NITI Aayog: POLICY PARALYSIS
V. SRIDHAR
The Planning Commission building in New Delhi. The Centre replaced the Commission with the NITI Aayog.
The Planning Commission was independent India’s first and most important economically significant institution. Ironically, this institution, which was expressly established to provide the young republic with blueprints for building the “temples of modern India”, was the first to be shut down by Prime Minister Narendra Modi after he announced in his first Independence Day address in August 2014 his intention to replace it. Grandiosely named the National Institution for Transforming India (NITI) Aayog, the new institution is a caricature of all that the Planning Commission stood for despite its numerous faults.
The Modi government’s handling of the economy, as indeed its handling of economically relevant information and institutions, reflects not only an unwillingness to deal with reality but an extraordinary level of incompetence. This is particularly shocking because Indian institutions such as the central bank or its statistical bureaucracy have long held their heads high in the world, drawing respect for their high standards of work and competence. In contrast, the NITI Aayog’s conduct with respect to every major issue during the Modi years—from demonetisation to its handling of privatisation to its handling of the self-inflicted crisis of critical economic data—has made it a laughing stock of the world at large. How did things come to such a pass?
Indian economic planning, which is often deliberately and unfairly lampooned by those held in thrall by a neoliberal vision of the world, rested on a simple basic premise: since the diversity of India and its people required a layered approach and since there were resource constraints in a poor country, planning necessarily required a pluralist approach. It was recognised that this required not only a sensitivity to the cause of social justice but a respect for intellectual diversity and a sagacity to deal with criticism.
This was reflected in the composition of the Planning Commission, which included intellectuals of great standing such as P.C. Mahalanobis and Sukhamoy Chakravarty, key architects of India’s early Plans. The precedents set in its early years of incorporating expertise from diverse areas and the demonstrated willingness of the political authority to listen to advice that was only bounded by a loose statement of broad policy objectives meant a rich diversity of opinion.
Moreover, unlike its more diminished replacement, the Planning Commission had enlisted the services of a wide array of experts in order to design the various components of the Five Year Plans. The government, for its part, mostly respected the diversity of opinion because it realised that the experts it enlisted for its various components of the Plans were well regarded in their own fields. Indeed, the credibility of the planning process depended critically on the independence of these experts. For instance, Prof. A. Vaidyanathan, who was associated with the Perspective Planning Division in the Commission, was a widely respected teacher, an expert on irrigation in India and an important participant in some of the most academically important debates on growth and stagnation in Indian agriculture. No scholar with that kind of stature outside the government could be expected to abandon his/her freedom within the government and return to academia with his/her credibility intact. This was appreciated within the government, which understood that if it wanted truly credible advice it needed to cede ground and tolerate contestation.
Thus, the working groups within the Planning Commission operated—again unlike the NITI Aayog—in a fairly transparent manner, often open to public and parliamentary scrutiny. In fact, even when contentious moves were made by the Planning Commission, as for instance, in its endorsement of methodologically controversial estimates of poverty in India, there was room for contestation and dialogue. Nothing like that is possible with the NITI Aayog.
Niti Aayog Vice Chairman Rajiv Kumar (right) and CEO Amitabh Kant.
The NITI Aayog, created in the fashionable image of a think tank, notably lacks in expertise. It is headed by a career bureaucrat, Amitabh Kant, who, appropriately for a corporate-style body, is its Chief Executive Officer. There is also a Vice Chairman, Rajiv Kumar, and four other members, but the bulk of the voting power comes from the ex officio members, mainly Ministers and serving bureaucrats. The very composition and structure of the NITI Aayog poses two grave problems: first, it precludes the possibility of sound independent advice from a genuinely independent external source, and second, it has a severe shortage of competence to give sound advice from within.
Without doubt, these serious shortcomings have been responsible for the conduct and response of the NITI Aayog to every major crisis in the Modi years. There have been plenty of such occasions. It is significant that for a supposedly independent organisation the NITI Aayog has not done a single significant study on the deepening crisis in the countryside, marked, most importantly, by the spectacular collapse of agricultural prices, especially since demonetisation. Indeed, if it has not even raised these vital questions, how can it even be expected to make an attempt at understanding the scale and nature of the problem, let alone formulate a plan to resolve it? Another example: in the face of the growing disease burden and the lack of access to health care, all that the NITI Aayog has is a paper outlining a programme to be established in the much-discredited public-private partnership mode.
Significantly, it has nothing to say on the jobs front, an area of great concern. Yet, the two chief custodians of the NITI Aayog appeared at a press conference in Delhi after they could no longer stay quiet after the employment data were not released but were published in the media. Both Rajiv Kumar and Amitabh Kant waffled in front of the cameras as they got themselves entwined into an indefensible position. First, they claimed that the data were only in a “draft” report, a preposterous claim in its own right because it questioned the very legitimacy of the Statistical Commission. Then they claimed that the data did not include “new” jobs that companies such as Uber and Ola had provided. It was left to much less qualified experts to point out that their ridiculous notion of “new” jobs was methodologically flawed. After all, Uber drivers were also drivers earlier.
Instead of handling the weighty problems that have buffeted the Indian economy, the NITI Aayog has acted in a manner that Nero would have been proud of. True to its positioning as a corporate entity, the NITI Aayog has functioned much like a mid-tier corporate player that conducts inane workshops on leadership skills even as the company is sinking into the quicksand. For instance, after the disastrous large-scale demonetisation of the national currency in 2016, its leadership was off to a quick start singing paeans about the decision. Later, even as the economy entered a phase of rigor mortis , throwing livelihoods to ruin, the NITI Aayog was busy conducting workshops advocating the virtues of adopting digital payment systems. To add to the little mirth that was available during those troubled times, it even conducted a national lottery system of sorts for those using digital payment options. Clearly, the failure to establish an arm’s length between those governing and those supposedly providing “expert” advice proved fatal. The level of competence available from within aggravated matters.
It is plain, in the hindsight of experience over five years, that the NITI Aayog could only have been fashioned by a Narendra Modi. His steadfast refusal to even seek, let alone listen to, sane advice is directly responsible for the disastrous moves he has made in the short time he has had with the economy. Things have come to such a pass that even those who are supposedly his official advisers have lost hope of offering any advice. Instead, they are busy writing limericks or seeking solace in an ancient language.
It is nobody’s contention that the Planning Commission was, at least in its later avatars, a paragon of virtue. But the NITI Aayog will be a difficult act to beat.
BY V. VENKATESAN
THE autonomy of the Election Commission (E.C.) as a neutral institution entrusted with the responsibility of conducting free and fair elections periodically across the country came under severe stress during the five years of the Modi government. The staggering of the 2019 Lok Sabha election in seven phases, on the pretext of providing inputs on mobilisation and deployment of Central police forces, is the latest instance of how the Centre has sought to influence the E.C. to manipulate the electoral process in order to derive undue advantage to the ruling Bharatiya Janata Party (BJP). Assembly elections in Andhra Pradesh, Arunachal Pradesh, Odisha and Sikkim and byelections in some States will be held along with the Lok Sabha election. As the Model Code of Conduct (MCC) for candidates and political parties comes into force immediately with the announcement of the election schedule, the ruling parties at the Centre and in the States generally exhibit a tendency to launch new schemes or projects before that in order to influence the electorate. The MCC bars governments from announcing new schemes or projects after the announcement of the election schedule. As per the code, Ministers cannot combine their official visit with electioneering work or make use of official machinery or personnel to further their party’s prospects.
Although the E.C. could have announced the 2019 Lok Sabha election schedule earlier, it did so only on March 10, giving the Centre the maximum possible time to announce populist schemes.
In 2017, the E.C. delinked the announcement of the dates for the Gujarat and Himachal Pradesh Assembly elections although the votes for both the States were to be counted on December 18, 2017. The then Chief Election Commissioner, A.K. Joti, had defended the delay in announcing the election dates for Gujarat on the grounds that the application of the MCC would have affected the relief and rehabilitation work that was going on in the flood-affected areas in the State. But observers questioned his claim, as the MCC applies only to new projects and not to existing ones.
Chief Election Commissioner Sunil Arora addressing a press conference in New Delhi on March 10.
In January 2018, the E.C. under Joti recommended the disqualification of 20 Aam Aadmi Party (AAP) members of the Delhi Legislative Assembly on the grounds of conflict of interest owing to their holding offices of profit, without providing them an opportunity to defend themselves. The Delhi High Court rescinded the E.C.’s order, directing it to reconsider the case against them. A year after the High Court’s decision, the E.C. is yet to deliver its verdict in the case, giving rise to allegations of its collusion with the ruling party at the Centre for using the pending decision as the sword of Damocles over the AAP MLAs.
Byelections
Similarly, the delay in the announcement of the schedule for byelections to 18 Assembly seats in Tamil Nadu, necessitated by the disqualification of the elected MLAs on the grounds of defection, was attributed to bias. On October 25, 2018, the Madras High Court upheld the Speaker’s disqualification of 18 MLAs, yet the E.C. did not deem it necessary to hold byelections to these seats alongside byelections held elsewhere in the country. It cited flood relief work as the reason.
According to political observers, the reason for postponing the byelections to the 18 seats was the perception in ruling circles that if elections were held before the Lok Sabha election, the ruling All India Anna Dravida Munnetra Kazhagam (AIADMK) would lose its majority in the Assembly. The AIADMK’s electoral alliance with the BJP for the Lok Sabha election has lent credence to this perception.
Byelections will be held for the 18 Assembly constituencies on April 18 along with two other seats that fell vacant after the death of former Chief Minister, M. Karunanidhi and the disqualification of a Minister, Balakrishna Reddy, following his conviction in a case. The E.C. could not announce the schedule for the byelections to Ottapidaram, Aravakurichi and Thirupparankunram because of the election petitions pending against the successful candidates, two of whom (representing Ottapidaram and Aravakurichi) stood disqualified along with the 16 other MLAs. A.K. Bose, the AIADMK MLA representing Thirupparankunram, died on August 2, 2018.
A.K. Joti, former Election Commissioner of India.
Elections will be spread over seven phases in Uttar Pradesh, West Bengal and Bihar. Odisha and Maharashtra will go to the polls during the first four phases. The E.C.’s decision to hold only the Lok Sabha election in Jammu and Kashmir, and not simultaneous Assembly elections, has come in for severe criticism from State leaders. The six Lok Sabha constituencies in the State will vote during the first five phases. Elections in the Anantnag parliamentary constituency will be held in three parts, in phases 3, 4 and 5.
Karnataka, Manipur, Rajasthan and Tripura will vote in two phases, while Assam and Chhattisgarh will have three-phased elections. Jharkhand and Madhya Pradesh will vote in the last four phases.
Andhra Pradesh, Arunachal Pradesh, Meghalaya, Mizoram, Nagaland, Sikkim, Telangana, Uttarakhand, Andaman and Nicobar Islands and Lakshadweep will have one-day election on April 11; Tamil Nadu and Puducherry will have one-day election on April 18; Goa, Gujarat, Kerala, Dadra and Nagar Haveli and Daman and Diu on April 23; Haryana and Delhi on May 12; and Himachal Pradesh, Punjab and Chandigarh on May 19.
Andhra Pradesh, Sikkim and Arunachal Pradesh will have Assembly elections along with the Lok Sabha election on April 11, while Odisha will have Assembly elections along with the Lok Sabha election in four phases on April 11, 18, 23 and 29. Byelections to the 34 vacant Assembly seats in 11 States and Puducherry will be held during one of the seven phases.
On March 17, a high-level selection committee chaired by Prime Minister Narendra Modi cleared the name of the former judge of the Supreme Court, Justice Pinaki Chandra Ghose, to be the first anti-corruption ombudsman, or Lokpal, under the Lokpal and Lokayuktas Act, 2013, notified by the previous government in 2014. That the appointment has been announced after the commencement of the MCC is unlikely to become an issue before the E.C., as the belated move has no potential to influence the electorate. On the contrary, the timing of the appointment, after the Supreme Court had repeatedly prodded the Centre to implement the Act, shows that the government was not sincere about setting up the Lokpal before the expiry of its current term. The Selection Committee met recently to clear Justice Ghose’s name, as the Supreme Court had on March 7 directed the Centre to disclose the date of the committee’s meeting within 10 days.
The biopic on Modi, which is to be released on April 12 with a clear motive to influence the electorate on the eve of the elections, cannot but become an issue before the E.C. The film, PM Narendra Modi , is directed by Omung Kumar, who made Mary Kom and Sarbjit .
CBI: CREDIBILITY CRISIS
V. VENKATESAN
IN 2013, former Chief Justice of India (CJI) R.M. Lodha described the Central Bureau of Investigation (CBI) as a “caged parrot”. He made this comment during a hearing on the coal block scam involving the United Progressive Alliance (UPA) government to suggest that the investigating agency always spoke its political master’s voice. Six years hence, the premier investigating agency finds itself in a cage within a cage, with little scope of the parrot using its so-called professional attributes to reclaim its independence from the executive.
The CBI’s loss of credibility as an institution came about not because of the absence of checks and balances, which have been carefully created and nurtured by Parliament and the Supreme Court over the years. The Central Vigilance Commission (CVC), another autonomous institution enjoying statutory powers, is supposed to supervise the functioning of the CBI. Five years of the Modi regime at the Centre saw the diminution of the CVC and, as a result, the CBI because the persons chosen to head these institutions failed to inspire confidence in terms of their integrity and professionalism.
Alok Kumar Verma, whose tenure was marked by an open confrontation with Rakesh Asthana.
Ranjit Sinha, who was appointed by the UPA as CBI Director, got mired in controversy by lending credence to allegations that he hobnobbed with the accused in the scam cases being probed by the agency. He managed to complete his term on December 2, 2014, although the Supreme Court had indicted him. The High-Powered Committee (HPC), headed by Modi (who assumed office in May 2014) and including the CJI and the Leader of the Opposition, could have considered the adverse material against him to remove him from office earlier but did not do so. The reason the Modi government did not come down heavily on a UPA appointee was that Sinha had overruled his juniors and stopped them from charge-sheeting Amit Shah, now BJP president, in the Ishrat Jahan fake encounter case. The CBI registered a criminal case against Sinha after a Supreme Court-monitored inquiry found him guilty.
Alok Kumar Verma, whose tenure was marked by an open confrontation with Rakesh Asthana.
The tenure of Ranjit Sinha’s successor, Anil Kumar Sinha, was equally controversial. The CBI continued to protect Amit Shah by refraining from appealing against a trial court verdict in December 2014 acquitting him in the Sohrabuddin Sheikh encounter case.
Anil Kumar Sinha. His tenure as CBI Director was highly controversial.
Political influence was allegedly behind the CBI’s downgrading of its lookout circular against the wilful defaulter and liquor baron Vijay Mallya on November 24, 2015, from “detain” to “inform”. This helped Mallya fly out of the country to the United Kingdom on March 2, 2016, just before a court in Bengaluru was set to act against him for defaulting on loans that he had procured from several banks.
On September 2, 2016, the senior bureaucrat B.K. Bansal, 60, former Director General of Corporate Affairs, and his son Yogesh, 31, were found dead at their residence in Madhu Vihar in East Delhi. The suicide notes left behind by them alleged that the CBI had been torturing and humiliating them while investigating a corruption case against Bansal, and that it had abetted the suicide of Bansal’s wife, Satyabala, and daughter, Neha, two months earlier.
In July 2015, a 16-member CBI team, under the pretext of investigating some allegations of misuse of foreign funds, raided the residence and office in Mumbai of the social activist Teesta Setalvad, who has been assisting victims of the 2002 Gujarat pogrom to seek justice.
In September 2015, the CBI raided the then Himachal Pradesh Chief Minister, Virbhadra Singh’s, residences in Delhi and Shimla on the day of his daughter’s wedding, in a case of disproportionate assets against him during his tenure as Minister of Steel in the UPA II government (2009-14).
As Anil Kumar Sinha’s term was about to end on December 2, 2016, the senior CBI officer R.K. Dutta, who was a natural claimant to the post of CBI Director, was transferred to the Ministry of Home Affairs. Dutta was in charge of investigation in the coal allocation and 2G cases. The Supreme Court, which was monitoring the probe into these cases, had directed that no officer associated with the probe could be transferred.
Dutta’s transfer facilitated the appointment of Additional Director of the CBI Rakesh Asthana as Acting Director because the HPC could not find a suitable candidate to be appointed regular Director. Asthana’s brief tenure as Acting Director came to an end on February 1, 2017, when the HPC appointed Alok Kumar Verma as regular Director for the next two years. Mallikarjun Kharge, Leader of the Opposition and member of the HPC, wrote a note of dissent stating that he considered Dutta the most suitable candidate for the post.
The CVC recommended Asthana’s appointment as the CBI’s Special Director, despite Verma submitting at the Selection Committee meeting a secret note that he was unfit for the post. In October 2018, Verma and Asthana openly confronted each other and traded allegations of corruption.
In a midnight operation, the Centre forced Verma and Asthana to go on leave and appointed another officer, Nageshwar Rao, as the CBI’s Interim Director, curiously on the basis of the CVC’s recommendation. The Supreme Court found Nageshwar Rao guilty of contempt of court for defying its orders not to transfer any officials until it decided the case. The unstated reason for Verma’s sudden sacking was that he was inclined to register a first information report on a complaint alleging corruption in the acquisition of 36 Rafale fighter planes by the Indian Air Force.
The Supreme Court restored Verma to his post, but for just a day, as the HPC, which met under the court’s directions, still insisted on his transfer from the CBI. Verma quit in protest.
The HPC’s choice of Rishi Kumar Shukla as the CBI’s new Director, despite a note of dissent by Kharge, bodes ill for the institution’s neutral image and, therefore, credibility.
SUPREME COURT: QUESTION OF PRIMACY
V. VENKATESAN
A perceptive observer of Indian politics once said that during the 21-month period between 1975 and 1977 when Prime Minister Indira Gandhi had declared the Emergency, institutions crawled when the executive merely asked them to bend. The five-year tenure of the Modi government at the Centre did not have to impose the Emergency to demonstrate its might over institutions that are valued for their independence and objectivity. The fact that the dominant party in the ruling coalition had a majority of its own introduced a new chemistry in the relationship between the executive and the judiciary, leaving the concept of judicial independence bereft of any substance.
In 2014, soon after coming to power, the Modi government rejected the recommendation of the Supreme Court’s collegium to appoint the senior advocate Gopal Subramanium as a judge by delinking his name from the other recommendees whom it appointed. The then CJI, R.M. Lodha, protested against the delinking of the collegium recommendations by the Centre, but to no avail. Thanks to Subramanium withdrawing his candidature, the Supreme Court avoided a major embarrassment to itself.
Although Subramanium’s suitability to become a judge of the Supreme Court was not in doubt, the Centre resisted his elevation mainly because he had played a role as amicus curiae in persuading the Supreme Court to direct the CBI in 2010 to investigate the Sohrabuddin fake encounter case in which Amit Shah, then a Gujarat Minister, was an accused. The CBI probe led to Amit Shah’s arrest in July 2010. Again, thanks to Subramanium’s efforts, the Supreme Court externed Amit Shah from entering Gujarat for two more years in October 2010 before granting him regular bail.
At the farewell ceremony for Chief Justice of India Dipak Misra (right), Justice Ranjan Gogoi (left), who took over as the Chief Justice of India, and Justices A.N. Sikri (second from left) and Kurien Joseph, in New Delhi on October 1, 2018.
The NDA government at the Centre wasted no time in enacting the National Judicial Appointments Commission (NJAC) Act in order to arrogate to itself the power over judicial appointments and transfers from the Supreme Court-led collegium.
In October 2015, a Constitution bench declared the Act unconstitutional. In December 2015, the bench directed the Centre to draft a revised memorandum of procedure (MoP) for appointing judges of the High Courts and the Supreme Court, to ensure greater transparency and efficiency in the collegium’s functioning.
Yet, the Centre, despite many letters from the collegium, took no effort to finalise the revised MoP, leaving the appointment process to continue under the old MoP. Meanwhile, the number of judges’ vacancies in the High Courts and the Supreme Court multiplied, contributing to an alarming rise in the pendency of cases. Former CJI T.S. Thakur publicly wept over the Centre’s failure to fill the vacancies of judges in accordance with the collegium’s recommendations.
Successive CJIs, namely, T.S. Thakur, J.S. Khehar (who headed the Constitution Bench in the NJAC case), Dipak Misra and Ranjan Gogoi, preferred to deal with the Centre’s intransigence on the MoP administratively, rather than judicially, which would have required issue of a notice of contempt to the Centre. The Centre insisted on certain clauses that gave primacy to it in decision-making on appointments on the grounds of national security. The collegium refused to yield on this issue as it would have compromised judicial independence, which was the reason why it had quashed the NJAC earlier.
The Centre sat on the reiterated recommendations of the collegium until the latter’s composition changed owing to the retirement of incumbent judges. A change in the composition of the collegium resulted in the reconsideration of a pending recommendation, and its decision to drop it, if the Centre disagreed with it. Under the MoP, if the collegium reiterates a recommendation returned to it for reconsideration by the government, it is binding on the government. In practice, however, the government has found a way to circumvent this requirement by simply sitting on a reiterated recommendation. Some crucial transfers of judges of the High Courts were not effected this way, because the Centre disagreed with the collegium’s decisions.
The government delinked the collegium’s recommendations again when it appointed the senior advocate Indu Malhotra in April last year without elevating the Chief Justice of the Uttarakhand High Court, Justice K.M. Joseph, to the Supreme Court. When the collegium reiterated its recommendation on Justice K.M. Joseph, after a huge uproar, the Centre appointed him in August last year but did not yield to the collegium’s insistence that he be given seniority over two other judges, namely Justice Indira Banerjee and Justice Vineet Saran.
The brewing crisis in the Supreme Court came out into the open when the four senior judges—Justices J. Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurian Joseph—held a press conference on January 12, 2018, alleging that democracy was in danger with the then CJI, Dipak Misra, assigning sensitive cases to preferred benches of his choice as the Master of the Roster. The judges hinted that the government was seeking to influence the court through the CJI. One year after that press conference, even after the assumption of office as the CJI by Justice Ranjan Gogoi, observers of the court still wonder whether anything has changed at all.
Meanwhile, the Modi government was sitting pretty and managed to circumvent landmark judgments of the court. Although the court had declared the requirement of Aadhaar for mobile connections and bank accounts unconstitutional, the Centre sought to amend the Aadhaar Act in order to allow individuals to “voluntarily” offer biometric identity as a means of verification for obtaining services. By issuing a notification to enable snooping of citizens by government agencies, the Centre sought to bypass another landmark judgment of the court declaring privacy as a fundamental right.
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