Imposing an inequality:-
In an extraordinary order that reverses the fundamental constitutional guarantee of equal access to justice, the Supreme Court, late last month, directed parties to an ongoing civil litigation to each pay a fixed sum of money to enable them to have their cases heard, and potentially disposed of, at an early date.
This move, initiated by a Bench headed by Chief Justice of India T.S. Thakur, is altogether unprecedented. To impose costs on one of the parties at the end of a protracted litigation is common; it is meant, among other things, to act as a deterrent against litigants abusing the process and the system of the law.
But to seek pre-deposits with a view to prioritising a certain kind of case over another, by granting early dates of hearing to those that are capable of paying huge sums of money, is simply staggering. It reinforces a scheme of classism that ought to have no place in any court of law, let alone the apex court of the land.
A capitalistic approach
Ostensibly, the imposition of a pre-deposit as a requisite for securing a form of fast-tracked justice is aimed at thwarting corporates from approaching the court for the settlement of mundane issues of little public consequence.
The Story
“Litigation should become expensive for your big clients,” Justice Thakur told senior advocate Abhishek Manu Singhvi, who was representing Star India in a dispute concerning the ambit of broadcast and information rights for cricket matches. “The learned Attorney General had suggested it to us yesterday as one of the steps which can be adopted to reduce pendency and discourage litigation. This is a beginning. Only those big clients who can pay deposit shall file cases here.” But, as is clear from what subsequently transpired in the court, the idea of imposing pre-deposits, were it to fructify into anything resembling a set norm, would serve to deeply burden the ordinary litigant.
According to news reports, having suggested the imposition of a pre-deposit, it was after what can only be really described as a process of haggling over the costs that the court ultimately quantified the amount. It enjoined both the appellants, Star India and the Board of Control for Cricket in India, to pay Rs.50 lakh each, and, what’s more, rather curiously, it directed the three respondents in the case, Idea Cellular, Akuate Internet and OnMobile Global — who may have no particular interest in a quick hearing — to also collectively cough up the sum. In exchange for these amounts, which were to be defrayed within a period of four weeks, the court acceded to the appellants’ request to have the cases listed in July for final hearing, once it returned from its summer vacation, thus arriving at a quintessentially capitalistic conclusion.
The Constitution, wrote Justice S.N. Dwivedi in his separate judgment in the famous Kesavananda Bharati case, “is not intended to be the arena of legal quibbling for men with long purses”. But that is precisely the implication of the court’s latest move, which places a gargantuan burden on those common litigants for whom the price to be paid for an early hearing would simply be out of reach. Were this order to put in motion a convention of imposing deposits, it could quite conceivably lead to a situation where those parties with the deepest pockets alone would have their cases heard on priority.
The court’s neo-liberal turn
The crystallisation of such a rule would neatly bookend the Supreme Court’s truly neo-liberal transformation, from a court that had majestically metamorphosed itself in the early 1980s into a court for Indians, in the words of the scholar Upendra Baxi, into a court that now stands to serve only for the benefit of a few Indians, or the “big clients”, as it were.
Article 14 of the Constitution guarantees to all persons a right to equality before the law and the equal protection of the laws. This notion of equality, expressed in its abstract, is undeniably a contested concept; it requires an exercise in interpretation to understand its full purport and meaning.
But it is also just as patent that under any process of construal the idea of providing equal access to justice inheres both in Article 14 and in any reasonable notion of the rule of law. To achieve a perfect model of equal access would require every person to be possessed of an equal ability to defend his or her rights. This is therefore a concept that is easy to theoretically defend, but in practice, in a society that is intrinsically unequal, far harder to achieve. It was to this end, with a view to expanding the right to legal access, that the Supreme Court in the 1980s loosened its rules of standing, allowing claimants, whose rights were not directly affected by actions of the state, to approach the court on behalf of the larger public.
“The legal aid movement and public interest litigation seek to bring justice to these forgotten specimens of humanity who constitute the bulk of the citizens of India and who are really and truly the ‘People of India’ who gave to themselves this magnificent Constitution,” wrote Justice P.N. Bhagwati in People’s Union for Democratic Rights v. Union of India (1982).
“It is true that there are large arrears pending in the courts, but that cannot be any reason for denying access to justice to the poor and weaker sections of the community. No state has a right to tell its citizens that because a large number of cases of the rich and the well-to-do are pending in our courts, we will not help the poor to come to the courts for seeking justice until the staggering load of cases of people who can afford is disposed of.”
This promise, which elevated the Supreme Court into a more egalitarian institution, was unfortunately too short-lived. In the ensuing decade, with the advent of liberalisation, the court’s underlying philosophy also experienced a sea change. The same power that the court had arrogated to uphold the needs of the poor was now used to further the state’s new economic policy, often on the face of the most basic civil and socio-economic rights of the greater populace. The nadir of this new avatar, as the collection of essays in The Shifting Scales of Justice: The Supreme Court in Neo-liberal India, edited by Mayur Suresh and Siddharth Narrain, points out, was reached on February 15, 2000 in Almitra Patel v. Union of India. Here, in a public interest litigation filed to regulate solid waste disposal in the city of Delhi, the Supreme Court wound up chastising the slum-dweller instead.
“The promise of free land, at the taxpayers’ cost, in place of a jhuggi, is a proposal which attracts more land grabbers,” wrote Justice B.N. Kirpal. “Rewarding an encroacher on public land with free alternative site is like giving a reward to a pickpocket.”
While this decision in Almitra Patel no doubt occupies a position of extreme insensitivity, the more general trend of the Supreme Court acting virtually as a forum for governance — as a super executive — has continued unabated; if anything, its appropriated role has been augmented by today’s culture of 24/7 media coverage, where the court often comes across as a deliverer of justice that is most akin to a form of moral proselytisation, as opposed to a judicial reviewer of state action.
Public interest litigation, therefore, presently serves a role distinctly opposed to the rationale behind its fashioning. In the process, the idea of securing greater access to justice, to those for whom the mere act of approaching a court is often an insurmountable barrier, has suffered a grave dent.
The case for equal access
Ensuring equal access to justice, as a practice note released by the United Nations Development Programme shows us, requires much more than improving an individual’s access to courts and the guarantee of proper legal representation; it compels a definition of access to justice that partakes a necessity for just and equitable legal and judicial outcomes. While achieving such an end might be a utopian endeavour, it serves little purpose to dilute the right to equal access by imposing newer and further obstacles to justice.
“When dealing with a question of court fee,” wrote Justice D.A. Desai in a 1978 judgment of the Supreme Court, “the perspective should be informed by the spirit of the Magna Carta and of equal access to justice which suggests that a heavy price tag on relief in Court should be regarded as unpalatable.” Today, the court appears to be treading a path where the ability to pay costs, in the form of pre-deposits, might virtually come to represent an indispensable condition for securing quick justice. This practice, if not immediately disavowed, to borrow an illuminating phrase used by the U.S. Supreme Court, would tantamount to “an imposition of an inequality”, thereby making illusory some of the Constitution’s most cherished promises entrenched in the Preamble, of justice, social, economic and political, and of equality of status and of opportunity.
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Petrol in India is cheaper than in countries like Hong Kong, Germany and the UK but costlier than in China, Brazil, Japan, the US, Russia, Pakistan and Sri Lanka, a Bank of Baroda Economics Research report showed.
Rising fuel prices in India have led to considerable debate on which government, state or central, should be lowering their taxes to keep prices under control.
The rise in fuel prices is mainly due to the global price of crude oil (raw material for making petrol and diesel) going up. Further, a stronger dollar has added to the cost of crude oil.
Amongst comparable countries (per capita wise), prices in India are higher than those in Vietnam, Kenya, Ukraine, Bangladesh, Nepal, Pakistan, Sri Lanka, and Venezuela. Countries that are major oil producers have much lower prices.
In the report, the Philippines has a comparable petrol price but has a per capita income higher than India by over 50 per cent.
Countries which have a lower per capita income like Kenya, Bangladesh, Nepal, Pakistan, and Venezuela have much lower prices of petrol and hence are impacted less than India.
“Therefore there is still a strong case for the government to consider lowering the taxes on fuel to protect the interest of the people,” the report argued.
India is the world’s third-biggest oil consuming and importing nation. It imports 85 per cent of its oil needs and so prices retail fuel at import parity rates.
With the global surge in energy prices, the cost of producing petrol, diesel and other petroleum products also went up for oil companies in India.
They raised petrol and diesel prices by Rs 10 a litre in just over a fortnight beginning March 22 but hit a pause button soon after as the move faced criticism and the opposition parties asked the government to cut taxes instead.
India imports most of its oil from a group of countries called the ‘OPEC +’ (i.e, Iran, Iraq, Saudi Arabia, Venezuela, Kuwait, United Arab Emirates, Russia, etc), which produces 40% of the world’s crude oil.
As they have the power to dictate fuel supply and prices, their decision of limiting the global supply reduces supply in India, thus raising prices
The government charges about 167% tax (excise) on petrol and 129% on diesel as compared to US (20%), UK (62%), Italy and Germany (65%).
The abominable excise duty is 2/3rd of the cost, and the base price, dealer commission and freight form the rest.
Here is an approximate break-up (in Rs):
a)Base Price | 39 |
b)Freight | 0.34 |
c) Price Charged to Dealers = (a+b) | 39.34 |
d) Excise Duty | 40.17 |
e) Dealer Commission | 4.68 |
f) VAT | 25.35 |
g) Retail Selling Price | 109.54 |
Looked closely, much of the cost of petrol and diesel is due to higher tax rate by govt, specifically excise duty.
So the question is why government is not reducing the prices ?
India, being a developing country, it does require gigantic amount of funding for its infrastructure projects as well as welfare schemes.
However, we as a society is yet to be tax-compliant. Many people evade the direct tax and that’s the reason why govt’s hands are tied. Govt. needs the money to fund various programs and at the same time it is not generating enough revenue from direct taxes.
That’s the reason why, govt is bumping up its revenue through higher indirect taxes such as GST or excise duty as in the case of petrol and diesel.
Direct taxes are progressive as it taxes according to an individuals’ income however indirect tax such as excise duty or GST are regressive in the sense that the poorest of the poor and richest of the rich have to pay the same amount.
Does not matter, if you are an auto-driver or owner of a Mercedes, end of the day both pay the same price for petrol/diesel-that’s why it is regressive in nature.
But unlike direct tax where tax evasion is rampant, indirect tax can not be evaded due to their very nature and as long as huge no of Indians keep evading direct taxes, indirect tax such as excise duty will be difficult for the govt to reduce, because it may reduce the revenue and hamper may programs of the govt.
Globally, around 80% of wastewater flows back into the ecosystem without being treated or reused, according to the United Nations.
This can pose a significant environmental and health threat.
In the absence of cost-effective, sustainable, disruptive water management solutions, about 70% of sewage is discharged untreated into India’s water bodies.
A staggering 21% of diseases are caused by contaminated water in India, according to the World Bank, and one in five children die before their fifth birthday because of poor sanitation and hygiene conditions, according to Startup India.
As we confront these public health challenges emerging out of environmental concerns, expanding the scope of public health/environmental engineering science becomes pivotal.
For India to achieve its sustainable development goals of clean water and sanitation and to address the growing demands for water consumption and preservation of both surface water bodies and groundwater resources, it is essential to find and implement innovative ways of treating wastewater.
It is in this context why the specialised cadre of public health engineers, also known as sanitation engineers or environmental engineers, is best suited to provide the growing urban and rural water supply and to manage solid waste and wastewater.
Traditionally, engineering and public health have been understood as different fields.
Currently in India, civil engineering incorporates a course or two on environmental engineering for students to learn about wastewater management as a part of their pre-service and in-service training.
Most often, civil engineers do not have adequate skills to address public health problems. And public health professionals do not have adequate engineering skills.
India aims to supply 55 litres of water per person per day by 2024 under its Jal Jeevan Mission to install functional household tap connections.
The goal of reaching every rural household with functional tap water can be achieved in a sustainable and resilient manner only if the cadre of public health engineers is expanded and strengthened.
In India, public health engineering is executed by the Public Works Department or by health officials.
This differs from international trends. To manage a wastewater treatment plant in Europe, for example, a candidate must specialise in wastewater engineering.
Furthermore, public health engineering should be developed as an interdisciplinary field. Engineers can significantly contribute to public health in defining what is possible, identifying limitations, and shaping workable solutions with a problem-solving approach.
Similarly, public health professionals can contribute to engineering through well-researched understanding of health issues, measured risks and how course correction can be initiated.
Once both meet, a public health engineer can identify a health risk, work on developing concrete solutions such as new health and safety practices or specialised equipment, in order to correct the safety concern..
There is no doubt that the majority of diseases are water-related, transmitted through consumption of contaminated water, vectors breeding in stagnated water, or lack of adequate quantity of good quality water for proper personal hygiene.
Diseases cannot be contained unless we provide good quality and adequate quantity of water. Most of the world’s diseases can be prevented by considering this.
Training our young minds towards creating sustainable water management systems would be the first step.
Currently, institutions like the Indian Institute of Technology, Madras (IIT-M) are considering initiating public health engineering as a separate discipline.
To leverage this opportunity even further, India needs to scale up in the same direction.
Consider this hypothetical situation: Rajalakshmi, from a remote Karnataka village spots a business opportunity.
She knows that flowers, discarded in the thousands by temples can be handcrafted into incense sticks.
She wants to find a market for the product and hopefully, employ some people to help her. Soon enough though, she discovers that starting a business is a herculean task for a person like her.
There is a laborious process of rules and regulations to go through, bribes to pay on the way and no actual means to transport her product to its market.
After making her first batch of agarbathis and taking it to Bengaluru by bus, she decides the venture is not easy and gives up.
On the flipside of this is a young entrepreneur in Bengaluru. Let’s call him Deepak. He wants to start an internet-based business selling sustainably made agarbathis.
He has no trouble getting investors and to mobilise supply chains. His paperwork is over in a matter of days and his business is set up quickly and ready to grow.
Never mind that the business is built on aggregation of small sellers who will not see half the profit .
Is this scenario really all that hypothetical or emblematic of how we think about entrepreneurship in India?
Between our national obsession with unicorns on one side and glorifying the person running a pakora stall for survival as an example of viable entrepreneurship on the other, is the middle ground in entrepreneurship—a space that should have seen millions of thriving small and medium businesses, but remains so sparsely occupied that you could almost miss it.
If we are to achieve meaningful economic growth in our country, we need to incorporate, in our national conversation on entrepreneurship, ways of addressing the missing middle.
Spread out across India’s small towns and cities, this is a class of entrepreneurs that have been hit by a triple wave over the last five years, buffeted first by the inadvertent fallout of demonetization, being unprepared for GST, and then by the endless pain of the covid-19 pandemic.
As we finally appear to be reaching some level of normality, now is the opportune time to identify the kind of industries that make up this layer, the opportunities they should be afforded, and the best ways to scale up their functioning in the shortest time frame.
But, why pay so much attention to these industries when we should be celebrating, as we do, our booming startup space?
It is indeed true that India has the third largest number of unicorns in the world now, adding 42 in 2021 alone. Braving all the disruptions of the pandemic, it was a year in which Indian startups raised $24.1 billion in equity investments, according to a NASSCOM-Zinnov report last year.
However, this is a story of lopsided growth.
The cities of Bengaluru, Delhi/NCR, and Mumbai together claim three-fourths of these startup deals while emerging hubs like Ahmedabad, Coimbatore, and Jaipur account for the rest.
This leap in the startup space has created 6.6 lakh direct jobs and a few million indirect jobs. Is that good enough for a country that sends 12 million fresh graduates to its workforce every year?
It doesn’t even make a dent on arguably our biggest unemployment in recent history—in April 2020 when the country shutdown to battle covid-19.
Technology-intensive start-ups are constrained in their ability to create jobs—and hybrid work models and artificial intelligence (AI) have further accelerated unemployment.
What we need to focus on, therefore, is the labour-intensive micro, small and medium enterprise (MSME). Here, we begin to get to a definitional notion of what we called the mundane middle and the problems it currently faces.
India has an estimated 63 million enterprises. But, out of 100 companies, 95 are micro enterprises—employing less than five people, four are small to medium and barely one is large.
The questions to ask are: why are Indian MSMEs failing to grow from micro to small and medium and then be spurred on to make the leap into large companies?
At the Global Alliance for Mass Entrepreneurship (GAME), we have advocated for a National Mission for Mass Entrepreneurship, the need for which is more pronounced now than ever before.
Whenever India has worked to achieve a significant economic milestone in a limited span of time, it has worked best in mission mode. Think of the Green Revolution or Operation Flood.
From across various states, there are enough examples of approaches that work to catalyse mass entrepreneurship.
The introduction of entrepreneurship mindset curriculum (EMC) in schools through alliance mode of working by a number of agencies has shown significant improvement in academic and life outcomes.
Through creative teaching methods, students are encouraged to inculcate 21st century skills like creativity, problem solving, critical thinking and leadership which are not only foundational for entrepreneurship but essential to thrive in our complex world.
Udhyam Learning Foundation has been involved with the Government of Delhi since 2018 to help young people across over 1,000 schools to develop an entrepreneurial mindset.
One pilot programme introduced the concept of ‘seed money’ and saw 41 students turn their ideas into profit-making ventures. Other programmes teach qualities like grit and resourcefulness.
If you think these are isolated examples, consider some larger data trends.
The Observer Research Foundation and The World Economic Forum released the Young India and Work: A Survey of Youth Aspirations in 2018.
When asked which type of work arrangement they prefer, 49% of the youth surveyed said they prefer a job in the public sector.
However, 38% selected self-employment as an entrepreneur as their ideal type of job. The spirit of entrepreneurship is latent and waiting to be unleashed.
The same can be said for building networks of successful women entrepreneurs—so crucial when the participation of women in the Indian economy has declined to an abysmal 20%.
The majority of India’s 63 million firms are informal —fewer than 20% are registered for GST.
Research shows that companies that start out as formal enterprises become two-three times more productive than a similar informal business.
So why do firms prefer to be informal? In most cases, it’s because of the sheer cost and difficulty of complying with the different regulations.
We have academia and non-profits working as ecosystem enablers providing insights and evidence-based models for growth. We have large private corporations and philanthropic and funding agencies ready to invest.
It should be in the scope of a National Mass Entrepreneurship Mission to bring all of them together to work in mission mode so that the gap between thought leadership and action can finally be bridged.