Why India Functions The Way It Does

Ever wondered who gains from the way we work?

Shyam Ponappa    |    February 6, 2020

It’s not obvious why we function the way we do in India, and who gains from it — considering that we are able to go just about anywhere in the world and thrive, but unable to manage too well on our own shores. Could it be because of the operating conditions here apart from the facilities, the prevailing systems and procedures in our environs, and the organisation, structure, and processes? When we go elsewhere, those places have their own systems and procedures, and it appears we are able to adapt and function well. In India, our constraints of systems and procedures in our environs include the full range of our population, just as elsewhere. The sheer number of people with varied levels of education, competencies, process orientation, and expectations is something that those who go away to other environments are not constrained by.

There are other easily recognisable elements of constraints. There are the post-colonial institutions, structures and methods that have been retained in government without modification for a self-governing, democratic society. Another set consists of the underpinnings of a feudal structure that manifests strongly in political processes. The predominant motivation of both is, to put it crudely, exploitation for the governing entity’s gain. Historically, the gain has been for imperial/colonial/exploitative ends, and after the first, largely well-intentioned post-Independence phase, appears to be focused on perpetuating the power of incumbents, or the position of those controlling government (barring exceptions). The fact of governing entities being locally elected does not appear to make any difference. The essential attribute is of otherness, of “us” (those in power) versus “them” (those governed).

The Laws and the Justice System

Latterly, our preoccupation with economic, social, and political pressures has left the serious institutional constraints of our legal system somewhat unattended. There are several dimensions of reforms needed in the legal system. One of these pertains to aspects of law and changes to them, another to the judicial system and its dilatory responses. There is also a third aspect, of approach and motivation, i.e., of a systemic perspective and philosophy, which can be minimalist or the opposite, or something in between.

Too Many Laws

A major encumbrance is the plethora of laws. In December 1993, the Ministry of Finance undertook a project with the United Nations Development Programme on economic and commercial legislation, to make it more market friendly. Called Project LARGE (Legal Adjustments and Reforms for Globalizing the Economy), the first phase from December 1993 until December 1997 dealt with central government legislation comprising about 450 of around 3,000 central acts. The second phase was on state legislation concentrating on government orders, rules and regulations relating to land and labour, and other matters such as dispute resolution and competition policy.

While the material is in the public domain, in practice, it is a bear to find it. For those who want to track it, the reports were published in September 1998 as the “Report of the Commission on Review of Administrative Laws”, Volumes I and II.¹ Three articles by the Director of Project Large Bibek Debroy sum up the process, including the later work of the Ramanujam Committee and successive Law Commissions. They are epitomised by his quotation of Tacitus: The more the corruption, the more the laws. The articles are:“Why We Need Law Reform”, “Justice For All: Need Better, Fewer Laws”, and “Old But Not Gold” (links below).² Another by Vagda Galhotra rounds out the set: “Why We Need To Repeal More Criminal Laws”.³

Too Much Government Litigation

Government litigation expenditure increased threefold from 2016 to 2018, with government being a party to around 46 per cent of lawsuits in July 2018, despite its stated intent of reducing litigation. Quite apart from this, government litigation and some of the disruptive rulings have created chaotic conditions in the economy, such as in coal mines and spectrum after the 2G licence cancellations. This has had a chilling effect on policies facilitating resource use, whether it is coal for electricity, or spectrum for connectivity at a time when there is global advancement in high-speed wireless shared use. The most recent shock to India’s economy was the Supreme Court’s reversal of previous rulings on telecom companies’ adjusted gross revenues. Other disruptive claims, without going into the merits, have been the retroactive tax case against Vodafone, the Tamil Nadu government’s tax claim against Nissan, and the earlier dunning of Nokia.

In 1998, there were an estimated 25 million cases pending in various courts, each taking up to 20 years for resolution, and this increased between 2006 and April 2018 by over 8 per cent. Much of government litigation apparently comprises appeals against lower court judgments, with decisions to appeal taken at the lowest levels of government, whereas decisions to not appeal have to be at the top.

There are many areas we have to work on to move from our present level to being able to grow at a sustainable high rate for any length of time. Beginning from early school, with systems thinking for every child, process discipline and standards, and collaboration and teamwork in lesson plans and play, continuing into work life and polity. Equally, there is a real need for establishing sound institutions. Included in these is a functioning, efficient set of laws and justice system. The discipline and efficient enforcement of contracts, payment terms, and delivery standards to ensure smooth cash flows is critical for markets to function well. This is why reforms on systematic rationalisation of the laws and justice delivery are essential, although such activities do not lend themselves to hoopla and staging events with popular appeal. The talent and experience availablecan contribute significantly to systems and organisation in the public interest. The constitution of the 22nd Law Commission is long overdue, with the 21st Law Commission having ended in August 2018.

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Shyam (no space) Ponappa at gmail dot com


1: https://darpg.gov.in/sites/default/files/Review_Administrative_laws_Vol_1.pdf

https://darpg.gov.in/sites/default/files/Review_Administrative_laws_Vol_2.pdf


2: https://www.india-seminar.com/2001/497/497%20bibek%20debroy.htm

https://indianexpress.com/article/opinion/columns/old-but-not-gold/ 

https://www.businesstoday.in/magazine/cover-story/justice-for-all-need-better-fewer-laws/story/227497.html

3: https://thewire.in/law/why-we-need-to-repeal-more-criminal-laws




COMMENTS

Ashish
The question asked still remains unanswered - who benefits from all this?

February 06, 2020 


SP
Who gains? Answer: "Historically, the gain has been for imperial/colonial/exploitative ends, and after the first, largely well-intentioned post-Independence phase, appears to be focused on perpetuating the power of incumbents, or the position of those controlling government (barring exceptions)."

February 07, 2020

Organization By The Judiciary?

Dispute Resolution & India's Body Politic

Shyam Ponappa / November 03, 2005

A good way to ruin India’s potential of achieving the BRIC forecasts (Brazil, Russia, India, and China as leading economies by 2050) is to indulge in a raucous fracas about the new airport at Bangalore. Surely the Janata Dal (S) knows this. Could it be a conscious strategy to make Karnataka like Bihar? Let us hope not, because that could be a horribly effective strategy. Even before this, Reuters reported a BPO entrepreneur in China saying: “We ask our clients to go to India first and then fly to Shenzhen … Because the minute you land in Shenzhen you can see the environment is much better.”

For the beleaguered denizens of India, few things bode more ill. We must think of drastic ways of building systems in India that work for its citizens, as the executive and legislature do not seem able to do so.

I wonder if people wish, as I do, for more assertive spontaneous action by our justice system (suo motu initiatives). Worse, I am inclined to urge abetment in this process if it is legally feasible, despite reservations such as an unwillingness to recommend foreign investment in projects that would leave them at its mercy.

Could it be in the public interest to invite judicial intervention in India as an interim measure? If so, should people take to “adjudication support” activities? I am suggesting a variant on assistance to litigants (“litigation support” or “dispute resolution”). The twist: on select matters, present the facts and logic that courts can use for spontaneous action in the public interest. That is, prepare the argument as though to file public interest litigation (PIL), but do it only to invite judiciary action, and let the courts decide on priorities and “prosecution”. It could be used for problem solving, as with the Bangalore airport and infrastructure; or for systems development, as in creating a fair and effective policy and administrative framework for telecommunications, or for energy. Most ambitiously, the judiciary could curb political excesses through incitement to religious or ethnic bias, i.e. transgressions of Article 15 of the Constitution, whether for a particular community such as the Vokkaligas or Yadavs, or against any or all others.

Reasons

While there is little doubt of India’s increasing prosperity, there are too few developments of systems for the public good, despite a stellar cast at the helm. With a large population, poor infrastructure, atrocious systems, and a predatory, self-seeking culture dominating politics and society, where the educated and prosperous behave irresponsibly, we desperately need systems for the public good.

Few of us can dedicate the effort and money it would take to prepare a case, file a PIL, and follow it to conclusion. But many can contribute evidence on things that would harm our collective interests, provided this is channelled with systemic support.

With an overburdened justice system, more PIL suits are avoidable. Therefore, even as our judiciary hews into the backlog, and oversees the design and execution of a document and case management system with processes to improve throughput (which they are doing), providing them with good information support could help them decide where to focus with regard to judicial activism.

Systems Building: A start

It is customary for the judiciary to evaluate opposing arguments and then decide, calling on domain expertise as required. This integrated, multidisciplinary approach is essential for systems development, and yet seems to be lacking in our executive’s and legislature’s approach.

Also, the judiciary probably appreciates the complex web of aims -- objectives, policies, laws, rules and regulations, procedures, institutions, practices that comprise good systems -- which collectively make for a sound policy framework. Hence, they could compel the induction of (a) integrated expertise, and (b) socio-technical systems inputs, such as the work at the Next Generation Infrastructures Foundation (http://www.nginfra.nl/) for a sector.

Although beyond the customary ambit of the judiciary, whose purpose is not the development of new systems and institutions, this approach abides by democratic processes.

Bangalore Airport/Infrastructure: Rights & Responsibilities in Politics

Bangalore symbolises much more than the city. The Bangalore airport and infrastructure in Karnataka (with an equally egregious example from Bihar, perhaps? Or from UP? Or?) could serve as an exemplary case. While the airport is the flashpoint, there are other ramifications, e.g. the smear against Infosys (hence the issue of inappropriate ways to pursue political ends, when the judiciary could step in to temper rights with obligations), the efforts to stall the Bangalore-Mysore Expressway and to prevent its servicing the airport (also an issue of inappropriate political action). Tirades against NR Narayana Murthy and Infosys and undermining infrastructure initiatives damage our collective reputation and potential, not just the individual, corporation, or community.

Our collective interests are damaged in a similar manner by gambits like:

- the Ayodhya temple movement,
the strategic populism of the Congress, like giving away “free” electricity and blighting the prospects for reform well beyond their limited tenure and the extent of their territory (because such actions create a negative perception of India itself),
abdication of responsibility by state and local authorities,
the Left’s misrepresentation of confrontational trade unionism as employee rights in IT and BPO enterprises, whereas both employee and employer rights may be better served by models such the Dutch works councils (http://ideas.repec.org/p/use/tkiwps/0306.html).

A well-designed facilitation system could be organised that plays to a burgeoning IT nation in building our internal systems and markets, e.g. by a platform and access on the web, incorporating elements of the UK’s government-sponsored MySociety.org’s project, TheyWorkForYou.com (a non-partisan, volunteer-run web site that helps people track elected representatives). This could enable effective use of the Right to Information Act, with innovations like wiki and Google Maps Mash-ups, and specifically designed features to help the judiciary rate, prioritise, and track issues. It could also make for channelling participation from multiple sources with a loosely structured advisory panel, with the likes of Aruna Roy’s Mazdoor Kisan Shakti Sanghatan (the MKSS started the Right To Information movement in Rajasthan), Janaagraha with its public disclosure system in Bangalore set up by the Ramanathans, Bunker Roy’s Social Welfare and Research Centre of Tilonia with its original focus on water, Bibek Debroy’s work rationalising the laws (Project LARGE), Parivartan in New Delhi (e.g., Vishal’s experience with Vasant Kunj potholes: see http://vishallucknow.blogspot.com/) and its associates in other centres, the Bangalore Agenda Task Force, and the Bangalore IT Forum.

It will undoubtedly be a challenge to emphasise a rational, constructive, knowledge-based, convergent approach (i.e., integrating the respective domains, whether it is engineering, finance, law, organisation design, etc. and keeping them objective and task-oriented). Over time, this could evolve into governance mechanisms in the form of workable public-private partnerships. The key will be to focus on achieving results, stressing logic, systems, and technology. In fact, the judiciary will need to protect the whole initiative from being hijacked by opportunistic self-seekers, the shrill rhetoric of the antidevelopment brigade, and such like.


Shyam Ponappa