23 March 2018

Right to Physical Existence Matters


On day 20 of the Aadhaar hearing by a five-judge bench in the Supreme Court of India, the Attorney General made a submission. There is a case that calls for analytical separation  between exclusion and inclusion errors. Once this is done, the contrast between the Right to Physical Existence and Right to Privacy disappears.

The submission cites the Rangarajan Poverty report  (paragraph 1, footnote 3) to state that 30 per cent of the Indian population is still poor. Does this mean that the Union of India has accepted the Rangarajan report? As an aside, I may mention that this method of calculating poverty has concerns, which I have raised earlier in my reading between the poverty lines

The submission referred to Type I (exclusion) and Type II (inclusion) errors (paragraph 15 b ii). In jurisprudence terms the errors are similar to punishing an innocent (Type I) and letting the perpetrator go unpunished (Type II). I had also shared earlier on exclusion and inclusion errors in Aadhaar. Of course, any system (governance or otherwise) would like to minimise both the errors. However, as the two seem to be intertwined in such a manner that, more often than not, reducing one may increase the other. Hence, the preferred mode is to try and reduce Type I errors and in the process they may increase the Type II errors.

All said and done, Aadhaar (at least the way it has been designed and is being articulated) is meant to address inclusion errors. The Attorney General's submission referring to various leakages and how they could be reduced was also evidence for reducing inclusion errors, but were  used interchangeably to buttress an argument in favour of exclusion errors. This not only questions the reasonableness of the premise that analytically distinguishes between the exclusion and inclusion errors, but is also a serious affront on democratic polity, as elaborated in an earlier discussion.

While reducing inclusion errors are important, but that is not likely to reduce exclusion errors. What is more, the argument to that effect was seemingly paternalistic - the sarkar is mai-baap. Rather, any and every effort on reducing leakages (inclusion errors) needs greater concern, understanding and sensitivity to a possible increase in exclusion errors.  In fact, Aadhaar itself can be a basis for exclusion, as has been cited by petitioners.

The Attorney General contrasts Right to Physical Existence (or, Right to Life) with Right to Privacy and points out that the former is more important than the latter. This position follows from the premise that reducing inclusion errors will also reduce exclusion errors. Once one accepts the analytical separation of the two errors then the conflict between Right to Physical Existence and Right to Privacy does not hold. This is so because the people whose Right to Physical Existence is violated will also have their Right to Privacy violated. 

Yes, your honour, Right to Physical Existence matters. And, Right to Physical Existence should not be held hostage to Biometric authentication.

Earlier blog posts on Aadhaar





[The views expressed are that of the author and not that of the institutions/organisations that the author is associated with. Comments are welcome.]

19 March 2018

Idhar, Udhar, Aadhaar

The hearing on the Constitutionality of Aadhaar has been going on in the Supreme Court of India since 17 January 2018 by a five-judge bench. The honourable judges will listen to both sides and then take a decision. The purpose of the current note is to visualise Aadhaar through Section 7 of the Aadhaar Act and its importance in the recent interim order of 13 March 2018  by the Supreme Court. It will also raise some concerns on democracy, sovereignty and republicanism.

Section 7 of Aadhaar
"The Central Government or, as the case may be, the State Government may, for the purpose of establishing identity of an individual as a condition for receipt of a subsidy, benefit or service for which the expenditure is incurred from, or the receipt therefrom forms part of, the Consolidated Fund of India, require that such individual undergo authentication, or furnish proof of possession of Aadhaar number or in the case of an individual to whom no Aadhaar number has been assigned, such individual makes an application for enrolment:
Provided that if an Aadhaar number is not assigned to an individual, the individual shall be offered alternate and viable means of identification for delivery of the subsidy, benefit or service."
Recent Interim Order
A recent interim order (13 March 2018) by the five-judge bench extends the relief provided in an earlier interim order (15 December 2017) on linking of Aadhaar to the receipt of entitlement and various service providers (banks account holders and mobile phone subscribers). The order also accepted a submission with regard to Section 7 of the Act. The relevant portions of the recent interim order read as follows:
"...On a query being made, Mr. K.K.Venugopal, learned Attorney General for India submitted that this Court may think of extending the interim order. However, the benefits, subsidies and services covered under Section 7 of the The Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 should remain undisturbed. We accept the same.
Having heard learned counsel for the parties, we accept the submission made by the learned Attorney General. Subject to that, we direct that the interim order passed on 15.12.2017 shall stand extended till the matter is finally heard and the judgment is pronounced. That apart, the directions issued in the interim order shall apply as stated in paragraphs 11 to 13 in the said order. For the sake of clarity, we reproduce the said paragraphs which read as under:-
"...
13. Consistent with the above directions, we also direct that the extension of the last date for Aadhar linkage to 31 March 2018 shall apply, besides the schemes of the Ministries/Departments of the Union government to all state governments in similar terms. As a consequence of the extension of the deadline to 31 March 2018, it is ordered accordingly.”
..." 
Two Possible Interpretations
There could be two possible interpretations of the recent interim order. One interpretation, based on paragraph 13 of the earlier interim order, implies that the Aadhaar linkage to recipients under various schemes gets extended till a final judgement is taken.

Another interpretation, based on the submission by the Attorney General that the benefits, subsidies and services under Section 7 of the Aadhaar Act should remain undisturbed, implies that the extension on Aadhaar linkage to recipient under various schemes is limited. This is so because almost all schemes draw their expenditure from the consolidated funds.

Decoding Section 7
A cursory reading of Section 7 of the Act may suggest that the use of Aadhaar is for identification of a recipient of a subsidy, benefit or service and if an individual does not possess Aadhaar than other alternate and viable methods should be offered. Now, if this is the case then there was no need for the Attorney General's submission requesting that "the benefits, subsidies and services covered under Section 7... should remain undisturbed." This calls for a greater scrutiny.

A careful reading of Section 7 of the Act points out that other alternate and viable methods of identification are perhaps available only to those who have applied for enrollment to Aadhaar. In effect, at the implementation stage this could likely be a one-time exemption only.

Furthermore, Section 7 is silent on denial of benefits, subsidies or services on account of failure of identity authentication. There have been instances where individuals have been denied their genuine entitlements that have been due under employment guarantee or food security or as pension among others. In fact, there have been instances when retired employees have not been able to withdraw their provident fund for want of a life certificate because of a failure in identity authentication through Aadhaar. One may point out that the withdrawal of provident fund may not be directly linked to Aadhaar, as it is part of public accounts and not drawn from consolidated funds. The fact of the the matter is that it also has been dependent on Aadhaar.

Now, a pertinent question is why did the Attorney General bring in Section 7.  One possible conjecture is to guard against inconvenience (and perhaps contempt of court) arising out of acts by implementing agencies that leads to denial of entitlements and also to facilitate business as usual. The executive should continue to do that they have been entrusted with. Another possible argument is to prevent misuse of public expenditure. Maybe, there are some other reasons. Whatever it may be, it does provide a long leash to the executive with an articulation that inclusion errors matter more than exclusion errors. Imposing a moral imperative, excluding a deserving person from her entitlement is more serious than including a non-deserving person.

The moot point is that by accepting the submission by the Attorney General that Section 7 should remain undisturbed the paragraph 13 of the earlier order has lost bite and seemingly redundant. Given this and in view of possible denial of entitlements, the honourable five-judge bench may reconsider accepting the submission in its entirety.

Possible Affront
The denial of legitimate entitlements is serious. It is in this context that one raises a concern on the usage of the term 'benefit'. In a democratic polity by the people, for the people and of the people, the benefits and services rendered by the state either in cash or kind are entitlements. The usage of the term benefit (as also for services) seem to connote a largess. Seeking public health service or public education will no more be a matter of right; rather, it would be a charity by the state. This is an affront on democracy. What is more, this affront seems to have a legislative sanction.

Even the use of the term 'subsidy' may not be appropriate. First because entitlements ought to be facilitated through grants. Technically, all grants may be considered as subsidies, but in plain-speak a subsidy has a Fund-Bank connotation leading to a discussion on market distortions and inefficiencies. While not denying the relevance of markets, any discourse that implicitly or explicitly concedes that it is the only institution that matters is an affront on sovereignty.

As an aside, our concerns on the usage of the words would mean that in the title of the said Act "Targeted Delivery of Entitlements through Grants" should have been used instead of "Targeted Delivery of Financial and other Subsidies, Benefits and Services". This would perhaps also mean that the Act ought not to have come through as a Money Bill.

One may also mention that the World Trade Organisation also distinguishes subsidies as green, amber, blue and red boxes. Meeting entitlement through grants are those that fall under the green category. Articulating them to be 'subsidies' per se could attract them under amber, blue or red leading to a call to withdraw them in some not so distant future.  If that happens that would be an affront on the marginalised and the vulnerable, and in that sense an affront on the republic.

Concluding Remarks
Reading between the lines, a view through the prism of Section 7 of Aadhar Act gives a perspective that plays hide and seek - idhar, udhar, Aadhaar. In addition, we invoke a moral imperative indicating the seriousness of exclusion over inclusion errors and raise concerns on possible affront to democracy, sovereignty, and republicanism. We end with a call on caution. No more idhar, udhar, Aadhaar.


[The views expressed are that of the author and not that of the institutions/organisations that the author is associated with. Comments are welcome.]

12 March 2018

PK mode to India's Growth

India at 70 in a PK mode 
Recently, Rahul Gandhi of INC had an interaction on India at 70 discussing a number of issues at LKYSPP. An informed polity should be discussing the issues raised, but the larger discourse has been limited to a question by one PK (not the vintage PK, those interested for a Sunday tête-à-tête may have a peek here). While I should not be spending my Sunday in a PK mode, but got a bit carried away. Hence, if you find something incoherent, then you know whom to blame. In the same vein, and in all fairness, the credit to any coherence will have nothing to do with being reborn (Asian or otherwise).

An analysis of comparing India's growth with that of the world has already been done by Maitreesh Ghatak (of LSE) and Amitabh Dubey.  I thought of exploring the numbers further either because I had nothing else to do or because I wanted to avoid doing something else.  True, I wanted to play around with the numbers to give some benefit of doubt to PK. However, I unequivocally state that this has no conflict of interest because of being stuck in a PK mode on a Sunday. 

Benefit of Doubt
Having done some work on decomposing poverty change by bringing in population or because of the call for MANUSH in measuring HDI (see its IvU version), I had a feeling that the reference to growth or was it to PK (even if not of the vintage type) was perhaps in per capita terms. This is my first PK benefit of doubt.  

I resort to the data provided by the World Bank through World Development Indicators. I make  use of GDP per capita in constant 2010 US$ terms with data available  from 1960 to 2016 providing us with simple annual average growth rates. From the 56 years of GDP per capita growth rates, India has been having a growth greater than that of the World in 40 years and it has been doing so continuously since 2001.

While it is true that Rahul Gandhi's family has not been in the helm of powers (as Prime Minister of India) since 2001, but then there are phases when Inida has fared well when their family was in the helm of affairs than when others were at the helm of affairs. For instance, in Table 1 as per column Pr1 (proportion of years when per capita growth rate of GDP for India was greater than that for World) Jawaharlal Nehru (JN) and Indira Gandhi's first term (IG1) fare better than that of Lal Bahadur Shastri (LBS+) and this seems to hold even for the annual average per capita GDP growth rate for their respective periods (Gr1). This takes me to my second PK benefit of doubt.

I have a queasy feeling that the comparison was not about the forefathers of Rahul Gandhi and those of others because that sounds inappropriate even in a PK mode. In fact, the other day, I overheard some people in a PK mode discussing among themselves that, at times, being in a PK mode may lead to some nuisance, but under no circumstances would they hit below the belt. And, pitting someone's forefathers with some others' forefathers is so below the belt. In any case, it does not prove any point to discuss the growth performance under Lal Bahadur Shastri when the country had to face a war and drought in that period and that too by pitting one Congress Prime Minister by another. One is of the opinion that the intention was perhaps to compare growth regimes between Congress and Non-Congress Prime Ministers.

Table 1
India's Growth Rate in comparison to that of the World under different Prime Ministers: 1961-2016
PMs
Pr_In>Wo
Gr_In
Gr_Wo
Gr_LnM
JN
41.2
2.5
3.4
2.1
LBS+
35.9
-1.0
3.8
3.8
IG1
37.9
1.4
2.6
3.7
MD+
64.4
-0.1
2.2
1.8
IG2
82.6
3.1
0.4
0.7
RG
77.0
3.6
2.1
1.8
VP+
69.7
2.1
0.8
-0.1
PV
89.2
3.6
0.8
0.7
IKG+
45.6
3.5
2.0
2.9
ABV
83.8
4.2
1.6
2.8
MS
100.0
6.2
1.6
4.8
NM
100.0
6.3
1.5
2.7
Notes: PMs denotes Prime Ministers, Pr_In>Wo denotes proportion of period India's per capita GDP is greater than  that for World. Gr_In, Gr_Wo and Gr_LnM denote the annual average growth rate of per capita GDP for India, World, and low and middle income countries, respectively, for the period that the PMs have been in office. JN refers to Jawaharlal Nehru from 01/01/61 to 27/05/64 (earlier years since 15/08/47 could not be included for data limitation). LBS+ refers to Lal Bahadur Shastri and two tenures of Gulzarilal Nanda as acting PM for 13 days each (the combined period is from 27/05/64 to 24/01/66). IG1 refers to Indira Gandhi's first term from 24/01/66 to 24/03/77. MD+ refers to Morarji Desai and Charan Singh (combined period is from 24/03/77 to 14/01/80). IG2 refers to Indira Gandhi's second term from 14/01/30 to 31/10/84. RG refers to Rajiv Gandhi's term from 31/10/84 to 02/12/89. VP+ refers to the terms of Vishwanath Pratap Singh and Chandra Shekhar (combined period is from 02/12/89 to 21/06/91). PV refers to PV Narasimha Rao's term from  21/06/91 to 16/05/96. IKG+ refers to the terms of Atal Bihari Vajpayee (first term of 16 days), HD Deve Gowda (324 days) and IK Gujral (332 days) and the combined period is from 16/05/96 to 19/03/98. ABV refers to Atal Bihari Vajpayee's second term from 19/03/98 to 22/05/04. MS refers to Manmohan Singh's term (from 22/05/04 to 26/05/14). NM refers to Narendra Modi's term from 26/05/14 to 31/12/16, that is, the period for which information is available.
Source: Calculated by author based on data from World Development Indicators, World Bank and Former Primer Ministers, Prime Ministor's Office, Government of India.

One observes from Table 1 that there have been some Congress regimes that have been doing relatively better than Non-Congress regimes. Note that Indira Gandhi's second term and also the term of Rajiv Gandhi fared better than the terms of MD+ (Morarji Desai and Charan Singh), VP+ (Vishwanath Pratap Singh and Chandra Shekhar) and IKG+ (Atal Bihari Vajpayee's first term, HD Deve Gowda, and Inder Kumar Gujral). The term of PV Narasimha Rao and also of Manmohan Singh fared better than that of Atal Bihari Vajpayee's second term. One also observes that the growth under the Prime Ministership of Narendra Modi in its initial years (for which we have data) has also done relatively better than the earlier regimes. While this is important, it is not the point of discussion in a PK mode.  This is my third PK benefit of doubt - the question on comparative growth in India at 70 was not about scoring a political brownie point. At times, self goals can happen in a PK mode, but that is another matter.

Comparing India's growth with the World that would have a greater base may be advantageous for India to show a relatively higher growth rate. Hence, I concede my final PK benefit of doubt and propose comparing with growth rates for low and middle income countries also. It is observed from Table 1 that the the annual average per capita growth rate of GDP for India (Gr1) when compared with that of the World (Gr2) and low and middle income countries (Gr3) under different regimes shows that India has fared better since 1980s, that is from Indira Gandhi's second term and thereafter. Another moot point that emerges is that prior to the 1980s India's growth rate was always relatively lower than that of the World, but fared better than the low and middle income countries under Jawaharlal Nehru.  Keeping that aside, a limited understanding of the data analysed indicates that a momentum or break from the past was initiated in the 1980s, the momentum continued in the 1990s (PV Narasimha Rao's liberalisation initiatives followed by Atal Bihari Vajpayee's India shining), and it gained further speed in the last fifteen years (Manmohan Singh in two Avataar's of United Progressive Alliance, and Narendra Modi's juggernaut). As the growth trajectory continues it will raise other concerns, particularly on the distributional front like the other juggernaut with farmers on their way from Nashik to Mumbai.

Firki remarks
The firki discussion above is from a PK mode. Those interested in a more serious and detailed discussion on episodes of growth along with a discussion of spaces earmarked for deals, rent and political should look up Sabyasachi Kar and Kunal Sen's The Political Economy of India's Growth Episodes (for a quick initiation to the book see this review).


Click on for an earlier note on PK and firki.