Reforms designed to address core issues and their sequencing and timing would be critical to ensure the eventual success of the latest initiatives in the power sector. Lessons from the experience of earlier sectoral reform programmes and recommendations regarding the general architecture of central interventions, would need to be taken on board. Through a simple scenario building exercise, this paper concludes that the parlous financial position of the distribution utilities after lockdown requires that “reforms” follow “recovery”. The concurrent roll out of stringent reform measures on several fronts during a period of severe financial stress could seriously impair the prospects of a viable power sector in the near future. This, in turn, will not only hamper our planned promotion of renewables-based electricity but act as a brake on the entire process of economic recovery.
Archives: Working Papers
PROPERTY AND SOVEREIGNTY: Creating, Destroying, and Resurrecting Property Rights in British India (1600-1800)
This paper, the first in a series of three papers, constitutes the first systematic legal attempt since the late nineteenth century to describe the changing configuration of property rights of zamindars (landlords) and ryots or raiyats (peasants) relative to the English East India Company in colonial India over a period of two hundred years from 1600 to 1800. This period begins with the Company’s first arrival in India to the court of the Mughal Emperor Jehangir in 1600 as merely a trading company. It ends with the introduction of the Permanent Settlement in Bengal by Lord Cornwallis, the Governor General of Bengal in 1793, pursuant to the Company’s exercise of sovereign authority over the provinces of Bengal, Bihar, and Orissa. As described in the paper, during this period of great political upheaval, scandal, and intrigue, as the East India Company gradually transitioned from a monopoly trading company to a conquering and then an administering power, Company officials, including the Governor General, and later the Supreme Council of Bengal, created, destroyed, and resurrected property rights of landlords and tenant cultivators. Following a series of experiments with land revenue administration and the lives of zamindars and raiyats, with the sole objective of maximising revenue for the East India Company, Lord Cornwallis introduced the Permanent Settlement of Land Revenue in 1793, which completely destroyed the rights of peasant cultivators in favour of zamindars, and wreaked great injustice and misery upon the people of Bengal. It would take nearly seventy years for British government to begin to reverse this injustice through tenancy protection legislation enacted in 1859, and this reversal in law would only be completed following land reforms introduced by provincial governments post India’s independence in 1947. These later developments will be the subject of the next two papers in this series.
Regulating Algorithms in India: Key Findings and Recommendations
Algorithms have an overpowering influence on our lives in this era of rapid digital transformations. Technology companies are deploying algorithms in many ways, for example, to demonstrate rankings and search results for purposes of data collection, personalise user experience and show dynamic pricing. But these systems are susceptible to creating many kinds of consumer harms that create anti-competitive effects and hurt consumer interests. This paper attempts to understand the nature of India’s digital economy, consolidates scholarly examinations on algorithmic harms, and examines the suitability of India’s competition landscape to regulate its digital economy. The paper also studies India’s competition regulatory design and capacity and evaluates the preparedness of the Competition Commission of India to investigate algorithms. Finally, the paper proposes recommendations for India to develop a comprehensive antitrust strategy to address algorithmic harms and the position best suited to deal with rapid technological advancements in the digital era.
PLAYING CATCH-UP: Looming Trade Questions for India and South Asia
The world is moving ahead rapidly to reshape trading and economic relationships. Major developments that affect India and the rest of South Asia include the Regional Comprehensive Economic Partnership, Vietnam’s free trade agreements with the European Union and the United Kingdom, the US-Mexico-Canada trade agreement, and the escalating US-China trade war. Moreover, global trade could also shift in response to changes in technology and carbon emission commitments, as well as western countries’ efforts to secure robust supply chains in some critical products such as semiconductors and pharmaceuticals. The outbreak of the pandemic and the sustained efforts to tackle it are accelerating some pre-existing trends in trade. How can India respond to these changes, which are eroding its market access and increasing the attractiveness of East Asian countries, including Vietnam, as investment destinations, but also providing fresh opportunities? How can it take advantage of the new openings to enhance economic relations with its South Asian neighbours? This note presents some initial ideas and an agenda for deeper research.
The Evolution of the Right to Property in India before the Drafting of the Constitution
The Fundamental Right to Property enjoys the unique distinction of not only being the second most contentious provision in the drafting of the Indian Constitution, but also the most amended provision, and the only fundamental right to be ultimately abolished. The debate over property rights began early in the Constituent Assembly even while the terms of independence were being worked out and the controversy was more prolonged and acute than that over any subject, except that of official languages. The contentious origins of the right to property in the Constitution had a tremendous impact not only on India’s socio-political and legal history, but also within the commonwealth.
Existing scholarly literature has described the history of the fundamental right to property as a tussle between progressive legislatures, that were trying to bring about much needed land reform in India, and reactionary courts, that impeded such reform efforts by protecting the property rights of rich zamindars. I have argued elsewhere that this narrative is simplistic, and therefore somewhat misleading both as to the real issues at stake in the contentious history of the right to property, but also the learnings we can take from that history for political and constitutional reform in India and other constitutional democracies that are also developing countries.
In this paper, I trace the intellectual currents, and political and social movements, that framed the contours of the contentious debates surrounding the adoption of the fundamental right to property and restrictions on this right, during the late 19th century and the first half of the 20th century. I show that there were two broad discourses underpinning the debates on the right to property. The first was the “rights” discourse, with its sub-discourses on “civil and political rights” and “social and economic rights”. The second was the “development” discourse with its concomitant focus on “land reform” and “industrialisation and capital formation”. Both were enabling discourses, but grounded in different premises. While the Development discourse was a utilitarian discourse premised on the philosophy of the “greatest good of the greatest number”, the Rights discourse was a dignitarian discourse, premised on the dignity of individuals and their right to realise their full potential as human beings and equal citizens of newly independent India. The contention over the inclusion of the right to property in the Constitution was a contention between the Rights discourse that sought to empower the disempowered and respect individual rights, and the Development discourse which sought to give the state, as representatives of the people, power to take measures to bring about development according to a utilitarian calculus that fundamentally contradicted rights of individual citizens, including, but not limited to, the right to property.
The Constituent Assembly Debates on Property: Unravelling the Property Paradox
The Fundamental Right to Property enjoys the unique distinction of not only being the second most contentious provision in the drafting of the Indian Constitution, but also the most amended provision, and the only fundamental right to be ultimately abolished. The debate over property rights began early in the Constituent Assembly even while the terms of independence were being worked out and the controversy was more prolonged and acute than that over any subject, except that of official languages. In this paper, I outline key debates on the inclusion, content, and judicial enforcement of the right to property within the Assembly. My aim is to present a snapshot of the deliberative process that transmuted abstract policy goals of the founders into guaranteed fundamental rights of Indians, especially pertaining to the right to property. I show that there were two broad discourses underpinning the debates on the right to property. The first was the “rights” discourse, with its sub-discourses on “civil and political rights” and “social and economic rights”. The second was the “development” discourse with its concomitant focus on “land reform” and “industrialisation and capital formation”. Both were enabling discourses, but grounded in different premises. While the “development” discourse was a utilitarian discourse premised on the philosophy of the “greatest good of the greatest number”, the “rights” discourse was a dignitarian discourse, premised on the dignity of individuals and their right to realise their full potential as human beings and equal citizens of newly independent India. The contention over the inclusion of the right to property in the Constitution was a contention between the “rights” discourse that sought to empower the disempowered and respect individual rights, and the “development” discourse which sought to give the state, as representatives of the people, power to take measures to bring about development according to a utilitarian calculus that fundamentally contradicted rights of individual citizens, including, but not limited to, the right to property.
Existing scholarly literature has described the history of the fundamental right to property as a tussle between progressive legislatures, that were trying to bring about much needed land reform in India, and reactionary courts, that impeded such reform efforts by protecting the property rights of rich zamindars. I have argued elsewhere that this narrative is simplistic, and therefore somewhat misleading both as to the real issues at stake in the contentious history of the right to property, but also the learnings we can take from that history for political and constitutional reform in India and other constitutional democracies that are also developing countries. Through this paper, I hope to reveal that the final unwieldy draft of the provisions relating to constitutional property adopted by the Constituent Assembly reflected an uneasy compromise between competing interests represented within the Assembly. But this compromise failed to please any of the constituencies entirely and resolved nothing. At best, it postponed the resolution of these issues to a future time and foreshadowed the conflicts that emerged in the courts. It is clear that the Constituent Assembly expected resistance from traditional elites on the abolition of the zamindari system, but it seems to have either wilfully ignored or underestimated the extent of resistance it would face on the issue to reach a resolution that would enable the Assembly to have a fundamental rights chapter, or perhaps to even have a Constitution in the first place.