the PRS Blog

Over the next few weeks, Assembly elections are scheduled to be held in five States – Uttar Pradesh, Punjab, Uttarakhand, Manipur and Goa.  As parties prepare for the upcoming elections, we take a look at the electoral trends in these states over the past 25 years.

We see that electoral fortunes in some states have fluctuated widely.  The electoral mandate in UP has varied over the last 25 years.  Five different parties — Congress, Janata Dal, BJP, SP and BSP have been the single largest party in the Assembly at some point in time.

In Punjab, the Akalis and the Congress have alternately controlled the government.  In Uttarakhand, the 2007 elections saw the BJP take over control from the Congress.

In Manipur and Goa, Congress has been dominant player in elections.  In both states, it emerged as the single largest party in all but one election since 1984.  In Manipur, the Congress lost this status to the Manipur State Congress Party (MSCP), a splinter group of the Congress in 2000.  In Goa, it lost this status to BJP in 2002.

The results of Uttar Pradesh elections will have the highest impact on national politics.  The state has 80 out of 543 elected seats in Lok Sabha and 31 out of 231 elected seats in Rajya Sabha.  The results could give an indication of the prospects for these parties in the next general elections, and may also change the composition of Rajya Sabha over the next few years.  Given that there are five parties (BSP, SP, BJP, Congress and RLD) with a significant base in the state, the possibilities of post poll arrangements are also wide open.

For more details, see our Vital Stats.

The Lokpal and Lokayuktas Bill, 2011 was passed by Lok Sabha yesterday. The Bill will be discussed next by Rajya Sabha. Unlike the Lok Sabha, where the UPA government holds a majority in the House, the composition is different in Rajya Sabha.

As on 28th December 2011, the total strength of Rajya Sabha is 243 members . The UPA has a combined strength of 95 members in the House, well below the 50% mark.  (Of course, there will be some absent members which will change the arithmetic a bit.)  The passage of the Bill thus depends on the stand taken by other political parties and their numbers in the House. Here’s how the figures stack up:

By Rohit and Jhalak

Some Rajya Sabha seats will be contested over the next year.  The Presidential elections are also scheduled to be held in 2012.  The recent assembly elections has implications for both these elections.  The Presidential elections will depend on the strenght in the assemblies, in Lok Sabha and in Rajya Sabha (which could change over the next year). 

Implications for Rajya Sabha Elections

The composition of Rajya Sabha may undergo some changes.  A total of 12 Rajya Sabha seats are up for election in 2011.  This includes 6 seats from West Bengal, 3 from Gujarat and 1 each from Maharashtra, Tamil Nadu and Goa.  Another 65 seats, across 18 states, go for elections in early 2012.  The largest chunk of these seats comes from UP(10), followed by Andhra Pradesh(6), Bihar(6) and Maharashtra(6).

Since Rajya Sabha members are elected by the elected members of the Legislative Assembly of the State, a change in the composition of the assembly can affect the election outcome.  We used the current assembly compositions to work out scenarios for Rajya Sabha in 2011 and 2012.  There could be alliances between parties for the Rajya Sabha elections, so we have estimated a range for each grouping (Scenario I and II) for 2012.  See Notes [1] and [2]. 

Implications for the election of the President

The President is elected in accordance with the provisions of Article 54 and 55 of the Constitution.  The electorate consists of the elected members of Lok Sabha, Rajya Sabha and all Legislative Assemblies.  Each MP/ MLA’s vote has a pre-determined value based on the population they represent.  The election is held in accordance with the system of proportional representation by means of a single transferable vote.  The winning candidate must secure at least 50% of the total value of votes polled. (For details, refer to this Election Commission document).  There is no change in the Lok Sabha composition (unless there are bye-elections).

Position in Legislative Assemblies

After the recent round of assembly elections, the all-India MLA count adds up to:

The above numbers can now be used to estimate the value of votes polled by each coalition. See Note [3]:

The UPA has the highest value of votes polled but the figure is not sufficient to get its candidate elected.  Assuming that there are at most three candidates with significant support (UPA, NDA, and Left/Third Front), the winner will be the one who manages to bridge the gap with second preference votes.  On this factor, the UPA backed candidate is likely to hold the edge over others. 

Notes:

[1] At present, there are four vacant seats in Rajya Sabha (1 Maharashtra, 1 TN, 1 WB and 1 Nominated).  It is assumed that all these seats are filled up in 2011.

[2] Three of the 11 nominated members in the current Rajya Sabha have declared their party affiliation as INC.  These have been included in the UPA count in the above analysis.  For the sake of simplicity, it is assumed that members who get nominated in 2011/ 12 are not aligned to any party/ coalition.

[3] The above analysis is based on the assumption that the next set of assembly elections happen after the Presidential election.

By Rohit and Aakanksha

In February this year, Bihar made it mandatory for its employees to declare their assets.  The new guidelines prescribe that departmental proceedings would be initiated against those who fail to submit these details.  Information filed by employees is now being displayed online.  For instance, click here to see information put out by the Department of Agriculture.

Some other states have also followed suit.  Rajasthan became the second state to do so.  Asset details of employees have been posted on the Department of Personnel website. MP and Meghalaya have announced their intention to implement similar changes.

The central government too has decided to put the asset details of All India Service and other Group A officers in the public domain.  Employees of the central government are governed by the Central Civil Services (Conduct) Rules, 1964.  Under these rules, civil servants are required to file details of their assets on a periodic basis.  However, until now the information provided by employees was held in a fiduciary capacity and kept confidential.  With the new order coming in, this information will now be available to the public.  To ensure compliance, the government has decided that defaulters should be denied vigilance clearance and should not be considered for promotion and empanelment for senior level positions.

It is interesting that the Central Information Commission, in an earlier decision dated July 23rd 2009, had held that ‘disclosure of information such as assets of a Public servant, which is routinely collected by the Public authority and routinely provided by the Public servants, cannot be construed as an invasion on the privacy of an individual.  There will only be a few exceptions to this rule which might relate to information which is obtained by a Public authority while using extraordinary powers such as in the case of a raid or phone-tapping.  Any other exceptions would have to be specifically justified.  Besides the Supreme Court has clearly ruled that even people who aspire to be public servants by getting elected have to declare their property details. If people who aspire to be public servants must declare their property details it is only logical that the details of assets of those who are public servants must be considered to be disclosable. Hence the exemption under Section 8(1) (j) of RTI cannot be applied in the instant case.’

For the Supreme Court judgement referred to in the above decision, click here.

These are interesting developments, especially given the recent debate on corruption. Let’s wait and see if other states follow Bihar’s lead.

The general discussion on the Railway Budget concluded in Parliament this week. During the discussion, several MPs made a reference to two important documents tabled by the Railway Minister in 2009 – the ‘White Paper’ on Indian Railways and the 2020 Vision document.

The documents provide good insight into the operational and financial performance of Railways over the previous five years. They also throw light on the challenges that confront the Railways today. It emerges that Railways has relied heavily on increasing utilization of existing assets to manage the increase in demand. The system is otherwise severely constrained by lack of adequate capacity.

Scenario so far (2004-09)

Growth in traffic and earnings

Rail transport demand is linked to the growth in GDP. As a result, the two main businesses of Railways – Passenger and Freight – have both seen significant increases in traffic in recent years.

Passenger traffic has grown at an average rate of 10% each year. Earnings have increased at a slightly higher pace, implying that most passengers have been spared increases in fare. Standalone, passenger operations have continued to be loss making. Freight traffic has grown too, but at a lower rate of about 7% and unlike the passenger segment, freight fares have increased significantly over these years.

Freight forms the backbone of Railways’ revenues. Even today, it continues to account for almost two-thirds of total earnings. However, Railways’ market share in freight has decreased steadily over the past few decades – it dropped from 90% in 1950-51 to less than 30% in 2007-08. The main reasons for this decline are high pricing (to subsidize passenger travel) and lack of sufficient infrastructure. Railways are unable to provide time-tabled freight services. In addition, there are no multi-modal logistics parks that could have provided door-to-door cargo services.

Infrastructure constraints

Since 1950-51, route-kms have increased by just 18% and track-kms by 41%, even though freight and passenger output has gone up almost 12 times. Specific issues include:

• Common corridor for both freight and passenger traffic – With freight trains on the same corridor, operating fast passenger trains becomes extremely difficult.
• Concentration of traffic – More than half the total traffic moves on the golden quadrilateral and its diagonals; large parts of these sections are now already saturated.
• Limited capacity for production of rolling stock, particularly locomotives and EMUs.

The above constraints require investment in network and capacity augmentation, including dedicated freight corridors. Hence, a substantial increase in funding is necessary. The Vision 2020 document planned to deploy Rs 14 lakh crore in the next 10 years towards development of rail infrastructure.

Recent trends (as presented in the Budget 2011)

This year’s budget presented the actual financial performance in 2009-10, the provisional performance in 2010-11 and the targets for 2011-12 (Details can be accessed here). It also highlighted achievements on other metrics, including growth in traffic and augmentation of infrastructure (See ‘Status of some key projects proposed in 2010-11‘).

On financials, 2009-10 was a bad year for Railways. Figures show a high Operating Ratio of 95.3%. Operating Ratio is a metric that compares operating expenses to revenues. A higher ratio indicates lower ability to generate surplus. The 2009-10 Operating Ratio is the highest since 2002. According to the Railways Minister, this can be partly attributed to higher payout in salaries and pension due to implementation of Sixth Pay Commission recommendations.

Growth in passenger traffic remained high in 2010-11, at 11%. However, growth in freight traffic slowed down to 2%. Again, passenger fares remained untouched, but freight fares were increased.

Railways, in 2011-12, targets an increase of 8% in both passenger and freight traffic. Financials are expected to improve. An amount of Rs. 57,630 crore has been budgeted as net plan outlay for investment in infrastructure. Last year, this figure was Rs 41,426 crore.

In her opening remarks during the Budget speech in Parliament, the Minister commented that Railways forms an important backbone of any country. Lets hope it is headed in the right direction!

In a recent judgement, the Karnataka High Court upheld the disqualification of five independent MLAs from the Assembly. These MLAs, who had previously served as Ministers in the Yeddyurappa government, were disqualified along with 11 others after they withdrew their support to the government.

The disqualifications raise some important questions on the working of the anti-defection law. While the law was framed in 1985 with the specific intent of ‘combating the evil of political defections’, over the years several unanticipated consequences have come to the fore. The primary among these is the erosion of independence of the average legislator.

The need for an anti-defection law was first felt in the late 1960s. Of the 16 States that went to polls in 1967, Congress lost majority in eight and failed to form the government in seven. Thus began the era of common minimum programmes and coalition governments. This was accompanied with another development – the phenomenon of large scale political migrations. Within a brief span of 4 years (1967-71), there were 142 defections in Parliament and 1969 defections in State Assemblies across the country. Thirty-two governments collapsed and 212 defectors were rewarded with ministerial positions.

Haryana was the first State where a Congress ministry was toppled. The Bhagwat Dayal ministry was defeated in the Assembly when its nominee for speakership lost out to another candidate. Congress dissidents defected to form a new party called the Haryana Congress, entered into an alliance with the opposition and formed a new government under the Chief Ministership of Rao Birender Singh (also a Congress defector). Haryana thus became the first State to reward a defector with Chief Ministership.

Another Haryana legislator, Gaya Lal, defected thrice within a fortnight. The now well know terms ‘Aya Ram’ and ‘Gaya Ram’ that are often used to describe political turncoats owe inspiration to him.

It was to address this issue that the anti-defection law was passed in 1985. This law amended the Constitution and added the Tenth Schedule to the same. The Supreme Court, in Kihota Hollohon vs. Zachilhu (1992), while upholding the validity of the law held that decisions of disqualification shall be open to judicial review.  It also made some observations on Section 2(1) (b) of the Tenth schedule. Section 2(1) (b) reads that a member shall be disqualified if he votes or abstains from voting  contrary to any direction issued by the political party. The judgement highlighted the need to limit disqualifications to votes crucial to the existence of the government and to matters integral to the electoral programme of the party, so as not to ‘unduly impinge’ on the freedom of speech of members.

This anti-defection law has regulated parliamentary behaviour for over 25 years now. Though it has the advantage of providing stability to governments and ensuring loyalty to party manifestos, it reduces the accountability of the government to Parliament and curbs dissent against party policies. In this context, Manish Tewari’s private member bill merits mention:  he suggests that anti-defection law be restricted to votes of confidence and money bills.  Such a move will retain the objective of maintaining the stability of the government while allowing MPs to vote freely (subject to the discipline of the party whip) on other issues.

This brings us to the question – Is the anti-defection law indispensable? Is defection peculiar to India? If not, how do other countries handle similar situations?

It is interesting to note that many advanced democracies face similar problems but haven’t enacted any such laws to regulate legislators. Prominent cases in UK politics include the defection of Ramsay Macdonald, the first Labour Prime Minister, in 1931. He defected from his party following disagreements on policy responses to the economic crisis. Neither Macdonald nor any of his three cabinet colleagues who defected with him resigned their seats in the House of Commons to seek a fresh mandate.

Australian Parliament too has had its share of defections. Legislators have often shifted loyalties and governments have been formed and toppled in quick succession. In the US too, Congressmen often vote against the party programme on important issues without actually defecting from the party.

India might have its peculiar circumstances that merit different policies.  But, the very fact that some other democracies can function without such a law should get us thinking.

Sources/ Notes:

[1] PRS Conference note: The Anti-Defection Law – Intent and Impact

[2] Column by CV Madhukar (Director, PRS) titled ‘Post-independents’ in the Indian Express

The union government is reportedly considering a legislation to create anti-corruption units both at the centre and the states.

Such institutions were first conceptualized by the Administrative Reforms Commission (ARC) headed by Morarji Desai in its report published in 1966. It recommended the creation of two independent authorities – the Lokpal at the centre and the Lokayuktas in the states. The first Lokpal Bill was introduced in Parliament in 1968 but it lapsed with the dissolution of Lok Sabha. Later Bills also met a similar fate.

Though the Lokpal could not be created as a national institution, the interest generated led to the enactment of various state legislations. Maharashtra became the first state to create a Lokayukta in 1972. Presently more than 50% of the states have Lokayuktas, though their powers, and consequently their functioning varies significantly across states.

Existing institutional framework

The Central Vigilance Commission (CVC) and the Central Bureau of Investigation (CBI) are the two cornerstones of the existing institutional framework. However, the efficacy of the current system has been questioned. [1]

Though the CVC (set up in 1964) is an independent agency directly responsible to the Parliament, its role is advisory in nature. It relies on the CBI for investigation and only oversees the bureaucracy; Ministers and Members of Parliament are out of its purview. Thus, presently there is no authority (other than Parliament itself) with the mandate to oversee actions of political functionaries.

At the state level, similar vigilance and anti-corruption organisations exist, although the nature of these organisations varies across states.

Karnataka Lokayukta Act

The Karnataka Lokayukta is widely considered as the most active among the state anti-corruption units. [1] It was first set up in 1986 under the Karnataka Lokayukta Act, 1984.

The Act was recently amended by the state government following the resignation of the Lokayukta, Justice Santosh Hegde. Justice Hegde had been demanding additional powers for the Lokayukta – especially the power to investigate suo-motu. Following the amendment, the Lokayukta has been given the suo motu powers to investigate all public servants except the CM, Ministers, Legislators and those nominated by the government.

Following are the main provisions of the Karnataka Lokayukta Act:

• The public servants who are covered by the Act include the CM, Ministers, Legislators and all officers of the state government including the heads of bodies and corporations established by any law of the state legislature.
• The body is constituted for a term of five years and consists of one Lokayukta and one or more Upalokayuktas. All members must have been judges, with either the Supreme Court or some High Court.
• Members are appointed on the advice of the CM in consultation with the Chief Justice of the Karnataka High Court, the Chairman of the Karnataka Legislative Council, the Speaker of the Karnataka Legislative Assembly, and the Leader of Opposition in both Houses.
• Investigations involving the CM, Ministers, Legislators and those nominated by the government must be based on written complaints; other public servants can be investigated suo-motu.
• Reports of  the Lokayukta are recommendatory. It does not have the power to prosecute.

The forthcoming Ordinance/ Bill

Given that a Lokpal Bill is on the anvil, it might be useful at this point to enumerate some metrics/ questions against which the legislation should be tested:

• Should the Lokpal limit itself to political functionaries? Should CBI and CVC be brought under the Lokpal, thereby creating a single consolidated independent anti-corruption entity?
• Should Lokpal be restricted to an advisory role? Should it have the power to prosecute?
• Should it have suo-motu powers to investigate? Would a written complaint always be forthcoming, especially when the people being complained against occupy powerful positions?
• What should be the composition of the body? Who should appoint members?
• Should the Prime Minister be exempt from its purview?
• Should prior permission from the Speaker or the Chairman of the House be required to initiate inquiry against Ministers/ MPs?

What do you think? Write in with your comments.

Notes:

[1] Report of the Second Administrative Reforms Commission (ARC), ‘Ethics in Governance’ (2007)

[2] Additional reading: An interview with the Karnataka Lokayukta

The Justice  Srikrishna Committee, which is looking into the feasibility of a separate Telangana State, is expected to submit its report by tomorrow.  It might be useful at this point in time to revisit the recommendations of the 1953 States Reorganization Commission (SRC) – the Commission that had first examined the Telangana issue in detail. However, it must be kept in mind that some of those arguments and recommendations may not be applicable today.

Background

Before independence, Telangana was a part of the Nizam’s Hyderabad State and Andhra a part of the erstwhile Madras Province of British India.

In 1953, owing to agitation by leaders like Potti Sreeramulu, Telugu-speaking areas were carved out of the Madras Province. This lead to the formation of Andhra Pradesh, the first State formed on the basis of language.

Immediately afterward, in 1953, the States Reorganization Commission (SRC) was appointed. SRC was not in favour of an immediate merger of Telangana with Andhra and proposed that a separate State be constituted with a provision for unification after the 1961/ 62 general elections, if a resolution could be passed in the Telangana assembly by 2/3rd majority.

However, a ‘Gentlemen’s agreement’ was subsequently signed between the leaders of the two regions and this lead to a merger. The agreement provided for some safeguards for Telangana – for instance, a ‘Regional Council’ for all round development of Telangana. Thus, a unified Andhra Pradesh was created in 1956.

In the years that followed, Telangana continued to see on-and-off protests; major instances of unrest were recorded in 1969 and in the 2000s.

The SRC 1953 report

The full SRC report can be accessed here. Summarized below are its main arguments and recommendations related to Telangana.

Arguments in favour of ‘Vishalandhra’

• The merger would bring into existence a large State with ample agricultural land, large water and power potential, and adequate mineral wealth.
• Fewer independent political jurisdictions would help accelerate important projects related to the development of Krishna and Godavari rivers.
• The two regions would complement each other in resources – Telangana was not self-sufficient in food supplies but Andhra was; Andhra did not have coal mines but Telangana did.
• Substantial savings could be realized through elimination of redundant expenditure on general administration.
• Hyderabad could serve as a suitable capital for the entire region.

Arguments in favour of a separate Telangana State

• Andhra had been facing financial problems and had lower per capita revenue than Telangana. Resources raised through land and excise revenues in Telangana were higher.
• Telangana claimed to be progressive in administration and hence did not foresee any benefits from a merger. In addition, people feared that the region might not receive adequate development focus in a large ‘Vishalandhra’.
• Telangana did not wish to lose its independent rights – for instance, the rights to utilization of waters of Krishna and Godavari.
• The educationally backward people of Telangana feared losing out to people from the more developed coastal regions, especially in matters of employment.

SRC recommendations

The Commission agreed that there were significant advantages in the formation of ‘Vishalandhra’. However, it noted that while opinion in Andhra was overwhelmingly in favour of a larger unit, public opinion in Telangana had still to crystallize.

Even though Andhra leaders were willing to provide guarantees ensuring development focus on Telangana, the SRC felt that any guarantee, short of Central Government supervision, could not be effective. In addition, it noted that Andhra, being a relatively new State, was still in the midst of developing policies related to issues like land reform. Thus, a hurried merger could likely create administrative difficulties both for both units.

The SRC thus recommended the creation of a separate Telangana State with provision for unification after the 1961/62 general elections.

What is petitioning?

Petitioning is a formal process that involves sending a written appeal to Parliament. The public can petition Parliament to make MPs aware of their opinion and/ or to request action.

Who petitions and how?

Anyone can petition Parliament. The only requirement is that petitions be submitted in the prescribed format, in either Hindi or English, and signed by the petitioner.

In the case of Lok Sabha, the petition is normally required to be countersigned by an MP. According to the Rules of Lok Sabha, “This practice is based on the principle that petitions are normally presented by members in their capacity as elected representatives of the people, and that they have to take full responsibility for the statements made therein and answer questions on them in the House, if any, are raised.”

Petitions can be sent to either House in respect of:

• Any Bills/ other matters that are pending before the House
• Any matter of general public interest relating to the work of the Central Government

The petition should not raise matters that are currently sub-judice or for which remedy is already available under an existing law of the Central Government.

Petition formats can be accessed at: Lok Sabha; Rajya Sabha

What happens to the petition once it has been submitted?

Once submitted, the petition may either be tabled in the House or presented by an MP on behalf of the petitioner. These are then examined by the Committee on Petitions.

The Committee may choose to circulate the petition and undertake consultations before presenting its report (For instance, the Petition praying for development of Railway network in Uttarakhand, Himachal Pradesh and other Himalayan States). It may also invite comments from the concerned Ministries. The recommendations of the Committee are then presented in the form of a report to the House.

Previous reports can be accessed at the relevant committee pages on the Lok Sabha and the Rajya Sabha websites.

The Medical Council of India (MCI) has seen a few major controversies over the past decade. In the latest incident, MCI President, Dr. Ketan Desai was arrested by the CBI on charges of accepting a bribe for granting recognition to Gyan Sagar Medical College in Punjab.

Following this incident, the central government promulgated an ordinance dissolving the MCI and replacing it with a centrally nominated seven member board. The ordinance requires MCI to be re-constituted within one year of its dissolution in accordance with the provisions of the original Act.

Background

The Medical Council of India was first established in 1934 under the Indian Medical Council Act, 1933. This Act was repealed and replaced with a new Act in 1956. Under the 1956 Act, the objectives of MCI include:

• Maintenance of standards in medical education through curriculum guidelines, inspections and permissions to start colleges, courses or increasing number of seats
• Recognition of medical qualifications
• Registration of doctors and maintenance of the All India Medical Register
• Regulation of the medical profession by prescribing a code of conduct and taking action against erring doctors

Over the years, several committees, the most recent being the National Knowledge Commission (NKC) and the Yashpal Committee, have commented on the need for reforms in medical regulation in the country.

The Ministry of Health and Family Welfare (MoH&FW) has recently released a draft of the National Council for Human Resources in Health (NCHRH) Bill for public feedback. (See http://mohfw.nic.in/nchrc-health.htm)

Key issues in Medical Regulation

Oversight

Currently, separate regulatory bodies oversee the different healthcare disciplines. These include the Medical Council of India, the Indian Nursing Council, the Dental Council of India, the Rehabilitation Council of India and the Pharmacy Council of India. Each Council regulates both education and professional practice within its domain.

The draft NCHRH Bill proposes to create an overarching body to subsume these councils into a single structure. This new body, christened the National Council for Human Resources in Health (NCHRH) is expected to encourage cross connectivity across these different health-care disciplines.

Role of Councils

Both the NKC and the Yashpal Committee make a case for separating regulation of medical education from that of profession. It is recommended that the current councils be divested of their education responsibilities and that these work solely towards regulation of professionals – prescribing a code of ethics, ensuring compliance, and facilitating continued medical education.

In addition, it has been recommended that a national exit level examination be conducted. This exit examination should then serve the purpose of ‘occupational licensing’, unlike the prevalent registration system that automatically grants practice rights to graduating professionals. In effect, it is envisaged that the system be reconfigured on the lines of the Institute of Chartered Accountants, wherein the council restricts itself to regulating the profession, but has an indirect say in education through its requirements on the exit examination. A common national examination is also expected to ensure uniformity in quality across the country.

Both committees also recommend enlisting independent accrediting agencies for periodically evaluating medical colleges on pre-defined criteria and making this information available to the public (including students). This is expected to bring more transparency into the system.

Supervision of education – HRD vs. H&FW

The Ministry of Human Resources and Development (MHRD) is proposing a National Council for Higher Education and Research (NCHER) to regulate all university education. However, MoH&FW is of the opinion that Medical Education is a specialized field and needs focused attention, and hence should be regulated separately. However, it is worth noting that both the NKC and the Yashpal Committee recommend transferring education overseeing responsibilities to the NCHER.

Internationally, different models exist across countries. In the US, the Higher Education Act, 1965 had transferred all education responsibilities to the Department of Education. In the UK, both medical education and profession continue to be regulated by the General Medical Council (the MCI counterpart), which is different from the regulator for Higher Education.

Composition of Councils

In 2007-08, MCI, when fully constituted, was a 129 member body. The Ministry in its draft NCHRH Bill makes a case for reducing this size. The argument advanced is that such a large size makes the council unwieldy in character and hence constrains reform.

In 2007-08, 71% of the members in the committee were elected. These represented universities and doctors registered across the country. However, the Standing Committee on H&FW report (2006) points out that delays in conducting elections usually leads to several vacancies in this category, thereby reducing the actual percentage of elected members. MCI’s 2007-08 annual report mentions that at the time of publishing the report, 29 seats (32% of elected category) were vacant due to ‘various reasons like expiry of term, non-election of a member, non-existence of medical faculty of certain Universities’.

In November 2001, the Delhi High Court set aside the election of Dr. Ketan Desai as President of the MCI, stating that he had been elected under a ‘flawed constitution’. The central government had failed to ensure timely conduct of elections to the MCI. As a result, a number of seats were lying vacant. The Court ordered that the MCI be reconstituted at the earliest and appointed an administrator to oversee the functioning of the MCI until this was done.

Several countries like the UK are amending their laws to make council membership more broad-based by including ‘lay-members’/ non-doctors. The General Medical Council in the UK was recently reconstituted and it now comprises of 24 members – 12 ‘lay’ and 12 medical members. (See http://www.gmc-uk.org/about/council.asp)

Way ahead

According to latest news reports, the MoH&FW is currently revising the draft Bill. Let’s wait and see how the actual legislation shapes up.

Watch this space for further updates!

This post is pursuant to the discussion on population stabilization being held in Parliament currently.

India is the second most populous country in the world, sustaining 16.7% of the world’s population on 2.4% of the world’s surface area. The population of the country has increased from 238 million in 1901 to 1,029 million in 2001. Even now, India continues to add about 26 million people per year. This is because more than 50% of the population is in the reproductive age group.

India launched a family planning programme in 1952. Though the birth rate started decreasing, it was accompanied by a sharp decrease in death rate, leading to an overall increase in population.

In 1976, the first National Population Policy was formulated and tabled in Parliament.  However, the statement was neither discussed nor adopted.

The National Health Policy was then designed in 1983.  It stressed the need for ‘securing the small family norm, through voluntary efforts and moving towards the goal of population stabilization’.  While adopting the Health Policy, Parliament emphasized the need for a separate National Population Policy.

This was followed by the National Population Policy in 2000. The immediate objective of the policy was to address the unmet needs for contraception, health care infrastructure and personnel, and to provide integrated service delivery for basic reproductive and child health care. The medium-term objective was to bring TFR (Total Fertility Rate – the average number of children a woman bears over her lifetime) to replacement levels by 2010. In the long term, it targeted a stable population by 2045, ‘at a level consistent with the requirements of sustainable economic growth, social development, and environmental protection.’ (See http://populationcommission.nic.in/npp.htm)

Total Fertility Rate

India’s TFR was around 6.1 in 1961.  This meant that an average woman bore over 6 children during her lifetime.  Over the years, there has been a noticeable decrease in this figure.  The latest National Family Health Survey (NFHS III, 2005-06) puts it at 2.7.  TFR is almost one child higher in rural areas (3.0) than in urban areas (2.1).

TFR also varies widely across states.  The states of Andhra Pradesh, Goa, Himachal Pradesh, Karnataka, Kerala, Maharashtra, Punjab, Sikkim and Tamil Nadu have reached a TFR of 2.1 or less.  However, several other states like UP, Bihar, MP, Rajasthan, Orissa, Uttaranchal, Jharkhand and Chhattisgarh, where over 40% of the population lives, TFR is still high.  (See http://www.jsk.gov.in/total_fertility_rate.asp)

Factors that affect population growth

The overarching factor that affects population growth is low socio-economic development. For example, Uttar Pradesh has a literacy rate of 56%; only 14% of the women receive complete antenatal care. Uttar Pradesh records an average of four children per couple. In contrast, in Kerala almost every person is literate and almost every woman receives antenatal care. Kerala records an average of two children per couple.

Infant mortality
In 1961, the Infant Mortality Rate (IMR), deaths of infants per 1000 live births, was 115. The current all India average is much lower at 57. However, in most developed countries this figure is less than 5.

IMR is the lowest at 15 in Kerala and the highest at 73 in Uttar Pradesh. Empirical correlations suggest that high IMR leads to greater desire for children.

Early marriage
Nationwide almost 43% of married women aged 20-24 were married before the age of 18. This figure is as high as 68% in Bihar. Not only does early marriage increase the likelihood of more children, it also puts the woman’s health at risk.

Level of education
Fertility usually declines with increase in education levels of women.

Use of contraceptives
According to NFHS III (2005-06), only 56% of currently married women use some method of family planning in India. A majority of them (37%) have adopted permanent methods like sterilization.

Other socio-economic factors
The desire for larger families particularly preference for a male child also leads to higher birth rates. It is estimated that preference for a male child and high infant mortality together account for 20% of the total births in the country.

Government initiatives

The National Population Policy 2000 gave a focused approach to the problem of population stabilization. Following the policy, the government also enacted the Constitution (84th Amendment) Act, 2002. This Amendment extended the freeze on the state-wise allocation of seats in the Lok Sabha and the Rajya Sabha to 2026. It was expected that this would serve ‘as a motivational measure, in order to enable state governments to fearlessly and effectively pursue the agenda for population stabilization contained in the National Population Policy, 2000’.

The National Commission on Population was formed in the year 2000. The Commission, chaired by the Prime Minister, has the mandate to review, monitor and give directions for implementation of the National Population Policy.

The Jansankhya Sthirata Kosh (National Population Stabilization Fund) was setup as an autonomous society of the Ministry of Health and Family Welfare in 2005. Its broad mandate is to undertake activities aimed at achieving population stabilization.

Programmes like the National Rural Health Mission, Janani Suraksha Yojana, ICDS (Integrated Child Development Services) etc. have also been launched by the government to tackle the healthcare needs of people. This is also expected to contribute to population stabilization.

Free contraceptives are also being provided. In addition, monetary incentives are given to couples undertaking permanent family planning methods like vasectomy and tubectomy.

Nutritional and educational problems are being targeted through programs like the mid-day meal scheme and the recently enacted Right to Education.

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For more details on the issue, see the website of the National Population Stabilization Fund (http://www.jsk.gov.in/)

Sources:
Registrar General, India
National Population Stabilization Fund
National Commission on Population
National Family Health Survey III (2005-06)

Petroleum Secretary S Sundareshan, while addressing a press Conference on Friday, announced the government’s decision to deregulate prices of petrol. Petrol prices shall now be subject to periodic revisions based on fluctuations in market prices. An immediate hike of Rs. 3.50 per litre has already been affected.

Prices of diesel shall be deregulated in stages while those of kerosene and LPG shall continue to be regulated by the government. For the moment, diesel has been hiked by Rs. 2 per litre, kerosene by Rs. 3 per litre and LPG by Rs. 35 per cylinder.

Crude to retail: Pricing and under-recoveries

India imports about 80% of its crude oil requirement.  Therefore, the cost of petroleum products in India is linked to international prices. The Indian barrel of crude cost $78 in March 2010.

Once crude is refined, it is ready for retail. This retail product, is then taxed by the government (both Centre and State) before it is sold to consumers. Taxes are levied primarily for two reasons: to discourage consumption and as a source of revenue. Taxes in India are in line with several developed nations, with the notable exception of the US (See Note 1)

Before the current hike, taxes and duties in Delhi accounted for around 48% of the retail price of petrol and 24% of the retail price of diesel. (Click Here for details)

Ideally, the retail prices of petroleum products should then be determined as:

Retail prices = Cost of production + taxes + profit margins

However, in practice, the government indicates the price at which PSU oil companies sell petroleum products. Since these oil companies cannot control the cost of crude (the primary driver of the cost of production) or the taxes, the net result is an effect on their profit margins.

In cases where the cost of production and taxes exceeds the prescribed retail price, the profit margins become negative. These negative profit margins are called ‘under-recoveries’.

When international crude prices rose above $130 in 2008, under-recoveries reached an all-time high of Rs. 103,292 crore. Even at much lower prices in 2009-10 (averaging at $70 per barrel), under-recoveries totalled Rs. 46,051 crore. (See Note 2)

The latest move is an effort to reduce these under-recoveries. The government cited the recommendations of the Kirit Parkih Committee while announcing its decision (Summary – Kirit Parikh Committee report).

Any alternatives to price hike?

As is evident from above, under-recoveries can also be reduced by decreasing taxes. In fact, one might argue that by both taxing the product and offering a subsidy, the government is complicating the situation. Usually whenever subsidization coexists with taxation, it serves the purpose of redistribution. For example, taxes might be collected universally but subsidy be granted to the weaker sections only. However, this is not the case in the current situation.

What needs to be noted here is that these taxes are a very significant source of revenue. In fact, the total taxes paid by the oil sector to the central and state governments were around 3% of GDP in 2008-09 (See Note 3). Reducing taxes now might make it difficult for successive governments to raise taxation rates on petroleum products again.

Moreover, though taxes are levied both by the Centre and the States, the subsidy is borne only by the Centre. Hence, the current arrangement is beneficial to the States.

Possible future scenarios

The opposition has voiced concerns that the hike in prices is likely to lead to even higher inflation and will further burden the consumer. The Chief Economic Advisor to the Finance Ministry, Dr. Kaushik Basu, however, told the media that these changes would have a beneficial effect on the economy. According to him,

“The (decontrol of petrol prices), coupled with price increase for LPG (cooking gas) and kerosene, will have an immediate positive impact on inflation. I expect an increase of 0.9 percentage points in the monthly Wholesale Price Index (WPI) inflation”.

However, he added, that since the hike in fuel prices would push down fiscal and revenue deficit,

“they will exert a downward pressure on prices… More importantly, from now on, if there is a global shortage and the international price of crude rises, this signal will be transmitted to the Indian consumer. It will rationalise the way we spend money, the kinds and amount of energy we use, and the cars we manufacture. It is an important step in making India a more efficient, global player”.

It remains to be seen how the actual situation pans out.

Notes

1) Share of tax in retail price (%)

Source:  Petroleum Planning and Analysis Cell, PRS (Data as of Feb, 2010)

2) Under-recoveries by oil companies (Rs Crore)

Source:  Petroleum Planning and Analysis Cell, PRS

3) Contribution to Central and State taxes by Oil Sector (2008-09)

Source:  Petroleum Planning and Analysis Cell

Our Constitution provides protection against laws imposing criminal liability for actions committed prior to the enactment of the law. Article 20 (1) under the Part III (Fundamental Rights), reads:

20. (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

Thus, the maximum penalty that can be imposed on an offender cannot exceed those specified by the laws at the time. In the context of the Bhopal Gas tragedy in 1984, the Indian Penal Code (IPC) was the only relevant law specifying criminal liability for such incidents. The CBI, acting on behalf of the victims, filed charges against the accused under section 304 of the IPC (See Note 1). Section 304 deals with punishment for culpable homicide and requires intention of causing death.

By a judgment dated September 13, 1996, the Supreme Court held that there was no material to show that “any of the accused had a knowledge that by operating the plant on that fateful night whereat such dangerous and highly volatile substance like MIC was stored they had the knowledge that by this very act itself they were likely to cause death of any human being.” The Supreme Court thus directed that the charges be re-framed under section 304A of the IPC (See Note 2). Section 304A deals with causing death by negligence and prescribes a maximum punishment of two years along with a fine.

Consequently, the criminal liability of the accused lay outlined by section 304A of the IPC and they were tried accordingly. Civil liability, on the other hand, was adjudged by the Courts and allocated to the victims by way of monetary compensation.

Soon after the Bhopal Gas tragedy, the Government proposed and passed a series of laws regulating the environment, prescribing safeguards and specifying penalties. These laws, among other things, filled the legislative lacunae that existed at the time of the incident.

Given the current provisions (See Note 3), a Bhopal like incident will be tried in the National Green Tribunal (once operationalized) and most likely, under the provisions of the the Environment (Protection) Act, 1986. The criminal liability provisions of the Act (See Note 4) prescribe a maximum penalty of five years along with a fine of one lakh rupees. Further, if an offence is committed by a company, every person directly in charge and responsible will be deemed guilty, unless he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such an offence.

The civil liability will continue to be adjudged by the Courts and in proportion to the extent of damage unless specified separately by an Act of Parliament.

Notes

1) IPC, Section 304. Punishment for culpable homicide not amounting to murder

Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death,

Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

2) IPC, Section 304A. Causing death by negligence

Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

3) Major laws passed since 1984:

1986 – The Environment (Protection) Act authorized the central government to take measures to protect and improve environmental quality, set standards and inspect industrial units. It also laid down penalties for contravention of its provisions.

1991 – The Public Liability Insurance Act provided for public liability – insurance for the purpose of providing immediate relief to the persons affected by an accident while handling hazardous substances.

1997 – The National Environment Appellate Authority Act established to an appellate authority to hear appeals with respect to restriction of areas in which any industries, operations or processes are disallowed, subject to safeguards under the Environment (Protection) Act, 1986.

2009 – The National Green Tribunal Act, yet to be notified, provides for the establishment of a tribunal for expeditious disposal of cases relating to environmental protection and for giving relief and compensation for damages to persons and property. This Act also repeals the National Environment Appellate Authority Act, 1997.

4) Criminal liability provisions of the Environment Protection Act, 1986

Section 15. Penalty for contravention of the provisions of the Act

(1) Whoever fails to comply with or contravenes any of the provisions of this Act, or the rules made or orders or directions issued thereunder, shall, in respect of each such failure or contravention, be punishable with imprisonment for a term which may extend to five years with fine which may extend to one lakh rupees, or with both, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention.

(2) If the failure or contravention referred to in sub-section (1) continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to seven years.

Section 16. Offences by Companies

(1) Where any offence under this Act has been committed by a company, every person who, at the time the offence was committed, was directly in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

Indiscipline and disruptions in Parliament are much talked about issues.  Not only are disruptions a waste of Parliament’s valuable time, these significantly taint the image of this esteemed institution.  Commotion in Rajya Sabha over the introduction of Women’s Reservation Bill and the subsequent suspension of 7 MPs has brought this issue back to the forefront.  We thought it might be useful to research and highlight instances in the past when the House had had to deal with similar situations.

According to the Rules of Conduct and Parliamentary Etiquette of the Rajya Sabha, “The House has the right to punish its members for their misconduct whether in the House or outside it.  In cases of misconduct or contempt committed by its members, the House can impose a punishment in the form of admonition, reprimand, withdrawal from the House, suspension from the service of the House, imprisonment and expulsion from the House.”

Mild offences are punished by admonition or reprimand (reprimand being the more serious of the two).  Withdrawal from the House is demanded in the case of gross misconduct. ‘Persistent and wilful obstructions’ lead the Chairman to name and subsequently move a motion for suspension of the member.  A member can be suspended, at the maximum, for the remainder of the session only.

In an extreme case of misconduct, the House may expel a member from the House. According to a comment in the above rule book, “The purpose of expulsion is not so much disciplinary as remedial, not so much to punish members as to rid the House of persons who are unfit for membership.”

There have been several instances in the past when the Parliament has exercised its right to punish members. We pulled together a few instances:

Rajya Sabha

Source: Rajya Sabha, Rules of Conduct and Parliamentary Etiquette

Source: Rajya Sabha, Rules of Conduct and Parliamentary Etiquette

Lok Sabha

Source: Subhash Kashyap, Parliamentary Procedure (Second Edition)