Good laws make good societies: Unfortunately, we now have a spate of excessive legislation that criminalises ordinary citizens

Good laws make good societies: Unfortunately, we now have a spate of excessive legislation that criminalises ordinary citizens

December 13, 2019 | Governance

The Union Cabinet recently cleared amendments to the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The amendments, according to reports, expand the list of those responsible for looking after aged family members. Now not just biological children, but also sons-in-law, daughters-in-law, adoptive and stepchildren will be liable. Official caregivers who fail to comply can face a jail term of up to six months, against the current maximum of three months, if these amendments become law.

As ordinary citizens, we don’t spend much time reading about and thinking through the creation of new laws or amendments of old ones. We forget that the main constitutional responsibility of the MLAs and MPs that we vote for is law making, and oversight of the executive to implement those laws. During my husband’s 2014 election campaign, I did not hear a single voter mention this aspect of the legislator’s role. Most were concerned with local issues, which they felt helpless to address, and expected the MLA and MP to personally deliver on.

Yet, it is good laws that make for the good, functional society that most voters crave. Good laws are fair, do not discriminate against any group and are reasonably implementable. These create the very bedrock, on which samaaj, sarkaar and bazaar can maintain co-operation and peace; be more productive and reach for higher goals.
Bad laws, on the other hand, can harass and persecute innocent people; put the burden of proof on the citizen instead of on the accuser or the state; give excessive punishment; and create an atmosphere of fear. They also create opportunities for rent seeking and corruption by putting excessive discriminatory power into the hands of enforcing authorities.

Once in a while, as in the Nirbhaya case, the broader middle classes get agitated and rightfully express rage and helplessness. This creates the environment for passing newer, harsher laws or amendments for terrible crimes.
Unfortunately, there is little evidence that more severe punishment in the law acts as enough deterrence for future similar crimes. Recent events in Unnao and Hyderabad require us to pause and think, even as we grieve.
Societies have debated the severity of punishment for vile acts over millennia, with complex moral arguments on both sides of the question.

But citizens and society should pay more attention to the trend of over-criminalisation of common human failings and frailties. Some laws have moved issues from the civil to the criminal domain with severe penalties and jail sentences for non-compliance. This is by no means new. But recent Parliament sessions have been more productive than ever in terms of both attendance and legislation, though there has been very little substantive discussion on the Bills. And this has led to even more policies, bills and laws that fall into this category.
Let’s take a few examples, in addition to the proposed amendment on parent welfare.

The Banning of Cryptocurrency and Regulation of Official Digital Currency Bill, 2019 proposes up to 10 years in jail for possession and trading in cryptocurrency. Recent amendments to the Motor Vehicles Act include prison terms for certain violations, such as driving an uninsured vehicle. The Muslim Women (Protection of Rights on Marriage) Act, 2019, declares triple talaq a criminal offence, punishable with 3 years’ imprisonment. The Union government recently banned e-cigarettes and now, even just the storage of them can merit a jail term of up to six months for the very first offence. Offences on a private member’s bill to prohibit Paan and Gutka similarly proposed a criminal liability of 10 years’ imprisonment. The Central Goods and Services Tax Act, 2017, introduces greater scope for GST officers to arrest tax evaders and offences are non-bailable if the amount involved exceeds Rs 5 crore.

A similar attempt at criminalisation was made for non-compliance of the obligations for Corporate Social Responsibility. Every officer of the company in default could face imprisonment for up to 3 years. That received such a reaction from powerful corporate lobbies that it was withdrawn in a hurry. But not every policy or law has an affected constituency with such a direct line to the government as business does.

These are just some examples of a creeping trend that should worry us all. Criminal law may be quite unsuited to address many societal issues. Some of them are about inter-personal obligations and duties, such as the very basic duty to look after your own parents who gave you life. Others affect individuals and create private wrongs and may not require a public law remedy, or may have already a civil law remedy.

Equally importantly, if ‘justice delayed is justice denied’, we have to think of the implication of more and more offences that lead to more and more imprisonment. It takes up tremendous resources of the state. Our prison system is already over crowded, with absolutely inhuman conditions. A majority of prisoners are under-trials, which means that their guilt has not yet been proven. None of us would like to be imprisoned without a just verdict.

Maybe it is time to reflect and reimagine what issues belong to samaaj to address, however slowly and painfully, and which must fall to the state or sarkaar to uphold. Meanwhile, let’s communicate strongly to our legislators. Let’s hold lawmakers accountable to draft, to pass and to uphold good laws that work for citizens and not against them.

Times of India

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We The People | Corporate Social Responsibility: Should It Be Mandatory?

We The People | Corporate Social Responsibility: Should It Be Mandatory?

August 15, 2019 | Governance

India, has become the first country to make Corporate Social Responsibility (CSR) spending mandatory through a law. New amendments to the Companies Act have been approved by parliament to make make it impossible for companies to escape CSR. The government also plans to include a specific penal provision in the Companies Act in case of non-compliance with CSR which could include a three-year jail term for officials in companies that fail to spend funds in any given year. Will this make corporate India wake up to its wider social responsibility towards narrowing down widening inequality or is the CSR law another utopian ideal being hijacked by political interference?

The other panellists invited to We The People, to discuss this issue included Nitin Pai, Co-founder and Director of the Takshashila Institute, Harsh Mander, social activist and author, Gurcharan Das, author, commentator, former CEO of Procter & Gamble, Naina Lal Kidwai, former HSBC Chairperson, former President Federation of the Indian Chamber of Commerce and Industry, head of India Sanitation Coalition, Pushpa Sundar, Founder/Director of Sampradaan Indian Centre for Philanthropy, Madhuresh Kumar, national convener of the National Alliance of People’s Movement in India, and Ashwani Dubey, lawyer, political activist from the BJP.

This is an edited version of an episode of We The People, where Rohini Nilekani and others discuss the 2019 amendment to the Companies Act, and whether enforced CSR stipulations for companies will be effective in the philanthropy sector.

Capital Alone Cannot Solve the Problem

What we’re seeing with the amendment to the Companies Act, is how easy it is to lose public trust when something starts out as voluntary and then the government enforces it as a mandate. Imposing jail time for cases of non-compliance and forcing companies to give, seems counter-productive because it will only create more bureaucratic processes in a country already burdened by so many compliance issues. I do think that the government needs to examine how this law is being framed, and I hope that they will roll back some of these stipulations and find a way to encourage philanthropy without making it mandatory, per se. That the amendment allows corporates a three-year time frame to spend the money, is definitely an advantage and will allow companies to go further than just the annual, short-term kind of strategies. In this sector especially, to really create change, you need to invest not just money, but time, research, and readjustment of strategies.

Of course, we should all exercise our generosity muscle much more. But with any kind of government tax on the super-wealthy, the fear is that personal philanthropy will decrease. So when we’re talking about taxes on wealth, it needs to be framed in a way that spurs generosity in individuals as well as corporations. Governments working in isolation cannot solve all of society’s issues, so philanthropic capital is certainly necessary. However, forcing companies to do this when philanthropy is not their core competency involves a lot more than simply giving up 2% of their profit. It requires setting up departments and really doing the work of trying to implement change, which is not at all easy. So I think the government needs to rethink how to go about this.

The central issue with the CSR law is that it’s as if we’re trying to outsource governance, which is supposed to be the mandate of the state. The fact is that pouring in large amounts of money is not necessarily going to help, because we still don’t have the capacity on the ground to absorb all of it and put it to use effectively. Even in terms of giving during disasters, sending money for flood relief, for example, doesn’t mean the capital is necessarily being used efficiently. Investments need to happen not just in terms of capital, but in terms of building a pipeline for help to reach the people who really need it. We need to step up and create multi-year platforms, and build a lot of trust between the government, the society, and corporates, before we can start innovating solutions. Instead, laws like this criminalising non-compliance result in people trusting the government even less than before.

Gurcharan Das and Nitin Pai both bring up an important point, that each sector plays a certain role in our society. The bazaar or market requires companies to make products, create jobs, and pay taxes to the government, which should be used on education, health, infrastructure, disaster relief, etc. These are the ways that companies improve lives, and the government needs to be cognizant of that. In addition to philanthropic initiatives, the wealth gap needs to also be bridged through economic growth, and corporates play a critical role in national development. Of course, we must also give to causes and try to address social issues, however, that kind of philanthropy needs to be motivated by something greater than the fear of criminal charges. That’s not to undervalue the CSR work happening in this country right now. But what Das mentions does bear noting – we are one of only three countries in the world that has a CSR law. One of these was the UK, and they abandoned this because they realised that it simply wasn’t effective.

The Drawbacks of CSR

Naina Lal Kidwai makes an excellent point, that our current definition for what falls under CSR areas may be too narrow. As chair of the water mission at FICCI, she examined water stewardship, which does not get covered in CSR. However, water stewardship is a key issue for companies to keep in mind when setting up and running factories in India. They need to be using water efficiently, maintaining full compliance with the circular economy and its principles. Companies inadvertently impact the communities they are located in, and doing narrowly defined CSR work after the fact is not a good solution. Instead, we need to widen the responsibility of companies beyond doing CSR, to address the environmental and social impact they have on the areas around them.

Pushpa Sundar also mentions this problem, because the government has simply interpreted CSR as financial allocation. We’ve lost sight of the need for companies to exercise responsibility and good behaviour, and we’re seeing the results of this. For example, the textile industry uses approximately one lakh litre of water to produce just one denim item. Sundar argues that if companies were to treat, recycle, and replenish water sources, that would be a far more valuable contribution than the 2% of their profit. This is one of the inherent flaws in the Companies Act – that CSR is treated as an activity or box to check off, and not in conjunction with a duty towards good governance or good behaviour.

Instead, we’re seeing these funds being used for political purposes, given to programs and goals that the present government approves of. Statistics show that in 2017, the spending for the conservation of the National Heritage category of CSR jumped from 46 crores the year before to 155 crores. This was due to several PSUs giving their CSR money to the government’s Statue of Unity project, inaugurated and unveiled by the Prime Minister. Under the Animal Welfare category, other corporates are spending large amounts of money to fund Goshalas, while issues like child mortality, and eradicating hunger and poverty were ignored and underfunded. So this certainly poses a problem.

The initial hope for the CSR mandate was that it would enable companies to come at societal issues with creativity and innovation, and perhaps problem solve in a way that the government so far has been unable to, however the reality does not quite match up to that. In addition, the new amendment poses a question of accountability. If the funds are not spent within the term of three years, how many people in the company will be held accountable and who will have the power and privilege to get off without any penalty?

Thinking Creatively

The reality is that in many cases, there is a dichotomy between companies that are underpaying their workers, adversely affecting the environment, but then starting a CSR initiative or foundation and absolving themselves of their other responsibilities. But the solution isn’t just to offer money outside their fence, but rather address the problems inside their fence as well, in order to create more sustainable, equitable businesses. However, I’m doubtful that the current CSR law will encourage this. Perhaps we need to look at other models to encourage philanthropy from the corporate sector, like asking companies to align more closely towards SDG commitments that exists internationally, so they can step up and align their businesses better.

The issue with the CSR law is that it is essentially imposing a tax, so I wouldn’t be surprised if companies say, “Why don’t I just give it to the Prime Minister’s relief fund,” to easily tick that box, rather than go through the effort of trying to innovate across societal problems. There’s a lot of work to be done in reframing how we think about accountability and our motives for philanthropy. In order to build up the capacity of social sector organisations to receive large amounts of capital and spend it well, companies need to trust our civil sector entities more.

One thought I had was that if we’re mandating that companies give this 2% SES, why don’t we allow them five years to use it to clean up their act inside the fence. That means improving the way they treat labour, improving their management of natural resources, improving the way they deal with what affluence they put out in the supply chain. It’s as good as saying “Use that 2%, otherwise government will tax it.” This kind of time frame would also help companies comply with SDG goals, etc.
Rather than trying to criminalise people for non-compliance, we can view this as an opportunity for creativity. As the other panellists have pointed out, it’s very difficult to hold the real culprits accountable, and placing that much power in the hand of the state is not what makes for successful societies, nor flourishing businesses either. There are other ways of achieving what we would like to achieve, where companies are serving the communities around them and are socially and environmentally responsible, without taking away from their profitability. So rather than the stringent CSR law currently in place, we can think of a more effective, creative solution that would be beneficial to the markets, the state, as well as society as a whole.

How Samaaj Impacts the way in Which Sarkaar and Bazaar Work

How Samaaj Impacts the way in Which Sarkaar and Bazaar Work

July 22, 2019 | Governance

This is an edited version of a talk Rohini Nilekani gave at the offices of the eGovernments Foundation on how samaaj impacts the way in which sarkaar and bazaar work, and the role of samaaj in eGov’s mission.

The Continuum of Samaaj, Sarkaar, and Bazaar

Since the past 25 years, I’ve been deeply involved in the civil society sector of India, which is very thriving and diverse. Through reading extensively and talking to people, especially at the grassroots level, I have tried to create a certain philosophy for myself through which to view the world. This theory is fairly simple – that there is a continuum of samaaj, bazaar, and sarkaar. But we must understand that samaaj is the foundation on which this system is built. It is not the third sector, as some people call it, but the first sector. Bazaar and sarkaar were simply created to serve the samaaj. The markets and state evolved as responses to the needs of diverse societies, and over the centuries, bazaar and sarkaar have developed from simple management systems, in order to serve the evolving samaaj.

We are citizens first, not consumers or subjects of states and kingdoms. The bazaar and the sarkaar are therefore accountable to the larger needs of samaaj. This is the starting point of all my philanthropic work, and eGov is similarly a samaaj actor first, that is simply working with the sarkaar and the bazaar. As time progresses, this dynamic between samaaj, bazaar, and sarkaar will obviously keep evolving and shifting. But at the heart of it all lies power and power structures, with the potential to pull things out of balance.

Depending on how power structures play out, the fluidity, roles, responsibilities, and strength of these three sectors keep changing. In the last century, both bazaar and sarkaar have become very powerful and extremely oppressive in many parts of the world. With examples like Mao and Stalin, we have seen how the sarkaar can literally take over people’s lives, oppressing the samaaj they should be serving. Post-World War II, as reconstruction was taking place all over the world, capitalism began to advance and make substantial inroads, to the point of even dismantling the Soviet Empire. The markets began to gain an increasing amount of power, which we can see even today. Back then, they called it the military-industrial complex, but the fact is that the market had acquired a lot of power even on the consumer side, affecting the samaaj. Today we have seen how a group of transnational corporations, tech companies who represent the market, have pretty much decided how we should think and feel.

An Age of Extremes

The pendulum has swung too far on either side. In many cases during the last century, we have observed the market and the state colluding. When that happens, the samaaj must be happy with crumbs. The power of the state and market combined is really detrimental to the samaaj. Additionally, the samaaj is not one homogenous unit, and therefore not as united in their goals as the sarkaar or the bazaar. We’re living in an age of extremes, where the mobile phone revolution has seen individual liberties being stretched too far as well. Anybody can do anything they want from anywhere, at any time, which includes the ability to spew hate and encourage violence, without any accountability. So there are issues within the samaaj as well.

On the samaaj side as well, we have seen a response to this kind of accumulation of power, which strangely enough gave individual liberty one last run in these last 25 years. With access to a mobile phone and a computer, you can do absolutely anything, connect to anyone, anytime, anywhere, including all the negative fallout that we are seeing today. We are in the middle of a huge societal correction, where we will see new societal norms being formed around this notion of individual liberty, market power, and state authoritarianism in a digital age. It’s unclear where this will lead, but the corrections happening right now look like upheavals. Recent advances in technology make me fear the power of bazaar and the surveillance state.

While all of this is going on, there is a pushback as well. When power accumulates, there’s always a responsive force that tries to pull it back, and maintain a dynamic balance. A lot of interesting things are happening in the samaaj sector in response to this accumulation of power. We’re seeing the emergence of many civil society actors around the globe who are responding to this accumulation of power by the state and the market. And that is the interesting space in which I work.

Seeing Like a State

This brings me to the reason why this understanding is so crucial when thinking about organisations like eGov. I think eGov has been very successful, working on the supply side for urban areas, which was pretty non-existent before. The team did a fantastic job of gaining the trust of the state at all levels, and understanding the political economy in order to work with the state’s institutions, bureaucrats, and administrators to ensure more efficiency and accountability. But this was done from inside, behind the walls of the state. In James Scott’s book, ‘Seeing Like a State,’ he talks about how the state needs to look after equity, since the market is naturally interested in profit. The main responsibility for maintaining equity on behalf of the samaaj, falls to the state. However, while the state is mandated with the idea of equity, it often is more comfortable with efficiency. This is because efficiency is easy to measure, it is easy to design for, and it is a placeholder for equity. You feel like you’re moving somewhere good when you try to put efficient systems in place.

Scott argues that this is “seeing like a state,” i.e. wanting to organise citizens and issues in a way that is efficient and convenient to deal with. So the impetus is to create visibility for the state, rather than to serve its citizens. Scott describes many experiments, including Le Corbusier’s work, the collectivization of the farms in China, and similar land experiments in the Soviet Union, as examples of actions that were designed to create efficiency for the state, but did not always translate into public benefit. Even with the best of intentions, the way the state sees us is very different from how we would like the state to see us. So the original intention of eGov was to make the state more accountable to the public and to acts of public good. No matter what we achieve from the supply side, if we don’t hold this as a principal value of the work being done, we may end up with negative consequences.

For example, the Grievance Redressal mechanism, even if it’s designed efficiently, unless it actually works on the ground for citizens, it cannot be called a success. It may function beautifully from the state’s point of view, and it makes bureaucrats work more efficiently, since they can process 1,000 complaints at a time instead of just one. However, it may not serve the samaaj well enough or be as focussed on maintaining equity. This is why the lens of the samaaj is crucial for eGov. So now we need to identify the actors within the samaaj who can work with eGov to make sure that all the amazing groundwork they’ve been doing for 16 years gets translated into real public good. This might mean going back to the drawing board, to rethink the designs of some systems that are already in place. They need to be at the centre to figure out what are the challenges for them and how can we redesign to their benefit. While in terms of efficiency, standardizing systems is the most convenient thing to do, in reality these need to serve a diverse group of people. If we’re trying to look at societal platform thinking, where the goal is to address complex societal problems, one of the principles of this is to hold on to and cater to that diversity. This applies to the context of eGov as well. Diversity is at the heart of resilience, so if we want to respect and understand the importance of diversity, especially in a place like India, then we have to be willing to design for that diversity at scale.

Diversity At Scale

When we think of designing for diversity at scale, the challenge is figuring out how to standardize change. Cookie cutter standard mechanisms will kill diversity, but if you believe in diversity as a fundamental principle of good design, then you have to design for diversity at scale. Within the Grievance Redressal mechanism, for instance, the diversity of language has been taken care of, but there may be other contextual, cultural things which we might need to redesign for, to make it effective for both state and citizen.

This is what we’ve tried to do at Pratham Books, where we decided it was time an Indian publisher was able to distribute and democratize the joy of reading. We kept this principle of diversity at scale, to unlock the potential of ordinary people who created a whole reading movement for the children of this country. There are 250 million children in India, the total population of many other countries. So how do we unlock the potential of parents, teachers, writers, illustrators, translators, editors, and storytellers, in order to make a movement? We did this by creating a Creative Commons platform, which allowed everybody to participate, putting a book or a story in every child’s hand.
After I left, the team went on to create other things such as the platform called StoryWeaver, which allows anybody, anywhere in the world to write and publish a story, to translate somebody else’s story, and to illustrate somebody else’s story. Of course, the original has to be acknowledged. Tens of millions of children around the world have benefited by unleashing the imaginations of writers, artists, mothers, fathers, and teachers. But all of this comes from the philosophy that the samaaj must form the base, and the sarkaar and bazaar should not oppress them. Instead, they should unleash the potential of samaaj.

When we think about organisations like eGov, the time has come to shift to the samaaj side and look at eGov’s work from that lens. We need to strive to not see like a state, but like a citizen.

Making invisible water visible

Making invisible water visible

August 10, 2018 | Governance

“The capricious nature of groundwater has resulted in so much exploitation and overuse that we now have a consistent crisis. Presenting a roadmap for groundwater governance and information transparency using technology.”

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New indignation, new alignment

New indignation, new alignment

September 23, 2015 | Governance

Sometimes, it seems as though much of the world is trying to crowd into Bangalore. Hold that thought. At almost seven million, our population in this city is already more than the population of new-age countries such as Ireland, and almost half of that of Chile.

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CSOs: Mirrors, not just handmaidens

CSOs: Mirrors, not just handmaidens

June 4, 2015 | Governance

When a government limits the freedom of NGOs to criticize, as seems to be happening now, it prevents them from doing what it needs them to do. The world over, it is understood that civil society organizations (CSOs) provide checks and balances to counter the unbridled power of the state and any abuse of that power.

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Are you worthy of good governance?

Are you worthy of good governance?

November 1, 2013 | Governance

In a democratic nation state, citizens rely on their elected representatives, together with many public institutions, to help ensure a good quality of life. But when our individual aspirations rise higher than their collective capability, we sense a crisis of governance. Yet governance, no matter how you define it, is about more than government and its institutions. As citizens, we have to co-create good governance, we cannot outsource it and hope to be passively happy consumers. Like everything worth its while, good governance must be earned.

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Anna movement has lost its focus: Hande

Anna movement has lost its focus: Hande

October 14, 2011 | Governance

“I think the Anna Hazare movement for Jan Lokpal Bill was good but the focus got lost somewhere,” said Harish Hande, the 2011 Magsaysay award winner. Hande was speaking at the launch of ‘Uncommon Ground’, authored by Rohini Nilekani, chairperson of NGOs Pratham Books and Arghyam.

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Talk at Seventh Anniversary of Centre for Interdisciplinary Studies in Environment and Development, Bangalore

Talk at Seventh Anniversary of Centre for Interdisciplinary Studies in Environment and Development, Bangalore

August 19, 2008 | Environment

This is a talk Rohini gave at the Seventh Anniversary of Centre for Interdisciplinary Studies in Environment and Development, Bangalore on 19th August, 2008.

“Going forward, my job is to ensure that a lot of people know about the organizations I support, working for environmental issues, especially CISED, with its inter disciplinary approach. And to reach out, best as I can, to the increasing numbers of the seriously wealthy in India, so that they will reach deep into their pockets to make it ever more possible to unravel the fine web of threads that bind us all.”

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