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Friday, February 23, 2024

Announcements

Upcoming Conference: Electricity Reforms in the Economic Strategy of Tamil Nadu

XKDR Forum and TrustBridge Rule of Law Foundation, are hosting a conference on 'Electricity Reforms in the Economic Strategy of Tamil Nadu', on 29 February 2024, in Chennai.

Tamil Nadu is one of the most important states in India from the perspective of energy transition. It was one of the first states in India to have achieved almost universal electrification and was also at the forefront of the transition to renewables - both wind and solar - in the country. The session hosts a discussion on a roadmap for reforms in the electricity sector, bringing together the team's year-long research towards identifying problems and strategies for the state's energy transition and economic growth.

Program Design:

11:00 - 11:45: Electricity Reforms in the Economic Strategy of Tamil Nadu

Presenter: Ajay Shah, XKDR Forum


11:45 - 13:00: Open Discussion

Moderator: Akshay Jaitly, Trilegal and TrustBridge Rule of Law Foundation


13:00 onwards: Lunch


Date: 29 February 2024 (Thursday)
Time: 11:00 am - 1:00 pm
Location: Taj Coromandel, Chennai.


The event is in-person and you can register here!

Monday, January 15, 2024

Solarisation in agriculture in Tamil Nadu

by Susan Das, Renuka Sane, Ajay Shah.

Highly subsidised electricity for farmers is an important problem faced in the working of the electricity sector. With falling prices of solar panels, there is the possibility of government subsidising solar panels established by farmers.

This could potentially induce welfare gains in several directions.

  1. The fiscal burden imposed by the subsidy could decline.
  2. The pricing distortion in electricity (where commercial / industrial / domestic buyers are overcharged) could decline.
  3. Farmers could earn a revenue selling their surplus electricity to the grid.
  4. Farmers could become more thoughtful in their extraction of ground water when they face an opportunity cost, in the sense that the electricity that is not used to pump water is a revenue generator for them. This would yield welfare gains by diminishing the `tragedy of the commons' in ground water.

These possibilities turn on careful calculations. Whether some or all of these gains are obtained depends on insolation, the magnitude of water required, the energy cost of extracting the water, the cost of solar panels and the price paid by the grid. There will not be one answer within a state, and therefore there will not be one optimal policy within a state. (Similarly, the economic possibilities from such pathways will vary greatly across the breadth of the country).

In a recent paper, Solarisation in agriculture in Tamil Nadu: A first principles evaluation, we try to engage in this careful calculation for one district (Erode) in Tamil Nadu. We analyse a corner solution: one where the government pays for the full cost of the solar panel. 

The results turn on the price at which the surplus energy, that comes from the farmer to the discom, is sold. If the discom is able to sell this energy at the (high) prices that are charged to the commercial and industrial ("C&I") customers, then the corner solution is financially efficient for the grid. At lower prices, the proposition is less attractive.

 One important parameter that influences the results -- the price of solar panels -- is likely to decline in the future. Hence, we simulate the scenario with lower costs. We find this expands the class of situations where solarisation in agriculture is useful.

This paper is about one district (Erode) in Tamil Nadu. The methods adopted are general and could be applied to other locations in India. The answers are likely to vary considerably depending on the precise setting. There is value in discovering how this varies across India.

This is a field with many intricacies in implementation. These include the mechanism of selling surplus electricity, the choice of the tariff paid to the farmer, the problems of (the lack of) metering of electricity connections to farmers, the trustworthiness of the government on timely payments to farmers, the financing mechanism for the capital cost the puzzles of operations and maintenance at the level of one farmer, and the path to a sound monitoring and evaluation of such programs. These are much studied areas where considerable research has taken place. These discussions will improve through using the carefully constructed numerical estimates, on a per-district basis, all across the country.

Saturday, January 13, 2024

Survey-based measurement of Indian courts

by Pavithra Manivannan, Susan Thomas, and Bhargavi Zaveri-Shah.

Public institutions do not face a market test. Achieving state capacity is about establishing checks and balances. The traditional idea is to instrument the operations, and construct an operational MIS, which is released into the public domain. Through this, deficiencies of the working of the organisation are visible to researchers and the public. The other pathway is to ask the persons who interact with the state institution about what they feel, to elicit their perceptions. This is an important pathway to obtain evidence and thus create feedback loops. For instance, citizen surveys are commonly used to assess the quality and impact of public services such as health and education (UNDP 2021, Clifton et al, 2020, OECD-ADB 2019).

In the legal system, perception surveys of court users can generate useful knowledge about how well courts function in their delivery of justice (National Center for State Courts, 2005). Ongoing surveys of user experience of courts can help measure the performance of a component of the entire legal system, and in assessing the impact of interventions made for reforming the legal system.

Surveys of court users and the public on their perception of the judiciary have been prevalent in developed countries from the 1990s, and are gaining currency in India (eg., Dougherty et al, 2006; Rottman and Tyler, 2014; Staats et al, 2005; Daksh 2016). Such surveys seek to capture the perceptions of court users on qualitative metrics (Manivannan et al, 2022). Such metrics can be used to evaluate the functioning of a single court, or compare alternative courts.

On one hand, perceptions are not reality. On the other hand, the views of end-users of the justice system are particularly important because, ultimately, the justice system exists to serve end-users whose interests and preferences may differ from those of judges and lawyers. We can readily discern certain difficulties in survey-based measurement of perceptions:

  1. There are many different users of a court, who differ in their extent of knowledge. Litigants who see a court case as a disruption of their daily lives, may see things differently when compared with lawyers, for whom courts are part of their professional lives.
  2. A person who loses a case is likely to be unhappy with his experience of the court and vice versa.
  3. Different individuals might be working on non-comparable cases, and their subjective experience of the court is then not comparable.
  4. It is not clear what is an objective benchmark of sound performance. A perfect court may be prohibitively expensive. Users of courts may have normalised a variety of difficulties; their `satisfaction' may only flow from learned helplessness.
  5. It is important to narrowly measure a court or a group of courts, and make claims about the narrow unit of observation, as opposed to bigger claims about the Indian legal system.

In 2023, we conducted two pilot surveys to evaluate their utility as feedback loops for courts.

One survey was administered to understand the functioning of five alternative forums that can be approached to adjudicate matters of debt disputes: the Bombay benches of the National Company Law Tribunal (NCLT), the Debt Recovery Tribunal (DRT), the Bombay High Court (Bom HC), the Metropolitan Magistrate (MM) courts (which adjudicates criminal proceedings for cheque bouncing cases), and the Alternative Dispute Resolution (ADR) process.

To help improve data quality, the survey was conducted on practitioners who had multiple instances of interacting with the five courts. By selecting practitioners that have had repeated instances of approaching these forums to resolve disputes, the survey results are less vulnerable to the 'loser' effect. To obtain comparability, we presented a hypothetical, canonical problem of debt dispute resolution to each survey respondent. We then asked them to rank the five forums on five dimensions of court performance, namely, efficiency, effectiveness, predictability, independence, cost and convenience, and calculated the average rank for each forum on each of these dimensions.

The second survey was conducted with litigants at the DRT, with the objective of understanding the functioning of this court. For this, we deployed a team of four, who visited the premises of the Bombay bench of the DRT. The team administered a survey questionnaire on individuals, in order to evaluate the performance of the DRT on the above mentioned five dimensions. The participants were asked to rate their experience at the DRT on a five-point scale.

Method

Survey design
We used a combination of qualitative (in-depth expert interviews and open-ended comments) and quantitative surveys (multiple choice and scaled questions). Qualitative surveys with experts provide more contextual insights, enable comprehensive analysis. They helped validate our founding conjecture, the idea that there was a class of disputes which could go to multiple different forums. However, these surveys were time-intensive and it was difficult to obtain the interest and involvement of experts.
Survey mode
We administered the survey in both online and offline formats. Surveying litigants on court premises was challenging in two ways. First, litigants do not always accompany their lawyers to courts, especially in disputes of larger sizes involving firms. Second, one forum may deal with multiple type of disputes (civil v. criminal; mergers v. insolvency). This poses difficulty in identifying a litigant with a desired case-type.

The questionnaire used for the surveys and the responses collected can be found here.

Results: The perceptions of practitioners

The practitioner survey involved eliciting their choice of forum for the following hypothetical, canonical problem:

Q is a large public listed company. It has availed of a working capital loan of Rs. 7 crores from N, a small sized NBFC, repayable within three years with simple interest @16% p.a. Q and N are 100% domestically owned. As collateral for the loan, Q has granted N a floating charge over some of its movable assets, for example, its machinery or its inventory. One year into the loan, Q defaults on its loan to N. The outstanding amount exceeds Rs.1 crore. Post-dated cheques issued by Q towards interest payment bounce due to insufficient funds. The collateral is not sufficient to cover the outstanding amount. You are advising N.

The survey respondents were asked to make two assumptions, namely, that the limitation period is the same across all the courts; and that all courts have jurisdiction.

We collected responses from 18 respondents, of which 16 were lawyers and two were key managerial personnel at an asset reconstruction company and a debt restructuring advisory firm. Six of our respondents had between 20 to 30 years of experience in this area, eight of them had experience of less than 20 years, and two of them had more than 30 years experience in this field. They had significant experience with many of the venues of interest: 14 had experience with the NCLT and the Bom HC, 11 with the DRT and ADR process, and 5 with the MM Courts.

We aggregated the ranks assigned by the respondents to each of these forums on the parameters of independence, efficiency, effectiveness, predictability and access, and averaged them to arrive at an overall rank for each forum. The specific statements on which the respondents ranked the forums and their ranks are presented in Table 1. The forums are arranged in increasing order of the average rankings on each parameter. The NCLT was ranked the highest on the parameter of Efficiency, followed by ADR, the Bom HC, the DRT and the Metropolitan Magistrate. On the other hand, the Bom HC was ranked as the most preferred forum of choice on the parameter of independence.

Table 1: Preference ordering of five debt enforcement forums
Metric Survey Statement Ranking
1 2 3 4 5
Efficiency Most likely to dispose of my matter in a timely manner NCLT ADR Bom HC  DRT MM Courts 
Effectiveness Easiest to recover the amount awarded in the judgement decree.   NCLT Bom HC  DRT, ADR  MM Courts
Predictability  (i) Expected sequence of stages in my matter was clear. NCLT ADR Bom HC  DRT MM Courts 
(ii) Hearings are most likely to be held as scheduled. ADR NCLT Bom HC  MM Courts  DRT
Independence   Decisions are most likely made based on the merits of the case. Bom HC  ADR NCLT MM Courts  DRT
Access (i) Can afford to take my case to this forum. MM Courts  DRT NCLT Bom HC  ADR
(ii) Ease of navigation; staff helpfulness; website; ease of filing process ADR Bom HC  NCLT DRT MM Courts 

Table 1 contains new insights on a specific court on each attribute. For example, while the Bom HC and the ADR process are perceived to be most unbiased, they are perceived as more expensive to access. ADR is perceived to be most predictable, but less effective on actually getting the relief. The NCLT, on the other hand, is perceived to be more efficient and effective, when compared to the other forums, but less likely to also be unbiased. The DRT and the Metropolitan Magistrate courts are perceived unfavourably on all aspects, except affordability.

Results: The perceptions of litigants

The in-person survey conducted at the DRT observed 55 persons, who were presently a party to a dispute at the DRT. Among these, 24 were debtors, 19 were creditors, and 12 belonged to the residual category, such as court/privately appointed receivers and auction awardees. Of these, 30.6% were at early stages (admission), 28.6% were at advanced stages (such as post-admission or pending last hearing), and 22.4% were awaiting a final hearing or pronouncement of judgement.

Litigants at the DRT had more positive perceptions than practitioners. Litigants ranked the DRT the highest on predictability of the hearing: most litigants agreed that when a hearing for their case is scheduled at the DRT, it will be held on the scheduled date. About 67-69% of litigants perceived the DRT to be an affordable and unbiased forum to resolve their dispute. More creditors ranked it higher (85-89%) on these two metrics than debtors (58-62%). However, 52% of litigants did not think that the DRT resolves cases in a timely manner.

Discussion

Good performance by the judicial branch in a country is essential. As with all aspects of public policy, this requires the loop of evidence, identification of difficulties, creative policy proposals, policy reforms, and measurement of the gains. In the legal system, generally, evidence and measurement involves quantitative measures. In this article, we have shown a case study where survey-based evidence was useful. This constitutes a useful additional pathway to measurement of the legal system.

Litigants are the ultimate end-users of courts, so their views matter greatly, but their information set may be limited. Legal practitioners have better information through repeated interactions and potentially observation of multiple venues, but their views may not capture the views of the litigants themselves. In the future, it would be useful to go further, by way of surveying the general public, measuring the view of persons who have not experienced litigation at a given location.

References

Shaun Bowler, Joseph L. Staats, and Jonathan T. Hiskey (2005). Measuring Judicial Performance in Latin America, Latin American Politics and Society.

Judith Cliftona, Marcos Fernandez-Gutierrez and Michael Howlett (2020). Assessing public services from the citizen perspective: What can we learn from surveys?, Journal of Economic Policy Reform.

Daksh (2016). Access to Justice Survey, A DAKSH report.

David B. Rottman and Tom R. Tyler (2014). Thinking about judges and judicial performance: Perspective of the Public and Court users, Onati Socio-legal Series.

Devendra Damle and Tushar Anand (2020). Problems with the e-Courts data, NIPFP Working Paper Series 314.

George W. Dougherty, Stephanie A. Lindquist and Mark D. Bradbury (2006). Evaluating Performance in State Judicial Institutions: Trust and Confidence in the Georgia Judiciary, State and Local Government Review.

Institute of Social Studies and Analysis (2021). Satisfaction with Public Services in Georgia, United Nations Development Programme.

National Center for State Courts (2005). CourTools: Trial Court Performance Measures.

Pavithra Manivannan, Susan Thomas and Bhargavi Zaveri-Shah (2022). Evaluating contract enforcement by courts in India: a litigant's lens, XKDR Working Paper No. 16.

Pavithra Manivannan, Susan Thomas and Bhargavi Zaveri-Shah (2023). Helping litigants make informed choices in resolving debt disputes, The Leap Blog.

OECD-ADB (2019). Government at a Glance Southeast Asia, Serving Citizens: Citizen satisfaction with public services and institutions, OECD Publishing, Paris.


Pavithra Manivannan and Susan Thomas are researchers at XKDR Forum, Mumbai. Bhargavi Zaveri-Shah is a doctoral candidate at the National University of Singapore. We thank Surya Prakash B.S., Renuka Sane, and Anjali Sharma for their suggestions on the design of the surveys. We acknowledge the very diligent assistance by Nell Crasto and Balveer Godara, students at Kirit P. Mehta School of Law, NMIMS Mumbai, on conducting the litigant survey. We are grateful to all the survey respondents for their generous participation, and thank Mahesh Krishnamurthy, K.P. Krishnan, Sachin Malhan, Harish Narsappa, Rashika Narain, Geetika Palta, Siddarth Raman, Ajay Shah, and Arun Thiruvengadam for their comments and suggestions on this work.

Offshore wind in Tamil Nadu: from potential to reality

by Akshay Jaitly, Charmi Mehta, Renuka Sane and Ajay Shah.

Foundations

The world of renewables is comprised primarily of solar and wind. Of these, solar electricity suffers from the limitation of dwindling away in the evening, at precisely the time at which electricity demand rises. This makes wind particularly important. There is a good deal of onshore wind generation in India. What is different and potentially superior about offshore wind?

  1. Wind speeds tend to be higher offshore than on land. A wind turbine operating at a wind speed of 24 kph can generate twice as much energy as a turbine operating at a wind speed of 19 kph (American Geosciences Institute, 2023).
  2. The wind offshore tends to be more consistent, with higher power capture for a greater number of hours per day.
  3. Onshore wind requires land resources. Offshore wind is built in the open sea where land rights are cheaper, and it is easier to go to bigger blades.
  4. Offshore wind does not impose noise pollution upon the human population.

These benefits, of course, come with a problem, that construction of windmills in the high seas is more difficult when compared with building on land. Windmills are best placed at locations with high wind. Figure 1 shows that Tamil Nadu is a hot spot for offshore wind in India. It is interesting to notice that Sri Lanka is also a hotspot for offshore wind (Figure 2).

Figure 1: Wind speeds off the Indian coast

Source: India Wind Potential Atlas (NIWE, 2019).

Figure 2: Wind speeds off Sri Lanka.

Source: Technical Assessment by World Bank, IFC and ESMAP (2020).

There is an analogy between offshore wind in Sri Lanka, and hydel resources in Nepal and Bhutan. Given the correct arrangement of foreign policy (Subramanian, 2023), the Indian private sector can possibly play a leadership role in building electricity generation in Sri Lanka, as has been the case with Bhutan.

Putting these facts together, there is an important natural resource in Tamil Nadu, and its vicinity, through which vast renewable electricity generation can become possible, given the correct configuration of policies and state institutions that create conditions of investibility. We can dare to hope that very large offshore wind generation can take place off the coast of Tamil Nadu, which would attract energy-intensive firms to operate in the region, and enabling sale of electricity into locations far from Tamil Nadu.

Public economics for offshore wind

We can imagine an uncoordinated rush by the private sector to venture out into the seas and put up wind turbines. They would jostle with each other to build on the best sites. Each wind turbine would have to face the problem of transmitting energy to the mainland. There are three areas where policy makers can be useful:

  1. Ownership of the sea-bed and property rights: In a world without clarity on property rights, the private sector would experience conflicts when building wind turbines. There is a negative externality as multiple construction projects which are physically near each other impose a certain amount of chaos upon each other, and the presence of a windmill diminishes the energy production of nearby windmills.The sea-bed should be treated as a scarce natural resource, akin to the electromagnetic spectrum. There is a role for the state in establishing property rights, and auctioning off ownership of the sea-bed to private persons. The coercive power of the state would be used to create property rights for private persons, following which private persons would trade in blocks of sea-bed (akin to transactions in privately owned land or on the electromagnetic spectrum), and the government would enforce against encroachment. The negative externality problem during construction can be addressed by modified property rights which decongest each construction site for the construction period, by expanding the notion of property rights associated with each geographical location, to exclude other persons for the period of construction.
  2. Economics of transmission: Each wind turbine would have to face the problem of transmitting energy to the mainland. Every generation company would benefit from more convenient access to high capacity transmission lines. There is a natural monopoly problem in the transmission infrastructure - it is likely that a single transmission company will emerge within each geographical area. There is merit in using state power to coerce this firm on open-access rules (so it cannot deny transportation to any private person) and on price regulation.
  3. Data as a public good: The government can add value by spending taxpayer money to construct a dataset on wind speed and releasing this into the public domain. This activity involves no use of coercive power, other than the coercion that undergirds taxation. The government would merely release data on a website as a public good, and in no way preclude private persons from expending resources to create data on their own. For the government released data to be credible, it would have to be collected by trusted agencies, experienced in offshore wind data collection; the role for the government should be one of only contracting-out the construction of the data.

While electricity in India is largely a state subject, the sea-bed falls under the union government jurisdiction through Article 297 of the Indian Constitution through which the Parliament has enacted the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976. Thus we can envision a two-part policy story for offshore wind, where the union government auctions off blocks of sea-bed, and the state government deals with everything connected with electricity. Once the energy reaches landing stations at the shore, it is just ordinary electricity and fits into the mainstream electricity market exactly as with onshore wind turbines.

How the Indian journey has unfolded

The union government has decided that offshore wind production will commence in Gujarat and Tamil Nadu. A union government agency named the National Institute of Wind Energy (NIWE) plays an important role in this field including that of being the designated counterparty for contracts. It plays a expansive role, akin to an offshore wind central planner. Transmission will be run by a union government PSU, the Power Grid Corporation of India Limited (PGCIL). No role is envisaged for state governments.

In 2018, NIWE published its first tender for an offshore wind block auction off the Gujarat coast. However, it did not receive bids and consequently had to be called off after multiple extensions (Deshpande, 2021). Since 2022, the Union Government has released (i) a national Strategy Paper for the Establishment of Offshore Wind Energy Projects and (ii) a draft tender for Sea bed leasing for offshore wind energy projects which pertains to locations off the coast of Tamil Nadu. These releases help improve policy predictability.

The proposed contracting model

Project costs in offshore wind are high, particularly in contrast to developing renewable energy plants onshore. Costs also vary as per the depth of waters and distance from shore. Operating offshore wind turbines involves higher maintenance requirements (Koch, 2012). First movers face higher costs on account of uncertainty and the inevitable mistakes.

NIWE has proposed three alternative contracting models in its strategy paper. Model A is for projects where surveys and assessments have been completed, and the site is ready for development. Model B is model A without viability gap funding ("VGF?). Model C is a fully bundled model with end-to-end responsibility placed upon the project developer, including site identification. The tender released (for the sea bed off the coast of Tamil Nadu) follows model A (NIWE, 2023). Table 1 summarises this proposed contract design.

Table 1: Risk-responsibility allocation across proposed offshore wind contracting models
Factors Risks/responsibility Model A
Government support Bridging financing gaps VGF (Union; unallocated)
Transmission charges Waived
Strategic and commercial risks Identifying sites for offshore wind farms Gov (Union)
Site assessment surveys Gov (Union)
Local factors Transmission infrastructure Gov (PGCIL)
Evacuation of power Gov (PGCIL)
Licenses Private
Power offtake guarantees None

Site characteristics have a substantial impact upon the prospective return on equity. The MNRE/NIWE supplies its assessment of each site. A careful examination of the data released by MNRE/NIWE is required. Potential developers may invest significant time and resources in constructing private sector data if there are limitations in the government-released data.

The selected bidder must set up the turbines offshore and connect each turbine to the offshore agglomeration facility (which will be constructed and managed by PGCIL). While the model mentions accessing VGF from the union government, the mechanism is not adequately spelled out. Is this policy strategy conducive to investibility?

i. Site selection and exclusivity:

Site selection is best done by potential wind farm developers. Developers face the consequences of, and are best placed to take decisions on sites when faced with a certain amount of data. They will commission the creation of additional data optimally. Under Model A, sites have been selected by NIWE. We expect that serious developers will construct their own datasets and may chafe at the locations pinned down by NIWE.

The next issue is that of exclusivity. Developers like to have a certain exclusive period, where no other construction takes place, in order to reduce the complexities of coordination across multiple construction projects. The exclusivity period for the sea-bed is set to five years, with a maximum extension of one year. The average time taken to set up a mid-size offshore wind farm, globally, is four years. In India, this is likely to attain a higher value (MOSPI, 2023).

Auctioning the exclusivity period itself can be a way to decide what a 'sufficient' period should be. In countries where confidence in offshore projects has been high, auctions are witnessing site tenures being awarded based on an auction in which the highest bidder wins the site (Exeter, 2022). For example, the Round 4 auction for sites (held in 2021) in England and Wales saw the highest bidder paying Euro 1bn upwards in option fees, payable annually (for ten years) for exclusive sea-bed rights on an 8 GW of offshore wind.

ii. The problem of transmission:

In offshore wind contracts in Northern Europe, the evacuation infrastructure for the electricity is generally created by the developer (and in some cases such as in the UK, later carved out and sold to a third party) or contracted out (separate from the offshore windfarm contract) to a private transmission service provider. Under Model A, this function has been assigned fully to the state-owned transmission company - PGCIL. PGCIL has no prior experience in developing transmission for offshore wind and it carries the burden of being a public sector organisation.

Whether managed by PGCIL or some other firm, regulation is required so that future developers are provided access to non-discriminatory evacuation infrastructure and services, perhaps using common carrier principles. While one block / site is up for auction today, numerous offshore plants will come up in the future in close vicinity. There may be shortages or exorbitant pricing of transmission, particularly in the absence of non-discriminatory access.

In addition to the risks from power evacuation, risks from unscheduled downtimes can induce losses, and contract terms will determine who bears this risk. For example, in Germany, the costs of curtailments/incapacities were transferred to the consumer. In contrast, costs remained with the project owner in China despite their lack of control over the risk (Gatzert, 2016). The government's decision to manage the complete evacuation responsibility may prove problematic in the event that higher transmission losses or shutouts imposes important risks upon the developer. If the preference is for power evacuation to be managed by PGCIL, contractual provisions on liquidated damages must adequately cover for downtimes that are not caused by the fault of the developer and other transmission losses.

iii. Regulatory burdens

Unlike transmission and distribution, power generation has no market failure problem. It is hence important to envisage a contract design that harnesses private sector expertise, without added layers of government involvement. At present, establishing an offshore wind farm will require a set of seventeen different clearances and licences from a host of ministries, including the prerequisite of block approval from the Ministry of Defence. Seven of the seventeen clearances are necessary even before one can make a bid, and the rest are post-award. The sector also includes a specific licensing regime that extends to how new offshore assets connect and interact with the grid. This requirement for multiple permissions detract from the vision of property rights in the hands of a private person.

Further, approvals and no-objection certificates may be required from State Governments for transmission and evacuation infrastructure-related provisioning and any other clearances as may be legally required to establish and operate offshore power plants - as in the case of oil and gas pipelines (NIWE, 2022a, NIWE, 2022b).

It might be useful to consider if some project-related (as opposed to bidder related) approvals can be obtained ahead of time and made part of the bid package. This will reduce risk for bidders and may lead to more attractive bids.

Lastly, as with any nascent industry, policy and regulatory frameworks are likely to evolve and change over time - and existing concessionaires should be contractually protected from this through adequate 'change in law' and 'change of scope' provisions.

Under the present policy strategy, offshore wind generation requires the firm to have a high level of government engagement, and exposure to policy risk. This problem may encourage foreign firms to find local partners and enhance the required rate of return, i.e. hamper investibility.

iv. The role of the union government:

The present policy strategy suggests a offshore wind industry that is run out of the union government. This vision will sit uneasily with the primary role of the state government in electricity regulation and the electricity business once the energy hits the shore. Since vessel availability and transport infrastructure are critical to offshore wind farm development and often contribute to delays, cost overruns ((Koch, 2012), and litigation, the State's port infrastructure can be adapted to facilitate project management. Proximity of the Thoothukudi port to the proposed site is an advantage, and logistics facilities such as (i) storage areas for component assembly and manufacturing, and (ii) berth infrastructure can be developed to support upcoming offshore wind plants (Auroville Consulting, 2022). Such thinking is downplayed in a union-dominated policy process.

Assessing the outlook

Our analysis suggests that there is a considerable gap between the natural resource potential for offshore wind in South Asia and its tangible translation into RE capacity. The sea-bed lease tender was released in September 2023 with a deadline of 28 November 2023. In our knowledge, no bids have emerged.

Electricity is a concurrent list subject under the Indian Constitution, with both the union government and the state government having the right to make law over aspects of the sector. Sea-bed jurisdiction appears to clearly lie with the union. It would make sense to rely on the state government to a greater extent.

There are significant manufacturing and transportation challenges associated with the bulky parts of offshore wind facilities. Both Tamil Nadu and Gujarat are strong in manufacturing, and are natural sites where a private industry could develop that will undertake this manufacturing, and play a role in offshore wind sites hundreds of kilometres away.

The arguments presented earlier in this article show that thinking from first principles, the role of the state in this field is (a) Establishing property rights with auctions of chunks of sea-bed, including a special kind of exclusivity during construction; (b) Ensuring open access and price regulation for the natural monopoly of transmission; (c) Possibly adding value by constructing and releasing a robust dataset with wind speed. There is merit in evolving the policy strategy towards these three pillars.

References

American Geosciences Institute. 2023. What are the advantages and disadvantages of offshore wind farms?, National Academy of Sciences.

Deshpande, T. 2021. Why India's Offshore Wind Energy Potential Remains Untapped, IndiaSpend. 26 November 2021.

NIWE. 2023. Strategy for Establishment of Offshore Wind Energy Projects, Ministry of New and Renewable Energy, Government of India. September 2023.

Koch, C. 2012. Contested overruns and performance of offshore wind power plants, Construction Management and Economics, 30:8, 609-622.

Infrastructure and Project Management Division, Ministry of Statistics and Programme Implementation. 2023. Quarterly Report on Mega Projects.

Laido et al. 2022. Impacts of Competitive Seabed Allocation for Offshore Wind Energy, University of Exeter. April 2022.

Gatzert et al. 2016. Risks and risk management of renewable energy projects: The case of onshore and offshore wind parks, Renewable and Sustainable Energy Reviews, Volume 60. July 2016.

Auroville Consulting. 2022. Unlocking Offshore Wind in Tamil Nadu. Sustainable Energy Transformation Series.

Subramanian, A. 2023. Answers in the offshore wind.The Indian Express. 23 March 2023.


Akshay Jaitly and Renuka Sane are Co-founder and Research Director, respectively, at TrustBridge Rule of Law Foundation; Charmi Mehta and Ajay Shah are Research Associate and Co-founder, respectively, at XKDR Forum.

Wednesday, January 10, 2024

Evaluating capital market responses to cybersecurity incidents in Indian listed companies

by Sayan Dasgupta, Renuka Sane and Karthik Suresh.

In a previous report on the Information Technology Act, 2000 we described the infirmities in the laws and institutions that govern cybersecurity threat detection and response in India. However, two questions persist. Firstly, what is the true scale of the cybersecurity problem among Indian firms? Secondly, what are the financial and reputational consequences of a cybersecurity breach at an Indian firm?

It is difficult to find answers to the first question in the public domain. But when it comes to the second question, we can gain some insights by looking at how investors respond to the news of cybersecurity incidents whenever such details are made public. In the United States, the results of these studies range from a slightly negative effect on stock prices following the announcement of an incident (e.g. Cavusoglu et al, 2004 estimated an average 2.1% loss in the first two days after disclosure) to no significant effects (e.g. Kannan et al, 2007). Amir et al (2018) however observed that there is a significant difference between the fall in stock prices for firms that disclosed the cybersecurity incident (0.7% decline in one month) vs. firms that withheld this information (3.6% decline in one month).

It is important and interesting to understand the current state of play. How many Indian listed companies made public disclosures of cybersecurity incidents? How did investors in these companies respond to this news given the limited information they had? We attempt to provide some insights into this question by conducting an event study of stock price movements that follow cybersecurity incidents in Indian listed companies. We found that there was a significant negative effect on stock prices given the prior system of disclosures.

Why is it important to make disclosures of cybersecurity incidents?

A cybersecurity incident can be a costly negative externality. In 2022, IBM surveyed 49 Indian companies and estimated the loss they suffered from a single data breach to be USD 2.32 million (INR 184.5 million). A firm suffers direct costs (e.g. costs of data recovery) as well as indirect costs (e.g. loss of trust and goodwill) due to a cybersecurity incident. These costs, along with the reluctance to divulge details about its vulnerabilities to competitors, mean that firms are not incentivized to share information on their cybersecurity incidents.

There are two reasons why firms should make disclosures about cybersecurity incidents. Firstly, consumers have a reasonable expectation of privacy. In India, the Supreme Court in the Puttaswamy decision traced this expectation of privacy to one's right to life and personal liberty. On these grounds, data privacy legislations, such as Article 34 of the EU General Data Protection Regulation and Section 8 of the Digital Personal Data Protection Act, 2023 require firms to disclose details of data breaches to their users. Secondly, securities laws are concerned with whether cybersecurity risks are "material information" that should be disclosed to investors. The concept originated in the United States --- the US Supreme Court in TSC Industries v. Northway held that a given piece of information is "material" if there is "a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote".

Specifically on materiality, the US Securities and Exchanges Commission (SEC) issued non-binding guidance in 2011 and 2018 which provided the format in which a listed entity or market participant should report on cybersecurity risks. However, in March 2023, the SEC proposed a framework for compulsory disclosures of cybersecurity risk and preparedness. In India, SEBI's general disclosure requirements on materiality are found in Regulation 30 read with Schedule III of the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 ("LODR Regulations"). Sub-part B, no. 6 requires the listed entity to report "disruption of operations of any one or more units or division ... due to natural calamity (earthquake, flood, fire etc.), force majeure or events such as strikes, lockouts etc." While it was not explicitly mentioned that cybersecurity risks are to be reported, many listed companies (example) made such disclosures anyway. In June 2023, specific reporting requirements for cybersecurity incidents were added to the LODR regulations which we describe in the discussion section.

Data

Our list of cybersecurity incidents comes from two datasets that provide firm-specific incident information. The first dataset --- the "CISSM Cyber Attacks Database" --- is based on the work of Harry and Gallagher (2018). It is hosted by the University of Maryland (UoM). It has a set of 285 incidents that took place in India between 2014 and 2023. Of these, 45 incidents took place in companies listed in India. This dataset includes detailed information on the type of data that was compromised, the method of attack, and the responses of the affected companies. This data was collected by deploying a customised script that queries a list of news websites for articles or news items on cybersecurity incidents which are collected, sorted and stored. Another script then categorizes these incidents into various types.

The other dataset, called the Data Breach Investigations Report (DBIR), is hosted by Verizon. It has information on the type of breach (e.g., malware, hacking, social engineering), the target of the breach (e.g., government, enterprise, small business), the method of attack (e.g., phishing, spear phishing, watering hole attack) and the impact of the breach (e.g., data loss, financial loss, reputational damage). The DBIR dataset accepts information from a broad set of user-reported sources which are manually sorted by varying levels of confidence. The dataset has 83 incidents that took place in India between 2009 and 2017, of which 11 incidents took place in Indian-listed companies. 8 of the 11 incidents are already mentioned in the UoM database, so we are left with 3 unique entries in the DBIR. We manually categorized these three incidents based on the typology provided by Harry and Gallagher (2018).

The distribution of the different types of cybersecurity incidents is as follows:

Type Description No. of incidents
Data attack This type of attack covers the manipulation, destruction, or encryption of data in the target network. 7
Exploitation of application server This type of attack uses a misconfiguration or vulnerability to gain access to data in a server-side application (e.g. a database) or the server itself. 27
Exploitation of network infrastructure This type of attack covers the theft of data through direct access to network infrastructure such as routers, switches and modems. 1
Denial of service This type of attack is meant to degrade or deny access to other parts of the firm's network. 3
Message manipulation This type of attack covers interferences with the target's ability to accurately communicate information to its customers. 3
Combination of methods 5
Undetermined 2
Total 48

In total, our dataset has 40 unique companies and 48 incidents that took place between June 2013 and March 2023.

For stock prices, we retrieved the NSE daily closing prices for all the affected companies from CMIE Prowess for the period between 1 March 2013 to 31 July 2023.

Methodology

The event study methodology (ESM) is commonly used to measure stock price reactions to certain events (Fama et al, 969). We use the ESM to analyze the stock price consequences of cybersecurity incidents. Price reactions are represented by abnormal returns, which are stock returns adjusted for the normal daily stock price and market. We use the eventstudies package developed by Anand et al (2014) for our analysis.

This methodology involves the following steps:

  1. Identifying the event date: The event dates are the dates on which each of the cybersecurity incidents were made public i.e. the date of the news article.
  2. Calculating the abnormal returns: The abnormal returns for the affected companies are calculated on the event date and 45 days before and after the event. Abnormal returns are the difference between the actual returns of the affected companies and the expected returns of the market. The expected returns are calculated using the market model.
  3. Statistical tests: They help us determine whether the abnormal returns are statistically significant. The abnormal returns are used to test whether the cybersecurity incidents had a significant impact on the stock prices of the affected companies. The statistical tests are conducted using a variety of methods such as the t-test and the Wilcoxon signed-rank test.
  4. Analyzing the results: The results of the event study are analyzed to determine (i) the magnitude of the impact of cybersecurity incidents on stock prices, (ii) the factors that influence the impact of cybersecurity incidents on stock prices, and (iii) the implications of the results for investors, companies, and regulators.

Results

Event study results covering all incidents

Fig 1: Event study results for all 48 incidents.

We observe a significant decrease in the cumulative abnormal return (CAR) after the event date. The average decrease in the first month after the event was 3.48%. At its lowest, the CAR was -8.06%. However, with a widening 95% confidence interval, there is some uncertainty about the true effect of the cybersecurity incident on the stock prices of the companies. The sample size is low and the information available regarding the nature and magnitude of the incident is limited.

Event study covering incidents of the type "exploitation of application server"

Fig 2: Event study results for 27 incidents which were of the type "exploitation of application server".

The majority of the cybersecurity incidents were of the type "exploitation of application server". We conducted another event study on this set of incidents. However, we do not see significant results. In the first month after the event, the CAR increased by an average of 9.79%.

Limitations

Our list of 48 incidents is certainly not exhaustive. Many cybersecurity incidents may not have been reported. Given that the majority of our data comes from news sources, some disclosures may have been made long past the incident date.

Discussion

We began by asking about the financial and reputational consequences of a cybersecurity breach in a listed Indian firm. The trends in our analysis show that investors do tend to react negatively to the news of a cybersecurity incident.

As time progresses, we may be able to find more conclusive answers to both questions. This is thanks to some recent changes in the disclosure regime which will give us the true picture of cybersecurity incidents at Indian listed companies. In November 2022, SEBI in its consultation paper proposed amendments to these regulations. The consultation paper notes that cybersecurity incidents "may impact the operations and/or performance of the listed entity" but also recognizes that the "immediate disclosure of such events may not be desired since the entity may be vulnerable to further attacks". SEBI therefore proposed that the disclosures be made on a quarterly basis in the corporate governance report where the listed entity mentions the root cause of the incident as well as the remedial measures that they undertook. In June 2023, these proposals were adopted by amending Regulation 27(2) of the LODR regulations. Given the recent amendments to the SEBI LODR regulations, the quality of information on cybersecurity incidents could become richer. This could inform further studies which could deploy more sophisticated methodologies that control for other factors that could affect stock prices and remove the variation caused by them before performing the event study.

References

Chirag Anand, Vimal Balasubramaniam, Vikram Bahure and Ajay Shah, eventstudies: an R package for conducting event studies and a platform for methodological research on event studies, NIPFP Macro/Finance group, 2014.

Hassan Cavusoglu, B. K. Mishra, and S. Raghunathan, The Effect of Internet Security Breach Announcements on Market Value: Capital Market Reactions for Breached Firms and Internet Security Developers, International Journal of Electronic Commerce, Vol. 9 (2004), no. 104, pp. 70--104.

Karthik Kannan, Jackie Rees and Sanjay Sridhar, Market Reactions to Information Security Breach Announcements: An Empirical Analysis, International Journal of Electronic Commerce, Vol. 12 (2007), no. 1, pp. 69--91.

Eli Amir, Shai Levi and Tsafrir Livne, Do Firms Underreport Information on Cyber-Attacks? Evidence from Capital Markets, Review of Accounting Studies, Vol. 23 (2018), issue 3, no. 11, pp. 1177-1206.

Charles Harry and Nancy Gallagher, Classifying cyber events: a proposed taxonomy, Journal of Information Warfare, Vol. 17 (Summer 2018), no. 3, pp. 17-31.

Eugene F. Fama, Lawrence Fisher, Michael C. Jensen and Richard Roll, The Adjustment of Stock Prices to New Information, International Economic Review, Vol. 10, no. 1, pp. 1--21.


Sayan Dasgupta and Karthik Suresh are researchers at XKDR Forum. Renuka Sane is a researcher at TrustBridge. We thank Ajay Shah, Geetika Palta and Siddhant Bharti for their useful comments.

Tuesday, January 09, 2024

The difficulties of asset monetisation in the transmission sector

by Akshay Jaitly, Charmi Mehta, Rishika R, and Ajay Shah.

Introduction

About 95% of nationwide transmission assets in India are presently owned by the government company, Power Grid Corporation of India Limited (PGCIL). A transformation of electricity transmission systems is required to achieve decarbonisation, reflecting the distributed geography of renewables generation in India, and the eventual de-commissioning of present coal-based power generation. Several estimates suggest a total required investment, for electricity transmission, of over INR 2 trillion over the next five years.

Given the public finance and managerial constraints in the Indian state, private investment is critical to achieve the required investments. Land, compliances and clearances impede pure private greenfield transmission projects, so one method there is for the government to do development and then monetise the assets. Existing assets are relatively straightforward to operate and risk-free, with a steady stream of user charges, where private sector participation is then readily achieved.

While attempts at attracting private investment in this field have taken place from 2006, the outcomes so far have been poor. One response to this was in October 2022, where the Ministry of Power issued guiding principles for states to monetise 14% of transmission assets that are currently owned and operated by state-owned transmission utilities. This involved a new contracting mechanism: the "Acquire, Operate, Maintain and Transfer (AOMT) model".

This is the temporary transfer of asset ownership (i.e. not a sale) to private firms in exchange of an upfront payment. Firms are expected obtain cash from the operations (user charges) of the asset, depending on the model deployed for monetisation. Asset monetisation has twin benefits for governments - first, it provides short-term liquidity to the public sector entity in the form of upfront payment for the asset(s); and second, it allows the government to delegate the operations and maintenance (O&M) to the private sector, enabling public sector entities to harness private sector capabilities and reduce their scope.

How previous asset monetisation models worked

Asset monetisation has been used as a contracting model for O&M since 2018 when the National Highways Authority of India (NHAI) began using the toll-operate-transfer (TOT) model, which draws on ideas from Australia, North America and Europe. Besides this, InvITs have been used in the transmission sector. There is significant knowledge and experience around InvITs and TOT contracts in India: they constitute the baseline against which the new AOMT can be understood. Table 1 provides a comparison of the three models on key features.

Table 1: A comparison of key features across contracting models - InvITs, TOT and AOMT.

InvITs Toll Operate Transfer AOMT
Description Transfer of assets to listed registered trusts regulated by Securities Exchange Board of India which issues units to multiple investors. Comparable to equity for a limited time period. Temporary transfer of asset ownership for an upfront payment from the private party who is granted this concession. The private party is also granted rights to collect user charges, and other charges to finance the O&M of the asset. Temporary transfer of ownership of assets for upfront payment from the private party, in turn allowing them to operate and maintain the asset, and generate revenue from it.
Regulation of investment vehicle Trust to be registered by SEBI; existing licences applicable SPV/ investor entity regulated by contract terms Transmission licence transfer/re-registration to be approved by State electricity regulator
Regulation of user charges Approved by electricity regulator and governed by Transmission Service Agreement As per National Highway Toll Determination Rules Approved by electricity regulator and governed by Transmission Service Agreement
Mode of returns Returns from dividends, interest and capital gains on units Toll charges Transmission charges (varied across states)
O&M Public Private Private
Ownership Pooled; investors Single or consortium Single or consortium

The Toll-Operate-Transfer model in Indian Highways

In 2018, the NHAI bundled approximately 500 km of highways for the first auction, and potential investors were to bid the upfront payment they would make for the bundle. In return, investors receive the right to operate the highway and collect tolls generated from it during the concession period. This model provides the awarded party autonomy on operations and revenue generation, eliminating the involvement of the public authority in O&M.

The NHAI has so far attempted to monetise ten bundles (rounds) of assets with varied rates of success. The lack of bids, undervalued bids, and low price recovery led to auctions being stalled, bids annulled and fresh auctions being called, several times. Most recently, the 9th and 10th TOT bundles up for auction were halted as they did not meet the reserve price set by NHAI. Despite using a familiar model, the implementation has not yielded positive outcomes. Large value disputes in highway contracting, low standards of public disclosure and the inability to make accurate revenue growth projections are some of the reasons for its substandard outcomes.

The InvIT model in the transmission sector

In 2020, the PGCIL became the first publicly owned company to set up its own investment trust (InvIT). The PGCIL InvIT holds transmission assets worth INR 7500 crores and it opened for subscription in early 2021. Within two days of the offer, 59% of the units were subscribed. When the session was closed, PGCIL benefited from a 3% premium over the issue price and the initial public offer was subscribed 4.83 times. During this period, investor perception was also positive with analysts predicting that the InvIT would yield steady long-term returns. PGCIL eventually auctioned 27.41 crore units, earning INR 2,736.02 crore in May 2021. However, concerns with the lack of transparent price discovery and taxation norms on long-term capital investments have prompted PGCIL to rethink its InvIT plans. Additionally, the retention of O&M as a function of the public sector entity may create a hesitation to investment by private entities.

Neither of the two distinct asset monetisation models that India has experimented with achieved the outcomes it set out to achieve. On one hand, InvIT provides a diversification of risk but O&M remains with the government. On the other hand, TOT provides autonomy over O&M but ownership is not diversified. This serves as a case study for the design of new models for asset monetisation, and whether it can address the concerns of previous models used.

There is no reason why an InvIT structure cannot be augmented to also include the contracting out of O&M functions to a private entity. This will bring in private sector efficiency and allay the fears of investors. There are two ways in which the InvIT could be presently undertaking O&M: (i) it is possible that PGCIL is charging the InvIT a fee and doing the O&M, or (ii) O&M staff may have been transferred with the assets and the InvIT is doing its own O&M. Either way the function is retained with the government, making it a potential point of concern for investors. To eliminate this friction, a third model is preferable, where O&M functions of an InvIT are contracted out. This could have been a plausible design option since InvITs have been around for a while, instead of opting for a fully different model.

Concerns about the AOMT

The importance of private investment in transmission is well taken. The question lies in the pathway to a solution. We recognise the immense complexities of getting up to a well-functioning institutional mechanism. We also recognise that different sectors may warrant different approaches to doing the same things. There are two main concerns with the AOMT model:

  1. The contract design is not suited to state government assets due to problems of state-level electricity governance; the overall lack of control on streams and decisions of revenue (user charges) is a factor that models should solve for; and
  2. The unfamiliarity with the model among state governments (and asset monetisation generally). There are two existing mechanisms for doing this, with precedents and understanding within infrastructure, finance and government establishments: InvIT and TOT. These represent natural pathways to take for electricity transmission assets.

It has been over one year since the introduction of the model and it has seen no uptake from states so far. States have expressed concerns with the design and feasibility of the model. When the Ministry of Power proposed AOMT, there was a need for a first principles argument and public consultation, about why a third strategy was proposed. They needed to show the difficulties that would arise through the three existing pathways, and how the modifications chosen under the AOMT model addressed these difficulties.

References

Ministry of Power, Guiding principles for Asset Monetisation in the Transmission sector for state governments, October 2022.

Utpal Bhaskar, Power firms finalize models for asset monetisation plan, Livemint, 2022.

KPMG, Global Infrastructure Asset Recycling and Infrastructure Capital, June 2020.

Charmi Mehta and Bhargavi Zaveri, Monetisation lessons from NHAI, The Business Standard, March 2021.

Surya Sarathi Ray, NHAI cancels two projects on low bids, Financial Express, March 2022.

P Manoj, NHAI annuls highest bid of Sekura Roads for ToT Bundle 10 as it was below reserve price, The Economic Times, Sept 2022.

Charmi Mehta and Susan Thomas, Identifying roadblocks in highway contracting: lessons from NHAI litigation, The LEAP Blog, July 2022.

Shreya Jai, PowerGrid's asset monetisation via InvITs gets Cabinet go-ahead, Business Standard, Sept 2020.

Sundar Sethuraman, PowerGrid Infrastructure Investment Trust ends debut trade at 3% premium, Business Standard, May 2021.

Sunil Shankar Matkar, PowerGrid InvIT IPO opens: Should you subscribe?, MoneyControl, April 2021.

Utpal Bhaskar, PGCIL drops second InvIT tranche plan, LiveMint, Jan 2023.


Akshay Jaitly is co-founder of Trustbridge Rule of Law Foundation and Trilegal, Charmi Mehta is a researcher with XKDR Forum, Rishika R is a researcher with Trustbridge Rule of Law Foundation, and Ajay Shah is co-founder of XKDR Forum.

Wednesday, December 06, 2023

How substantial are non-substantive hearings in Indian courts: some estimates from Bombay

by Pavithra Manivannan, Karthik Suresh, Susan Thomas, and Bhargavi Zaveri-Shah.

The problem

If we think about court as a services production organisation, then the number of staff, technology and other resources would be inputs to deliver well-defined outcomes of litigants' cases being decided satisfactorily. In between these inputs and outcome are hearings as the output of courts. Hearings are where the matter of the dispute is presented in front of a judge. When hearings are substantive, progress is made in resolving the dispute.

Not all hearings are substantive. Some non-substantive hearings are inevitable, involving procedural matters such as the filing of documents. When a hearing is non-substantive because the matter is rescheduled to a later date, this imposes a burden of time and cost upon litigants and the court.

Such unexpected non-substantive hearings are an important problem in the Indian legal system. The Civil Procedure Code (1909) prescribes a limit of three adjournments per case, but reality often diverges from this stated limit. In 2021, the e-committee of the Supreme Court has proposed an alert for judges to be informed about breaches in this 3-adjournment rule within its case management system. There is thus a recognition of the presence of this problem.

What is not, at present, known is a quantitative sense of the improtance of the problem. In this article, we estimate the magnitude of non-substantive hearings for one group of situations. The working of the Indian legal system varies widely by venue and case type. In order to measure the phenomenon of non-substantive hearings, we pick one relatively homogeneous class of disputes --- debt dispute resolution --- which are heard at three courts in Bombay. They are the National Company Law Tribunal (NCLT), the Debt Recovery Tribunal (DRT), and the Bombay High Court (Bombay HC). For these three venues, we seek to estimate four quantities:

  1. What is the fraction of substantive hearings in these courts?
  2. Out of the hearings in a case, how many are substantive?
  3. How much time elapses till a first substantive hearing?
  4. How likely is the first hearing to be a substantive hearing?

Definitions and estimates

An understanding of the number and likelihood of such hearings is important to set litigant expectations about the time and costs spent when seeking redress from the court. Regy and Roy (2015) use the term 'failed hearing' in their work on understanding what causes delays at the Delhi Debt Recovery Tribunal (DRT). They classify failed hearings as those hearings that satisfy three criteria: the hearing resulted in an adjournment without any judicial business, the adjournment was avoidable and the adjournment was not penalised. Khaitan et al. (2017) record hearings as 'inefficient' in their study on court efficiency, where the definition of an efficient court is based on whether the court meets set deadlines or not. In their work on cases from the Delhi High Court, they record hearings as 'inefficient' when there is a failure, either because of the court ('insufficient time to hear the case', 'absent judge') or because of either party ('counsel sought time', 'Absent counsel', 'Delay condoned', 'Restoration'). These papers present us with the earliest estimates of non-substantive hearings. Regy and Roy (2017) record 58% of hearings at the DRT as failed hearings. Khaitan et al (2017) record 48% of hearings at the Delhi HC as inefficient. Both suggest that attempts to reduce adjournments could reduce court delays by up to 50-60%, based on these estimates.

The Ministry of Law, Justice and Company Affairs, in the context of fees payable to government counsel, refer to 'Effective hearings' and 'Substantial work'. Effective hearings are where either one or both parties are heard by the court, while 'non-effective' hearings are where 'the case is mentioned and adjourned or only directions are given or only judgement is delivered by the court'. The same memorandum refers to substantial work as 'when the case has been admitted by the Court after hearing of preliminary objections or filing of the affidavits/counter-affidavits etc. by the Counsel'. These definitions guide a distinction between adjournments and non-substantive hearings.

In this article, we broaden the notion of differentiating non-substantive hearings beyond adjournments. Only hearings where there is application of judicial mind to the resolution of the dispute, are classified as 'substantive'. Thus hearings that involve disposals, withdrawal, admission, reporting settlement, are classified as substantive hearings. Adjournments are classified within non-substantive hearings. A reading of the order for an adjourned hearing may simply have a next date given for a hearing. These may be adjournments on account of paucity of time, time sought by parties, non-appearance of parties, wrongly listed or technical glitches. We also classify hearings as non-substantive when orders in which the court gives directions to file pleadings or take on record pleadings. Hearings that involve matters of procedure, without a substantial impact on the resolution of the dispute itself, are taken as non-substantive for a litigant.

The dataset

We hand-constructed a novel dataset, where for a sample of cases, we built the existing case life-cycle by collating all the hearings for a given case. We then read and classified each hearing in the case life-cycle as a substantive or a non-substantive hearing using the approach listed in the previous section. Since each judge records what transpired at the hearing in her own style, parsing and classifying every order necessarily involved a subjective judgement about whether it is a substantive hearing, or not. Therefore, once we had classified orders, we then subjected the classification to a double-blind peer review.

We built this dataset for cases of debt dispute resolution, using orders collected from the websites of the High Court (HC), DRT and NCLT in Bombay. The analysis was done for a random sample of 200 matters from each of the three courts. In these samples, we selected 100 disposed cases and 100 pending cases for each court. The hearing dates ran between 2018 and 2022.

One difference in how orders are uploaded on the Bombay HC versus the two tribunals is important to take note of: each court follows a different timeline for uploading case life-cycle data. On the Bombay HC website, the case appears from the date of filing. For the tribunal courts, the case appear on their respective websites only from the first hearing date, irrespective of the filing date of the case. Since the sample of cases from each court was drawn at random, there could be cases in the Bombay HC without a hearing, while this is not possible with cases in the sample from the tribunal courts. Further, this makes a strict comparison of hearing characteristics at the Bombay HC and the tribunal courts difficult. These differences impose constraints on how various measures are calculated for each court, in order to enable a balanced comparison across the courts.

Findings: What is the fraction of substantive hearings in the three courts?

Table 1: Fraction of substantive hearings to total hearings in three debt dispute resolution courts

Court Hearings in full sample Hearings in disposed cases
Total Substantive Fraction   Total Substantive Fraction
Bombay HC* 399 192 0.34*   208 139 0.48*
DRT 575 229 0.40     267 116 0.43  
NCLT 1135 258 0.23     365 145 0.40  

*57 cases at the Bombay HC had zero hearings. The fractions reported for the Bombay HC have been adjusted to account for this.

Table 1 shows the total number of hearings, the number of substantive hearings and the ratio of substantive to total hearings in the three courts. The number of non-substantive hearings can be calculated as (Total hearings - Substantive hearings). This table shows that the NCLT generates the lowest ratio of substantive hearings among the three courts, while the Bombay HC outputs the highest ratio.

Table 1 also shows the data on the ratio of substantive hearings for disposed cases in the three courts. This indicates two features: first, the court generates a higher fraction of substantive hearings in the case of disposed cases. This means that there is a higher number of substantive hearings among hearings for cases that have been disposed. But, there are still fewer substantive hearings than non-substantive hearings. Less than than 50% of all hearings for disposed cases are substantive hearings. This observation holds for all three courts. This suggests that process improvements that simplify administrative hearings or reduce the incidence of adjournments will have a significant improvement in the experience of the litigant in these courts.

The above finding relates to the outputs generated by the courts as a whole, in relation to each other. The litigant focus will be more on what we observe about hearings per case. We examine these questions next.

Findings: What is the fraction of substantive hearings per case in the three courts?

Table 2 shows the summary statistics of hearings per case in the sample. The values presented include the minimum, median, maximum and average number of hearings per case.

Table 2: Number of hearings per case for three debt dispute resolution courts

Court Hearings Substantive hearings
Median Average   Median Average
Bombay HC 1 1.21*   1 0.43*
DRT 3 2.88     1 0.82*
NCLT 5 5.68     1 0.91*

*Each court has a different number of cases for which substantive hearings could be observed. The counts are 79 cases in the Bombay HC, 57 cases in the DRT and 60 cases in the NCLT with no substantive hearings

Table 2 shows two values for each court: the average number of hearings per case, and the average number of substantive hearings per case. We see that the Bombay HC has the lowest average number of hearings per case (1.21). The NCLT has the largest number of hearings per case (5.68). This indicates that NCLT has more than 3 times the hearings per case compared to the Bombay HC. It holds more than 2 times the average number of hearings at the DRT which has 2.88 hearings per case, on average.

When comparing the values of the average number of hearings per case to the average number of substantive hearings per case, Table 2 shows that all courts have less than 1 substantive hearing per case, on average. The NCLT has the highest average number of substantive hearings per case (0.91) but it is less than one. The average number of substantive hearings per case for the DRT is almost the same as the NCLT, despite the number of hearings per case being double at the NCLT. This suggests that for every 6 hearings at the NCLT, one is likely to be substantive, while for every 3 hearings at the DRT, one is likely to be substantive. If the number of hearings can be used as a proxy for the cost of filing a case in court, then NCLT is likely to be the lowest benefit to cost for the litigant.

But, the hearing or substantive hearing per case is often not the sole objective for a litigant who approaches court for the resolution of debt. What is also important is the time within which the substantive hearing can be reached. For this, we next examine what is the expected time to the first substantive hearing.

Finding: Time to first substantive hearing

When the case gets a first substantive hearing is an important milestone for a litigant. It is likely to be a hearing in which substantive oral arguments will be made on questions such as the admission of the matter before the court, questions of interim relief that will operate pending the final disposal of the matter, the impleadment of new parties to the matter, the time schedule for the filing of replies and counter-replies, and so on. Setting an expectation on when such a hearing is likely to be conducted after the case is filed, is therefore an important input to preparing for the case.

We use a survival analysis approach to estimate the time to a first substantive hearing after the filing date (Manivannan et al, 2023). Figure 1 shows two survivor functions for each court. The survivor function can be represented as a curve on a graph, which shows the chances of not getting a first hearing / substantive hearing (on the y-axis) against time from filing the case in court (on the x-axis). When the case is first filed, the chance of not getting a substantive hearing is 1 or 100%. I.e., at the outset, all cases experience no hearing / substantive hearing. As time progresses, this number starts to become lower than 1. The `faster' the curve drops from 1, the higher the chances that the case had a first hearing / substantive hearing. On each graph, the darker line shows the chances of a first substantive hearing, while the lighter line shows the chances of a first hearing.

The graph for the Bombay HC (in red) shows that at the end of one year, 40% of the cases have not obtained one hearing. When we focus on substantive hearings only, 60% of the cases have not achieved this milestone. The dark and light line are clearly separated, which indicates that these two values are distinctly different from each other.

The graph for the DRT (in green) shows that 77% of the cases have not got one hearing at the end of the first year after filing. When we focus on substantive hearings only, this is true for 80% of the cases. This means that only 20% of the cases can be expected to get a substantive hearing by the end of the first year from filing.

The graph for the NCLT (in blue) shows that at the end of one year, a little less than 50% of the cases have not got one hearing. When we focus on substantive hearings only, this fraction goes up to 70%. This means that 30% of the cases are likely to have achieved a first substantial hearing in the first year from filing. The gap between the curves for the first hearing and the first substantive hearing is the largest for the NCLT, among the three venues.

These graphs show that the litigant is most likely to get a first substantive hearing within one year of filing from the BHC.

We have chosen to estimate the chances of getting a first hearing and a first substantive hearing in one year after the case has been filed. But these same graphs can be equally used to estimate the chance of a first substantive hearing for shorter or longer periods of time also. For example, the chance of a first hearing within one month of filing the case is the highest at the NCLT, followed by the DRT, and last, at the Bombay HC. Similarly, the graphs show that the chances of getting a first substantive hearing within one month of filing is the highest at the NCLT, up to three months after filing. But if the case is not heard within this time, the chances of getting either a first hearing or a first substantive hearing are higher for a case which is filed at the Bombay HC.

Conclusion

Unpredictable non-substantive hearings constitute a process failure. In this article, we show that for one kind of matter (debt dispute resolution), at three venues, the fraction of non-substantive hearings is 64%, 60% and 77%. From the litigants' perspective of measuring the performance of courts, if a good measure is the fraction of matters that get to a substantive hearing within the first year after filing, we find that this value stands below 50% for all the courts studied.

There is merit in establishing systematic mechanisms for computing such performance metrics. These findings can help litigants estimate the possibilities of events and expenditures, after a case begins. Such information systems would help improve decision-making about suing, about settling, and the choice of venue, for the litigant. A regular estimation of these metrics can also be a useful guide for changes made in court processes, with the understanding that a change in performance metric will be some complex combination of the process change, along with the change in the response of the people who both make up the legal system, and those who use it.

Finally, this work highlights the difference in objectives for which performance metrics need to be designed. While the producer (court) will find it optimal to use the ratio of aggregate substantive to total hearings, the litigant will optimise based on the metric of substantive hearings per case which can lead to a different choice relative to what the court might expect.

References

Nitika Khaitan, Shalini Seetharam and Sumathi Chandrashekaran (2017), Inefficiency and Judicial Delay: New Insights from the Delhi High Court , Vidhi, March 2017.

Pavithra Manivannan, Susan Thomas and Bhargavi Zaveri-Shah (2023), Helping litigants make informed choices in resolving debt disputes, The Leap Blog, 15 June 2023.

Prasanth Regy and Shubho Roy (2017), Understanding Judicial delays in debt tribunals, NIPFP Working Paper 195, May 2017.


Pavithra Manivannan, Karthik Suresh, and Susan Thomas are researchers at XKDR Forum, Mumbai. Bhargavi Zaveri-Shah is a doctoral candidate at the National University of Singapore. We thank Geetika Palta for data support, and Purbasha Panda for her support in reading through the case orders. We also thank two anonymous referees and Ajay Shah for useful feedback and comments.