Paper on Grievance Redress for Social Welfare Programs in India

Implementation challenges are one of the most pressing legal problems in India today. There are many laws and policies on the books that in reality are under-implemented (often dramatically), whether these are traffic regulations or rules surrounding telecom allocation. Plausible causes of this problem are numerous and include corruption, resource constraints, administrative apathy, and broader cultural norms. In other words, the problem of poor implementation is big and complex.

In this UPenn CASI working paper – “Complaining to theState: Grievance Redress and Social Welfare Programs in India” – I take on this problem from one narrow angle by looking at the implementation of social welfare programs. In the paper, I only examine the mechanisms by which citizens complain to the state. Obviously, there are many other ways to tackle poor implementation including better policy design, better-trained administrators, better internal auditing, etc. Still, a good grievance redress system seems an important ingredient as well.

I wrote this paper – which is based off of field research in Bihar and Madhya Pradesh – for a number of reasons, but I think the most important for this forum is that I found that Indian legal scholarship (and indeed legal scholarship in general) had not produced the conceptual frameworks or analytical tools needed to address the implementation challenges a country like India faces. When lawyers in India think about implementation problems (and possible remedies) they usually do so through the framework of public interest litigation. If a program isn’t working file a PIL and then use the resulting court orders and media attention to implement the program as best as possible.  This has been and can be a useful strategy in many situations. However, if we limit ourselves to just thinking about PIL or courts (or even rights), my sense is that we are missing out on a lot.  There are big changes afoot in the Indian administrative state and we need to understand them if we want to be good advisors in how to construct institutions, craft policy interventions, or just decide when to file a PIL or take some other route.

If people are interested in the argument of the paper they can read the abstract and the introduction/section one, but here’s the basic idea: When I approached this problem years ago I was a bit overwhelmed and confused by all the different ways people complained to the state – this paper tries to create a more coherent descriptive and theoretical narrative using the idea of accountability regimes developed in the administrative law literature in the US and elsewhere. There is an understandable fixation on rights and courts by lawyers, and a cost-benefit analysis prism by many policy types, and although in some instances these are often the best normative prism to approach grievance redress problems, I don’t think they are the best descriptive prism.  In some ways this is obvious. A right is a tool, not a description of what’s happening. Same with CBA. Yet, I find often the literature focuses on describing how these tools are being wielded instead of the larger institutional story about how chains of accountability are being shaped. These are not mutually exclusive stories, but they are different. This paper tries to prod along the administrative law literature in India to face this and begin to develop a suitable descriptive theory of what is happening.

Just a couple years ago I would say the literature in this area was practically non-existent or at best fledgling. However, there has been increasing interest by legal (and other) academics in the area of accountability and implementation around social welfare programs. Azim Premji University’s Law, Governance, and Development Initiative recently hosted a conference on the Right to Welfare in India (you can find blog posts summarizing presentations at the conference here). Jayanth Krishnan et al have an interesting and well-researched paper out that surveys how the lower courts do (to some extent) and could (to a much larger extent) enforce social and economic rights. I’m sure as time goes on there will be more and more contributions in this area both descriptively and normatively, which will hopefully contribute to producing an ever more accurate and useful picture of what is happening in India’s administrative state.

Parliamentary Obstruction: VP calls meeting to change rules

The Vice-President has called an all-party meeting to discuss changes in Rajya Sabha rules which will facilitate the House to function smoothly. As I have argued in this article in the Seminar, obstruction in our Houses of Parliament are already rule-violating (unlike the filibuster in the United States, which is tolerated by the rules of proceedings). Parliamentary rules also vest the Chair with a significant (some might say, even draconian) amount of power to enforce them.

The reason why these rules have remained unenforced is that they rely on a politically weak office of the Chairperson/Speaker for enforcement. Every attempt to do so requires the Chair to identify the offending MPs, and inevitable invites allegations of partisanship. Enforcement attempts thus become yet another reason for disruption, and are completely counter-productive.

The Seminar article also outlines the very heavy price our democracy has been paying because of frequent parliamentary disruption. In particular, the most consultative and democratic of institutions has been paralysed, and power has shifted considerably to the less accountable parts of the state--the judiciary and the Executive (some have noticed the phenomenon in the United States too).

Of course, part of the solution to the problem of dysfunctional legislatures is political. Our political culture has come to accept obstruction as normal, and not just by the Opposition. Even the governing party has used it to escape legislative scrutiny. However, some clever rules may aid the process of changing this culture. I proposed certain strategies in the Seminar article, excerpted below. At least some of them can be achieved by simple amendments to parliamentary rules or the Salary, Allowances, and Pension of Members of Parliament Act 1954.

There are two strategies that need to be pursued simultaneously to deal with the problem of plenary bottleneck. The first strategy is to reduce the number of motions that require plenary time. Constitutional provisions and the value of democracy impose limits on how far this strategy can be employed. Primary legislation must be enacted in plenary sessions. However, the role of legislative committees – which tend to be more productive than plenary sessions – in examining secondary legislation (rules) proposed by the executive can be strengthened. Further, much plenary time is wasted in determining what procedure should be followed to debate non-legislative accountability-seeking motions.

For example, the winter session of the Lok Sabha in 2012 lost several working days due to obstruction over whether the legislative debate on the executive’s decision to allow foreign investment in retail should take place under a rule which allows voting or one which doesn’t. It will be much better to adopt a standard rule. It could be provided that all accountability motions should be amenable to voting, at least in the Lok Sabha, where the government can be expected to be confident of its majority – or face political embarrassment when it doesn’t. Alternatively, a multiparty parliamentary committee could be empowered to conclusively determine the matter before the start of parliamentary sessions.

A second strategy is to deal with obstructions directly and increase available plenary time. Since obstruction is already rule violating, creating new rules to forbid it will be pointless. For the same reason, making rules allowing majorities to surmount it will not be any good either. The only way to deal with obstruction is to make it costly. The political costs for the obstructers will rise only when at least some major parties become thoroughly non-obstructionist, support the reforms outlined below, and seek political distinction on that basis. The legal costs will increase only if Speakers start enforcing the rules that prohibit obstruction. For the politically weak office of the Speaker, it is hard enough to suspend the odd obstructing MP. Mass suspensions are practically impossible. Effective costs will have to be automatic (i.e. not require any action on the part of the Speaker) and collective (costs targeted at obstructing members will necessarily require prior identification by the Speaker, and therefore likely to be ineffective).

Withholding the daily allowance of all legislators on days when a House is obstructed is one way to impose an automatic and collective, if relatively small, cost. Another option is to require that every House must sit for at least a hundred ‘qualifying’ days every year – a day qualifies only if a minimum of five obstruction free hours were spent on legitimate business. If time wasted during obstruction doesn’t count, it will make obstruction costly enough to become sufficiently unattractive – except perhaps in the rarest of rare cases that Arun Jaitley defends. Together, these collective costs may get our legislatures working again.

Gadbois Interview

Some readers might be interested in Livelaw's interview with George Gadbois, a contributor to this blog, who talks about his book "Judges of the Supreme Court of India: 1950-1989". The interview provides some background about why George was in a position to interview these judges during trips to India in the 1960's and 1980's, and why - thankfully - he finally decided to publish it. Of particular interest to some readers he weighs in on who he thinks were the best Chief Justices and Justices of the Court during its first four decades. He also points to several prominent senior lawyers who turned down positions on the Court - perhaps cementing an unfortunate tradition in which the best legal talent did not always agree to serve. The book is well worth reading and chronicles a period in the Court's early history with a descriptive richness that otherwise would likely have been lost.

Researcher Position at the Centre for Policy Research for project on "Land Rights, Environmental Governance and Inclusive Sustainable Development"

Position: Researcher for Project titled, “Land Rights, Environmental Governance and Inclusive Sustainable Development in India” at the Centre for Policy Research, New Delhi. 

Qualifications Required:  Undergraduate and law degrees. Candidates must possess excellent research and writing skills.

Expected tasks:  Legal research and writing, creating a database of union and state laws pertaining to land rights and environmental issues in the Project states (Gujarat, Andhra Pradesh and Meghalaya), planning and organizing a startup workshop for the Project in January 2014 in New Delhi

Interested candidates should submit their CVs and a writing sample not exceeding 10 pages to namita.wahi@gmail.com

The Impracticality of Jan Chaukidar

We bring you a guest post from Shambo Nandy, a recent graduate of the West Bengal National University of Juridical Sciences who now works with Raju Ramachandran, a leading Supreme Court counsel. 

The judgment of the Supreme Court in Chief Election Commissioner v Jan Chaukidar has been criticised by many. While some have condemned it as being open to severe misuse, others have assailed the correctness of the order. While these fears are warranted, I feel that the judgment in its current form suffers from another vice, viz. impracticality. The judgment says that a person who is confined in a prison or in the lawful custody of the police, loses the right to vote, and is disqualified from contesting elections. In other words, since he is not a voter he cannot stand for elections, being disqualified under s. 62(5) of the Representation of People Act, 1951. Consequently, even undertrials (who are in the lawful custody of the police) will now be debarred from standing for elections. The judgment is problematic as it gives rise to several possibilities all of which is riddled with its own share of problems and this makes it impractical to implement. 

As we know, before any election the Election Commission notifies not only the dates on which elections will be held and the results declared, but it also lists the dates by which nominations will be accepted and withdrawn. Usually there is a 2-4 days gap between the last date for submitting nomination papers and the date for the withdrawal of candidatures. After this date, the elections are invariably conducted within a month's time. 

Now for example, let us say that a candidate has submitted his nomination papers. It has been scrutinized and the date of withdrawal of candidatures is also over. Subsequently, the Election Commission has also published his name in the list of candidates from that particular constituency. It has also published the ballot papers and the Electronic Voting Machines have been readied. In doing all of these, substantial time and effort has been spent and elections are only a week away. At this stage, what happens if a candidate is arrested? Will his name still be struck off from the list of candidates? If yes, then will it be done at the risk of countermanding elections (as is done if a candidate dies during this stage)? 

Normally, when the police receive a cognizable complaint, it does not arrest a person without conducting a preliminary investigation. However, in certain cases the police make an immediate arrest; a complaint under s. 498A of IPC is one such instance where arrests are immediately made. The same holds true for other cases where complaints involve allegations of grave offences and some evidence or eye witness exists. Hence, in all such cases where arrests are immediately made, what happens to the fate of the candidate? Can his name be struck off when his name has already been published amongst the list of candidates and election is just a few days away? Is it possible that the candidate can remain among the list of candidates, but all the votes obtained by him will be declared to be invalid? 

The Patna High Court in its judgment in 2004 had stated that the name of the candidate should be struck off forthwith and in such cases the Election Commission can “decide what action to take, even if it be countermanding the elections wherever such persons have participated as candidates.’’ However, if this suggestion of the High Court is accepted by the Election Commission (since the Supreme Court has not added anything new), then that would entail sufficient wastage of time and monetary resources. Moreover, in many situations countermanding elections will lead to unnecessary delay in the formation of the government. These are not alarmist apprehensions; there are several instances at present to point out that these fears may well turn out to be true in the recent future. For example, the ruling coalitions in both the states of Kerala and Uttarakhand have a wafer-thin majority. In a future election in Kerala, if election to a particular seat has to be countermanded because of the Jan Chaukidar judgment, and if both the coalitions muster up 70 seats each (total number of seats being 141), then we will face a hung assembly for some time. Normal government activities which involve expenditure will be held up till the result of that one seat comes out. Such a long time gap may also see a spurt in dirty horse trading activities as we have previously seen in Bihar and Jharkhand. While the example is only of Kerala, such a situation can arise in many other states which have lesser seats in their legislative assemblies. 

Another problematic area which would arise if elections are countermanded would be if the candidate in lawful custody gets bail the day after the Election Commission notifies countermanding of election to that seat. The candidate can contest again from that seat and countermanding elections in such a case will be farcical. Countermanding elections, in effect, will be a boon for lawyers as during elections there will be an exponential increase in bail matters. 

The other option is also not devoid of criticism. If the Election Commission adopts it, i.e. of declaring the candidate’s votes as invalid, then the real winner will not be the true representative of the people. India follows the ‘first past the post system.’ Often a candidate gets elected because there is a division of votes between the other parties. There is enough criticism as to how a candidate getting as low as thirty per cent of the total number of votes gets elected. Hence, declaring a candidate’s votes as invalid will further complicate the situation as the votes obtained by him could have been split between the first two candidates and a different winner could have arisen. To illustrate, let us take into account a scenario where the difference in votes obtained between the first two candidates is 3000 and the candidate who is in lawful custody gets 5000 votes. Now, these 5000 invalid votes could have gone to either of the first two candidates (with some votes going to the other candidates in the fray) and there is a possibility that the person coming second could have been the winner. This possibility will always arise in cases where the total number of votes obtained by the candidate in lawful custody is more than the victory margin of the winning candidate. 

This confusion could have been easily put to rest if the Supreme Court had given a more reasoned judgment in stead of just saying that “we do not find any infirmity in the findings of the High Court.” Surely, it did not spend too much time analyzing the practical problems that this judgment would create. If it had, then the Court could have easily avoided a lot of confusion by proposing a realistic solution which would fulfil the intention of the court if in case situations such as those mentioned in the preceding paragraphs arose. 

Unlike the Supreme Court, the Patna High Court cannot be faulted for not giving a reasoned judgment. Unfortunately, it was not properly assisted by the counsels appearing for either the Election Commission, or the Central and State Governments. In fact, the court puts it on record that the Advocate General “kept away from the Court” when he was issued notice. It sadly notes that no “responsible report” was left with the Registrar General of the High Court on whether criminals or persons in the lawful custody of the police have entered the arena of elections. 

The Supreme Court could have agreed with the High Court’s decision but at the same time should have been more articulate in its reasoning. This is reasonable to expect in cases such as this, where fundamental matters relating to the functioning of our democratic system are decided. Since brevity is not a characteristic feature of court judgments, one can only wonder as to why the Supreme Court made this an aberration. This hurried judgment is also a reflection of the Supreme Court’s paucity of time in writing judgments. 

On the point of questions of law, like the Supreme Court, the Patna High Court too has made the same mistake that Anup Surendranath has pointed out on this blog – that of conflating the denial of voting rights under s. 62(5) of the 1951 Act and the disqualification of being on an electoral roll under s. 16(1)(c) of the 1950 Act. Probably, if the parties to the case had seriously contested the case offering an “in depth analysis” of their own to the High Court, this mistake would have come to the fore and we would have been spared a wrong and impractical judgment. Similarly, the Supreme Court ought to have heard the Union of India and other interested parties such as political groups who will be directly affected by this judgment. A lackadaisical attitude amongst all the parties is majorly responsible for this. 

Since the Patna High Court has left it open to the Election Commission on the course of action, it will be interesting to see its response as and when it is confronted with such a situation.

How Magan Lal was Almost Executed This Morning!

Strange are the things that can save a human being's life -- and it is a Times of India news report that saved Magan Lal from being executed this morning (Thursday, 8th August) in Jabalpur Central Jail. It was by sheer chance that anti-death penalty lawyers stumbled upon the ToI news item last evening, which triggered legal proceedings to stay the execution.

The report also indicated that the President had rejected Magan Lal's mercy petition on 22nd July 2013. Magan Lal clearly did not have the opportunity to challenge the rejection of his mercy petition and there is no clarity on whether his family had indeed received information of his execution.

Acting on the news report, PUDR filed a PIL late last evening before the CJI at his residence seeking a stay on the execution. A stay was granted (at about 11pm) until this morning when it will be the first matter to be heard in the CJI's court. It is likely to be argued that Magan Lal's execution be stayed until he has the opportunity to challenge the rejection of his mercy petition. Clearly the CJI was unwilling to hear the matter along with other death penalty matters listed for hearing starting 22nd October 2013, when a constitution bench will attempt to provide judicial clarity on the impact of delay in deciding mercy petitions. Magan Lal's mercy petition was rejected after it was kept pending for 1.5 years.

Magan Lal was sentenced to death by the Sessions Judge, Sehore in February 2011 for murdering all five of his daughters (from his two wives) aged between 1 - 6 years. The High Court of Madhya Pradesh confirmed the sentence in September 2011 and the Supreme Court, through Justices HL Dattu and CK Prasad, dismissed the SLP and denied leave to appeal in January 2012.

Magan Lal's stay came with less than 6 hours remaining for his execution and that should undoubtedly be a relevant issue in future proceedings. The fact that Magan Lal came so close to being executed must necessarily weigh against deciding another date for his execution. It would take a very insensitive Court to ignore Magan Lal's mental agony as a result of this experience and if another date for execution is permitted, the Court will have to necessarily demonstrate why that does not amount to cruelty and torture.

Magan Lal's case is another example of the broken machinery of administering the death penalty in India, where individuals are increasingly executed before being given the opportunity to exhaust all their legal options.

UPDATE (8th August 2013): Magan Lal's petition will now be heard with the 22nd October set of cases and the stay has been extended accordingly.

Reading Lily Thomas and Jan Chaukidar Together: Logically a Strange & Dangerous Result?

--> Guest Post: Vasujith Ram

Recently in Lily Thomas v Union of India, the Court held that Section 8(4) of the Representation of People Act, 1951 (RPA) was ultra vires the Constitution.

To begin with, the Court held that, from the “affirmative terms of Articles 102(1)(e) and 191(1)(e) of the Constitution … the Parliament has been vested with the powers to make law laying down the same disqualifications for person to be chosen as a member of Parliament or a State Legislature and for a sitting member of a House of Parliament or a House of a State Legislature.” The Court added that the “provisions of Article 101(3)(a) and 190(3)(a) of the Constitution expressly prohibit Parliament to defer the date from which the disqualification will come into effect in case of a sitting member of Parliament or a State Legislature” (see para 20).

On the basis of the above two reasons, the Court held Section 8(4) of the RPA, which defers the date on which the disqualification of a sitting member will take effect, to be ultra vires the Constitution.

Before we proceed, it is important to note the Court’s observation that “if because of a disqualification a person cannot be chosen as a member of Parliament or State Legislature, for the same disqualification, he cannot continue as a member of Parliament or the State Legislature” (para 16). This is based on the semantics of Art. 102(1) and Art. 191(1), which state that “[a] person shall be disqualified for being chosen as, and for being, a member of either House of Parliament…”. This is affirmed in Election Commission, India v. Saka Venkata Rao (AIR 1953 SC 210) in which it has been held that Article 191 lays down the same set of disqualifications for election as well as for continuing as a member.

Now let’s move on to CEC v Jan Chaukidar. The judgment says that a person who is confined in a prison or in the lawful custody of police, loses the right to vote (S. 62(5) of RPA), and is hence disqualified from contesting elections. The reasoning is that a person who has no right to vote is disqualified from registering in the electoral rolls (S. 16(1)(c) of RPA), implying that he/she is not an ‘elector’ (S. 2(1)(e) of RPA) – which is one of the qualifications for “being chosen to fill a seat” of the House of the People and a Legislative Assembly of a State (S. 4(d) and 5(c) of RPA).

In other words, according to the judgment, if a person is in police custody, for reasons stated above, he/she does not fulfil the “qualification for membership of the House of the People” under Section 4(d) and “qualifications for membership of a Legislative Assembly” under Section 5(c) of RPA. (“Disqualification on conviction for certain offences” is however laid down in S. 8 [as discussed in Lily Thomas], but those disqualifications are only for certainoffences, which means, they person can be disqualified for other reasons as well). Therefore the person is disqualified from contesting elections.

Now, using both the Lily Thomas and the Jan Chaukidar logic, this means that a sitting MLA/MLC/MP is disqualified as well, if he/she is in police custody! This is because the parliament is vested with the powers to make one law, laying down the same disqualifications for sitting and contesting members. Since Jan Chaukidar held that a person in police custody does not fit the qualifications to be “chosen to fill a seat” of the House of the people or the Legislative Assembly, does this not mean that he/she cannot continue as member of Parliament or the State Legislature as well if he/she is taken in police custody? Additionally, para 16 of Lily Thomas (relevant portion quoted above), all but confirms this blog’s argument.

One must note that provisions of Art. 101(3)(a) and 190(3)(a), as expounded in Lily Thomas, only strengthens the point made in this blog post. The Parliament cannot defer the date from which disqualification will come into effect, so a sitting member in lawful custody (even if not convicted), is immediately disqualified!

- Vasujith Ram is a second year student at NUJS