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Improving the Quality of Laws in India: A Qualitative and Quantitative Approach

Governance
Prashant Narang and Jayana Bedi |
August 10, 2022

Laws and regulations impact the social and economic well-being, and freedom of members of society. They alter how individuals interact and trade with each other. While all laws and regulations alter behaviour and impact stakeholders, a good regulation maximises social welfare while minimising the cost and extent of intervention (CUTS International n.d).                        

A cost-benefit analysis alone is insufficient to assess the quality of a law or regulation. This is, in part, because it is not possible to know all the costs and benefits associated with a specific regulation. Further, while known costs and benefits can be calculated, there will be costs and benefits that are impossible to predict ex-ante (Bastiat 1850). Added to this, is the knowledge problem (Hayek 1945). All the relevant data will never be available to any one individual since this knowledge and data is distributed among individual actors.    

To tackle this challenge, we have developed a two-fold method to assess the quality of a law. First, we propose using a 3-part Quality of Laws Toolkit that reviews laws on three safeguards: Representation, Rights, and Resources safeguards. Representation safeguards ensure that the interests of stakeholders and the general public are reflected in a law. Rights safeguards check whether a law protects the rights of individuals. Resources safeguards assess the impact of a law on stakeholders’ incentives and the administrative burden it imposes. Second, we use Mercatus Center’s RegData to quantify different aspects of a law: volume, restriction, and complexity.            

This compendium has three parts. The first part elaborates on the 3Rs of the Toolkit and presents the question-set under each. The second part provides guidance on using the Toolkit by applying the ‘Rights’ safeguards to all state school education laws. The third part elaborates on the quantitative methodology and applies it to all national laws in India. 

 

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Model Service Delivery Act

Governance
Sriram Prasad, Sharan Bhavnani, Astha Pandey, and Prashant Narang |
August 10, 2022

The concept of Citizens Charters were introduced in 1997 across various levels of government, in both the Union and States. However, these charters remained ineffective due to their voluntary nature. The improvements in technology and internet penetration in India made for a fertile situation legislatie on timely delivery of services, including those delivered electronically. The Right of Citizens for Time Bound Delivery of Goods and Services and Redressal of their Grievances Bill, 2011 and the the Electronic Delivery of Services Bill, 2011 attempted to achieve these goals. However, the Bills lapsed along with the dissolution of the Lok Sabha in 2014. In the absence of a national legal framework, individual States enacted laws to fill the void in the legal framework. These individual State laws are plagued by various challenges such as lack of uniformity across States, outdated processes, failure to acknowledge the advancement in technologies and ICT applications, etc.   

This Model Bill aims to institutionalise mechanisms in governance to ensure that citizens and businesses in the State get access to speedy, simple, clear, transparent, efficient, accountable, fair, equitable, and time bound delivery of public services. It incorporates best practices to ensure ease of doing business and ease of access to such public services. In establishing the Nodal Agency and providing it with statutory guidance, the Bill seeks to establish governance methods which ensure removal of process and documentation redundancies, access to deemed approvals, and accountable assessment of public authorities. The mechanisms established through this Bill would synergise the State’s efforts in meeting the Sustainable Development Goals.      

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Mapping the Education Landscape of India

Education
Ashana Mathur and Prashant Narang |
August 8, 2022

India is home to over 26.5 crore students belonging to different regions, cultures, and socio-economic backgrounds (National University of Educational Planning and Administration 2022). Every year, as more students enrol in one of the 15 lakh schools across the country, India’s educational landscape develops and becomes more intricate. This report aims to provide a snapshot of the diverse array of schools in the country.

Schools can be broadly classified into two categories, based on management: public schools and private schools. The administration of the former rests with the government and the latter with private education providers. This report captures the differences between the two categories in terms of the number of schools, their enrolment rates, infrastructure capacity, availability of basic amenities, and the strength of their teaching staff. The insights outlined in this report are based on the 2020-21 Unified District Information System for Education (UDISE) database. UDISE is a comprehensive database, which collates information at the district level, and sources data directly from schools (National University of Educational Planning and Administration 2022).

After giving an overview of the education sector in India, the report discusses the learning outcomes of students from public and private schools. The report documents the extensive research on this subject to illustrate the importance of moving from an inputs-focused approach to one based on learning outcomes when determining the quality of education the schools provide. Further, the report highlights the regulatory barriers in the existing framework which may stifle the entrepreneurial spirit and innovation in the education
Sector.

The report also sheds light on the emerging trends in the aftermath of the COVID-19 pandemic and elaborates on a relatively understudied sub-set of private schools known as Budget Private Schools (BPS). While the UDISE data is a widely used and highly accessible source of information on the education sector, it is not without limitations. The last section of the report lists a few limitations of the UDISE data.

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Setting up the Sentinel: Agency Design of the Law Commission of India

Governance
Jayana Bedi and Prashant Narang |
August 8, 2022

The Law Commission is an advisory body to the Government of India. It is constituted every three years through an executive order to conduct legal research, suggest law reform, and recommend improvements in administration of justice. So far, the Law Commission has submitted 277 reports (Press Information Bureau 2020). 

The Commission worked as a statutory body during the British regime under the Charter Act of 1833. This body was also constituted in 1853, 1861, and 1879 (Legislative Department, n.d.). The Government of India revived the practice of appointing Law Commissions in 1951, however, the Commission started as a non-statutory body and remains so. Unlike other commissions in India, the Law Commission has no fixed composition, eligibility criteria, and functions. The Terms of Reference are specified afresh each time it is constituted. Other national commissions like the National Human Rights Commission and the National Commission for Women have a parliamentary charter and are permanent bodies. 

News reports document issues Law Commission (Shrivastava 2015). These include:

  • limited capacity and dynamism;
  • problems in the structure, composition and functional autonomy of the Commission;
  • and inadequate funding.

However, there is no systematic study on the challenges with the Commission’s institutional design and the bearing this has on its functioning. 

This policy brief attempts to address this gap by reviewing the Law Commission’s present structure, highlighting areas of improvement, and proposing a way forward to reengineer the institution. The brief follows a two-pronged approach. First, it records the experiences of various stakeholders and experts to identify key challenges in the working of the Commission. We study its structure, independence, research approach, and resource availability. Second, we present some best practices in agency design by drawing from the structure of independent bodies/commissions in India and other countries. Based on these learnings, we propose recommendations on how to redesign the Law Commission. 

Our proposed reform of the Law Commission aims at making it a more robust body capable of reviewing laws and institutionalising quality checks.

 

 

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Visual Summary

A Teary Tale of Onion Exports

Livelihood
Shashwat Raut and Arjun Krishnan |
July 28, 2022

Onions are a very important crop for both Indian farmers and consumers. Whenever there are price fluctuations in the market, the Government changes the rules on the trade of onions. In 2020 alone, the trading status of onions was changed 7 times, i.e. the government would ban the exports of onions and then relax it. This distorts the market and disincentivises investments in trade infrastructure like warehousing. Two Acts, the Essential Commodities Act (ECA) and the Foreign Trade (Development Regulation) Act (FTDR) empower the government to limit warehousing capacity and regulate the trade of commodities.

This set of case studies looks at the plight of onion farmers across three markets in the Nashik region of Maharashtra. Maharashtra is one of the most important onion-growing regions in India. Maharashtra ranks first in Onion production with a share of 28.32%.

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Opening Gates for India’s Keepers of Forests

Livelihood
Tarini Sudhakar, Gauri Bansal, and Prashant Narang |
June 28, 2022

Approximately 275 million people involved in the Minor Forest Produce (MFP) economy (World Bank 2005), a significant portion of which is tribal population, struggle with this every day. Collection, processing, and sale of MFP comprises the backbone of the forest sector. The government estimates the collection potential of MFP is INR 1900 crores and the production potential of INR 4000 crores (TRIFED n.d.). But what holds the sector back is a regulatory conflict at the Union and state-level

In 2006, Parliament passed the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act (FRA) with the Ministry of Tribal Affairs (MoTA) as the nodal agency for its implementation. The FRA aimed to grant forest-dwelling communities ownership rights over the forest land they have lived on for generations. This was a part of the MoTA mandate to foster economic development for indigenous communities in the country. At the Union level, this is in competition with the interests of the Ministry of Environment, Forests and Climate Change (MoEF&CC) to conserve the environment. The MoEF&CC continues to implement the Indian Forest Act 1927, a colonial law that regulates forests for commercial purposes; such interests that seize control over forest land from original inhabitants do not lie fully aligned with the goals of conservation.

At the state level, most states follow archaic laws that legitimise practices such as permission to move produce out of forests or state monopoly over trade of MFP,  directly contravening community rights outlined in the FRA (Kukreti 2017; Kukreti 2018). For instance, in Gujarat, the government fully controls the trade of certain MFP, including the prices at which they are to be sold.

There are two issues at play here: (i) conflict of interest between MoEF&CC and MoTA; and (ii) existing state laws that exert government monopoly over forest produce. In this brief, we examine FRA’s approach to trade in minor forest produce and how state-level laws come into conflict with its provisions. In particular, we focus on the condition of a Transit Permit for moving produce out of the forest and state monopoly over certain MFP.

Saving the Blue Economy

Livelihood
Arjun Krishnan and Prashant Narang |
May 27, 2022

In India, the output of fish has increased at an exponential rate in the last 30 years. India is the world’s second-largest producer of fisheries and the third-largest producer of aquaculture. However, this rosy image does not reflect the difficult life of fisherfolk in India. A 2021 study showed that around 47% of employees in this sector live well below the poverty line. In 2019-20, the total marine fish production was 37.27 lakh tonnes, with Gujarat contributing the most—7.01 lakh tonnes or 19% of the total production. This, however, pales in comparison to the total inland fishing catch. In the same time period, inland fish production was 104.37 lakh tonnes, with Gujarat contributing only 1.58 lakh tonnes. Overall, across marine and inland fishing, Gujarat ranks third amongst Indian states for fish production. This brief looks at Gujarat and studies its fisheries sector to understand the issues that plague fisherfolk. First, we looked at the laws and rules as published by the Gujarat fisheries department. This gave us clarity on how the sector is regulated on paper and assessed potential issues and problems with the laws. This De Jure analysis was augmented with 34 on the ground interviews with Fishermen, Vendors, Boat Makers and Government officials. This survey provided us with insight into the gaps in the law, the way the law actually functioned, and the issues facing fishermen in the state. The De Facto survey brought to light several inconsistencies with the way the law is implemented and highlighted many issues that need to be addressed.

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PHOTO ESSAY
 

Karsanbhai Patel, the Former Minister, lauds CCS for their study of fisheries in Gujarat.

As a participant of the roundtable “Saving the Blue Economy” organised in Ahmedabad on 25 May 2022, I was quite impressed with the research put forward by Centre for Civil Society(CCS) on the challenges fisherfolk in Gujarat face. Although the think tank is based in Delhi, its assessment of fisherfolk's plight is insightful and accurate. I, along with other fisherfolk leaders, deliberated on some of these issues, met the government officials and raised these questions with them. 

CCS partnered with Mazdoor Inc – a Gujarat-based organisation, for this detailed and comprehensive policy study. This study is of great importance because Gujarat's fisheries sector has immense export potential. Reforms suggested by this study, if implemented, will bring prosperity to the sector and the community at large. The entire fishing community in South Gujarat are grateful to these organisations for taking up the cause of an uncared for and underrepresented section of society. 

Karsanbhai Patel

Former Minister and Leader Fishermen Community

 

Whose Land is it Anyway?

Livelihood
Pratik Dixit, Dr Rahela Khorakiwala, Arjun Krishnan, Prashant Narang, and Astha Pandey |
March 29, 2022
In the past decade, land laws in Maharashtra have undergone rapid changes in response to the growing demands of urbanisation and industrialisation. Land is a state subject under the Seventh Schedule of the Constitution. The approach of most states, including Maharashtra, for land governance, has shifted from distributive justice to efficient reallocation. Land is an important factor of production not only for agriculture and allied industries, but also for developing the secondary and tertiary economy. In this regard, effective utilisation and capitalisation of land, both agricultural as well as non-agricultural, assumes importance for unlocking the potential of economic development by efficient allocation of land resources.
 
Agricultural land markets in Maharashtra are highly regularised, to the extent of excluding the rural farmers from accessing agricultural land markets. Agricultural land is generally transacted for three purposes: mortgage, sale, and lease. However, the transferability of land is influenced and often determined by factors such as change of land use, tenancy, ceiling, and ownership patterns. 
 
This brief looks at the existing situation and conditions of agricultural land market operations in Maharashtra and the legal and institutional framework of land governance for the same. It analyses the structural changes brought about by the state government in domains such as change of land use and transfer of agricultural land to non-agriculturists. It also briefly discusses the powers and functions of the state revenue officers. Other aspects of land governance such as maintenance of record of rights, restrictions on transfer of tribal lands, conclusive titling, and recent land leasing reforms are also discussed. Through this discussion, this note sheds light on the problems hindering the efficient reallocation of agricultural lands in Maharashtra and suggests a few solutions to resolve them

 

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