INDIAN EXPRESS EDITORIAL DISCUSSION

1. INDIAN EXPRESS EDITORIAL DISCUSSION 1ST AUGUST 2018

2. The new reservationIt is not a demand for social justice but proportional power-sharing that underlies the new quota agitations • The renewed agitation by the Marathas in Maharashtra for reservation is a textbook study of how consensus across the political spectrum does not guarantee reasonable policy. No major political party in the state seems to have any objection to giving reservation to the Marathas and yet a coherent policy appears elusive if not impossible. This is mainly because of the tendency to take recourse to consensus both as avoidance and as competitive populism.But beyond avoidance, populism and electoral calculations, the stand of all political players appears to be informed by a new logic of reservation that might have deeper implications for both the politics of social justice and our understanding of the constitutional project of ensuring fair (equal) opportunity. This new logic, as can be inferred from “quota” agitations of the recent past, has five components. • Reservation is increasingly seen as a remedy for the adverse effects of ill-thought out development policies. In both Gujarat and Maharashtra, in spite of their economies being relatively better, three things have been worrying the people — acute agrarian distress, stagnation in employment growth and distortions in the development trajectory. In this backdrop, for governments, it is easier to talk of reservation than to make a course correction.For the Opposition, too, the reservation discourse is convenient because it allows them to keep subscribing to the consensus over economic policies, avoiding a critical approach to the root causes of the problem. For the agitators, reservation appears as a more immediate remedy compared to long-term structural repair and reform. • So, unlike in the late Sixties and again in the late Eighties, when the reservation discourse originated in a deep sense of unfairness of the social system, today’s reservation discourse draws its strength from unfair development policies.

3. Since the late 1980s, one bone of contention has been capturing the meaning of backwardness. The constitutional mandate of “social and educational” backwardness as the basis for considering special treatment was adopted by the Mandal Commission to arrange different dimensions of backwardness in a hierarchy. Social backwardness was the prime indicator, educational backwardness the secondary indicator and economic disadvantage the third and probably only a concomitant indicator. But arguments in favour of privileging economic backwardness continue to be aired forcefully. The formula propounded by Narasimha Rao to diffuse the controversy included 10 per cent quota for the “poor” from other communities and this idea has received much traction of late. • Increasingly, claims for OBC reservation have come to stand on the logic of contemporary economic backwardness more than backwardness shaped by traditional social injustice. It is here that the logic and meaning of reservation gets altered. Various communities and policymakers seem to be veering towards the idea of linking reservation to economic backwardness. Both in the Patel and Maratha agitations, the central anxiety has been about current economic tribulations. Thus, a claim for reservation on grounds of economic backwardness is seen as justifiable. • But perhaps the more effective justification for claiming reservation is the logic of political strength. Claims are made, and inclusions effected, on the basis of numerical and/or political strength. In Karnataka, the Lingayat demand for reservation was declined by commissions appointed to determine backwardness, the decision ultimately took place considering the clout the community enjoys in the state. The more recent agitations are no exception. While in a democracy it is only natural that different groups would extend their claims through public mobilisations, we have allowed an open nexus between a community’s political strength and the assessment of its claims to backwardness. In this sense, the post-Mandal demands for reservations often reverberate with the politics of the dominant castes in various states. This development has altered the context and texture of the reservation debate.

4. Since numbers matter, the new logic of reservation revolves around the question of how much to whom. Questions of the share of concerned communities in the population, extent of reservation and division of reserved seats among different communities occupy the central space in debates. The first is often shrouded in mystery and mythology. While some states claim to have a somewhat contemporary enumeration, most estimates, including those of the Mandal Commission, rest on the 1931 census. While it is indeed complex to exactly list castes/communities and ensure that there is no overlap, for a society where community/caste based reservation is so entrenched, it is ironical that the state does not care to collect accurate information of the share of different castes. • On the extent of reservation, a growing political consensus appears to be shaping that the 50 per cent limit set by the court need not be upheld in practice. The implicit — and sometimes explicit — reason is that reservation is a right of groups to a proportional share, rather than an enabling provision to make way for equal opportunity. This idea, that all groups should get “seats” in proportion to their strength in the population, is not only attractive in popular imagination but dominates the thinking of social justice activists and policymakers. The word “quota” thus captures the predominant logic that governs the current pro-reservation claims and also supports the idea of sub-quotas to different groups — ostensibly in proportion to their share in the population. • The contemporary logic of the reservation policy precludes judicial intervention. Given the preoccupation with the number-based claims, no external umpiring is required. The kind of boundary-setting the court did in the Mandal case would probably be seen today as unwanted interference. Just as the 50 per cent limit is seen as a nuisance, the question of inclusion in the register of reservation is also supposed to be out of bounds for the judiciary. It is not just impatience with a conservative institution manned by the elites; the judiciary is seen as an external and non-legitimate player because the issue is no more seen as originating in the constitution. • The fundamental shift, then, is not just about competitive claims over public resources such as education and state employment. Instead, reservation is seen as a mechanism falling outside the purview of the normative frame set by the constitution. It is more about a new, emerging power-sharing where proportionality governs.

5. Privacy and consentSrikrishnaCommitee and draft data bill show the way ahead, but lose GPS signal on some stretches • The roadmap towards securing citizens’ sovereignty over their data and fundamental right to privacy has been set down by the Srikrishna Committee report and the draft Data Protection Bill. But potholes remain, roadworks will be in progress for a long time yet — many details must be worked out through case law — and the bill is hardly bulletproof, though it seems to draw inspiration from Europe’s cast-iron General Data Protection Regulation (GDPR). The bill defines the essentials of a regulated and uniform data ecosystem, on the lines of the GDPR, laying out the conditions under which data may be collected, stored and processed, consequent fiduciary responsibilities and penalties, and the appointment of data protection overseers. It also interprets personal data in an open-ended manner, to include identifiers like caste, religion, political beliefs and associations, gender, health and financial data, official identifiers — everything that can be cross-indexed to arrive at the identity of an anonymised person. The notion of informed consent is central to the collection and processing of data. • However, there are significant departures from the GDPR. Most egregious is the infiltration of “reasonableness” and “practicability”, which have proved to be the landmines of Indian legislation, particularly the Income Tax Act. Since what is reasonable and practicable is discretionary, the door is opened to corruption and unnecessary case law. India has been online for over two decades and the contexts in which these terms will be read are clearly understood. Spelling them out would have reduced the burden of the courts. Besides, while recognising the right to be forgotten, which was established by Spanish case law years ago, the draft is silent on the right to deletion, which is as important.

6. But most significantly, while specifying a credible deterrent of 4 per cent of global turnover for corporate fiduciaries who violate data security, it leaves the state fairly free to do as it will. Section 15 of the draft surrenders the right to privacy to matters of national interest which, like the question of reasonableness, are left uncalibrated. The state retains unbridled powers to collect and process data, without the need for consent, for the national interest, which it is allowed to define. Such blanket permissiveness can have pervasive implications. The Supreme Court may be hearing the Aadhaar matter pointlessly, if the law that follows from the Data Protection Bill allows the government to declare that the collection and processing of Aadhaar data is in the public interest and therefore non-consensual. The draft and report are steps in the right direction, but they are not giant strides. Much case law will be required to clarify issues, reducing the value of this much-awaited development.

7. A defence without aadhaarR S Sharma misses the point: All critics ask is to not make the number compulsory • The article by Ram Sewak Sharma (‘Why I gave out my number’) eulogisingAadhaar when the Supreme Court judgement is pending was both improper and inappropriate. But the article having been published, a response is necessary. Indeed, the disclosure of his Aadhaar number in a tweet could be in violation of Regulation 6 of the Aadhaar (Sharing of Information) Regulations, 2016, which states that the number of an individual shall not be published, displayed or posted publicly by any person or entity or agency. • The article conveniently sidesteps the manner in which Aadhaar has been steamrolled and made applicable to every walk of life in flagrant violation of the SC’s orders. Despite a clear direction that Aadhaar could be insisted upon only for selected services, and an assurance from the government that it was voluntary, it is today impossible to live in India without the Aadhaar number. It is also pertinent to note that non-Aadhaar holders are forced to file writ petitions in high courts with a hope to get some interim relief from quoting Aadhaar in virtually every form/application. • First, if Aadhaar is indeed voluntary, and is made mandatory only for those residents who wish to avail of subsidies, benefits and services paid from the Consolidated Fund of India, then why is it being made mandatory for 48 per cent of Indians who do not avail of any subsidy or service? Is there a hidden agenda to collect and process huge amounts of data? Second, if an 80-year-old pensioner has received pension for 20 years on the basis of his pension card, why should his pension for the rest of his life be paid only on production of the Aadhaar card? Why should Aadhaar obliterate all other forms of identification that have been successfully used for decades?

8. Third, it is claimed that the “finest brains” have developed the Aadhaar system to deliver. Can these brilliant minds explain as to why every bank account, provident fund account, insurance policy, mutual fund be linked to the Aadhaar number? And what justifies the blocking of these accounts, paralysing the day-to-day life of Indians who have chosen not to get the Aadhaar number? Sharma talks of digital vulnerabilities but is unconcerned about the enormous vulnerabilities many Indians have faced in the recent past. In fact, a large number of Aadhaar holders are unable to get their subsidies simply because their thumb impressions do not match. • Fourth, the article claims without any data, that the adoption of Aadhaar has affected those indulging in tax evasion and benami properties. This is the most ridiculous claim. Black money and tax evasion are deep-rooted and, whatever else the merits of the Aadhaar system, it will not make the slightest dent to these evils. Sharma forgets that black money is the oxygen of Indian politicals and it is significant to note that the only financial instrument given without an Aadhaar number is the electoral bond. • Fifth, it is ironic that Sharma points out that it is “neither required nor desirable to provide a copy of the Aadhaar number to various service providers”. He forgets that no Indian can get a telephone connection, an admission for his/her child even in a private school, or cremate his deceased relative without the Aadhaar card. Shockingly, one cannot enter the Tirupati temple or the Shree Dakshineswar temple at Vadodara without an Aadhaar card. • Finally, an essential feature of democratic society is the right of choice. In 1974, the US made the social security number voluntary after realising the dangers of making it compulsory for every activity. All the victims of Aadhaar seek is an option to exit the system if they do not choose to obtain any benefit, subsidy or service. All they ask for is the right to live in peace and not be compelled to have their every activity monitored and recorded

9. Cities At Crossroads: Managing the run-offAn IIT Delhi report offers important pointers on how to ensure a smooth drainage system in the capital using its natural waterways. • This is the time of year when Delhiites suffer floods and often do not know what to do and who to blame, because the multiple government authorities are busy pointing fingers at each other. Monsoon used to be the season when my generation, as children, used to look forward to some respite from the scorching summer. Now, we protect our children from waterlogged areas in the city, worried that much of the water on the ground may well be mixed with sewage. • A long-awaited report on ‘How to Make Drainage Work in the National Capital Territory of Delhi’, prepared by Professor A K Gosain and his team from IIT Delhi, has just been submitted to the Department of Irrigation and Flood Control of the government of Delhi. The contributors to the study include “insiders”, that is, people from municipal corporations, Public Works Department (PWD), Irrigation and Flood Control Department, Delhi Jal Board (DJB) and Delhi Development Authority (DDA). The report spells out what is needed to ensure that the drainage system in Delhi works efficiently. • There are three major drainage basins in the NCT of Delhi — Najafgarh, Barapullah and Trans-Yamuna basins — and, there are 22 natural drainage systems in these basins which outfall into the Yamuna somewhere during its 46 km-run through Delhi. There are 201 sub-segments of the natural drains in these networks. These “drains” are actually the waterways that carry the run-offs from the plains to the river Yamuna and also recharge groundwater, besides supporting biodiversity. Calling them natural drains that provide safe exit to stormwater including floodwaters, understates their ecological significance.

10. The IIT team reports that many of these channel drains have been encroached and are disappearing: 19 out of the 201 natural drains mentioned in the 1976 Master Plan of the Delhi Government cannot even be traced today. Of the rest, some are filled with solid waste and, sometimes, construction debris; Others carry sewage and hence function as sewers. • The IIT team did not have all the necessary data. They had to take recourse to interpolation and engineering judgement on cross sections and invert levels of drains, flow directions, outfalls, etc to conduct simulations of the stormwater management model for each of the three basins. Armed with these simulations they have come up with detailed recommendations on how to make Delhi’s drainage work. They have looked at large drains (four feet and deeper), while drawing attention to the importance of other drains being functional for the system to be efficient. City managers also need to evaluate the road system in the city for design flaws that might be aggravating the waterlogging problems. • The recommendations that emerge from the complex exercises in the IIT report are very simple and doable. The major ones are: One, no encroachment of any storm-water drain should be allowed. Special drives must be conducted to remove existing encroachments. It would require tremendous political will to implement this recommendation. A typical pattern seems to be to first use the open drain as a garbage dump and then, with the passage of time, clear the dump, cover the drain and use the area for the purpose of building a market, a bus depot or any other urban amenity — thus sacrificing the resilience of the city. A lot of wrongs that have been done will have to be undone. The public and the media should highlight encroachments when they begin, to prevent their completion. Two, no construction should be allowed inside any stormwater drains. Two egregious examples of this principle’s violation are the laying of utilities inside the stormwater drains and building of pillars of elevated roads/metro inside the drains. Three, the sewerage network should be totally separated from the drainage network. Only stormwater and treated sewage of acceptable quality as per the norms of the Central Pollution Control Board should be allowed in the stormwater drains. Thanks to a ruling by the National Green Tribunal (NGT) in 2015, the DJB has come up with a Master Plan for interceptor sewers to trap the sewage coming out of unsewered and unauthorised colonies, and to take the same to the nearest sewer line rather than dumping it in the nearest stormwater drain. They are working to implement the plan by December 2018. However, in the areas which are connected to a sewerage network, the DJB has, for years, been following a practice of puncturing sewer lines and draining sewage into stormwater drains in the event of blockage. The recommendation of the IIT team is that this must be explicitly forbidden and the DJB should use other available equipment for de-clogging the sewer lines.

11. Four, no solid waste or garbage is to be dumped into stormwater drains, e.g., Pankha Road (‘Choking the city’, IE, August 31, 2016). Not only is this a public health hazard but it also provides temptation to cover the drain with the passage of time, as has happened in Defence Colony and South Extension, among other places. The NGT Order of March 2014 on Yamuna rejuvenation and a policy statement by the Delhi government in response to directions from the High Court of Delhi, specifically prohibit covering any natural stormwater drain in the city. • Five, no silt from the road (before or after road sweeping — manual or otherwise) should be allowed to be dumped into bell-mouths that lead to drains on the side of the road. The report emphasises that this would require a complete overhaul of the road sweeping process and suggests a monitoring mechanism to ensure compliance. • Six, no Construction and Demolition (C&D) waste should be allowed to be dumped into stormwater drains and, further, that the amount of waste from a construction site should be estimated in advance and lifted by government-appointed contractors for dumping at C&D processing sites. This is also likely to be resisted by developers and builders, and enforcement must be taken up on war footing. • Finally, access points for covered drains must be provided at an appropriate distance so that desilting of drains can be carried out regularly. Most of the covered drains currently do not have access for desilting. The report recommends that a schedule of desilting should be displayed in a manner that is understood clearly by the general public. • There are many more recommendations. The problem arises because there are multiple government departments involved, with overlapping responsibility and no clear accountability. The stormwater drains are under the jurisdiction of the different Municipal Corporations, Public Works Department or the Irrigation and Flood Control Department, depending on their size. The sewerage network, on the other hand, is the responsibility of DJB. • Whether or not there is a single institution responsible and accountable for drainage management as recommended by the report, it is clear that there is an urgent need for strong co-ordination across departments and fixing accountability at every level. We also need a mechanism for public oversight and prompt remedial follow-up. • Finally, as pressures of urbanisation lead to greater concretisation in our cities, we need to work harder to rejuvenate our urban water bodies, use parks and green spaces for rainwater harvesting, and also use bioswales to manage and filter the storm water runoff.

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