Category: Democracy & Governance

  • The Democratic Warrior – Countering Unrestricted Violence with Clausewitz

    The Democratic Warrior – Countering Unrestricted Violence with Clausewitz

    This research paper was originally published in the “African Journal of Terrorism and Insurgency Research (AJoTIR)”, Volume 2, Number 1, April 2021. Pp. 89-106.

     

    Abstract

    We often find the application of indistinctive, brutal and extraordinary violence by all fighters and soldiers in terrorist, insurgency, and counter-insurgency acts in Africa. This article argues that we need a code of honour for those bearing arms to limit these unrestricted acts of violence, a code of honour that combines military duties with the demands of civil society in the model democratic warrior. The changes to the global system that followed the end of the Cold War are widely regarded as requiring a different kind of soldier for democratic societies. A number of writers have proposed that the new model should be that of the “warrior,” a concept that highlights the psychological and social distinctiveness of those who bear arms. Such men and (rarely) women are often conceived as operating according to a distinctive code of honour that sets them apart from civil society, usually in a positive way. But we know that the concept of honour may also lead to a terrible escalation. So, the task is to reconnect the concepts—warrior and honour—to civil society to de-escalate the ongoing brutal violence in civil wars. There is no honour in killing innocent people. On the contrary, it is perhaps the most egregious act against one’s honour and dignity to torture, violate, or kill the innocent. The concept of the democratic warrior seeks to reinstate honour and dignity to those bearing arms.Keywords: democracy, warrior, civil society, civil war, honour, dignity, terrorism, Clausewitz, wondrous trinity, containing violence.

    Introduction

    At first glance, the concept of the democratic warrior appears contradictory. Indeed, it combines seemingly conflicting value systems in a single concept. Like a magnet or Clausewitz’s favoured model of the unity of polar opposition between attack and defence, a methodology can be formulated to explain how this type of conflicted unity is not necessarily a logical opposition and can be a dynamic interrelationship on a continuum. At one end of the continuum is democratic equality and non-violent conflict resolution, while at the other end is the threat of (and sometimes) violently enforced limitation of war and violence; at one end is a civilized society, while at the other is a subsystem of society whose identity is defined by martial honour.

    The decisive bond that can link the two poles of this dynamic relationship, without eliminating their opposition, is the classical republican virtues, which can lay claim to relative validity in both spheres. Since Plato, the classical virtues have been prudence (wisdom), justice, fortitude, and temperance. Without a specific ethos aimed at the political functioning of the polity, a state can sustain itself only under the conditions of a dictatorship. If republican virtue, which is oriented toward the polity, cannot be directly reconciled with liberal democracy and its focus on the individual, it can take on a completely new significance as a bond linking a democratic society to democratic warriors. For Machiavelli, republican virtue already guarantees both external and internal freedom. In this respect, the necessary though not yet adequate condition of the democratic warrior is to also be a republican soldier. Add to this the limitation of war and violence in a global society to make democratic societies possible. A renewal of the republican virtue is the link between a liberal-democratic society and a warrior ethos.

    The “warrior” is by definition someone who chooses to bear arms and is proficient in their use. In this sense, whatever the distinctive characteristics of the warrior ethos, its institutionalization reflects the same preferences for professionalism, expertise, and individualism that are characteristic of modern society as a whole. Contemporary conditions, it is argued, no longer call for armed masses, but for experts whose willingness to serve in uniform will allow others the freedom not to serve.

    It must be admitted, however, that the concept of the warrior does not call forth associations with modernity, but rather of the “archaic combatant” (Röhl 2005), whose ethos, skills, and experiences set him apart from normal society and in opposition to its basic values, of which the most cherished is, of course, peace. The fact the warrior freely chooses his profession may be consistent with democratic values, but the existence of a “warrior class” uniquely skilled in the use of force, whose values are not those of society as a whole, is scarcely consistent with democratic interests. It is also true that those who serve in today’s democratic armies are called upon to do a great deal more than fight. Although phrases like “armed social worker” undervalue and denigrate the martial qualities that remain foundational to military life, it is true that only a small percentage of men and women in uniform actually fight, and that their duties entail a wide range of activities in which violence plays no part. To those who wish to uphold the warrior spirit, the diverse requirements of modern military missions are liable to hold scant appeal, which may undermine the sense of purpose and identity that drew them to the profession in the first place.

    The discussion that follows seeks to build a bridge between the distinctive ethos of the warrior and the moral and political requirements of democratic societies, using the concept of the “democratic warrior.” It seeks to do justice to the self-image of those who bear arms (a morally distinctive task) while connecting it to the various goals and practices of democratic societies, and the diverse uses to which they put their armed forces. We may begin by noting that a warrior, even in the most traditional terms, is not merely a combatant—a fighter—but has always performed and embodied a range of social, military, and political roles. Our starting point for considering what those roles must be is Clausewitz’s concept of the trinity, a metaphor intended to encompass all types of war, which, by extension, can provide a lens through which the ideal range of characteristics required of the democratic warrior can be envisioned. War itself, as Clausewitz avers, is compounded of primordial passions, an irreducible element of chance, and what he called an element of “subordination” to reason, by which its instrumental character is revealed. When Clausewitz set forth his trinity, he posited that the chief concern of the warrior must be the mastery of chance through intelligence and creativity; and so it remains. Yet there is no reason to suppose that such mastery means that war’s social and political requirements should be ignored. On the contrary, unless they too are mastered, the warriors sent forth by democratic societies cannot represent the values and interests of the communities that depend on them, and of which they remain apart (Herberg-Rothe 2007).

    Soldiers and Warriors

    In both German and English, the word “soldier” (soldat) originally referred to a paid man-at-arms. The term became common in early modern Europe and distinguished those who were paid to fight— primarily in the service of the increasingly powerful territorial states that were then coming to dominate the continent—from members of militias, criminal gangs, volunteer constabulary and local self-defence forces, and other forms of vernacular military organizations. The rise of the soldier was linked to the rise of the state. This connection distinguished him from the “mercenary,” who also fought for pay, but as a private entrepreneur, what we would today call a “contractor.” Standing armies comprised of soldiers were different from and militarily superior to, the feudal hosts of the past, whose fighters served out of customary social obligation and generally possessed neither the discipline nor the martial proficiency that the soldier embodied. Clausewitz highlights these developments briefly in the last book of On War, and portrays them as an advance in political organization and military efficiency (Clausewitz 1984, 587-91).

    The absolute monarchies that made the paid soldier the standard of military excellence in early modern Europe were generally indifferent to the social and political identities of those they paid to fight, though not always. Frederick the Great, for instance, lamented his reliance on foreign troops and believed that his own subjects made better soldiers. “With such troops,” he wrote, “one might defeat the entire world, were not victories as fatal to them as to their enemies” (quoted in Moran 2003, 49). It was, however, only with the French Revolution that a firm expectation was established that a soldier bore arms not merely for pay, but out of personal loyalty to the state, an identity that was in turn supposed to improve his performance on the battlefield. This connection, needless to say, was largely mythical. Most of the men who fought in the armies of the Revolution, and all major European wars since then, are conscripts who would not have chosen to bear arms on behalf of the state if the law had not compelled them to do so. Nevertheless, submission to conscription was itself regarded as an expression of the ideal of citizenship, a concept that, like honour, depends upon the internalization and subjective acceptance by individuals of norms arising within the larger society.

    The French Republic never referred to its soldiers as conscripts, always as volunteers. The success of its armies and those of Napoleon, although transient, insured that “defence of the Fatherland [became] the foundation myth of modern armies”(Sikora 2002). The myth of voluntary sacrifice by the “citizen-soldier” to defend the community proved central to the legitimization of conscript armies, even in societies where democratic values were slow to emerge. In the middle of the nineteenth century, as Frederick Engels observed, conscription was Prussia’s only democratic institution (Frevert 1997, 21).

    It had been introduced in reaction to Prussia’s defeat by Napoleon, whose triumph was owed to the fact that the resources of the entire French nation were at his disposal. The aim of the Prussian military reforms was to accomplish a similar mobilization of social energy for war, but without inciting the revolutionary transformation of society that had made such mobilization possible in France. Prussia was no sovereign nation of citizens, and while the reform of its armed forces helped it to regain its position among the leading states of Europe, their political effect was limited.

    Many of those who promoted reform, including Clausewitz, hoped conscription would contribute to the democratization of Prussia’s armed forces, and, indirectly, of society as a whole. But the moral influence could as easily run the other way, and, as Friedrich Meinecke observed, measures designed to bind army and society together had the effect, in Prussia, of militarizing society instead. Even the Great War did not fully succeed in stripping war of its moral glamour. The supposedly heroic massacre of German troops attacking the British at Langemarck (1914), for instance, remained a staple of right-wing mythology until the end of the Third Reich, by which “our grief for the bold dead is so splendidly surpassed by the pride in how well they knew how to fight and die (Hüppauf, 1993, 56). Alongside this kind of blood-drenched nostalgia, the industrialized warfare exemplified by battles like Verdun (1916) also asserted themselves. Under these circumstances, fighting and dying well acquired some of the aspects of industrialized labour, in which a soldier’s duty expresses itself, not through the mastery of chance as Clausewitz proposed, but through submission to what Ernst Jüngercalled “the storm of steel.”

    It was only after World War II that German soldiers became authentically democratic citizens in uniform. According to Wilfried von Bredow, the creation of the Bundeswehr in 1956 was “one of the Federal Republic of Germany’s most innovative and creative political reforms, fully comparable in its significance to the conception of the social market economy” (Bredow 2000). Its evolution as an integral part of German society has embodied a calculated break with the German past, one that has become even more apparent since the demise of the Soviet Union has shifted the mission of the German army away from national defence and toward expeditionary operations calculated to help maintain regional and global order. As the conscript armies of the past have given way to the professional and volunteer armies of the present, in Germany and elsewhere, the model of the democratic “citizen in uniform” has once again been required to adapt to new conditions.

    It is perhaps slightly paradoxical that as wars have become smaller and more marginal in relation to society as a whole, the ideal of the warrior as an apolitical professional fighter has regained some of its old prominences. Such individuals are thought to embody values different than those of society as a whole, to the point where their loyalties, like their special capabilities in battle, are thought to spring solely from their organization and mutual affiliation. John Keegan, a proponent of the new warrior, explains the rejection of the values of civil society in terms of the psychological impact of violence on those who experience and employ it. War, Keegan argues, reaches into the most secret depths of the human heart, where the ego eliminates rational goals, where pride reigns, where emotions have the upper hand, and instinct rules. One of Keegan’s models of the warrior is the Roman centurion. These officers were soldiers through and through. They entertained no expectation of rising to the governing class, their ambitions were entirely limited to those of success within what could be perceived, for the first time in history, as an esteemed and self-sufficient profession. The values of the Romans professional soldier have not diminished with the passage of time: pride in a distinctly masculine way of life, the good opinion of comrades, satisfaction in the tokens of professional success, and the expectation of an honourable discharge and retirement remain the benchmarks of the warrior’s life (Keegan 1995, 389-391).

    The enthusiasm of Keegan and others for the revival of the warrior ethos is the belief that “honour” can play an important role in limiting violence, far more effective than the proliferation of legal norms that lack the binding psychological validity required to stay the hand of those who actually take life and risk their own. Warriors use force within a customary framework of mutual respect for one another. This is part of what has always been meant by “conventional warfare”, a form of fighting that necessarily includes a dissociation from combatants considered to be illegitimate. How and whether these kinds of customary restraints can be successfully reasserted under contemporary conditions is one of the central problems with which the concept of the democratic warrior must contend. In opposition to Keegan, I think, that the warriors’ code of honour must be related back to civil society, although this is a task which requires bridging a gap and remains a kind of hybrid.

    Old and New Wars

    To judge what kind of “weapon carrier” will be needed in the twenty-first century, we must begin by looking at developments since the end of the East-West conflict. It has proven, broadly speaking, to be a period of rapid social, political, and economic development whose outstanding characteristics are marked by the decline or disappearance of familiar frameworks and inherited values. Thus, one speaks of denationalization, de-politicization, de-militarization, de-civilization, de-territorialization, and delimitation.

    Unsurprisingly, these changes are also supposed to be marked by “new” wars, characterized by the decline of statehood, the rise of privatized violence, the development of civil war economies, and the reappearance of types of combatants thought to be long gone— mercenaries, child soldiers, warlords, and so on. The new types of combatants are in turn associated with rising incidences of suicide bombing, massacre, and other forms of atavistic and irrational violence(Kaldor 1999, Münkler 2004).

    Political and academic discourses have produced a range of new concepts designed to capture these conditions, including privatized war, asymmetrical warfare, small wars, wild wars, low-intensity conflict, post-national wars; wars of globalization on the one hand, and of “global fragmentation” on the other. It is apparent, however, that each of these terms describes only one segment of a complex reality. To some extent, a new type of war is being discovered with each new war. At the same time, these different terms share a common assumption that war now consists mainly of conflicts involving non-state actors on at least one side, and, by extension, that the motivation and goals of such belligerents are likely to prove unfathomable in political terms. The result for some is an approaching anarchy (Kaplan 1994), whose remedy is a revived liberal interventionism, the only principle that seems able to guarantee a modicum of global order (Münkler 2007).

    It is possible, however, that the contemporary diffusion of conflict beyond the confines of the state system is no more than a transitional phase, with particular strong links to those parts of the world—Africa and Central Asia above all—where the challenges of post-imperial social and political adaptation are still especially pronounced. Neither does the fact that the parties to war are non-state actors necessarily mean that such wars lack a political or ideological basis. Such wars may not represent a clash between order and anarchy but between competing conceptions of order (Münkler 2004). While a revived interventionism may indeed be a suitable antidote to anarchy, it is unlikely to do more than aggravate indigenous conflicts over the politics of order – and as it seems at present, it is contributing to the escalation of violence throughout the world. Now, as in the past, violence is not simply a source of disorder. It is also a means of shaping order and providing the basis for community formation.

    It is possible to wonder, in other words, how new the “new wars” actually are. Widespread atavistic and vernacular violence were already prominent features of the Chinese civil war, the Russian civil war, the Armenian genocide, and many other episodes of “old wars”. Those who favour the concept note a number of formal changes that resulted from the disappearance of Soviet-American rivalry, above all a decline in external assistance. The proxy wars of the past have become the civil wars of the present, conducted by parties that must rely on their own efforts to obtain the necessary resources, including illegal trafficking in diamonds, drugs, and women; brutal exploitation of the population; extreme violence as a way of attracting humanitarian assistance that can then be plundered; and the violent acquisition of particularly valuable resources (robber capitalism). These changes may well amplify the social consequences of violence, but do not necessarily deprive it of its instrumental and political character (Schlichte 2006).

    The point of departure for the study by Isabelle Duyvesteyn, for example, is a very broad definition of politics based on Robert Dahl: “any persistent pattern of human relationship that involves, to a significant extent, power, rule or authority” (Duyvesteyn 2005, 9). Duyvesteyn refers especially to the fact that in the fast-developing states she has studied, the differences between economics and politics are not as clear cut as Westerners expect. Struggles that seem to be about the acquisition of resources can be motivated by power politics to obtain a separate constituency. Because the position of power in these conflicts is often determined by the reputation of the leader, what may appear to be personal issues can also be incorporated into a power-political context. Her hypothesis is not that economically, religiously, ethnically, or tribally defined conflicts are masks for politics, but rather that these conflicts remain embedded in a political framework that is understandable to the participants.

    It is also apparent today’s civil wars do not always trend irrevocably toward social and political fragmentation, becoming increasingly privatized until they reach the smallest possible communities, which are held together by only violence itself. The defeat of the Soviets in Afghanistan, for instance, gave rise to a civil war between warlords and individual tribes that appeared to be tending in this direction for a time, only to acquire a new and recognizably ideological shape once the Taliban seized power. This new tendency was confirmed by the Talibans’ willingness to give shelter to al-Qaeda, a global and trans-national organization of almost unlimited ambition, whose attacks upon the United States have in turn embroiled Afghanistan in a conflict about the world order pitting the West against militant Islam. At present, we witness in “Sahelistan” a similar development, but this is not confined to a single state, but to the whole region.

    At a minimum, it seems clear that the new wars, to the extent that they are new, are not all new in the same way. In some, violence does indeed appear to gravitate downwards towards privatized war; in others, however, the movement is upwards, towards supra-state wars of world order. Although these trends are linked in practice, analytically they are distinct. States do still wage wars, but for the most part, they are now doing so not in pursuit of their own particular interests but for reasons related to world order. This is what accounts for the new interest in an American empire and hegemony (Walzer 2003). Nor is America the only state capable of seeking and exercising global influence.

    Russia, China, India and Europe (whose superficial fragmentation masks its concerted economic, regulatory and power-political influence) are all capable of challenging American influence in particular spheres of activity; and one day they may do so in all spheres (Zakaria 2009). In any event, the use of force by strong states in pursuit of world order, whether cooperatively or competitively, is likely to remain the dominant strategic reality for some time to come; a fact that should not be obscured by the simultaneous proliferation of privatized violence on the periphery of the world system.

    Clausewitz’s Trinity as a Coordinate System

    The argument about the newness of new wars is also an argument about the continuing salience of Clausewitz’s understanding of war as, in his words, a “wondrous trinity,” by which primordial violence and the exigencies of combat may finally be subjugated to reason and politics. It is apparent, however, that while the proportions of these three elements may vary, a good deal nowadays, perhaps more so than in some periods in the past, they do not escape the theoretical framework that Clausewitz established. At the same time, his trinity points us towards the essential characteristics of the “democratic warrior,” whose success requires that he masters the multiple sources of tensions that Clausewitz detected in the nature of war itself.

    Clausewitz’s trinity present war as embodying three elements in constant tension with each other: primordial violence, the fuel on which war feeds; the fight between two or more opponents, by which violence is given military effective form; and the community, whose interests, as represented by policy, give war its purpose, and whose existence provides the soldier with his essential identity: as one who fights for something larger than himself. The shifting proportions among these elements that modern war continues to display would not have surprised Clausewitz. On the contrary, he knew that all three would always be present in every war and that a “theory that ignores any one of them . . . would conflict with reality to such an extent that for this reason alone it would be totally useless” (Clausewitz, On War, 1984, 89; see Herberg-Rothe 2007). Each requires exploration if the characteristics of the democratic warrior are to be understood.

    Violence and force

    The most crucial polarity in Clausewitz’s trinity is between the instrumentality of war and the autonomy of violence. Clausewitz noted the tendency of violence to become absolute, and therefore an end in itself, a tendency that was restrained both by the instrumental rationality of policy and, less obviously perhaps, by the skill of the combatants. Clausewitz also notes the paradoxical influences that can attend the use of force at a distance. If combatants are separated from each other in space and time, it may promote relative rationality in the use of force; or it may not, since it introduces the disinhibiting influence of impersonal killing, in which the humanity of the opponent is no longer perceived. Fighting “face-to-face” demands personal aggressiveness and even hatred, which can lead to increasing ferocity in the use of force. At the same time, however, it may make it easier to perceive the opponent as human. A similarly paradoxical logic may arise from the use of expensive weapons versus simple ones. Expensive weapons systems and the highly trained combatants required to use them can lead to a certain limitation of war because these cannot be so easily risked (as was the case, he argued, in the wars of the 18th century). In contrast, wars waged by relatively unskilled combatants employing cheap and simple weapons may be more likely to escalate – as is evident from many of the civil wars in Africa, particularly with child soldiers.

    The Fight

    The most basic reason that the violence of war is prone to escalate is that combatants share a common interest in not being destroyed. In most other respects, however, their interaction is asymmetrical, most profoundly so, as Clausewitz says, in the contrasting aims and methods of attack and defence, which he avers are two very different things. The shape of combat is also influenced by whether war is directed against the opposing will (in effect, a war to change the adversary’s mind)or if it aims at his “destruction.” Clausewitz specifies that by the destruction of the opposing armed forces, he simply means reducing them to such a condition that they can no longer continue the fight. Nevertheless, Clausewitz long favoredNapoleon’s approach to warfare, which emphasized direct attack against the main forces of the enemy. Other forms of fighting are also possible, however, whose aim is to exhaust the enemy’s patience or resources indirectly, rather than confront and defeat his armed forces in the field. The real war, in Clausewitz’s days and in ours, is generally a combination of direct and indirect methods, whose proportions will vary with the interests at stake and the resources available.

    Warring Communities

    When referring to warring communities, we must first differentiate between relatively new communities and those of long-standing. This is because in newly constructed communities, recourse to fighting is liable to play a greater relative role in its relations with adversaries; whereas, in the case of long-standing communities, additional factors come into play. Clausewitz argues that the length of time a group of communities has existed significantly reduces the tendency for escalation because their long-standing interactions will include elements other than war, and each party envision the other’s continued existence once peace is made, a consideration that may moderate the use of force.

    War’s character will also vary depending on whether it aims to preserve the existence of a community or, as in revolutionary crises, to form a new one; whether war is waged in the pursuit of interests, or to maintain and spread the values, norms, and ideals of the particular community (see Herberg-Rothe 2007). Closely related to this contrast, although not exactly congruent with it, is the question of whether the purpose of war lies outside itself or, especially in warring cultures, whether the violence of the fight has independent cultural significance. The social composition of each society and the formal composition of its armed forces (regular armies, conscripts, mercenaries, militias, etc), play an important role here. Summarizing these fundamental differences yields the coordinate system of war and violence shown in the diagram.

     

    Every war is accordingly defined in terms of its three essential dimensions: violence, combat, and the affiliation of the combatants with a community on whose behalf the combatants act. Historically, these three tendencies within the “wondrous trinity” display almost infinite combinations and multiple, cross-cutting tensions since every war is waged differently. Thus, every war has symmetrical and asymmetrical tendencies, for instance, even when it may appear that only one of these tendencies comes to the fore (Herberg-Rothe 2007).

    The tension between the coordinates of Clausewitz’s trinity may also be heightened by different forms of military organization. Those that feature strict hierarchies of command are perhaps most conducive to the transmission of political guidance to operating forces; whereas what is today called network-centric warfare is characterized by loose and diffuse organizational structures, in which the community’s political will and mandate can no longer be so readily imposed on combatants directly engaged with the enemy. As in the warfare of partisans, networked military organizations place a high value on the political understanding of the individual soldier. It is because of the relative independence of soldiers in network-centric warfare that this type of warfare does not require an “archaic combatant,” but a democratic warrior who has fully internalized the norms of the community for which he fights.

    The Democratic Warrior in the Twenty-first Century

    Even in Clausewitz’s day, war was not the only instrument of policy that state’s possessed, though it was undoubtedly the most central. Today, its centrality is less obvious, even as the complexity of its connections to other forms of state power has increased (Thiele 2009). Combining the different perspectives afforded by foreign, economic, developmental, judicial, domestic, and defence policy permits a global approach to conflict resolution while making the considerations surrounding the use of force more complicated than ever. States now pursue their security through many avenues at once, and all the agencies involved must consciously coordinate, connect, and systematically integrate their goals, processes, structures, and capabilities.

    Given the continuing expansion of the concept of security in recent years, a democratic army needs a specific task and function since its essential purpose—the use of force—can not be dispensed with. There have been those who thought it might be. When the East-West conflict ended, Francis Fukuyama announced the “end of history,” meaning an end to the practice of war and violence (Fukuyama 1992). The triumphant advance of democracy and free markets seemed unstoppable, to the point where it appeared as if the twenty-first century would be an age defined by economics and thus, to a large extent, by peace. These expectations have now been decisively overturned by ongoing massacres and genocide in Africa; by the return of war in Europe (as happened in the former Yugoslavia); by the September 11, 2001 attacks on the United States and, the subsequent wars in Afghanistan and Iraq; the war between Georgia and Russia over South Ossetia in 2008, the civil war in Syria and Iraq and finally the prospect of war to suppress Iran’s nuclear program (itself a profoundly dangerous and destabilizing step, should it become reality).

    In a complete reversal of Fukuyama’s thesis, a struggle against a new brand of Islamic totalitarianism appears to have begun, in which violence has become “unbounded”—because terrorist attacks are potentially ever-present because no end to them is in sight and there is no reason to assume there is any limit to the scale of violence terrorists might employ, including the use of nuclear weapons should they come to possess them. These processes of growing disinhibition must be countered by a new containment policy that limits the expansion of war and violence in the world.

    Two basic assumptions underlie this conception. The first is that the escalation of violence in world society is so multifaceted and differentiated that a single counter-strategy will not suffice. Rather, an overarching perspective is required to decide which measures are suitable in individual cases—without being able to exclude the possibility of terrible errors and miscalculations. The second assumption is that in today’s global society—as has been the case throughout history—many contrary processes are at work. Thus, regard for only one counter-strategy can have paradoxical, unanticipated consequences.

    This can be clarified using the example of democratization. If a general effort at worldwide democratization was the only counter-strategy against the disinhibition of violence and war, the results would almost certainly be counterproductive, not least because the spreading of democracy might itself be a violent process. A one-sided demand for democratic reform without regard for local conditions might, in individual cases, contribute to the creation of anti-democratic movements. The historical experience bears this out. After the First World War, nearly all of the defeated states underwent an initial process of democratization under the tutelage and supervision of the victors. Yet, almost all ended in authoritarian or even totalitarian regimes.

    Thus, the concept of the democratic warrior is not based on imposing democracy by force, but on limiting war and violence to enable the organic development of democratic self-determination. A differentiated counter-strategy of curbing war and violence in the world, with a view to fostering good governance (as a first step toward democratic governance), is the common element shared by humanitarian intervention and the development of a culture of civil conflict management. To this must be added measures to limit the causes of war and violence, such as poverty, oppression, and ignorance. Last but not least, this new form of containment requires effective restraint not just in the proliferation of weapons of mass destruction, but also of small arms, which continue to kill far more people than any other kind of arms.

    The containment of violence does not mean there will be entirely non-violent societies, much less a non-violent world society, in the foreseeable future. All else aside, the goal of completely eliminating violent conflict would ignore the fact that historically speaking, conflicts and their resolution have often furthered human development toward free and democratic ideals—as per the American struggle for independence and the French Revolution. The primary task of politics in the twenty-first century is therefore to radically limit violence and war so that non-violent structures and the mechanisms of the “social world” can have an impact. In this context, democratic warriors have a unique role to play; not as those who impose democracy by force, but as those who make diverse forms of culturally authentic self-determination possible, by curbing and containing war and violence.

    Conclusion

    It must be repeated, the concept of the democratic warrior appears to be contradictory. Indeed, it combines contradictory value systems in a single concept. Nevertheless, to adopt the metaphor favoured by Clausewitz (Herberg-Rothe 2007), the elements of tension in the democratic warrior’s identity can be conceived as the poles of a magnet, whose mutual opposition is not an illusion but is nevertheless a means to a larger, unitary end. It is what creates the magnet: the north pole of a magnet cannot exist alone. At one end of the continuum of the democratic warrior’s identity lies the values of democratic equality and non-violent conflict resolution; at the other, the realization that force itself may sometimes be necessary to limit war. At one end, is a civilized society, and at the other a subsystem of that same society, whose identity is defined by traditional concepts of honour and martial valour.

    As observed at the beginning of this essay, the bonds that link the two poles of this relationship, without eliminating their opposition, are the classical republican virtues, which lay claim to validity in both spheres. It was Plato who defined the classical virtues as intelligence, justice, fortitude, and temperance, which is also are characteristics in the Confucian tradition (Piper 1998 concerning Plato). Without them, a state can sustain itself only under dictatorship. With them, both external and internal freedoms are possible (Llanque 2008). They are the keys to the democratic warrior’s identity, providing the crucial link between the values of liberal-democratic society and those other values—courage, loyalty, self-sacrifice—that have always set the warrior apart.

     

     

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    Moran, Daniel (2003), “Arms and the Concert: The Nation in Arms and the Dilemmas of German Liberalism,” in The People in Arms: Military Myth and National Mobilization since the French Revolution, ed. Daniel Moran and Arthur Waldron(Cambridge: Cambridge University Press).

    Münkler, Herfried (2004), The New Wars (New York: Policy). Münkler, Herfried (2007), Empires (Cambridge:Polity Press).

    Pieper, Josef (1998), Das Viergespann—Klugheit, Gerechtigkeit, Tapferkeit, Maß (Munich: Kösel).

    Röhl, Wolfgang (2005), “Soldat sein mit Leib und Seele. Der Kämpfer als existenzielles Leitbild einer Berufsarmee in EinJob wie jeder andere. Zum Selbst- und Berufsverständnis von Soldaten, ed. Sabine Collmer and Gerhard Kümmel (Baden-Baden:Nomos, 2005) 9–21.

    Schlichte, Klaus (2006), “Staatsbildung oder Staatszerfall. Zum Formwandel kriegerischer Gewalt in der Weltgesellschaft,In: ”Politische Vierteljahresschrift 47, no. 4.

    Sikora, Michael (2003), “Der Söldner,” in Grenzverletzer. Figuren politischer Subversion, ed. Eva Horn, Stefan Kaufmann, and Ulrich Bröckling (Berlin: Kulturverlag Kadmos, 2002).

    Thiele, Ralph (2009), “Trendforschung in der Bundeswehr”. In: Zeitschrift für Sicherheits- und Außenpolitik 2, 1–11.

    Walzer, Michael (2003), “Is there an American Empire?” In: Dissent Magazine 1 (2003), URL; http://www.dissentmagazine.org/menutest/archives/2003/fa03/walzer.htm  last accessed 16. 4. 2020.

    Zakaria, Faared (2009), The Post-American World (New York: W. W. Norton).

     

  • Online Justice and the Pandemic: Impact on Procedure

    Online Justice and the Pandemic: Impact on Procedure

     

    Abstract

    The move towards digitization of the judiciary and the adoption of video-conferencing preceded the pandemic. However, the pandemic has necessitated their mainstream adoption. While Indian courts have been prompt in issuing their SOPs, these have been inadequate due to their non-implementation and the inability of traditional legal tools to address unprecedented procedural issues, emerging from the mainstreaming of video conferencing.

    Firstly, there are due process concerns, centred around inadequate hosting platforms, sub-standard organizational practices, inefficient ancillary processes, and non-inclusive technical requirements. Secondly, there is a lack of accountability and transparency because of derogation from the rule of open court, without any effective alternative measures. Thirdly, there are privacy concerns as regards unauthorized participation, the secrecy of data exchanged, and commercial exploitation of data.

    Adopting a design-based approach not only addresses areas conventional legal tools can’t, but also improves efficiency and automates compliance. To this end, several technological and organizational design changes are suggested that can be made to effectively address emerging procedural issues.

    Keywords: online justice, virtual courts, pandemic, design-based approach, digitization, standard operating procedure.

     

    Introduction

    The unprecedented COVID-19 pandemic has necessitated social distancing to be the norm. To this end, courts, across the world, have started resolving disputes through virtual conferencing. While limited physical hearings with rigorous rules have commenced,[i] our courts have limited infrastructural capacity to house adequate daily hearings. Additionally, the surge in COVID-19 cases and the wait for a vaccine mean that virtual conferencing is nevertheless here to stay. The pandemic has decreased the average disposal rates of high courts by 50% and subordinate courts by 70%,[ii] with pendency in the Supreme Court increasing by 3,287 cases.[iii]

    Therefore, at this point, it is opportune to realize that the revolutionary potential of virtual courts can help improve judicial efficiency. Apart from facilitating remote access to justice, virtual courts are cost-effective and time-effective, reduce carbon footprint and the employment of dilatory tactics by parties.[iv] These benefits are particularly important given that annually one billion people require basic access to justice, but close to 30 per cent of them do not even take action.[v] Moving forward, this access to justice problem has to be solved through Information & Communications Technology (“ICT”), which will render courts to function as a ‘service’ and not a ‘place’.[vi] In cognizance of this, India launched the e-Court Mission Mode Project (“MMP”), to implement ICT in the Indian judiciary in 3 phases over 5 years.[vii]

    However, this increasing change in the medium of our court processes will inevitably impact civil procedure in unprecedented ways. A survey found that 44.7% of participants experienced technical difficulty during the hearing, with a majority feeling that remote hearings were overall worse than physical hearings and less effective in terms of facilitating participation.[viii] The skill and digital divide will further compound power imbalances among parties, and thus their access to justice.[ix]

    In light of this, it is important to understand the adequacy of the current response plans from the Court and governments. Therefore, in this paper, I will enumerate the legal and policy developments in India on virtual courts, both pre and post COVID-19. Subsequently, I will critically analyse these developments to elucidate implementational failures, and three procedural concerns: impact on due process, accountability and transparency, and privacy. Recognizing the inadequacy of legal tools in addressing these concerns, ultimately, I will utilize a technological and organizational design-based approach to propose solutions.

    Tracing Legal and Policy Developments on Virtual Courts

    India’s attempts to digitize the judiciary and associated processes predate the pandemic. However, the scale of impact has certainly increased since virtual conferencing has now become the dominant norm. Therefore, in this section, I will analyse how law and policy on virtual courts have evolved. However, before we proceed, it must be noted that virtual courts are broader than just virtual conferencing. Other than virtual conferencing, related processes of digitisation and automation, like e-filing and e-listing, need to be implemented alongside.

    Pre-Pandemic:                      In February 2007, the government approved the Supreme Court E-Committee’s (“E-Committee”) strategic action plan to implement ICT in the Indian judiciary in 3 phases over 5 years.[x] It was co-opted as a ‘Mission Mode Project’ of the National e-Governance Plan,[xi] with the objective of re-engineering processes to enhance judicial productivity, and make the system more affordable, accessible, cost-effective, transparent and accountable. To this end, it launched 4 services: automation of case management, online provision of judicial/administrative services, information gateways between courts and government, and creation of judicial data grids.[xii]

    Virtual courts, and associated processes, have found recognition and regulation in jurisprudence too. In State of Maharashtra v Dr Praful Desai, the Supreme Court allowed video conferencing for the recording of evidence.[xiii] It even observed that technological developments have enabled the possibility of virtual courts. This position has found, subsequently, substantial affirmation.[xiv] Courts have allowed video conferencing on conditions of health[xv] and geographical proximity.[xvi] However, under the revised position, parties cannot resolve matrimonial conflict through video conferencing.[xvii]

    To safeguard these proceedings, courts have issued numerous guidelines. These include authenticating the identity of the witness and examiner, administration of the oath, acquainting non-party witnesses with the case, recording demeanour of witnesses on-screen, notarization of witness testimony/statement, and bearing of costs.[xviii] When video-conferencing is global, the foreign party must record evidence in the presence of an Indian embassy officer member.[xix]

    Post-Pandemic:         To comply with social distancing guidelines, the Supreme Court passed an order, under Article 142 of the Constitution, to suspend the physical hearing.[xx] However, recognizing the importance of access to justice, it identified the duty of courts to use ICT like video-conferencing for dispensation of justice, in urgent matters. Accordingly, it issued directions: empowering itself and all high courts to adopt measures for the functioning of video-conferencing, instructing district courts to follow their respective high courts, for providing videoconference facilities and an amicus curia to the deprived, prohibiting recording of hearing without the mutual consent of parties, and requiring prompt reporting of technical glitches during the video call.

    Pursuant to this, the apex court issued its standard operating procedure (“SOP”) mentioning the instructions for joining/conduct during virtual hearings and the technical requirements as well as the procedure for listing, mentioning, and e-filing.[xxi] Parties can choose between getting virtual links or availing the facility in the Court’s premises. However, only two appearance links and one viewing link is provided to parties. While the hearings are hosted on the “Vidyo” platform available either as a desktop application or on Android or iOS app store, parties are advised against using mobile phones for connectivity reasons. Communication between the registry and participants happens through private WhatsApp groups, with links being shared 30 minutes prior. Parties are forbidden from sharing these links, engaging in indecorous conduct, and recording the hearings. Furthermore, they are expected to ‘mute’ themselves, except when making submissions or responding to questions from the bench, and must ‘raise hand’ to indicate an intention to speak. The Court has also mandated the use of e-filing even if parties file physically at the registry and reduced the cost of filing by half, thus promoting digitization.[xxii]

    Currently, virtual hearings are inaccessible to the public, but limited journalists can attend the Court’s physical video-conferencing room, to report on cases. The Court has now started hearing non-urgent matters too.[xxiii] The E-Committee has also resolved to institutionalize technology even after the pandemic ends.[xxiv]

    While high courts can employ their own rules, 11 of them have adopted the model rules developed by the E-Committee.[xxv] Even those with unique rules broadly convey the same instructions,[xxvi] with the only difference being the hosting platform. The most popular is Vidyo, followed by Zoom, Jitsi, and Cisco Webex.[xxvii] However, pursuant to the Union Ministry of Home Affairs’ advisory declaring Zoom as unsafe, most high courts discontinued using it.[xxviii] Remarkably, the Delhi High Court issued comprehensive legislative rules covering not just the aforementioned matters, but also the procedure for service of summons, examination of persons, sharing of documents, and access to legal aid. It statutorily establishes a “remote point coordinator”, entrusted with ensuring seamless functioning and ingenuity of the hearing.[xxix]

    However, other than Chandigarh District Court and a few others, district courts have failed to organize virtual hearings, given their infrastructure limitations.[xxx] Most tribunals are following the procedure established by the apex court.[xxxi]

    Critically Analyzing Indian Developments on Virtual Courts

    The Mission Mode Project

    The implementation of Phase-II of the MMP has been sluggish, with only 3477 courtrooms having video-conferencing, and 14443 more courtrooms requiring this facility.[xxxii] 2992 sites are yet to still get WAN connectivity.[xxxiii] Only states like Delhi, Karnataka and Madhya Pradesh have started the digitisation of both disposed and pending case records in the high courts and district courts.[xxxiv] E-filing is currently available only in four high courts,[xxxv] and in the NGT, NCLAT, and ITAT.[xxxvi] Even in these courts, only 50-600 cases were instituted through e-filings, as against the 1.9 lakh cases instituted through regular filings.[xxxvii] Despite listing being digital, the process involves significant human input, rather than the use of algorithms.[xxxviii] The implementation of this project will further stagnate because courts have been instructed to utilize their unused funds from Phase-II for meeting immediate needs.[xxxix]

    The failure in technology up-gradation is also at the litigant and advocate’s end. The internet penetration in India is only 40%.[xl] 30% of the population lacks basic literacy, and nearly 90% lack digital literacy.[xli] At least 50% of advocates, mostly at the district and lower levels, do not own relevant devices and lack the requisite skills for virtual proceedings.[xlii] Thus, there is a clear digital, connectivity, and skill divide.

    Evaluating SOPs- Emerging Legal Issue

    • Due Process

    The paradigm shift consequent to virtual hearings has raised numerous unprecedented due process concerns. The smoothness of accessing and using virtual court facilities, along with available facilities, has an inextricable impact on one’s right to properly present their case.

    Technical Issues with the Platform:                       The most popular platform, Vidyo has received an extremely negative response. Reportedly, the platform frequently crashes,[xliii] and participants struggle to log in or are automatically logged out during court proceedings due to bandwidth issues with the platform. There were also difficulties in re-joining the hearing, once logged out.[xliv]

    The screen sharing feature on Vidyo is ineffective, and thus advocates are precluded from even presenting documents before the bench.[xlv] There is also no means for the attorney and client to engage in private discussion during the hearings.[xlvi] The Control Room is tasked with managing the entire process flow. In several cases, advocates have complained of not being unmuted, despite raising their hands, or their chat messages going unread, thus affecting their opportunity to present arguments. This is especially the case in matters involving a large number of parties.[xlvii]

    This adverse impact is compounded since there is no clarity on who to contact for technical issues.[xlviii] The authorities provided in the SOP are extremely unresponsive. Moreover, links for hearings are shared last minute, with communications on WhatsApp being inefficiently followed.[xlix]

    The Court has been ignorant of these technical inefficiencies, passing adverse orders against at least 19 advocates who were unable to attend/connect due to technical issues.[l]

    Issues with Associated Digital Process:      The processes of e-listing and e-filing are not user-friendly and unnecessarily verbose.[li] Under the current e-listing mechanism, there is uncertainty over acknowledgement of their filings, because the diary numbers are not immediately generated. Even the procedure for curing defects is inefficient, voluminous, and confusing. There is also a delay in the listing of matters, despite pleas of urgency in petitions.[lii] Support from the Registry in this regard is inadequate. There is also a need for improving coordination between sections of the Registry, with procedures being more consistent and transparent.[liii]

    Furthermore, court records are not fully digitized, and when so, they cannot be remotely accessed in a centralized server.[liv]

    Technical Requirements as Impediments:             The minimum technical requirements determine who can even access the platform, and therefore, determine who even has the opportunity to present their case, to begin with. Presently, the SOP of all Indian courts require a minimum of 2 MBPS broadband connection or 4G connections, and the onus is on the participant to ensure seamless connectivity. Given that 20% of the internet users in India are still dependent on 2G and 3G,[lv] this directly leads to their exclusion. Even digitally advanced nations like Singapore have stipulated 3G as the minimum requirement.[lvi] Moreover, even the 4G connections in India are relatively slow, with no service provider crossing the 70% LTE threshold.[lvii]

    Even in data-intensive platforms like Skype, the minimum download speed requirement for a high-quality video call is only 400 KBPS, with group calls of up to 3 people supported at 512 KBPs, and 5 people at 2 MBPS.[lviii]

    Additionally, all video-conferencing platforms have only been made available as desktop apps, or on Android or iOS app stores. The over 55 million users with KaiOS, operating mostly on Jio Phones,[lix] are denied access to videoconferencing, despite their phones supporting video calls.

    (Dis)Comfort with Virtual Testimony and Demeanour Assessment:      The process of testimony, along with cross-examination, are in themselves strenuous for witnesses. The unfamiliar nature of virtual conferences can cause severe anxiety among witnesses while appearing, especially if they’re children, foreigners, or persons with disabilities.[lx]

    During video conferencing, courts are allowed to assess the credibility of parties through their demeanour.[lxi] This is problematic because in a virtual setting it is extremely difficult for the judge to accurately understand the body language and emotions of the witness.[lxii] Studies find that one’s social and economic background has a heavy correlation with one’s perception, which plays out in the form of subtle choices like lighting and camera angles.[lxiii] Given these inaccurate and disproportionate adverse impacts, demeanour assessment during virtual hearings must be disallowed.

    • Transparency and Accountability

    The Supreme Court has repeatedly recognized the importance of the rule of ‘open court’ in preserving and promoting accountability and transparency, and thus guaranteeing a fair trial.[lxiv] Presently, virtual hearings are not recorded, except for witness testimony in some cases,[lxv] even by the court. While theoretically limited journalists are allowed to attend these hearing, this is severely inadequate because this facility is accessible only to reporters who can make it to the Supreme Court’s video-conferencing chamber. Moreover, no such facility has been provided in most high courts. Therefore, there is no effective means of ensuring even a shadow of public pressure, which would bind the judge’s actions. This is contrary to jurisdictions like the UK, Australia, and Singapore where public participation has been allowed through live links or even live streaming.[lxvi]

    Virtual conferencing presents an opportunity to eliminate the practical physical, informational, and temporal barriers to open courts. If hearings are online and broadcasted, then a large number of people can access them. For instance, over 3,500 people viewed a YouTube live stream of oral arguments taking place in the Kansas Supreme Court over Zoom. The digital landscape can even house much more people than the court logistically can.[lxvii]

    However, we must be mindful that live streaming for virtual hearings is distinct from the cameras in the courtroom context.[lxviii] In the latter, even if live streaming is not allowed, the public and media can anyway access the trial. However, if there is no public access to virtual hearings, which entirely supplant in-person proceedings, only then participants to the proceedings have knowledge of events.

    Livestreaming virtual proceedings do raise some legitimate privacy concerns because there is a loss of ‘practical obscurity’. This concept recognizes that there is a privacy interest in the information that is not secret but is otherwise difficult to obtain.[lxix] Public online hearings could make access to personal data easier because the process of transferring information from physical documents to a digital format will not have to be done.

    • Privacy;

    There are serious concerns regarding video-conferencing platforms, which are apps owned by foreign companies. The terms of use of these apps mandate cross-border transfer, and the business model of most of these companies involves selling their consumer’s data.[lxx] Therefore, there is the risk of commercial exploitation of data, either for general profiling of the individual or blackmailing them.[lxxi] This is indicated by the Globe24h.com incident, wherein a Romanian man downloaded judgements in bulk and indexed them so they would be optimized on Google results. Then, he charged people for removing embarrassing personal information from this website.

    The biggest privacy challenges stem from authentication of the participants to the video conference and security of the data exchanged over the platform.[lxxii] Furthermore, the weak data security features of Vidyo and Zoom render them susceptible to unauthorized third-party access.[lxxiii] Inadequate training among Control Room members has also resulted in them engaging in risky practices, like using non-updated versions of the software, thus compromising privacy.[lxxiv]Such weaknesses may allow parties to illicitly obtain information to the detriment of their opponents, which they wouldn’t have gotten under civil discovery.

    There is a petition before the Supreme Court that argues that transfer of such judicial and government data prima facie impacts national security, and violates laws such as the Public Records Act, 1993, and the Official Secrets Act, 1923.[lxxv]

    Utilizing a Design-based Approach

    The courts have so far used conventional legal tools to address the concerns of due process, accountability, and data security. There are inherent limitations to these tools, in that the scope of control is merely through prescriptions, which may not necessarily be followed.[lxxvi] The shift to video-conferencing leads to the emergence of unprecedented issues, which the law itself cannot redress.[lxxvii] On the other hand, using design as a policy tool not only expands the scope of control over the participants but ensures mandatory compliance due to technological automation.[lxxviii] Moreover, as an interdisciplinary and innovative approach, design-based approaches allow anticipation of risks and baking of countermeasures into the systems and operations, throughout the entire lifecycle of the product/service.[lxxix] Notably, this approach extends to only technological operation, but to organizational practices too.[lxxx]

    Therefore, in this section, I will propose design-based changes that need to be implemented to address the aforementioned challenges to civil justice.

    ·      Due Process

    The Platform:                        To address the aforementioned technical issues, there is a need for designing certain features onto the video-conferencing platform. Alike UK, USA, Australia, and Singapore, there must be designated and accessible icons for a private waiting room and a private pop-up chatbox.[lxxxi] During such private communication, the court proceedings must be paused, and no ex-parte discussion must occur. A more nuanced and effective screen sharing option must be introduced, wherein on clicking a designated button, the documents are first shared with the judge(s). Once approved, then this must be shared with other parties. Once any button has been clicked,[lxxxii] there should be a real-time notification that pops up in the centre of the court staff and/or judge’s screens. When participants are kept in the waiting room before the commencement of the hearing, real-time updates should be provided via the chat option. This is similar to the practice in Singapore, where constant updates are provided during the pre-hearing stage.[lxxxiii]

    Given the extent of concerns from Vidyo, courts must move towards adopting a different platform altogether. In the medium-term, they can use Cisco Webex,[lxxxiv] or Microsoft teams given that most of these features exist herein. However, if the court intends to mainstream video-conferencing, it must indigenously develop its platform that consolidates best practices. Thankfully, the Supreme Court has started moving in this direction by inviting tenders for “a comprehensive plan for video conference hearings including hardware and support”.[lxxxv]

    Organisational Practice;                      The video-conferencing screen must contain a help button, which opens a pop-up window that shows a user guide with relevant features available to a participant at their access level. If a participant finds this inadequate, there must be a support button, which allows them to connect to a helpline number. Most importantly, there should be designated officers assigned to each court who uninterruptedly serve as single points of contact.[lxxxvi]Before the platform is re-designed, the coordinators/members of the Control Room must be trained to be more proactive and responsive to the process flow. Anyhow, given peculiar circumstances, courts must largely refrain from passing adverse orders against litigants/advocates claiming to miss hearing due to technical issues.

    Associated Digital Processes:                       Unlike the current system which relies on the physical generation and sharing of links, courts can publish the links for different virtual courts along with the cause list or send automated e-mails to advocates in advance. This will improve efficiency, and reduce anxiety for advocates.[lxxxvii]

    As for e-filing, the Delhi High Court’s model should be adopted nationally.[lxxxviii] The only substantial information that required manual entry is the details of the parties. Thereafter, the entire case file can be uploaded as a single PDF. Even the diary numbers are immediately generated. For curing of defects, advocates are only be required to submit the entire final PDF file, as against separately uploading each page on which defect is secured.

    Technical Requirements;     The video-conferencing platforms must also be available for KaiOS users. Additionally, the bandwidth requirement can be lowered to 512 KBPS or 1 MBPS. To provide access to litigants with lower speeds, the court can always reduce the number of participants on an ad-hoc basis, when required. Even in the worst case, to ensure wider inclusivity, courts can adopt the practice that one bench of the Delhi High Court did. Parties can be asked to submit a 15-minute-long video clip of their arguments within a week of the order. Thereafter, within a week, they must be asked to submit an additional brief note along with a 10-minute-long video clip in rebuttal.[lxxxix]

    ·      Transparency and Accountability

    All virtual hearings should be recorded and stored using cryptography by the courts for a limited period. Additionally, voice-to-text transmission tools can be used for text records of hearings. To preserve privacy, automated redaction software can be used, which automatically redacts sensitive data fields. This is similar to the approach of certain courts like Florida, Pennsylvania, and Michigan.[xc]

    While live streaming promotes greater accountability, there are privacy concerns, as outlined earlier. These concerns can be balanced using the following three-fold approach: (1) Where the case does not involve sensitive information or witnesses, then these can be live-streamed;[xci] (2) When this cannot be done, limited broadcasting can be followed in two ways. While live-streaming is permitted, subsequent dissemination of the hearing, especially by media, is prohibited.[xcii] While public broadcasting may be forbidden, a screen at the courthouse can be provided where these proceedings are broadcasted for people at the court to view;[xciii] and (3) Providing a separate viewing room were advocates, journalists, and CSOs can observe and report on court proceedings, without participating in them.

    Lastly, to promote public awareness the digital portals of court websites must be regularly updated with weekly operational summaries of the working of the court and relevant policy updates, like in the UK.[xciv]

    ·      Privacy

    Technological Design;          The platform must generate unique meeting IDs, which expire after a limited time. The entry to the hearing must be verified using two-factor authentication. This entails OTP verification in addition to entering the unique ID and password of the meeting. The host must have the option of “locking” the meeting once all participants have joined, to ensure unauthorized entry does not subsequently take place.[xcv] All communication on the platform must be end-to-end encrypted using SSL/TLS, which will obfuscate the message and prevent third parties from accessing personal data. Even the entire video session must be encrypted. The servers storing the data must be secure to prevent any end-point vulnerabilities. To this end, advanced threat protection features can be used to protect against sophisticated malware or hacking attempts.[xcvi] Developing an indigenous government-backed platform will also mitigate concerns of data commercialization.

    Organisational Design:        Human errors still contribute to data leaks, despite advanced security designs.[xcvii] Thus, a safe user policy needs to be developed. Participants must be instructed to not connect through unsecured WiFi, or use weak password codes. The video-conferencing software must be routinely updated to ensure only the latest version is used. The coordinators/members of the Control Room must be trained on the necessary steps and contingency plans they must adopt to secure privacy.

    Conclusion

    The move towards digitization of the judiciary and the adoption of video-conferencing preceded the pandemic. However, the pandemic has necessitated their mainstream adoption. Indian courts have been prompt in issuing their SOPs, but these have been inadequate due to non-implementation and the inability of traditional legal tools to address unprecedented procedural issues, emerging from the mainstreaming of video conferencing.

    Firstly, there are due process concerns, centred around inadequate hosting platforms, sub-standard organizational practices, inefficient ancillary processes, and non-inclusive technical requirements. Secondly, there is a lack of accountability and transparency because of derogation from the rule of open court, without any effective alternative measures. Thirdly, there are privacy concerns as regards unauthorized participation, the secrecy of data exchanged, and commercial exploitation of data.

    Adopting a design-based approach not only addresses areas conventional legal tools can’t, but also improves efficiency and automates compliance. To this end, several technological and organizational design changes, as suggested, can be made to effectively address emerging procedural issues.

     

    End Notes:

    [i] PTI, ‘Supreme Court to begin physical hearing of cases in limited manner, releases SOP’ (The Print, 31 August 2020` <https://theprint.in/judiciary/supreme-court-to-begin-physical-hearing-of-cases-in-limited-manner-releases-sop/492699/> accessed 14 January 2021.

    [ii] Sruthisagar Yamunan, ‘Covid impact: Cases disposed of by High Courts drop by half, district courts by 70%’ (Scroll, 4 September 2020) <https://scroll.in/article/971860/covid-impact-cases-disposed-by-high-courts-drop-by-half-district-courts-by-70> accessed 14 January 2021.

    [iii] ‘Court Data: Quantifying the Effect of COVID-19’ (Supreme Court Observer, 29 April 2020) <https://www.scobserver.in/court-by-numbers?court_by_number_id=quantifying-the-effect-of-covid-19> accessed 14 January 2021; Given that the National Judicial Data Grid does not provide statistics on pendency for the Supreme Court, calculating impact on pendency due to COVID-19 is tricky. One metric that can be used is number of judgements delivered, which was 88 in March 2020, the same as March 2018, i.e., when the swine flu outbreak paralyzed the court. While this doesn’t accurately account for situational peculiarities, it provides an indication that the court has managed to fair well, by its own past metric. This discussion is notwithstanding the general impact the pandemic will have on case institution and disposal in the apex court.

    [iv] Nikitha, ‘Impact of Video Conferencing on Court Proceedings with Respect to Litigants and Lawyers’ (BnB Legal, 14 August 2020) <https://bnblegal.com/article/impact-of-video-conferencing-on-court-proceedings-with-respect-to-litigants-and-lawyers/> accessed 14 January 2021.

    [v] Richard Susskind, Online Courts and the Future of Justice (OUP 2019) 27.

    [vi] Anuradha Mukherjee, Amita Katragadda, Ayushi Singhal, & Shubhankar Jain, ‘From the Gavel to the Click: COVID 19 poised to be the inflection point for Online Courts in India’ <https://corporate.cyrilamarchandblogs.com/2020/04/gavel-to-click-covid-19-online-courts-in-india/> accessed 14 January 2021.

    [vii] Ibid; ‘Indian Courts and e-Governance initiative’ (Vikaspedia) <https://vikaspedia.in/e-governance/online-legal-services/how-do-i-do> accessed 14 January 2021.

    [viii] Dr Natalie Byrom, Sarah Beardon, & Dr Abby Kendrick, ‘The impact of COVID-19 measures on the civil justice system’ (2020) Civil Justice Council, 9 <https://www.judiciary.uk/wp-content/uploads/2020/06/CJC-Rapid-Review-Final-Report-f.pdf> accessed 14 January 2021.

    [ix] ‘Standing Committee Report Summary’ (PRS Legislative Research, September 2020) <https://www.prsindia.org/report-summaries/functioning-virtual-courts> accessed 14 January 2021.

    [x] Shalini Seetharam & Sumathi Chandrashekaran, ‘E-Courts in India: From Policy Formulation to Implementation’ (2016) Vidhi Center for Legal Policy, 6-8 <https://vidhilegalpolicy.in/wp-content/uploads/2019/05/eCourtsinIndia_Vidhi.pdf> accessed 14 January 2021; Vikaspedia (n 7).

    [xi] Seetharam (n 10) 8-9.

    [xii] Phase-II of the project already contemplates video-conferencing and recording facility for courts and jails. So far, as many as 3,388 court complexes and 16,755 court rooms across India have been computerised, with video-conferencing equipment available in 3,240 court complexes and 1,272 jails, see: Mukherjee (n 6).

    [xiii] (2003) 4 SCC 601.

    [xiv] Twentieth Century Fox Film v NRI Film Production Associates AIR (2003) Kar 148; Amitabh Bagchi v Ena Bhagchi AIR (2005) Cal 11; Sujay Mitra v State of West Bengal (2015) SCC Online Cal 1191.

    [xv] Alcatel India Limited v Koshika Telecom Ltd (2004) SCC Online Del 705.

    [xvi] Bodala Murali Krishna v Smt Badola Prathim AIR (2007) AP 43; Dr. Kunal Saha v Dr. Sukumar Mukhurjee (2006) SCC Online NCDRC 35.

    [xvii] Santini v Vijaya Venketesh (2018) 1 SCC 62.

    [xviii] Bagchi (n 14).

    [xix] Desai (n 13).

    [xx] Suo Motu Writ Petition (Civil) No. 5/2020; Jai Brunner & Balu Nair, ‘Switching to Video’ (Supreme Court Observer, 6 April 2020) <https://www.scobserver.in/the-desk/switching-to-video> accessed 14 January 2021.

    [xxi] ‘Standard Operating Procedure for Ld. Advocate/Party-in-person for e-Filing, Mentioning, Listing and Video Conferencing Hearing’ (Supreme Court of India, 4 July 2020) <http://scobserver-production.s3.amazonaws.com/uploads/ckeditor/attachments/477/SOP_04072020.pdf> accessed 14 January 2021.

    [xxii] SCO Editorial Team, ‘COVID Coverage: Court’s Functioning’ (Supreme Court Observer, 28 July 2020) <https://www.scobserver.in/the-desk/covid-coverage-court-s-functioning> accessed 14 January 2021.

    [xxiii] Ibid.

    [xxiv] ‘Use of technology must be institutionalised even after Lockdown: Justice Chandrachud in video conference with HC judges manning E-committees’ (Bar and Bench, 4 April 2020) <https://www.barandbench.com/news/use-of-technology-must-be-institutionalised-even-after-lockdown-justice-chandrachud-in-video-conference-with-hc-judges-manning-e-committees> accessed 14 January 2021.

    [xxv] Debayan Roy, ‘Supreme Court allows High Courts to frame own rules for virtual hearings, says media access “should only be for output and not input”’ (Bar and Bench, 26 October 2020) <https://www.barandbench.com/news/litigation/supreme-court-allows-high-courts-to-frame-own-rules-for-virtual-hearings> accessed 14 January 2021.

    [xxvi] The main changes involve differing instructions for differing e-filing and e-listing. Others are minor additions in instructions relating to conduct during the hearing, and differing steps, for differing platforms, for joining a video-conference using the virtual link.

    [xxvii] Amulya Ashwathappa, Arunav Kaul, Chockalingam Muthian, et al, ‘Video Conferencing in Indian Courts: A Pathway to the Justice Platform’ (2020) Daksh Whitepaper Series on Next Generation Justice Platform Paper 4, 62-67 <https://dakshindia.org/wp-content/uploads/2020/06/Paper-4-_Video-Conferencing-in-Indian-Courts.pdf> accessed 14 January 2021.

    [xxviii] ‘Impact of COVID19 on functioning of the Indian Judiciary – Weekly Update on Virtual Courts’ (Khaitan & Co, 4 May 2020) <https://www.khaitanco.com/thought-leaderships/Impact-of-COVID19-on-functioning-of-the-Indian-Judiciary-Weekly-Update-on-Virtual-Courts-1242020_2042020> accessed 14 January 2021.

    [xxix] Notification No. 325/Rules/DHC dated 1 June 2020.

    [xxx] Gautam Kagalwala, ‘Just Virtually’ (India Business Law Journal, 19 August 2020) <https://law.asia/video-conferencing-lockdown/> accessed 14 January 2021.

    [xxxi] PTI, ‘NCLAT issues standard operating procedure for virtual hearings from June 1’ (Financial Express, 30 May 2020) <https://www.financialexpress.com/industry/nclat-issues-standard-operating-procedure-for-virtual-hearings-from-june-1/1976249/> accessed 14 January 2021; For ITAT and NGT, see: Nikitha (n 4).

    [xxxii] Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, Functioning of Virtual Courts(Rajya Sabha 2020, 103) 15.

    [xxxiii] Ibid.

    [xxxiv] Amulya Ashwathappa, ‘The Parliamentary Standing Committee On Virtual Courts In India’ (Daksh, 16 September 2020) <https://dakshindia.org/the-parliamentary-standing-committee-on-virtual-courts-in-india/> accessed 14 January 2021.

    [xxxv] These are the High Courts in Delhi, Bombay, Punjab and Haryana, and Madhya Pradesh.

    [xxxvi] Ashwathappa (n 27) 17.

    [xxxvii] Deepika Kinhal, Ameen Jauhar, Tarika Jain, et al, ‘Virtual Courts in India’ (2020) Vidhi Center for Legal Policy Strategy Paper, 20 <https://vidhilegalpolicy.in/wp-content/uploads/2020/05/20200501__Strategy-Paper-for-Virtual-Courts-in-India_Vidhi-1.pdf> accessed 14 January 2021.

    [xxxviii] Ashwathappa (n 27) 18.

    [xxxix] Bar and Bench (n 24).

    [xl] Digbijay Mishra & Madhav Chanchani, ‘For the first time, India has more rural net users than urban’ (The Times of India, 6 May 2020) <https://timesofindia.indiatimes.com/business/india-business/for-the-first-time-india-has-more-rural-net-users-than-urban/articleshow/75566025.cms> accessed 14 January 2021.

    [xli] Ashwathappa (n 27) 20.

    [xlii] Murali Krishnan & Smriti Kak Ramachandran, ‘House panel backs e-courts’ (Hindustan Times, 12 September 2020) <https://www.hindustantimes.com/india-news/house-panel-backs-e-courts/story-F5GNGVNcYT3dTHHdx4uMHJ.html> accessed 14 January 2021.

    [xliii] Dipak Mondal, ‘Coronavirus lockdown: Fear of data security over video-conference apps Indian courts use’ (Business Today, 7 May 2020) <https://www.businesstoday.in/current/economy-politics/coronavirus-lockdown-fear-of-data-security-over-video-conference-apps-indian-courts-use/story/403154.html> accessed 14 January 2021.

    [xliv] Murali Krishnan, ‘Supreme Court should migrate from Vidyo app: Survey’ (Hindustan Times, 23 September 2020) <https://www.hindustantimes.com/india-news/supreme-court-should-migrate-from-vidyo-app-survey/story-S5mMZD3K29bYTfoUvZUi2J.html> accessed 14 January 2021.

    [xlv] Bhabna Das, D. Abhinav Rao, Harsh Parashar, et al, ‘Survey Report on the Virtual Systems Adopted by the Hon’ble Supreme Court’ (29 August 2020) <https://images.assettype.com/barandbench/2020-09/05eb71ca-d07f-4ef1-9e6c-9d49ae0f64eb/Survey_Report_on_Virtual_Courts_System_adopted_by_SC.pdf> accessed 14 January 2021.

    [xlvi] Krishnan (n 44).

    [xlvii] Das (n 45).

    [xlviii] Krishnan (n 44).

    [xlix] Das (n 45).

    [l] Ibid

    [li] Ibid

    [lii] Krishnan (n 44).

    [liii] Das (n 45).

    [liv] Kagalwala (n 30).

    [lv] Sandhya Keelrey, ‘Internet access across India in 2019, by type of mobile network’ (Statista, 16 October 2020) <https://www.statista.com/statistics/1115260/india-internet-connection-by-type-of-network-mobile/> accessed 14 January 2021.

    [lvi] Neeraj Arora, ‘Serving Justice in COVID-19 Pandemic, only option is Virtual Court: an Indian Prospective’ (2020) Cyber Research and Innovation Society, 34 <https://cyberpandit.org/wp-content/uploads/2020/04/Virtual-Court-Room_HandBook.pdf> accessed 14 January 2021.

    [lvii] ‘State of Mobile Networks: India’ (Open Signal, April 2018) <https://www.opensignal.com/reports/2018/04/india/state-of-the-mobile-network> accessed 14 January 2021.

    [lviii] ‘How much bandwidth does Skype need?’ (Skype) <https://support.skype.com/en/faq/FA1417/how-much-bandwidth-does-skype-need> accessed 14 January 2021.

    [lix] Simon Sharwood, ‘India’s contact-tracing app unleashes KaiOS on feature phones’ (The Register, 17 May 2020) <https://www.theregister.com/2020/05/17/contact_tracing_on_feature_phones/#:~:text=Aarogya%20Setu%20App%20is%20now,join%20the%20fight%20against%20COVID19.&text=Jio%20currently%20offers%20two%20phones,Blackberry-like%20%2440%20model%202> accessed 14 January 2021.

    [lx] Arunav Kaul, ‘Examining The Use Of Video Conferencing In Indian Courts’ (Daksh, 30 April 2020) <https://dakshindia.org/examining-the-use-of-video-conferencing-in-indian-courts/> accessed 14 January 2021.

    [lxi] Paragraph 8.6, Notification No. 325/Rules/DHC dated 1 June 2020.

    [lxii] Nikitha (n 4).

    [lxiii] Meredith Rossner & David Tait, ‘Courts are moving to video during coronavirus, but research shows it’s hard to get a fair trial remotely’ (The Conversation, 8 April 2020) <https://theconversation.com/courts-are-moving-to-video-during-coronavirus-but-research-shows-its-hard-to-get-a-fair-trial-remotely-134386> accessed 14 January 2021.

    [lxiv] Naresh Shridhar v State of Maharashtra (1966) 3 SCR 744 [The primary dispute arose out of a civil defamation case filed against the petitioner, who was a journalist, by the Thackerys. The petitioner challenged the lower courts decision on the ground of its in-camera nature. The Court affirmed the importance of open courts in ensuring objective and fair administration of justice as well as preservation and growth of our democracy. Subsequently, it examined the cases where exceptions can be made, such as in rape trials or matrimonial disputes.]; Swapnil Tripathi v Supreme Court of India (2018) 10 SCC 639 [The petitioners, as public-spirited persons, petitioned the Court to direct that cases of national and constitutional importance must be live streamed in a manner accessible to the public. The Court recognized the importance of open justice in ensuring accountability, transparency, and freedom of speech. As an extension of this principle, it noted that live streaming should be allowed. It then amended its own rules, and provided detailed guidelines on live streaming.]

    [lxv] Paragraph 8.9, Notification No. 325/Rules/DHC dated 1 June 2020.

    [lxvi] Mukherjee (n 6).

    [lxvii] Amy Salyzyn, ‘“Trial by Zoom”: What Virtual Hearings Might Mean for Open Courts, Participant Privacy and the Integrity of Court Proceedings’ (Slaw, 17 April 2020) <http://www.slaw.ca/2020/04/17/trial-by-zoom-what-virtual-hearings-might-mean-for-open-courts-participant-privacy-and-the-integrity-of-court-proceedings/> accessed 14 January 2021; While the Supreme Court has expressed support for limited livestreaming matters of constitutional/national importance in Swapnil Tripathi v Supreme Court of India (n 63), nothing has ever come of this, see: Parliamentary Standing Committee Report (n 32) 7-10.

    [lxviii] Salyzyn (n 67).

    [lxix] Jane Bailey & Jacquelyn Burkell, ‘Revisiting the Open Court Principle in an Era of Online Publication: Questioning Presumptive Public Access to Parties’ and Witnesses’ Personal Information’ (2017) 48(1) Ottawa LR 147, 167-178.

    [lxx] Arora (n 56) 44.

    [lxxi] Graeme Hamilton, ‘How a now-defunct Romanian website exposed tension between privacy and openness in Canadian courts’ (National Post, 6 April 2017) <https://nationalpost.com/news/canada/how-a-now-defunct-romanian-website-exposed-tension-between-privacy-and-openness-in-canadian-courts> accessed 14 January 2021.

    [lxxii] Arora (n 56) 23.

    [lxxiii] Arora (n 56) 23-24.

    [lxxiv] Ibid.

    [lxxv] Mondal (n 43).

    [lxxvi] Woodrow Hartzog, Privacy’s Blueprint: The Battle to Control Design of New Technologies (HUP 2018) 7-11.

    [lxxvii] Ibid.

    [lxxviii] Ibid.

    [lxxix] Ann Cavoukian, ‘Privacy by Design: The 7 Foundational Principles, Implementation and Mapping of Fair Information Practices’ (Information and Privacy Commissioner, 2011) <https://iapp.org/media/pdf/resource_center/pbd_implement_7found_principles.pdf> accessed 14 January 2021.

    [lxxx] Ibid.

    [lxxxi] Ashwathappa (n 27) 28.

    [lxxxii] This could include the ‘raise hand’ or ‘screen share’ or ‘text in chat box or ‘request to move to private breakout room’.

    [lxxxiii] Arora (n 56) 34-36.

    [lxxxiv] In a survey, this emerged as the most popular choice among advocates of the Supreme Court.

    [lxxxv] Krishnan (n 44).

    [lxxxvi] Das (n 45).

    [lxxxvii] Ibid.

    [lxxxviii] Practice Direction for Electronic Filing in the High Court of Delhi, accessible at http://delhihighcourt.nic.in/writereaddata/upload/Notification/NotificationFile_LC0S0PP0.PDF.

    [lxxxix] Ashish Prasad & Rohit Sharma, ‘Delhi HC’s VC Hearing Rules – Taking the Virtual Courts System Forward’ (Law Street India, 5 June 2020) <http://www.lawstreetindia.com/experts/column?sid=398> accessed 14 January 2021.

    [xc] Ashwathappa (n 27) 46.

    [xci] Colette Allen, ‘Open justice and remote court hearings under the UK’s Coronavirus Act’ (International Bar Association 2020).

    [xcii] This is similar to the position taken up by the Canadian Supreme Court in Canadian Broadcasting Corporation v Attorney General of Canada[2011] 1 SCR 19 [In this case, Stephen Dufour was charged with aiding suicide, and at his trial a video, containing a statement by him, was admitted as evidence. Journalists were permitted to view the film. But the Canadian Broadcasting Corporation petitioned the Court requesting that it should be allowed to broadcast this video. It denied this request but held that this is not a blanket rule. In granting this request, factors such as “the serenity of the hearing, trial fairness, and the fair administration of justice” should be considered. Most importantly, it noted that there is a difference in having to testify in open court and having said testimony telecasted into the houses of Canadians.].

    [xciii] This is similar to what the New York City Court has done, see: Jamiles Lartey, ‘The Judge Will See You On Zoom, But The Public Is Mostly Left Out’ (The Marshall Project, 13 April 2020) <https://www.themarshallproject.org/2020/04/13/the-judge-will-see-you-on-zoom-but-the-public-is-mostly-left-out> accessed 14 January 2021.

    [xciv] Jeff Galway & Dr. Urs Hoffmann-Nowotny, ‘Impact of COVID-19 on Court Operations & Litigation Practice’ (International Bar Association Litigation Committee 2020) 33.

    [xcv] Arora (n 56) 23-24.

    [xcvi] Nate Lord, ‘What is Advanced Threat Protection (ATP)?’ (Digital Guardian, 17 July 2020) <https://digitalguardian.com/blog/what-advanced-threat-protection-atp> accessed 14 January 2021.

    [xcvii] Arora (n 56) 31-33.

  • Bengal’s thinking is clear: will rest of India follow?

    Bengal’s thinking is clear: will rest of India follow?

    The second wave of Covid-19 began on February 10 when India reported 11,000 new cases. In the next 50 days, the daily average was 22,000 cases. In the following 10 days the daily average touched 89,800. We are now adding over 400,000 a day. India has never been engulfed by a crisis of this order.

    We are woefully short of hospital beds, oxygen, Remdesivir and Tocli-zumab, vaccines, ambulances and sadly even space in our crematoria. The growth and spread are expected to scale to almost a million a day. In two months, India has become the world’s basket case. Yet, on January 28 this year, speaking to the World Economic Forum in Davos, Prime Minister Narendra Modi showed a blissful and disturbing ignorance of the perfect storm looming. The committee of scientists monitoring the virus warned the PMO of the gathering storm. He was not interested. He was crowing about his perceived “achievement” of beating back the much-mutated “Chinese virus”. He was so wrong, and the country is paying a huge price. There is no Modi image of competence left.

     Prime Minister Modi’s inability to defend India against the second Covid-19 wave, and his inability to cajole the Chinese from withdrawing from areas they occupied in Ladakh now make him an easy target.

    The elections to the four states and Puducherry, which he was so focused on, have been his undoing. He began campaigning on February 5 and 7 in Assam and West Bengal. After that he addressed 20 more rallies in West Bengal and six more in Assam. He also addressed 10 rallies in Tamil Nadu, three in Kerala and one in Puducherry, in all around 40 giant rallies criss-crossing across in IAF Boeings. I wouldn’t even hazard the true cost to the exchequer, but I have heard it said the PM himself is liable to a charge of Rs 6 per air km. Other costs are borne by the PMO.  But the cost is not important. The time spent on huckstering is important. He lost almost a month campaigning, instead of managing the engulfing crisis. I always had a low opinion of his intellect, but even he could have surmised the risks posed to the nation by the renewed pandemic. Clearly, he factored winning West Bengal was more important and worth the cost. Mr Modi himself cheerfully paraphrased what Gopal Krishna Gokhale said almost 100 years ago: “What Bengal thinks today, India thinks tomorrow”!

    West Bengal has unambiguously expressed what it is thinking. It has rejected Mr Modi and his message and campaign-style, lock, stock and barrel. A subservient Election Commission helpfully broke up West Bengal’s polls into eight phases starting March 27 and closing April 29. During this period the daily Covid-19 cases rose in West Bengal from 812 to 17,403. Breaking it into eight phases didn’t help the BJP either. It lost in every phase and got double digits only in four. West Bengal has a sizable Muslim electorate and Mr Modi didn’t mince words in targeting them by making it appear they were Mamata Banerjee’s personal votebank. He didn’t bother to even conceal what he thought of them. His electoral style touched a new low, even by his standards and most certainly by the standards expected of a PM, when he jibed her by catcalling “Didi-O-Didi”. Urban Bengal responded to this by defeating the BJP soundly in all urban constituencies. There is a message here. All over the country the BJP and RSS have strong urban bases, but urban and urbane Bengal administered a resounding slap to gutter politics. With no record to show, Mr Modi’s politics are nothing but that now.

    There was no surprise in Assam. The BJP was returned by almost the same margin as in 2016, getting a majority with the AGP’s nine seats. The Congress lacked a visible local leadership who could match wits with the BJP’s Hemanta Biswa Sarma. Tamil Nadu was as expected. The two so-called national parties were clinging to crumbs thrown by the two so-called Dravidian parties. In Kerala, Pinrayi Vijayan showed why he’s India’s topmost and only surviving commissar. The DMK’s Stalin made no bones about what he thinks of Mr Modi’s Hindu and Hindi-centric politics. The Modi government used every means, including ED raids, to slow down Stalin. The ED even raided Stalin’s daughter.

    So where does our politics go from here? One clear conclusion is that both the BJP and Congress were dealt severe blows. It’s interesting the BJP’s campaigns were entirely shouldered by Narendra Modi and Amit Shah. None of the other top BJP leaders even bothered to show up anywhere. What shouldn’t be missed is that the Raksha Mantri, a former BJP president, was the first from the party to congratulate Mamata Banerjee. In Assam, Mr Sarma’s supporters have gone public crediting the victory to their leader. Mr Sarma has already fired a shot across Sarbananda Sonowal’s bow, saying he was no longer interested in being just a minister in someone’s Cabinet. The numbers might work for him, as he needs just a dozen MLAs to cross over and give Assam a new government. Mr Sarma was a Congress satrap till Rahul Gandhi insulted him by playing with his dog rather than listening to him. Rahul will be all ears now.

    Mamata Banerjee’s stunning victory puts her squarely on the centre stage of Opposition politics. Joining her there will be Lalu Prasad Yadav, released on bail by the Supreme Court despite the government’s strenuous objections. Tejashwi Yadav has shown he’s capable of leading a party when the RJD came so close to upstaging the BJP-JDU alliance in Bihar. Rajasthan’s Ashok Gehlot and Punjab’s Amarinder Singh have emerged as fairly independent Congress satraps. Uddhav Thackeray has shrugged off the Shiv Sena’s pariah status by providing Maharashtra with good leadership and a penchant for making politics the art of the possible. In Telangana, KCR has put the BJP in its place by a resounding win in Nagarjunasagar after its surprise showing in the Dubbaka and GHMC polls. YSRC scored a resounding win in Tirupati with the BJP candidate, a retired chief secretary, losing her deposit. The anti-BJP lineup now has seven chief ministers, excluding Naveen Patnaik. Seven CMs will mean the election and propaganda machines can be kept well-greased and the powder kegs dry and replenished. Prime Minister Modi’s inability to defend India against the second Covid-19 wave, and his inability to cajole the Chinese from withdrawing from areas they occupied in Ladakh now make him an easy target. The Gujarat model has been long exposed as bogus. There is light seen at the end of the tunnel.

    Image Credit: Patrika.com
  • Let’s do away with marks, grades, and this façade of examination

    Let’s do away with marks, grades, and this façade of examination

    The Central Board of Secondary Education (CBSE) has cancelled examinations for Class 10 and postponed the one for Class 12. This adds to the uncertainty that had gripped the education sector ever since the pandemic broke out. Add to that the cascading effect it will have on entrance examinations and graduate courses.

    Currently, stakeholders, namely, the higher educational institutions such as colleges and universities, state governments, high courts, students and their parents, and the University Grants Commission (UGC), are also embroiled in the exams dilemma. This has to do with whether exams are to be held or not; and if yes, then in what way? Virtually or physically?

    The Examination Train

    The manifest justification for holding examinations are to test the pupils, award them marks/grades, rank them in an order of ‘merit’, or segregate them as per mediocrity. Away from the rather narrow confines of academics, who cares for marks/grades in the world outside? Hardly an organisation/institution gives any credence to marks awarded by colleges and universities. Public sector and private sector organisations, including the banks, the Union Public Service Commission (UPSC), and what have you, conduct their own examinations/tests to recruit personnel.

    If nobody outside of the academic realm cares for marks/grades and recruiting organisations devise their own way of assessing graduates, why do we go through the examination rigmarole? 

    The only thing they look for is the minimum qualification. Generally, graduation, at the most. Also, they have their own in-house training, orientation/refresher courses or workshops. Significantly, the UPSC has prescribed just graduation as the minimum qualification for the highly-desired and coveted civil services, to recruit personnel for the foreign, administrative and police, and other allied central services.

    Even ardent followers of Mahatma Gandhi who have passionately and zealously travelled in the ‘Third Class’ all through their academic careers, are eligible to appear at the prelims or the CSAT (Civil Services Aptitude Test) that the UPSC conducts. These Gandhians as well as those who have a second class, qualify in large numbers, and are in no way inferior to the self-styled first class passengers of/on our examination trains.

    Cracks and Fissure

    There appears to be hardly any correlation between the marks/grades/class awarded by our colleges and universities and those who get through the CSAT and make it to the civil services. Are there, going by what is obtained above, any chinks in the system that is so highly-skewed in favour of rote-learning, examination-based structure of our educational set-up? Of course, there appear to be multiple cracks and fissures, to say the least.

    Just look at the countless students awarded A+ or O (outstanding) grades, lots having secured 90 to 95 percent at the Master’s level (MA/MSc/MCom) struggling, if not failing, to get through the National Eligibility Test (NET) to become eligible for an assistant professor’s job.

    The UGC, the overarching Big Brother that avidly extends its leash over the state and central universities (also the deemed ones), itself has very little faith in marks/grades awarded by its various constituents. There is ample empirical evidence to uphold the misgivings of the UGC on this count. Just look at the countless students awarded A+ or O (outstanding) grades, lots having secured 90 to 95 percent at the Master’s level (MA/MSc/MCom) struggling, if not failing, to get through the National Eligibility Test (NET) to become eligible for an assistant professor’s job.

    It is another matter that many state governments contrived their own ways to dilute the stronghold of the UGC’s NET by devising alternative routes called SET (State Eligibility Test) and SLET (State Level Eligibility Test), and have succeeded in browbeating the UGC as regards recruitment to teaching posts in state/central universities.

    The Merit Myth

    Years back, the UGC wrote to various universities that those with really high marks at the postgraduate examinations performed abysmally in the NET. Moral of the story is that in spite of the UGC lurking in the background and looking over the shoulder, its affiliated constituents have been happy in dispensing the largesse of grades/marks over-generously. Unfortunately, this is perceived as merit.

    The facade of examinations that has taken generations of students, parents, and society in general, for a ride needs a serious revisit.

    The facade of examinations that has taken generations of students, parents, and society in general, for a ride needs a serious revisit. If nobody, virtually nobody, in the real world outside of the academic realm cares for the marks/grades and classes dished out by our universities, and each recruiting organisation assiduously tests and devises its own way of assessing our graduates and postgraduates (and doctorates too), why do we go through the examination rigmarole?

    Marks to what avail?

    Why not just handover certificates, listing courses/papers taught/learnt and assignments completed. At the end of the required term just make them qualify for the degree sought by them sans the drama staged pertaining to examinations. Some educational institutions, such as the Ducere Global Business School, in Melbourne, Australia, award graduate and postgraduate degrees without exams. It has been pointed out that “assessment is articulated through solution finding, improvisation, interrogation, interaction, integration and imagination — all of which shape change”.

    The agencies interested in employing these candidates have their own manner of assessing them through written, oral and associated tests. That they have been doing, anyway, for years, even to those students who have obtained grade sheets and marks cards testifying that they have been placed in A+, or had 90 to 95 percent and have been rank holders, or have obtained a first class.

    Are we ready and willing to deliberate and debate examinations and allied issues at different levels? For a start we could wake up the UGC to shed its lethargy and set it on an examination reform and course correction path.

    This article was published earlier in www.moneycontrol.com
    Featured Image: thewire.in

     

  • Tamil Civilisation and the Lost Land of Lemuria/Kumari Kandam

    Tamil Civilisation and the Lost Land of Lemuria/Kumari Kandam

    Lemuria came to be identified as Kumari Kandam, the ancestral homeland of the Tamils, lost to the ravaging ocean in the distant past, due to what is called “Kadal Kol” in Tamil.

    The concept of the lost land of Lemuria hitherto a talking point in the west finds a new focus and interest in the study of the origins of Tamil Civilisation at the beginning of the 20th century. This was a direct result of the new consciousness of the ethnic and linguistic identity that emerged in Tamil speaking regions of South India. By the Tamil enthuse Lemuria came to be recast as the birthplace of the Tamil civilization. It came to be identified as Kumari Kandam, the ancestral homeland of the Tamils, lost to the ravaging ocean in the distant past, due to what is called “Kadal Kol” in Tamil.

    Tamil Nadu Government, during January 1981 at the Fifth International Conference of Tamil Studies held in Madurai, screened a documentary named “Kumari Kandam” both in Tamil and English. The documentary, produced with the financial support of the Tamil Nadu Government,  traced the roots of Tamil, its literature and culture, to the very beginning of time in Lemuria otherwise known as Kumari Kandam in Tamil. In this documentary, the Paleo history of the world is anchored around Tamil land and language. Thus Sclater’s[1] lost land of Lemuria was re-established in the timeless collective consciousness as a catastrophic loss of prelapsarian Tamil past. Even earlier to this, in 1879 Geological Survey of India brought out in the manual of GRGl, a discussion on the Mesozoic land bridge between Southern India and Africa. Dr.D.N. Wadia, a famed Professor of Geology, mentioned in 1990 “The evidence from which the above conclusion regarding an Indo-African land connection is drawn, is so strong and so many-sided that the differences of opinion that exist among geologists appertain to the main conclusion being accepted as one of the settled facts in the geography of this part of the world.[2]

    E.M. Forster in his famed novel ” A Passage to India “ (1984) begins his stunning stanza line “The Ganges, though flowing from the foot of Vishnu through, Siva’s hair, is not an ancient stream. Geology, looking further than religion, knows of a time when neither the river nor the Himalayas that nourished it existed, and an ocean flowed over the holy places of Hindustan. The mountains rose, their debris silted up the ocean, the gods took their seats on them and contrived the river, and the India we call immemorial came into being. But India is far older than anything in the world”.[3]

    In the ethnology chapter of the Manual, Maclean brought the findings of Ernest Haeckel about Lemuria as a primeval home of man. Maclean also draws a further conclusion from the German Biologist’s theory of the origin of various traces of mankind on the submerged Lemuria continent and reiterated that it was the primaeval home of the ancestors of India and Ceylon.

    Thus the fabled Kumari Kandam, which was based on Tamil Literary tradition, so far can receive immediate credibility through western studies. The foundation for this claim was laid by Charles D. Maclean Book “The Manual of the Administration of the Madras Presidency” published in 1835” Mr Maclean was an Officer of Indian Civil Services. In the ethnology chapter of the Manual, Maclean brought the findings of Ernest Haeckel about Lemuria as a primeval home of man. Maclean also draws a further conclusion from the German Biologist’s theory of the origin of various traces of mankind on the submerged Lemuria continent and reiterated that it was the primaeval home of the ancestors of India and Ceylon.[4] He suggested that Southern India was once the passage ground by which the ancient progenitors of northern and Mediterranean races proceeded to the parts of the globe which they now inhabit from Lemuria.[5]

    However, there is a distinct difference in perception of the Lemuria inhabitants from the point of view of Western Scholars and the Tamil enthuse. According to Western Scholars, the primitive inhabitants of Lemuria are barely human and do not represent the trace of civilization. However, the Tamil scholars hold Lemuria or Kumari Kantam as the birthplace of the Tamil Language and cradle of Tamil Civilisation. The antiquity of the Tamil language got a boost with the publication of Campbell’s Book “The competitive grammar of Dravidian Langauge”. J. Nellai swami Pillai wrote in the journal “The Light of Truth” or “Siddantha Deepika” that if you can believe in the tradition of there having been a vast continent south of Cape Comorin, all humanity and civilization flowed east and west and north, then there can be nothing strange in our regarding the Tamilians as the remnants of a pre-diluvian race. Even the existing works in Tamil speak of three separate floods which completely swamped the extreme southern shores and carried off with them all its literary treasures of ages.[6]

    Nella Swami Pillai gives a cautious conclusion that his theory stands on no serious historical or scientific evidence. The same was enthusiastically taken up fully by a well-known Tamil scholar Maraimalai Adigal.

    Though the name Lemuria came into the Tamil world only in 1903, it started gaining significance among the Tamil populous. Shri V.G.Suryanarayana Sastri started using the name Kumarinadu in his book “Tamilmoliyin varalaru. Thiru T.V.Kalyanasundaram the famous Congress Nationlist, and a noted Tamil scholar wrote emphatically that the Lemuria of “Western Scholars” like Ernst Haeckel and Scott Elliot was none other than the Kumarinadu of Tamil literature”.[7]

    The very name Kumari is suggestive of the pristine chastity and everlasting youth of the Tamil land. Later the legends linked the Devi Temple at Kanyakumari to Kumari Kantam or Kumar Nadu. The Kumari Kantam as mentioned in the old Tamil classics, has no reference to the Mesozoic continent of the Indian ocean. There is no reference to the old boundaries of Asiatic tablelands. The Tamil literature speaks of them as the original inhabitants of the great territory opened by two seas on the East and West, by Venkata hills and submerged rivers Pakruli and Kumari on the South.[8] Scholars like Somasundara Bharathi and others also invented hackers’ concept of Lemuria being the cradle of mankind, which implies that the ancient Tamil region is the birthplace of human beings and the Tamils were the first humans.

    Kumari Kantam was having a breadth of 700 kavatam south of Cape Cameron containing 49 principalities, 2 rivers called Pakruli and Kumari flowed there and it also had a hill called Kumari Koodu. The major cities in Kumari Kantam were Thenmadurai and Kapatapuram.

    The features of Kumari Kantam were referred to by Adiyarku Nallar, the commenter of Silapathikaram. Kumari Kantam was having a breadth of 700 kavatam south of Cape Cameron containing 49 principalities, 2 rivers called Pakruli and Kumari flowed there and it also had a hill called Kumari Koodu. The major cities in Kumari Kantam were Thenmadurai and Kapatapuram. This is also referred to in Tholkappia Orrai of Ilam Pooranar Nachinarkku Iniyan Perasiriyar.

    The Tamil Scholars, V.G. Suryanaryana Sastri and Abraham Pandithar lament the loss of works such as Mudunarai, Mudukurugu, etc, which had been swallowed by the ocean. These are derived from the fact that several poems in the Sangam anthology of later age refer to oceanic threat and consequent loss of lands and lives.

    The Tamil Scholar K.Anna Poorni delineates the extent of Kumari Kantam as she concludes in Tamilagham “ Today, the Tamilnadu that we inhabit consists of 12 districts within its limits. A few centuries ago. Cranach and a part of the Telugu land were part of Tamilnadu. Some thousands of years ago, the northern limit of Tamilnadu extended to the Vindhya mountain and the southern limit extended 700 Kavatam to the south of Cape Kumari which included regions such as Panainatu, mountains such as Kumari Kotu and Mani Malai, cities such as Muttur and Kapatapuram and rivers such as Pahruli. All these were seized by the ocean, so say scholars. That today’s the Indian Ocean was once upon a time a vast landmass and that that is where the man first appears has been stated by several scholars such as Ernst Haeckel and Scott Elliot in their books, History of Creation and Lost Lemuria. The landmass called Lemuria is what Tamilians call Kumarinadu. That which is remaining after this ancient landmass was seized by the ocean is the Tamil Motherland in which we reside today with pride.

     

    References

    [1] Philip Lutley Sclater was a zoologist and naturalist who studied extensively the presence of fauna and other species in different regions. He found that more than 30 species of Lemur monkeys inhabited Madagascar while they were hardly to be found in Africa but were seen in lesser number of species in India. Explaining the anomalies of the Mammal fauna of Madagascar, Sclater propounded that the Lemurs must have inhabited a lost continent in the Indian Ocean. Termed ‘Lemuria, this continent must have extended across the Indian Ocean and the Indian Peninsula to the further side of the Bay of Bengal and over the great islands of the Indian Archipelago. David Bressan, ‘A Geologists’ Dream: The lost continent of Lemuria’ in www.blogs.thescientificamerican.com

    [2] Wadia D.N. 1919, Geology of India for students, London: Macmillan – 1939, Geology of India, 2nd ed. London: Macmillan.

    [3] E.M.Forster, “A passage to India”: Harcourt Brace, New York 1984, pp 135-136.

    [4] Maclean Charles. D. “The Manual of the Administration of the Madras Presidency”, Vol.I, Asian Educational Publication, pp-33-43.

    [5] Ibid 111.

    [6] Nella Swami Pillai. J, “Ancient Tamil Civilisation in the light of truth” or Siddhanta Deepika. No. 5, pp 109-113.

    [7] T.V.Kalyanasundaram, “Indiyavum viduthalaiyum”, Charu Printing Press, Madras, P 106.

    [8] Sesha Iyengar K.G. Chera King of the Sangam Period, 1937, pp 658.

  • Rethinking Monetary policy during a Crisis: Are Unconventional Policies here to Stay?

    Rethinking Monetary policy during a Crisis: Are Unconventional Policies here to Stay?

    With global crises such as the 2008 financial crisis and more recently the COVID-19 pandemic, monetary policy worldwide has increasingly ventured into uncharted territory. In the last 10 years alone, the world has seen 3 major crises that have affected financial markets extensively. Given the increasingly complex nature of economies and financial markets, central bankers have had to function under great uncertainty and shrinking policy space. Even as governments and policymakers worldwide leave no stone unturned in the fightback against crises, the traditional policy has often fallen short of its objectives. In light of growing limits of existing policy tools during a crisis, it has forced central banks to resort to unconventional measures such as negative interest rates (NIRP), quantitative easing, forward guidance and yield curve controls. Before the financial crisis of 2008, such unorthodox policies were relatively less commonplace. Today they are increasingly becoming key components of the monetary toolbox. However, much of these new policies is yet to be studied or tested in the real world. The long-term effect of such policies is still unclear. In this light, it becomes imperative to understand and analyse these unconventional policies to chart a course for monetary policy in the near to long term.

    What is Unconventional Monetary Policy?

    Under normal conditions, the most powerful weapon in a central banker’s toolkit is the policy interest rate. However, as global financial markets get more interconnected and complex, central bankers have to act under great uncertainty. As crises push traditional policy tools to their limits, central bankers have had to bank on more unconventional policies than ever before. As the governor of the Swedish central bank, Stefan Ingves puts it, “Monetary policy and the way we ‘do’ monetary policy has changed. All the time, we need to stand ready to develop new tools and make new kinds of analysis – If the world changes, we need to change with it”.

     

    Figure 1: Policy Tools Comparison

    Typically, interest rates and money supply are the two run-of-the-mill tools that central bankers resort to. Extreme versions of these policies, such as negative interest rates and quantitative easing, are termed unconventional monetary policies since they deviate from the traditional policy measures of a central bank. According to RBI’s Deepak Mohanty, “When central banks look beyond their traditional instrument of policy interest rate, the monetary policy takes an unconventional character”. Essentially, an Unconventional monetary policy is a set of measures taken by a central bank to bring an end to an exceptional economic situation. Central banks use these measures only in extraordinary situations when conventional monetary policy instruments cannot achieve the desired effect [1].

     Quantitative Easing

     Quantitative easing (QE) is a form of extreme and targeted control of the money supply in the economy. At its core, QE seeks to increase the money supply in the economy through the purchase of securities and bonds in the open market. When a central bank uses QE, it purchases large quantities of assets, such as government bonds, to lower borrowing costs, boost spending, support economic growth, and ultimately increase inflation.

    Before the 2008 financial crisis, only one major economy, Japan, had implemented a significant Quantitative Easing program in the 1990s. Today, however, almost all major economies have some sort of QE or an asset purchase program. According to a report by Fitch Ratings, global QE asset purchases are set to hit $6 trillion in 2020 alone, which is more than half the cumulative global QE total seen over 2009 to 2018 [2]. As seen in the figure below, the balance sheets of major central banks have been expanding significantly since the financial crisis.

     

    Figure 2

    Quantitative Easing has been the cornerstone of the Fed’s crisis response since 2008. In the three rounds of QE post the 2008 crisis, the Fed balance sheets increased from $870 billion in August 2007 to $4.5 trillion in early 2015. Earlier this year, the Fed purchased a record $1.4 trillion worth of US treasuries in just six weeks in response to the COVID-19 crisis, speaking volumes of the role played by the unconventional policy during a period of crisis. Also, it’s not just the advanced economies that are resorting to extensive QE programs. Nearly 13 emerging market economies, including India, announced some form of a QE program following the crisis. In India, the RBI injected durable liquidity of ₹1.1 lakh crore through the purchase of securities under open market operations (OMOs) [3].

    Zero or Negative Interest Rates

    Quantitative easing was just the beginning of the long list of tricks central bankers pulled out of their sleeves. Closely accompanying QE policies were accommodative monetary regimes of ultra-low interest rates. In 2020 alone, interest rates have been slashed across the globe on 37 separate occasions [4]. Interest rates have been falling across the globe even before the crisis, and the current pandemic has only sped up this fall.

    While many economies have reached the theoretical zero lower-bound of rates, some have even dared to venture below the surface into negative territory. As of today, 5 economies in the world follow a Negative Interest Rate Policy. While the very concept of negative rates may seem baffling, it’s even more shocking to note that over $15 trillion worth of bonds is traded at negative yields globally [5]. This means that over 30% of the world’s investment-grade securities are traded in a manner such that lenders pay borrowers to use their funds. Central banks envisage that negative policy rates would induce increased spending and stimulate the economy in two ways – first, by forcing banks to hold lesser deposits with the central bank and channelling these funds into increased lending to households and businesses. Second, a cut in the policy rate would also lead to lower rates in the overall lending market, thus encouraging borrowing and spending.

    Forward Guidance

    Forward guidance refers to official communication from a central bank on the future course of monetary policy in the economy for a specific period. It is more of a monetary policy stance than a monetary policy tool. The key idea here is to keep markets informed and eliminate any form of uncertainty, which becomes especially imperative during times of crisis.

     

    Figure 3

    Gone are the days when central bank rate cuts and other announcements of secrets that were sprung upon the markets when they least expect it. With forward guidance, central banks provide communication well in advance about the likely future course of monetary policy in the economy, and this boosts the confidence of investors, consumers and companies. The US’s Fed was one of the major central banks to adopt this policy during the COVID crisis – providing clear forward guidance in June showing that it will probably keep rates low until at least 2022. The policy has been the cornerstone of the Eurozone’s crisis response since the sovereign debt crisis. In July 2012, at the height of the crisis, ECB President Mario Draghi adopted a form of Forward Guidance, stating that the ECB will do “whatever it takes” to save the euro. It is believed that these three words single-handedly turned around the eurozone crisis.

    Are Unconventional Policies Here to Stay?

    Apart from QE, NIRP and FG, there are several other unconventional policies in practice world over – Australia is experimenting with yield curve controls, the Fed is attempting to influence markets with forward guidance while Japan is considering printing helicopter money. There are so many extreme measures being adopted across the globe that policy commentators are now referring to these nations as swimming in an alphabet soup of unconventional policies (QE, NIRP, ZIRP, U-FX, NDR etc.). Post the 2008 crisis, when such policies were first being debated upon and economies were just dipping their toes in the ocean of unconventional policy, many warned of dire consequences such as hyperinflation and collapsing currencies. Luckily for central bankers, none of these predicaments came true. Most advanced economies are still struggling to combat deflation and extremely low levels of inflation despite adopting several unconventional policies. In this scenario, fears of hyperinflation seem to be unwarranted. While there have been studies documenting the potentially harmful effects of unconventional policies, economies still seem to stick with these policies. On one hand, central bankers have no better alternative tools, and second, the positive effects seem to fairly outweigh the negative externalities.

    Thus, unconventional policy tools are going to be around for the near future. As economies and global markets grow more complex, so will the policies and policy tools regulating them. Similar to how drastically monetary policy has changed within just 10 years after the financial crisis, it will keep evolving and adapting with time by developing new tools and analyses. Monetary toolbox a decade or two later will look radically different from what it is now. The important question then becomes not whether unconventional policies are here to stay, but how nations can make the most effective use of them.

    The new monetary tools, including QE and forward guidance, should become permanent parts of the monetary policy toolbox – Ben Bernanke, Ex-Fed Chair

    Need for Monetary Policy and Fiscal Policy to Work in Tandem

    While central bankers have no stone unturned in the fightback against crises, the success of unconventional policies has been fairly moderate. In Japan, for example, the NIRP has failed to stimulate spending and investment in the economy. Rather, negative rates have only forced a massive outflow of funds from the country in favour of foreign assets. In the Eurozone as well, the policy has achieved no significant impact, with banks continuing to pay billions of euros as negative fees to the ECB. While QE has fared slightly better than the rest as a policy tool, the experiences of various economies with it have been mixed.

    The experiences of several economies have shown that while unconventional policies may work better than conventional ones during a crisis, there are limits to their performance as well. One of the key failures of unconventional policies (and conventional policies) has been the inability to stimulate healthy inflation in recessionary economies. Policies such as QE and NIRP, despite increasing the monetary base of economies, have failed to spur spending and investments. As we have seen in Japan, a standalone monetary policy, no matter how accommodative, is insufficient to pull economies out of downturns. In this light, it is imperative that monetary policy, conventional or unconventional, be accompanied by temporary fiscal stimulus during recessions. Public investment in infrastructure could give economies a much-needed boost in the absence of a private appetite for investments. Infrastructure is an enormous economic multiplier, and governments would do well to work in tandem with monetary regimes to provide the initial spur in economic activity. Several studies have shown that public investment during crises can generate employment and increase output. Originally theorised by British economist J.M. Keynes, the ‘Keynesian Multiplier’ of government spending could be the magic potion that makes unconventional policies go from good to great.

    How does the Keynesian Multiplier Work?

    During times of recession or economic downturn, government spending puts into action the Keynesian Multiplier. According to the Keynesian Multiplier, theorised by prominent economists such as Keynes, Kahn and Hicks, short term government spending boosts the economy by more than what is spent. Keynes was of the view that during a recession with a high level of unemployment, Governments should raise public spending to sustain effective demand and profits.

     

    Figure 4

    As seen from the figure above, an increase in government spending on large projects such as road building will lead to the creation of alternative employment. The increase in personal incomes and consequently aggregate demand in the economy will further stimulate economic activity and will create more employment than what was originally created by government spending. In effect, every unit of money spent by the government during a downturn increases GDP by a greater proportion than what was spent.

    Conclusion

    While unconventional policies are here to stay, they are a step in the dark. Economies are still experimenting and attempting to figure out the most effective use of these policies. Considering the fairly moderate performance of standalone unconventional policies, there is an established need for complementary fiscal policy to accompany monetary policy. An increase in infrastructure investment coupled with an accommodative monetary regime could help stimulate stagnant demand during a crisis. In developing economies, it can also help address structural bottlenecks subduing growth. These investments from the government, however, must be productive and efficient. Otherwise, they just end up adding on to already high levels of debt, especially during periods of crisis when governments have to borrow extensively for emergency requirements. It is also imperative that this investment is temporary and not permanent. Long-term government debt is unsustainable and can crowd out much-needed private investment.

     

    References

     

    [1] Central Charts. (2019). Definition of Unconventional Monetary Policy. Retrieved from

    https://www.centralcharts.com/en/gm/1-learn/9-economics/35-central-bank/976-definition-unconventional-monetary-policy

    [2] Fitch Ratings. (2020). Global QE Asset Purchases to Reach USD6 Trillion in 2020. Retrieved from

    https://www.fitchratings.com/research/sovereigns/global-qe-asset-purchases-to-reach-usd6-trillion-in-2020-24-04-2020

    [3] Reserve Bank of India. (2020). Policy Environment. Retrieved from

    https://www.rbi.org.in/scripts/PublicationsView.aspx?id=20269

    [4] Desjardins, J. (2020, March 17). The Downward Spiral in Interest Rates. Visual Capitalist.

    https://www.visualcapitalist.com/chart-the-downward-spiral-in-interest-rates/#:~:text=Global%20Rate%20Slashing,light%20of%20current%20oil%20prices.

    [5] Mullen, C. (2020, November 6). World’s Negative-Yield Debt Pile Has Just Hit a New Record. Bloomberg Quint.

    https://www.bloombergquint.com/onweb/negative-yielding-debt-hits-record-17-trillion-on-bond-rally#:~:text=The%20market%20value%20of%20the,it%20reached%20in%20August%202019.

     

    Image Credit: The Conversation

  • e-SLA and the Delhi Act 2011 (Right of Citizen to Time-bound delivery of Services)- Policy Analysis

    e-SLA and the Delhi Act 2011 (Right of Citizen to Time-bound delivery of Services)- Policy Analysis

    Introduction

    As the functions of the modern welfare state expand and the dependency of citizens on it increases, its services must be delivered in timely manner. To this end, the Delhi government developed a robust policy. Through the Delhi Act of 2011 (Right of Citizen to Time Bound Delivery of Services), referred to as “the Act”, and the Delhi (Right of Citizen to Time Bound Delivery of Services) Rules, 2011 [“the Rules”], it has guaranteed timely delivery of 361 services.[1] Delhi is not the only state to confer such a right. However, in these other states, the enforcement of this right requires physical presence. Delhi has used an e-Service Level Agreement [“e-SLA”] to digitise the entire enforcement process. Digitisation has enabled greater accountability, performance review, and convenience, whilst also reducing the invested time and cost of every stakeholder. Thus, through this e-governance tool, Delhi has developed a ‘new ecology’ for the citizen-state relationship.

    In this paper, I will first provide a primer on both the Act and the e-SLA. In the second section, I will examine the constitutionality of the Act. Last, I will test the Act against the principles of good governance and citizen-centric administration.

    Understanding the Act and e-SLA

    The Act and e-SLA are deeply interrelated. While the Act defines the legal rights, procedures, and obligations, e-SLA is the mechanism for their execution. The Act comprises four major components: defined rights and corresponding liabilities, procedural prescriptions, the delegation of rulemaking, and the monitoring platform.

    Every citizen is conferred with the right to time-bound delivery of services,[2] and a liability of compliance imposed on government servants.[3] In cases of default, the government servant is liable to pay the compensatory cost of ₹10 per day for the period of delay, subject to a maximum of ₹200 per application.[4] Correspondingly, citizens are entitled to recover the compensatory costs.[5]

    The Act makes three different but interrelated procedural prescriptions. First, it provides the appointment process, eligibility criteria, and powers of the “competent officer”.[6] He/she must not be below the rank of Deputy Secretary or its equivalent rank and is empowered to impose a compensatory cost on the defaulting government servant. Second, it establishes the procedure governing fixation of liability.[7] If there is a delay, the aggrieved citizen can approach the competent officer, who immediately pays the cost that has been automatically calculated by e-SLA.[8] At a second stage, the officer issues show-cause notice to the concerned servant. If justifiable grounds exist, then the payment is debited from the government exchequer. Otherwise, it is reimbursed from the concerned servant. Third, it prescribes the appointment process, eligibility criteria, and powers of appellate authority as well as a 30-day time limit for filing an appeal. He/she must not be below the rank of Joint Secretary or its equivalent rank and has final authority on the matter.[9]

    The Act provides for delegation of legislative authority in two senses. There is a power to make rules,[10] and the power to remove difficulties.[11] However, the exercise of these powers is subject to Parliamentary scrutiny.

    It is the duty of departments and local bodies to process the application of every citizen and provide an application number. Furthermore, these authorities are obligated to maintain and update the status of applications online.[12] The e-SLA monitoring system has been designated as an online database.[13] To the government, it provides detailed information on the number of disposed or pending cases, which helps in performance evaluation and corrective measures. To the citizens, it provides online facility to track their applications.[14] The information flow is explained below:

     

    Figure 1: Information flow between government officials under e-SLA

     

    Figure 2: Information flow between government officials and citizens under e-SLA

     

    Constitutionality of the Act

    The Constitution provides certain safeguards to “civil servants”.[15] At the outset, it must be noted that these employees are only a sub-set of the “government servants” defined in the Act.[16] Thus, the applicable scope of protection, if any, is not to the entire class of employees enumerated in the Act, but only to civil servants.

    The legal issue herein is the constitutionality of imposing a compensation cost on the civil servant. This is a two-fold question:

    1. Whether there is the power to impose such a cost?

    Appropriate legislatures are empowered to regulate the service conditions of civil servants.[17] As the cost relates to a service condition (i.e., timely delivery), the Delhi Legislative Assembly was empowered in imposing it.

    1. If so, has this exercise violated any constitutional safeguard?

    However, this power is subject to constitutional safeguards guaranteed under Article 311.[18] The protection offered under Article 311(2) is exhaustive and with specific reference to the imposition of three penalties: dismissal, removal, and demotion.[19] Accordingly, the imposition of compensatory cost on the civil servant is beyond the scope of three-fold protection offered by Article 311. Thus, no constitutional safeguard has been violated herein.

    As the imposition of compensatory cost on the civil servants is both within the power and compliant with safeguards, it is constitutional.

    Testing the Act against principles of Good Governance and Citizen-Centric Administration

    Governance refers to the process of decision-making, and the process of implementing those decisions.[20] Good governance is when these processes are tested against a normative standard. Citizen-centric administration refers to governance that places citizens at the centre of all administrative functions.[21] In this section, I will use the characteristics of good governance and the principles of citizen-centric administration as a collective standard[22] to analyze the process of formation and implementation of the Act, its Rules, and e-SLA.

    Assessing Compliance in Formation and Implementation

    a) Participatory. In the absence of statutory provisions, the administrative authorities are not bound to comply with any procedural norms, including notice and prior consultation with the interested parties. The Delhi Act, 2011 does not provide for any such consultation or ante-natal publicity. In the process of policy-making, there was participation only from the relevant government ministries and departments. The government did not take any active steps to broaden consultation to stakeholders such as the civic society organizations, labour unions, or even the general public.

    The lack of participatory policy-making has directly impacted its awareness and enthusiasm among citizens. It was found that only 50% of the people know that their unique ID can be used to track their applications online. Further, only 15% of the people used their ID to track their application.[23]

    b) Transparency. The e-SLA allows for complete transparency to the citizen as to the status of all his applications. The information is not only easily comprehensible but also accessible. However, the transparency does not extend to releasing statistics of operations to the public domain. Currently, these statistics, such as the figures on the number of applications, pendency, disposal rate, performing/underperforming departments, are accessible only to government officials.[24]

    c) Responsiveness. The e-SLA system does not provide for any feedback mechanism. Thus, there is no avenue for the citizens availing these services to share their experiences. As feedback is the basis on which the system continually improves, this deficiency hinders the potential effectiveness of e-SLA.[25]

    1. Accountability

    The right to time-bound service delivery through the mechanism of compensatory cost has, in theory, ensured that the government and its officials are accountable to citizens. This is buttressed by the fact that the Act seeks to develop a culture of timely delivery among the government servants by additionally punishing habitual offenders and providing cash incentives for those without a single default in a year.[26] However, the liability of government servant has been capped at ₹200, compared to other state legislation that penalizes in thousands. Further, the cash incentives are only up to ₹5000. Thus, the quantum is inadequate to cause attitudinal changes in the servants.

    Moreover, there is no culture among public servants to hold their non-performing colleagues in disrepute.[27] There is no indication that this non-performance is factored into promotions. Anyhow, such public servants are typically complacent and not seeking promotions. The security of their present job and status is adequate incentive to persist with present behaviour. Thus, promotions and reputational loss among peers are not adequate incentives for performance either.

    Furthermore, by releasing all relevant statistics of operations to the public domain, the government can broaden its accountability. These statistics can be used by stakeholders, such as news and media agencies and policy think-tanks, to supplement the government in identifying issues and corrective measures. This would also pressurize the government to be more proactive.

         2.  Consensus orientation

    Through reasonable and extensively deliberated timelines, the Act sufficiently balances the interests of citizens in securing timely delivery with the government’s limited capacity.

         3.  Effectiveness and Efficiency

    The usage of e-governance to guarantee the right to public service is a revolutionary process reform. This must be gauged at two levels:

    • For the citizen, this system has reduced the number of physical visits required, thus saving time and cost. In a survey, 66.6% reported that they are not required to visit government offices more than once after submitting their applications.[28]
    • For the government, it eliminates systemic errors and inefficiencies.[29] The statistics help in assessing performance and preparing corrective action.[30] However, if the system can track internal departmental processes too, it would allow determining the exact level at which service delivery is being delayed. Furthermore, the Act ignores the quality of timely delivered services.[31] To provide a comprehensive right to public service, the legislature must develop standards to assess the quality of services rendered on time.

     

        4.  Equitable and Inclusive

    Under the Act, while the citizen is immediately compensated, the government servant is not immediately penalized for default. The procedure allows him/her to provide justified grounds that could excuse liability. For greater inclusivity, the government can prescribe a pro-rata calculation of the penalty. As the amount is automatically calculated by e-SLA, even complex formulas are acceptable.

       5.  Rule of Law

    The Act provides for a fair legal framework and impartial enforcement.

    Conclusion

    Executing the right to time-bound service delivery through an online portal is truly revolutionary. It has emerged as model legislation for other governments. The Act is constitutionally valid. However, when tested against standards of good governance, this policy suffers from problems of non-participation, transparency, responsiveness, accountability, and effectiveness at the government-level. But it scores par excellence on the principles of consensus orientation, effectiveness at the citizen-level, inclusiveness, and rule of law. To embrace the truly revolutionary potential of this policy, the government must make the suggestions recommended in the last section of the paper, vis-à-vis each principle.

     

    References:

    [1] IANS, ‘245 services brought under Delhi time-bound delivery act’ (Business Standard, 24 August 2014) <https://www.business-standard.com/article/news-ians/245-services-brought-under-delhi-time-bound-delivery-act-114082400707_1.html> accessed 17 January 2021.

    [2] The Act, s. 3.

    [3] The Act, s. 4.

    [4] The Act, s. 7.

    [5] The Act, s. 8.

    [6] The Act, s. 9.

    [7] The Act, s. 10.

    [8] The Rules, r. 4(1).

    [9] The Act, s. 11(1).

    [10] The Act, s. 15.

    [11] The Act, s. 16.

    [12] The Act, s. 5.

    [13] The Rules, r. 2(c).

    [14] Arjun Kapoor & Niranjan Sahoo, India’s Shifting Governance Structure: From Charter of Promises to Services Guarantee (ORF Occasional Paper No 35, 2012).

    [15] Constitution of India 1950, Art. 309, 310, 311.

    [16] The Act, s. 2(g).

    [17] Constitution of India 1950, Art. 309.

    [18] Union of India v. S.P. Sharma (2014) 6 SCC 351.

    [19] Yashomati Ghosh, Textbook on Administrative Law (1st edn, Lexis Nexis 2015) 416.

    [20] UN Economic and Social Commission for Asia and the Pacific, ‘What is Good Governance?’ <http://www. unescap.org/sites/default/files/good-governance.pdf>.

    [21] Ghosh (n 19) 14.

    [22] Second Administrative Reforms Commission, Citizen-Centric Administration (Report No 12, 2009) p. 8.

    [23] Audit of Functioning of Government of Delhi’s e-SLA Scheme, by Management Development Institute, Gurgaon (2012).

    [24] Ibid.

    [25] Rohit Sinha, ‘Delivering on service guarantee: A case of Delhi’s e-SLA’ (ORF, 29 December 2012) <https://www.orfonline.org/research/delivering-on-service-guarantee-a-case-of-delhis-e-sla/> accessed 17 January 2021.

    [26] The Act, s. 12.

    [27] Kapoor & Sahoo (n 14); Amit Chandea & Surbhi Bhatia, The Right of Citizens for Time Bound Delivery of Goods and Services and Redressal of their Grievances Bill, 2011 (CCS, 2015) p. 25-26.

    [28] Sinha (n 25).

    [29] Chandea & Bhatia (n 27).

    [30] Ibid.

    [31] Kapoor & Sahoo (n 14).

     

    Image Credit: Forbes India

  • History – Thailand’s Golden Buddha

    History – Thailand’s Golden Buddha

    In the month of May 2007 I was invited to speak at the Mahidol University of Bangkok during the SSEASR Conference. I gave a talk on Yogachara Buddhism there. During this occasion, I had the opportunity to visit various Buddhist temples at Bangkok. They include the magnificent ones like Emerald Buddha, Golden Buddha, Buddha in his Maha nirvana time etc. It is very interesting to note that in the Sanctum Sanctorum of all Buddha temples, while the right side wall is covered with pictures depicting instances in Buddha’s life, the left side has paintings exclusively from Ramayana. For a Thai devotee, Hinduism is as important as Mahayana Buddhism.

    During the visit of one of the temple, I learnt this great truth about ignorance obscuring Reality.

    One of these famous temples has a Buddha icon nearly 17 feet tall, which is known till the beginning of 20th century as “Terracotta Buddha temple” . The temple was established in the 13th century with its huge icon of Buddha, for several centuries it was worshipped by the devotees as “Terracotta Buddha”. One day the authorities decided to shift the Terracotta Buddha image to a place several kilometers away, probably to do some repairs to the temple. They put the Terracotta Buddha on a truck and were moving it. When they were half way through, a heavy downpour started. The rain was so heavy that the clay image of Buddha started dissolving. They tried to protect the image with tarpaulins and umbrellas, but to no effect. There was a very heavy wind which blew away the tarpaulins and umbrellas. Due to the heavy rain, the Buddha icon in clay was dissolving fast. The devotees were grief-stricken. They were wondering whether it would have been wiser to have left the temple un-repaired rather than allowing the centuries old terracotta Buddha icon to get dissolved in the heavy downpour.

     

    Presto! A wonderful thing was happening. As the clay was dissolving, from within the clay was emerging a golden Buddha idol! as the idol there was of clay. After a short while all the clay, which was covering the idol got completely dissolved. The people were witnessing the presence of a resplendent “Golden Buddha” appearing before them in all its grandeur.

    What really happened? It was really a golden Buddha at the time of its installation in the 13th century. After some time Thailand was experiencing foreign invasions. Fearing that the invaders would take away the golden image, which was 5.5 tons of solid gold, the devotees covered the image with clay. Thinking that it was only a Terracotta Buddha, the invaders left it untouched. That generation knowing that it was a golden Buddha inside the clay, worshipped Buddha in that form. As many years passed by, the subsequent generations were not aware of this fact. They truly believed in what they saw externally and worshipped it as a Terracotta Buddha only. Thus their minds were conditioned by externalities. Once the clay dissolved what is truly inside came out with all its effulgence. It is today worshipped as the golden Buddha in Bangkok.

    It is happening to all of us everyday, we assume ourselves to be only a body-mind-intellect complex and nothing beyond it. We are conditioned by our awareness of our body, our thinking process and our analysis of the phenomena. These are only externalities within each one of us. It is only a clay that surrounds the wonderful Immanence within us. Within each one of us is the golden Buddha, the great immanent Lord who is also transcendent, he is the great Shiva, who is constantly performing his cosmic dance. In our hearts we not aware of it as our minds are conditioned by what we see, do and think. It is like the Thais seeing only the clay image and concluding it as only terracotta Buddha. As the rain dissolved the clay, the golden icon which is the true-one inside is revealed. Likewise when the spiritual sadhaha and devotion dissolves our mental conditioning, the Lord within ourselves is also revealed. This is the lesson we learn from the Golden Buddha temple.

    The same idea is beautifully explained in Thirumoolar’s Thirumantiram. A sculptor has carved out a beautiful elephant from a block of wood. When you see it as an elephant, you do not see the underlying reality of the wood. When you will be able to see the substratum, the underlying reality of the wood, with which all the objects of carving are made, you do not see the carved elephant; you see the substratum of the wood. Likewise, the ignorance enveloping our minds obscure the ultimate reality within us, when we are graded by the body-mind-intellect complex. When the revelation comes to us through god’s grace and gurus’ teachings coupled with our devotion to Him, the conditioning disappears. The phenomena abide in the ultimate. We experience the Divinity within us.

    Even in the area of management, the story of Golden Buddha has a great relevance. A competent Manager, with a penetrating mind, should be able to see what is the reality hidden in the numerous external information. The external covering only obscures the truth, which you will be able to get through. Once you see the substratum, the ultimate truth is revealed.

     

    Image Credit: Wikimedia Commons

  • (Part-II) Proposing a Legal Framework for Distribution of the COVID-19 Vaccination

    (Part-II) Proposing a Legal Framework for Distribution of the COVID-19 Vaccination

    I.   Reassessing Vulnerabilities During a Pandemic

    A general problem across all conventional models is their failure to understand that vulnerabilities during a pandemic are created and compounded by socio-economic factors too. Therefore, there is a need to adopt approaches that holistically assess the correlation between socioeconomic factors and vulnerability during a pandemic.[1]

    The Syndemics Approach

    Under this approach, pandemics are understood as an interaction of that disease with other diseases and the socio-economic and political factors that increase the risk of vulnerability.[2] All these factors synergistically interact to impact the health of individuals and society. Through these risk factors, it identifies the overlapping health and socio-economic problems that increase vulnerability (‘syndemic vulnerabilities’). The socio-economic risk factors are influenced by social determinants of health, i.e., the conditions of housing, food, employment, healthcare, and education.[3] Therefore, the utility of this approach lies in its holistic conception of socio-economic factors that impact the formation, clustering, and progression of diseases.[4] Using this approach, I argue that the COVID-19 pandemic has synergistically interacted and exacerbated the existing diseases and socio-economic conditions of marginalized groups across countries.

    Higher Risks of Infection, Transmission, and Mortality: Typically, due to historic discrimination and denial, marginalized communities have a greater number of pre-existing diseases like diabetes and asthma,[5] which in turn elevates their risk of infection and mortality. Moreover, there is unequal access to healthcare among marginalized communities due to the high costs of medical care and the absence of health insurance.[6] Marginalized communities are also disproportionately poor,[7] which affects their ability to mitigate the impact of the pandemic.

    Typically, marginalized communities are housed in crowded neighbourhoods with smaller houses that lack outside space.[8] They also have higher population densities, especially in urban areas, and lower access to communal green space.[9]Due to historic discrimination, marginalized communities are over-represented in essential services, including low-wage healthcare sectors and sanitation jobs.[10] This reduces their ability to work from home, and thus increases their risk of infection and transmission. Marginalized communities are more likely to take public transportation,[11] which further increases their risk of infection and transmission.

    These syndemic vulnerabilities have increased the risk of mortality among these marginalized communities. For instance, in America, the mortality rate of African-Americans and Indigenous/Latino communities is 3.4 times and 3.3 times higher than a non-Hispanic White person.[12] Evidence from past epidemics/pandemics shows that the rates of infection and mortality are always disproportionately higher among marginalized communities.[13]

    Greater Socio-Economic Disruption: Due to a lack of quality education, members of marginalized communities tend to work in lower-wage jobs in the informal sector, which has been worst hit by the pandemic.[14] The percentage fall in employment for marginalized communities has been far greater, indicating that education was a protective factor in the first wave of job losses.[15] Consequently, there has also been greater housing evictions among these communities.[16]The access to quality education for children in marginalized communities has also been severely impacted because they lack access to the internet,[17] affecting their ability to access education. Moreover, low literacy among adults in marginalized communities indicates their inability to assist their children with any form of home learning.[18]

    Therefore, the increased syndemic vulnerabilities of marginalized communities and the consequent disproportionate socio-economic disruptions of the pandemic on them necessitate a greater strive for their inclusion in distributing the vaccine. Early access to such vaccines allows these groups the opportunity to proportionately mitigate these vulnerabilities and disruptions.

    Intersectionality

    Presently, vulnerabilities among individuals are dominantly viewed from a single-axis framework. This ignores the multiple layers and experiences of vulnerability, resulting from an interplay of power structures and different social identities, held by one individual. This ignorance is avoided when using intersectionality, which is an analytical framework that explains how different social, economic, and political identities overlap to create different modes of discrimination and privilege.[19] Thus, it explains how certain individuals in the population are relatively more disadvantaged than others.[20] Intersectionality not only provides a multi-layered understanding of vulnerabilities during a pandemic but also helps prioritize distribution within an identified category, given the scarcity of vaccines.

     

    II.   Proposing a Multi-Value Ethical Framework

    Given its rational criteria, incorporating utilitarianism’s clinical risk factors is quite valuable. However, as argued, vulnerability during a pandemic is also determined by socioeconomic risk factors. Therefore, there is a need to adopt a multi-value approach that incorporates both clinical and socio-economic risk factors. I propose to do so by simultaneously prioritizing the values of ‘collective wellbeing’ and ‘justice’.

    Borrowed from utilitarianism is the value of ‘collective wellbeing’, which aims at maximizing benefits and minimizing harms. Flowing from a syndemic conception of COVID-19 is the value of ‘justice’, which aims at reducing health inequities and treats like people alike. These values are not necessarily always distinct, but their overlap over one parameter indicates a stronger justification. They can be operationalized using an ‘intersectional multi-parameter weighted framework’.

    Operationalizing Values

    The framework is constructed through three layers: (1) for each risk parameter, there is (2) a value-based justification, along with (3) its extent of weightage. The risk parameters are viewed from an intersectional power axis, with value justifications sourced from clinical and syndemic vulnerabilities. The weightage typically connotes a three-point scale, where 3 indicates the highest priority, and 1 indicates the lowest. The priority order is based on the greatness of one’s total score. The lottery method should only be used as a tie-breaker when the score is the same, and no more doses are presently available.

    Age:    Older people are at a significantly higher risk of infection and severe morbidity or mortality due to physiological changes associated with ageing. Globally, more than 95% of COVID-19 deaths were among individuals aged 60 and above. Even among older people, more than half of all deaths occurred in people aged 80 and above.[21]

    Therefore, in descending order, weightage must be given to individuals above 80 years, individuals between 60-80 years, and individuals between 40-59 years.

    Comorbidities:          Depending on the country, between 48-75% of COVD-19 deaths are associated with existing comorbidities. Those with comorbidities are also at moderately higher risk of infection.[22]

    The prioritization has to be categorized based on the severity of the comorbidity, in contracting the infection and causing death. Therefore, in descending order, higher weightage must be given to severe comorbidities, moderate comorbidities, and mild comorbidities. The severity in infection and mortality is different for countries due to distinct socio-economic realities and evolutionary biology. Therefore, this identification and classification need to be uniquely undertaken. However, as a general rule, it is almost universal for HIV, cancer, and most cardiovascular diseases to be severe comorbidities.[23]

    Profession:     Prioritizing frontline healthcare, sanitation, and defence workers are justified because they engage in services, whose absence has the greatest negative societal impact- whether on health, safety/security, or economy. They are also in constant contact with areas and people having the greatest risk of infection. Therefore, protecting them has a multiplier effect, in that their ability to remain uninfected protects the health of others and minimizes societal and economic disruption. Since the state obligates these workers to work in risk conditions, while everyone else is working from home, it is further obligated to protect them.

    Therefore, in descending order, priority must be given to frontline workers, workers in other essential sectors, and workers in non-essential sectors.

    Income:          One’s economic status affects their ability to access healthcare, thus results in higher rates of mortality and severe morbidity.[24] The syndemic approach reveals that poverty compounds one’s syndemic vulnerability.

    Therefore, in descending order, priority must be given to individuals with low-income, middle-income, and high-income.

    Ethnic Identity:         The syndemic approach reveals that marginalized communities are at a greater risk of infection, transmission, and mortality. They are also worst affected by the pandemic, which further compounds their vulnerability. Given these vulnerabilities, prioritized vaccine access to marginalized communities also helps reduce all three risks among the general population.

    The prioritization criteria would depend on the marginalized communities within a country and the extent of their syndemic vulnerabilities. For instance, in America, the syndemic vulnerabilities are greatest for African-Americans, followed by the Indigenous/Latinos communities, and then Pacific Islanders.

    Conclusion

    The conventional models of vaccine distribution are unethical towards disadvantaged groups. While neoliberalism completely ignores the distributive function of law, utilitarianism, lottery, and FCFS at least acknowledge this. However, their criterion of distribution ignores socio-economic vulnerabilities. This ignorance can be addressed using a syndemics approach and intersectionality.

    The syndemics approach explains the socio-economic risk factors that disproportionately disadvantage marginalized communities, both medically and socio-economically. Intersectionality provides a layered understanding of how vulnerabilities affect people, even those in the same group, differently. Using these approaches, I propose a multi-value ethical framework that balances the pragmatic considerations of medical utilitarianism with greater social inclusion. It operationalizes the values of these ethical systems through the priority order generated under an ‘intersectional multi-parameter weighted framework’.

     

    Notes:

    [1] While each country has different marginalized groups, the patterns of vulnerability explored are similar. Thus, marginalized groups have been generally analyzed hereinafter.

    [2] Merrill Singer, Nicola Bulled, et al, ‘Syndemics and the biosocial conception of health’ (2017) 389 Lancet 941, 941-943.

    [3] Clare Bambra, Ryan Riordan, et al, ‘The COVID-19 pandemic and health inequalities’ (2020) 1 J Epidemiol Community Health 964, 965.

    [4] Singer (n 23) 948.

    [5] Harleen Kaur, ‘Indirect racial discrimination in COVID-19 ethical guidance’ (BMJ Blog, 27 August 2020) <https://blogs.bmj.com/covid-19/2020/08/27/indirect-racial-discrimination-in-covid-19-ethical-guidance/> accessed 8 January 2021.

    [6] Bambra (n 24) 965-966.

    [7] Melanie Moses, ‘A Model for a Just COVID-19 Vaccination Program’ (Nautilus, 25 November 2020) <http://nautil.us/issue/93/forerunners/a-model-for-a-just-covid_19-vaccination-program> accessed 8 January 2021.

    [8] Tonia Poteat, ‘Understanding COVID-19 Risks and Vulnerabilities among Black Communities in America: Syndemics’ (2020) 47 Annals of Epidemiology 1, 3.

    [9] Bambra (n 24) 966.

    [10] National Academies (n 16) 30-31.

    [11] ‘Beyond the data: Understanding the impact of COVID-19 on BAME groups’ (2020) Public Health England Report, 22-23 <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/892376/COVID_stakeholder_engagement_synthesis_beyond_the_data.pdf> accessed 8 January 2021.

    [12] Harald Schmidt, ‘Is It Lawful and Ethical to Prioritize Racial Minorities for COVID-19 Vaccines?’ (2020) 324 JAMA <https://jamanetwork.com/journals/jama/fullarticle/2771874> accessed 8 January 2021.

    [13] Bambra (n 24) 967.

    [14] Shruti Srivastava, ‘Millions Escaped Caste Discrimination. Covid-19 Brought It Back’ (Bloomberg Quint, 21 August 2020) <https://www.bloombergquint.com/politics/millions-escaped-caste-discrimination-covid-19-brought-it-back> accessed 8 January 2021.

    [15] Ashwini Deshpande, ‘Differential impact of COVID-19 and the lockdown’ (The Hindu, 22 August 2020) <https://www.thehindu.com/opinion/lead/differential-impact-of-covid-19-and-the-lockdown/article32416854.ece> accessed 8 January 2021.

    [16] Schmidt (n 33).

    [17] Deshpande (n 36).

    [18] Ibid.

    [19] Olena Hankivsky, ‘An intersectionality-based policy analysis framework’ (2014) 13(119) Intl J Equity in Health 1, 2.

    [20] Ibid.

    [21] ‘Supporting older people during the COVID-19 pandemic’ (WHO, 3 April 2020) <https://www.euro.who.int/en/health-topics/health-emergencies/coronavirus-covid-19/news/news/2020/4/supporting-older-people-during-the-covid-19-pandemic-is-everyones-business> accessed 8 January 2021.

    [22] Awadhesh Kumar, ‘Impact of COVID-19 and comorbidities on health and economics’ (2020) 14(6) Diabetes Metab Syndr 1625, 1626-1627.

    [23] Ibid.

    [24] National Academies (n 16) 68-77.

     

    Image Credit: One India

  • Chief of Defence Staff, a year later: Lack of Clarity and an ambiguous Mandate

    Chief of Defence Staff, a year later: Lack of Clarity and an ambiguous Mandate

    On 31st of Dec 2020 India’s first Chief of Defence Staff (CDS), Gen Bipin Rawat, completed one-year in office.  With China recently unveiling its 14th Five Year Plan aiming to bring its military on par with the USA by 2027, it would be interesting to observe if the appointment of CDS has helped the Indian Military spruce up its structure and operational philosophy in any manner.

    Appointment of CDS was put on hold for almost two decades after the Kargil Review Committee made its recommendations.  Opinion among the strategic community has always been divided on the appointment of CDS. Those who argued in favour espoused that CDS would be the panacea for all ills while those who opposed, opined that the time-tested Higher Defence Organisation proposed by Lord Ismay has worked well over the years and hence, the western concept of CDS is unnecessary. Now that the CDS is in place, it is futile to revisit the debate but the functioning of CDS would be a subject of scrutiny for the next few years.

    In the last few months, the Department of Military Affairs (DMA) headed by the CDS came for intense criticism for making proposals about the increase in retirement age and reduction in pensions. Previous proposals such as the closure of CSD canteens at peace stations, opening up of cantonment, doing away with Army Day parade etc, which are believed to have emanated from the DMA have been subjected to ridicule and disdain in the social media. It wasn’t exactly clear as to why the office of CDS was being used for such purely administrative issues, which are counterproductive in enhancing the morale and pride of the forces.

    Men in uniform yearned that CDS would play a vital role in bringing about the true integration of Services HQ with the MoD and expedite the process of defence modernisation. However, after one year, it is indeed of great concern that the office of CDS (read DMA) appears to be focussed on administrative and ceremonial issues with absolutely no strategic significance.

    When CDS assumed charge on 1st Jan 20, it was reported that the CDS would be the Principal Military Advisor to the Government (read Def Minister) and he would head the newly created DMA.  Additionally, he would assume charge of the Integrated Defence Staff (IDS), serve as the permanent Chairman of the Chiefs of Staff Committee (COSC), Head the Tri-Service Commands, and be a member of the Defence Acquisition Council besides the Nuclear Command Authority. Quite a tall order indeed but doesn’t seem to be adequately equipped with a statutory mandate to perform effectively. Men in uniform yearned that CDS would play a vital role in bringing about the true integration of Services HQ with the MoD and expedite the process of defence modernisation. However, after one year, it is indeed of great concern that the office of CDS (read DMA) appears to be focussed on administrative and ceremonial issues with absolutely no strategic significance. One of the first initiatives announced by Gen Rawat was to create an Air Defence Command which is yet to materialise and creation of Theatre Commands seems to be a long haul.

    it is beyond comprehension to fathom what prompted the Government to create a Department of Military Affairs within the MoD when the Integrated Defence Staff (IDS) was already functioning since 2001 awaiting the appointment of a CDS.  As Service Chiefs continue to exercise Command over their respective Service, the CDS as the head of IDS would be rightly placed to promote joint training initiatives, validate joint operational plans and act as a catalyst in defence modernisation.  However, for all this to be achieved, the role and functioning of the CDS should be spelt out; particularly the role of CDS as the “Principal Military Advisor” to the Raksha Mantri, vis-à-vis the Defence Secretary who continues to be the “Principal Advisor” to the Defence Minister. Such vital aspects are never left to chance based on an individual’s equations with political leadership but need to be appropriately institutionalised, mandated and published.

    Currently, Defence Secretary functions as head of the Department of Defence and is additionally responsible for coordinating the activities of the five Departments in the Ministry, including the newly created DMA. The Defence Secretary draws his functional powers from the Cabinet Secretariat –Manual of Office Procedures (CS-MoP) which clearly states that the Secretary of the Department “is the principal adviser of the Minister on all matters of policy and administration within his Ministry/Department, and his responsibility is complete and undivided”. If Defence Secretary is coordinating the affairs of all the five departments including DMA as the Principal Advisor, what is the status of the four-star-CDS?

    The Government of India (Allocation of Business) Rules, 1961 are made by the President of India under Article 77 of the Constitution for the allocation of business of the Government of India. The business of the Government is transacted in the Ministries/Departments, Secretariats and offices (referred to as ‘Department’) as per the distribution of subjects specified in these Rules. Allocation of Business Rules has not been revised since 2017 though DMA has been created one year ago.  As a result, the DMA is not listed in the First Schedule of the Allocation of Business.

    Transaction of Business (Rules) 1961 are made by the President of India for the convenient transaction of the Business of the Government of India. The disposal of business by various ministries, inter-departmental transactions and mandates of various committees are published in these rules. The significance of these rules can be gauged from the fact that the rules have been recently amended to deal with unprecedented challenges posed by Covid 19 pandemic. Cabinet Secretariat has amended Government of India Transaction of Business Rules, 1961 to widen powers of two committees to meet the economic crisis caused by Covid 19, using the powers under the Act. However, Transaction of Business Rules has not been revised clearly defining the role of CDS as the Principal Military Advisor to the Government.

    The organisation chart in the MoD has been removed possibly because it would only be too embarrassing to place the CDS under the Defence Secretary. There is an urgent need for the GoI to create a meaningful role for the CDS and empower him with a statutory mandate.

    A cursory glance at the website of the Ministry of Defence would reveal a lack of any sincerity in assigning specific responsibilities for DMA. It has been casually mentioned that DMA “deals with the armed forces of the Union….. and promotes jointness among the three services”. Were these objectives not met by the MoD in the past? So what value addition has the DMA provided? The organisation chart in the MoD has been removed possibly because it would only be too embarrassing to place the CDS under the Defence Secretary. There is an urgent need for the GoI to create a meaningful role for the CDS and empower him with a statutory mandate.

    Indian Military is not expeditionary. However, if there is a convincing need to create Theatre Commands in pursuit of joint operations and interoperability, replacing the existing 17 Service-specific Commands by fewer Theatre Commands would be the most challenging task for the CDS. If the experience of USA, UK and other major militaries is anything go by, such major military reforms could be pushed through only with steadfast backing from the government, taking all three services into confidence and aligning the entire military leadership with the desired outcomes of this humungous exercise which may eventually need constitutional validity through an Act of the parliament.

    For the appointment of CDS to make a meaningful purpose the following measures are imperative:

    • Abolish the DMA and facilitate the CDS to take complete control of the IDS, keeping its functioning outside the purview of Def Secretary
    • Revise the CS-MOP, Allocation of Business Rules, Transaction of Business rules and the Warrant of Precedence, clearly bringing out the role and responsibilities of CDS as the Principal Military Advisor to the Defence Minister, in contrast to the roles and responsibilities of the Defence Secretary which may also now need to be re-drafted.
    • Make CDS a permanent member of the Cabinet Committee on Security facilitating the single-point military advice to the National Security Council.
    • The cabinet should spell out a Defence Policy Guidance (DPG) with a 12 year to the 15-year horizon in the light of prevailing and forecasted geo-political scenario and assist the CDS in preparing a clear roadmap for Indian Military Modernisation

    To abrogate the stigma of “Attached Offices”, and to integrate the Services HQ with MoD, a beginning needs to be made by augmenting the IDS with officials from the MoD.

    • Currently, the budgeting and procurement plans are made in isolation and subject to scrutiny by the Ministry of Fin (Def) thereby losing time and effort. IDS needs to be adequately empowered by augmenting it with an integral wing of the Ministry of Fin (Def) headed by a Joint Secretary ranked officer.
    • A Defence Production Wing under the charge of an Additional Secretary ranked officer reporting directly to the CDS should be created with the long term objective of achieving complete integration of the department of defence production with IDS. This suggestion would certainly be the most unpopular with the bureaucracy but could turn out to be a game-changer if achieved.

    Kargil Review Committee had recommended the appointment of CDS to integrate the armed forces in their planning, procurement and functioning to transform the Indian Military as a unitary force to reckon with.  In the absence of a clear mandate and constitutional validity for the functioning of the CDS, the entire effort of instituting one, seems to be of little consequence, much less, competent of driving any significant reforms. The current arrangement needs a complete overhaul if that is to be achieved.