Author: cprindia

This book documents Shri L P Singh’s lecture, delivered at the South Gujarat University in Surat 1986. It is a useful input in assuming both the role played by Sardar Patel and the evolution of the modern Indian state.

L P Singh emphasises that Sardar Vallabhai Patel played a crucial role in creating the post-independence nation in the precarious situation after the departure of the British. Even though his governmental tenure in Delhi was a relatively short one, he is considered one of the key architects of this phase. This interpretation of Sardar Patel’s role covered in this brief lecture points to the emergence of the administrative state in India. The strength and weakness of the Indian States have been of some debate in recent years and perhaps the debate will occupy more space as the adequacies and inadequacies of the state in India begin to affect our national growth and performance.

Mr Singh describes Sardar Patel as ‘the greatest statesman-administrator of Independent India’ and ‘ranks him with Ashoka and Akbar, as a unifier of the country’.

L P Singh, a Founder Member of the CPR was a former Home Secretary and former Governor of Assam and the North East.

Full book can be accessed here.

Context

The current global architecture for climate policy and action comprises of a multiplicity of actors, organisations, and operational modalities that differ from those originally anticipated in the United Nations Framework Convention on Climate Change (UNFCCC).  The climate change arena is now widely populated by activities that are often outside the formal auspices of UNFCCC, including initiatives that are public, private and civil society based, operating at various scales and thereby involving different levels of governance. This scenario raises two important questions:

• What are the implications of such a fragmented climate regime?
• And, more specifically, what are the opportunities and challenges this architecture poses for a low-carbon technology transition in developing countries, in keeping with international climate objectives?

The multi-level climate governance framework lays out two dimensions of action and influence to implement low-carbon strategies. One, is between national governments and regional and local actors. And the second, is the learning, knowledge transmission and cooperation across regions and organisational boundaries. Together, coordinated interactions within this structure have the potential to narrow policy and other ‘gaps’ to help address the problem of climate change.

What is this research about?

The built environment in India is ideal to study the potential of multi-level governance, particularly since its policies often draw on international activity and knowledge to implement locally-specific low carbon solutions. In 2010, buildings accounted for 32% of total global final energy use, and 35% of total energy consumption in India. This has made the buildings sector a fast-growing market for low-carbon energy technologies.

The paper titled Deploying Low-Carbon Technologies in Developing Countries: A view from India’s building sector, co-authored by Khosla, and published in Environmental Policy and Governance, discusses this issue by examining two inter-related questions:

• How do (or don’t) low-carbon technologies get transferred and deployed in India’s built environment?
• And what implications can be drawn from the Indian case for effective low-carbon technology development and transfer for developing countries?

How was the research conducted?

Empirically, the paper draws on interviews with experts within and outside government, data from official building energy documents, and insights from supporting literature. It also draws on author experiences of direct involvement in the sector. For instance, co-author Ajay Mathur headed India’s Bureau of Energy Efficiency for almost a decade, and Khosla worked alongside the state of Andhra Pradesh for two years on building energy code adoption.

Key findings

The paper examines the coverage and nature of the multilevel linkages within India’s built environment from 2000-2015. Authors examine if the multilevel climate architecture can be leveraged to support technological change for desired outcomes in Indian buildings.

Table 1 presents a collation of key building energy technology activities and actors, and their respective governance levels. The table lists the different activities that comprise technological change: technology research and development (R&D); financial transfer to assist different stages of the technology cycle; capacity building and analytical support; policy designs and implementation.

Table 1. Activity map of low-carbon technological change in India’s buildings (2000-2015)

Three patterns characterise the nature of technological change in India’s low-carbon buildings.

• First, most activities flow through vertical linkages in a top-down (international → national → subnational) direction, as opposed to international processes and outcomes being shaped by national or subnational level activities. States or subnational bodies thereby seldom serve as ‘laboratories of experimentation’ or pioneers of policy initiation.
• Second, and a consequence of the largely top-down nature of activities, is the profusion of international actors engaging with this space in India. This international linkage is usually mediated by domestic actors, making it collaborative in scope. The expertise from various bilateral, multilateral and strategic partnerships, and additional groups has played an important role over the last decade and a half, and in most cases work is co-produced with local experts, civil society partners and national/state governments.
• Third, the activity patterns in Table 1 demonstrate a focus on the downstream stages of the technological cycle, i.e. on deployment. However, the other dimensions underlying technological change – technology R&D and financial transfer – have been less present in Indian buildings, even though both are important to advance technologies (the US–India R&D collaboration being a recent exception). This observation of a limited focus on the upstream parts (research, product development) of the technology cycle is consistent with the larger landscape of international collaborative and support activities.

Together, these patterns demonstrate the potential but also the limitations of working with the linkages between and across governance levels. The paper further discusses three factors that collectively help explain these patterns: the particularities of India’s federal structure; the constraints of capacity, which is typical of developing countries; and the growing policy linkages between energy and climate change stemming from the global climate debate. This discussion informs the subsequent policy recommendations for low-carbon technology transfer in developing countries more broadly.

Policy recommendations

• Adopting a ‘Need’-Driven Approach – Most developing countries prioritise economic and social development over investments in expensive low-carbon technologies. Technology transfer thus needs to be constructed around a collaborative and ongoing local assessment process, driven by developed and developing countries. Examples are green building designs that take into account local climatic conditions and occupant use patterns or policy delivery models that consider behaviour norms or financial realities of consumers. Engagement between developed countries and networks of local users, and with their private sector is equally relevant. Better country understanding of recipient priorities and capabilities (technologies, finance and knowledge), with ongoing local inputs, will be fruitful for international actors working in developing countries and also increase domestic buy-in.
• Differentiated Approach to Capacity Building: Most developing countries struggle with questions of capacity. While international funds often focus on capacity projects, these efforts rarely translate to a domestic critical mass. It is thus important to understand the kinds of capacity needed in order to build them – for instance, studies have shown that crucial ingredients of technology transfer are found rarely in ‘hardware’, but rather in people-embodied knowledge. More specifically, the research findings of this paper suggest that greater emphasis needs to be placed on building operational, strategic and organisational capacities.
• Strengthen Linkages and Integrate Agendas across Governance Levels: Developing countries can strengthen linkages and respective agendas across governance levels – to enable appropriate flows of knowledge regarding technology needs, possible solutions and delivery mechanisms, and allow resources to reach where they are most needed. For instance, developing countries can leverage the growing profusion of initiatives targeted at climate mitigation by investing in better coordination with international fora, communicating their specific needs and appropriately shaping the international agenda.  The linkages between the national and local levels are equally crucial, especially since the effectiveness of any climate programme ultimately depends on outcomes on the ground.

The publisher page from where the full paper can be purchased can be accessed here.

For a copy of the publication, contact climate.initiative.cpr@gmail.com.

This paper attempts to add to the given literature by undertaking a detailed analysis of school consolidation process in Rajasthan. It seeks to answer the following questions:

First, what are the specific criteria and conditions for closure of schools and their consolidation with other schools and whether they were adhered to by the state administration?

Second, whether school consolidation led to improvements in enrolment, availability of teachers, and essential school infrastructure facilities as mandated by the Right of Children to Free and Compulsory Education (RTE) Act, 2010.

The full working paper can be accessed here.

The Indian bureaucracy marks over 160 years in 2018. On the occasion, former Indian Administrative Service (IAS) officer T R Raghunanandan reflected on some moves to reform the IAS in Accountability Initiative’s RaghuBytes series.

In the first part of ‘Walking The Tightrope: The Future Of The IAS’ he discusses the frequently debated issue of whether final selection of officers into their respective services should depend upon the performance of the officer trainees in the Common Foundation Course. The most recent back and forth on the issue came earlier this year with the government deferring the move to formalise assessments during the course.

Raghunanandan’s perspective is informed by his experience of the Foundation course. In part two of this blog, he considers if the idea of testing the officers during the Foundation course will have the effect of improving the quality of the civil services. He opines that the course is a big milestone not in terms of the training content imparted, but because it is the professional gateway to what is a lifetime of service in the government.

In the third part of the series he discusses the government’s latest decision to allow lateral entry at the level of Joint Secretary and lays out the interplay between politics and bureaucratic functioning.

By Partha Mukhopadhyay and Eesha Kunduri¹

Informality and functionality are intricately interlinked in our cities, for “the informal city is very much the functioning city” (Mukhopadhyay 2011). Policymakers, urban local bodies and government agencies need to move beyond dichotomies such as formal and informal, planned and unplanned, and recognise the interconnections among these. The relationship between manufacturing and urban planning needs to be redefined. More attention to informal manufacturing in our cities, where women constitute a visible segment of the workforce, and facilitating its connections to the formal segment will bear rich dividends, not just in supporting manufacturing, but also in raising female labour force participation, another critical policy goal.

Beyond Slums and Vendors – Factories

Two strands of discussion appear to dominate the discourse about cities and informality. First, the auto-constructed nature of most urban neighbourhoods², and the need for regularisation and in-situ upgradation of informal settlements. Second, promoting and supporting informal livelihoods like street trading and hawking. There is, however, another form of informal activity that is central to our cities – informal manufacturing and informally employed workers in formal manufacturing. Even when regularisation is initiated, the focus in cities across the country – whether in Delhi, Bengaluru or even the smaller towns of Maharashtra – has been on residential and commercial activity, and rarely on industrial activity. Importantly, these enterprises constitute a significant source of urban employment, particularly for women, and as such, call for policy attention.

The question of informal manufacturing is not only a question of registration and tax status of an enterprise – indeed it may well be registered – it is also about the tenuous relationship between manufacturing and urban planning and needs to be understood in this context.

Industry and the city: The case of Delhi

Delhi’s industrial landscape is dotted with several small-scale industries, wherein garment and footwear manufacturers comprise the largest share, followed by electrical machinery production and repair services (GNCTD 2010). Industrialisation in Delhi has been marked by contestations over space, and the relocation of ‘hazardous and noxious industries’, ‘large and heavy industries’, and ‘non-conforming industries’ to peripheral areas of the city. This relocation was upheld by the Supreme Court in 1996, and in its immediate aftermath, resulted in unemployment for the urban poor and migrant workers who had come to depend on these industries for their livelihoods.

Currently, Delhi has industrial activity spread over 28 planned estates, 4 flatted factory complexes, and 22 industrial areas ‘notified for regularisation’. The areas ‘notified for regularisation’ or ‘non-conforming’ industrial areas as they are otherwise known are spaces of manufacturing activity that have emerged in residential areas, particularly around urban and rural villages in response to a range of market demands. Many of these unplanned industrial areas could be said to have emerged on village lands earmarked for residential (abadi) and/or agricultural use. While there are some planning exemptions within village boundaries – lal dora areas – these do not extend to industrial activity. Thus, these areas are unplanned, unauthorised and ‘non-conforming’ in the sense of being located in areas not zoned for industrial use.

The Master Plan for Delhi (MPD) 2021 states that unplanned industrial areas are eligible for regularisation if more than 70 % of the plots in the area are engaged in industrial activity and subject to fulfilment of other stipulated conditions. It lays down guidelines for the redevelopment of these areas; pertaining to aspects like road widening, provision of services, adherence to pollution control norms, and development of open spaces and parking facilities, among others. The redevelopment plan is required to be formulated by the local body or land owning agency in consultation with a society of land owners in the industrial area, which should be mandatorily formed (DDA 2010).

In practice, however, most non-conforming industries have been subject to sealing drives to close them down, and there has not been a push for their redevelopment: neither from the owners of small-scale enterprises in these areas nor from the local bodies or concerned government agencies. Industrial activity is seen as largely operating in violation of Master Plan provisions, as a source of pollution and therefore, as an aberration to a larger vision of the city. When the Supreme Court first ordered industrial relocation, units in non-conforming areas were asked to apply for plots in the new industrial areas that were developed (mostly on the fringes): a little over 50% of the applications were found eligible and allotted plots. The approach to regularisation has entirely been on relocation; units that were allotted plots but continue to function from the non-conforming areas (and did not shift for a variety of reasons), those that were found ineligible for an alternative plot, and those that function in violation of various industrial planning regulations are all subject to being closed down.³

In the push to create world-class, clean and green cities, the focus often seems to be on the knowledge economy – IT and IT-enabled services – with manufacturing activity relegated to the fringes of cities. The Delhi case illustrates this starkly. Further, in interviews, industrialists argued that Delhi is an unfriendly space for industrial growth, and emphasised the gradual shift of manufacturing hubs to the neighbouring state of Haryana, alluding to agglomeration benefits and tax incentives, among other reasons.

But relocations are disruptive processes: they adversely affect both factory and home-based work for those engaged in them, particularly disadvantaging women, disrupt local work networks, and increase search, time and distance costs for new jobs. In Chennai’s Kannagi Nagar resettlement colony, located along the city’s IT corridor, Coelho, et. al. (2013) found that: “Industrial relocations increase the costs for workers to access their jobs, and depress real wages due to the fall in demand for certain kinds of work.” As nearby factories shifted further away, they found it adversely limited work and livelihoods.

Planned and unplanned industrial areas: Co-located and Inter-linked?

While the Master Plan for Delhi (MPD) 2021 and the Industrial Policy for Delhi 2010-2021 distinguish between planned and unplanned industrial areas, narratives from the field stress the linkages between these two typologies of areas. In both these areas, industries are engaged in a range of manufacturing activities spanning, inter alia, footwear, auto-parts, garments, plastics, steel, etc. and are typically described as ‘business-to-business’ (B2B) enterprises that supply raw material and intermediate products to bigger firms in the vicinity. In interviews in an industrial area in North-West Delhi, factory owners in both the planned as well as surrounding unplanned areas spoke about interlinked activity chains: footwear straps manufactured in an unplanned areas, for instance, supplied to factories manufacturing soles in the planned areas; sorting of residual cloth received from textile hubs like Jaipur and Gurgaon, which is sold in a ‘kattar’ (residual clothes) market. Owners in the planned areas also spoke of a ‘broken chain’ due to ongoing action in the city to close down the unplanned factories, at the time of field research.

The two kinds of industrial areas are also linked in the sense of labour circulation. Being located close to each other, they draw upon the same pool of workers residing in nearby bastis, urban villages, resettlement colonies and unauthorised colonies (see Sharma and Kunduri 2015). Workers typically access work through local networks of contractors and neighbours and move between planned and unplanned areas based on availability of work.

Women’s work and unplanned industrial areas

Unplanned industrial areas also provide relatively flexible work arrangements that some women may prefer. In earlier fieldwork in East Delhi for instance, some women reported preference for work in workshops on the periphery of an urban village on account of spatial proximity, and the ability to return home during breaks, particularly to attend to children (Sharma and Kunduri 2015).  Geert De Neve (2012) makes a similar observation in his distinction between large apparel firms and smaller workshops in Tiruppur in Tamil Nadu. In more recent fieldwork in Delhi, a female worker, who works on daily wages in an unplanned area and looks for work every day, stated she preferred this arrangement over earning a meagre wage in the authorised industrial units, where they are often expected to work overtime.

Co-located planned and unplanned industrial areas also create home-based work opportunities for women, which is localised and driven by spatial networks of “jaan-pehchaan” (familiarity)., Though it can be low-paying and precarious, home-based work may be preferred by women for reasons of flexibility and legitimacy. It enables women to manage housework and childcare responsibilities along with undertaking paid work from home. It is seen as a legitimate work choice for many women, for whom going out to work in factories is often accompanied by notions of stigma and shame (Sharma and Kunduri 2015).  In the areas studied, home-based workers were involved in a whole spectrum of work, such as putting threads into bookmarks, taping of speaker components, making decorative pieces, making buffs for machines polishing steel, making bindis, fixing insoles and upper parts for footwear, etc. Most of this work is outsourced from factories in planned as well as unplanned industrial areas, many of which are small workshops operating within urban villages and unauthorised colonies. Women are remunerated at piece-rates. In the absence of designated work spaces, work is undertaken in groups using shared spaces – in common courtyards of tenements, and on cots outside their homes in bastis. Contractors and sub-contractors (often female) who bring the work to the women are often embedded as residents, thereby leveraging their connections and building relationships of trust.

Key Policy Takeaways

Regulate and regularise existing industrial areas

Instead of pushing industries to city peripheries and industrial parks with poor transport connectivity, we need measures to regulate existing industrial areas in the city, while ensuring their conformity to environmental, safety and labour regulations. The latter two are particularly important in light of several cases of factory collapses and blatant violations of labour safety and welfare; but should not be used as an excuse to drive away factories themselves. It should also be noted that when it comes to regularisation/ redevelopment of unplanned industrial areas, ‘unrealistic planning norms’ continue to hinder.⁴ Industrial planning norms, thus, need to be modified to allow more flexibility in redevelopment of unplanned areas. In this, planners can draw upon instances of regularisation of residential areas like unauthorised colonies in Delhi and gunthewaris in Maharashtra (Bhide 2014). Like residential and commercial areas, the regularisation of industrial areas too needs to become a part of our urban planning discourse.

Redevelop and redesign neighbourhood amenities to encourage female labour force participation 

A key benefit of regularising these industrial clusters is the retention of a number of female jobs. Redevelopment of industrial areas must thus be accompanied by interventions in the nearby residential settlements in a manner that encourages more women to participate in the labour market. In the case of home-based workers, workspaces are intertwined with living spaces, creating constraints on space. Women make do with whatever little community spaces they can manage to access. It is essential for cities to recognise that urban neighbourhoods are beyond residential, and develop amenities from the perspective of both work and living. This would involve redesigning neighbourhood amenities like community halls for multiple uses, including common workspaces – in the fashion of the co-working spaces that have emerged to support modern start-up and innovation ecosystems — for home-based workers with amenities like toilets, lighting and ventilation.⁵ Urban local bodies should be sensitised and empowered to do this.

Conclusion

In line with unauthorised residential and commercial areas, the regularisation of unauthorised industrial areas needs policy attention, not only because they are deeply imbricated with authorised industry and are essential to the growth of manufacturing, but also because they provide flexible work options to many women, who would otherwise not be in the workforce. This can be done, in many instances, without harming the environment. Indeed, the planning philosophies that underpin the guidelines that render them illegal may no longer be appropriate, given the technical progress and the imperative of compact, mixed use cities. This entire approach to excluding industry, particularly the informal sector, from our cities needs to be discarded.

¹ We draw upon Eesha Kunduri’s research engagements in Delhi’s industrial areas to illustrate issues in this note. Some of the examples here draw upon field interactions over August 2018 to January 2019, conducted with Ritika Gupta, as part of the IWWAGE-IFMR initiative at ISI, Delhi led by Farzana Afridi.
² Auto-construction refers to the process by which residents access resources, materials, “permissions”, lay out settlements and construct houses on their own. It is not necessarily “self-built”, in that it may involve the use of masons and contractors for construction of houses as well as common infrastructure, like drains, etc.
³ Interactions with officials at Municipal Corporation of Delhi (Civic Centre Office) and Delhi State Industrial and Infrastructure Development Corporation Ltd. (DSIIDC), as part of the IWWAGE-IFMR study (at ISI, Delhi) referred to earlier.
⁴ For instance, the MPD 2021 guidelines for redevelopment of unplanned areas stipulate a minimum reservation of space: 10 % for ‘circulation / roads / service lanes’, ‘parking and loading / unloading areas’, infrastructure like Pump House, Fire Station and Police Post; and 8% for ‘parks / green buffer’. Given the density of most unplanned industrial areas, such norms render redevelopment infeasible.
⁵ Discussions with Shalini Sinha of WIEGO and Firoza Mehrotra of HomeNet South Asia.

References

Bhide, A. (2014). The regularising state, Economic and Political Weekly, 49(22), 92-100.

Coelho, K., Venkat, T., & Chandrika, R. (2013). Housing, Homes and Domestic Work: A Study of Paid Domestic Workers from a Resettlement Colony in Chennai, Economic and Political Weekly, 48(43), 39–46.

DDA. (2010). Master Plan for Delhi 2021. New Delhi: Delhi Development Authority (Reprint Edition). https://dda.org.in/ddanew/pdf/Planning/reprint%20mpd2021.pdf

De Neve, G. (2012). Fordism, Flexible Specialisation and CSR: How Indian Garment Workers Critique Neoliberal Labour Regimes, Ethnography, 1–24.

GNCTD. (2010). Industrial Policy for Delhi: 2010–2021. New Delhi: Department of Industries, Government of National Capital Territory of Delhi.

Mukhopadhyay, P. (2011). Formality and functionality in Indian cities, Seminar, 617, 2-8.

Sharma, S. & Kunduri, E.  (2015). ‘Working from home is better than going out to the factories’ (?): Spatial Embeddedness, Agency and Labour-Market Decisions of Women in the City of Delhi, South Asia Multidisciplinary Academic Journal (SAMAJ). https://journals.openedition.org/samaj/3977

About the Wokshop

As part of our initiative to engage with law and policy makers, the Technology and Society Initiative at CPR launched a new series on ‘Navigating Interactions between Technology and Policy’. The focus audience for this initiative are Legislative Assistants to Members of Parliament (LAMP) fellows, parliamentary aides and others directly involved with law and policy making in India. This three-part series of workshops, consisting of talks and presentations by experts from and outside CPR, followed by lively interactions, aims to shed light on current debates pertaining to technology.

The second workshop in this series, with its focus on emerging technologies and related regulatory frameworks, was conducted at the CPR Conference Room on 26th September 2019. The discussion had three segments and was led by key resource persons in the form of individual presentations followed by a round of questions and answers. This was moderated by Ananth Padmanabhan, Visiting Fellow at CPR.

Drone Regulations

To present the perspective of the government on new technologies, Akhilesh Tilotia, a former Officer-on-Special Duty to the Minister of State for Civil Aviation, shed light on the debates around drone regulations in India. Drones or unmanned aerial vehicles (UAVs) have offered wide ranging applications across sectors like agriculture, property surveys, infrastructure management and other beneficial use cases. Every new technology is weighed on the scale of ‘good versus bad’, which is a flawed approach. Policymakers aim towards either minimising the harmful effects and externalities of policy or maximising innovation. In an attempt to save the society from ill-effects, sometimes governments end up throttling genuine businesses and innovators. In most cases, the government initially resorts to a complete ban in the anticipation that industry players would later approach them with the problems that the ban would cause for them, and then seek to address those issues one-by-one. This might not be an appropriate approach but still remains a common practice by governments around the world to attain a realistic and nuanced regulation. Drones, from being under a complete ban are now being regulated through ‘No Permission, No-take off’. The key challenges with drones are that of privacy, safety and security. However, Tilotia referred to the ‘Red Flag Law’ in the early days of the automobile revolution and argued that society does take some time to adapt to new technologies. The government’s response in the form of policies and law is expected to ease the rate of adoption. He also highlighted the importance of shifting the responsibility of intimation to the individuals who are using the technology rather than seeking prior permission from the government before acting further.

E-Commerce Regulations

Advancing a similar line of thought, Arjun Sinha, a legal and policy consultant to multiple e-commerce businesses, provided an overview of the e-commerce regulations in India. The definition of e-commerce encompasses, ‘buying and selling of goods and services including digital products over digital and electronic network’. According to this definition not all internet platforms classify as e-commerce businesses. Out of the prominent examples like Uber, Flipkart, Urban Clap and Urban Ladder, only Flipkart qualifies as an e-commerce company in the conventional sense. Focusing on Foreign Direct Investment (FDI) norms and parallel developments at the World Trade Organisation (WTO), he traced the history of e-commerce policy and regulation in India. In January 2019, the Department of Industrial Policy and Promotion (DIPP) reiterated that FDI in multi brand retail was prohibited in an inventory-based e-commerce model. In 1997, the wholesale trading (cash and carry) was executed 100% through the government route. In 2006, cash and carry retail was partly permitted under automatic route. In 2007, Flipkart was launched in India and by then online trade was already being viewed as a win-win situation for all the stakeholders: consumers, traders and the government. A global moratorium on customs duties over electronic transmissions was already in place, following which the 11th Ministerial Conference of the WTO held in Buenos Aires in 2016 advanced a proposal to make this moratorium permanent. This proposal had the opposite effect, compelling India to develop a nationalistic vision on the subject, reflected in a draft e-commerce policy that was leaked in 2018. Though withdrawn later, a subsequent draft also proposes bringing e-commerce business platforms under higher scrutiny particularly on themes like consumer protection and taxation. Key issues such as data localisation and data sharing with customers and vendors also found presence here. Press note 2 of 2018 has raised new operational barriers on digital platforms. A report by the Finance ministry was published on taxation of internet companies and the issue is being discussed globally. However, there is no domestic e-commerce law in sight yet.

Cryptocurrency Regulations

Shantanu Sharma, President of Blockchain Chamber of Commerce (India Chapter), spoke next, addressing the regulatory issues surrounding blockchain technology, bitcoins and cryptocurrencies. An Inter-Ministerial Committee of the Government of India has recently published a report along with a draft bill, recommending a ban on cryptocurrencies. This ban bears striking resemblance to the early action taken against civilian drones by the Directorate General of Civil Aviation in 2014. Interspersed with technical details, Sharma’s presentation highlighted the areas of concern for governments when it came to this technology. However, the technology has immense benefits too. Markets are dominated by technology leaders who shape and control the digital and internet architecture. This has the effect of furthering the centralisation of data and network power, and stifling competition. Decentralisation, serving as a counter-weight to this trend, is at the heart of blockchain technology. This technology essentially replaces a ‘third-party trusted intermediary’ with mathematical proof of the transaction that is verifiable by all actors without reliance on such intermediary. Bitcoin, in the words of its creator Satoshi Nakamoto, is  ‘purely peer-to-peer version of electronic cash which would allow online payments to be sent directly from one party to another without going through a financial institution.’

Conclusion

In conclusion, all speakers laid emphasis on the need to move away from knee-jerk bans on emerging technologies to formulating a principle-based framework which can efficiently regulate unpredictable innovations.

Highlights of the first workshop of the series on Privacy in the Times of Live, Constant and Mass Data Processing can be read here.

By Ananth Padmanabhan

Technology has significantly driven India’s growth over the past decade. Be it the rise of well-funded startups and ‘unicorns’, the imaginative use of technology for governance, or the emergence of India as a hub for R&D activity and a test bed for product innovation, technology is an important driver for growth in India. A 2018 report by the Startup India Initiative states: ‘The ecosystem comprises of over 14,600+ Startups, approximately 270 incubation & business acceleration programs, 200 global & domestic VC firms supporting homegrown Startups, and a fast-growing community of 231 angel investors and 8 angel networks. India also boasts of being home to the 3rd largest unicorn community, with over 16 high valued Startups having raised over $17.27 billion funding, with overall valuation of over $58 billion.’¹

But with this exponential growth comes a set of policy and regulatory challenges. First, government policy and the regulatory framework need to be aligned to enable the growth of a robust technological ecosystem, rather than impede it. The global competition for leadership positions in emerging technology domains, such as artificial intelligence, drones, gene editing and other areas, has become aggressive, with China becoming a lead contender. This global race demands impactful innovation policies that ease up creative and inventive activity, but in a responsible manner.

Second, as various incidents post 2016 demonstrate, the rise of the digital has created new vulnerabilities and new types of harm to individual and group rights. A digitally connected ecosystem is rife with security concerns, which are exacerbated when digital literacy does not keep pace with digital use. Moreover, with personal data becoming a critical tool for monetization and profiling, the incentive for both industry actors and the state to secure such data and respect individual privacy is quite low. Both the Facebook–Cambridge Analytica controversy and the unrestricted seeding of Aadhaar data in multiple databases to build a 360-degree view of citizens indicate distinctive kinds of threats to individual and community rights. Therefore, respect for privacy and individual/community rights must be externally imposed, with regulations playing a part in this process.² In short, developing an indigenous regulatory framework for new technologies is a pressing need for India. Three central principles are integral to this transition.

Three Central Principles

The first principle for regulators and policymakers to bear in mind is clear identification of the problem that regulation must address. While this is not unique to the technology context, there are a few specificities in this field that make this principle worth emphasizing. Often, technological change affects sectors that are under an existing regulatory apparatus, as seen in the case of online cab aggregators or food delivery services. When regulators attempt to transplant this apparatus to a new factual reality, a common mistake is to assume that regulations must address the same set of problems as witnessed in the earlier non-tech scenario. But in doing so, the regulatory response addresses more problems than required, because technology-enabled models are likely to sort out at least some concerns.³ This response also presents the danger of under-inclusion as new challenges raised by technology-based models may be missed in the process. Therefore, it is imperative to clearly identify surviving and new problems caused by technology, separate those that demand immediate regulatory attention from others that may only require a wait-and-see approach, and then develop targeted regulatory and monitoring strategies for each of these concerns.

For instance, the draft e-commerce policy released for discussion in 2019 defines ‘e-commerce’ as including ‘buying, selling, marketing or distribution of (i) goods, including digital products and (ii) services; through electronic network’. Evidently, this is an extremely wide definition that brings within regulatory control a wide range of activities from online retail to app-based health delivery. The document also attempts to outline policy for a host of different problems: data; infrastructure development; e-commerce marketplace regulations such as anti-counterfeiting, anti-piracy and foreign direct investment; consumer protection; payment related issues; export promotion; and content liability exemption, among others. The concerns of social media are far removed from fashion retail, and consumer woes pertaining to online travel booking differ vastly from digital health solutions.⁴ The unfortunate result is a heavily diluted effort that portends regulatory overreach. To avoid this in the future, regulatory approach must shift course from deciding in advance the range of business activities that need regulation to identifying the specific problems that proposed regulations must address, under the first principle discussed above. Inability to do so would only cause apprehension and uncertainty for businesses, and extremely ineffective and diluted protection for citizens.

The second principle is to prioritize a risk-based and responsive regulatory approach. When regulating unfamiliar territory, as is mostly the case with new technologies, proclivities to entirely ban an activity or create restrictive pre-activity licensing models are high. The bureaucratic instinct to play safe and apply a ‘precautionary principle’ comes at the cost of innovation and entrepreneurship.⁵ Moreover, because many new technologies have cross-cutting impact, even these decisions are taken in silos with one agency or regulator taking a more pro-technology view while another acts more restrictively.

The changing stance on data localization in India suffers from failure to adopt such a risk-based approach. At the heart of this debate is whether private entities must be compelled to store the data of Indian citizens in servers located within India. A compelling rationale offered in support of this measure is that law enforcement officials find it difficult to investigate criminal misconduct when data resides in servers located elsewhere. Another rationale offered is the threat to national security because of the possibility that foreign governments can spy on Indian citizens, taking advantage of the fact that their data resides in servers within their jurisdictions. A third rationale argues that localization can help advance a domestic artificial intelligence and data ecosystem, as done by China previously.⁶ But amidst these multiple narratives, there is no clear study from the Government of India or any of the regulators about the extent of harm caused because of servers residing outside India, the less restrictive measures that could equally address any of these concerns.

To address these concerns, the regulation of emerging technologies should be risk-based and responsive. This new approach involves detecting undesirable or non-compliant behaviour, responding to that behaviour by developing tools and strategies, enforcing those tools and strategies on the ground, assessing their success or failure, and modifying approaches accordingly.⁷ By valuing these processes, the overall approach towards regulation changes in an organic manner. Risk assessment involves multi-stakeholder conversations and an engagement with data that goes beyond projected fears and growth narratives. It entails creating a mechanism meant to gather the requisite information, including engagement with technical bodies. Finally, it also brings about some consensus among different regulatory bodies regarding the kind of enquiry involved, if not the answers to such enquiry. A healthy debate on the risks surrounding a new technology is essential for the creation of a proportionate regulatory framework that balances innovation and protection effectively.

The third principle is to value democratic principles and fundamental rights. The rise of the Internet and digital technologies has resulted in a loss of traditional state power and authority, leading to reassertion of control on the part of the bureaucracy. This reassertion now presents itself in the form of various regulatory controls such as demands to keep the privacy baseline low so that the state can easily access private communications, attempts to monitor online speech and to impose criminal and civil liabilities upon those expressing unpopular or undesirable views, and restrictive business requirements on private actors such as data localization. These controls, increasingly justified on the basis that China has relied on similar interventions to successfully build its innovation ecosystem, carry extremely harmful consequences for the future of democracy in India.

While many of governmental interventions do not come from a place of mala fide intent, it is important to be reminded often, as a polity, and especially so for policymakers and regulators, that India is built on a foundation of democratic values and crucial constitutional safeguards. As our experience with Section 66A of the Information Technology Act, 2000 – subsequently struck down by the Supreme Court in Shreya Singhal v. Union of India⁸ – demonstrates, the impetus to regulate online behaviour or technological innovation should not emanate from a deep-seated desire to command and control. Such a desire is likely to result in unconstitutional behaviour and impermissible inroads into the fundamental rights of citizens, including free speech and expression and the freedom to do business. While realities such as the virality of fake news in the age of social media raise serious concerns, responses cannot be built on the assumption that a strong state (like China) can put a stop to these concerns. Moreover, often responses of this kind change the very dynamic of citizen-state engagement in a democracy, leading to possible misuse and a surveillance architecture that evokes fear.

Recommendations

The regulatory interventions coinciding with India’s period of technology-led growth have been a mixed bag. Privacy may have found its ally in the Indian Supreme Court, but the data protection bill has long been in the works without much-needed push from the government to formalize it as a legislation.⁹ Moreover, many of the safeguards against misuse of Aadhaar data, emphasized by the Supreme Court when upholding the validity of the Aadhaar Act, have been watered down through a recent ordinance that bypassed legislative scrutiny.¹⁰ The data localization debates reveal uncoordinated action between different power centres within the government, resulting in both business unpredictability and the fear of censorship through architectural changes to the Internet. Recent proposals in the realms of e-commerce and intermediary liabilities do not indicate well-thought-out measures of regulation that factor in the capacity for enforcement, the impact on fundamental freedoms including speech and business autonomy, or the proportionality of state action.¹¹

Yet, there have been some green shoots as well. The drone policy is one such, coming as it did from a place of outright ban on the technology in 2014 to a state-of-the-art reg-tech solutions like Digital Sky and Regulations 1.0, in 2018, that leave room for further iterations that match the pace of technological advances in this sector.¹² The Telecom Regulatory Authority of India’s position on net neutrality has been largely well received across the range of different stakeholders. On digital payments, the government has displayed considerable sensitivity towards various concerns ranging from innovation in the sector to consumer dispute redressal mechanisms and competition concerns. In all these cases, what comes through is some degree of mindfulness to the central principles outlined here. The government should now build on these early successes to develop appropriate regulatory toolkits.

Any regulatory intervention in the field of technology policy must begin with an insistence on a clear outlining of the harms involved and a mapping of the various alternate policy measures that could be potentially taken to address these harms. This is a good starting point for citizens and other stakeholders to develop awareness of the challenges that the state wishes to address, and the fit between these challenges and the proposed regulatory measures. The European Union has insisted on similar measures as part of its ‘Better Regulation’ principles.¹³ The responsibility cast on the regulator to explain why it is regulating in the manner it proposes can make a significant contribution towards providing certainty, accountability and curbs on arbitrary intervention.

Regulation of new technologies should also enable experimentation with bespoke regulatory approaches and tools, as well as with innovative market solutions, both in a contained low-risk environment. ‘Experimental regulation’ seeks to achieve this objective by providing exceptions to, or exemptions from, existing regulation in a ring-fenced environment.¹⁴ In many countries, experimental regulation has taken the form of sandboxing schemes. The UK Financial Conduct Authority’s Project Innovate is a live example of regulatory sandboxing for financial technologies. Other jurisdictions such as Australia, Singapore, Switzerland, Hong Kong, Thailand, Abu Dhabi and Malaysia have also been experimenting with similar initiatives.¹⁵ India needs to create more comprehensive thinking across multiple regulators about the efficacy and modalities of such regulatory sandboxes.

As many of the new technologies cannot be confined in clear terms to the regulatory jurisdiction of any one regulator, India also needs to develop strategies for better inter-agency coordination. The data localization controversy revealed how different regulatory and recommendatory bodies were at odds with each other on how to address this issue. Because data is a cross-cutting asset across multiple sectors, it is imperative to build better coordination and some uniformity in decision-making on matters of data governance. In the US, the Obama administration had created an Emerging Technologies Interagency Policy Coordination Committee to tackle the problem of siloed decision-making. Israel has established an inter-agency team to coordinate regulation of virtual assets. India must learn from these exercises and build a more coordinated regulatory strategy for data governance as well as other realms of new technology.

Finally, important regulatory interventions should also carry the mandatory requirement of a rights impact assessment. The current relationship between regulators and civil society is mostly one of direct acrimony and distrust, especially when it comes to regulating the Internet and digital technologies. The only way to usher in a structured change is to mandate a clear rights impact assessment, where the regulator must necessarily gauge the implications of the proposed regulatory approach on fundamental and human rights. Many instances of excessive and harsh regulations can be pre-empted at an early stage if this mechanism is built into the regulatory 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
• The Numbers Game: Suggestions for Improving School Education Data by Kiran Bhatty
• Safe and Dignified Sanitation Work: India’s Foremost Sanitation Challenge by Arkaja Singh and Shubhagato Dasgupta
• Safeguarding the Fragile Ecology of the Himalayas by Shyam Saran
• Female Labour Force Participation: Asking Better Questions by Neelanjan Sircar
• Towards ‘Cooperative’ Social Policy Financing in India by Avani Kapur
• Understanding Land Conflict in India and Suggestions for Reform by Namita Wahi

¹ ‘States’ Startup Ranking 2018’ (New Delhi: Department of Industrial Policy & Promotion, 2018), 7-8,  https://www.startupindia.gov.in/content/dam/invest-india/compendium/Star….
² Alvin Chang, ‘The Facebook and Cambridge Analytica Scandal, explained with a simple diagram’, Vox, 2 May 2018, https://www.vox.com/policy-and-politics/2018/3/23/17151916/facebook-camb… Rachna Khaira et al., ‘UIDAI’s Aadhaar software hacked, ID database compromised, experts confirm’, Huffington Post (11 September 2018), https://www.huffingtonpost.in/2018/09/11/uidai-s-aadhaar-software-hacked….
³ Ryan Hagemann, ‘A regulatory framework for emerging technologies’, 1776, 16 March 2016, athttps://www.1776.vc/insights/regulation-emerging-technology-government-d….
⁴ See Ananth Padmanabhan and Arjun Sinha, ‘White Paper on Regulating E-Commerce in India: Need for a Principles-based Approach’ (New Delhi: Centre for Policy Research, 2019), http://www.cprindia.org/research/reports/white-paper-regulating-e-commer….
⁵ Darcy Allen and Chris Berg, ‘Regulation and Technological Change’, in Australia’s Red Tape Crisis, edited by Darcy Allen and Chris Berg, 218, 226-227 (Queensland, AU: Connor Court Publishing, 2018).
⁶ Compare, in this regard, the Reserve Bank of India Directive RBI/2017-18/153 dated 6 April 2018 with the draft National E-Commerce Policy.
⁷ Julia Black and Robert Baldwin, ‘Really Responsive Risk-based Regulation’, Law & Policy 32(2) (2010): 181.
⁸ (2015) 5 SCC 1.
⁹ K.S. Puttaswamy v. Union of India (2017) 10 SCC 1; Surabhi Agarwal, ‘Personal Data Protection Bill only after new government takes over’, Economic Times, 4 January 2019, https://economictimes.indiatimes.com/tech/internet/personal-data-protect….
¹⁰ K.S. Puttaswamy v. Union of India (2019) 1 SCC 1; Zaheer Merchant, ‘Supreme Court refuses to entertain challenge to Aadhaar ordinance, tells petitioners to approach High Court’, Medianama, 8 April 2019, https://www.medianama.com/2019/04/223-supreme-court-refuses-to-entertain….
¹¹ See ‘Draft National E-Commerce Policy: India’s Data for India’s Development’ (New Delhi: Department of Industrial Policy and Promotion, 2019), https://dipp.gov.in/sites/default/files/DraftNational_e-commerce_Policy_… ‘Draft Information Technology [Intermediaries Guidelines (Amendment) Rules], 2018’ (New Delhi: Ministry of Electronics and Information Technology, 2018), https://meity.gov.in/writereaddata/files/Draft_Intermediary_Amendment_24….
¹² ‘Civil Aviation Requirements’, Series X, Part I, Issue I: Requirements for Operation of Civil Remotely Piloted Aircraft System (RPAS), F. No. 05-13/2014-AED Vol. IV (New Delhi: Directorate General of Civil Aviation, 2018), http://dgca.nic.in/cars/d3x-x1.pdf.
¹³ ‘Better Regulation Toolbox’ (European Commission, 2017), http://ec.europa.eu/smart-regulation/guidelines/docs/br_toolbox_en.pdf.
¹⁴ Sofia Ranchordas, ‘Innovation-Friendly Regulation: The Sunset of Regulation, The Sunrise of Innovation’, Jurimetrics 201 (2015): 55.
¹⁵ Regulatory Sandbox: Making India a Global Fintech Hub (Deloitte, 2017), available at https://www2.deloitte.com/content/dam/Deloitte/in/Documents/technology-m….

By Manju Menon and Kanchi Kohli

In India, industrial, energy and infrastructural projects are legally mandated to seek environmental approvals under a range of central and state level laws such as the Environment Protection Act, 1986, Air (Prevention and Control of Pollution) Act, 1981, Water Prevention and Control of Pollution Act, 1981, and the Forest Conservation Act, 1980. Project approvals under these laws include environment and social safeguards or ‘conditions’, such as reducing the pollution load due to project operations, reforestation to make up for forest loss, and prohibition or limits on groundwater extraction. Projects are expected to comply with these safeguards during construction and through the period of operations. In case of mining projects, backfilling and ecological restoration of the land also form part of the safeguards. In effect, the purpose of conditional project approvals is to minimize and mitigate environmental and social harms caused by large projects.

During the first four decades of implementation of India’s post-independence environmental laws, there was little or no emphasis on the status of compliance with conditions by projects. The focus was on the needs of the economy and national development on the one hand, and on the other hand, the social conflicts caused by land displacement. Even though legal clauses related to environmental compliance existed in these laws, projects operated with impunity, causing widespread degradation of the environment.

It is only in the last decade that environmental non-compliance by projects and the inability of existing institutions to enforce laws have come under the scanner. Since 2010, the office of the Comptroller and Auditor General (CAG) has produced environmental audit reports and reported on non-compliance. The courts have observed large-scale legal violations in specific sectors such as mining. Non-governmental studies have also recorded high rates of non-compliance.

Unable to brush the problem under the proverbial carpet, the government engaged in a series of hurriedly thought out mechanisms to deal with it. These include:

• Self-regulation through the use of pollution monitors or devices to capture and relay information on pollution and other performance indicators directly to pollution control board authorities
• Provisions for penalties, fines, bank guarantees and other financial disincentives based on the ‘polluter pays’ principle
• One-time amnesty schemes to violating projects and grant of short-term or temporary approvals to violators in an effort to bring them into compliance

But these measures have neither improved environmental performance of projects nor stemmed the flow of complaints and legal cases by affected people against polluting projects.

Why Should Compliance Be Addressed Urgently?

Robust and well-thought-out environmental compliance mechanisms are hardly seen as a necessity for India’s development. In fact, governments have approached the idea of regulating projects as a liability and a drag on economic growth. They have been slow to implement existing regulations and selective enforcement has earned them the reputation of creating a ‘license raj’. This can be seen in the Supreme Court’s ongoing efforts to enforce the mandatory emission standards on coal power plants. Even though the standards have existed for several years as part of the consent permits issued under Air and Water Acts, the central government systematically dragged its feet on getting projects to comply with the norms.

Today, the impacts of unregulated projects have made it politically unfeasible for governments to ignore their effects on the economy and on people. The recent conflict due to the operations and proposed expansion of the Sterlite Copper Smelter in Tamil Nadu is a case in point.¹ The project was India’s largest copper production plant but also causing toxic emissions, soil and water pollution. Despite numerous complaints and legal cases against the project’s pollution, the company was allowed to continue its operations for 20 years. Last year, when the company sought permissions to expand its operations, there were massive local protests for over 100 days; they finally turned violent when the local police shot down 13 protestors. Sterlite also became a political flashpoint with the opposition party making it an important issue in their 2019 election campaign in the state.

There are numerous cases that are being litigated in court for non-compliance with environmental safeguards. These have resulted in huge financial implications for projects and for related economic sectors as a whole. The Goa mining case led to the total state-wide ban on mining since 2012. The National Green Tribunal imposed penalties of over INR 873 crores as fines for environmental violations in the first quarter of 2019 – an amount that is close to the total fines imposed last year.

Poor compliance causes critical environmental blowbacks in the form of severe water shortages, productivity losses and toxic air. While these conditions have been building up in most parts of the country, climate change dynamics add to these local conditions, making their impacts far more acute and complex. For example, areas already affected by large-scale water extraction for industrial purposes, coal washeries and thermal power plants could also face frequent and more lasting droughts. The visible effects of environmental impacts in eroding the positive gains of development have already caused a shift in mainstream economic thinking that traditionally ignored the economic cost of degraded and damaged habitats. It is accepted that crisis management is hardly possible any more, and that there is a need to plan reforms and strategies for economic and environmental transformation. Environmental compliance systems will form a key part of these reforms.

The case for compliance as a bulwark of environmental regulation has never been more compelling than in the time of climate change. So far, the success or failure of compliance has revolved around the compulsions of domestic politics, but it is now tied to the geopolitics of climate change. After years of wrangling over who should do what to check global warming, nations finally thrashed out the Paris Agreement, which obliges every signatory to put in place, by 2020, a set of measures to meet their respective carbon mitigation targets. However, without a systemic and robust protocol to ensure compliance, India runs the risk of falling short of its targets. Therefore, it is imperative, not to mention politically expedient, for the political party coming to power after the 2019 general elections to set up, in the first place, a credible and effective mechanism of compliance with domestic regulations before it goes about honouring its Paris commitments.

Who Should Regulate Projects and How 

Successive governments have emphasized the quantitative aspects of economic growth. They have focused on increasing the number of projects approved during their tenure and reducing the time needed for impact assessment and granting approvals. These projects have been accompanied by severe impacts as pollution and environmental degradation are viewed as the trade-off for growth. However, with over 16,000 centrally approved large projects operational and several others promised or in the pipeline, the scale of the problem has today expanded exponentially in both industrial and ‘greenfield’ or less industrialized areas. The government can neither ignore nor delay tackling this problem. Compliance with environmental and social safeguards is a necessary if not sufficient condition to improve the quality of our economy’s growth. The question, therefore, before the new government, will no longer be ‘if’ projects need to be regulated but of how to regulate and who will regulate. Given below are three sets of policy reforms with the potential to shift the government’s approach to the problem of environmental compliance of projects and achieve better results.

Compliance-based approvals

Agencies implementing environmental laws view the procedures for grant of approvals as linear systems rather than cyclical ones. This problem is best illustrated by the number of flowcharts put out by them explaining these procedures. Compliance comes downstream in these processes and there is little room for feedback. Project performances on compliance almost never influence government decisions on project expansions, extensions or applications for permission by violating companies to set up projects in new areas. For example, the Kulda opencast mine operated by Mahanadi Coalfields in Sundargarh district of Odisha has violated several conditions of its approvals. Yet, it received approval for expansion and capacity addition twice in two years, for a period of one year each. The validity of environment clearances for mining projects is otherwise 30 years. This decision of the Expert Appraisal Committee (EAC) set up under the Environment Impact Assessment (EIA) notification, 2006, to review such projects was ad hoc, with no precedence and legal basis.

The lack of systemic mechanisms to address non-compliance in recent years has also created huge pressure on the bureaucracy to show legal compliance without affecting the financial status of ongoing operations. For this they have offered one-time amnesty to violating projects under the EIA, Coastal Regulation Zone and biodiversity laws. But these measures only improve the record of compliance on paper and not in reality.  Now with so many projects already operational, it is crucial to place a very high bar on projects being granted approvals. The basis of regulatory procedures should shift from approvals to compliance. Only those projects that have an established record of high compliance or which can surpass the compliance performance of others in the field, and certainly meet the legal standards, should be granted permits and approvals. The permissible standards for pollution are already pending major reforms. But these changes will prove futile if projects are not held to the highest compliance standards.

Third-party monitoring

The present practice of monitoring a project’s compliance in effect involves two parties: the project proponent and the regulatory authority. This system has so far not been able to address the problem of non-compliance and has instead led to concerns of collusion and corruption. A review of this practice has resulted in recommendations that monitoring should be done by an independent third party. The environment ministry proposed an amendment to the EIA notification in September 2018 to include this recommendation. This is yet to be finalized. The ‘third party’ proposed in this amendment is expert government institutions.

In reality, the genuine ‘third party’ in this context is the communities who experience effects of non-compliance such as loss of livelihoods, poor living conditions and displacement. Although they have the greatest stake in remedying the damages caused by non-compliance, they are nowhere in the picture when project monitoring is done. This is contradictory to the participatory turn in environmental governance in several countries since the 1970s and the constitutional mandate for it in India. Data from our research on cases of environmental non-compliance in four states shows that when communities have been involved in collection of evidence, reporting of violations and official monitoring by regulators, environmental compliance can improve significantly. Their participation also helps regulators understand community priorities for remedial actions. Regulatory bodies in these states are beginning to recognize the benefits of community participation and are more open to including communities in procedures such as site visits conducted by them for monitoring. But practices that foster community participation ¬– such as social audits of projects (which provide access to monitoring data and formal spaces for interaction with affected people) – are yet to be systematized in environment regulation.

Integrated regional networks for compliance

India’s environment regulations have largely been implemented with a project-centric approach. Approvals are granted to projects after their impact studies, cost-benefit analysis and environment management plans are assessed by regulatory bodies. These assessments routinely understate the potential impacts of projects, making them seem benign or operations whose impacts can be easily mitigated. Such assessments also generate quicker approvals from regulatory bodies, thus helping to meet the government’s economic growth targets. For long, activists and experts have demanded cumulative impact studies so that the full range of project impacts can be ascertained prior to the grant of approvals. But such comprehensive studies have been done only in a few cases. Cumulative studies are needed not just at project levels but also for regions that are affected by environmental degradation.

Similarly, a project-based monitoring system is resource intensive and not very effective in terms of the overall outcomes. But if regulators could be reorganized as integrated regional networks, they could use the resources available to them more efficiently to improve environmental standards regionally. Multiple regulatory agencies within the concerned region could pool their expertise and human resources towards coordinated responses. Such a mechanism can bring an inter-displinary approach to compliance monitoring. The regions identified for such integration could cut across administrative boundaries such as districts or states. It could be at the level of large industrial sites like Special Economic Zones (SEZs) with multiple projects operating within them, metropolitan regions, entire districts or geographical regions already identified as critically polluted, or entire airsheds or river basins.

Although envisaged by law, such a regional approach to environmental governance has only been used in a few cases. It has been used in emergency responses to environmental pollution, such as the moratorium on industrial activity in Vapi, Gujarat, or the ban on mining in Goa. But a regional approach to systematically  improve post-approval compliance of projects has not been envisaged. This is mainly because compliance with safeguards has rarely been the focus of regulation and institutional reforms to improve environmental compliance have never been on the government agenda. The ministry could develop pilots to understand the optimum scale at which such integrated compliance networks could deliver the most effective results. Given that the scale of the effects of non-compliance is such that they are no longer restricted to project areas, a regional approach is needed to improve the outcomes of regulation.

Conclusion

Environmental compliance is a critical part of environment regulation. While regulatory actions have prioritized economic growth for several decades, the costs of environmental degradation due to industrial and developmental projects are no longer possible to ignore. These issues have become politically and economically salient in recent years. This paper makes three sets of recommendations for how environment regulation can approach the issue of persistent and pervasive non- compliance by projects. These reforms are critical to avoid the costly and harmful disruptions of development.

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
• The Numbers Game: Suggestions for Improving School Education Data by Kiran Bhatty