Author: cprindia

 

PART 6 OF A SERIES ON ‘COASTAL REGULATION’ BY THE CPR-NAMATI ENVIRONMENT JUSTICE PROGRAM
COASTAL GOVERNANCE ENVIRONMENTAL JUSTICE RIGHTS

After three Right to Information (RTI) Applications and a file inspection, the Ministry of Environment, Forests and Climate Change (MoEFCC) shares the draft MCRZ Notification, 2017 but full details are yet to be revealed.

On 22 March, 2017, leading national dailies carried the news of the existing Coastal Regulation Zone (CRZ) Notification, 2011 being replaced by a new framework called the Marine Coastal Regulation Zone (MCRZ) Notification, 2017. It was clear that a new law was on the anvil, but its contents were not publicly available. The ministry had only shared copies of the “stakeholder” meetings on MCRZ, in response to an RTI application earlier. A copy of the proposed MCRZ Notification, 2017 was accessed by Meenakshi Kapoor of the CPR-Namati Environment Justice Program following a file inspection on 23rd May 2017. Yet again, the ministry failed to disclose suo moto the proposal to amend the CRZ Notification despite directions of the Central Information Commission (CIC) in 2008 and 2016 and the government’s commitment to transparency.

The draft notification proposes significant changes to the manner in which the coastal zones are to be managed and regulated for variety of activities. The proposed changes are not only a change in nomenclature with the word “Marine” appended to the law, but have far reaching social and ecological implications:

Temporary tourism facilities will be allowed in Ecologically Sensitive Areas (MCRZ I). CRZ Notification, 2011 does not allow temporary tourism facilities in CRZ I areas.
Development in urban areas (MCRZ II) to be regulated as per prevailing local laws. CRZ Notification 2011 allows development in CRZ II areas as per the town and country planning norms of 1991. This was done to acknowledge the need of the local town and country planning norms to be aligned with Coastal Regulation Zone notification, which was issued for the first time in 1991.
Housing and basic infrastructure for local inhabitants will be allowed after 50 metres from the High Tide Line in rural areas (MCRZ III). The CRZ Notification, 2011 permitted houses for coastal communities after first 100 m of CRZ III areas.
State and Union Territory Governments are to prepare tourism plans for their respective MCRZ areas. No such tourism plans are mentioned in the CRZ Notification, 2011 (see detailed comparison between the current and the proposed Notification here).
Area under MCRZ will depend only on tidal demarcations (High Tide Line (HTL) and Low Tide Line (LTL)). Whereas, the CRZ Notification, 2011 links the CRZ area with Hazard line in addition to HLT-LTL demarcation (see details here)
While the notification proposes changes to coastal regulation, the details of the new clauses lie in the 10 annexures that are to go along with the MCRZ Notification. The proposed MCRZ accessed contains mention of these annexures, however, they were not made available at the time of the file inspection. These annexures cover the following aspects of coastal regulation:

I- Methodology for HTL-LTL demarcation
II- Guidelines for preparation of Marine Coastal Zone Management Plans (MCZMP)
III- List of tourism zones
IV- Kinds of Ecologically Sensitive Areas (ESAs)
V-List of the ESAs in each coastal state and Union Territory
VI- Guidelines for constructions in MCRZ I
VII- List of areas that need special shoreline protection measures
VIII- List of municipal towns
IX- Guidelines for development in MCRZ III areas
X- Guidelines for preparation of tourism development plans
XI- List of minerals and hydrocarbons that can be extracted with due permission (despite a prohibition on mining in the MCRZ) in each state and Union Territory.
XII- Composition, tenure and mandate of National, State and District marine Coastal Zone Management Authorities (MCZMA).
XIII- Guidelines for collection of fees and usage of MCRZ fund
XIV- Guidelines for preparation of Integrated Island Management Plans

Since 2014, the entire process of reviewing and revising the CRZ Notification, 2011 has been a closed-door exercise. Instead of the Ministry inviting suggestions and feedback from coastal communities, researchers, urban planners and legal experts on the implementation of the CRZ Notification and proposals for reform, there has been reluctance to share the details of this review.

For over a year and a half, despite repeated RTI applications, the report of the committee that reviewed the CRZ Notification, 2011 was not made public (read how CIC directed the MoEFCC to disclose the report). Four of the nine amendments made to the notification in the last three years were issued without seeking public comments on those (see details here).

This file inspection revealed that even the ministries that were asked to provide comments on the MCRZ Notification on 20 March 2017 were also not provided full information related to the MCRZ, in particular the annexures. In April 2017, the Ministry of Earth Sciences and Ministry of Tourism requested the MoEFCC to share copies of these annexures before they furnished their comments on the draft.

Researchers, activists, fishing unions and coastal communities have been persistent in their efforts to have an informed and participatory review of the primary law governing India’s coastline, the CRZ, 2011. Fisher groups across the country have written to the Ministry based on what was revealed in the news reports, as there has been no attempt by the government to involve them. Such a participatory review is critical because changes in the coastal regulation will have a direct bearing on over 3200 marine fishing villages and several million residents living across India’s coastline.

A DISCUSSION WITH PROFESSOR DANIEL BODANSKY ON THE PARIS AGREEMENT AND THE UPCOMING CONFERENCE OF THE PARTIES (COP25) IN SANTIAGO
CLIMATE RESEARCH

On October 14 2019, the Initiative on Climate, Energy and Environment (ICEE) at the Centre for Policy Research (CPR) hosted Professor Daniel Bodansky (Regents’ Professor, Sandra Day O’Connor College of Law, Arizona State University) for a discussion on recent developments in the international climate change regime. Professor Bodansky analyzed the state of play in the UN Framework Convention on Climate Change regime, outlined relevant articles of the Paris Agreement, and previewed the upcoming Conference of the Parties (COP25) in Santiago in December.

To learn more about the evolution of the international climate change regime, read International Climate Change Law (Oxford University Press 2017) edited by Daniel Bodansky, Jutta Brunnee, and Lavanya Rajamani (Visiting Professor at CPR). You can also read these recent open-access articles:

The Issues that Never Die. In: Special Issue on the Paris Rulebook. Carbon and Climate Law Review 12(3): 184 -190. By Daniel Bodansky and Lavanya Rajamani.
General Issues in Elaborating the Paris Agreement. Center for Climate and Energy Solutions: Arlington, Virginia. By Daniel Bodansky and Lavanya Rajamani.
About the Speaker

Daniel M Bodansky is a leading authority on international environmental law generally and climate change law in particular. Prior to his arrival at the College of Law in 2010, Professor Bodansky was the Associate Dean for Faculty Development and Emily and Ernest Woodruff Chair in International Law at the University of Georgia School of Law. He has served as the climate change coordinator and attorney-advisor at the U.S. Department of State, in addition to consulting for the United Nations in the areas of climate change and tobacco control.

He has previously been awarded the International Affairs Fellowship from the Council of Foreign Relations, a Pew Faculty Fellowship in International Affairs, and a Jean Monnet Fellowship from the European University Institute. His book, The Art and Craft of International Environmental Law, published by Harvard University Press, received the 2010 Harold and Margaret Sprout Award of the International Law Association, as the best book that year in the field of international environmental studies. His co-authored book, International Climate Change Law (with Jutta Brunnée and Lavanya Rajamani) received the 2018 Certificate of Merit from the American Society of International Law as the best book published the previous year in a specialized area of international law.

PART 8 OF A SERIES ON ‘COASTAL REGULATION’ BY SHIBANI GHOSH FOR THE CPR-NAMATI ENVIRONMENT JUSTICE PROGRAM
ENVIRONMENTAL JUSTICE RIGHTS COASTAL GOVERNANCE

Shibani Ghosh is an environmental lawyer and Fellow at CPR.

The Supreme Court of India has often been commended for its vital role in protecting the environment. One of the areas of environmental concern where the Supreme Court’s involvement has been crucial is the protection and conservation of India’s coastal environment. In the context of the proposed amendments to the Coastal Regulation Zone (CRZ) Notification 2011, a law that permits varying degrees of land use in demarcated coastal areas, Ghosh looks at three judgments of the Supreme Court. These judgments not only express deep concern about the state of India’s coastal environment and the urgent need to protect it, but also establish the principles that the Court thinks should guide government’s action on the environment generally and the coasts specifically.

The three judgments

The first judgment was delivered in Indian Council for Enviro-legal Action v Union of India [(1996) 5 SCC 281]. It highlighted that Coastal Zone Management Plans (CZMPs) which were to be prepared by State Governments had not been finalised despite the passage of the statutory period of one year. It also challenged the amendments made to the law by the Central Government in 1994 to relax certain prohibitions.

The Court directed the Central and State Governments to finalise the CZMPs. On the issue of non-enforcement of environmental laws, the Court observed that ‘[e]nactment of a law, but tolerating its infringement, is worse than not enacting a law at all. … Continued tolerance of such violations of law not only renders legal provisions nugatory but such tolerance by the enforcement authorities encourages lawlessness and adoption of means which cannot, or ought not to, be tolerated in any civilized society’. The Court also found two of the 1994 amendments – that reduced the no-development zone (NDZ) – to be illegal. It asked the Central Government to consider constituting State and National Coastal Zone Management Authorities (CZMAs) for the effective implementation of the 1991 Notification.

In a landmark judgment in S. Jagannath v Union of India [(1997) 2 SCC 87], the Court referred to expert reports to identify the adverse impacts of coastal pollution caused by non-traditional and unregulated prawn farming. It held ‘[t]he purpose of the CRZ Notification is to protect the ecologically fragile coastal areas and to safeguard the aesthetic qualities and uses of the sea coast. The setting up of modern shrimp aquaculture farms right on the sea coast … is per se hazardous and is bound to degrade the marine ecology, coastal environment and the aesthetic uses of the sea coast’. The Court decided that prawn farming industries were prohibited in the coastal regulation zones under the CRZ Notification 1991 and their functioning was in violation of various other laws. It, however, excluded traditional systems of aquaculture from this prohibition.

In Vaamika Island v Union of India and Ors. [(2013) 8 SCC 760], the issue before the Court was whether certain properties on an island in the Vembanad Backwaters of Kerala should have been categorised as CRZ 1, which restricts its rebuilding or expansion, in Kerala’s CZMP. The Court held that the properties had been correctly categorised, and that the owner had violated the law by constructing on these properties. The Court upheld the High Court’s direction to demolish the illegal structures.

Guiding Principles

From a review of these judgments, it is possible to identify at least three principles that should guide environmental decision-making by the executive.

First, protection and conservation of our environment is the paramount objective of Indian environmental laws, and decision-making processes under these laws should support the furtherance of this objective.

In Indian Council for Enviro-legal Action, the Court assessed the government’s amendment to allow any construction within the NDZ, i.e. the area within 200 m from the High Tide Line (HTL). The Court invalidated this amendment holding that ‘[n]o suitable reason has been given which can persuade us to hold that the enactment of such a proviso was necessary, in the larger public interest, and the exercise of power under the said proviso will not result in large-scale ecological degradation and violation of Article 21 of the citizens living in those areas’. On the second amendment that relaxed the NDZ for tidal rivers from 100 m from HTL to 50 m, the Court did not see any reason to support a blanket reduction. It concluded that the reduction had been done for ‘extraneous reasons’. The Court held that ‘we are unable to conclude that the said amendment has been made in the larger public interest and is valid. This amendment is, therefore, contrary to the object of the Environment Act and has not been made for any valid reason and is, therefore, held to be illegal’.

In S. Jagannath, the Court held that ‘[k]eeping with the international commitments, and in greater national interest, the Government of India and the Governments of the coastal States are under a legal obligation to control marine pollution and protect the coastal environment’. The Court also highlighted that ‘[a]ny activity which has the effect of degrading the environment cannot be permitted. Apart from that the right of the fishermen and farmers living in the coastal areas to eke their living by way of fishing and farming cannot be denied to them’.

In Vaamika Island, the Court supported the Kerala High Court’s judgement on the CZMP categorisation as the ‘direction was issued by the High Court taking into consideration the larger public interest and to save Vembanad Lake which is an ecologically sensitive area, so proclaimed nationally and internationally. Vembanad Lake is presently undergoing severe environmental degradation due to increased human intervention and, as already indicated, recognising the socio-economic importance of this waterbody, it has recently been scheduled under “vulnerable wetlands to be protected” and declared as [critically vulnerable coastal area]’. It affirmed the High Court’s order of demolition of illegal structures based on a previous decision of the Supreme Court in Piedade Filomena Gonsalves v State of Goa [(2004) 3 SCC 445] wherein the Court had held construction raised in violation of CRZ cannot be lightly condoned.

Second, environmental decision-making must benefit from expert knowledge and inputs, and for any decision which is at variance with such knowledge, the decision-maker should provide clear reasons.

While assessing the validity of the 1994 amendments in Indian Council for Enviro-Legal Action, the Court considered the recommendations of the Vohra Committee, an expert committee constituted by the Government to consider tourism development in coastal areas, keeping in mind the requirements of sustainable development and protection of fragile coastal ecology. Striking down the two amendments allowing construction in the NDZ, the Court observed that ‘no satisfactory reason has been given by the Union of India as to why it departed from the opinion of the Expert Committee and that too in such a manner that the concession which has now been given is far in excess of what was demanded by the Hotel and Tourism Industry’.

In S. Jagannath, the Court opined that ‘before any shrimp industry or shrimp pond is permitted to be installed in the ecolog[icall]y fragile coastal area it must pass through a strict environmental test… There must be an environmental impact assessment before permission is granted to install commercial shrimp farms… The assessment must also include the social impact on different population strata in the area. The quality of the assessment must be analytically based on superior technology’. This led to the direction to the Central Government to constitute an authority to oversee the protection of coastal areas.

Third, the government cannot arrogate to itself unbridled discretionary powers to dilute environmental norms.

In the absence of proper guidance on how to exercise such powers, the cost to the environment, and the people dependent on it, could be very high. In Indian Council for Enviro-Legal Action, while invalidating part of the 1994 amendments, the Court found that the Government had given itself excessive discretionary powers to relax prohibitions in the NDZ. The Court observed that the amendment ‘which gives the Central Government arbitrary, uncanalized and unguided power, the exercise of which may result in serious ecological degradation and may make the NDZ ineffective is ultra vires’.

As we witness an escalation in environmental conflicts, a blatant disregard for statutory processes, and a deliberate move towards diluting environmental norms, it is instructive to look back at judicial precedents that invalidated previous government attempts to dilute coastal regulation.

Shibani Ghosh would like to thank Yogini Oak for her valuable research assistance that has informed this piece.

The other pieces in this series can be accessed below:

• Coastal commons for private tourism and entertainment?
• Is it the end of participatory coastal planning?
• States ask Review Committee to loosen up the Coastal Regulation
• Crucial aspects of proposed Marine Coastal Regulatory Zone Notification revealed
• In conversation with Dr Shailesh Nayak – the man who led the review of coastal regulation
• The proposed Marine Coastal Regulation Zone (MCRZ) Notification
• A tale of two reviews: How two governments amended a coastal land use law
• Coastal Regulation Zone Disputes before the National Green Tribunal
• CRZ drives a wedge between communities in Mumbai

ON ET NOW
ECONOMY

Watch (above) as Rajiv Kumar analyses the continuing power tussle between the Tata Group and former chairman Cyrus Mistry on ET Now.

FULL JOURNAL ARTICLE BY SHYLASHRI SHANKAR
BUREAUCRACY

The Constitution of India envisages three types of emergencies: A national emergency; a state emergency (in the federal setup, regions are called states in India, and the central government has the power to impose an emergency if there is a breakdown of law and order in that state); and a financial emergency. ‘The problem the State faces is how it can respond effectively to exceptional situations without casting its adherence to the rule of law into question.; Ernst-Wolfgang Böckenförde offers a set of solutions within a model structure anchored in constitutional laws. The model structure, which applies at the federal level, advocates a separation between the authorising agency—the political wing—and the implementation agency, as well as creating a distinction between a ‘law’ and a ‘measure’, and between a most extreme and a merely difficult situation. By focusing on the actions of the higher judiciary in India, this article tests whether the safeguards in Böckenförde’s model structure function at the sub-national state level in a very different geography and context. The results highlight the concern that the dynamics of democracy and the reality of how political power is garnered in a federal Westminster style framework effectively stymie the procedural innovations introduced by Böckenförde’s model by creating conditions, not for fair play, but for subverting the spirit of the law. Even the procedures outlined by Böckenförde—such as an emphasis on making the agent who holds the emergency powers a political, and not merely an administrative organisation—accentuates, rather than mitigates, this problem.

AN INTERVIEW WITH THE PANELISTS AT THE CLEARING THE AIR SEMINAR SERIES
AIR POLLUTION

On 1st February 2018, the Initiative on Climate, Energy and Environment (ICEE) in partnership with the Urbanisation focus area at CPR organised a panel focusing on how transportation impacts air pollution in the Delhi NCR, looking at possible solutions, both immediate and long-term. The following Q&A is based on the discussion between moderator Mukta Naik (CPR) and panelists Sumit Sharma (Fellow and Associate Director at Earth Science and Climate Change group of TERI), Parthaa Bosu (air pollution expert), and Amit Bhatt (Director of Integrated Urban Transport at WRI India).

Vehicles are often underplayed as a source for air pollution. Yet they are obviously both a significant source as well as an opportunity for intervention in a rapidly urbanising context. How would you characterise the contribution of vehicular emissions to the air pollution issue in Delhi NCR and beyond?

Sumit Sharma: To begin with, India’s ambient air quality standards are far higher than WHO norms so even air that is ‘clean’ by our standards is not really clean or healthy. When one goes down from all-India to city-level pollution data, the figures are alarming. In urban areas, vehicles contribute a significant share to air pollution, particularly PM10/PM2.5, but also NOX, VOC and BC emissions. There is no single factor influencing the contribution in Delhi NCR or beyond but it is impacted by vehicle density in a location, age of vehicles on road, fuel type, and speeds at which vehicles are moving.

Parthaa Bosu: Vehicular emissions are a function of the fuel quality, adulteration, and its monitoring, including a lack of technology to measure adulteration. In Delhi NCR and beyond, we see that vehicular traffic on the road is not just conventional urban transport (whether private or public), but also increasing volumes of freight. With penetration of e-commerce there’s been an explosion of “Urban Freight”, which has both direct as well as indirect ways of contributing to air pollution. Enforcement is also a problem: stipulated older vehicles are officially not allowed to ply in Delhi NCR, but they continue to do so.

Amit Bhatt: Our understanding on the impact of transport emissions on health is still evolving. However, physical exposure to pollutants is an important factor. This exposure is the maximum during commuting. In Delhi NCR and beyond, exposure levels will vary depending on the type of vehicle and time of commute, and understanding this micro context is important.

Delhi–NCR has seen a number of policy responses to the problem of vehicular pollution, such as shifting of transport vehicles to CNG, Odd-Even scheme etc. Despite this, the problem continues to persist and even worsen. Why have the earlier policy responses to vehicular pollution not worked adequately? Are current responses likely to face the same fate?

Sumit Sharma: Historically, policy responses to pollution, in Delhi NCR and beyond, have largely driven by the court without adequate understanding of the full context – for instance, shifting of polluting industries out of central Delhi to upwind areas such as Bawana is not helpful since the pollution will be blown back towards the city. Given that transport is a major contributor to PM 2.5, the move towards cleaner Bharat Stage–VI fuel is essential. However, this will only prevent emissions from increasing further and not reduce it from the present level. In terms of improving fuel standards, India has been an early mover, but these gains have been constrained by increase in the number of vehicles as well as presence of old vehicles on the road.

Parthaa Bosu: Fuel quality is a major issue, which has not been given adequate importance. Merely shifting a section of transport to cleaner fuels will not help as vehicles of older technology are still plying. Fuel standards must be nationwide. The PUC emission testing system for vehicles is also broken.

Availability of quality public transit is an important factor. While investments have been made in Delhi’s public transit system, it still does not adequately dis-incentivise owners of private vehicles. It is still cheaper and/or faster to use private vehicles, especially after the recent Metro fare hike. Multi-modal integration and last-mile connectivity remains as a deterrent for people to take public transport. Poor gender planning of a city also has bearings on air pollution, every individual should feel secure to travel on their own, else they will depend on personal vehicles for completing the trips or last mile.

The urban freight sector has not been factored into policy planning for emissions. With the e-commerce and logistics market expanding rapidly in Delhi-NCR and other urban centers, this is also likely to be a major source of pollution. There is no transition plan for trucks – merely restricting their entry or diverting them will not help in the long run.

The lack of scrappage policy means that vehicles which are old or burn dirty fuels have just moved from Delhi to NCR, and then slightly beyond. PM2.5 can travel more than hundreds of kilometres, so banning old vehicles in Delhi while allowing them ply just 20 or 50km away cannot be a solution at all.

Amit Bhatt: Policy has hitherto disproportionately focused on transport vehicles without restricting private vehicles. In Delhi, the reduction in emissions due to transition of public vehicles to CNG was offset by the large increase in private vehicles. Even public transit has not expanded adequately – Metro coverage is slowly increasing but the bus fleet is well below the number required. Due attention needs to be paid to modal share in transport planning- less than 15% of Delhi moves by car, 25-30% by 2-wheeler. The share of buses is falling, but given buses offer least exposure, they should be prioritised.

The Central Government’s plan of transitioning to an all-electric fleet needs to include massive infrastructural expansion for electric vehicles, and a plan to deal with the vehicles that will have to be replaced. There is a serious lack of policy clarity- if we are pushing aggressively for e-vehicles by 2030, there is no roadmap for the transition.

What should be the policy priorities for reducing vehicular emissions? Where do you see quick gains?

Sumit Sharma: I would say, in the context of fleet age, there is a need to have a scrappage policy and invest in modernisation of vehicle fleets. Similarly, responses during episodic peaks are important but not sufficient: the odd-even scheme, for instance, had only limited efficacy. There also needs to be better monitoring and dissemination of information to help the commuting public take informed decisions regarding commuting and transportation.

Parthaa Bosu: Policy solutions to pollution must consider a national approach, while at present they are too city-centric for a problem that is regional and even trans-boundary. For instance, a registry of in-use vehicles is needed. Finally, the policy vision must be long-term and not restricted like all the earlier initiatives which were short-term or focused on only a small segment of the vehicular population.

Amit Bhatt: As I said earlier, from the perspective of reducing exposure, public buses must be prioritised. Focusing on reducing commute time to reduce exposure by giving priority to public transport might also offer quicker gains, for example the odd-even did not succeed in significantly bringing down pollution levels, but it did reduce exposure and this should become an important public debate too.

CPR FACULTY G PARTHASARATHY UNPACKS THE CONTEXT AND THE ROAD AHEAD
INDIA-PAKISTAN POLITICS SOUTH ASIA

On April 14, you wrote in The Indian Express that imaginative diplomacy alone is not enough to deal with the Pakistan army. Can you elaborate on this more, especially drawing on your own experience as a former Indian High Commissioner in Pakistan?

The answer to your query on why imaginative diplomacy alone will not be enough to deal with State sponsored terrorism can be illustrated in two examples. First, with the advent of General Zia ul Haq as President in 1977, Pakistan adopted a conscious policy of subverting sections of the population from (Indian) Punjab. This occurred regularly during the visits of Sikh pilgrims there, which led to their training disaffected youth in terrorism. Pakistan also started a worldwide campaign to mobilise disaffected Sikhs living abroad for the cause of “Khalistan” (an independent Sikh Homeland).

This situation continued till the mid 1990s. This serious situation was not resolved through diplomacy alone. Matters were ultimately sorted out when India took effective political action by holding elections in Punjab, and the State police dealt with the terrorist issue. In the meantime, world powers like the US and UK were persuaded to pressurise Pakistan to end its support for violence and terrorism in Punjab.

The second instance is the intrusion across the Line of Control in Jammu and Kashmir, by Pakistani forces in Kargil in 1998-1999. This carefully planned intrusion would have continued had India’s military action not forced the intruders from Pakistan’s Northern Light infantry, to vacate areas they had occupied, in violation of the letter and spirit of the Simla Agreement.

In the meantime, effective diplomacy ensured that we persuaded the international community that Pakistan had endangered peace and security by its actions. Facing diplomatic isolation and military disaster, Prime Minister Nawaz Sharif had to rush to Washington to ask President Clinton to bail him out of a humiliating situation. Mr Sharif was compelled to agree in Washington that he would withdraw his intruding forces and respect the sanctity of the Line of Control. The whole exercise was a military and diplomatic fiasco for Pakistan, and required decisive military action, together with astute diplomacy.

In a second article titled The General, the “Spy”, and no talks with India, you have called the Pakistan Army Chief General Raheel Sharif the most ‘destabilising’ factor in the subcontinent and the reason why the Pathankot joint probe process fell through. In these circumstances, what is the road ahead for Prime Minister Modi, who made imaginative and bold moves in reaching out to Nawaz Sharif personally?

Pakistan realised that Mr Modi’s visit to Lahore had turned global opinion in India’s favour, since the world saw PM Modi’s visit as reflecting a genuine desire for resolving issues and living at peace with Pakistan. The Pathankot attack happened immediately after the visit. It was seen by the world as being entirely unacceptable and contrary to Pakistan’s protestations of being desirous of good relations with its neighbour. But is this diplomatic gain for India going to get Pakistan to end sponsorship of terrorism and resolve issues with India peacefully through bilateral negotiations? The answer is no.

As I have written in my article, the Pakistan army will wait for the world to forget what happened in Pathankot, in the same way as memories of the Mumbai attacks faded with the passage of time. I have little doubt that once the snows melt in July, infiltration across the Line of Control will again pick up.

In such a scenario, the road ahead for Mr Modi is to continue with diplomatic engagement with Pakistan to assess if there are any signs of Pakistan being prepared to end its support for terrorism. We also need to monitor the evolving political situation within Pakistan. The Pakistan army is going to have difficulties in sustaining its current stance toward India, given that it is fighting a battle with its own people in all four provinces of the country, including Punjab, which is the political base of Prime Minister Nawaz Sharif. This is going to lead to internal contradictions within Pakistan. India must be prepared to take advantage of that situation.

Lastly, would you like to comment on the road ahead for Pakistan?

My sense is that Pakistan is going to face more trouble on its border with Afghanistan than on its border with India. The Taliban leadership that the ISI has stitched together under Mullah Mansour is going to extend and expand its military actions within Afghanistan. The tribal areas in Pakistan bordering Afghanistan will becomes increasingly troubled and violent. This will become a morass into which the Pakistan army will be drawn, ever deeper.

The Pakistan army will become more preoccupied in dealing with developments on its borders with Afghanistan rather than its eastern borders with India. And with President Obama categorically stating that American troops will not be withdrawn from Afghanistan this year, the Afghans can be expected to hold their own against the Pakistan backed Taliban. We can only hope that the more costly their adventure on the Afghan border turns out to be, the more likely the Pakistan army will be to see reason, on the Indian border.

AS PART OF ‘POLICY CHALLENGES – 2019-2024: THE BIG POLICY QUESTIONS FOR THE NEW GOVERNMENT AND POSSIBLE PATHWAYS’
CPR EDUCATION

By Kiran Bhatty

In the context of the declining quality of public education, governance has emerged as an important explanatory variable, quite distinct from the education variables more commonly cited, such as teaching and learning practices or curriculum and textbook quality. An important component of the governance architecture in any sector is its information and data regime, as all aspects of monitoring, planning and policymaking are dependent on it. A look at the data system in the education sector in India reveals that there is much amiss at all levels of data collection and use.

This is not to deny that compared to a couple of decades ago, considerable energy and investment have gone into building a regular school-based decentralized data collection system in India. This District Information System for Education (DISE), set up after Sarva Shiksha Abhiyan (SSA) was launched in 2001, and now called Unified-DISE (U-DISE),1 collects data from 1.5 million schools (government and private) and provides report cards up to the secondary stage for every state, district and school. It is remarkable that this data is compiled and School Report Cards prepared and uploaded on the website on an annual basis. Education data from households is also being collected by Panchayats and compiled annually in Village Education Registers. A few states have supplemented this with data from Child Tracking Surveys, which enumerate the population of school-going children. In addition, the Ministry of Human Resource Development (MoHRD) commissioned three rounds of household surveys in 2006, 2009 and 2014. The SRI-IMRB surveys, as they are called, collect information on children in the age group 6-13 years who are out of school. Other large household data sets have emerged too, in addition to the National Sample Survey (NSS) and Census, such as the National Council of Applied Economic Research’s (NCAER) Indian Human Development Survey (IHDS-I, 2004-5 and IHDS-II, 2010-11), the Annual Status of Education Reports (ASER) since 2005, and now the Socio-Economic Caste Census (SECC). All of them provide data on education indicators and school participation in some form.

However, in the midst of this ‘feast’ of data sources, we get varied, often contradictory evidence on basic indicators such as the proportion of children out of school, the extent of improvement in retention levels, the learning outcomes and the quality of education. Even in areas of education finance, such as teacher appointments and salaries, we do not have an authentic database. Hence, despite the fact that the coverage and scope of data collection by the government has increased enormously with many more indicators added, nagging questions remain about the quality, utility and purpose of the data, with obvious implications for planning and policymaking. Further, with multiple sources of data – both governmental and non-government – in operation, data neutrality also cannot be assumed.

This paper highlights the methodological as well as administrative anomalies in the system, and points to the need for greater decentralized management of data as well as collaboration across agencies for purposes of standardizing definitions and methods of estimation. It further emphasizes the need for public verification of data to ensure authenticity as well as validation across sources to reduce bias.

Methodological Discrepancies

Definitions and Methods of Estimation

The methodological difficulties begin with the range of definitions and methods of estimation used for important indicators by different government and non-government agencies collecting data. For instance, estimates for out-of-school-children (OOSC),2 all collected through household surveys, are based on different ‘questions’ asked by investigators employed by each source. The NSS, for example, asks, ‘How many children are currently attending school?’, while the Census enumerators ask questions related to ‘status of attendance in an educational institution’. The MoHRD survey, on the other hand, claims to follow both the sampling and methodology used by the NSS, and yet arrives at vastly different results. The NSS and MoHRD surveys, which are based on a sample, then extrapolate from their figures the proportion of children that are out of school as a percentage of the population of children in that age group. Using this method, the NSS 71st round (2014) has pegged the figure at a little less than 10% of the child population, amounting to nearly 20 million children, while the MoHRD (SRI-IMRB, 2014) estimates put it at 3% and thus approximately 3 million! The 2011 Census, on the other hand, suggests that more than 15% children in the same age group do not go to school, thus giving us a wildly differing figure of almost 40 million.

Similarly, the figure for the total number of teachers in a school turns out to be not as simple a statistic as it sounds, with teachers being routinely sent on deputation to other schools.3 Thus, it is unclear whether a teacher who is on deputation from another school is to be counted in her current position or in her original school; or does she end up being counted in both? Similarly, information on the employment status of teachers has only two categories in the DISE format – regular and contract – whereas multiple categories that do not fit precisely into these categories also exist (voluntary, assistant, etc.), resulting in highly inaccurate data being collected on such an important indicator. Other gaps in the data collected include: information on salaries paid out by each state to the different categories of teachers and measures of learning outcomes on a regular basis. The problems are compounded by the fact that formats for collecting data are designed centrally and do not take into account local specificities; nor are teachers – often the primary data enumerators – adequately trained to fill the formats.

Validation and Verification of Data

Another aspect of data credibility that has proved to be a weak link in the data collection process is verification and validation of data. While the rules for DISE dictate that 10% of the sample be randomly cross-checked, DISE itself is unable to verify that this process is either regularly or adequately carried out, due to lack of capacities available at the frontline for the process. In addition, the education departments ignore the evidence presented by other government or non-government sources to validate and thus improve the credibility of their data. Data validation faces some mundane difficulties as well, related to different methods and time periods used for estimating different indicators by the agencies that collect data. For instance, the Right to Education (RTE) Act talks about children between 6 to 14 years age, but practically all data agencies (except those under MoHRD) use different age groups when compiling education data, making comparison quite difficult. Similarly, the dates and periodicity of data collection vary across sources. ASER is an annual survey; NFHS followed a six-yearly pattern initially but has now slipped to 10 years since the last survey. IHDS thus far has maintained a gap of six years between its two successive surveys. While NFHS-3 and IHDS-1 roughly cover the same period (2004-5 and 2005-6), neither corresponds to the Census dates, but IHDS-2 (2011-12) does. NSS also follows a different time period for its education surveys.

Administrative Anomalies

The Purpose of Generating Data

Different agencies plan their data collection for different (and specific) purposes, and not necessarily for planning or monitoring education and hence for education policy. For example, the education rounds of NSS are part of the survey on social consumption, which in turn seeks to assess the benefits derived by various sections of society from public expenditure incurred by the government.4 The population census, on the other hand, is the primary source of basic national population data required for administrative purposes and for different aspects of economic and social research and planning.5 The non-government sources also have unique purposes in mind, again not necessarily with education as the primary objective. Thus, NFHS is essentially a health and nutrition survey that also collects data on select education parameters. Similarly, IHDS is geared towards the larger goals of human development and poverty, especially the links between education, skills and livelihood. Only ASER is solely dedicated to education, specifically learning levels. However, it does not tell us how the levels of learning vary with student enrolment or attendance, or any household factor.

What is more surprising is that even the data collected by MoHRD and state education departments, though admittedly for the purpose of monitoring and planning education, is not geared towards policy goals. Instead, data collection and analysis are guided by their use in taking stock of the provisioning of schools, rather than as a mirror of their functioning. Unsurprisingly, therefore, school surveys focus on collecting information related to (i) broad indicators of infrastructure and teacher availability; and (ii) student enrolment and distribution of incentives. Both these sets of data showcase administrative efforts rather than education progress. Even the household survey (MoHRD’s SRI-IMRB) is used only for estimating OOSC. No effort is made to use disaggregated data to understand the problems of specific groups of children or schools.

A second conundrum associated with the purpose and use of education data relates to the fact that planning and policymaking are extremely centralized processes. Thus, data – however collected – plays a limited role in the planning and policy processes. For instance, the Project Approval Board at the MoHRD that approves annual plans and budgets (AWP&Bs) for the states does so on the basis of the finances allocated to it by the Ministry of Finance and the norms of expenditure specified by the central ministry (MoHRD). While the AWP&B for a state reflects the needs of the state, eventual allocations differ widely from it, as they are based on what is made available by the Ministry of Finance through processes that do not involve the education sector. Of course, state plans are themselves based on a process of aggregation that does not involve a genuine decentralized planning process. This is evident from the fact that dissemination strategies are not aligned with the goals of decentralized planning, as data is largely unavailable in usable form at the local or school level. In fact, local data management systems are virtually non-existent, putting paid to the idea of decentralized planning. Thus, while it is true that schools are now asked to prepare their plans through the School Management Committees, in fact what is submitted by them are copies of the DISE format – presumably as indicative of the status of schools and thus reflective of their needs! Eventually, therefore, at the district level – and probably also at the state level – DISE data is referred to for determining the state AWB&P.

Limited State Capacity

A second and perhaps overarching problem confronting the data regime in education is that of limited capacities to design, collect, analyse and use data throughout the government structures, from the central to the local. DISE is run almost entirely on the shoulders of data entry operators of the education departments at the district and block levels. Data that is collected from the ground up amounts to a process of simple aggregation resulting in the loss of specifics, such that by the time it reaches the central level, it barely reflects the ground realities and can hardly serve the needs of the people. The aggregation itself is still done manually at the block level in many states with digitalization appearing only at the district level. Further, implicit in the collection process is a conflict of interest, especially with DISE data as it is entirely dependent on formats filled by teachers. It is well established that teachers might be incentivized to represent information in ways that inflate facts, such as student enrolment.6

In addition, the departmental staff at the state level have not acquired the understanding, through their own qualifications or through training provided by the government, of the relevance and importance of quality data or its use in the planning or policy process. For instance, innumerable formats are designed for monitoring schools, but none of that data is put to any use.7 In fact, it is not even referred to in the monitoring or review meetings held at the block and the district. Unfortunately, the personnel involved in collecting and collating that information are themselves unable to gauge its importance as they see it as simply a chore – of ‘filling formats’. With the import of the data completely lost on them, they are unable to use it in a constructive fashion, making the entire exercise redundant.

The Way Forward

(i) Improving definitions, standardizing them across sources, and using improved methods of collection and estimation of basic indicators.

(ii) Developing capacities of the data regime and giving a greater role to data users, especially the education officials at different levels of government ranging from the national to the local. Necessary technical skills, if provided, will enable them to be cautious when collecting data, as also to interpret and use it appropriately, such as when making plans.

(iii) Providing support to monitoring agencies, such as school management committees, social audit groups, and education researchers, to allow them to publicly verify data that is officially collected. This requires data to be made publicly available especially at local levels. The lack of local data management systems – at the level of the school or even Panchayat – is a huge lacuna in the information and data regime of the education sector. Even the DISE formats that are filled by the teachers and sent up the bureaucratic ladder are not available at the school level. While schools are asked to keep a copy of the DISE Data Capture Format, they are unable to maintain more than the current year’s format, if even that. This is perhaps because schools do not have computing facilities, and hence all records are paper records – poorly maintained and not updated. In other words, even the information that is generated in the school is sent up to the next level for eventual digitization at a higher level (district or block level, as the case may be) where computing facilities are available. The digitized information, however, does not flow back to the school, for the same reason cited above. As a result, no institutional memory is built up for purposes of tracking change or progress in a school. Ideally the format should be verified by the parents and larger community before being sent up, to ensure accuracy. Further, data not collected by DISE could be maintained at the school and Panchayat levels as well and used for making school plans. At any rate, it could form the basis for questioning the centralized planning process.

(iv) Reducing bias by validation through the use of multiple data sets. Validation of data against different sources, especially in the case of data used for policy, can ensure that bias is factored in and therefore a more judicious use of data is effected. Multiple data sets have other uses as well. For instance, while any single data set cannot collect information on all relevant issues, data collection is known to be a very expensive and time-consuming process. Thus, information collected by NSS on household expenditures – which demonstrates that 70% of all OOSC in urban areas are concentrated in the lowest quintile, while in rural areas they are in the lowest two quintiles – is relevant information that can and should be used by the education department without having to repeat the exercise. Similarly, NFHS data provides linkages between education participation and family health, also of importance to the education department.

(v) Making better use of data through proactive collaboration of different government and non-government agencies. For instance, if household and school data were available in the same portal, it would maximize their use. Similarly, if the NSS education rounds were better coordinated, along with standardization of definitions of important indicators, it would greatly help in serving the cause of education goals. Streamlining the planning process to enable planning based on decentralized data will go a long way towards improving the use of data at the local level as well as ensuring a more genuine decentralized planning process.

Other pieces as part of CPR’s policy document, ‘Policy Challenges – 2019-2024’ can be accessed below:

• The Future is Federal: Why Indian Foreign Policy Needs to Leverage its Border States by Nimmi Kurian
• Rethinking India’s Approach to International and Domestic Climate Policy by Navroz K Dubash and Lavanya Rajamani
• India’s Foreign Policy in an Uncertain World by Shyam Saran
• Need for a Comprehensive National Security Strategy by Shyam Saran
• A Clarion Call for Just Jobs: Addressing the Nation’s Employment Crisis by Sabina Dewan
• Time for Disruptive Foreign and National Security Policies by Bharat Karnad
• Multiply Urban ‘Growth Engines’, Encourage Migration to Reboot Economy by Mukta Naik
• Schooling is not Learning by Yamini Aiyar
• Clearing Our Air of Pollution: A Road Map for the Next Five Years by Santosh Harish, Shibani Ghosh and Navroz K Dubash
• Protecting Water while Providing Water to All: Need for Enabling Legislations by Philippe Cullet
• Interstate River Water Governance: Shift focus from conflict resolution to enabling cooperation by Srinivas Chokkakula
• Managing India-China Relations in a Changing Neighbourhood by Zorawar Daulet Singh
• Beyond Poles and Wires: How to Keep the Electrons Flowing? by Ashwini K Swain and Navroz K Dubash
• Regulatory Reforms to Address Environmental Non-Compliance by Manju Menon and Kanchi Kohli
• Safe and Dignified Sanitation Work: India’s Foremost Sanitation Challenge by Arkaja Singh and Shubhagato Dasgupta

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¹ U-Dise or Unified-DISE is a database of all students from grades 1 to 12.
² Non-government sources do not collect information on this variable at the national level.
³ It is common to send a teacher appointed to a particular school to another, if there is a shortage in the other school. While shortages exist in a very large number of schools, such deputation typically takes place if the demand for more teachers is raised loudly enough or the political configuration is such that the school is able to draw a teacher towards their school, typically creating a shortage in the school from which the teacher is deputed!
⁴ http://mail.mospi.gov.in/.
⁵ http://censusindia.gov.in/Data_Products/Library/Indian_perceptive_link/C…
⁶ See Bhatty, Saraf and Gupta, ‘Out-of-school Children in India: Some Insights into What We Know and What We Don’t’, Economic and Political Weekly 52(49) (2017)
⁷ See Bhatty and Saraf, ‘Does Government’s Monitoring of Schools Work?’, CPR Working Paper (New Delhi: Centre for Policy Research, 2016).