly;

(b) Administrative systems in most sectors, especially the social sector, are dysfunctional and prone to ‘rent-seeking’ behaviour in both the political and administrative elites. It is common knowledge that certain Ministries/Departments in State governments are known as automated teller machines (ATMs) for their cash disbursing abilities. Decision making is centralised at the government level, with ministers and senior civil servants having all the powers to approve contracts and transfer officers/staff at subordinate levels. This not only plays havoc with employee motivation but also stifles innovation and initiative at the cutting-edge level of programmes; and

135 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 (c) The secession of the elite from the use of many of these welfare services leads to sub-optimal delivery of services. A prominent example would be the failure of politicians and senior civil servants to use public transport, as is the case in, say, the United Kingdom. Many other services, such as water, electricity and even security, are being privatised by the elite, which then lives in an island of prosperity in a sea of mediocre services (Ramani, 2016). A solution to the problem of unsatisfactory service delivery has been sought through the promotion of cash transfers (especially the unconditional variety), which not only seek to check leakages but also to reduce the administrative costs of implementing welfare programmes, thereby freeing up more financial resources going to the beneficiary. The Aadhaar (or Unique Identification) initiative has been implemented since 2008. After some initial hesitation over the direction of this project, the present government at the national level has boldly pushed for its implementation, with necessary legislation being put in place and legal challenges to its scope being met fairly successfully. The Supreme Court has virtually given its seal of approval to the use of the Aadhaar number for a host of welfare and other schemes. Leaving aside the issue of privacy concerns (which has generated considerable debate), the question of cash transfers backed by use of sophisticated technology raises, as pointed out by Jean Drèze (2015) three issues for consideration at the level of public policy:

(a) The adoption of cash transfers is predicated on the required infrastructure being in place. JAM (jan dhan accounts, aadhaar identity numbers and mobile technology) are the trinity that underpin the success of cash transfers. Earlier efforts at cash transfers in Jharkhand, Puducherry and Andhra Pradesh ran into implementation problems. However, there has been a major change since the announcement of demonetisation in November 2016. Figures available prior to the demonetisation exercise suggest that about 70 per cent of the adult population had bank accounts, with active use of bank accounts in the region of 40 per cent. This number would have gone up further in 2017 with the government stressing the use of digital payments. About 90 per cent of the population (over 1.1 billion) have Aadhaar numbers. The push given to digital transactions after November 2016 and the rapid expansion of digital payment interfaces (through mobile phones) in the first few months of 2017 has brought many more Indians within the ambit of a seamless, cash-free transaction economy. The fact that 95 per cent of Mahatma Gandhi National Rural Employment Guarantee Scheme payments are being paid directly into beneficiary bank accounts is a pointer to the growing use of JAM. However, attention will still have to be paid to mobile connectivity issues and the easy access to banking channels, especially in more remote areas of the country;

(b) There will still be some areas where in-kind transfers and public services are essential, e.g., midday meals, bicycles for school children and free medicines. Distribution channels for such products and services will need to be efficiently run if welfare objectives are to be met. Furthermore, the insistence on Aadhaar numbers

The Welfare State Challenges for Governance in India_Venkatesan Ramani 136 for availing of public services like midday meals and tuberculosis treatment could raise potentially troubling issues of exclusion. Caution needs to be exercised in using digital technology in the provision of essential goods and services; and

(c) Cash transfers cannot and should not necessarily imply a withdrawal of the State from the provision of essential public services like healthcare and primary education. State-directed regulatory mechanisms will still be required to protect consumers from price exploitation by and poor service quality of private providers. Balancing private provision of services with public availability requires careful thought at government level. The latest idea to catch the attention of policy planners is the concept of Universal Basic Income (UBI). UBI has three components: (a) universality, the guarantee of a minimum basic income to each individual in society; (b) unconditionality, the provision of this income without any conditions relating to the current economic status of the individual; and (c) agency, whereby the individual is given control over disposition of his resources, free of paternalistic handouts from a “benevolent” State. There are three evident benefits flowing from UBI: (a) with financial resources flowing directly into individual bank accounts, the vexatious issues of regional imbalances and cornering of finances by regions with powerful political interests can be addressed; (b) leakages outside the system can be minimised; and (c) exclusion errors can be virtually eliminated.

Implementing UBI requires keeping certain key issues in focus:

(a) political imperatives dictate that the well-off are excluded from UBI, either by defining criteria related to ownership of financial and physical assets or by requiring the better off to voluntarily relinquish their claims. This may be difficult to implement in practice and may give rise to the same problems that arose from BPL lists, related to exclusion of the deserving and wrong inclusion of the non-deserving;

(b) a “cover all” UBI would, apart from the issue of equity, also require a careful assessment of the fiscal burden and the ability of governments to sustain such expenditures on an ongoing basis, given that such a measure, once introduced, would be difficult to withdraw on a future date; and

(c) to make its fiscal ends meet, the State would have to consider withdrawing or curtailing existing subsidies or programmes, like fertiliser or food subsidies. This will meet with opposition from interest groups that currently benefit from the largesse of the State. In a political democracy, the idea of the welfare state can never be negated, though implementation of specific components can be diluted or curtailed over time. Whether the concept takes the form of social security/social protection for specific social groups, a society-wide approach to providing basic opportunities for a better life in areas like healthcare and education or providing freebies calculated to attract electoral

137 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 support, the lure of the welfare state, at least in emerging economies like India, cannot be wished away. Governments will, of course, have to be mindful of fiscal constraints and the deficiencies in implementation through different modes in reaching the benefits to sections of, or the entire, population. Technology is a major ally of governments in their efforts to more effectively ensure that these programmes reach the intended individuals and groups. At the same time, State capacity will have a crucial role to play in determining how effectively programme objectives are attained and whether social investments are yielding returns that contribute to a healthier, empowered society of the future. The next decade will be crucial for determining the trajectory of the welfare state in India, as the imperatives of economic growth come in conflict with the goals of equitable distribution.

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Banerji, R. (2017). Teaching “toppers” or learning for all”. in Annual Status of Education Report (rural) 2016 Provisional. New Delhi: ASER Centre. Retrieved July 7, 2017, from http://img.asercentre.org/ docs/Publications/ASER%20Reports/ASER%202016/Articles/02_teachingtoppersorlearningforall_ rukminibanerji.pdf

Bannerjee, A., & Duflo, E. (2009). Improving health care delivery in India. Retrieved July 8, 2017, from https://economics.mit.edu/files/5172

Briggs, A. (1961) The welfare state in historical perspective. European Journal of Sociology, 2 (2), 221-258. doi: 10.1017/S0003975600000412

Centre for Budget and Governance Accountability. (2017). What do the numbers tell? An analysis of union budget 2017-18. New Delhi: CBGA. Retrieved September 23, 2017, from http://www.cbgaindia.org/ publication/numbers-tell-analysis-union-budget-2017-18/

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Drèze, J., & Khera, R. (2015, February 19). A PEEP at another India: An evaluation of entitlement programs. Retrieved July 8, 2017, from http://www.cdhr.org.in/right-to-food-india/a-peep-at-another-india/

Drèze, J. (2015, November 6). JAM and the pursuit of nirvana. The Wire. Retrieved July 6, 2017, from https://thewire.in/14873/jam-and-the-pursuit-of-nirvana/

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Government of India. Ministry of Finance. (2017). Economic Survey, 2016-17. Retrieved August 7, 2017, from http://indiabudget.nic.in/e_survey.asp

The Welfare State Challenges for Governance in India_Venkatesan Ramani 138 Marathe, S.N., Yakkundi, D., & Shukla, A. (2015). Is ‘take home ration’ really improving the nutritional status of children? A study of supplementary nutrition for under-3 children in four districts of Maharashtra. Journal of Community Nutrition and Health, 4(1), 15-18.

Pritchett, L. (2009). Is India a flailing state? Detours on the four lane highway to modernisation. HKS faculty research working paper series RWP09-013, John F. Kennedy School of Government,Harvard University. Retrieved July 7, 2017, from https://dash.harvard.edu/bitstream/handle/1/4449106/ Pritchett%20India%20Flailing%20State.pdf?sequence=1

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139 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Foundations of an Effective Self-Help System

Parth J. Shah*

The debates over the nature of the welfare state and its reforms are becoming central to the public discourse in India and around the world. This debate on reform, if it were to lead to any concrete outcomes, requires clarity on certain foundational ideas of welfare state. The purpose of this note is to problematise three basic ideas, namely, the definition, goals and characteristics of a good welfare system. Additionally, the note examines how states have become more effective by focusing on measurable outputs than the current practice of using ambiguous phrases like ‘promote individual well-being’. The note also makes a case for (i) initiating direct citizen participation that would further target and localise the services required, making them more effective; and (ii) making citizens the eyes and ears to assess performance of the system first hand. Key words: broken window theory, OECD, right to education, Pratham, self-help

he demise of the welfare state has been predicted at least since the 1970s (Murray, 1983). Furthermore, the debate on welfare or workfare reforms is at least as old T(Green 1993). This debate on reform, if it were to lead to any concrete outcomes, requires clarity on certain foundational ideas of welfare state. The purpose of this note is to problematise three basic ideas, namely, the definition, goals and characteristics of a good welfare system. Clarity on the definition and goals would help us assess the performance of a welfare system. This would in turn provide a framework within which to discuss characteristics that would constitute an effective welfare system. The discussion on these three foundational ideas would help delineate the nature and the types of welfare reforms that are necessary. ‘Welfare state’ is among the most common and ambiguous terms used in public and academic discourse. In the words of Fausto & Leccisotti (1985), “The Welfare State is very much like a melting pot, into which everyone throws what he wants, even if, not all will, of course, agree on the final product’’ (p. 6). The term originated after World War II and was first used in Britain. From there, it spread to Germany, Sweden, US and eventually to the rest of the world (Briggs, 1961).

*Parth Shah is founder president of the Centre for Civil Society. His research and advocacy work focus on the themes of economic freedom (law, liberty and livelihood campaign), choice and competition in education (fund students, not schools), property rights approach for the environment (terracotta vision of stewardship), and good governance (new public management and the duty to publish). He has published extensively in international and Indian journals, on various topics from currency regulation to education policy. The author would like to acknowledge research help from Akshita Mathur of Centre for Civil Society. The contact for correspondence is [email protected]

Foundations of an Effective Self-Help System / Parth Shah 140 Although there are a multitude of definitions of welfare state, I have taken only a couple as archetypes for the purpose of this discussion. The Organisation for Economic Co- operation and Development (OECD) defines welfare state as a guarantor of four basic commitments: —minimum protection of the individual citizen from a variety of social risks, i.e. social security in relation to sickness, disability, loss of employment, retirement, etc.; — provision of services essential for individuals to function effectively in modern society (i.e. education, housing, child-care); —promotion of individual well-being, which in the modern sense includes aspirations that go beyond social security and services as traditionally conceived (e.g. the need to «partecipate» (sic)); —all the above three which are often seen within a context of redistribution, initially to overcome poverty by reducing inequalities, but increasingly involving the redistribution of welfare in a broader sense. (as quoted in Fausto & Leccisotti, 1985, p.6) With such an expansive definition, it is hard to see which task or programme would be outside the bounds of a welfare state. It seems to imply that every state function that is in public interest is part of the welfare state. Thomas Wilhelmsson (1992) argues that welfare state is an approach to deal with ill effects of the market or the capitalist system. He notes the: welfare state has been considered to be an endeavour to modify the effect of market forces in three respects: (i) to assure citizens a certain minimum subsistence, (ii) to reduce the effects of life’s uncertainty by creating protection against illness, unemployment and old age, and (iii) by offering all citizens social services as far as available resources permit. (Wilhelmsson, 1992. p. 52) Though there are strong similarities across various definitions of welfare state, they all seem to be so expansive that it is difficult to separate the role of the state in providing welfare as opposed to providing all other goods and services. Since it is difficult to separate the welfare from the non-welfare functions, it is also problematic to assess the performance of one or both functions. These very expansive definitions also make it impossible to clearly define the goals or expected outcomes of welfare services. There are multiple ways to define the functions of the state (United Nations, 2017). Since our focus is on the welfare function, I offer the following as an option. The state operates in three key domains: 1. Protection of basic right to life, liberty and property, by means of police, courts, national defense;

141 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 2. Provision of public/ merit goods such as education, health, sanitation i.e., the goods that are offered and available to all citizens without preconditions or qualifying requirements; 3. Provision of welfare services or entitlements, by means of transfers and subsidies, are targeted towards a specific group of people. Some examples would include unemployment insurance, old age pensions, public distribution system (PDS) or food stamps, fertilizer and fuel subsidies. The relevant groups could be defined by criteria such as class, caste, gender, economic profession, or age. Unlike public goods, welfare services are entitlements not rights and hence not universal (Aiyar, 2010). The third domain of welfare services includes a large number of goods and services. By its very nature, this domain has targeted implementation, which makes it possible to identify programmes and schemes that focus on specified group of population and are different from the state functions of protection services and provision of public goods. One purpose for demanding precision in definition is to be able to articulate, more precisely, the goals of the welfare system. This identification of goals or outcomes would help assess the performance of the system, which in turn would further suggest the accountability mechanisms that would need to be in place. Goal of the welfare state The current definitions of welfare primarily aim to provide a number of goods and services like security against ‘sickness, disability, loss of employment, retirement, etc.’. For this component of the goal, it is possible, at least theoretically, to judge whether all individuals or families have such security. The quantum and the quality of this security or safety net would depend on a myriad of local social, economic and political factors. However, guaranteeing overall material security seems to be the core responsibility of the welfare state. The third and fourth component of the OECD definition, talks of ‘promotion of individual well-being’ and redistribution, not just of income or wealth, but of ‘welfare in a broader sense’. These goals do seem lofty and laudable, but they are undoubtedly ambiguous and amorphous. As it is clear, the welfare function is defined in terms of processes or inputs as opposed to outputs or outcomes (Olasky, 1992). And when the outcomes are mentioned, they are too general like ‘promote individual well-being’. The function mandates that the state should continue to provide such and such, as long as individuals and families need help. So, we create a list of problems that people face and suggest actions to address those problems, with the expectation that the state would continue to perform those actions as long as they are needed. It is true that the problem of ‘inputs versus outcomes’ is not unique to the welfare function. The functions of protection and public goods are also typically defined in terms of inputs. It is never clear whether the state has provided ‘enough’ protection or public goods. So all three functions of the state

Foundations of an Effective Self-Help System / Parth Shah 142 suffer from the same challenge of being focused on inputs and processes rather than on outputs and outcomes. However, the advancements made in the provisioning of protection and public goods by the state in the modern times is precisely because we have been able to define, even if less than perfectly, the expected outputs and outcomes of some of these roles (Palmer, 2012). For instance, the state would continue to provide the police service but we also asked what exactly good policing would entail and how it could be measured. Different political jurisdictions would probably define the outcomes of good policing differently, and would assign different weights to various parameters. The parameters could vary from fewer murders, thefts and robberies to even less graffiti in public places. Some of these are easy to quantify and some might remain qualitative. But once they are defined and are set as goals for the police system, the system begins to work towards achieving them. A good example is the reforms of David L. Gunn (former President of New York City Transit Authority) and as a strong believer in the broken window theory.1 He focused on a low level crime of graffiti in New York subways. For this, subways were cleaned and renovated, old equipment was upgraded and all signs of vandalism were looked into immediately. This was further picked up by the New York City Transit Police who focused on petty crimes such as fare-beating in subways. By undertaking serious background checks of those arrested, as a way of underscoring the system’s seriousness, they sought to create an atmosphere that discouraged more serious crimes. The mayor of New York later extended the approach throughout the city, with great results (Harcourt & Ludwig, 2006). Some quantitative and qualitative outcomes could be defined for public goods as well. The debate on school education provides a telling illustration of how this transition from inputs to outcomes has come about. When the Right to Education (RTE) Act was passed in 2010, the focus was all on inputs: teacher qualifications, teacher training, teacher compensation, student-teacher ratio, classroom size, number of books in the library. The State was expected to meet all these input requirements for government schools and enforce input regulations on private schools (Centre for Civil Society, 2016). The annual learning outcome assessments done by Pratham began giving the picture in terms of the outputs. The learning levels declined year after year, despite all the high investments done under the RTE Act (Pratham, 2017). The government kept questioning the methodology and accuracy of Pratham studies. However, its own National Achievement Survey (NAS) in 2014 showed a clear fall in learning outcomes (Government of India, Ministry of Human Resource Development, 2014). It became clear that the fundamental axiom of RTE that if inputs are right then right education

1 Broken window theory, put forward by James Q. Wilson and George Kelling in 1982, simply states that crimes of bigger magnitude stem from a large number of disorders of small magnitude, i.e., if one window is broken with the glass splattered all over, it would encourage onlookers to think that they can break a window as well, without the fear of getting punished. This, in turn, would lead people to break more windows, eventually scaling up not just the degree of vandalism but also the seriousness of the crime being committed.

143 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 would happen was mistaken. The new amendment to RTE requires the State to monitor learning outcomes regularly and use them as benchmark to assess performance of the education system.2 The examples of policing and education show how shifting the discussion from inputs to outputs has enabled the state to perform those functions better. The shift has also increased transparency and accountability of the system. An equally important result has been to encourage the use of new technologies to achieve these mammoth goals. However, the debate on the goal of a welfare system is still focused primarily on inputs and processes rather than outputs and outcomes. The performance is judged mostly on the basis of intentions and the quantum of resources rather than the impact on the lives of the citizens. It has the same fundamental assumption that if inputs are right, then right welfare would be achieved. What then should be the goal of welfare state? The primary purpose of the note is to raise this question and emphasise the criticality and need to reflect on possible answers. The purpose has not been to answer the question in any final sense. The discussion of one possible answer could provide some clues to what would constitute as better answers. The ultimate goal of a welfare system is to help individuals lead meaningful lives and attain their full potential. Even this goal seems too broad, it could very well be the goal of all the functions of the state or even of the larger social contract. The goal for the welfare system would have to be a bit narrower. An overarching purpose of welfare system is to help people who can’t help themselves, regardless of the reasons for the temporary or permanent circumstances of their lives. What does it mean to help someone? It should mean that help the person until he is able to lead the life on his own. Among all the various possible goals, it seems that an ideal welfare system helps people to get on their feet and stay on their feet (Green, 1993; Murray, 1983; Olasky, 1992; Palmer, 2012).3 The help should be available to all, and for as much time as is required, to attain this level of self-sufficiency. The success should not be measured by how few people on welfare are, but on how many have gotten back on their feet or have become self-sufficient in an effective and sustained manner. The goal of the welfare system is not just to provide support as needed; it is also to provide support that enables sustained self-reliance and self-help. Using self-reliance as the goal, let us explore the characteristics that would make a good welfare system. What kind of welfare system would maximize self-reliance?

2 This is not to claim that the sole goal of education is learning outcomes. But this component of the goal is better understood by all stakeholders and is relatively easy to measure across millions of children and schools. Education would and should have other goals, and hopefully as we focus on outcomes we would be able to define these goals more precisely and assess our performance on them too. 3 Several thinkers and authors have made this point. Given the nature of this note, I simply assert this proposition without actually giving the rationale.

Foundations of an Effective Self-Help System / Parth Shah 144 Characteristics of good welfare or self-help system Ideas from participatory democracy and citizenship, federalism and decentralisation as well as the liberal and conservative critique of the welfare system lead me to four characteristics that would make for an effective welfare system. These four characteristics are: Enable self-reliance, provide both sustenance and selfhood support, necessitate active and direct citizen engagement, and encourage decentralised and accountable management.4 I will elaborate briefly on each of these characteristics. 1. Enable self-reliance Irrespective of any particular goal, the lack of consensus on outputs and outcomes of a welfare system is one of the key drivers of today’s underperforming and over-expensive systems. The goal confusion has left all parties unhappy with the system—citizens, taxpayers, beneficiaries as well as politicians and public officials. Each group blames the other for the failure of the system. The goal of the system should not be just to provide generous support on demand, but to endeavour to enable people to stand on their feet in a manner that is sustainable. Individuals want to lead a life of dignity and ‘earned respect’ (Brooks, 2015; Strain & Veuger 2016). The state and the society should encourage it and enable it. There is no doubt that building a consensus on the goal of self-reliance would be a herculean task in any country. The biggest challenge will be in shifting the system’s focus from inputs to outcomes. The inputs-driven system works well for the suppliers of the service; it most often does not serve the consumers or the beneficiaries of the system. Not only are suppliers (such as politicians and bureaucrats) better organised and in control of (as compared to taxpayers and welfare beneficiaries), but it is also easier for them to deal with inputs (in terms of measurement and leveraging of votes). Even for activists, it is easier to demand increase in inputs, e.g., increase education spending to six per cent of GDP. The result is a system focusing obsessively on inputs rather than outputs. We now need to set an output and outcome metric, and let the delivery system be designed in a way so as to achieve these prescribed targets. It is exactly opposite to letting the suppliers design the system and let the beneficiaries live with whatever outcome the system produces. We must put beneficiaries at the centre and not the suppliers of the service. 2. Provide both sustenance and selfhood support The predominant task of a welfare system today is to deliver material support in some form or the other. The sustenance support is easy to implement, to standardise across geography and beneficiary groups, to keep it anonymous and to adjust the quantity with changing circumstances. It is easy to understand why the system would have material support at its core.5

4 There could be more than four characteristics of a good welfare system but these four seem foundational and I suspect would be on any such list. 5 The recent suggestion of Basic Income Guarantee (BIG) is a route to ensure material support to all, without any targeting or need assessment (Mundle, 2016).

145 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 However, a typical beneficiary needs more than material support to get back on their feet. A person, for example, may be unemployed not because of lack of skills but because of absence of the motivation and discipline needed to go to work regularly and complete the tasks at hand. Just giving this person an unemployment benefit, however generous and for however long, would not help them get back on their feet. However, another person is unemployed because the company was badly managed and it went bust. Such a person probably needs only material support until s/he lands the next job. One could bring in factors such as personality, family, larger socio-economic-political reality to problematise circumstances of each such unemployed person. In every case, a web of complex parameters drives a person to seek support from outside. The support has to be personalised to be effective, a one-size would indeed fit none.6 Thus, a good number of beneficiaries would need behavioural, emotional, psychological and even spiritual support. This non-material support is referred to as moral or selfhood support. In a vast majority of cases, both material and moral support are necessary to make the person whole. This selfhood support demands many difficult things: face-to-face engagement, motivated and conscientious social workers, and a capacity for tough love. Both sustenance and selfhood support are necessary to get the people on their feet and help them stay there effectively. 3. Necessitate active and direct citizen engagement Taking cue from the theories of participatory democracy, active citizen engagement is an essential prerequisite to ensure that the support provided by the welfare state leads to self-sufficiency and self-reliance. The citizen engagement would have to go far beyond just paying taxes (Pew Research Center, 2002). Such participation simply cannot be mandated; citizens would have to be real stakeholders in the working of the system. Vaclav Havel (1997) suggested that civil society is the locus of active citizen engagement in the public sphere. Citizens could participate individually but their engagement through civic associations would be more stable, enduring and have higher degree of confidence and credibility. “The State is usually neither a good doctor nor a good teacher” (Havel, 1997). So, to solve the problems of welfare, civil society rather than the state needs to play a central role. Havel describes three essential pillars of such a civil society: free association of citizens made possible through the atmosphere set by the state, a decentralised structure for governance wherein citizens do not have to rely on top- level elected representatives for decision that can be taken at a lower level and delegation of some of the state’s functions to these free associations. The involvement of citizens would also bring into play their own perceptions of welfare and who is deserving of their support. It has been:

6 One could see this approach of personalised self-hood support as an application of the capability framework pioneered by Martha Nussbaum and Amartya Sen (1993).

Foundations of an Effective Self-Help System / Parth Shah 146 found that Europeans share a common and fundamental deservingness culture: across countries and social categories there is a consistent pattern that elderly people are seen as most deserving, closely followed by sick and disabled people; unemployed people are seen as less deserving still, and immigrants as least deserving of all. (van Oorschot, 2006) This characteristic would work on two levels: (i) initiating direct citizen participation that would further target and localise the services required, making them more effective; and (ii) making citizens the eyes and ears to assess performance of the system first hand.7 4. Encourage decentralised and accountable management The goal of helping people stand on their own feet requires that the welfare system simply could not be a remote and anonymous delivery system. The personalised nature of selfhood support necessitates face-to-face contact, demanding genuine decetralisation of governance. Inputs verification can be centralised and therefore the accountability could be located at the centre. The assessment of outputs and particularly of outcomes requires on the ground verification by a person whose interests are equally aligned with those of the larger society. Material support could be directed and delivered centrally but the behavioural and psychological support would require a decentralised, localised system of delivery. Different states in the US, for example, have different types of prison programmes to ensure the proper integration of newly released criminals back into the society. The most notable is the “Ride Home Program” by the Anti-Recidivism Coalition in California wherein former inmates are employed to pick up prisoners on the day of their release, in order to guide them through the first day. These drivers spend the day interacting with the recently-released prisoners and help them settle in. This programme has been more successful in helping prisoners make the transition to normal life (Anti-Recidivism Coalition, n.d.). Citizens, civil society organisations and local governments would have to work together to provide the services and assess the performance of the system. Once we move away from purely inputs and processes to outputs and outcomes, the delivery and monitoring system would need to reflect these priorities. One could imagine new communication technologies and apps helping to bring about a more timely, effective and engaging interactions among beneficiaries, civil society organistions and local governments. An app www.localcircles.com connects residents of a locality and helps them to work together as a group to solve local governance issues.

7 Hayek (1945) makes a powerful distinction between formal, theoretical or system knowledge and ‘the knowledge of the particular time, place and circumstance.’ It is this local knowledge that would bring in active engagement as well as transparency and accountability.

147 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 These four are the essential characteristics of a good welfare or self-help system. It must provide both material and moral support to encourage self-reliance. It should have active participation of citizens and civil society with decentralised governance and outcomes accountability. Conclusion This essay has tried to draw attention to the need for a proper delineation of the welfare role of the state, instead of expansive definitions of this role that are prevalent in the literature and in practice. Second, it attempted to define the goal of the welfare system more precisely in line with the circumscribed welfare role of the state. It argued that both material sustenance as well as moral self-hood support is necessary to get people back on their feet. Third, with the domain and the goal being articulated, it moved on to think through basic characteristics that would define an effective welfare system. The debates over the nature of the welfare state and its reforms are becoming central to the public discourse in India and around the world. It is critical that we understand how the state has become more effective in the provision of public goods by focusing on outputs instead of inputs. These learnings need to be brought to the welfare role of the state.

References

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149 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Behavioural Re-design of Subsidies

V. Kumaraswamy*

Since the1850s several countries, especially democracies, have ostensibly taken measures to correct inequalities in income and wealth through welfare interventions. Welfare states like France and Nordic countries spend close to a third of their income for such social interventions through subsidies. However, subsidy programmes have often been badly designed and yet, due to political compulsions, States are unwilling to curb their growth, or weed out inefficient ones or leakages to undeserving beneficiaries. This calls for a relook at options in design so that equality can be achieved with minimal loss of efficiency. Over the last two decades, the newly emerging science of behavioural economics has given insights on how human beings decide and in what way it can be influenced to facilitate better social benefits besides optimising business decisions. This paper discusses several suggestions for redesign so that subsidies become more rational both at the individual level and for the society. Well-designed subsidies need not leave the State or the taxpayers frustrated. It rounds up with making suggestions on redesign of the most ill designed subsidy at the State level in India, namely, power for agriculture. Key words: subsidies, welfare state, Bolsa Familia, acquisition utility, transaction utility, reverse externalities, behavioural economics.

f every thousand dollars spent in so-called charity today, Oit is probable that nine hundred and fifty dollars is unwisely spent -Andrew Carnegie, US Philanthropist in Wealth (1889) A welfare state is one in which the government selectively overrides market forces and plays an enabling role in ensuring a more egalitarian society in terms of standards of living and healthcare, equality of opportunities, more equitable distribution of income and wealth and social or public responsibility for providing for some minimum basics of life. The policies of a welfare state might include old-age pensions, unemployment allowances, food subsidies, State funded health insurances or immunisation programmes, education subsidies or free education, etc. The recipients may include the poor, old aged, sick and ailing, children, students to attend schools, pregnant women, unemployed, destitute, etc. In all cases there is a transfer of resources in kind or cash from the State to the beneficiaries.

* V. Kumaraswamy ([email protected]) has been working with the industry since mid-1980s. His corporate work in search of natural resources takes him to several remote rural areas in India and abroad. He has been writing on reforms and economic policies in economic dailies such as Business Line and Business Standard for well over a decade. He is a member of committees of leading industry bodies. He is the co-author of Corporate insurance (Tata McGraw Hill) and author of Making growth happen in India : A roadmap for policy success (Sage).

Behavioural Re-design of Subsidies / V. Kumaraswamy 150 Subsidies are the main delivery vehicles used by a welfare state to reach the intended benefits to its target population. Other methods like reservation, quotas, minimum price and price caps are also used from time to time. Subsidies are market interventions by the Government either to correct the level of demand or supply. At the price that the market determines, the demand and hence consumption by people may settle at a level considered socially less than optimal. The government can either supply these goods cheaper (even if buying them at higher costs) or subsidise the cost to industries so that they charge lesser prices. Free primary education, job reservations, subsidised food grains through public distribution system (PDS) are some examples of intervention from demand side. It can also intervene from the supply side if it determines that the market dictated quantity is not sufficient. Examples of this are the fertiliser subsidy and minimum support prices (MSP). Spends by various governments The Central government subsidies are largely related to food, fertiliser, fuel and petroleum, education and healthcare. States provide further subsidies for rice and electricity (mainly for agriculture), industrial development, small enterprises. States like Tamil Nadu, West Bengal and Kerala have gone really creative in providing subsidies for almost every known need like television sets, phone, cookers, fishing nets, cycles, laptops, pumps, conduct of festivals, cattle, cattle feed, etc. The expenditure by the Central government on subsidies is given in Table 1. Table 1: Subsidies in Central budgets

Year Major subsidies as per cent of Gross as per cent of total R Cr domestic product expenditure (GDP) 2010-11 1,64,516 2.1 13.7 2011-12 2,11,319 2.3 16.2 2012-13 2,47,493 2.4 17.5 2013-14 2,44,716 2.2 15.7 2014-15 RE 2,53,913 2.0 15.1 2015-16 BE 2,27,387 1.6 12.8

RE : revised estimates BE : budget estimates

Source: Government of India. Ministry of Finance. (2015). Economic Survey, 2015-16. Appendix Table 2.9, p. A 58. Retrieved from http://indiabudget.nic.in/es2015-16/estat1.pdf

While subsidy wise State level spends are difficult to compile due to non standard nature the total social sector expenditure by all state is about R12,37,200 crore in 2016-17 as per budget estimates. Uttar Pradesh tops the list (with about R1,41,200 crore) followed by Maharashtra. Tamil Nadu, Rajasthan, Madhya Pradesh and West Bengal are about 50 per cent of Uttar Pradesh (Reserve Bank of India, Handbook of statistics on state finance, (various years)). In the following section we will map out the justification for subsidies.

151 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Case for subsidies Higher net present values through positive reverse externalities Subsidies are looked upon as transfer of resources from one section (rich) to the recipients (mostly poor). Let us consider the example of someone who has fallen suddenly unconscious and in need of urgent resuscitation or transfer to hospital. What are the costs and benefits to those around either in actually resuscitating or transfer to the nearby hospital? It’s a simple three to four minutes procedure and hopefully the person will survive and be fit to be at his full potential all over again. The net present value (NPV) of the affected person’s life-long potential earnings is the net benefit (more than if the person is not revived at all) that the society will get which will accrue entirely to the person concerned. The individual resuscitator may not be able to access any portion of the NPV at all and will not even be able to negotiate the price of his benevolent act. Hospitals may recover some fixed charges for the services rendered. It is difficult to evaluate the cost benefit or economic rationale of the act of revival? Taking a cue from the above example, there is a need to shed the tag of doles and giveaways attached to subsidies to viewing them as ‘reverse positive externalities’. Externality is a cost or benefit an individual’s / corporate’s /institution’s act imposes or bestows on the rest of society. Subsidies on the contrary, will most likely create benefits for the recipient individual or group that outweigh the costs to the rest of the society. In a limited sense these are the missing link investments that create incremental value by increasing or preserving the productive capacity of target recipients. Disproportionate returns to investments As anyone knowledgeable about the most elegant mathematical tool for optimisation – linear programming – would understand, the returns to releasing the binding constraint is most often disproportionate to the investments. This is because, to an extent, all the other factors are already available and addition of cost of one ingredient gets the output and value by utilising all factors. Subsidies will need to be viewed as the cost of buying such binding constraint. Healthcare, higher education, accident rescue, disaster insurance, etc. all yield far greater returns to the society as a whole. An individual so rescued might contribute by way of income taxes, productive value even if not taxed. In that sense they should be viewed as social investments where the returns are not immediately measurable. Though it is difficult to construct a market for such exchange of values (immediate and deferred), as will be seen in the latter part of this article, it is not impossible. Other studies have shown the same. An instance of this the work by Abhijit Banerjee and Esther Duflo (2011) who concluded that dewormed for two years instead of one (and hence being better nourished for two years instead of one) would lead to a lifetime income gain of $ 3,269 (USD purchasing power parity). Small investments in childhood nutrition (in Kenya deworming costs $1.36) make a huge difference later on (p.57).

Behavioural Re-design of Subsidies / V. Kumaraswamy 152 Welfare generated by re-distribution Whatever added costs are involved in re-distributing income would be offset by the higher utilities that such redistributed income would have in the recipients’ hands than in those who pay for them through taxes. Again the costs for redistribution efforts are not necessarily leakages. For example, the salaries paid to tax collectors are transfers of wealth and income, which transfers the utilities from the donor to the salaried. This may not necessarily mean reduction in total welfare. Thus both subsidies and the costs involved in achieving it are likely to generate more welfare: Every rupee in poor(er) people’s hands might compensate the loss of that rupee to the rich men’s wealth by several times, due to diminishing marginal utility principles. Having mapped the case often made to justify subsidies we will now examine why we need to redesign. Need for re-design Containing leakages Most subsidies – not just in India – are badly designed. Arthus M. Okun in his work Equality and Efficiency (1975) contended that the failure of designs could be explained by the fact that politicians survive by ‘buying’ votes i.e., by serving the constituencies that votes for them. Hence, subsidies given to voters enhance politicians vote gathering ability. This often results in indiscriminate and competitive promises with scant respect for economic logic. The lament is as true in countries like India as in United States that is seeing a tug-of-war of sorts now on its medicare. The subsidy given for cows in European Union is a classic example of how vote banks have completely shackled the hands of politics even in advanced and educated societies. The recent Thailand’s rice pledge programme represents one of the most ill designed interventions (see Box I).

153 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Box I

Lessons from Thailand: Rice pledge programme The rice pledge scheme of Thailand has been under operation since the latter half of 2011. It provides all the lessons to anyone looking for evidence of the kind of all round mess that a politically motivated and badly designed farm produce price support scheme can create. Thailand was the largest exporter of rice for over 30 years before the scheme started. The ruling party started the scheme whereby farmers could deposit their rice harvest with the government agencies at a fixed price of about $ 450 a tonne when the ruling world price was around $ 430 per tonne and was way over the domestic ruling price. The authorities perhaps thought that if Thailand controlled supplies to the world market, prices would rise steeply (like in oil) benefitting the local farmers. But market forces took a different turn. India and Vietnam quickly filled the gap and steeply increased their share and in India’s case it was accompanied by a quick up gradation of production facilities to enable better quality as well. A year or so after the programme started Thailand government was sitting on nearly 17 million tonnes of stock, nearly 2/3rd its annual production. Given the international prices it was impossible to get rid of the stocks without a huge loss since the minimum costs for preparing and shipping was in the range of $125-$150 per tonne. Holding stocks would entail gradual rotting involving a possible write off of more than $ 4 billion. It is almost impossible to withdraw such populist programmes without incurring the wrath of the people and risk losing their votes. Given that only about 1.1 million families are involved in rice production in Thailand compared to 3.7 million households engaged in farming sector, the scheme raised the prices of rice, their staple food, to unsustainable levels for the balance families as well as those who not in agri-sector. The Thai rice pledge programme has played out the effect of ill conceived market interventions in a compressed period and illustrates the possible long term risks from some of the recent moves in India’s programmes (Amornvivat, 2012; Narang, 2012).

The 2011 Thailand’s rice pledge programme represents one of the most ill designed interventions (see Box I). There is a need to find a better balance between equality and efficiency. It is often argued that in addition to the cost of administering them subsidies cause inefficiencies and leakages. Economists (most notably Arthur M. Okun) have cautioned against equity at the cost of efficiency. The cost of reaching the subsidies including the administration,

Behavioural Re-design of Subsidies / V. Kumaraswamy 154 people cost, record keeping, channel leakages, corruption, have to be offset from the total value collected (or allocated) through taxes. Since governments in most countries have proved to be the least efficient in what are fundamentally economic transactions and as they generally administer subsidies, there is a necessity to guard against excessive ‘leakages’. There are leakages of a different kind than the one Arthur Okun alludes to – that of wrong targeting and subsidies reaching undeserving hands. Even the most successful subsidy programme in terms of results achieved – Brazil’s conditional cash transfer programme called Bolsa Familia - fares badly on this account. Nearly 50 per cent of the beneficiaries had income levels above the targeted levels. The balance went to eligible beneficiaries but managed to cover only about 55.1 per cent of the eligible target – a clear failure from both ends (Stampini & Tornarolli, 2012, p. 17). Wrongly targeted subsidies have done perhaps more damage to Egyptian economy than its revolution in 2011 to its polity. Energy subsidies comprised 72 per cent of the total subsidy allocation in the 2011-2012 government budget, whereas food subsidies accounted for 14 per cent. Fuel subsidies alone represented more than 70 per cent of the budget deficit in 2011-2012, which were 14 per cent of their GDP. Further, as Ghoneim (2014) notes: all are aware that the subsidy system has not helped the poor as it was intended to. A commonly cited figure is the 20/80 percent argument, which states that 80 percent of the population benefits from 20 percent of the energy subsidies, whereas only 20 percent of the population benefits from 80 percent of the subsidies. For example, energy-intensive industries such as steel and cement often benefit from the natural gas subsidy. By receiving the subsidy and then selling their products domestically at prices equivalent to those on the international market, these companies enjoy a substantial profit. In addition, gasoline subsidies are enjoyed mainly by car owners, who represent only seven percent of the population. As such, the system neither helps the poor nor achieves social justice. In India, socialist urges have taken precedence over economic logic in determining what should be subsidised and how much to subsidise. As is documented with some primates once an entitlement is given it is almost impossible to withdraw it. This phenomenon of extreme violent reactions when feeling disenfranchised have been documented in animals. The highly endangered species Chacma baboons in Cape Peninsula where tourists have fed them over the years learned that humans are a source of food. Those baboons grab handbags and picnic baskets looking for snacks. When disappointed not to find any food, they are known to attack people violently. Similarly, any attempt to withdraw entitlements is met with unrealistic, irrational and often violent reactions by the beneficiaries (Bainbridge et al., 2009, p. 157; DeAngelis, 2009, p.60). Subsidies outliving their life cycle Perhaps the most compelling or dominant reason is the lack of recognition of life cycle of subsidies. Each subsidy is relevant to a society at a particular stage of growth.

155 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Subsidies that are relevant when the per capita income is $ 450 may not be relevant when the income of the society reaches $ 3000. Food subsidy and sanitation subsidies may not be as much relevant to a person at higher income levels as with lower income. While subsidy may continue allowing newer members access, it should definitely provide for weeding out those who are capable of economically affording the same. Without this weeding out, the burden on the State would continue to burgeon to unsustainable level. The subsidy on cooking gas in India that existed till recently covering rich and poor alike is a case in point. Side effects Subsidies themselves may end up creating negative externalities. Egalitarian countries like Sweden or the Netherlands which provide cradle-to-grave protection for their citizens, find declining labour force participation, growing unemployment and rising budget deficits. Countries need to design their policies carefully to avoid the extremes of unacceptable inequality or great inefficiency. (Samuelson, & Nordhaus, 1998, p. 355) In India Mahatma Gandhi National Rural Employment Guarantee Act programme may have aimed at creating much needed employment in rural areas. Instead, there is greater than expected increase in absenteeism from regular employment – organized and unorganized - and consequent increase in wage levels in traditional vocations. Instead of working additional hours and enhancing incomes and climbing aspirational ladders, the rural recipients seem to have given up (in various degrees) their regular occupation and chosen to be satisfied with their current levels of income and consumption. (Kumaraswamy, 2014, p.22) Electricity subsidies have led to excess pumping and fast sinking water tables, fertilizer subsidies have affected soil health, etc. Limits on rest of society There are practical limits beyond which the people who finance the subsidy directly (like Corporate Social Responsibility (CSR) in India) or through taxation will start resisting. Beyond these limits there may be strong temptations for income suppression or even migration out of the country. This also means that what is spent by way of subsidies are spent wisely at two levels – one at the stage of giving and secondly in the usage thereof by the recipient. It should achieve what it wants within a set time frame. If it is not demonstrable, then it may not be the best form of subsidy. Suggestions for re-design Applied psychology and behavioural economics have made tremendous strides in the recent years and using these principles subsidies can be redesigned to yield optimum results. A case study of how to redesign power subsidies is attempted. In the following section we discusses some ways to redesign subsidies and make them more effective.

Behavioural Re-design of Subsidies / V. Kumaraswamy 156 Mental anchoring Amos Tversky and Daniel Kahneman (1974) reported an experiment which defines anchoring in decision making. In their experiment they asked two groups about the number of African countries in the United Nations. They exposed each group to a random number by spinning a wheel which put out 10 and 65. Each member was then asked to say whether the actual number would be more or less than this number first and later to specify the exact number by moving up or down from 10 or 65. The median score of the first group who were exposed to 10 was 25 and the other 45. People’s expectation of entitlement starts from the historical ‘initial values’. If the initial value is anything like 100 per cent (or whatever per cent), the recipients expect the same to continue in future. Over a period, the expectations solidify and an attempt to reset the values in the recipients’ mind is resisted with all the social and electoral power the target groups can mobilise. As discussed later, in Tamil Nadu the tariff for electricity for agricultural use is nil. The incentives for new industries in Andhra Pradesh for electrical supply is R 1 /Kwh. This kind of specification, over a period, leads to hard mental anchoring and expectation to unlimited supplies irrespective of the cost and utility to the user. Breaking this anchoring is very difficult and leads to emotionally charged and irrational backlash when it is sought to be reduced. Over a period, most political parties have found it impossible to address this issue fearing electoral setbacks, even as it drains State’s finances. One possible way to start dilution in such cases is to introduce more variables or conditions into the calculation but retaining the pegs as it is. For example, electricity can continue to be supplied at nil rates (i) only during seasons; or (ii) for specified crops; or (iii) based upon harvest, or (iv) capping per capita acreage and so on. It is unlikely all the recipients will suffer from the same handicap with the new conditions and hence united defiance may be unlikely. No free lunch subsidies All subsidies (whether industrial or consumer oriented) should be based on some economic or social reciprocity or quid pro quo. Unconditional subsidies would most likely make the recipients think that it is a compensation for their votes or the political system is under compulsion or the politicians are obliged to them in some way. Thus when one feels psychologically entitled (even if under mistaken assumptions), it results in a feeling of disenfranchisement when withdrawn and leads to consequential backlash. The recipients can be made to ‘earn’ their entitlement by working as traffic assistants, as queuing assistants, or as teachers in adult education, voluntary health workers, etc. Fertiliser subsidies can be linked to learning best practices on fertiliser usage and dosage, post harvest processing, energy efficiency, water conservation, etc. If no work can be expected from some of them, they can be made to skill themselves, go through classes and videos regarding appropriate social behaviour, safe road behaviour, responsible child birth and child rearing, benefits of vaccinations, good manners and right conduct rules, etc. so that the society gets something in return. It should be anchored as a conditional entitlement at all times. Bolsa Familia (operating

157 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 in Brazil and 18 other Latin American countries is the finest example of a successful conditional subsidy in operation (see Box II). Box II

Box II Bolsa Familia, Brazil – the best designed conditional subsidy Probably the biggest and best known cash transfer schemes in the developing world is the Bolsa Familia (family fund) in Brazil. Since 2003, 12 million families have joined the scheme and receive small amounts of money (around $12 a month). Inequality has been cut by 17 per cent in just five years, which is perhaps one of the most dramatic achievements in welfare ever recorded. The poverty rate has fallen from 42.7 per cent to 28.8 per cent (Bunting, 2010). The payments are conditional upon the following - i. Dependent on the family’s children staying in school until 17; ii. Attendance of at least 85 per cent up to the age 14 years and 75 per cent for the remainder; iii. The children taking the full set of vaccinations in their first five years; and iv. Mothers attending pre and post-natal care (Bunting, 2010).

Linkage to desirable (by the donor) outcomes Bolsa Familia leads to long-term capacity building and individual productivity improvements. United Kingdom and European Union’s single payment scheme had several desirable outcomes. It removed the crop specific schemes which distorted trade and cropping pattern, leaving it to the farmer. The claimants had to comply with good agricultural and environmental condition, statutory management requirements and cross compliance standards; all meant to ensure environmental, animal health and safety, plant health and diversity, public health standards. They also cover good agricultural and environmental practices. Ideally the Indian power subsidies should be linked, if there are ways to perfect the system, to the quantum of crops produced. If not, up to subsistence levels it can be reimbursed in cash and above it based on deliveries at the market place. The amount so arrived at should be reimbursed through the electricity bills by way of deduction subject to actual usage. The power subsidies should be linked to the optimal usage of units required (so that problems of excess pumping do not take place) multiplied by the costs involved. Electricity subsidies as we shall see below should be linked to best farm practices, ideal cropping pattern, optimal fertiliser use, capping boring depth, optimal watering, etc.

Behavioural Re-design of Subsidies / V. Kumaraswamy 158 Never 100 per cent: It should induce rational choice and trade-offs No subsidy should be for 100 per cent even if it is calculated based on deliveries to market, actual production or even usage. There should always be an element of contribution by the beneficiaries. Does free, mean worthless? According to Banerjee and Duflo (2011) there is a ‘psychological sunk cost’ effect –people are more likely to make use of something they have paid a lot for. In addition, people may judge quality by price: things may be judged to be valueless precisely because they are cheap. (p. 85) People have two kinds of utilities – acquisition utility and transaction utility – that a person derives from his purchases. Acquisition utility is the total units of satisfaction that an individual derives from consumption of a particular good. This has per force to be more than the opportunity cost of efforts involved or market price of good/services involved. Transaction utility derives mostly from bargains or ‘deals’ – …difference between the (usually lower) price actually paid for the object and the price one would normally expect to pay. … Good deals…can lure all of us into making purchases of objects of little value. Everyone has items in their closets that are rarely worn but were ‘must buys’ simply because the deal was good… (Thaler, 2015, p.61) Two action points that arise from above insights are (i) Enhance /build acquisition utility :Subsidies which are 100 per cent free to consumer will most likely be acquired for their ‘transaction utility’ and hence lot less likely to be used for the intended purpose, thus diluting the efficacy of a lot of subsidy programmes. People need to be taught of the methods of use, proper dosage, the immediate benefits and the long-term benefits to themselves, immediate surrounding people and society. The higher the acquisition utilities greater are the chances of the recipient actually using it as intended. Sunken Cost effect is lot less likely and the future benefits foregone become opportunity costs and hence impels the recipient to consume. (ii) Let them know what it costs: Most commercial transactions involving price offs and discounts for customer loyalty raise bills which state the value of free gifts and giveaways involved so that the recipients know. Bills should always be raised on the recipients for the full value even if such billing involves costs. This will keep the acquisition utility matter on top of mind with the recipients and may make them more responsible in usage. Thus a good design should ensure that the recipients use the services or goods received through subsidies with as much care and concern as if they have earned it. It should be subject to rules of rational choice (and cost benefit trade-offs or efforts vs. benefits) between various alternatives to spend at the consumer level. To illustrate, a person should not waste his years in pursuing education of a variety that is not his choice or interest and a farmer consume fertilisers that are inappropriate to the soil conditions.

159 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 This should also slowly extend at the transfer stage itself. The recipient should be made to exercise rationality even in claiming the benefits only to the extent that he actually uses. It should influence behaviour of recipients in the desired direction and slowly wean them away from the State that made subsidy essential. It should be target oriented. Choices always – One size does not fit all: It is unlikely that all recipients benefit by the same scheme. There should be at least two or three options that customers can choose from. This will, besides promoting efficiency, make them calculate what is optimal for them and keep the matter in a state of flux. When a new scheme is announced it would be evaluated with respect to the previous schemes and the loss or profits from that and take the mind away from binary ‘yes or no’ choices which are awkward politically and help polarise reactions. In actual practice there is always scope for better designs that benefit a vast majority without compromising the others (who can stay with status quo choices). These can save something for the system which can be shared with the recipients who need not feel ‘lost out’ For example, if the electricity scheme for agriculture is ‘reimbursement in cash up to 60 per cent of optimal usage plus costs of self-generated electricity through solar energy, the transmission and distribution losses, theft and leakage will be contained and gained by the Discoms and reduce the subsidy bill of the State. All subsidies should come with sunset clauses: Demonstration effect and acceptance of the inevitable All subsidies should come with clearly enunciated sunset clauses. These may be in terms of time, conditions or event based or attainment of specified targets. These may be at the individual or group level. If it is at the group level newer members who become entitled will join the eligible group and those who attain the qualifications specified will move out and hence there will be a constant churn. The latter setting is preferable in that chances of mass protest on any alterations are less likely given the floating membership. The sunset clauses should be announced well ahead in time say five years or 10 years or as fits the case. When so announced there is no immediate target to hit. People faced with no immediate alternative response behave without rationale. But given sufficient time to respond and presented various alternatives they think more rationally and scale it down to ‘negotiation’ as a strategy than civil disobedience and public demonstrations and breakdown of law and order. By the time the sunset actually comes around, people are likely to figure out alternative solutions. A small supplementary extension of time with reduced subsidies may prove a sufficient palliative to overcome the residual resistance. Alternatively, any of the other methods already worked out by recipients could become the new subsidy pattern. The few who work out and switch to alternatives will surely have a ‘demonstration effect’ and thus influence others to adopt such responses.

Behavioural Re-design of Subsidies / V. Kumaraswamy 160 A case study of electricity subsidy Electricity or power subsidies for agriculture are a big drag on most States finances in India. The subsidies are financed either by the domestic consumers or industries (either high tariff or irregular supplies) which are charged above average cost of supply (ACS) or the State budget. Agriculture today accounts for 23 per cent of electricity consumption but pays only nine per cent of its revenues. On a sale of around 755,000 Kwh units, at an average revenue of R 5.20/unit, a loss of R 53,000 crore is incurred. The ratio is even more skewed in several States. Table 2 captures the under recoveries from agriculture in select States. Table 2: What Agriculture Pays for Power

Supplier of electricity Charges /Kwh to Average cost of supply of agriculture (R /Unit) power (R /Unit) 1 Tamil Nadu Generation and 0.00 5.40 Distribution Corporation Limited 2 Punjab State Power 0.00 3.97 Corporation Limited 3 Dakshinanchal Vidyut Vitran 1.10 3.67 Nigam Ltd. (U.P) 4 Jodhpur Vidyut Vitran 1.20 6.66 Nigam Limited (Rajasthan) 5 Bangalore Electricity 1.24 3.75 Supply Company Limited (Karnataka) 6 Ajmer Vidyut Vitran Nigam 1.33 8.35 Ltd, (Rajasthan) 7 Paschimanchal Vidyut 1.37 3.46 Vitaran Nigam Limited (Uttar Pradesh)

Source: Bhandari, A. (2104, February 21). How agriculture consumes 23% of India’s electricity & picks 7% Of tab, India Spend. Retrieved August 24, 2017, from http://www.indiaspend.com/cover-story/how- agriculture-consumes-23-of-indias-electricity-picks

The origin of the trouble is the doing away, from 1970, of electricity meters for the farm sector. Consequently, most states introduced flat tariffs for agricultural electricity supply, removed meters and stopped recording consumption. Initially the idea was to increase the flat tariff over time to align with electricity generation and supply costs. However, over a time providing free or highly subsidised power to farmers evolved into a standard promise of electoral politics; today most State politicians know that withdrawing power subsidies would be equivalent to political suicide (Gulati & Pahuja, 2015, p.2). The following are some suggestions to get back to normalcy over a period: 1. Reduce transaction utilities and enhance acquisition utilities: The present system

161 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 of billing based on horse power (HP) rating without any linkage maximises usage even more than perhaps when given free. An element of ‘lets get back our money’s worth’ mentality creeps in. People will buy things mainly for transaction utilities in such cases. The government should educate the users on the disadvantages of excess pumping, the dangers of depletion of water table, effects of flood irrigation in productivity loss due to excess watering and what it means to the ability of government to help them in alternative ways. A visualisation of bleak future might induce more responsible use, if facilitated through other measures. 2. Inducing rational behaviour: As well documented, most farm pumps today are highly energy inefficient. Damodaran (2016) points out: An old 5-HP pump that guzzles 5 units per hour and runs six hours daily for 300 days of the year will consume 9,000 units. If, however, replaced by a new star-rated pump of similar horsepower requiring only 3.73 units an hour, the annual consumption will drop by over 25 per cent to around 6,715 units. The annual savings from it, taking an average cost of supply of Rs 5/ unit, comes to Rs 11,430. That is significant, when seen against the roughly Rs 35,000 cost for a new energy-efficient 5-HP pump-set. If the payback from such devices is just three years, people would have invested it themselves since the implied returns would be 30 per cent per annum. They are not doing so, since they get any amount of electricity free at the expense of the government. Government should make subsidy conditional on installing new pumps. It can reduce the paybacks by cutting down on the subsidy available for old pumps and thus increase the relative attractiveness of efficient pumps and thus encourage migration. 3. Never 100 per cent: During non-cropping months, it is difficult to justify subsidy for agriculture. Bills should be raised for such periods. Under the single payment scheme the farm subsidy programme in operation between 2003 to 2015 in United Kingdom, one of the conditions for eligibility was that the land should have been retained for agricultural purposes for at least 10 months in a year. Even otherwise there should be a token deduction in proportion to the bill amount even if just the costs involved administering the system. This will break the free lunch syndrome and remind them to optimise. Another way to break the 100 per cent mental fixation is to deposit half the cost of savings due to reduction in consumption (over each individual’s previous maximum consumption) into pension schemes like the public provident fund. This will be an incentive to save electricity and there will be no immediate cash-flow. And the excess over maximum should be billed at full cost forcing people to think both ways – to cut consumption and save. 4. Make it conditional: i Cropping pattern: The subsidy should be applicable only for recommended crops (may be two-three alternatives). It should also be linked to use of the ideal mix of fertilisers.

Behavioural Re-design of Subsidies / V. Kumaraswamy 162 ii Water consumption recommended: It should be capped at the water consumption levels recommended as per crops and seasons. It is to be noted that the present flood irrigation has led to nearly 40 per cent excess watering which besides being run off washes out fertiliser and nutrients along with it resulting in reducing productivity. iii Education of best practices etc.: It should be mandatory for recipients to be trained on best practices in farming, irrigation, fertilising, preparation for market, responsible practices, etc. The data can be captured through the below poverty line cards or Aadhaar cards. 5. Start billing and let them know what it costs Even if the Governments are reluctant to bill the customers, the farmers should be made to know what it costs. Raising bills may have become cumbersome in 1970 due to sudden spurt in farm connections, but given the use of sensors it should not be difficult now. For farmers within a specified monetary value, discounts can be given on the bills itself making it NIL. Others can be asked to pay the bill first and get the amounts transferred by direct transfers. This may induce some curtailing. 6. Getting quid pro quos: Subsidise reduction of wastes The recovery from agriculture per Kwh is, as can be seen in Table 2, Nil or very low in Tamil Nadu and Punjab. Since there is no limit, people tend to misuse or not curb consumption to optimal levels. Gujarat government in a similar situation had contemplated reversal or sorts: it intended fixing the maximum permissible units but offered cash compensation for units saved. Even if the cash compensation is less than the cost of supplies there will be plenty of people who will be tempted to take advantage and thus work actively towards saving power. 7. Social policing A major side effect due to free power is sinking water tables. This nexus has come about due to competitive digging for water to ever deepening levels. There is an urgent need to kill this competitive spirit. Subsidies may be linked at the community level to reviving water bodies at the village level and ensuring recharge of a certain per cent. Consumption beyond these limits can be charged at average cost of supplies. Further incentives can be offered at the individual level. Another related element is the incentives for surge irrigation. Flood irrigation leads to excessive loss due to evaporation and run off especially in clay soil where absorption rate is slow. By giving intervals between one dose and another, more water would be absorbed without run off. This can be incentivised through appropriate billing algorithms in electricity. 8. Choices and migration plan: Break the mental chains Farmers should be presented three or four choices. The cost of supply of each unit may be the same in the Discoms hands, but the value of each unit of electricity is

163 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 bound to be different at each recipient’s hands due to differential marginal utility and differing income levels and hierarchy of wants. Some may be better off having cash on hand as done in Bolsa Familia. For some others more public distribution system entitlements may be more beneficial. Deposits in provident fund, subsidised housing, cooking gas, transportation can be offered as alternatives to power. This will induce a break from channelled thinking and over a period of time facilitate switch over to alternative incentives. Such diffusion might make it politically lot less risky to attempt power reforms later. Conclusion Even today conventional economic literature treats subsidies as some kind of market intervention. It is considered ‘distortionary’ and assumed to inflict a leakage and hence push the economy invariably into Pareto sub-optimality. It is looked at as a kind of charity from the State to the poor. This approach can be changed. It is possible to re-design the subsidies so that the ‘leakages’ are minimised. Recent advances in behavioural economics enables us to design programmes that largely dilute inefficiencies in subsidies.

References Amornvivat, S. (2012, September 19). Rice pledging poses long term risks. Bangkok Post. Retrieved August 24, 2017, from http://www.pressreader.com/thailand/bangkok-post/20120919/281736971652379 Bainbridge, J., K. Armstrong, B. Blond, M. Fitzpatrick, N. Luckham, H. Ranger & S. Richmond (2009). Lonely planet South Africa, Lesotho & Swaziland (8th ed.). London: Lonely Planet. Bhandari, A. (2104, February 21). How agriculture consumes 23% of India’s electricity & picks 7% of tab. India Spend. Retrieved August 24, 2017, from http://www.indiaspend.com/cover-story/how- agriculture-consumes-23-of-indias-electricity-picks-7-of-tab-96206 Banerjee, A.V., & E. Duflo (2011).Poor economics. Gurgaon: Random House. Bunting, M. (2010, November 19). Brazil’s cash transfer scheme is improving the lives of the poorest. The Guardian. Retrieved August 30, 2017, from https://www.theguardian.com/global-development/ poverty-matters/2010/nov/19/brazil-cash-transfer-scheme Damodaran, H. (2016, January 21). Cutting power subsidies – by giving new pumps free!. Indian Expess. Retrieved August 30, 2017, from http://indianexpress.com/article/india/india-news-india/cutting- power-subsidies-by-giving-new-pumps-free/ DeAngelis, T.(2009). Understanding terrorism. Monitor on Psychology. 40(10), Retrieved August 24, 2017, from http://www.apa.org/monitor/2009/11/terrorism.aspx Ghoneim, A.F. (2014, May 5). Egypt and subsidies: A country living beyond its means. Middle East Institute, Retrieved August 24, 2016, from http://www.mei.edu/content/egypt-and-subsidies-country-living- beyond-its-means Gulati, M., & S. Pahuja (2015). Direct delivery of power subsidy to agriculture in India. Retrieved August 27, 2017, from https://www.esmap.org/sites/esmap.org/files/DocumentLibrary/SE4All-%20Direct%20 Delivery%20of%20Power%20Subsidy%20to%20Agriculture%20in%20India_Optimized.pdf Kumaraswamy, V. (2014). Making growth happen in India : A roadmap for policy success. New Delhi: Sage. Narang, T. (2012, September 5). The price of populism and hoarding grain. The Hindu BusinessLine. Retrieved August 30, 2017, from http://www.thehindubusinessline.com/opinion/the-price-of-populism- and-hoarding-grain/article3862612.ece

Behavioural Re-design of Subsidies / V. Kumaraswamy 164 Okun, A.M. (1975). Equality and efficiency: The big tradeoff. Washington DC: Brookings Institution. Samuelson, P.A., & Nordhaus, W.D. (1998), Economics (16th ed.). Boston, MA: Irwin/McGrawHill. Stampini, M., & Tornarolli, L. (November 2012). The growth of conditional cash transfers in Latin America and the Caribbean: Did they go too far?. IZA Policy Paper No. 49. Retrieved August 30, 2017, from http://ftp.iza.org/pp49.pdf Thaler, R.H. (2015). Misbehaving: The making of behavioural economics. London: Allen Lane. Tversky, A., & D. Kahneman (1974). Judgement under uncertainty: Heuristics and biases. Science (New Series). 185(4157), 1124-1131. http://www.jstor.org/stable/1738360

165 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 The Benevolence of MGR, Subaltern Audiences and the Tamil Nadu State

Gopalan Ravindran1

Tamil Nadu has been seen as the pioneering Indian state in launching unique welfare schemes such as noon meal, free rice/cereals, free electricity for farmers and urban poor, free canteen, free laptops, free home appliances, among others. There are myths and facts about the historical and filmic contexts of these schemes as sites of welfare politics of a state that invoked the principle of “benevolence” on the part of the rulers towards their subjects two- three millennia ago. In fact, “benevolence” as a principle of righteousness and a cornerstone of public governance was a deep-rooted tradition in the larger canvas of ancient “Thamizagam” during the Sangam age. Sangam age rulers and philosophers valued “benevolence” as the cornerstone of relationships between the rulers and the ruled. In recent decades, acts of “benevolence” became a part of filmic and policy narratives in Tamil Nadu. This paper explores the intersections of filmic contexts of “benevolence” in the emergence of the so called welfare state model of Tamil Nadu with particular reference to the linkages between M. G. Ramachandran’s (MGR’s) articulations of “benevolence” in his films and the expressions of Dravidian socialism in the films that were scripted by his mentor, C. N. Annadurai. Key words: benevolence, Tamil films, Dravidian movement, Dravidian socialism, C. N. Annadurai, MGR, Jayalalithaa, Rajinikanth, postcoloniality, welfare politics

amil Nadu has the third largest economy in India with a current Gross State Domestic Product of R 13,842 billion (US$220 billion) (“Economy of Tamil Nadu,” Tn.d.). Tamil Nadu also has a debt of over R 2.5 lakh crore and the highest revenue deficit among south Indian States at US$154.59 billion (Ramakrishnan, 2017). The State is home to countless number of welfare schemes which are either appreciated as “bold social programmes” (Sen & Dreze, 2013) or labeled as “populist” and seen as contributing to negative developments such as rural dispossession (Vijayabaskar, 2016). These schemes are often seen as retaining the vote banks of the two parties that have governed Tamil Nadu since 1967, Dravida Munnetra Kazhagam (DMK - Dravidian Progressive Party) and Anna Dravida Munnetra Kazhagam (AIADMK – All India Anna Dravidian Progressive Party) (Wyatt, 2012). The social reform movement launched by E.V. Ramasamy Periyar during the second decade of last century and the political parties that became the political offshoots of the movement are seen as the canvas which has made Tamil Nadu the model welfare

1Gopalan Ravindran ([email protected]) is Professor and Head, Department of Journalism and Communication, University of Madras. His research interests are in the areas of film cultures, digital cultures, diasporic cultures, critical theories and philosophies, political economy of space, time and communication.

The Benevolence of MGR, Subaltern Audiences and the Tamil Nadu State / Gopalan Ravindran 166 state where social development hinges on democratic action (Sen & Dreze, 2013). Sen & Dreze (2013) note: Tamil Nadu, much to the consternation of many economists, initiated bold social programmes such as universal midday meals in primary schools and started putting in place an extensive social infrastructure – schools, health centres, roads, public transport, water supply, electricity connections, and much more. This was not just a reflection of kind-heartedness on the part of the ruling elite, but an outcome of democratic politics, including organized public pressure. (p.78) The Corporation of Madras pioneered the mid-day free meal scheme nearly hundred years ago in 1925. The former Chief Minister of Tamil Nadu, K. Kamaraj, launched the mid-day meal scheme for primary school children during 1962-63. This scheme was extended and expanded in 1982 when M. G. Ramachadran became the Chief Minister. Several Indian States subsequently emulated this scheme. The scheme aimed to improve the health of the children, improve enrolment rate and reduce drop out rate of children in schools. These acts of benevolence are not incidental nor peculiar if one makes attempts to understand the cultural and historical linkages between contemporary practices of benevolence by film stars on screen and what is criticised as the populist benevolence of successive governments in Tamil Nadu since 1967, when DMK rode to victory on the promise of 4.5 kilograms free rice to people of Tamil Nadu. It is said that C. N. Annadurai, the man who promised it and implemented it had some financial reservations once he came to power. Former Chief Minister Jayalalithaa had to her credit 18 schemes. Tamil Nadu attracted national and international attention when former Chief Minister Jayalalithaa launched the free laptop scheme on September 15, 2011, the birthday of DMK’s founder and former Chief Minister, C. N. Annadurai (Press Trust of India, 2011; “Mother of welfare,” 2016). The scheme entailed the distribution of 68,00,000 laptop computers to students of government and government aided schools, colleges and polytechnics during the five period 2011-2016. While launching the scheme, Jayalalithaa remarked: My Government will ensure that students will not suffer any deprivation -- uniforms, textbooks and shoes to geometry boxes and laptop computers; every possible facility is to be reached to them as tools to help them realize their full potential. ( “Speech delivered,” p. 35) Do these figures and facts have something to do with the logic of benevolence cultivated by film stars turned Chief Ministers of Tamil Nadu? Are we missing something in our reading of the contemporary waves of populism and benevolence in Tamil Nadu? This paper will provide linkages between the politics of benevolence on screen, in the policies of successive regimes of government in this part of India and the cultural and historical origins of practice of benevolence.

167 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Filmic benevolence and subaltern audiences The notions of benevolence and benevolent subjectivity have been serving as important theoretical constructs in relating to the conditions of subalternity in diverse cultural contexts. Gayatri Spivak’s (1988) theoretical addresses concerning the above have elevated the purportedly centuries-old feudal marker of benevolence into a colonial marker par excellence. Spivak regards benevolence as violence as it does not afford the subaltern subjects the right to speak and grants instead the interlocutors and the causative agents of subalternity the right to speak. However, benevolence as a theoretical construct has a chequered history as a site of life and material philosophy in Tamil Nadu. During the Sangam age, (spanning from 400 BCE to 300 CE) (Singh, 2009, p. 15), the rulers went out of their way to be benevolent to the needy. To be ethical meant that the rulers and ruled became subjects of a world view where giving, sharing and accepting resources were acts of benevolence mediated by group cultural norms in public interest. During post-Sangam age, as revealed by the work of Thiruvalluvar, Thirukural, benevolence becomes an act of individual righteousness and an individual virtue to be cultivated by the domestic men (Elango, 2008). The contemporary linkages of benevolence between the rulers and the ruled on the one hand, and the film stars and their subaltern audiences, have their cultural and philosophical origins in these contexts. However, Spivak’s logic seems not only a theoretically sound mode of understanding the conditions of subalternity and their sources, but a pragmatic one as well, particularly in the postcolonial contexts of countries like India. The markers of postcoloniality in such contexts are as widely populated as the subaltern groups and their detractors. The public spheres in which these divergent markers of postcoloniality are made visible and influential are structured by the subaltern groups and their detractors, in an intensely collaborative mode. One such public sphere is Tamil cinema. This is the plane where celebrity colonialism finds its subaltern subjects, the Tamil film fans. This is the plane where the formation of subalternity hinges more upon the formation of benevolent subjects of the stars and superstars of Tamil cinema than the real world conditions in which subalterns find themselves. Tamil cinema and its socio-cultural milieus have their roots in complex layers of feudal, colonial and postcolonial histories. These layers are difficult to relate to in their entirety, but one can see a microcosm of the feudal, colonial and postcolonial worlds in one plane. This is the plane where the subalterns encounter the sources that are seeking a collaborative mode of existence with them, not withstanding the socio-economic realities that separate them. The benevolent superstars of Tamil cinema and their subaltern audiences have been existing in this collaborative mode of existence since 1940s, when Tamil cinema saw the birth of its first superstar in M. K. Thyagaraja Bhagavathar. The postcolonial markers of benevolence, exploitation and subalternity have their influences writ large in each and every of the hundreds and thousands of Tamil films and the relationships these films sought to foster between their subaltern audiences and their benefactors, the stars and super stars of Tamil cinema.

The Benevolence of MGR, Subaltern Audiences and the Tamil Nadu State / Gopalan Ravindran 168 These markers took a great leap forward during the 1940s - 1960s, when the DMK (the political party that sprang from the Dravidian political movement) sought to construct a public sphere where the subaltern consciousness was made to come alive politically on the screens where Tamil films espousing the cause of Dravidian socio-political ideology started rolling. The core of the then Dravidian ideology had strong Marxist layers sandwiched by appeals to Tamil ethnic identity and signals against the threats to Tamil language and economy. There could not be a more fertile ground than this for the subaltern consciousness to emerge on the lines suggested and controlled by the public sphere that they did not create in the first place. They were made willing accomplices of the stars and the party ideology that promoted the stars in a journey that has metamorphosed to other interesting postcolonial trajectories in the post- Dravidian cinema era. Tamil cinema is no longer avowedly political as it was during 1940s - 1960s, but it still bears very strong imprints of the postcolonial subjectivities it sought to foster in the subaltern film audiences with the active collaboration of the stars who were born with Tamil political cinema. Benevolence as a postcolonial marker also exists in a peculiar location in Tamil cinema. It is a Pontean (Merleau-Ponty, 1962) location where the subjects of benevolence and objects of benevolence seem to exist on a plane where distinctions between them are blurred due to the rapidly fused manner in which the subjects and objects exchange their acts of benevolence. It is a Pontean location because the causes and effects of benevolence of stars and their fans are feeding on each other to the point where it becomes difficult to locate them separately. Stars as subjects or sources that cause benevolence have their basis in the objects of benevolence, film fans, as effects, which in turn seek to reconstitute themselves as subjects of benevolence in their acts of adulation of the star. In the later position, the stars exist more as the objects of benevolence or recipients of the goodies from the fans. For instance, the benevolence of Rajinikanth, on screen and off screen, gets matched by the benevolence of his fans in numerous ways. The various acts of the Rajinikanth fan club members are carefully orchestrated to acknowledge not only the benevolence of the star, but also express the benevolence of the fans.* When fans of Rajinikanth repeatedly urged the star to plunge into politics, it must be read as a crucial point in the Pontean postcolonial location where Rajinikanth is turned into an object of benevolence by his fans.2 In such a location, what becomes of the distinctions between subjects and objects can be related only phenomenologically and through the logic of Merleau Ponty on subject- object continuum. The planes of Tamil cinema where benevolent superstars and subaltern film audiences seek to exist in a collaborative mode is a postcolonial game where the loser (subaltern film fan) is made visible to the winner (the star-turned politician) in myriad ways, but is not made visible to himself. Subalternity grows with every losing points gathered by

2 Rajinikanth, who is praised as the super star by his fans, has been projected as a potential politician since 1996, when he had a tiff with the former Tamil Nadu Chief Minister Jayalalithaa. Despite his indifferent/ studied responses, the fans did not miss any opportunity to urge him to enter politics. After two decades of exchanges of benevolent gestures between himself and his fans, Rajinikanth announced his decision to enter politics in December 2017.

169 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 the subaltern film audiences and the unhindered progression of stars as super stars and super stars as political supremos. One superstar of yesteryears, MGR3, personified the logic of benevolent subjectivity remarkably well in his addresses to his subaltern fans. The benevolent subjectivities of film stars and the subalternity of their audiences are rooted in a collaborative mode of existence where denial of difference is as much an acknowledged fact as acceptance of difference between the subalterns and the stars who seek to personify subalternity in all their words and deeds, on screen and off screen. MGR’s acts of benevolence on screen and later as a politician, Chief Minister, has its origins in his personal life* as well as his political and social grooming in the Dravidian movement’s socio-political ethos by his mentor, C. N. Annadurai. MGR sought to connect with his subaltern subjects in unprecedented creative modes. For instance, MGR’s films are known for colours that had too many contrasts and conflicts to defy any logic of contemporary colour designers. The colours of red, white, blue, black, green vied for attention in their locations on his hats, belts, shirts, shoes, pants, socks, etc. While his contemporaries settled for conventional and non-conflicting colour schemes, he had a plan to speak to his subaltern subjects in an exaggerated manner through the exaggerated mixing of colours and thereby suspend the conflicts they convey otherwise to a non-subaltern member. Moreover, the colours of his attire echoed the unrealised fantasy longings of his subjects who could not afford a colourful life in their lives. MGR scored high on colour design, not to score points on aesthetics, but to score points politically, even as it became a Benjaminian case of aestheticisation of the politics (Benjamin, 1936). MGR’s strategies on screen were as political and social as they were aesthetic in the Benjaminian mode. MGR’s strategies became as much a site of aestheticisation of politics even as they nurtured in the minds of the subaltern subjects that benevolence is not just the desire or the act of the benefactor, but the enduring bond that keeps the benefactor and the beneficiary in an unassailable state of relationships; relationships that became the envy of MGR’s filmic and political rivals. Here, the conflicting colours of his attire ought to be seen as the source of unity between the disparate elements of his subaltern fan groups and their regional, caste and religious affiliations. His colour scheme wanted to defy the logic of mainstreaming and wanted to privilege the multiplicities his subjects embodied. This came to the advantage of his mentor’s (C. N. Annadurai) party, DMK, when it won with a thumping majority in 1967 elections, and the electoral victories of the party MGR founded, AIADMK, till his death. It must be mentioned that MGR’s creative colour strategy could work wonders because of the prevalence of a film colour technology, Eastman Colour, that helped him realise his vision of himself and the relationships between himself and his co-characters and the subaltern subjects outside the filmic frame in the way he wanted.* His aestheticisation

3MGR’s early life was filled with economic hardships. He struggled hard to become a super hero, after acting in minor roles and enduring hard times. His encounters with hard times probably made him a champion of poor in his filmic and political roles.

The Benevolence of MGR, Subaltern Audiences and the Tamil Nadu State / Gopalan Ravindran 170 of the filmic frames resulted in a peculiar aestheticisation of the benevolence his acts embodied in such frames and eventually resulted in an oeuvre that speaks of the Benjaminian case of aestheticisation of politics in Tamil Nadu evocatively. MGR’s aestheticisation of the filmic frames succeeded because of the match/mismatch between the polarities of distractions and concentrations that Benjamin (1936) wrote about in his seminal work. Benjamin (1936) noted: The greatly increased mass of participants has produced a change in the mode of participation. The fact that the new mode of participation first appeared in a disreputable form must not confuse the spectator. Yet some people have launched spirited attacks against precisely this superficial aspect. Among these, Duhamel has expressed himself in the most radical manner. What he objects to most is the kind of participation which the movie elicits from the masses. Duhamel calls the movie a pastime for helots, a diversion for uneducated, wretched, worn-out creatures who are consumed by their worries a spectacle which requires no concentration and presupposes no intelligence which kindles no light in the heart and awakens no hope other than the ridiculous one of someday becoming a ‘star’ in Los Angeles. (as cited in Benjamin, 1936) Additionally, this is at bottom the same ancient lament that the masses seek distraction whereas art demands concentration from the spectator. That is a commonplace. The question remains whether it provides a platform for the analysis of the film. A closer look is needed here. Distraction and concentration form polar opposites which may be stated as follows: A man who concentrates before a work of art is absorbed by it. He enters into this work of art the way legend tells of the Chinese painter when he viewed his finished painting. In contrast, the distracted mass absorbs the work of art. This is most obvious with regard to buildings. Architecture has always represented the prototype of a work of art the reception of which is consummated by a collectivity in a state of distraction. The laws of its reception are most instructive. (Benjamin, 1936)

4 Geva colour, technic colour and Eastman colour dominated Tamil film industry since the advent of the first Tamil film in colour, which had MGR as the lead hero, Alibabavum Narpathu Thirudargalum (Alibaba and 40 thieves) in 1955. MGR’s preference for strange colour combinations was woven around colour red and Eastman colour had a bias for red. His films, made during 1960s, succeeded on the colour front for two reasons: MGR’s preference for a strange colour scheme and the prevalence of Eastman colour in Tamil film industry during the period, which accommodated MGR’s colour preference.Anbe Vaa (Come my beloved – 1966), Ayirathil Oruvan (The one in a thousand - 1965) and Enga Veetu Pillai (Son of our home -1965), among other MGR films, have to be studied for their colour schemes to uncover a different facet of MGR’s mode of aestheticisation of politics through the medium of film colours.

171 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 The laws of reception of MGR’s films are not only most instructive, but defiant too. They defy the instructive logic of the laws of reception in terms of the polarities of distractions and concentrations. For instance, the conflicting colours4 are to be seen not merely as colours, but as sources of distractions and concentration. In a sense, these are not polarities as far as his films are concerned. They are sources of concentration in their states of distractions. Long before MGR became the de facto party actor of DMK5, thanks to the sidelining of the second party actor of DMK, Sivaji Ganesan, after his growing roles as actor in mythological films. Films scripted and acted by Dravidar Kazhagam/DMK loyalists such C. N. Annadurai, N. S. Krishnan and K. R. Ramasamy had the vision of Dravidian socialism in the narratives. Dravidian socialism is not a peculiar entity. C. N. Annadurai and N. S. Krishnan pictured it as the alternative to the feudalism of the Dravidian land, where the rich, religious and the casteist elements became the enemy of the subaltern people. Dravidian socialism, in effect, refers to not the import of an alien political ideology, but its domestication in the sites of Dravidian movement’s socio-cultural and political frames of reference. This domestication process also created unique sites of relationships between the benefactors and beneficiaries of benevolence in the films made by the loyalists and leaders of Dravidian movement. Nallathambi (Good younger brother) (1949), which was scripted by C. N. Annadurai, had N. S. Krishnan as the zamindar (landowner) who is passionate about the upliftment of his subaltern subjects. He wants to quit his feudal role and become a benevolent benefactor of his subjects. He gets into the act of giving away his inherited material assets and becomes an anti-thesis of his inherited role as a feudal lord. The same year saw the successful run of Velaikari (Servant maid, 1951), which was scripted by C. N. Annadurai for providing a career break to his party loyalist, K. R. Ramasamy, who became the first party actor of DMK. In 1951,Or Iravu (One night), scripted by C. N. Annadurai, was released with K. R. Ramasamy as the lead actor. This film was based on a play by the same name which ran successfully and made K. R. Ramasamy a well known theatre artist and a hard-core loyalist of C. N. Annadurai. All the three films had their versions of Dravidian socialism in their narratives and proved that the aestheticisation of the politics was the need of the hour in Tamil Nadu. This drive for aestheticisation of politics eventually resulted in the oeuvre of MGR as the site of benevolence borne of earlier filmic versions of Dravidian socialism. Besides the colours of benevolence MGR created for his subaltern audiences, the also worked with other tools of aestheticisation of politics. The foremost among them is the aesthetic tool of songs MGR laboured hard with the lyricists and the composers to

5 Even though, DMK did not have a system of party actors and a method for the use of films as approved by the bodies of the organisation, three actors who acted in the films of the party loyalists and leaders can be counted as the party actors. They are K. R. Ramasamy, Sivaji Ganesan and M. G. Ramachandran. They worked in an environment where the individual roles of party workers turned actors became enmeshed in the then propaganda milieu of the party in an informal mode. Had Sivaji Ganesan continued his role in the party without offending party’s atheist principles, there was no scope for MGR to became what he became, the third party actor.

The Benevolence of MGR, Subaltern Audiences and the Tamil Nadu State / Gopalan Ravindran 172 employ in his films. While C. N. Annadurai laboured hard to create scripts imbued with the vision of Dravidian socialism, MGR did not leave any stone unturned to make his songs the leit motifs of his kind of benevolence and the ideology of Dravidian socialism, his intellectual mentor, C. N. Annadurai authored in his films. The following section provides an eye view of this particular trajectory of MGR’s aestheticisation of politics with a sample of his important songs. In the film, Nann Anaiyittal (If I order, 1966), one year before the crucial election in which DMK rode to victory, MGR was closer to being prophetic when he said through a song: “If I order and when it comes true, the poor will not suffer here. Till the last breath, there will not be a sad moment. They will not fall into the sea of tears.” In Oli Vilakku (Light lamp, 1968), he does a subaltern duet in the role as a gypsy with his partner. He was drawing the attention of the beneficiaries of the benevolence of the government headed by his mentor, C. N. Annadurai, in the form of a free rice scheme to the people of Tamil Nadu, the first major welfare scheme of Tamil Nadu government. He was also echoing the voice of subalterns who were provided with houses in the place of their hutments. He was reliving the voice of the subalterns who did not want to violate law as they were blessed to have a government that was working for the betterment of the poor: “When we are getting one padi (a traditional measure that equals 4.5 kgs) rice, We will not go begging by climbing stairs. When the hutments are becoming houses, we need not live on streets. When the government is on the side of the poor, We will not violate the law. When everyone thinks alike here, we will not hide anything here.” The filmic connection of benevolence here is striking as it reminds the subalterns of the good choice they made when they voted in the 1967 election to elect DMK, the party MGR represented then. In the film,Padakotti (Boatman, 1964), MGR laments, “He (God) gave everything. For whom He gave? Did He give for anyone person? No, He gave for the world. The God does not deserve the blame. The hungry man has not sinned.

173 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Those who got shared the bounty. The workers stood on the street. The God does not tolerate the sufferings of the many and the lives of the fortunate. ...Those who have nothing live on. Those who have everything say they have nothing. They have everything on their laps. Their hearts are filled with darkness. Whatever be the situation, let’s praise those who keep everything for public good.”

MGR’s expressions of an egalitarian notion of benevolence in favour Dravidian socialism is also very convoluted, if one remembers the atheist policies of his party, DMK, and his references to God in some of his songs. For instance, in the above mentioned example, he alludes to the provider as the God and seeks to picture a reality of inequalities where “He (God) gave everything. For whom He gave? Did He give for anyone? No, He gave for the world. ...Those who have nothing live on. Those who have everything say they have nothing.” In Annamitta Kai (The hand that fed, 1971), “The hand that fed is the hand developed us. It helped us to soar heights and helped the world to live. It is the hand that shaped us. Poverty must be eradicated. The industry must produce. Everyone must live here, must strive to develop, should have good thoughts, should earn their bread. The hand that laboured is the hand of the proletariat. The hand that considered its occupation as God and strained its body is the hand that developed us. The hand that turned thread as silk cloth to cloth us and save us for shame. It dug the earth, and got gold nugget, but saved only the required to fulfil the basic need. It is the hand that helps us to live.

The Benevolence of MGR, Subaltern Audiences and the Tamil Nadu State / Gopalan Ravindran 174 It is the poor people’s hand. It cleared the forest land. to keep the countrymen’s sadness away.” The ideal of Dravidian socialism lives on in this song, even after his break with DMK, and the founding of his own party, AIADMK, in 1971. It once again pictures a scenario where the proletariat’s hand is seen as the basis of a world where socialism lives on as “it is the hand that helps us to live. It is the poor people’s hand. It cleared the forestland. to keep the countrymen’s sadness away.” It is the hand of benevolence that belongs as much to the subaltern subjects MGR addresses as to himself, the person who enacts a socialistic vision for his filmic audience. Conclusion The above analysis of the films authored by C. N. Annadurai and his political disciple, MGR, proves that the linkages between filmic acts of benevolence and the policy- centric benevolence by the governments headed by them and their successors such as M. Karunanidhi and J. Jayalalithaa are emblematic of the ideological longings for a different kind of socialist discourse, Dravidian socialism, they envisioned in their filmic and administrative roles. One will be missing the true linkages, if one roots only for ephemeral, a cultural understanding of the contemporary and previous versions of welfare politics in Tamil Nadu as purely populist and vote bank politics driven.

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The Benevolence of MGR, Subaltern Audiences and the Tamil Nadu State / Gopalan Ravindran 176 Maternity Benefit Legislation Reinforcing Patriarchy, Excluding Intersectionality

Kirthi Jayakumar*

The amendment to the Maternity Benefit Act of 1961 has paved the way for what is clearly a great benefit for mothers. However, it appears to ignore the need to recognise parenting as a shared responsibility, and reinforces patriarchal norms around parenting. It also fails to account for intersectionality by disregarding the needs of women in the unorganised sector. In addition, it fails to account for implementation and safeguards for subtle exclusionism.

Keywords: maternity benefit, parenting, Maternity Benefit Act

hat nature has inherently intended that bearing the child will be the function of the biological female is a given. Seeking an understanding of the roots of the notions Tfor maternity care and support for women requires an assessment of the origins of patriarchy and the creation of the basis on which this need emanated. One way to trace the origins of patriarchy is to look for defining events that can suggest a before-and-after transition of society. However, as Robert Strozier (2002) explained, there hasn’t been any official “founding event” discovered as being the origin of patriarchy (p. 46). Some evidence from anthropology suggests egalitarian social structures in the prehistoric era, when society comprised hunters and gatherers. One theory suggests that patriarchy in society did not develop until many years after the Pleistocene era ended (Hughes & Hughes, 2001, pp.118-119), where there were considerable developments in society with agriculture and rearing livestock forming the core areas of socio-economic engagement. The historical origins of patriarchy have been explained through different theories. There is no certainty as to which one is accurate, or which one fully informs the creation or the origin of patriarchy. One theory grounds the origin of patriarchy in the biological asymmetry of the sexes. According to the traditionalist viewpoint, the inequality in genders was a result of the inequalities in the sexes – in that they were not “created” equal (Eagly & Wood, 1999). Consequently, assigning specific roles to each gender was considered natural (Erdal & Whiten, 1996). An anthropological approach attempted to

*Kirthi Jayakumar ([email protected]) is an actor, artist and author. Her areas of research interest are gender, peace and conflict studies. She is the founder and director of The Red Elephant Foundation that works for civilian peace building and gender equality through storytelling, digital advocacy and tech for good. She has contributed to four anthologies, besides authoring three non-fiction books: Public International Law, Essays on Gender in Peace and Conflict, and Redefining UN Peacekeeping Law and Revival of the Trusteeship Council.

177 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 fill the gaps in the explanation of the traditionalist theory. The domination of men was attributed to their roles as hunters and fighters, replete with the brute force, strength and tools required to do these things. Their roles as hunters and fighters required that women be nurturers and ones who kept home (Kimmel, 2001). While there is no singular defining point to ascertain the birth of patriarchy or the gender-based division that we see around us, it stands true that the discrimination remains real. When women began to go beyond the ascribed role of keeping home or raising and nurturing a family, it became imperative for workspaces to accommodate the needs of women – one manifestation of which is the world of maternity benefits. Snapshots from around the world Maternity benefit legislation and policies around the world have centred on the recognition of the fundamental rights of new mothers. Most policies globally involve offering a temporary period of absence from employment, for expectant or new mothers, during the months immediately before and after their pregnancy. For instance, in the US, there is no paid maternity or parental leave given to employees. However, they are welcome to use their sick days or vacation days, saved up or accumulated. Only 11 per cent of people in the US employed by the private sector can access some sort of paid family leave. For State and government employees, 16 per cent of the total working population can take paid family leave. In the UK, maternity leave is offered for 52 weeks, while eligible employees are paid for up to 39 weeks. In Australia, there is no maternity leave, but ‘parental leave’, where either parent is allowed to take government-paid leave for up to 18 weeks, or, they can both share the leave in any proportion. Further, jobs are protected for up to a year after the birth of the child. In Denmark, mothers are allowed a total of 18 weeks of maternity leave, four weeks before birth and fourteen weeks after, all at full pay. In Sweden, couples are entitled to 480 days of parental leave, which is the longest maternity leave offered in the world. Of these days of leave, 90 days are reserved for the father, but parents receive only 80 per cent of their normal pay during their leave (Maternity leave and benefits, 2017). Contemporary legislative framework in India In principle, the Maternity Benefit Act of 1961 is applicable to every factory, mine or plantation, and every shop or establishment where ten or more people are employed. Among the main objectives of the legislation, one remains the goal of maintaining the health of a pregnant female employee and her unborn child. In order for one to be eligible to receive maternity benefit, a pregnant female employee must have worked for at least 80 days within 12 months immediately preceding her date of delivery. Pregnant employees were originally eligible to receive payment at the rate of average daily wage of up to six weeks of leave before delivery, and payment of up to six weeks of leave after delivery. The maximum period for which any women was entitled to maternity benefit was 12 weeks of which not more than six weeks was to precede the date of her expected delivery. In addition to maternity benefit, an eligible woman employee was also entitled to receive from the establishment, a medical bonus if no pre-natal,

Maternity Benefit Legislation Reinforcing Patriarchy, Excluding Intersectionality_Kirthi Jayakumar 178 confinement and post-natal care is provided for by the establishment, free of charge. The medical bonus is payable with the second installment of the maternity benefit. On March 9, 2017, the Lok Sabha passed the Maternity Benefit (Amendment) Bill, 2016 – increasing maternity leave from 12 weeks (under the Maternity Benefit Act, 1961) to 26 weeks, for up to two surviving children. The Bill was originally passed by the Rajya Sabha and received Presidential assent on March 27, 2017. The Maternity Benefit (Amendment) Act, 2017 came into effect on April 1, 2017. The Act also provides maternity benefits of 12 weeks to a commissioning mother (in case of surrogacy) and an adoptive mother (if the child adopted is under three months). A woman, who gives birth after already having had two or more children, gets to have 12 weeks of maternity leave. Aside of this, the Act opened up an avenue that can successfully facilitate a work- from-home option through an enabling provision, which came into force on July 1, 2017. The Act makes it mandatory for any establishment with 50 or more employees to have crèches, either individually or as a shared common facility with other similar establishments that are situated within a 500 metre radius. The Act also allows the mother four daily visits to the crèche, including an interval for rest during the day. It is mandatory for every establishment to intimate in writing and electronically to every woman at the time of her initial appointment about the benefits available under the Act. The origins of the Maternity Benefit Act return to 1961, when the original legislation was passed with the intent of regulating the employment of women for a period of time before and after childbirth, and provides maternity benefits. The legislation specifically covers women employees in factories, in mines, the circus industry, in plantations and shops and establishments that employ ten or more people. The Act specifically does not cover employees who are covered under the Employees’ State Insurance Act, 1948. Historically, the Indian Labour Conference (ILC) in its 44th Session, in 2012, recommended expanding on maternity leave from 12 to 24 weeks. The recommendation was reiterated in the 45th and 46th sessions of the ILC – and has culminated in the current development. Impact on the ground While it is definitely true that the legislation has paved the way for what is clearly a great benefit for mothers, it is important to understand that this is only one part of the solution. A large part of the success of the legislation remains dependent on implementation – and one often does hear of instances where women are treated with discrimination that’s sometimes sophisticated and subtle, or sometimes, overt and crude. By refusing to give them promotions that are deserved, or taking them off assignments on the ground of ‘pregnancy’ or ‘maternity needs’ and in some cases, bypassing them for promotions while allowing someone far junior to rise up the ladder. In some instances, the cloak of work-from-home can be used to cut out a woman from the relevant workforce conversation and even knowing about opportunities that are available to her. These behaviours constitute a form of micro-aggression that can be counterintuitive and nullify the impact of a 26-week leave.

179 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 There are also instances where women do come from backgrounds where they have a suitable support system and go back to work in person before the end of the12-weeks, and where the isolation was just as palpable through micro-aggressions. The law is missing a mention of a non-discriminatory and unbiased reintegration of the woman postpartum. There are several companies that offer seamless transitions into the workforce following maternity leave, but the law not mandating it with an implementing body to watch over it only encourages a loophole that can continue to keep women out of the workforce. Further, the new legislation is also missing the component of paternity leave. Offering up a system for paternity leave would create a breaking down of gender-specific roles, and ease out the burden of meeting the demands and needs of a regular life, and help make parenting a form of shared work. It is essential that both parents have a fundamental role to play in addressing the upbringing of their children. A cursory snapshot of most nations in the world, there has been a deviation in the trend – transitioning from maternity benefits to parental benefits – wherein there is what can be construed clearly as a formal recognition of the state of parenting as a shared responsibility regardless of the gender of the parents. Finally, there are no specific attempts at addressing the needs of women in the informal and unorganised sectors. According to the Ministry of Labour and Employment of India and the International Labour Organization in 2012, only four per cent Indian female workers in the age group of 15-49 years are found to be working in the formal sector (“DC Debate,” 2016). The current framework of maternity benefits appears to address only the women in the formal sector. With 96 per cent of the country’s women in the unorganised sector, there is a desperate need to cater to their needs.

References

DC Debate: Helping mothers, failing women?. (2016, August 18). Deccan Chronicle. Retrieved September 6, 2017, https://www.deccanchronicle.com/opinion/op-ed/180816/dc-debate-helping- mothers-failing-women.html

Eagly, Alice H., & Wood, W. (1999). The origins of sex differences in human behavior: Evolved dispositions versus social roles. American Psychologist. 54(6), 408–423. doi: 10.1037/0003-066X.54.6.408

Erdal, D., & Whiten, A. (1996). Egalitarianism and Machiavellian intelligence in human evolution. In P. Mellars & K. Gibson (Eds.), Modelling the early human mind (pp. 139-160). Macdonald Monograph Series, Cambridge, UK: McDonald Institute for Archaeological Research.

Hughes, S.S., & Hughes B. (2001). Women in ancient civilization. In M. Adas (Ed.), Agricultural and pastoral societies in ancient and classical history (pp.116-150). Philadelphia, PA: Temple University Press.

Kimmel, M.S. (2001). Global masculinities: restoration and resistance. In B. Pease & K. Pringle (Eds.). A man’s world?: Changing men’s practices in a globalized world (pp. 21-37). London: Zed Books.

Maternity leave and benefits around the world (2017, March 10). The Times of India. Retrieved August 1, 2017, from http://timesofindia.indiatimes.com/world/rest-of-world/maternity-leave-and-benefits- around-the-world/articleshow/57572112.cms

Strozier, R. M. (2002). Foucault, subjectivity, and identity: Historical constructions of subject and self. Detroit, MI: Wayne State University Press.

Maternity Benefit Legislation Reinforcing Patriarchy, Excluding Intersectionality_Kirthi Jayakumar 180 Book Reviews

When Crime Pays: Money and Muscle in Indian Politics by Milan Vaishnav

Reviewed by Ashwin Parthasarathy Doctoral student at the Department of Civics and Politics, University of Mumbai.

ne of the significant moments 50 million); lesser contests cost are in post-independence period in between R15-50 crore ($2.5-8.25 million) OIndia was the adoption of liberal and marginal contests are between democracy and universal adult suffrage. Rs. one-10 crore ($600K-1.8 million) This meant every citizen of India could, (Pocha, 2014). Legally, individual on attaining the stipulated age, vote and candidates are permitted to spend about contest elections. India’s move towards R70 lakh on their campaign; in major what is termed “instant universal suffrage” contests this does not even cover basic is in stark contrast to nearly all Western expenses like printing pamphlets etc. democracies that extended universal This often results in fudging accounts adult suffrage over an extended period of submitted after elections. Former Prime time. This was a brave decision as India Minister Atal Bihari Vajpayee while had the mammoth task of recovering from referring to the expenditure statements the aftermath of colonialism, massive submitted by the candidates mentioned, population transfer due to partition, very “Every legislator starts his career with the low levels of economic growth, poverty, lie of the false election return he files” and high levels of illiteracy. However, it is (as quoted in Chhibber & Shah, 2015). now clear that democracy, no matter how Further, of the candidates who won the flawed, is functioning. 2014 elections, 443 (82 per cent) are crorepatis (a person whose assets are A matter of concern is that over the years worth at least one crore or 10 million elections have become prohibitively rupees) as compared to 300 (58 per cent) expensive. An estimated expenditure in 2009 elections (Rukmini, 2014). Added of $5 billion by political parties and $600 to it is the spurt in the number of members million by the government exchequer of Parliament (MPs) with criminal cases was made during the 2014 parliamentary pending before them. elections (Collins, 2014). A ‘big fight’ between star candidates could cost The concern about money power in Indian anywhere between R75-300 crore ($12- elections is not new. The maiden election

181 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 post independence was termed an ‘act Attempts to reform the system have of faith’ by Sukumar Sen the first election produced mixed results. For instance, commissioner of India. Even in the past, the landmark judgement Union of India parties and candidates indulged in v. Association for Democratic Reforms unethical practices like booth capturing to (2002) made it mandatory for candidates win elections. The first instance of booth running for elected office to declare capturing was allegedly recorded in 1957 criminal cases (if any) against them. One in Rachiyahi, in Begusarai’s Matihani would assume the criminal presence assembly seat, in Bihar. Way back in would go down, however data indicated 1962, Rajagopalachari commented on the opposite trend. As Vaishnav points the deplorable role of money power in out, in 2004, 24 per cent parliamentarians elections. He suggested State funding made criminal disclosures; it increased of elections in order to eliminate “the to 30 per cent in 2009 and 34 per cent overwhelming advantages of money- in 2014 (p. 9). It is this that has caused power” (Gandhi, 1997, p.390). considerable disquiet. The despair over money-power and One of the lacunae has been that much criminalisation of politics has been of the debates around the nexus between voiced over and over again. As early as politics, money and crime have been based 1977, the National Police Commission on circumstantial evidence, anecdotes, headed by Dharam Vira observed, “The or reports about politicians with criminal manner in which different political parties records entering the Parliament. The have functioned, particularly on the eve book under review is amongst the few of periodic election, involves the free use studies that seek to provide a data-driven of musclemen and ‘Dadas’ to influence analysis. The author examines how crime the attitude and conduct of sizable and impropriety can so comfortably sections of the electorate” (As quoted coexist with, by and large, procedurally in Choudhary, 2017, p. 353). In 1993 the free and fair elections. The study is based Vohra Committee quoted reports that on detailed information on the criminal mentioned the existence of “a deep and financial attributes of nearly 60,000 nexus between political personalities, candidates from 35 state and two national public servants and criminal syndicates elections held between 2003 and 2009. … Some political leaders become the In addition, the author compiled data on leaders of these gangs/armed senas and, the 8,000-plus candidates contesting the over the years, get themselves elected to 2014 national election. Additionally, he local bodies, State Assemblies, and the carried out fieldwork and interacted with national Parliament” (as quoted in Vohra, various stakeholders over seven years 2008, p.130). The Supreme Court, in its in the States of Andhra Pradesh, Bihar, December 18, 1997, judgment on Vineet Delhi and Gujarat. Narain and Others v. Union of India & The book is divided into three parts. Another, referred to the Vohra Committee The author sets out to answer, what he report and said that that the document calls, fundamental questions about the “discloses a powerful nexus between the perplexing cohabitation, or rather the bureaucracy and politicians with the mafia symbiosis, of criminality and democratic gangs, smugglers and the underworld”. politics. These include the diabolical

When Crime Pays: Money and Muscle in Indian Politics 182 issue of why those with a track record of The book avers that this trend is not running foul of law want to be part of the specific to one particular region but the establishment? Why do political parties entire country. and more crucially electorate opt to keep The second part is devoted to the ‘rascals’ in? (p. 14). How can free and understanding the influence and presence fair democratic elections exist alongside of money and criminality in elections and rampant criminality? Why do political other associated areas. The author argues parties actively recruit candidates with that the demand for criminal politicians by reputations for wrongdoing? Why do political parties is due to the soaring costs voters elect (and even re-elect) them, to of election campaigns, which parties the point that a third of state and national are unable to afford. Therefore, parties legislators assume office with pending increasingly look for candidates who not criminal charges? only self-finance their campaigns, but To understand the motivation of criminal also add to the party coffers and line candidates in standing for elections and of the pockets of party elites. The entry of voters in electing them, Vaishnav uses the criminals is the result of the belief that by framework of an electoral marketplace. directly contesting elections, they could Despite some obvious dissimilarity with “reduce the uncertainty associated with the classical market the author believes negotiating (and renegotiating) contracts” the analogy has some utility. In elections (p. 103). Criminals thus join politics for voters are the buyers and political parties self-preservation, protection, and the and politicians the sellers. He notes, “At potential financial benefits they stand the end of the day, elections determine to gain by holding office. On the other the precise location where supply and hand, voters consciously rely on criminal demand meet” (p.18). In the first part politicians to protect their interests and the author maps the shift from post- to act like the crutch that helps them independence period when politicians “navigate a system that gives them so little often relied on “criminal elements”— access in the first place”( pp. 51). In other an all-encompassing term for ruffians, words, unlike Peter Schumpeter who strongmen, thugs, and mercenaries— bemoaned the lack of rationality when to late 1970s onwards when criminals it came to political choices, Vaishnav contesting elections became a seems to suggest that all stakeholders commonplace. He contends that factors are pursuing self-interest. that contributed to this shift are the The third part looks into the causes decline of the hegemonic Congress party of crime without accountability and and rise of multiparty system, weakening exploring why there is an entrenched of organisational framework within the market place for the same. On the parties, deepening of identity politics, basis of the analysis the author seeks decline in the rule of law and collapse of to answer fundamental questions: What election finance regime. He locates the remedies do reformers have at their context in India in terms of excessive disposal to address the nexus between bureaucratic proceduralism, absence of crime and politics? What should be done capacity to carry out regulatory functions, to break the equilibrium that the market discretionary powers in the hands of for criminal politicians has reached? In bureaucrats and politicians and others.

183 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 a nutshell, the author suggests that to educated voters are slightly more achieve long-term solution the demand likely to vote for such candidates and supply of criminal politicians should than their lesser educated peers. be thwarted. This involves, reforms at (p.185) institutional and political levels. Of utmost This negates the argument that it is ‘those’ importance is repealing archaic laws, illiterate poor people who vote criminals. judicial and police reforms, revamping of This in turn raises the question about what election campaign finance, zero tolerance kind of self-interest or rationality were the policy for candidates inciting enmity. more educated voters pursuing? Further, the State’s capacity in delivering public services should be improved and Equally startling is what Vaishnav calls institutions dealing with rule of law must ‘criminality premium’. This is based be strengthened. Of course, none of on the fact that “The median ‘clean’ these solutions, as the author points out, candidate has a personal wealth of just are a silver bullet by itself. above 900,000 rupees, compared to roughly 4.1 million rupees for the median The book highlights some of the rather candidate with a serious criminal charge” sorry state of affairs in the functioning (p.152). Equally disturbing is that a of the Indian democracy. To cite a candidate with a criminal case was, on noteworthy instance, in 2008 then average, almost three times as likely to government whips in order to avoid win election as compared to a candidate Parliamentary defeat managed to get six who faced no cases. Worse still the ‘win MPs out of prison for a few days so that rate’ of candidates with serious charges, they could cast their votes. This is despite was marginally higher than those who the fact that between them they had some face only minor charges (p. 12). While one 100-odd criminal cases of kidnapping, has often speculated about such linkages arson, murder and so on. Similarly, the it is unsettling to see it be established explanation of a well-educated engineer through data. that a local politician “is not a murderer … (but) merely manages murder (p. 157) One of the weaknesses of the book is would have been amusing if it was not a that it does not give adequate attention tragic reflection of function of the system. to the role of businesses in fostering illegality. It is increasingly clear crony The book answers a number of questions capitalism has percolated to all aspects related to the functioning of the Indian of society and elections is no exception. electoral system. Considering there is a Also, the extent to which fear factor plays mammoth data analysis, the author has a role in the decisions voters take needs explained it in a lucid manner. Many of to be factored in. Is it possible that voters its findings are eye opener. An instance were worried about the aftermath if the of this: local goons lost the election? This has However, there is no clear link acquired significance since the current between a voter’s education counting system gives clear indication level and his or her propensity of locality specific voting patterns. Given to vote for a candidate facing the depressing scenario, it is not sure serious criminal charges. In fact, who will bring about the changes that if anything, it appears as if more Vaishnav suggests to break the nexus.

When Crime Pays: Money and Muscle in Indian Politics 184 Can the voters seek accountability if they not perceive fixing basic services as a accepted bribe to vote in the elections? readymade path to electoral success”(p. In many cases the voters expect to be 459). Is he making a case that good placated with gifts, money, etc. and this governance does not necessarily in turn drives honest candidates out of guarantee electoral success? A ray of the race. Election Commission has often hope however is that in recent campaigns not been able to combat this menace. For politicians have been pushed to speak, instance, the Election Commission did at least at a superficial levels, on issues cancel a by-election in Tamil Nadu due to like water, electricity clothing etc. Also, rampant misuse of money power; nothing the indictment the indictment of some could be done to the voters who took senior politicians including an incumbent the money. Also, given the self-seeking Chief Minister (late Jayalalitha) offers behaviour at all levels do the voters even some hope. care about the present scenario? Vaishnav In conclusion this study highlights an does not give adequate attention to this issue that has profound implications for demand side of the election. democracy in India across the globe. It is One is not sure of the basis for Vaishnav’s a must read for all those interested in the claim that “(m)ost politicians in India... do functioning of Indian democracy.

References Chhibber, P., & H. Shah, H. (2015, October 12). Gandhi, R. (1997). Rajaji: A Life. New Delhi: Penguin Limited finance limits democracy.The Hindu. Books. Retrieved September 12, 2017, from http:// www.thehindu.com/opinion/op-ed/relaxing- Pocha, J.S. (2014, July 9). How money subverts rules-on-campaign-finance-ec-will-increase- Indian elections. Huffpost. Retrieved transparency/article7750253.ece September 12, 2017, from, http://www. huffingtonpost.com/jehangir-s-pocha/india- Choudhary, L.R. (2017). Criminalisation of politics elections-money_b_5293211.html and administration (India). International Journal of Research in Social Sciences, 7(5), 349- Rukmini, S. (2014, May 18). 16th Lok Sabha will be 362. Retrieved October 14, 2017, from http:// richest, have most MPs with criminal charges. www.ijmra.us/project%20doc/2017/IJRSS_ The Hindu. Retrieved September 12, 2017, from MAY2017/IJMRA-11516.pdf http://www.thehindu.com/news/national/16th- loksabha-will-be-richest-have-most-mps-with- Collins, W. (2014, July 29). Power in Indian criminal-charges/article6022513.ece elections. The Hindu Business Line. Retrieved September 12, 2017, from http://www. Vohra, N.N. (2008). National Governance and thehindubusinessline.com/opinion/money- Internal Security. In H. Singh (Ed.). South Asia power-in-indian-elections/article6261173.ece Defence And Strategic Year Book (pp. 129- 135). New Delhi: Pentagon Press.

185 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 Women and Disaster in South Asia: Survival, Security and Development edited by Linda Racioppi and Swarna Rajagopalan Routledge India, Abingdon, Oxon; 2016, pp. 317, R 1050.

Reviewed by Drashti Thakkar Programme Manager National CSR Hub, Tata Institute of Social Sciences, Mumbai. Email: [email protected]

ender roles and identities are Disaster risk and response is analysed deeply entrenched in society, through the perspectives of gender and Gespecially situated in the global development theories and liberal feminist ‘south.’ This tenet has been part of theories with some chapters stressing on a long standing tradition of gender/ a social vulnerability approach. Racioppi women’s studies and women’s studies. and Rajagopalan have collected quite a What is also well explored is the fact rooster of writers, most of whom have that these gender roles manifest into been long term advocates or practitioners vulnerabilities in times of emergencies within the gender and disaster paradigm. like conflicts, disasters etc. The rapidly The introduction of the book offers an growing literature on gender and disaster overview of the discourses. It also offers continues to investigate the interplay of an outline of the gaps in the existing gender specific vulnerabilities, gender literature on women and disaster. Building differential impacts, as well as gender on social vulnerability and development specific coping mechanisms. In extension theories, Racioppi establishes for the to this, a tangential, but very relevant book to further this discourse in the discourse, of exploiting disaster events as direction of a security and sustainable an opportunity to ‘build back better’ the development approach. This essentially physical and social fabric of an affected is the flow of the book. area; has become prevalent. The first eight chapters are based These are some of the central themes primarily on case studies and attempt to of Women and Disasters in South Asia study the interplay of various dimensions – Survival, Security and Development, of disasters in the context of gender. edited by Linda Racioppi and Swarna Within these chapters, the book questions Rajagopalan. The book is a compilation events, processes, relationships and of 13 chapters by academicians, power dynamics of gender in society emergency response specialists and and its interaction with disasters and development practitioners intended subsequent recovery. Further, the to provide a comparative analysis of chapters consider the dynamics of these how gender is implicated in disasters variables in the context of livelihoods, and recovery efforts in South Asia. division of labour and vulnerability.

Women and Disaster in South Asia: Survival, Security and Development 186 Consequently, the chapters investigate exploited in order to help the chapters these variables and examine how their complement each other and deepen interaction translates into non-uniform understanding. The case of Bihar floods economic development, gender blindness and its analysis comes to mind here. in disaster mitigation strategies, evolution Subject to rampant gendered migration, of indigenous coping mechanisms in the a flooded Bihar which is almost an annual face of disasters and unequal sharing occurrence, is mainly the women’s of risks and opportunities. The book, responsibility. Women are generally left to therefore, intends to answer many deal with the after effects as men migrate important questions relating to gender for better livelihood opportunities. They politics and patriarchy. are thus the key agents of recovery and reconstruction (unlike in most other However, while focusing on such a wide contexts discussed in the book where array of perspectives in principal, it relief and recovery schemes enable mainly sometimes ends up being repetitive and men as such agents). The chapter is rich full of verbiage. Same disasters in same contexts have the same impact on the in case studies of women developing same population. For example, while context specific coping mechanism. studying the gendered impact of tsunami However, it would have been more in Tamil Nadu alongside the narrower enlightening if it shed some light on the question of livelihood specific impacts nature of access to relief materials, the in the same context, it would be wise to involvement or, lack thereof, of women’s avoid overlaps. Additionally, the chapters organisations and the gender orientation sometimes seem to lack complimentarity of recovery schemes in Bihar. These have and communication and work not as an been discussed in detail in the context extension of each other but as individual of 2004 Tsunami in Tamil Nadu and Sri chapters that are exploring the same Lanka as well as in the context of various things with differences only in scope or disasters in Nepal, floods in Pakistan and proportion. This is especially off-putting super Cyclone in Odhisa within the book. when seen in the light that the authors Discussing these issues in the unique called for papers from contributors as context of Bihar flooding would have early as 2011 and subsequently worked been truly comparative. on assimilating the different chapters into Similarly the chapter on floods in Pakistan a book for at-least four years. For example, brings to light the extreme conditions with the examination of Hurricane Katrina women have to face in situations of acute that struck Louisiana in 2005, and Haiti patriarchy. For a society where practices earthquake of 2010; the book comes like polygamy, and honour killings are close to providing a much needed prevalent, the author states, there is a comparative analysis of gender and need to employ extra sensitivity when disasters in developing versus developed dealing with disaster recovery for women. nations. It sadly misses the opportunity In this spirit, she highlights constricting for having achieved comparison by mere effects on mobility and freedom of juxtaposition and limiting the approach of women, but very little is done by way this analysis to one that focuses solely on of assessing what shift in provision of violence in gender and disaster. relief and recovery could benefit such a On the other hand, there are some missed population. Furthermore, the author also opportunities that could have been fails to enquire if the situation is different

187 Journal of Public Affairs and Change, ISSN (Online) 2456-9240, Volume I/Issue No. 2, Summer 2018 in other South Asian countries where disasters. Nevertheless, the chapter such practices prevail. offers important lessons on how to normalise and acclimatise a society to the In the chapters focusing on 2004 Tsunami, participation of women in public, physical, the overlap in referenced literature is infrastructural, livelihood initiative. clearly reflected. Chapters that intend to pay special focus on narrower more Chapter 13 explores the advantages definite dimensions, end up discussing of locating gender, disaster and and reiterating very similar lessons development concepts under the between each other. conceptual framework of securitization. Here securitization is defined as a means Given the fact that the book could have to materialise (human) security issues. been more concise, it still is instructive. The author posits that by doing so, it will The lack of natural flow between the shift the focus on dealing with the causes chapters, does not take away from the rather than the symptoms of disaster. The fact that the book for the most part, has chapter is a refreshingly compact and very relevant lessons to impart. The last watertight argument and is even more three chapters 10, 11, and 12 concentrate beautifully incorporated into the gender on more normative and theoretical issues and development school of thought within the gender and disaster dialogue. and the running theme of the book They also cite many of the same examples itself through the concluding chapter by and lessons repeated earlier, but have Rajagopalan. very dedicated conceptual orientation making them a very interesting read. Lastly, the book misses out on Chapter 10 for instance assesses the role investigating the gendered impact of survivors can play for recovery and even more recent disasters such as Cyclone development. Through the experience of Phailin in Odisha (2013), the Jhelum floods grassroots women’s organisation in Latur impacting Pakistan and India (2015), the and later in Gujarat and Tamil Nadu, the Chennai floods, Tamil Nadu (2015), and author enlists the activities and initiatives the Nepal earthquake (2015). This would that empowered women to organise as have enabled them to examine if the inoculators and bargain for a more secure lessons learnt have been incorporated social standing. It could have, however, into practice. In that regard the Anthology elaborated on the nature of its partnership might come of as dated, but what it lacks with government and the lessons learnt in contemporaneity it makes up for in for such civil rights organisations to depth and clarity. scale up their programmes and impact in The book is an ideal guide for scholars disaster ridden areas. This, coming from and students acquainting themselves the founder and executive director would with gender and disaster theories as have offered a much needed insight into well as a solid guidebook for practioners how non governmental organisations can in this field who seek to learn from past ensure and support the government to experiences. What is more, it offers very achieve better implementation of relief relevant key recommendations, along with and rehabilitation strategies. The book a description of commonly encountered could have been more comprehensive bottlenecks, to policy makers and had it highlighted the governance international and national organisations pressures that arise in the wake of natural that seek to contribute to the field.

Women and Disaster in South Asia: Survival, Security and Development 188 Acknowledgment of Peer Reviewers We thank the following individuals for serving as peer reviewers of manuscripts submitted for consideration for publication in this supplement.

Ahonaa Roy Rashmi Oza Assistant Professor, Department of Professor & Head, Professor, Humanities & Social Sciences, Indian Justice M.C. Chagla Chair in Human Rights Institute of Technology Bombay, and Civil Liberties, Department of Law, Powai, Mumbai. University of Mumbai, Mumbai. Bushan Arekar Roman Correa Assistant Professor and Head, Department Retired Professor, Department of of Political Science, RJ College of Arts, Economics, University of Mumbai, Mumbai. Science and Commerce, Mumbai. Shirish Kavadi Gilda Pereira Independent Researcher, Visiting Faculty, Sociologist, Sr. Vice Principal, Sophia Symbiosis School for Liberal Arts and College, Mumbai. Symbiosis Law School, Pune Lajwanti Chatani Sudhakar Solomonraj Professor and Head, Department of Political Head , Department of Political Science Science, The M. S. University of Baroda, Wilson College, Mumbai. Vadodara. Swadheen. S. Kshatriya Mona Mehta Right to Services (RTS) Chief Commissioner, Assistant Professor (Political Science), Government of Maharashtra, Mumbai. Indian Institute of Technology Gandhinagar, Swarna Rajagopalan Gandhinagar. Political Scientist, Independent Researcher, Namrata Singh Founding Trustee of The Prajnya Trust, Department of Political Science, Miranda Chennai. House, University of Delhi, Delhi.

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