Carbon sink: the states have to be equal partners

A fortnight ago, India made its first commitment to reduce the carbon intensity of its economic activity, ahead of the international climate change talks to be held in Paris in December. The move was widely welcomed, but the question of how the target of reducing emissions per unit of gross domestic product by 33-35% by 2030 with 2005 as the base year can be achieved remains unanswered.

Will it be a cap-and-trade system such as the one China has promised; a carbon tax such as the one discussed in some recent government discussions on the increase in excise duties on fuel; or subsidies for newer forms of energy such as solar?

The blueprint for achieving the green pledge is rather blurry, but one powerful proposal is the one to expand India’s carbon sink to absorb emissions. India has committed to create an additional carbon sink of 2.5 to 3 billion tonnes of CO2 equivalent through a growth in forest and tree cover by 2030. But again, the strategy to achieve this commitment is not clear, especially since the current rate of forest cover growth could be inadequate.

According to the Indian Council of Forestry and Research estimates, from 1995 to 2005, carbon stocks stored in our forests registered an annual increment of 37.68 mt of carbon or 138.15 mt of CO2 equivalent.

At this rate of growth, India would be able to capture carbon emissions equivalent to 2.07 billion tonnes of CO2 by 2030, leaving it around 0.5 to 1 billion tonnes short of the target by 2030.

India plans to raise its forest cover to 33% of its land area through a planned afforestation drive, which includes a number of programmes and initiatives such as the Green India Mission, green highways policy, financial incentive for forests, plantation along rivers, the United Nations REDD+ programme to create financial value for the carbon stored in forests, and the Compensatory Afforestation Fund Management and Planning Authority in India.

Having the states on board is crucial in this exercise. Forests fall in the concurrent list of the Constitution, and are the responsibility of the states as well as the centre. An inter-state comparison of forest area in the latest Forest Survey, shows us that states with maximum forest cover—such as Madhya Pradesh, Arunachal Pradesh and Chhattisgarh (with the exception of Maharashtra)—have all shown a dip in forest cover from 2011 to 2013. The north-eastern states, with more than 75% forest cover, have also shown a decrease. Overall, forests expanded at the rate of 0.18% a year.

Forests and the positive externalities associated to them have an impact both on the revenue capacities and the expenditure needs of states. As a result, there are tensions between growth and environmental concerns. The quashing of the Madhav Gadgil Committee recommendations on preserving the forests of the Western Ghats is an example of how states have strong reasons to prioritize development over preserving forests. The unenthusiastic formulation of State Action Plans illustrates their general apathy towards afforestation and the larger issue of climate change.

The Fourteenth Finance Commission has assigned a 7.5% weight for forest cover in the new devolution index, to compensate states for their opportunity costs for maintaining forest cover as a part of a national carbon sink. It could be thought of as a payment by the industrial states to the states with dense forest cover. This is the right approach since the international commitment on a bigger carbon sink cannot be met unless the states have strong incentives to protect their forest cover.

Trusting the states with a greater percentage of the tax pool confirms to our federal tradition and shows the centre’s confidence in the states to make the right choice. But it should by no means end here.

A one-solution-fits-all remedy may not be the right way to nurture our forests. States and local bodies should be included at the planning and execution level to find the right solution for the right region. And states on their part must reciprocate by being more active in contributing to the national climate change goal.

Indian microfinance institutions have just busted a myth

By definition, microfinance is the business of giving tiny loans to people who do not have access to formal banking services. The Investopedia website defines microfinance as a type of banking service that is provided to unemployed or low-income individuals or groups who would otherwise have no other means of gaining financial services. “...the goal of microfinance is to give-low income people an opportunity to become self-sufficient by providing a means of saving money, borrowing money and insurance,” it says. In India, microfinance institutions (MFIs) cannot collect deposits, but sell insurance products, besides offering small loans that are typically paid back in weekly or monthly instalments.

Such institutions operate in the hinterland where traditional banks balk at serving. Or, so we believed. The scene has changed. MFIs have shifted their focus from rural pockets to urban India. For the first time in its 25-year history, Indian MFIs have more urban clients than rural ones. The latest data, compiled by industry self-regulatory organization Sa-Dhan, shows 67% of the 37 million MFI customers live in urban India.

The share of rural customers was 69% in fiscal year 2012. That dropped marginally to 67% in 2013. In the following two years, the share of rural customers has declined drastically. In 2014, rural customers constituted 56% of the total. It dropped further to 33% in the following year. This busts the myth that Indian microfinance is predominantly a rural phenomenon, very different from what we see in Latin America and large parts of Africa and Asia.

The industry’s outreach to urban clients was increasing every year and it has now outstripped that of rural customers. Why has this happened? Before we look for an answer, let’s look at the broader picture. The industry had a customer base of 37.1 million in March 2015, up from 33 million a year ago. It included 6.5 million customers of Bandhan Financial Services Ltd, the largest MFI that turned into a bank in August. The percentage of women customers remained unchanged at 97%, while the share of Scheduled Caste and Scheduled Tribe customers rose from 19% to 28%. The loan portfolio was close to Rs.40,000 crore and 80% of it was for income-generating activities. The average loan per borrower in the year ended 31 March rose to Rs.13,162 from Rs.10,079 in at the end of the previous fiscal.

The quality of assets has improved. If we leave a few MFIs that had been affected by the crisis that gripped the industry following the Andhra Pradesh state law five years ago, the industry’s non-performing assets (NPAs) were to the tune of 13 basis points as on 31 March. A basis point is one-hundredth of a percentage point.

Such MFIs were referred to the so-called corporate debt restructuring cell as their equity and reserves were eroded by accumulated bad loans. About 80% of 250-odd MFIs have less than 1% of their loan portfolios at risk. About 12% of MFIs have 1-3% of their loan portfolio at risk, and 8% of MFIs have more than 5% of their loan portfolio at risk. The loans at risk are those that have not been serviced for 30 days.

In contrast, the quality of small loans distributed through the so-called self-help group (SHG) model is inferior. The number of SHGs shrank to 7.71 million in 2015 from 7.43 million in the previous year even though the number of families involved in SHGs increased from 97 million to 101 million. SHGs, typically a group of 20 women, save as well as offer credit to its members from money sourced from commercial banks. SHGs’ total savings stood at Rs.11,307 crore in 2015 and the loan portfolio was Rs.51,727 crore. The average loan outstanding per SHG was Rs.1.15 lakh and NPAs were 7.4%, up from 6.8% in the previous year.

One reason behind the rise in urban customers is the phenomenal growth of a few urban-focused MFIs such as Janalakshmi Financial Services Pvt. Ltd, Ujjivan Financial Services Pvt. Ltd and Satin Credit Card Network Ltd. These three collectively had around 5.7 million customers in March. Their growth last year had been higher than the average industry growth and most of their customers live in urban India. Till it became a bank, Bandhan had an 18% market share of customers, followed by SKS Microfinance Ltd and Shri Kshethra Dharmasthala Rural Development Project. Others among the top 10 are Janalakshmi, Equitus Microfinance Pvt. Ltd, Spandana Spoorthy Financial Ltd, Share Microfin Ltd, Satin and Grameen Koota Financial Services Pvt Ltd. Janalakshmi, Ujjiivan and Equitus have received in-principle approval from the Reserve Bank of India to become small finance banks.

Another reason behind the growth in urban customers is the shift in the business models of many MFIs. They are becoming increasingly urban-centric to cut down operational expenses and maximize operational efficiency. Under the priority sector lending norms, banks in India are required to give 40% of their loans to small borrowers. As they do not have the reach, they give money to the MFIs to be on-lent to such borrowers. While fixing the loan price for small borrowers, the MFIs cannot charge more than 10% over the cost of loans taken from banks. This means their profitability solely depends on operational efficiency as the cost of raising resources is almost the same for all MFIs.

The rise in urban clients of MFIs also tells us that banks in India have a cultural problem—they don’t like small borrowers, be they in rural or urban India. The official reason for not reaching out to small borrowers are many—ranging from higher transaction costs and lack of reach to the absence of a competent rural cadre. These probably explain the banks’ absence in remote villages. But what about urban India? Our drivers and housemaids, vegetable vendors and fishermen in Mumbai and Delhi are being serviced by MFIs as the banks refuse to see business there

GM cotton: whitefly attack raises anxiety among farmers

PAU is now recommending farmers to sow traditional non-Bt varieties of American and indigenous cotton

The ineffectiveness of genetically modified (GM) cotton against the recent whitefly attack in Punjab and Haryana, which witnessed widespread protests by farmers, has raised concern among agricultural experts and farmers over the growing dependency on Bt cotton.

They believe it is time for India to actively promote and involve public-private partnership (PPP) model in GM crop technology and also focus on developing new technologies to fight pest infestation on cotton and other crops.

The whitefly attack in Punjab that damaged over 75 per cent crop across the cotton belt had led to widespread protests in the past few days. The damage to the cotton crop, over 95 per cent of which is Bt cotton, is estimated to be around Rs. 4,500 crore. It is also being blamed as a reason for suicides of over a dozen farmers in the cotton belt, including Abohar, Fazileka, Bathinda and Muktsar districts.

The whitefly attack on Bt cotton crop is the latest reason for the government to work and develop new crop technologies.

“It’s high time, the government should start thinking beyond GM crop and focus on new crop technologies by adopting successful PPP models from other nations or develop its own,” C.D. Mayee, president, Indian Society for Cotton Improvement, told The Hindu.

He said the GM crop technology served a good purpose, but there was always a possibility that pests might develop resistance. It was, therefore, that the government must evolve new crop technologies.

“Bt cotton is around 14 years old technology and is effective against specific type of bollworms, but not insects such as whitefly,” he said.

“Whitefly attack is expected to cause over 50 per cent drop in cotton yield this season in Punjab,” said R.K. Gumber, Additional Director of Research (crop improvement) at Punjab Agricultural University (PAU), Ludhiana.

PAU is now recommending farmers to sow traditional non-Bt varieties of American and desi (indigenous) cotton during next season in areas susceptible to high infestation of whitefly. “If farmers want to reduce dependency on Bt cotton, they should preferably sow desi cotton as it is comparatively tolerant to sucking insect pests, including whitefly,” said Dr. Gumber.

Cotton farmers in Punjab, however, say they do not have a better choice for the next season. “We don't have an alternative to Bt cotton in this area. Desi cotton is not viable as its yield is very low and also it has its own set of infestation problems,” said Balwinder Singh, a farmer.

Engaging with an aspirational Africa

India’s attitude towards Africa cannot remain imprisoned in the ‘dark continent’ stereotype. Neither can it be defined solely by the legacy of the colonial era. Our language of engagement needs to create a new edifice defined by an aspirational Africa’s quest for a good life

The views of most Indians, including the educated ones, about Africa are still largely trapped in stereotypes. The episodic reportage in the media perpetuates some myths: Africa is still the land of jungle safaris; the place of Mahatma Gandhi’s first satyagraha; the continent of Ebola, HIV and tribal conflicts; the home-place of both Idi Amin and Nelson Mandela. We also see news items on Nigerian students peddling drugs and the hosting of fancy wedding ceremonies for India’s nouveau riche in South Africa. In short, a ‘dark continent’ with some bright spots. Some new stereotypes have also come to shape contemporary views of Africa — it is a growing market for Indian companies but the Chinese have stolen a march over the Indians.

The success of the Africa-India Summit being hosted this month in New Delhi will have to be measured by the extent to which it challenges these stereotypes and encourages greater people-to-people contact between the neighbouring continents. Can India’s ‘sub-continental drift’, so to speak, away from, what can be called, its ‘Mother Continent’, be reversed?

Rise of the African middle class

At the turn of the century The Economist magazine (May 2000) ran a cover story on Africa titled “The Hopeless Continent”. Thirteen years later the magazine returned to that ‘hopeless’ continent and published a cover story (March 2013) titled “Africa Rising: A Hopeful Continent”. The lead editorial focused on an ‘aspiring Africa’, drawing attention to the rise of a new urban middle class seeking the good things of life.

“Africa is booming,” reported Fred Swaniker, founder and executive chairman of the African Leadership Academy (South Africa), at a conference that the International Institute for Strategic Studies organised on African geo-economics a couple of years ago. “One feels it every time one lands in Lagos, Addis Ababa, Nairobi or Accra... The energy on the streets is palpable, and for once, the rest of the world is noticing.”

Africa is no longer just about resources. A 2010 McKinsey report, entitled “Lions on the Move”, found that in the first decade of the 21st century, growing consumer spending contributed more to the growth of African economies than the commodities boom of that decade. This is one reason the World Bank and other institutions still remain optimistic about Africa’s economic rise despite the end of the ‘commodities super cycle’— the long-term decline in commodity prices, especially oil.

Despite the perpetuation of stereotypes at home, Indian businesses have been betting big on Africa’s rise. Many big Indian companies have already invested in opportunities presented by Africa and, contrary to the widespread perceptions, India is ahead of China at least in terms of private corporate investment. Greenfield projects involving investments from India are twice the number of such projects funded by investment from China, according to a recent report of the African Development Bank.

Business-to-business links

Several Indian business leaders with investments in Africa have told this writer that they are happy to have entered Africa and their business is doing well in Africa. Business-to-business links between India and several African nations, across the continent and including key markets in the eastern, southern and western regions of Africa, have become increasingly important and are driving the government-to-government relationship.

Investment from India accounted for six per cent — compared to three per cent from China — of all greenfield projects in Africa in the period 2009-14. While Europe and North America continue to dominate investment into the continent and still account for over 50 per cent of such projects, their share has been declining over the years while that of China and India has been rising.

Mr. Swaniker attributes Africa’s economic rise to five factors: an improving political governance; a rapidly growing population; urbanisation; a better-educated and skilled workforce; and, global demographics that will enable Africa, like India, to remain a young continent in an ageing world. Clearly, these factors mimic the Indian development experience.

There is one other key similarity between Africa and India — regional diversity. If India is a sum of its diversities, so is Africa, in every sense of the term. Equally, it too is marked by geo-economic diversity. Just as coastal India is more developed than the landlocked regions, coastal Africa is more developed than inland Africa, except where nature has blessed it with oil and other valuable commodities. It may have been a good move for Prime Minister Narendra Modi to invite a mix of State Chief Ministers to interact with the African heads of government because the continent-to-continent dialogue is in fact conducted at the level of nations and States.

India’s new middle class may find a better connect with their aspirational African counterparts. Urbanisation is the growth engine for many African nations, spawning a new urban middle class that young India has to discover and relate to. Yet, city-to-city connectivity between India and Africa is virtually non-existent. Barring a couple of flights from Mumbai, there are few flights directly connecting cities in India to African cities. Better connectivity will boost people-to-people links, a weak link in the growing trans-continental relationship. Absence of a greater interaction between the constituents of a new aspirational Africa and their counterparts in a rising India has meant that the trans-continental relationship has been largely defined by the legacy of a shared colonial past rather than by the potential for a dynamic present and a promising future.

African culture deserves exposure

While the language of the new engagement with Africa should build on the foundations of the past — Gandhi, Mandela and Afro-Asian solidarity — it must create a new edifice defined by aspirational Africa’s quest for a good life. African music — especially that from west Africa (Baaba Maal and Youssou N’Dour) and South Africa (Miriam Makeba and the group Ladysmith Black Mambazo) — has its fan following in India. However, the more recent trends in modern African culture deserve wider exposure, especially on Indian television.

Authorities in China have invested in a systematic, institutionalised campaign to purge at least the educated urban Chinese of their racial prejudice against ‘black’ Africans. Enough has not been done in India, as is evident from the sporadic incidents of racist abuse against African students and tourists. Without a change of attitude at the people-to-people level, mere summitry at the top and government-sponsored events are unlikely to bring India and Africa closer to each other.

Another aspect of Africa’s diversity is the changing power equations among the continent’s leaders and laggards. Before the end of Apartheid, it was the nationalist post-colonial leaders like Kenya’s Jomo Kenyatta; Zambia’s Kenneth Kaunda; Ghana's Kwame Nkrumah; and Ethiopia’s Haile Selassie who spoke for Africa. Then Nelson Mandela rose to tower over all.

Thanks to Mandela and the competent Thabo Mbeki, South Africa gained salience and emerged as a continental leader. South Africa became part of the IBSA (India, Brazil and South Africa) group of developing world democracies, countries seeking membership of the United Nations Security Council. It also was admitted to the more high-profile BRICS (Brazil, Russia, India, China and South Africa), to which it was invited by China. South Africa seems to have since lost the stature, on account of corruption and incompetence of its present leadership under President Jacob Zuma, and its economic slowdown.

On the other hand, despite the fall in oil prices and civil strife within, Nigeria has gained in regional and global stature on account of the successful democratic transition and the new government’s battle against corruption and sectarianism. Given the rise of several other countries in Africa, and Egypt’s stabilisation, it is now not clear which African country would join the Group of Four (G4) — Brazil, Germany, India and Japan — in seeking UNSC membership. This explains Africa’s absence at the recent G4 Summit.

The diversity of the African growth experience, and of the continent’s geo-economic and geopolitical evolution in the post-Cold War period, has opened up new opportunities for Indian diplomacy and business. To be sure, other rising and major powers are also busy engaging with an aspirational Africa. What this means is that the opportunity that presents itself to India requires careful nurturing and much investment at all levels. Old slogans and platforms from the post-colonial Cold War-era will find few takers in modern post-Cold War Africa. It is the interests of a new aspirational, rising and hope-filled continent that India must now address.

Pension fund regulator seeks fiscal support from Centre

The assets under management of its National Pension System has crossed the one trillion mark in the first week of October.

After achieving a new milestone in assets under management (AUM) and subscriber base early this month, the Pension Fund Regulatory and Development Authority (PFRDA) is looking for some fiscal support from the government for its ongoing move to expand subscriber base further.

The AUM of its national pension system (NPS) has crossed Rs.1-trillion-mark in the first week of October at around Rs.1,10,000 crore, while the NPS subscriber base also crossed 1-crore-mark in the first week of October.

“Our efforts are now targeted at expanding the subscriber base further, particularly in the corporate and the private citizens segments. We are looking to an early breakthrough in this segment, which will grow the base and coverage significantly,” PFRDA Member R. V. Verma, told PTI.

Grievance redressal mechanism

“Some fiscal support from the government will considerably help us. And we will take up this request again with the government,” he said. But he did not specify how much fund the pension fund regulator is looking at from the government. Besides, the regulator is also focusing on strengthening its grievance redressal mechanism.

“We are also focusing on strengthening the grievance redressal mechanism for the subscribers for which PFRDA has directed all the intermediaries to attend to the grievances on priority basis and resolve them at the earliest,” he said, adding “we’re closely monitoring the status of grievance resolution through the NPS Trust.” This will remain an area of priority for the PFRDA for which we have also taken up the matter with the Centre and the States for greater discipline and timeliness among their nodal offices in NPS rollout, he said.

“We’re confident that better coordination and a greater sense of responsibility on the part of the Centre and States will substantially reduce grievances. The grievance redressal mechanism is being constantly strengthened and streamlined,” he added.

The regulator is also working towards further improving the infrastructure for minimising the response time. As part of this measure, PFRDA is more closely co-ordinating with the Centre and States whose share accounts for over 90 per cent of the total AUM. Other important area of the regulator’s initiative is to harmonise the scope of NPS for the government and private/corporate sector, thus bringing parity between these two segments in terms of choice of pension fund managers and investment allocation choice.

Mr. Verma further said, “This will be done in a calibrated manner, under the broader recommendations of the GN Bajpai panel and in close consultation with the government. Currently, this is a work in progress.”

“This will also open up the scope for greater competition for funds among the pension fund managers which in turn will bring greater value in terms of efficiency, pricing and better service to subscribers,” he added.

Subscribers also in parallel will be empowered and educated through various financial literacy programmes and also through information websites with PFM/NPS Trust.

“The idea is to provide all the required information to subscribers about the market and the performance of PFMs (Pension Fund Managers) so as to enable them to take informed decisions. PFRDA will partner with all stakeholders in this effort of subscribers’ education which will be an on-going process,” he added.

Judging the Judge-maker

The four judgments of the majority have reasserted judicial independence, with its concomitant autonomy in appointments, as an integral part of the Constitution’s basic structure.  

A powerful two-term Chief Minister of a central Indian State was seen obsequiously bowing and scraping and loudly saying “Yes Sir, No Sir, As you please, Sir” to an innocuous High Court judge. A friend of the Chief Minister later asked him why the most powerful man in a huge State was kowtowing to someone who only a few months prior, as an undistinguished government pleader, would not have been given even an audience. The Chief Minister’s eyes twinkled as he replied to his friend, “Now, he is one of the few people who can remove me from my chair”. The friend’s eyes twinkled as well when he recollected that the Chief Minister too owed his fortune to his predecessor having to resign after a court verdict.

The story may be apocryphal, as many stories from the bar are, but it explains exactly why judicial appointments are so vital in the running of a constitutional democracy. It also explains why the executive and legislature seek to have a say in the process of selecting judges and why today’s judges zealously seek to protect their two decade-old process of immaculate conception, unassisted by other organs of the state.

Till 1993, judges were appointed by the executive in consultation with the judiciary. In good times, consultation with the judiciary went beyond seeking of opinion to attempt a consensus. However, the judicial voice was often neither dominant nor decisive. In bad times, however, governments made calls for a “committed judiciary”, attempted to court-pack and sometimes indulged in rank favouritism. The situation prompted Ram Jethmalani to famously remark, “There are two kinds of judges, those who know the law and those who know the law minister.”

Quiet revolution

It was in this backdrop, in 1993 during Narasimha Rao’s minority government, with Mandal, mandir and economic liberalisation simultaneously boiling, that a quiet declaration of judicial independence occurred. Justice J.S. Verma’s judgment in the Supreme Court Advocates on Record case, gave the Chief Justice and senior judges of the Supreme Court and the High Courts the power of making almost binding recommendations, for future appointments of judges in the constitutional courts.

Whenever a vacancy arose in the brotherhood, it would be filled by someone pre-approved by the judges and the executive could only demur in the appointment if cogent grounds existed. If, despite executive demur, the judges insisted on the appointment, the executive would have to confirm it. The Indian judiciary managed to create, by constitutional interpretation, a self-appointing elite. Within that elite, the power to recommend appointments belonged to a super-elite called the collegium.

In 1998, during the Vajpayee Government, on a presidential reference, the Court defined the collegium thus: “The opinion of the Chief Justice of India ...has to be formed in consultation with a collegium of Judges. Presently, and for a long time now, that collegium consists of the two seniormost puisne Judges of the Supreme Court. ...The principal objective of the collegium is to ensure that the best available talent is brought to the Supreme Court bench.”

The judgment also went on to increase the size of the collegium by holding that “we think it is desirable that the collegium should consist of the Chief Justice of India and the four seniormost puisne Judges of the Supreme Court…” Separate Collegiums of three senior judges were provided for the appointment of High Court judges.

Unstable structure

Since the collegium comprised of the most senior amongst the judges, who all retired upon turning 65, its composition was never stable. On an average, a senior judge would normally serve in the collegium for three years or less and would head it for less than a year. Hence, securing judicial appointments through the collegium became a deadly game of musical chairs and Russian Roulette, randomly mixed. Any High Court judge, hopeful of going higher, found himself desperately seeking not to anger any possible member of the collegium. Sometimes, collegiums got stymied, when old rivalries between its members saw each other’s favourites getting vetoed. There were also times that collegium meetings became examples of bargaining within the collective, and consensus emerging from a division of the spoils. In this system, while no single politician could ensure that a candidate became a judge, it was quite likely that a single judge’s wrath could wreck a hitherto promising judicial career.

The resultant appointments by the collegium, can largely be described as middle-of-the-road, with the elimination of most outliers. Thus, brilliance often got mistaken for unsteadiness and vice versa. Seniority became an indispensable shibboleth. Equally, while a reputation for corruption was a disqualifier, lesser evils like tardiness or sloth often got glossed over. Most importantly, decisions on appointments were hugely delayed, as judges resorted to politicking.

But the collegium also ensured that judges were not beholden to any politician. A bold judgment could end up unseating the most powerful of politicians or irretrievably damaging them. Politicians of all hues yearned for the early years of strong governments with huge parliamentary majorities, where judges were sometimes seen, but rarely heard of.

Towards the end of the UPA regime, the government sought to tame judges by demolishing the collegium. It brought in a constitutional amendment to provide for the National Judicial Appointments Commission (NJAC) — an independent commission with three senior judges, two eminent outsiders and the Law Minister. The UPA’s inept parliamentary handling led to a failure of the bill. A commanding NDA victory in 2014 saw the Modi government revive the proposal and Parliament amended the Constitution brought about the 99th Amendment to provide for the NJAC. Subsequent ratification of 20 States was obtained and it seemed that the collegium was history.

Petitions were filed challenging the constitutional amendment. Going by earlier experiences of judicial standoffs, many men of law expected that a constitutional amendment, almost unanimously passed by Parliament, would be rubber-stamped by the Court. Some were hopeful of judicial creativity finding a via-media which, while upholding the amendment, limited governmental interference. When the judgment was delivered on October 15, 2015, it was a decisive blow. The Court by a 4-1 majority, struck down the 99th Amendment. Justice Kehar’s judgment concluded that the NJAC did “not provide an adequate representation, to the judicial component” and that “clauses (a) and (b) of Article 124A(1) are insufficient to preserve the primacy of the judiciary in the matter of selection and appointment of Judges” It further held that “Article 124A(1) is ultra vires the provisions of the Constitution, because of the inclusion of the Union Minister in charge of Law and Justice as an ex officio Member of the NJAC.” The clause it was held, impinged upon the principles of “independence of the judiciary”, as well as, “separation of powers”. The clause which provided for the inclusion of two “eminent persons” as Members of the NJAC was held ultra vires the provisions of the Constitution, for a variety of reasons.

The four judgments of the majority have reasserted judicial independence with its concomitant autonomy in appointments, as an integral part of the Constitution’s basic structure. No parliamentary majority can amend the Constitution to alter its basic structure and hence the 99th Amendment failed constitutional scrutiny. The court has reinstated the collegium as the clearinghouse of all judicial appointments to the constitutional courts. It has also decided to have further hearings in November to iron out wrinkles in the working of the collegium.

Justice Chellameshwar’s dissenting judgment, has, with strong logic, beautifully worded, upheld the constitutional amendment which scrapped the collegium. Like all dissents, his judgment is an appeal to the future and the powerful brooding spirit of the law. He ended his dissent quoting Macaulay’s dictum, “Reform that you may preserve.”

The Court has now opted to take the path to reform, rather than change to an altogether new road created by Parliament. It is to be hoped that the court’s choice leads not to the dreary desert sands of dead habit, but into ever widening thought and action.

Revising civil service recruitment

In 1954, as a wide-eyed 17-year old university student (in those pre-Class XII days), I trudged up and down New Delhi streets, camera in hand, looking for that decisive moment, to capture the right image. The Holy Grail for a novice photographer was acceptance by The Statesman for its then iconic Monday column, 'New Delhi Notebook', and my photo that made it (probably in 1956) was taken on Shah Jahan Road, of a solitary tonga, ambling under a tree canopy, early on a mist-draped winter morning. That road is home to Dholpur House, the seat of the Union Public Service Commission (UPSC), the mecca for my ilk; many of us dreamt of the Foreign or Administrative Service as the pinnacle of our ambition.

The UPSC is unique among Indian institutions in its sustained, impeccable reputation for probity and fairness. It will thus be with special caution, I imagine, that the Expert Committee set up by the GoI in September 2015 will tackle its mandate to review all the processes and modalities of civil service recruitment. Its terms of reference are: 'to arrive at an examination pattern that is holistic and does not exhibit any bias for or against candidates from any particular stream, subject area, language or region.' This committee is to give its report in six months, and one hopes it will honour that deadline, notwithstanding the complexity of its task. It is to study the plan of examination, number of papers, their structure and duration, marking scheme, weightage of marks and system of evaluation, besides age limits and the wider factors mentioned above.

Offered here are some thoughts. First, consider the huge numbers that our civil service exams involve. Roughly 950,000 apply for the annual selection; of these, 460,000 take the 'preliminary' exam. That is ruthlessly pared down to a mere 15,000-odd that qualify for the 'main' exam. This second written test winnows the number to 4,000 that are called for interviews. We might call them the 'Grand Catchment' for the annual civil service intake. In the current system, they appear before the multiple interview boards that work in parallel, each chaired by a UPSC Member, assisted by a cluster of retired officials and others. Under time pressure, a mere half-hour is prescribed for each interview; in practice this leaves barely 25 minutes to engage each candidate, and assess her/his worth for public service. Is that sufficient for such a major selection?

Parliament has been concerned with the subjectivity of interviews, and over the years, the marks assigned to it have been pared down, to minimise this element. We also see a trend to do away with the interview altogether, for the junior branches of public services. But subjectivity can also be tackled another way, by making the interview process multi-layered, assessed separately by several professional panels, leaving no scope for manipulation.

Other public services around the world stretch their assessment of individuals to two or more days, conducted via complex programmes of individual and group interviews and discussions, tests and activities that gauge ability to respond to time and other pressures, people skills, service attitudes and empathy, plus psychological profile. Many will say there is simply no time to do this. That connects with my next point.

Second, why not accept the demand of the IFS, the Indian Police Service (IPS) - and perhaps from the Indian Administrative service as well - and subject that final crop winnowed from the written exam process, to separate interview streams, suited to particular services? The IFS needs officials with sound communication ability, outgoing personalities, those that are adept at engaging people across cultures. Every country with a serious-minded diplomatic service, be it Singapore, Thailand or the UK, conducts such interviews over two or three days, often through a residential programme.

Before someone throws up their arms that the UPSC cannot possibly get into such lengthy interviews, why not outsource them to the indenting ministries, closely monitored by the UPSC? Thus, the ministry of external affairs, seeking 40 recruits, would interview the top 160 (in conformity with established reservation formulas), that have offered the IFS as their choice, in that same cascading service selection process that applies today to the final appointment of the successful candidates. MEA can hold a full-day interview, or stretch it to two days, under close supervision by a UPSC Member. The home ministry would similarly conduct interviews for the IPS, and perhaps the Department of Personnel for the IAS. One might imagine another ministry, say finance, opting to handle its interviews for those opting for financial management services, such as Audit, Customs, and Income Tax. For other services user ministries might opt to jointly or individually establish their own processes.

Third, the professional work of IFS officials is principally in the world's international lingua franca, and that requires mastery over English. This is not a matter of patriotic attachment to Indian mother languages. One can think of a special formula of, say, a year of additional English language training for candidates that have opted to write UPSC papers in Indian languages. However implemented, the requirement that IFS officials need fluid mastery over English becomes self-evident to anyone that has attended a drafting group meeting at any international conference.

Fourth, in a clamour for age relaxation under various formulas and concessions implemented over time, the average age of entry has risen continually, as has the spread in the ages of the youngest and oldest in every service cohort.

That does not make for healthy internal dynamics within services. Why not cutback to stricter age norms?

Finally, a country that does not often come to mind when we look to foreign experiences: consider China, in addition to the more obvious choices. Besides its public services, the Chinese Communist Party (CCP) operates a huge, rigorous selection - and training - process, from the junior-most to minister and governor levels. We can learn much from the numbers processed and the surprisingly objective procedures. Always, the caveat will apply, that no foreign system can do more than offer some leads, which need examination and reframing, for highly selective adaptation in India.